Darlington Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 27, 1967

165 N.L.R.B. 1074 (N.L.R.B. 1967)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Darlington Manufacturing Company, Deering
Milliken & Co., Inc., and Deering Milliken,
Inc. and Textile Workers Union of America,
AFL-CIO. Case 11-CA-1071.
June 27, 1967
SUPPLEMENTAL DECISION ON REMAND
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, BROWN, AND ZAGORIA
On October 17, 1956, the stockholders of
Darlington Manufacturing Company voted to
liquidate the cotton mill operated by the Company in
Darlington, South Carolina. This action followed
closely a representation election, held on
September 6, 1956, in which a majority of the
employees of Darlington had selected the Textile
Workers Union of America to represent them for
purposes of collective bargaining. The Union, the
Charging Party here, filed unfair labor practice
charges against the Company with the National
Labor Relations Board, alleging, inter alia, that the
liquidation (completed by December 17, 1956)
constituted a violation of the National Labor
Relations Act, as amended, primarily of Section
8(a)(3), the provision that condemns discriminatory
action taken by an employet to discourage union
membership. The charges also alleged that, in
various ways, Darlington had unlawfully refused to
bargain with the Union, thus violating Section 8(a)(5)
of the Act, and that, both prior to and after the
election, Darlington had engaged in numerous
independent violations of Section 8(a)(1), which
provision forbids coercion or interference directed
against the fundamental right to act collectively,
assured to employees by Section 7. An extensive
series of legal proceedings,' including amendments
to the complaint naming Deering Milliken & Co.,
Inc., and its successor, Deering Milliken, Inc., as
additional respondents, culminated in a Decision
and Order issued by this Board on October 18, 1962.
In that Decision, reported at 139 NLRB 241, a
majority of the Board found that Respondent
Darlington had closed its plant at least partly
because the employees had chosen to organize; this
action violated Section 8(a)(3); employees are not left
^emediless when their employer discharges them en
masse for antiunion reasons, even though the
discharge may take the form of termination of his
entire enterprise; Darlington and the affiliated
Deering Milliken corporations were essentially a
single employer, jointly and severally liable to
remedy the unfair labor practices committed at
Darlington; and these Respondents were also to be
held accountable for the violations found under
Section 8(a)(5) and (1). The Board ordered the
Respondents to reimburse the discharged
' Descnbed in detail at 139 NLRB 241, 242
employees for wages lost from the time of discharge
until they were offered reinstatement or placed on
preferential hiring lists in other Deering Milliken-
controlled mills, ordered Respondents to bargain
with the Union about the reemployment procedures,
and required advertising and mailing of the
customary notices.
On review, the Court of Appeals for the Fourth
Circuit, sitting en banc, denied enforcement 325
F.2d 682. The court of appeals (Judges Bell and
Sobeloff dissenting) held that, accepting arguendo
the Board's findings of motive and single employer,
an employer has an absolute right to close out his
business, in part or in whole, even if his action is
"spurred by unionization." The court accordingly
found no violation of Section 8(a)(3). Additionally, it
held that the 8(a)(5) and (1) offenses were not subject
to remedy "as Darlington is no longer alive."
Having granted certiorari, the Supreme Court
affirmed the court of appeals insofar as it had ruled
that an employer may entirely terminate his
business for any reason, including a desire to spite
the union, without incurring liability. 380 U.S. 263.
The Court disagreed, however, with the further
holding of the court of appeals that all permanent
partial closings are similarly lawful. It ruled instead
that the permanent closing of part of an employer's
enterprise may be violative of Section 8(a)(3) if
"motivated by a purpose to chill unionism in any of
the remaining plants of the single employer and if
the employer may reasonably have foreseen that
such closing would likely have that effect." 380 U.S.
263, 275. Since the Board had made no express
findings on these issues of "purpose" and "effect,"
the Court vacated the judgment of the court of
appeals, with instructions that the case be remanded
to the Board for findings on these matters.
Thereafter, the General Counsel moved the Board
to reopen the proceeding for the purpose of
supplementing the record with additional evidence
bearing upon "purpose" and "effect." Respondents
filed memoranda of opposition to the motion and also
requested that the General Counsel furnish a bill of
particulars specifying the evidence he proposed to
adduce. Pursuant to the Board's direction, the
General Counsel submitted a bill of particulars. The
Respondents thereafter filed supplementary
responses, renewing their opposition to the motion.
On October 25, 1965, the Board granted the
motion of the General Counsel, deeming it
"appropriate that all parties be afforded an
opportunity to supplement the record in the light of
the vital requisites which the Supreme Court has
now explicated for the first time as governing a case
of this kind." Subsequently, hearings were held
before Trial Examiner Lloyd Buchanan on various
days between November 1965 and March 1966. On
August 10, 1966, the Trial Examiner issued his
165 NLRB No. 100
DARLINGTON MFG. CO.
Supplemental Decision, in which he found, on both
the evidence taken at the most recent hearings and
that received at earlier hearings and presently cited
by the parties, that the General Counsel had not
established by a preponderance of the evidence that
(1) those persons exercising control over Darlington
were moved to close the plant by the required illicit
purpose of chilling unionism; (2) it was realistically
foreseeable to such persons that the closing would
have that effect; or (3) the closing did, in fact, have a
chilling effect. In conformity with these conclusions,
the Trial Examiner recommended that the 8(a)(3)
allegation against the Respondents be dismissed.
The General Counsel has filed exceptions to the
Trial Examiner's Supplemental Decision and a brief
in support of the exceptions. The Union has filed
exceptions. Respondent Deering Milliken, Inc., has
filed a brief in support of the Supplemental Decision,
an answering brief, and cross-exceptions.
Respondent Darlington has filed an answering brief
and cross-exceptions. While both Respondents have
requested the opportunity for oral argument before
the Board, we believe that the record, the
exceptions, and the briefs adequately present the
positions advanced by the Respondents and
accordingly deny the request.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed, except as otherwise modified
below. The Board has considered the opinion of the
Supreme Court, the Trial Examiner's most recent
Supplemental Decision, his prior Decisions, the
exceptions and briefs, and the entire record in this
case. Our appraisal of the evidence leads us to find,
in disagreement with the Trial Examiner, that the
General Counsel has established that the closing of
Darlington was "intended to be and was a grim
deterrent to the thousands of employees in the
affiliated plants who might entertain similar notions
of unionization,"2 and that the persons exercising
control over Darlington reasonably foresaw that the
closing would likely have the intended effect.
The plant operated by the Darlington
Manufacturing Company was a carded-cotton textile
mill located in Darlington, South Carolina. In 1956, it
employed about 525 persons and accounted for one-
third of the economy of this town of some 6,700
population. In March 1956, the Textile Workers
Union of America began an organizational campaign
at Darlington which resulted in a representation
election, won by the Union, on September 6, 1956.
The preelection period was marked by many
incidents of coercive conduct engaged in by
Darlington's officials and supervisors, including a
2 N.L R B. v. Deenng Milliken & Company, Inc., 325 F.2d 682,
691 (C A. 4) (dissenting opinion).
3 In the South, there were 20 mills located in South Carolina, 3
in Georgia, and 2 in North Carolina The Georgia and North
1075
number of threats of plant closing in the event of a
union victory. After the election, some employees
were told that their action in voting for the Union
would result in their names being placed on a
blacklist.
The majority of the stock of Darlington and of 16
other corporations operating 27 nonunionized textile
mills in both the Southern and the New England
States3 was owned, through direct ownership of
stock and ownership of other corporations, by
members of the Milliken family, frequently
characterized in these proceedings as "the lineal
descendants of Seth Milliken." As described in the
Trial Examiner's Second Supplemental Decision, our
original Decision, and Judge Bell's dissenting
opinion in the court of appeals, the Milliken family
not only possessed controlling interest in the
manufacturing corporations which operated the 27
mills, but also actively and personally managed
those interests. A majority of the board of directors
of each corporation, save one, were Millikens. But
the chief figure in the family hierarchy was Roger
Milliken. By 1956, Milliken-dominated directorate
had appointed Roger-Milliken to the presidency of
all the corporations but one, and he served as vice
president and director of that one. As president and
member of the board of Deering Milliken & Co.,
Inc., which served as selling agent and factor of
accounts receivable for all the mills and which also
held a substantial amount of stock of Darlington and
the other corporations, as chief executive of almost
all of the manufacturing corporations, and as the
member of the family assigned to perform all of
these functions, Roger Milliken was manifestly the
appointed steward of the Milliken family interests
and the Deering Milliken fortunes.
Roger Milliken resided in Spartanburg, South
Carolina, about 115 miles from Darlington. During
the organizing effort, he had been kept abreast of the
Union's progress by James Oeland, the mill
treasurer (resident chief executive) of Darlington,
through the medium of the weekly business report
furnished him by Oeland. A few days after the
September 6 election, Milliken called a special
meeting of the board of directors for September 12
to consider the liquidation of Darlington. The board,
four of whose members belonged to the Milliken
family, met for 75 minutes, during which time they
elected a new director, adopted a resolution to
amend Darlington's pension plan in certain respects,
and voted to recommend liquidation of the mill.
According to the testimony in this case, the financial
condition of Darlington was discussed at the board
meeting. It was brought out that Darlington had
averaged less than a 3-percent return on invested
Carolina plants are near the border of South Carolina The
number of hourly paid employees in these mills, as of the end of
1956, was more than 14,000
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
capital in the previous 5 years,4 including the
current year in which a loss of $40,000 was expected,
and that, if market prices did not rise or costs
decrease , a loss of $240,000 could be anticipated in
the following year. According to the testimony of
Roger Milliken, although these facts had been
known prior to September 6, the election of the
Union was considered to be an adverse factor of
sufficient importance to warrant bringing the matter
of the dissolution of Darlington to the board for
consideration. The board was so informed at the
meeting, with unspecific references to the impact on
the Darlington financial picture which could be
expected from the "promises" made to the
employees by the Union. No member of the board
appears to have inquired as to the nature of these
promises.
After the 30-day public notice required by South
Carolina law, the stockholders met on October 11,
1956. A discussion of the situation, similar to that at
the board meeting, ensued, with some stockholders
strongly protesting the proposed action, in view of
the consequences to the town of Darlington. As we
found in our earlier Decision, at this meeting Roger
Milliken expressly stated that he had decided to
close the mill when the employees voted for the
Union. 139 NLRB 241, 246. With Roger Milliken
voting 72 percent of the stock, some personally held
and the majority as proxy-holder, the stockholders
accepted the recommendation to liquidate, and they
further authorized an auction to be held on
December 12 and 13, 1956. At the auction, the assets
of Darlington were sold piecemeal to several
purchasers.
In our first Decision in this case, we found that the
Union's election victory prompted the precipitate
closing of Darlington. In agreement with the Trial
Examiner, we concluded that the decision to shut
the plant would not have been made but for the
protected organizational activities of the employees.
139 NLRB 241, 246. Whatever the normal economic
problems facing Darlington in 1956, it was beyond
dispute that no serious consideration had been given
to closing the mill until the Union was selected as the
bargaining representative of the employees. To the
contrary, in 1955 a textile engineering firm had been
hired to provide a long-range survey of
improvements necessary to the profitability of
Darlington's future operations. By September 1956,
$400,000 had been spent in the improvement
program which had been adopted, and construction
changes were being undertaken to accommodate
newly purchased looms. Just 1 month before the
4 In 1952, 1-1/2 percent , in 1953,8 percent ; in 1954, slightly less
than 2 percent; in 1955, about 3 percent ; and in 1956, a projected
loss of 1 percent . The expected loss for the current year had been
reported to Roger Milliken by Mill Treasurer Oeland in August.
Milliken at that time took no steps to liquidate the mill or to halt
the substantial capital improvement program which had been
initiated in 1956 and which had, in the first 9 months of that year,
board of directors met to recommend dissolution,
Mill Treasurer Oeland had reported to Milliken that
he expected the mill to lose $40,000 for the year. At
that time, Milliken did not call an emergency
meeting of the board of directors or suggest that the
plant renovation be suspended. The manufacturing
operation and the capital improvement program
continued routinely and uninterrupted until the
employees voted for the Union. Within a matter of
days thereafter, the board of directors, at Milliken's
behest, had recommended liquidation, and 5 weeks
later, with Milliken casting the determinative vote,
the stockholders had agreed to dissolve the
corporation. Milliken told the other stockholders
that he had decided to close the mill when the Union
was voted in, and, immediately after the
stockholders' meeting, he told a State senator that
he would not run the mill, despite the existence of a
disavowal petition which in the interim had been
signed by 83 percent of the employees, as long as 17
percent of the work force remained loyal to the
Union.
On such evidence, we found that the election of
the Union caused the closing of Darlington. At that
time, we understood the law to be that when an
employer takes discriminatory action against his
employees because of their selection of a union as
their bargaining agent, he violates the Act.
Accordingly, having found that the election of the
Union was a substantial cause of the plant's closing,
a fact virtually conceded by Respondents, we held
the closing unlawful under Section 8(a)(3). As we
viewed the law, it seemed sufficient simply to
determine whether the advent of the Union played a
direct part in the decision to close Darlington.
Finding this to be so-that Darlington would not
have been abandoned but for the employees'
selection of a union as their bargaining agent we
concluded that the law had been violated. Our
approach did not necessitate, and we therefore did
not undertake, an exploration of the question of
precisely what employer antiunion purposes the
closing was intended to serve. The Supreme Court
has now made it clear that, subject to the exception
hereafter noted, an employer may, without violating
Section 8(a)(3), permanently terminate or diminish
his enterprise, even if the action is a response to the
election or existence of a union. But the Court has
made it equally plain that, if one of the purposes
behind the closing of a portion of a business is the
deterrence of unionism in the remainder of the
business, the partial closing is an unlawful exercise
of the employer' s economic power. Our failure to
involved a capital expenditure of $400,000. See infra.
We note that the computation of yearly earning percentages by
Milliken was based on "invested capital " of about $3,500,000.
despite these calculations, Darlington paid an average dividend to
stockholders of 5 percent over the years 1952-55, based on a stock
market value of $ 14 per share.
DARLINGTON MFG. CO.
make findings as to the existence of such a purpose,
and also as to the foreseeable likelihood that the
purpose would be effectuated, has resulted in this
remand. Accordingly, we are charged now with
supplementing our earlier findings by a more
searching inquiry into the nature of the
considerations which led to the closing of
Darlington.
The Supreme Court stated that the following
elements are necessary to a finding of an unfair labor
practice in "a case of this kind" (380 U.S. at
275-276):
If the persons exercising control over a plant
that is being closed for antiunion reasons
(1) have an interest in another business,
whether or not affiliated with or engaged in the
same line of commercial activity as the closed
plant, of sufficient substantiality to give promise
of their reaping a benefit from the
discouragement of unionization in that
business; (2) act to close their plant with the
purpose of producing such a result; and
(3) occupy a relationship to the other business
which makes it realistically foreseeable that its
employees will fear that such business will also
be closed down if they persist in organizational
activities, we think that an unfair labor practice
has been made out.
1.
As to the factors of "interest" and "relationship,"
said the Court, the Board's "single employer finding
necessarily embraced findings as to Roger Milliken
and the Milliken family which, if sustained by the
court of appeals, would satisfy" these elements. Id.
at 276. The Court's conclusion, we believe, obviates
the need for any extended discussion of this issue.
We have previously found that those in control of
Darlington also effectively controlled many other
proximate textile plants. Seventeen related
corporations owned and operated 27 manufacturing
plants including Darlington. These corporations and
plants were owned by the Milliken family, through
their majority ownership, directly and indirectly, of
Deering Milliken & Company, Inc., and Cotwool
Manufacturing Corp. (later merged together into
Deering Milliken, Inc.) and through their individual
ownership of shares in the manufacturing
corporations. By virtue of its stock ownership, the
Milliken family owned and controlled from 55 to 88
percent of the stock in each of the affiliated mill
corporations. In our earlier Decision, we described
at length the manner in which the Milliken family
bound these corporate units into a closely integrated
enterprise, all being commonly serviced by central
research, taxation, insurance, purchasing, and
selling offices. We noted the direct control over
operational policy retained and exercised by the
Milliken family, as shown by the facts that Roger
Milliken served as president of all the mill
1077
corporations but one, and that a majority of the
directors of all except one of these corporations were
members of the Milliken family. After reviewing the
evidence relating both to the existence of the power
of control and to the actual exercise of that power,
especially in the "crucial area" of labor relations
(139 NLRB at 256), we concluded that the Deering
Milliken group of corporations constituted a single
enterprise, responsible for remedying the unfair
labor practices then found.
As the • Supreme Court has now pointed out,
subsumed in our "single employer" finding were
findings that the "persons exercising control over"
Darlington (i.e., the Milliken family, as advised and
influenced by Roger Milliken) had interests in other
businesses "of sufficient substantiality to give
promise of their reaping a benefit from the
discouragement of unionization" in those
businesses. It could not reasonably be questioned
that the Milliken family interests in the other textile
mills-majority ownership of them all-was
sufficiently substantial, as the Court uses that term.
This part of the Court's test asks whether the
persons controlling Darlington were in a position to
derive a substantial gain from the frustration of
unionism in other businesses. The record abounds
with evidence that they were.
II.
The record further shows that Roger Milliken,
who voted'a majority of the stock of Darlington in
favor of liquidating the plant, was not only in a
position to gain from discouraging union
organization throughout his tightly knit enterprises,
but also believed that such discouragement was vital
to the continued profitability of his operations. At
the latest hearing, Milliken recounted a history of his
unhappy experience with unions at plants with
which he had been affiliated prior to 1956. A union
strike over company-proposed work assignments
had preceded the closing of the Deering Milliken
mill in Madison, Maine, in 1947. At about the same
time, 5 months after the termination of an 8-month
union strike at the Dallas Manufacturing Company,
in Huntsville, Alabama, the directors had voted to
liquidate that concern. When the unionized
employees of the Lockwood mill, in Waterville,
Maine, protesting an 8-1/2-cent-an-hour wage cut,
had struck in 1955, the Millikens decided to close
down after the strike had continued for 7 weeks. As
the evidence showed, these contracts with unions
had left an impress on Roger Milliken. Before the
Trial Examiner, Milliken expressed the opinion that
unions are a "detrimental economic factor," "an
economic factor which mean[s] increased
resistance to cost-cutting." Nine years earlier, at the
time of the Darlington closing, Milliken had
conveyed this same view to J. M. Oeland, the mill
treasurer of Darlington, when he told Oeland that he
was going to recommend to the board of directors
299-352 0-70-69
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Darlington be liquidated. According to Oeland's
testimony in the recent hearings, when Oeland
asked that Milliken reconsider his decision, Milliken
replied that ". . . he had tried operating a mill with a
union , and, in every case, it had been a drain on the
stockholders' money, and that he did not think it was
wise to try to operate Darlington for that reason." It
seems clear that, to Milliken, unions spelled
obstruction and, eventually, destruction, and that it
was pointless to operate a plant burdened with an
entity which could only be a "drain on the
stockholders' money."
But the evidence further indicates that Roger
Milliken had been actively preoccupied with the
dangers of unionism months before the first union
organizer appeared at Darlington. Milliken's public
statements, even prior to the union campaign at
Darlington, made manifest his intense concern in the
mid-1950's with what he regarded as the threat to the
Southern industrial community posed by anticipated
union organizational drives. In October 1955,
Milliken addressed the South Carolina Fiscal Survey
Commission in the State House of South Carolina.
Among those in attendance were the members of the
South Carolina Congressional delegation, the
Lieutenant Governor of South Carolina, and persons
associated with the textile industry. Milliken's
presentation was entitled "Teamwork: The South's
Secret Weapon." While he touched on other
problems facing Southern textile manufacturers,
such as taxation and Japanese imports, his speech
primarily focused on the urgent necessity to keep
employees nonunionized (referred to as "teamwork"
between management and labor). After expressing
his belief that the textile industry in the South, and
South Carolina in particular, owed its survival to the
quality of Southern labor and management
personnel, Milliken went on to stress the need to
achieve the lowest possible cost of production. But
this objective, he continued, would not be realized
unless South Carolina textile workers offered a full
day's work for a full day's pay. The South Carolina
employee had done and was doing this at the time.
But, said Milliken, this employee attitude should be
contrasted with the situation in Great Britian ".. .
where the trades unions have insisted that no weaver
can run more than four looms whether they be hand
looms or automatic looms." And, similarly, the
"same intelligent attitude cannot be said to be held
by the New England workers who have been
influenced and badgered by CIO propaganda to
resist all management changes and to throw road
blocks in the way of making improvements that will
lower costs." Milliken related that he knew from
"bitter experience" that this difference in attitude
can have disastrous consequences. He described the
The Trial Examiner refused to admit evidence of this speech,
on the ground that it was too vague to provide a basis for inferring
unlawful purpose . We believe that the meaning of the speech is
plain, and that the speech is clearly relevant to the question of
recent auction of the Lockwood mill and the prior
liquidation of the Madison plant, where "we had
purchased one-quarter of a million dollars' worth of
new looms but were told by the unions when they
arrived that the weavers could not handle any more
of the new looms than they had of the old, regardless
of the fact that the amount of work was more than
halved. The result is that today our woolen operation
in South Carolina is more than double what it was,
and the Madison mill is empty of textile machinery."
In summarizing his remarks on this topic, Milliken
stressed that the "importance of the worker's
attitude cannot be too heavily underscored in our
thinking." The proper attitude was absent in "a mill
that we operated in Huntsville, Alabama, with the
result that we were unwilling to invest in new
machinery and the mill was liquidated in 1947." The
fact that the Lincoln mill (not a Deering Milliken
affiliate), also in Huntsville, was in the process of
closing down showed that "we are not alone in our
thinking." Cooperation between management and
labor "is South Carolina's greatest asset and one
that should be cherished and nourished at all costs."
[Emphasis supplied.] Finally, Milliken closed his
discussion of the subject by noting that lower wages
being paid in neighboring States rendered "our fight
for survival" even more difficult, making it
necessary for "all of us working together to strive
continually for lower costs."5
Three months later, in January 1956, Milliken
again disclosed his abiding concern with the specter
of unionism. In an address to the Kiwanis Club of
Spartanburg on the hopes for industrial development
in Spartanburg County where several Deering
Milliken mills were located, Milliken declared that
the labor problem was the "primary" factor in the
situation. He referred to the reported announcement
of a Wisconsin union leader that he would be in
South Carolina to "greet" a Wisconsin nontextile
firm which had recently decided to build in
Spartanburg, and he asked the Kiwanians, ". . . the
question is, how are we going to greet these
greeters?" He attributed the decision of two other
firms not to locate in the county to the "risky"
character of the labor situation (there being five
organized plants at the time). He stated that "union
feather-bedding practices" had in the past led to
Deering-Milliken decisions to liquidate three textile
plants-two in Maine and one in Alabama. His
speech concluded:
Let's fight together to keep this foreign
philosophy out of our town. Let's work together
to the end that Spartanburg and South Carolina
can grow together and demonstrate to the rest of
the country the advantages of teamwork
between workers and management . That is our
Milliken's fear of unions as a threat to the entire Southern textile
industry . We reverse his ruling and admit General Counsel's Exh
BB into evidence
DARLINGTON MFG. CO.
secret weapon. [Emphasis supplied.]
We think these speeches shed considerable light
on Roger Milliken's reaction to the news that the
Union had won at Darlington. They indicate that,
within months before the Darlington election, he was
engrossed , enough to speak out twice publicly, with
the need to prepare for the Union' s organizational
drive in the South. To Milliken, the textile industry
was engaged in an economic "fight for survival"; the
labor situation was the "primary" factor of concern;
unions meant the end of "teamwork"; no teamwork
meant empty mills, as the New England experience
had proved; and common defense against the foe
was required: "the question is, how are we going to
greet these greeters?" Against this background, it
becomes clear, we believe, that to Roger Milliken
the union victory at Darlington had substantial
implications for the 26 other mills in the Deering
Milliken complex. To an employer who had been
alerting an entire area to the dangers of unionization,
the union victory at Darlington, the first breach by a
union since World War II of the Deering-Milliken
defenses in South Carolina, was understandably a
portent of other union victories in other plants, if
permitted to go unchallenged. We have seen that
Roger Milliken's view of the industrial situation
reached far beyond the localized impact of a single
union victory at a single plant . This outlook, coupled
with his repeated and unqualified statements about
the perils offered by unionism , indicates to us, and
we find, that Milliken's actions with respect to the
union problem at Darlington were responsive at least
as much to the supposed needs of the 26 other mills
as they were to the needs of Darlington.
Respondents argue that Section 8(c) of the Act6
forbids the use of these speeches as evidence that
Milliken was guilty of the unfair labor practice
charged. The legislative history of that provision
indicates that the provision was intended to prohibit
the finding of an unfair labor practice simply on the
basis of an employer's expressed opposition to
unions, containing neither threat of reprisal nor
promise of benefit.7 The legislative background also
makes clear, however, that this section left
unrestricted the Board's right to consider employer
' "The expressing of any views, argument , or opinion, or the
dissemination thereof, whether in written, printed , graphic, or
visual form , shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of benefit "
r See especially the supplementary analysis submitted by
Senator Taft at 2 Legis . Hist. 1624 "The conferees had in mind a
number of Board decisions in which because of the fact that an
employer has at some time committed an unfair labor practice a
speech by him, innocuous in itself, has been held not to be
privileged There have also been a number of decisions by the
Board in which discharges of employees , even though there was
no evidence in the surrounding circumstances of discrimination,
have been deemed unfair labor practices simply because at one
time or another the employer has expressed himself as not in
favor of unionization of his employees . The object of this section
[8(c)], therefore , is to make it clear that decisions of this sort
1079
statements for purposes for which they would be
ordinarily admissible in courts of law.8 Whatever
limitations Section 8(c) might impose in other
circumstances upon the use of employer expressions
of antiunion sentiment , the purpose for which we
here consider these speeches does not violate that
provision. In this case, we look to Milliken's
speeches not simply as proof that he closed
Darlington because of the Union (a settled matter,
we believe), but as evidence of both his
apprehension of an anticipated large-scale union
campaign and of his belief that an industrywide
response was imperative. These two speeches
clarify the scope and breadth of the antiunion
considerations which led to the Darlington closing,
and we think that Section 8(c) was not intended to
interdict evidence offered for this purpose.
The direct relationship between the closing of
Darlington and Milliken' s serious concern with the
union threat to all of his textile mills is revealed by a
message which he transmitted to all mill treasurers
on November 4, 1956, 1 month after the stockholders
of Darlington voted to liquidate and 1 month before
the mill was auctioned. The distribution consisted of
reprints of an article and an editorial which had
appeared in the November 8 edition of America's
Textile Reporter, a trade magazine ; a copy of a news
article concerning labor turmoil at a Massachusetts
factory, excerpted from the South Carolina State
Chamber of Commerce newsletter of October 1956;
and a covering memorandum by Milliken. The first-
mentioned article, headlined "Darlington Situation
Becomes Object Lesson to All Concerned" and
subheaded "Present Stepped-Up Union Activity In
South Harbinger of Stronger Efforts and More
Exaggerated Promises to Come," purported to be an
indepth study of why 500 mill workers "suddenly
elect[ed] to put their future in the hands of" the
TWUA. The article first describes at some length
the Union's successful campaign at Darlington, the
"deceptive" promises to the employees, and the,
effect of the closing on the town's economy. The
article then, in discussing the "lesson to be learned"
from Darlington, stresses: (1) The extent to which
unions will go in order to deceive employees; (2) the
cannot be made under the conference bill "
" Senator Taft' s memorandum of legislative intent of June 5,
1947, stated- "It shall be noted that this subsection is limited to
`views, arguments , or opinions ' and does not cover instructions,
directions, or other statements which might be deemed
admissions under ordinary rules of evidence. In other words, this
section does not make incompetent , evidence which would
ordinarily be deemed relevant and admissible in courts of law "2
Legis Hist 1541. See also 2 Legis. Hist 1624 And see N.L R.B v
Lipman Brothers, Inc., et at., 355 F 2d 15 (C A. 1); N.L.R.B v
Baker Hotel of Dallas, Inc, 311 F.2d 528 (C A 5), N.L R B v
Southern Desk Company, 246 F 2d 53 (C.A 4); Angwell Curtain
Company, Inc v N.L R B , 192 F.2d 899 (C A 7), for the
proposition that employer statements of opposition to unions may,
at least in certain circumstances , be considered in determining
whether the employer action in question was unlawfully
motivated
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
importance of communication between management
and labor, for the purpose of making labor aware of
its role as part of the team; and (3) the necessity for
affirmative efforts at public relations by large firms,
on both a local and national level.
Appearing in the magazine in conjunction with the
article, and reprinted and circulated by Milliken,
was an editorial. In part, the editorial expressed the
belief that the liquidation of Darlington was a
foregone conclusion from the moment that the votes
were counted in the representation election; it cited
as the basis for this opinion the earlier closing of the
Dallas and Madison mills which, according to the
editorial, had been liquidated as soon as they were
unionized.9
The separately printed excerpt from the chamber
of commerce newsletter told of a Massachusetts
bedspread factory which had decided to close down
in November. Since signing a bargaining agreement
in February, "... the union had kept the mill in a
state of turmoil and reduced efficiency ...... and the
owners had decided to terminate the operation.
Milliken's memorandum attached to this reprinted
material shows that, in his view, although the
Darlington question may have been resolved, the
greater issue that Darlington represented was very
much alive. He wrote, in part:
It is apparent from this [America's Textile
Reporter] article that this magazine made a real
investigation in Darlington, and for that reason,
I think the article is interesting. While this
article shows that the union leaders definitely
misled the people, it also points out that the mill
was negligent in its public relations. I hope that
you will read this second part of the article
carefully and review in your mind the steps that
you are taking to bring about an understanding
of your mill and its problems in your
community. The unions are going to be making a
tremendous drive all through this area, and
there are few things that are more important to
us than making sure that the leaders in your
community understand and are sympathetic to
what you are trying to do. [Emphasis supplied.]
We think the memorandum and its attachments
are important on two counts. First, they demonstrate
both Milliken's firm opinion that the unions were in
the process of mounting a "tremendous" campaign
throughout the Southern area, and his grave concern
about that campaign. Secondly, by delivering the
message on the need for good "public relations"
through the medium of a dramatic article about the
Darlington plant closing and the other enclosures,
the results of a failure of "public relations" were
made pointedly clear. The gratuitous inclusion of the
editorial describing the Milliken "tradition" of
closing a plant whenever a union appeared, as well
as the article about the Massachusetts factory,
shows that the closing of Darlington was to be made
a symbol throughout the Deering Milliken chain of
what unionism would mean. In a message so
freighted with references to plant closings (of
Darlington; of the Madison and Dallas plants; of the
Massachusetts factory), it is apparent that what the
mill heads were being instructed to make "the
leaders in your community understand" was that the
mill might no longer be in that community if the
employees chose to unionize. Milliken himself
testified that, in sending the articles, he wanted the
mill treasurers to make "sure that the people in the
community, the leaders, realized the competitive
nature of the textile business and the necessity in
order to survive of lowering costs...." The only way
that community leaders could make use of this
information would be by impressing upon employees
the risks of unionism; an emphatic and timely
example of those risks was Darlington. Although
Milliken did not expressly announce that Darlington
had been closed in an effort to allay the spread of
unionism, he did not have to.10 Clearly implicit in the
enclosed material about plant closing was a simple
message, to be transmitted from the mill officials to
the community leaders and, from both groups, to the
employees: If your local mill goes union, it will, like
Darlington, be closed down.
Together with these direct communications of
Roger Milliken's intention to thwart unionism
wherever it appeared, which were issued both before
and after the election at Darlington, other
circumstances attending the Darlington closing
confirm that it was undertaken with an eye to the
impact that it would have on employees at other
mills.
The haste with which the disposition of the mill
was accomplished indicated a desire to expunge any
doubt from the minds of other employees that the
Union was directly responsible for the
unemployment of the Darlington workers. The board
of directors met only 6 days after the election,
although it had been customary to issue several
weeks' notice of such a meeting. The stockholders
met 35 days later, almost as soon as legally
permissible after publication of the 30-day notice
required by law. Less than 2 months after this
meeting, the auction was held. The liquidation could
hardly have been accomplished with more dispatch,
9 Milliken's testimony at the hearing , however, revealed that
neither mill had been liquidated upon unionization, but only after
unions had represented the employees for some length of time
His memorandum covering the editorial made no effort to correct
the erroneous impression left by its author.
10 The Union had filed charges with the Board in October 1956,
even before the plant closed , alleging that the decision to liquidate
Darlington was in violation of Section 8(a)(3) That Milliken was
exercising extreme caution in his references to the Darlington
situation during this period is indicated by a letter he wrote to a
friend on November 3, 1956, in which he noted that he had " . .
tried to avoid getting into a discussion in the newspapers with the
union or with [State Senator ] Mozingo . .
DARLINGTON MFG. CO.
and its timing could only definitively establish the
relationship between the election and the auction in
the minds of those following the events.
Roger Milliken has testified, in essence, that the
appearance of the Union meant increased
"resistance to cost-cutting" and "lack of
cooperation" which, together with the unpromising
financial condition of Darlington, led him to
conclude that the operation of the plant should be
discontinued. This determination of the Union's
effect on profitability was made before the Union
presented any demands or proposals to Darlington,
and, on this judgment alone, Milliken testified, he
set into motion the legal machinery which would
eventually close the plant. But, after the directors
voted to recommend liquidation, 83 percent of the
employees signed a petition disavowing the Union.
When State Senator Mozingo implored Milliken,
immediately after the stockholders' meeting, to
reconsider his decision to liquidate, mentioning the
petition as an indication of the employees'
repentance, Milliken replied, "As long as there are
seventeen percent of the hard core crowd here, I
refuse to run the mill."
We note that Milliken had not refused to run the
mill previously, despite the existence of a known
minority, "perhaps 25%," of employees who over the
years had resisted carrying out work assignment
changes and who, Oeland had "constantly" told
Milliken, represented "a very conscious [sic]
impediment" to attaining the best results. But in
prior years the employees had not voted for a union,
and in 1956 they had. As the General Counsel asks:
Could Roger Milliken have seriously feared much
"resistance to cost-cutting" from a union which the
employees had all but abandoned? At the hearing,
Milliken acknowledged that he had been aware that
the Union might be decertified as the bargaining
representative after 1 year. He further admitted
awareness of a situation in his own experience where
the parties had lawfully bargained for more than 2
years without reaching a contract. In these
circumstances, we conclude that his utter
determination to close could hardly have been based
on any real fears of resistance engendered by the 17
percent "hard core." And if his resolve to close
Darlington was not founded on a sincere belief that
the Union any longer represented an impediment to
cost-cutting, what reasons could have brought about
this fixed attitude? As little as a month before the
election, Milliken was notified of a projected loss of
$40,000 for the year, and he took no step toward
considering liquidation or halting the implementa-
tion of the substantial improvement program then in
progress at Darlington. There is no indication that
Darlington's earning potential, or the possibility of
other uses of the capital already invested in the
plant, suddenly developed an importance that these
factors did not have a month before. Clearly, it was
the election of the Union that accounted for
1081
Milliken's decision that Darlington must be closed.
But if Milliken had no real cause to be concerned
about the Union's threat to the plant's productivity,
and if he was not suddenly dissatisfied with the idea
of continuing as an investment the capital then in,
and being added to, Darlington, as seems clear from
his unperturbed attitude of a month before the
election, then why was Milliken so committed to the
idea of closing the Darlington plant, at the
considerable cost of antagonizing State and local
community leaders? We think it fair to infer that he
saw the opportunity to convey to all his employees
an object lesson of the folly of selecting the Union.
The first Deering Milliken mill in South Carolina to
be organized in a dozen years presented a chance to
create a graphic example of the hazards of unionism,
especially since, as Respondents themselves
contend, the mill was not an exceptionally profitable
one and, accordingly, dispensable. We are
convinced that Milliken recognized that chance and
seized it. No other purpose explains the
absoluteness of his determination to close, or, for
that matter, its speed, which was swifter than the
arrival of the Union's first proposal.
In sum, Roger Milliken was, in 1956, a man of
strong views about unionism, derived from a series
of disquieting relationships with unions earlier in his
career. His convictions about the dangers of
unionism to South Carolina textile interests, and, of
course, to his own, carried with them a sufficient
sense of urgency to lead him publicly to urge South
Carolina officials and businessmen to prepare for
averting unionism "at all costs," a call to action
uttered months before the Union initiated its
Darlington campaign. When that campaign
culminated in a victory for the Union,
unprecedented at a South Carolina Deering Milliken
mill in more than a decade, Roger Milliken moved
quickly to empty the plant. With a resoluteness
which, in view of the desertion of the Union by most
of the employees, could only be explained by an
intention to set a memorable example, he saw to it
that, within 14 weeks after the election, buyers were
hauling the Darlington machinery away. To assure
that the lesson (already the subject of "widespread"
publicity of which he was aware) was not lost on his
mill officials and their community leaders, and the
employees whom they both could influence, he
circulated to the mills a recommendation for a
"public relations" program, the suggested content of
which was readily apparent in the meaningful
material attached to the memorandum. We think it
clear from all this that, when Roger Milliken acted at
Darlington, his concern transcended the fate of the
Darlington mill alone, and encompassed as well the
future of all the mills with which he was connected.
We find that the closing of Darlington was, at least in
part, the product of a desire to discourage unionism
among employees at other Deering Milliken mills.
In finding that such a purpose existed, we have
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully considered those items of evidence and
inference which, the Respondents assert, make
doubtful the existence of a purpose to chill unionism
at other plants. Roger Milliken issued only three
press releases during the closing period, none of
which mentioned the Union, and one of which
stressed economic factors as the reason for the
closing. Respondents contend that his restraint in
this regard is incompatible with a purpose to
discourage unionism elsewhere. But the fact that the
closing was being "widely commented upon" in the
news media from the moment the board of directors
acted, as Milliken testified, weakens the inference
Respondents would have us draw from his failure to
do more. It can as well be inferred that it was
unnecessary for him to add fuel to a fire which the
press and the Union itself were stoking so well. In a
similar vein, it is argued that the implication in the
record that Milliken made no effort to thwart any
bidding for the plant as a going operation indicates
that he was not interested in chilling, since a mill
which merely changes hands when organized hardly
has as chilling an effect as would an empty mill. But
the chronology of bidding at the auction of
Darlington (bulk bid first, piecemeal bids thereafter)
left Milliken in a position of considerable control
over the ultimate manner of sale. With the bulk bid
known from the beginning; with the auction
operating under the ground rule that the bulk bid
would prevail only if it exceeded the total of the
piecemeal sale; and with representatives of other
Deering Milliken plants present and bidding for
separate equipment, Milliken seems to have been in
a position of exercising considerable control over the
method of disposition of the plant. We think it likely
that taking the bulk bid last would increase the
probability of obtaining a bulk bid higher than the
aggregate of the piecemeal bids."
We are aware of the testimony by the members of
the board of directors and stockholders (including
Roger Milliken) that they did not intend, by the votes
they cast, to chill unionism elsewhere, and that such
a prospect was not discussed at the two meetings.
While the Trial Examiner did not expressly find this
testimony credible, neither did he discredit it,12 and
it stands uncontradicted in the record. But we find it
of little moment that there was such testimony from
the other directors, for we believe that the critical
purpose is the one which moved Roger Milliken. He
held the obvious position of power in the corporate
ii A week after the stockholders ' meeting, an editorial in the
Darlington News and Press carried a story stating that State
Senator Mozingo had criticized Milliken's choice of bidding
procedure on precisely this ground, and alleging that the Senator
had consequently characterized as hypocritical Milliken's
professed concern for lessening the adverse impact upon local
residents . We consider this editorial not as evidence that the
statements were in fact made, but only as evidence that, 6 weeks
prior to the auction , the public prints contained a suggestion for
what appears to be a more reasonable procedure.
11 In his treatment of the testimony of "members of the
organization, he convened the meeting, he offered
the resolution, and he advised why the resolution
should be accepted. The other Millikens were only
tangentially related to the manufacturing operation.
Gerrish Milliken, brother to Roger Milliken, was
involved in the sales section of Deering Milliken, and
had been elected to the Darlington board an hour
before he voted to recommend liquidation of the
plant; Minot Milliken, Roger Milliken's cousin, was
the New York-based treasurer of Deering Milliken,
whose prior experience had been in the woolen sales
end of the operation; Harold Hatch, an uncle by
marriage of Roger Milliken, had been a director of
Darlington since 1908, but, in 1956, he was in
semiretirement in Connecticut. These three, plus
Roger Milliken, were the only votes necessary to
carry the resolution. Having conferred with all three
prior to the meeting, Roger Milliken scarcely needed
to explain fully to the other three directors (Oeland,
the mill treasurer of Darlington, Lyles, a South
Carolina businessman, and Nicholson, a former mill
treasurer of Darlington, then retired and having no
interest in other Deering Milliken mills) the effect
the closing might have on other Deering Milliken
employees.13 That Milliken went into no such detail
is not decisive of the question of whether the
proscribed purpose existed. Oeland, Lyles, and
Nicholson had no reason to be interested in the
effect on employees elsewhere.
It is true that the Union was mentioned at the
meeting as a precipitating factor leading to the
meeting call; the Trial Examiner, in another context,
considers it arguable that the "very frankness of
such a declaration of attitude ... suggests that he
[Milliken] would have been equally frank had he
acted out of concern for other mills and with the
purpose to affect employees at other mills or
businesses." TXD, section V. Sometimes the glaring
facts compel a certain amount of candor, but it does
not follow from this that the whole truth will be laid
bare. The union victory was too obvious and
operative a factor in the call for dissolution to allow it
to go unmentioned.
It may also be noted that the one of the legal
positions taken by Respondents now, and
throughout the course of this litigation , is that the
disharmony and lack of cooperation which an
employer might anticipate from a union are, under
the Act, a valid economic basis for taking action
affecting the job tenure of employees. Having
Milliken family," the Examiner merely concluded, "The
statements of purpose are negative , and whoever would regard
them with skepticism cannot rely on them as proving the contrary.
The testimony now received from the Darlington directors and
stockholders supports the original finding that Darlington would
not have been liquidated in 1956 but for the Union and its election
victory." TXD, section V °
13 According to Milliken , the three local directors were not even
told prior to September 12 what the purpose of the meeting was to
be.
DARLINGTON MFG. CO.
previously discussed the union victory and its
implications with James D. Poag, an experienced
labor lawyer, who also attended the meeting of the
board, Milliken undoubtedly recognized (1) the
necessity for admitting the paten nexus between the
election and the liquidation, (2) the probability that
the Union would protest to this Board, and (3) the
likelihood that his defense would include the
argument that a union is just another economic
condition which management may legitimately
consider. With these prospects in the offing, it would
have been pointless. simply to omit any reference to
the Union. But no attorney construing the Act at any
time in its history would have deemed it prudent to
mention further that the closing would have a
desirable inhibitory effect on organization of
employees at other mills. Accordingly, it seems to us
that Milliken's reference to the Union was, in the
circumstances, unavoidable, and not necessarily a
courageous display of candor which certifies its own
completeness. And, for these reasons, we do not
consider the testimony that other mills were not
mentioned at the board or stockholder meetings, or
that the other directors testified that they harbored
no intent to chill unionism elsewhere, to be of special
value. Roger Milliken's denial of illicit purpose is the
one which must survive the weight of the other
evidence, and we find that it does not.
In concluding that such a purpose to chill existed,
we have relied upon what we consider to be fair
inferences arising from the totality of the evidence,
considered in the light of then-existing
circumstances. Respondents argue that the
Supreme Court is requiring "concrete, specific,
independent proof"" of a purpose to chill unionism.
Insofar as this formulation is intended to be a
restatement of the Court's standard that there must
be "a showing of motivation which is aimed at
achieving the prohibited effect,"15 we concur. But
the requisite motivation may be proved by
something less than direct evidence, rarely available
in cases of this kind. 16 In this branch of the law, as in
all others, proof of motive may be supplied by
circumstantial evidence which affords a sound basis
for drawing inferences. The rationality of the
inferences we draw in this case is perhaps even
clearer than in ordinary Section 8(a)(3) cases, for
here it has been found and virtually conceded that
Darlington was closed because of opposition to the
Union. Where one such directly causative antiunion
motive is posited, the probability of a second
antiunion purpose, of wider gauge, becomes
stronger. We do not mean to say by this that proof of
14 Brief for Respondent Deering Milliken, Inc , p. 7
i' Textile Workers Union v. Darlington Manufacturing Co , 380
U.S.263,276
18 "Actual motive, a state of mind, being the question, it is
seldom that direct evidence will be available that is not also self-
serving. In such cases, the self-serving declaration is not
conclusive , the trier of fact may infer motive from the total
1083
one such motive ipso facto proves another. We
simply suggest that the existence of one motive may
indicate a disposition toward another.
The strength of the inferences to be drawn de-
pends, of course, upon all the facts and circum-
stances of the case. Thus, for example, if an
employer with one plant in Maine and another in
Florida were permanently to shut down the Maine
plant when it became unionized because of a stated
distaste for dealing with unions, and the evidence
disclosed no intention to give the closing notoriety in
Florida, we would not be likely to draw from such
bare facts the conclusion that a purpose to chill
unionism in the Florida plant existed." In other
hypothetical situations, the fact that the employer
had clearly decided to close because of the "per-
sonal satisfaction that [he might] derive from
standing on his beliefs,"' or because of religious
scruples against dealing with unions, could per-
suasively neutralize the weight of other factors,
such as number and proximity of plants, which with
other substantial evidence, might tend to support a
reasonable inference of a chilling purpose. But here,
as we believe our prior discussion demonstrates, we
are not deciding the case of an employer who closed
down for reasons of personal ideology or conven-
ience, nor are we deciding any other hypothetical
situation not presently before us. The record in this
case establishes that, to Roger Milliken, unions
represented a "detrimental economic factor"
which he would prefer not to have in Darlington and
which could certainly spell disaster if they spread
throughout his mills. When an employer with such
a belief, controlling 20 mills in South Carolina, 3 in
Georgia, and 2 in North Carolina, decides abruptly
to close one of these mills (which he had not other-
wise thought of closing) when it becomes unionized,
the purpose to chill unionism elsewhere becomes
readily inferrable from the other evidence of dis-
criminatory intent present in this case.
In discussing, in its Darlington opinion, earlier
cases involving partial closings, the Supreme Court
has indicated that valid inferences of a purpose to
chill unionism may be drawn from appropriate facts.
This discussion is especially valuable insofar as it
establishes the importance to be attached to an
employer's anticipation of a union campaign di-
rected at his entire operation, as an indicium of his
chilling purpose in closing part of the operation. At
footnote 19,380 U.S. 263,273, the Court reviews and
approves N.L.R.B. v. Savoy Laundry, Inc., 327 F.2d
370 (C.A. 2), remanding and enfg. in part 137 NLRB
306; N.L.R.B. v. Missouri Transit Company, 250 F.2d
circumstances proved Otherwise no person accused of unlawful
motive who took the stand and testified to a lawful motive could
be brought to book " Shattuck Dena Mining Corporation (Iron
King Branch) v. N L R B , 362 F 2d 466,470 (C A. 9).
"Cf A C. Rochat Company, 163 NLRB 421
Is 380 US. 263, 272
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
261 (C.A. 8), enfg. 116 NLRB 587, as partial closings
"found to have been motivated, at least in part.''' by
the expectation of achieving future benefits." In
both cases, the Court summarized, the Union was
trying to organize all of the employees throughout
each operation, and in both cases, the Court
concluded, the partial closing was intended to
discourage unionism in the overall enterprise. The
existence of this purpose was perhaps clear in the
Savoy case, where there were no separate
departments, and the discharge of a group of
employees, performing the same work as the
retained employees, all of whom the Union was
seeking to represent, was "obviously to discourage
unionization in the entire plant." In Missouri
Transit, however, there were separate departments -
a shuttle bus service and a long-line service. The
Employer closed down only the shuttle service. In
analyzing the facts of this case, the Supreme Court
concluded, "Although the two services were treated
as separate departments, it is clear from the facts of
the case that the union was attempting to organize
all of the drivers, and the discriminatory motive of
the employer was to discourage unionization in the
interstate service as well as the shuttle service." As
we read the facts of the Missouri Transit case, there
is no more specific evidence of an employer purpose
to chill than the inference arising from his awareness
that the union was attempting, as the Supreme Court
reads the case, to organize the entire employee
complement. If employer knowledge of actual union
activity aimed at other employees can provide a
legitimate foundation for inferring an intention to
chill those employees, it would seem that the
inference would be no less warranted where the
evidence establishes a strong employer belief that
the union is intending imminently to organize the
employees in his other operations. Since our central
concern is with the employer's motive, the fact of
impending organization is not significant; his belief
in the existence of that fact is what matters. And, as
we have seen, in this case, both before and after the
election, Roger Milliken had no reservations about
his expectation of what was coming: "The unions are
going to be making a tremendous drive all through
this area . . . ." Again, in future cases, distinctions in
the timing of the Union's campaign; in the strength
of the Employer's fear of, and his anticipation of,
that campaign; in the number of plants and their
proximity; and related factors, might well be the
kinds of distinctions that lead to a difference in
result. But we see no really substantial distinction
between the significant factors in this case and those
the Supreme Court considered to be of importance
in Missouri Transit.
We make our finding of purpose here with full
awareness of, and complete respect for, the Court's
caveat that "[i]t does not suffice to establish the
unfair labor practice charged here to argue that the
Darlington closing necessarily had an adverse
impact upon unionization in other plants." 380 U.S.
at 276. Our inquiry into purpose has extended far
beyond the lone fact that an adverse impact
elsewhere was foreseeable. As directed, we have
examined the record to determine whether or not it
fairly supports the conclusion that, by closing
Darlington, Milliken intended to bring about that
impact. In pursuance of the delicate duty of
discriminating between, or "sifting,"20 separate
antiunion motives, we have attempted to ascertain,
as precisely as possible, the motivation of Roger
Milliken, as revealed by his conduct preceding the
election at Darlington, the manner and the
circumstances of his behavior in making and
implementing the decision to close, the significant
use to which he later put the closing, and the
inferences derivable therefrom. This, we believe, is
far removed from simply equating foreseeable
consequences with prior motivation. As earlier
discussed, any number of varying circumstances in
other situations might well be persuasive that, while
the foreseeability of adverse effect elsewhere was as
much present as here, the proscribed intention to
chill was not. In the instant case, the evidence
relevant to the motives of this Employer leads us to
conclude that among his purposes in closing
Darlington was that of discouraging unionism in
other plants.
The third matter to be considered under the
remand relates to the chilling "effect" of the partial
closing. The Court describes this element in various
ways:
[I] f the employer may reasonably have foreseen
that [the closing motivated by a purpose to
chill] would likely have that effect. 380 U.S. at
275. [Emphasis supplied.]
If the persons exercising control ... occupy a
relationship to the other business which makes it
realistically foreseeable that its employees will
fear that such business will also be closed down
19 We note here the separate contention by Respondents that
the closing is only an unfair labor practice if the intention to chill
was the "primary" or "predominant " motive Brief for
Respondent Darlington , pp A-7-10 The Court' s acceptance of
Savoy and Missouri Transit , which found unfair practices on the
basis of motivations "at least in part" directed toward securing
future benefits , seems clearly to refute this contention, as do
other specific portions of the Court' s opinion "if motivated by a
purpose," 380 U S at 275 , "If the persons exercising control over
a plant that is being closed for antiunion reasons . act to close
their plant with the purpose of [chilling ]," 380 U S at 275, and, as
well, the whole context of the decision . (Emphasis supplied )
20 Getman , Section 8(aX3) of the NLRA and the Effort to
Insulate Employee Free Choice, 32 U Chi. L Rev. 735, 756.
DARLINGTON MFG. CO 1085
if they persist in organizational activities ....
380 U.S. at 275-276. [ Emphasis supplied.]
Thus, the Board 's findings as to the purpose
and foreseeable effect of the Darlington closing
pertained only to its impact on the Darlington
employees . 380 U.S. at 276. [Initial emphasis
supplied.]
It might be forcefully argued , although it has not
been , that , in another portion of its opinion, the
Court has already settled the question of "effect,"
leaving only the formality of a finding to be made by
this Board . 21 The third element of the detailed
statement by the Court of the constituents of an
unfair labor practice in this case reads (as just noted
but with different emphasis):
If the persons exercising control over a plant
that is being closed for antiunion reasons ...
(3) occupy a relationship to the other business
which makes it realistically foreseeable that its
employees will fear that such business will also
be closed down if they persist in organizational
activities.... 380 U.S. at 275-276. [ Emphasis
supplied.]
The element of "effect" is thus defined by
reference to the nature of the relationship of the
persons exercising control over the closed business
to the remainder of the business-i.e., is that
relationship one "which makes it realistically
foreseeable" that the other employees will fear
closing. The Court then goes on to say that the
Board 's "single employer " finding "necessarily
embraced" findings as to the Millikens which
"would satisfy the elements of `interest' and
`relationship ' with respect to other parts of the
Deering Milliken enterprise...." 380 U.S. at 276. If
our prior single employer finding necessarily
embraced a finding of "relationship ," and if, as we
have discussed , a finding of the requisite
"relationship" necessarily entails a finding of
"effect," then it would seem that our inquiry as to
effect is at an end. If we ask the question, what sort
of "relationship" is it that we have necessarily
found, the answer would seemingly have to be, by
the Court's definition of terms, a "relationship to the
other business which makes it realistically
foreseeable that its employees will fear that such
business will also be closed down if they persist in
organizational activities."
We are mindful, however, that, after its
consideration of what our single employer finding
embraces, the Court then states "... [all of] the
Board findings fall short of establishing the factors
of `purpose' and `effect' which are vital requisites of
the general principles that govern a case of this
kind." In view of this language, we have undertaken
an independent appraisal of the evidence.22 Our
study leads us to believe that a relationship of the
sort outlined by the Court certainly existed, and that
it was realistically foreseeable that (1) the news of
the Darlington closing would be communicated to
other Deering Milliken employees, (2) these other
employees would be aware of the connection
between Darlington and their mills, and (3) the
circumstances of the closing would cause these
employees to fear a similar consequence from any
union activity in which they might engage.23
As to (1), we need not go much further than the
Deering Milliken-controlled Hartsville mill, located
some 14 miles from Darlington, and employing, in
1956, about 490 employees. There can be no
question that the Hartsville employees would,
foreseeably, be apprised of every detail of the events
occurring at their sister mill. The Hartsville and
Darlington mills were located in the same county,
and the same local newspapers, which could be
expected to, and did, give heavy coverage to the
closing of Darlington, served both Darlington and
Hartsville homes. That the message of the
Darlington closing was conveyed to the employees at
Hartsville and at other Deering Milliken mills, and,
as could be anticipated, loomed prominently in their
21 The parties offer differing constructions of what the Court
means by "effect ," General Counsel argues that , once a chilling
purpose is found, the answer to the question of whether the
employer "may reasonably have foreseen that [the closing] would
likely have" a chilling effect "flows almost by necessity" from the
affirmative answer to the first question Brief for General
Counsel, p 112 . In other words , it would be only reasonable to
concur in an employer 's judgment that his action, intended to be
chilling, would have the desired result The Trial Examiner
apparently would have rested on the tendency of the closing
adversely to affect employees elsewhere, but, having received
some evidence bearing on the actual effect on other employees,
he felt that any inference he might otherwise have drawn was
dispelled by the unpersuasive character of the evidence adduced
TXD, section VI The Respondents contend that there must be a
showing of "actual effect" upon the employees Answering brief
for Respondent Deering Milliken , pp 23-24
22 To conclude that the Court has already decided the question
of "effect" by finding "relationship" would not simply be a
performance of verbal gymnastics The Court might well have felt
that the considerable evidence , then before it, showing the close
affiliation of the 27 mills, was a sufficient basis for inferring that a
chilling effect would be foreseeable to those exercising control
over Darlington The dissenting court of appeals judges
apparently would have been willing to draw such an inference
from the same evidence , although they did not discuss
foreseeability they found that the closing " was intended to
be, and was , a grim deterrent . " N L R B v . Deering Milliken
and Company, Inc, 325 F 2d 682, 691 (C A 4) (dissenting
opinion)
23 Respondents argued to the Trial Examiner that it is not
enough to establish that the remaining employees were likely
deterred from future collective activity They would read into the
Court's working " employees will fear that such business will
also be closed down if they persist in organizational activities "
(emphasis supplied ) a requ{rement that such employees must
have been actually involved in union activity at the time
Darlington was closed We do not think that the Court would
intentionally indulge in such a fine distinction without making the
reason for it very clear Surely a purpose to thwart impending
organizational activity promises to reap as much benefit as that
intended to frustrate a current organizing effort
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minds, is supported by the record. Employee
Howard of Hartsville, for example, heard
conversations among employees "concerning the
Darlington closedown" during each year of the
period from 1957 to 1961.24 It was said in these
conversations that if the Hartsville employees ".. .
were organized that the mill would shut down."
Dizbon, formerly an employee at the Drayton mill in
Spartanburg, South Carolina, heard about the
closing when it happened, and heard other
employees discussing it. Hogan, a former shift
overseer at one of the Pacolet mills, in Pacolet,
South Carolina, heard his neighbors discussing the
subject of Darlington, saying that "Mr. Milliken
would not operate a plant under a union ." Employee
Deaton, of the New Holland, Georgia, mill, said that
when Darlington closed ". . . nearly everybody it
seems like was talking about it."
The record shows that conversations about
Darlington between employees, and between
employees and supervisors, were commonplace at
other mills, and this might well be expected. It was
foreseeable because, it is clear, Deering Milliken
employees knew that they were Deering Milliken
employees, whether their mill be named Monarch or
Pacolet or Gainesville. Employee Henderson of the
Drayton mill heard other employees discussing
Darlington in 1957 and 1958 "and every time that
something would come out in the paper about
Darlington"; the employees prophesied that, if they
organized, "Deering Milliken" would close Drayton
down. Mrs. Lee, a Drayton employee, heard similar
conversations about what "Deering Milliken" would
do in such circumstances. Mr. Hembree, employed
by the Judson mill, in Greenville, South Carolina,
testified that the Darlington closing was talked about
"generally" by the employees, "inside and outside"
the mill; the employees said that "the Company, the
Deering Milliken Company, closed the Darlington
plant and they would not hesitate to close Judson
Mill if it was organized." In fact, according to
Hembree, conversation among employees about
Darlington "still goes on." Kirby, an employee of the
Gainesville, Georgia, mill, was told by Overseer
Allen that if the Union came in at Gainesville, "Mr.
Milliken" would shut the plant down. The name
"Milliken" was a familiar word on the lips of the
employees who testified, and we think it
inconceivable that employees in the State of South
Carolina, where 20 Deering Milliken mills were
located in 1956, would not have made the association
between the "Deering Milliken" which terminated
Darlington and the "Deering Milliken" which
controlled their jobs and futures. We also believe
that this likelihood would have been apparent to
Roger Milliken. In 1955, to foster the sense of
24 The Trial Examiner had ruled early in the recent hearing that
he would not accept evidence of events at other mills occurring
subsequent to 1961 , 1 e , more than 5 years after the closing of
togetherness among Milliken employees, Deering
Milliken & Co., Inc., urged the Darlington mill, and,
presumably, the other mills, to distribute among
their employees a booklet entitled "Fabric Magic by
Milliken," which emphasizes the monolithic nature
of the Milliken chain and is replete with references
to "Milliken."
The volume of publicity attendant upon the
closing was substantial. Many newspapers gave the
story close and continuing coverage. Employees also
testified to hearing news reports about Darlington
over radio and television. We do not share Mr.
Milliken's "surprise" at the publicity engendered by
the closing. It may be true that there had been a
continuous liquidation of textile mills throughout the
region in the preceding several years, which had
received relatively little publicity, and that
Milliken's own experience with liquidations had
been similar . Expectably, a recommendation to close
a Southern textile mill, made 6 days after the Union
won an election there, would have an obvious
newsworthiness that would distinguish it from past
closings.
Finally, a word is in order about the actual effect
of the closing on Deering Milliken employees. Very
little effort was made at the hearing to elicit
testimony about the subjective reactions of
employees to the news of the Darlington shutdown.
The Trial Examiner appeared to feel that the
evidence as to effect on employees was deficient
because there was no proof that a substantial
number of them were, in fact, chilled, and also
seemed to regard it as an impossible task to assess
the degree of chilling caused by the closing. TXD,
section VI. As an original matter, the evidence
demonstrating that employees frequently discussed
the closing, in terms of what it would imply about
their own plant if they should organize, would itself
seem logically to give rise to an inference that they
were adversely affected by it.
But we assume that the Court intends us to apply
the usual standards of whether the closing had a
natural "tendency to discourage" union adherence
in other plants.25 There is no indication that the
Court is requiring a measurement of the quantitative
increment of fear created by the Darlington closing,
either by itself or as opposed to other mill closings.
And we think that little special expertise is needed
to evaluate the probable effect of a mill closing,
immediately after a union victory, upon those of the
mill owner's other employees who hear about it, a
substantial number of whom worked only 14 miles
away and witnessed, at close hand, the whole
process of destruction. We draw upon the record
and some of the more undisputed characteristics of
human nature to conclude (1) that Roger Milliken
Darlington
" Radio Officers' Union v. N L R.B , 347 U.S 17, 50-51
DARLINGTON MFG. CO.
could have realistically foreseen that the closing of
Darlington, and the sequential relationship of the
Union's election to that closing, would be
communicated to many of Deering Milliken's
employees, who would transmit the news to fellow
employees; (2) Roger Milliken could have
realistically foreseen that a large number of these
employees would be cognizant of the fact that they
and the ex-Darlington employees shared a common
employer, and that this relationship would similarly
become known by word of mouth to any employees
who had not previously been aware of it; and (3) the
closing of Darlington, in the context of a victory by
the Union, likely would have, and did have, the
effect of discouraging unionism in Deering
Milliken's other plants, as was foreseeable.
We have determined then, by application of the
terms of the remand setting out the vital requisites of
an unfair labor practice in a case of this kind, that
such an unfair labor practice was committed. We
note the argument that our decision might possibly
have been simplified by finding a "future benefit"
other than the chilling of unionism, on the theory
that, by liquidating Darlington and investing the
retrieved capital elsewhere in a functioning textile
enterprise,26 the Millikens achieved a substantial
"future benefit" at the expense of unionism while
continuing to operate and utilize the Darlington
capital within the framework of an employer-
employee relationship. We think it too clear to merit
discussion that the Court had foreclosed an
approach of this sort in this case; it has directed its
attention, and ours, explicitly and only to the
question of whether there was a purpose of
discouraging unionism at other mills.
We find, in conclusion, that such a chilling
purpose, at least in part, lay behind the decision to
close the Darlington mill; those exercising control
over Darlington, especially in the person of Roger
Milliken, had other business interests of sufficient
substantiality to give promise of their reaping
benefits from the discouragement of unionization in
those businesses ; the relationship of the persons
closing Darlington to the other businesses was such
as to make it realistically foreseeable that employees
of the latter would fear that their mills also would be
closed if they engaged in organizational activity; the
persons exercising control over Darlington did in
fact foresee and intend this effect; and a number of
these employees were, in all likelihood, so affected.
26 Roger Milliken testified that the Deering Milliken and
Cotwool corporations had standing requests from "other
manufacturing operations " for capital to invest in new machinery
that would earn a higher rate on investment than Darlington had
been returning , and that the liquidated capital from Darlington
could be used for this purpose . The argument rejected here would
consider such employment of capital to be analogous to the
technique followed by a "runaway shop "
1087
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
BUCHANAN, Trial Examiner: This Decision follows the
fifth hearing in this proceeding. But it must be pointed out
that the proceeding is quite different from what it was at
the first hearing: the issues have several times been
changed. Very real and well-defined issues concerning
violation and remedy were explored in the first hearing
and report. A new issue not theretofore alleged was then
added and considered at the second hearing. Whatever the
significance of the case as precedent now that it has been
returned successively from the highest to the lowest level
for exploration on a new and different basis, this latest
step underscores the futility of much of the proceedings.
Indeed these proceedings, unquestionably monumental,
may become a monument to monumental futility.
If in the administrative and judicial field we are doers
attempting to meet problems in the practical world of
action and event, it may nevertheless be in order to pause
to reflect. (This does not require nor has it caused undue
delay. Yet what is said here has long been weighed. I go
not forth hastily to strive.) What is the scope of this case?
What are the issues in this case ? Lawyers need not be told
where the issues are framed and where they are to be
found.
Our problems at the first hearing were whether
Darlington had violated the Act and, if so, what remedy
could be directed. Faced with findings and conclusions
that the Act had been violated but without available
remedy, the Board (a minority urging that the Board rule
in the first instance that the closing violated the Act)
remanded the case for hearing on the question of single
employer status involving Darlington and others; this
despite the fact that the General Counsel had refused to
name other corporations as parties, and the further fact
established by statute and the cases that issuance and
scope of a complaint is the prerogative of the General
Counsel. After that remand order the General Counsel did
issue a complaint naming as Respondents Deering
Milliken & Co., Inc., one of the present Respondents and
predecessor of Deering Milliken, Inc., the other present
Respondent, and Roger Milliken.
Despite my distinction between control and cooperation,
based on the evidence before me; despite the analogous
situations which I cited as indicating Board recognition of
such distinction elsewhere and in other cases, and the
importance and validity of such recognition by the Board;
and despite the fact that refutation of such distinction and
citation of analogies has not been attempted, I am
constrained by the Board's Decision of October 18, 1962,'
to recognize the finding that single employer relationship
has been established. This relationship has not yet been
found by the courts, and the Supreme Court has declared
an alternative basis for imposing liability and
responsibility for remedy. With the issue of single
employer status thus left open at the court level, the case
has been remanded, as we shall see.
The third hearing, a very brief one, centered on the
claim that Roger Milliken was personally liable as a
Respondent. With the passage of time, the fourth hearing,
on February 5, 1962, was a sequel to the second, based on
newly developed facts.
In its decision in 1962, the Board found that Darlington
' 139 NLRB 241
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had violated Section 8(a)(1), (3), and (5) of the Act by
interfering with employees' protected concerted activities,
discriminating against them because of such activities,
and refusing to bargain with the Union as their collective-
bargaining representative. Unlike the Trial Examiner, the
Board also held that Darlington occupied a single
employer status with Deering Milliken and its affiliated
corporations.
On November 15, 1963, the Court of Appeals for the
Fourth Circuit,2 sitting en banc, decided by 3 to 2 that
there had been no violation since Darlington had closed its
plant completely and gone out of business, the majority
declaring that there could, therefore, be no liability even if
Darlington was a division of Deering Milliken and the
single employer principle applied.
Pointing out that the Board and the circuit court had not
considered the aspect of an intention to chill unionism
elsewhere, and a chilling effect, the Supreme Court'
directed that this be considered together with the question
of single employer relationship and, if there be no such
relationship, the possibility of certain substantial interests
in other businesses to which such chilling purpose and
effect might be related; again despite the fact that the
General Counsel had not claimed or alleged this.4 This
protean element was now injected despite the beliefs of
the General Counsel, the Charging Union, the Trial
Examiner, the Board, and the court of appeals (all
differing, to be sure) that the issues raised by the pleadings
and the evidence received were sufficient and properly
called for a decision based on the issues which had long
before been settled.
While administrative decisions with respect to scope
and prosecution are not a game of wits, the General
Counsel's sole authority to make such decisions is
statutory and has long been recognized. Parties and
counsel must know what the charges are, what the issues
are, what they need to prove or meet, and what they may
rely on as legal precedent bearing on the issues raised.
With due allowance for growth and changing conditions,
there is no more room in the law for a reliability gap than
there is elsewhere for a credibility gap. Whatever the
reason at each step for delay and injection of new
questions, Darlington may yet become an eponym for
divagation and delay.
The Supreme Court has called for review of the Board's
finding of single employer, but held with the court of
appeals majority that it is not a violation for an
independent employer to go out of business completely;
yet that Darlington may or may not have violated (the
Court denies that the same conclusion "necessarily"
follows) if it were an integral part of a larger enterprise or,
as defined, if substantial business interests coincide.
The Court has distinguished the closing of an entire
2 325 F 2d 682.
380 U.S. 263
Such recent opening up of new matter is the raison d'etre for
this reflection. How to present these thoughts except here? Even
if we are always to proceed through channels , there is no other
proper channel at this point My decision does not issue with a
view to the approval with which it may meet, although I would not
offend higher authority . Satisfaction lies in accomplishment, not in
applause, and although not "balled for," these words, I trust, will
prove helpful . It is logically , if remotely , possible that the
Supreme Court may modify its holding because of the problems
which are here indicated But that will not be done on my mere
suggestion that there are problems and without delineation of
them
business from a situation akin to a partial closing, which
occurs in a plant that is part of a larger single enterprise or
of a single employer.5 It has also held that, whether this be
a single employer situation or one where those who control
the closed plant have substantial business interests
elsewhere, inquiry must be made into chilling purpose and
effect with respect to employees of other businesses.6
Although the Court declares an "analogy to those cases
involving a continuous enterprise," the interference or
discrimination in those other cases is measured with
respect to the employees of the business which committed
the violation. The analogy with respect to violation breaks
down when attention is directed to purpose and effect, or
measurements, with respect to employees elsewhere.
Except in an alter ego situation, these latter are not
employees of a present respondent.
Insofar as the employers are involved, we have departed
from the question of relationship between different
corporations (e.g., whether they be single employer, alter
ego, etc.) and from the element of control of operations, of
labor policy specifically, to consideration of ownership or
financial control by certain individuals. This differs from
the principle, which was the reason for our earlier inquiry
into single employer status, that partial closing of a
business is violative.
The Board's finding of discriminatory antiunion motive
has not been disturbed. (Assumed by the court of appeals
arguendo, this might itself be the subject of a remand
unless it be deemed well established, as it appeared to be
at my level.) That issue of motive as earlier tried in this
case followed well-establi shed precedent and procedure,
and without objection was limited to the motive vis-a-vis
Darlington's employees, there being no reference to or
apparent thought of employees elsewhere. After inquiry
into Darlington's motive, the shutdown was found to be
violative and discriminatory, if not "inherently
discriminatory."7
If the act of closing was not inherently discriminatory,
any ambiguity in that respect was explored in detail in the
Trial Examiner's report of April 1957. As therein stated,
full consideration was given to economic reasons for a
shutdown; but on the basis of all of the evidence received,
including that of the employer's motive, the finding was
made that the closing was discriminatory. The shutdown
and its motivation were found to be discriminatory within
the meaning of the Act; discriminatory against
Darlington's employees, and aside from any purpose to
chill or chilling effect on employees elsewhere. The motive
found at Darlington, we did not have an "ambiguous act of
closing a plant following the election of a union." Further,
while that finding might be overturned, there was no issue
and no consequent problems which faced us concerning
5 Because I am not certain that I correctly understand the
Supreme Court's references to "partial closing," I now state, for
correction if I have misunderstood , that akin to a partial closing is
a complete shutdown of a single business where there exists
together with chilling purpose and effect, either a single employer
relationship with another business or, among those who exercise
control, an interest in another business "of sufficient
substantiality" as described
6 Where reference is herein made to those who controlled
Darlington, and their chilling purpose and effect, the application
is intended also to the overall entity if single employer be
ultimately found.
Fn 10 of the Supreme Court's opinion.
DARLINGTON MFG. CO.
motive, or effect, with respect to other businesses or their
employees.
The Supreme Court, citing the Erie Resistor case,8
reminds us that this is not a situation where, without more,
an employer "must be held to have intended the very
consequences which foreseeably and inescapably flow
from his actions. . . ." That thought was anticipated
throughout the prior proceedings here in view of the
defense of economic justification for the shutdown. We did
inquire into motive, at and with respect to Darlington.
Whatever the significance of motive directed elsewhere, in
a proper proceeding, it was not before us earlier, as the
Supreme Court has pointed out.
There appears to be no question concerning the data
heretofore submitted with respect to officers and directors
and ownership of stock in the various corporations as
indicating the substantial interest which the Court
described.9 Whether on the basis of the single employer
status which the Board found or because it has recognized
the necessary substantial interest, or both, the remand
from the Board is solely for findings on the issue of chilling
purpose and effect of the Darlington shutdown vis-a-vis
employees of other businesses.
The test laid down by the Court brings within our
purview plants anywhere and in any business, substantial
interest in which is held by those in control of Darlington
and Deering Milliken. Thus inquiry into the motive and the
effect of Darlington's closing might extend far beyond
other Deering Milliken mills. We shall note, infra, the
possible effect at Deering Milliken mills of events at
distant businesses almost without limit, and conversely
the effect of events at Darlington on businesses not
otherwise connected with either Darlington or Deering
Milliken.
Yet through all of this, we must bear in mind that other
employers are not respondents here; and that, to this point
at least, there is no question of any remedy on behalf of
employees at other plants. As pointed out, because of the
problems which have for so many years clamored for
decision, my concern has been with the issues of violation
at Darlington and remedy for its employees. We have
proceeded under the remand to collect facts, to the extent
that they have been submitted, from among which can be
selected those which are determinative under the law
including the remand.
Whatever may be said concerning escalation elsewhere,
escalation to a decision here is a consummation devoutly
to be desired. But whether upward or downward, we must
now proceed further if we would but attain the decisional
stage apparently reached years ago. True, although the
right to go out of business (bearing on remedy) was early
recognized, there did not at first appear to be distinction
between partial and complete shutdown insofar as
violation is concerned; but it has been made and now is
very clear as the basis for any finding herein. We shall
attend to such distinction, as the Supreme Court requires,
with some comment and questions.
We have had 9 years of testimony, debate, analysis, and
review; 9 years of concern over how to arrive at a decision,
but as yet no decision. Were our concern with present
8 N L R B. v Erie Resistor Corp , et al , 373 U S 221, 228
1 The General Counsel did not at the hearing rely solely on the
element of financial control By questions of other directors and
stockholders, he attempted to show that their decisions and acts
were dominated and controlled by Roger Milliken But the
responses indicated no more than that these others were
1089
conditions , events in 1956 would be deemed stale.10 But
the old conditions are here directly involved . It is only our
inquiry which is stale . If hope be the nurse of young desire,
frustration is its companion in old age. Though efforts have
been earnest and prolonged , results have been far less
than had been hoped for. We would be neglectful in
attitude if not derelict in duty were we not concerned with
speed and judicial validity. Unless by definition, indication
of problems and raising of questions be deemed
disparagement , this is not captious ; nor is it intended to
be. Although it is neither my function nor my desire to be
critical , I realize that the result may be the same. But
problems must be faced and questions need to be
considered.
As if the questions originally raised were not problem
enough , new issues have been injected . Surely whatever
novel elements were presented did not warrant the
involvements which have developed and which no one
would have predicted . Unless there be clear and very
different thinking' t with a willingness to put aside some of
the concepts which have crept in, it is quite unlikely that
there will be a decision consistent with principles well
established and recognized through the years.
It will be remembered that , whatever the relation
between Deering Milliken and Darlington, the other mills
or corporations were not deemed before us: admittedly,
proof was not offered or received on the question of single
employer or "empire" status between Deering Milliken on
one hand and the mills other than Darlington on the other.
The second hearing was left open to enable the General
Counsel to prove the latter status and relationship, but
finally closed without such proof . The Supreme Court's
alternative of substantial interest in other businesses is not
thus limited to Darlington and Deering Milliken , whatever
the breadth of any review as directed of the Board's
finding of single employer.
A hearing pursuant to the remand was held before me in
Washington , D.C., Charlotte, North Carolina , Greenville,
South Carolina, and Atlanta, Georgia , on 19 hearing days
in each of the 5 months of November 1965 to March 1966,
as counsel prepared and agreed to proceed. Briefs have
since been filed by the General Counsel and each of the
Respondents.
A prehearing conference was called to outline and
arrange for the procedure to be followed . This conference
in fact advanced the date for the hearing previously
scheduled , and was the beginning of the hearing on
remand . Five motions and petitions by the Respondents
were first heard and decided; the Respondents ' request to
the Board for permission to appeal the Trial Examiner's
decisions was denied on November 29.
To get the full flavor of the dish prepared at this hearing,
the entire record must be examined with its proof,
attempts to prove, the arguments, and the inferences
claimed . But analysis and explanation for a decision
should necessarily omit reference to items which , even if
they cause the eyes of partisans to light up, are low in
voltage.
I recognize the possibility which may be expressed as
follows, or more elegantly: "We know that Roger Milliken
persuaded or outvoted
10 Cf. DeGregory v Attorney General of New Hampshire, 383
U S 825.
" I do not here so much suggest that propositions heretofore
rejected be established as that consideration be given without
obnebulation to principles already recognized and declared.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is the top man in all of these corporations. He's opposed to
unions. We know that he would do everything possible to
discourage and avoid unionization at Darlington and all of
the other mills !" The General Counsel does in fact so
argue as he points to liquidation of several mills, Roger
Milliken's opposition to unionization, and the latter's
emphasis on good public relations to "bring about
understanding in the community" as proof of a "purpose
of chilling."
As trier of the facts, I reject this easy assumption even if
it be called an inference, which could have been drawn
without this hearing. One or a dozen plants could be shut
down because of opposition, by the same controlling
interests in each case, to unionization. But neither one nor
a dozen such shutdowns prove an intent with respect to
other plants. Intent limited in each case to the plant closed
is as compatible with the employer's action in closing as is
an intent to chill at other plants; or the Supreme Court and
the Board would not have remanded on that point. We
must seek evidence rather than rest on an inference
concerning the latter possibility. (Were we on the other
hand to hold violative the closing of a plant because of the
employer's opposition to unionization, we would not
concern ourselves with chilling purpose and effect
elsewhere.)
The Supreme Court has remanded for a finding. It has
called for court of appeals review of the Board's finding of
single employer, or for a finding of the substantiality of
interlocking business interests. Yet the Supreme Court
has not itself drawn an inference or indulged in
assumption of intent. Nor has the Board relied on its
authority and recognized expertise to make expert
inferences:12 relying on the General Counsel's bill of
particulars on the issues of purpose and effect, it directed
a further hearing for the purpose of receiving additional
evidence.13
If there be any temptation to assume chilling purpose or
effect because of Roger Milliken's and Deering Milliken's
relations with the various mills, we need not at this point
meet any charge that it would be naive to think otherwise.
The remand has been to take proof and, to the extent that
findings and conclusions are made they will be based on
such proof, not on any assumption, however sophisticated
it may be or appear to be.
Following the usual procedure, I have come to certain
factual and legal conclusions after consideration of all of
the testimony, the witnesses as they testified, and the
arguments submitted. Now follows the need to state those
conclusions with the reasons14 for them, this Decision thus
becoming, in effect, an explanation, and therefore, an
argument in support of the findings and conclusions. At
the same time it is necessary to cover the positions of
respective counsel on significant issues, still explaining
agreement and disagreement. All of this must be done in
the instant case in the light of novel principles and unusual
procedure which affected the substantive and procedural
aspects of the hearing and the efforts of counsel, and are
reflected in this Decision.
1. SOME QUESTIONS TO BE ANSWERED
With this brief history of the proceedings to date and
introduction to the problems1a before us, we come to
certain questions which clamor for answer. I have
experienced little difficulty, after considering the
testimony before us, in deciding the specific issues
presented by the remand. The problem has been to
present for further consideration items which had not
previously been heard, such as substantial interest in
other businesses, and chilling purpose and effect; or which
had previously been given little emphasis by the Trial
Examiner or at the hearings before him, such as whether a
shutdown is lawful if complete. Mine is no dilettante
interest. Whatever the problems faced in Iday-to-day
involvement in such issues, and aside from any desire for a
consistent and rational whole, basic principles must
necessarily be declared and recognized as a guide
whatever the ad hoc circumstances of any case.
Whether or not, according to concensus, the Decision in
this case will reflect more than passing interest. Needless
to say, I cannot and do not intend to quarrel with the
Supreme Court nor to question either its authority or the
finality of its decisions. Having accepted the rulings in the
case to date although they do not decide all of the points
raised, I have followed the terms of the remand. But
questions need to be asked16 for clarification of one's
understanding of the Court's opinion and to reconcile with
that opinion, or to recognize as overruled, principles
heretofore established. This is especially important for
triers of the facts, who must recognize and determine the
proper scope of the trial of issues.
If my queries will not solve any problems, the problems
still call for solution. Understanding is certainly necessary
where the Court has followed established legal principles.
If there has been departure from such principles for
sociological or any other reasons, this too must be
recognized for future guidance at least.
Questions arise with respect to the issues on which the
Supreme Court has remanded. Without having so stated,
the Court now completely ignores the corporate veil" if
substantial economic interest and the "vital requisites" of
purpose and effect be shown. There has not heretofore
been nor is there now any procedural problem in finding
violative the acts of a third person (not the employing
entity) which tend to discourage unionization of
employees. Such a finding would follow a charge,
investigation, and formal complaint which in the instant
situation would be against Darlington and Deering
Milliken because of alleged acts vis-a-vis employees of
other mills. But as we shall further note, no such issues
were raised or tried in the prior hearings in this case. And
were there such issues, any remedy would have run in
favor of such other employees.
If the idea now, as distinguished from the issues
heretofore framed and tried, be to prove an unlawful plan
with respect to employees elsewhere by those who
exercised control over Darlington and for which Darlington
11 The Board "may infer within the limits of the inquiry from
the proven facts such conclusions as reasonably may be based
upon the facts proven." Republic Aviation Corporation v
N L R.B., 324 U.S. 793, 800
iS The Board was undoubtedly and understandably impressed
by the long list of articles cited to it in the bill of particulars, which
would be impressive indeed had the articles been planned and
sponsored by those who exercised control over Darlington
14 Section 8(b), Administrative Procedure Act, 60 Stat 242.
15 As part of the judicial process, we follow decisions of the
courts and the Board , with due deference noting questions
already covered; administrative, we note problems to be faced
16 As in a free society generally , one who participates in these
cases will be at least occasionally provocative . Gal. 4.16, Luke
7.24(b)
11 Attention has been directed to "the persons exercising
control."
DARLINGTON MFG. CO. 1091
and Deering Milliken are responsible , our procedure has
become hopelessly involved . Nor is it clear that liability to
those in favor of whom responsibility would normally run
(employees at other plants ) can be transferred in favor of
Darlington 's employees , on whose behalf alone ( with the
Charging Union ), the action was brought. If "an unfair
labor practice has been made out" (other than that which
has on the lowest decisional levels been found ), by whom
has it been committed , and against whom ? This case
illustrates the weakness of attempting by procedural turns
to inject claims which were not earlier considered and
certainly not earlier alleged.
It may be asked : Is there no limit to the area, extent, or
nature of our inquiry ? Is that which would have been
deemed collateral and which the parties themselves did
not regard as even remotely relevant now to be deemed of
primary interest ? Here we have proceeded on the basis of
an affirmative reply.
As noted infra, I did impose a time limit of 5 years
although I would not maintain that evidence of chilling
purpose and effect could not extend beyond it.18 Aside
from logically limitless effect (a concept which injects
other and distant causes and the need to separate and
evaluate), what if Roger Milliken had in 1965, by an
admission or otherwise , unequivocally indicated a chilling
purpose in 1956 ? (I would modify my ruling in such an
event .) I do not here suggest that my ruling for a 5-year
period was not reasonable ; I do suggest the limitless
magnitude of the problem posed in this case and in the
future when , with knowledge of this new interest in
purpose and effect elsewhere , the parties may both
dissemble and prepare to extend their proof (as they could
not have been expected to prepare in this case ). While we
must not let our judgment be affected by the present
possibility, the results here may well emerge as they do,
not because of the events in 1956 and shortly thereafter,
but because the parties ' recent efforts to obtain proof were
made many years after the events in issue.
We have had no allegations of violation with respect to
employees of other mills.19 If violation be found , we would
have no remedy on behalf of those other employees. Any
remedy for violation found with respect to employees at
other mills would not inure to the advantage of
Darlington 's employees . A remedy provision does not stem
from benefit derived by an employer; nor would it be
measured by such benefit if the latter could itself be
measured.
Early in my first report in this case I noted possible
limitation of remedy "since we have no evidence of other
mills in privity with" Darlington. It was there also pointed
out that the exclusion by the General Counsel of the issue
of privity did not prevent findings of violation. With the
subsequent injection of that issue, we could now further
explore possible remedies, that being the reason for the
second hearing, in 1958, and the basis for concern in the
report thereon. But privity among various mills and
corporations, however it might affect the remedy, was not
deemed to bear on the issue of violation by the
Respondents in their obligations toward the employees of
Darlington, against whom alone violations are alleged to
have been committed.
Conceivably it might have been charged and alleged
that violations were committed against employees of other
mills: there was a purpose, there was an effect (or
tendency to affect), and they were chilled. But this was
neither alleged nor charged. We recall that, whatever the
extent of our inquiry originally and as first remanded, the
issues defined were violation at Darlington and remedy for
its employees. Charging the Board with "a fatal defeat" in
not transcending the issues before it, the Supreme Court
has injected new and different issues, reaching to
employees of other mills.20
The Supreme Court similarly indicates that the
questions raised by it were not quite reached even in the
court of appeals' dissenting consideration of single
employer and responsibility. Under the circumstances we
can withhold questions concerning the extent to which the
corporate veil is to be pierced and the Respondents held
liable for events at Darlington and all of the other mills
because of a common controlling financial interest in all of
the corporations. An interesting reflection on the issue of
control and single employer is found in the appeals court
minority declaration in support of its finding of single
employer, that Roger Milliken kept himself informed but
was not always followed !-"These and other suggestions
[by Roger Milliken] were not always followed, but they
unmistakably indicate that Roger Milliken kept himself
constantly informed as to what was occurring."
I realize that my own reflections on the questions
involved are virtually irrelevant: the Board and the courts,
in their superior wisdom and authority, may not design to
take notice of them; much less to reply to such
considerations as that to see no offense in a complete
cessation of21 business22 while finding partial cessation
18 Because judgment or discretion on review might differ from
mine, I encouraged (the parties have not at other times required
encouragement , nor have I at any other time offered it) the
General Counsel to take an interim appeal from my ruling He did
not, nor did counsel for Darlington who, without stating what he
thought would not be, objected that events in 1959 or thereafter
are "too remote."
1s If I repeat or pile on related arguments , it is because of the
difficulty of the burden, which I am assuming , of being ultimately
persuasive , the issues appearing to me to be of transcendent
importance.
20 It is true that the Board did not make findings of employer
motivation or effect with respect to employees at other plants
Such motivation was not considered by any of the parties, and
would not properly have been inquired into under the pleadings- it
was not in issue . Had testimony along these lines been offered to
me earlier , I should have been compelled by the law and the cases
to reject it rather than permit counsel to go beyond the issues as
defined . The motivation to discourage union activities was
litigated , and findings thereon made
21 As the Supreme Court has pointed out , the Board did not
argue this issue before it. But the point was in detail maintained
by the Board in its Decision . It is clear that the earlier findings of
motivation and violation vis-a-vis Darlington's employees do not
require findings of chilling purpose and effect at other
mills-except that under the Supreme Court's decision the latter
is now a condition or prerequisite for the former . The Board found
discriminatory motive in closing Darlington because of the
Union's election victory The Supreme Court has declared that
there is no violation under such circumstances where the
shutdown is complete , but it directed inquiry into the motive with
respect to businesses elsewhere where substantial financial
interest was held by those who controlled Darlington In short,
shutdown because of antiunion motivation at the closed plant is
not violative ; but shutdown with antiunion purpose directed
toward other plants is violative . I am unable to see any basis in the
Act, in logical judicial construction thereof, or in practical policy
(if that be a test) for rejecting as the basis for a finding an
employer 's immediate antiunion motivation while inquiring into
his motive to chill unionism elsewhere (To admit that the latter
bears on the question of completeness of the shutdown indicates
that the concern is with remedy while the issue being considered
is violation it does not explain disregard of motivation at the site
while motivation elsewhere is stressed.)
22 With the qualification that there may not be a chilling
purpose or effect as described , the Supreme Court has adopted
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violative defies my attempts to understand and provides
experientially a built-in form of discrimination and
interference with protected concerted activities, and that
what an employer may not lawfully warn against or
threaten he may lawfully do.23
These thoughts are nevertheless submitted out of a long
standing and intimate concern and familiarity with the
issues in the case and in the persistent hope that they may
intrude on the consciousness of higher and more potent
authority. Although one of first impression, this case is not
merely episodic; it may well constitute precedent for
claims of far-reaching purpose and effect in cases of a type
which have been fairly and adequately handled without
such involvement.
My concern as Trial Examiner is not and should not be
whether the outcome favors one side or another. Rather, to
the extent that I act as a judicial officer, I cannot ignore
established judicial and juridical principles wherever they
may lead. All of this might safely be pointed out from the
refuge or vantage point of a law review article. But my
connection with the case has been so close and of such
long standing as to indicate that these thoughts be
embodied here for possible consideration with the current
evidence and findings.
Precedent indicates that, where discharges are
prompted or triggered by union activity or would not have
been effected but for such activity, the liability and
remedy for such discharges increases with the number of
discharges. The sole forerunner of a declaration that,
when the number of discharges reaches the point of
completeness or full realization and all employees are thus
terminated, the increasing liability suddenly vanishes24 is
the declaration that an employer who has gone out of
business completely cannot be ordered to return to
business.
But the question of ordering a return or reopening of the
business is one of remedy. For evident practical reasons
and whatever substitute may be found, an employer
cannot be directed to reestablish his operations. But this
matter of remedy or outcome does not in the least impair a
finding that violation has been committed.25 The Board
recognized this when it devoted the greater part of its
decision to the problem of violation before it reached the
problem of single employer and remedy. Actually the
remedy in directing that discharged employees be given
backpay until they obtain substantially similar
employment may be more costly than would be a possible
continuation of the business since the economic loss, even
in a losing business, is usually less than the entire labor
cost.26
Thus the forerunner of the declaration that there is no
violation where there has been a complete going out of
business is but a declaration that an egg cannot be
unscrambled27 (not an apt analogy in all cases), not that
there has been no violation. As quoted in one of the
Board's dissenting opinions28 from the legislative history
of the law, "No one can keep an employer from closing
down his factory...." This is but a recognition of the law
since common law days, and of reality. But whatever the
lack or limitation of power to direct positive action by way
of remedy, the issues as framed by the pleadings need to
be decided and the questions of violation of the statute,
clearly set forth and fully litigated, need to be answered.
Let us now consider more directly a declaration that
there is no violation where violation has been carried out to
the limit. Without attempting to anticipate every form of
contrary argument, I shall endeavor to meet some which
may conceivably be persuasive. The importance of the
problems in this and other connections and the time spent
to date warrant such consideration even at the expense of
repetition. As the statute provides, violation of Section
8(a)(3) is found when employees are discharged because of
union activities. Within proper allegations, effect on other
employees, with which the Supreme Court has here
concerned itself as we shall further note, is properly
considered under Section 8(a)(1). This procedure can be
consistently followed whether there be a partial or
complete closing; and should be followed, it is submitted,
under the terms of the Act.
The Act forbids an employer to affect the employment
relationship by discrimination as described. It does not as
an exception permit such discrimination where it is
committed to the limit of destroying completely the hire
and tenure relationship. Discriminatory discharge of one
employee completely destroys the relationship as to him
and is recognized as violative. The basis is not clear (it is
certainly not in the Act) for a volte face declaration that the
same statute permits multiplication of the offense to the
point of totality. Thus Section 2(3) of the Act
unambiguously continues in employee status those
"whose work has ceased as a consequence29 of, or in
connection with, any current labor dispute or because of
any unfair labor practice...." This provision of the statute
is amended, deleted, and indeed reversed by the Supreme
Court's declaration, "The closing of an entire business,
even though discriminatory, ends the employer-employee
relationship Furthermore, having recognized a
closing as "discriminatory," how can we deny that it is
violative, whether there be a remedy or not ?30
As for the Supreme Court's call for "the clearest
Continued
the language which it quotes from the Eighth Circuit Court's
opinion in N.L.R.B v. New Madrid Manufacturing Company, etc,
215 F 2d 908, 914, that an employer may "permanently close and
go out of business . for whatever reason he may choose,
whether union animosity or anything else, and without his being
thereby left subject to a remedial liability . " (Intended or not,
the declaration of absence of remedy is understandable But the
Court's reference to the New Madrid decision is with respect to
whether such action is "prohibited" or violative) This is very
different from the Supreme Court 's statement in its American
Ship Building opinion concerning "employer actions taken to
serve legitimate business interests in some significant fashion
considered infra
23 Other general and troublesome points are noted infra as
various portions of the evidence are considered.
24 The problem here cannot be analogized with a vanishing
decoy
25 Not only is there a semantic and logical distinction between
violation and remedy , but that distinction indicates a different
procedure or effort in seeking a remedy
26 Cf American Manufacturing Company of Texas, 156 NLRB
1225. As explained infra, little more will be said herein on the
question of possible remedy since that problem was not reached
in any of the intervening decisions
24 The scrambler is not exculpated even if, as I have earlier
maintained , the predicament be hopeless
28 139 NLRB 241, 264
29 Section 2(3) Not only has "consequence " been found,
"connection" is not to be reasonably denied
30 Having declared that these are no longer employees of
Darlington, the Court does find , as we shall see, a legal
relationship which will sustain a finding of discrimination, among
employees of other businesses which are in no way connected
with that mill (as successor , alter ego , or in common operation and
control, for example ) except by a common ownership or voting
control . If complete shutdown be not violative , requiescat a males
without resurrection or reincarnation
DARLINGTON MFG. CO.
manifestation of legislative intent" with respect to a single
businessman's right to go out of business if he wants to,
the reply lies in the plain and unambiguous language of
Section 8(a)(3) of the Act. The statutory definition of
violation does not reflect a distinction between partial and
complete shutdown, whatever problems may ensue with
respect to remedy. To decry "too literal" an interpretation
here would be but to knock down a strawman of one's own
creation. Literal or liberal, concerned with the language of
the statute or with some divined interpretation of
legislative intent; whatever the degree of creativeness or
virtuosity, we should be left with some reflection of the law
as enacted and as interpreted throughout its history. The
discrimination is not permitted, regardless of, and without
reference to, its extent, whether 1 percent or 100 percent.
Aside from other comment in the majority opinion in the
recent Allis-Chalmers case,31 and regardless of the
outcome there, the following language can here be adopted
with profit:
The statutes in question present no ambiguities
whatsoever, and therefore do not require recourse to
legislative history for clarification. The wording used
evolved out of extensive Congressional debate and
study. Although in our original opinion we rejected a
literal reading of the statutes, in effect, we conceded
that such a literal reading would require reversal of
the Board's Order ....
If the Congress did not mean to say what Congress
has so clearly said, then Congress itself must indicate
that fact by legislative enactment. This Court should
not attempt to change the plain wording of this statute
by judicial interpretation
The statement by the Fourth Circuit Court in the instant
case, quoted with approval by the Supreme Court, that the
Act "does not compel a person to become or remain an
employer," argues for too much. One does not remain an
employer in the abstract; he is an employer in relation to
specific employees. If he cannot be compelled to remain
an employer, this would be true as well with respect to
some of his employees as with respect to all. The statute in
its reference to interference and discrimination does not
distinguish between acts against some and against all
employees. Thus again we have no basis in the plain words
of the statute for discrimination or difference in its
application. In the language of the Supreme Court in two
recent cases,
... when the [statute] speaks of any right ... it
means precisely that.32
. the language of [the statute] is plain and
unlimited.33
31 Allis-Chalmers Mfg Co v. N L R B , 358 F 2d 656, 660-661
(C A 7).
31 U S. v Guest, et al , 383 U S 745, 753
33 U S v Price, et al , 383 U S 787, 800
34 Should anyone suggest, in the words of the Secretary of
Labor, that "deletion is the better part of valor," I would reply
that I am not being valorous, but am seeking understanding and
guidance 1 Corinthians 14 10-11 Perhaps one should be
concerned, but not too much-except from the refuge of a law
journal article
35 N.L R.B v. Waterman Steamship Corporation, 309 U S 206,
1093
If it be not the duty of the learned Court to instruct, we
can and should look to it for guidance. I am not alone in
appreciation of assistance in discerning that the Act is
ambiguous in this respect.34
We can further consider the language of the court of
appeals, quoted by the Supreme Court. Whatever the right
of either side to "withdraw from [the employer-employee]
status with immunity," the statute specifically forbids
discrimination with regard to tenure of employment; and
tenure of employment covers creation or termination of
the employer-employee status. The statutory condition
with respect to termination of the employment relationship
does not at all concern the extent of such termination,
whether it affects all or some employees; it is that
termination may not be discriminatory in regard to tenure
of employment to discourage union membership.
Recognizing this, one may question findings of
discrimination or antiunion motivation, which are in this
case clear, but not declare a determining distinction
between partial and complete firings.
Again, since discharge of all employees is violative in
the absence of a shutdown,35 where, with addition of the
element of shutdown, is the redeeming feature which
justifies and absolves from violation? With discharge of all
employees and liquidation of the plant, tenure of
employment and concerted activities are pleasantly
dead- and as completely so as is the liquidation
complete. We may not, by pointing to the corpse, deny that
a living person has been murdered. If A kills B and then
himself, there is no remedy;36 but A did violate the law and
B's rights. This analogy does not warrant a lurid charge
that Darlington murdered the employment relationship.
The motivation for the terminations is another issue,
which was early determined but passed on only arguendo
by the court of appeals. But the terminations were
complete and the liquidation consummated; and the
analogy has been drawn to indicate that violation can be
declared even if there is no remedy.
There is no question but that the Supreme Court
decision is to be followed. But if questions be raised
concerning its meaning and rationale, explanation or
clarification may be forthcoming which will help litigants
and lawyers alike. Having found violation, we could
employ our energies, wisdom, ingenuity, and expertise in a
search for a remedy.
In the American Ship Building case,37 issued
simultaneously with its opinion in the instant case, the
Supreme Court declared:
But we have consistently construed the section
[8(a)(3)] to leave unscathed a wide range of employer
actions taken to serve legitimate business interests in
some significant fashion, even though the act
committed may tend to discourage union
membership. See, e.g., Labor Board v. Mackay Radio
& Telegraph Co., 304 U.S. 333, 347. Such a
construction of § 8(a)(3) is essential if due protection is
219
36 If A died possessed of assets, h,s estate would be liable to B's
heirs As earlier pointed out , the situation with respect to remedy
at Darlington is different in the absence of a base for
measurement of loss . It would appear that, were violation found at
Darlington, this proposition of lack of remedy because of absence
of measureable loss would be upheld by the courts which to this
point have held that a complete cessation of business is not even
violative
3' Local 374, Boilermakers [The American Ship Building
Company] v N L R.B , 380 U S. 300,311
299-352 0-70-70
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be accorded the employer's right to manage his
enterprise. See Textile Workers v. Darlington Mfg.
Co., ante [380 U.S.] p. 263.
Since Darlington is cited in connection with the
proposition declared in American Ship Building, it is
appropriate to examine our case in the light of the concept
expressed in the other. In American Ship Building the
Court was dealing with a disciplinary discharge for cause.
In Darlington, where the reaction has been found to have
been to employees' lawful concerted activities, the
"employer actions taken" were the steps to close the
business. What "legitimate business interests" did such
actions serve in the face of the Board's finding that the
mill would not have been closed but for the union victory
in the election and, as the Supreme Court here noted, "the
anti-union animus of Roger Milliken?"38
Darlington's appraisal of the economic situation and its
interests had led it to embark on a program of plant
improvement. The only newly intervening factor was the
Union's election victory. Unless excision, dismissal, and
banishment of the Union provided such interests, which
legitimate business interests of Darlington were served?
Surely animus and opposition to a union and interference
with and discouragement of union activities are not
"legitimate business interests" which may_ be pursued
under the Act.
Early in this processing I emphasized the value and the
significance of the free enterprise system.39 I thereafter
maintained the independence and separability of
corporations. 40 It does not derogate from the free
enterprise system to hold that an employer who goes out of
business because his employees' protected union
activities violates the express terms of the Act, whether or
not an effective remedy be available.
Considering remedy first, I early explained why none is
here possible, a question not since considered. Without
stating mine or any other reasons, the Supreme Court
agreed (although it continued by withholding a finding of
violation) to the limited extent that it declared: "No such
remedy is available when an entire business has been
terminated." These are not distinctions without a
difference or exercises in semantics. Careful analysis and
reconciliation are requisites of the legal system and indeed
in our thinking. I do not presume to declare or believe that
"the Court applies legal standards that cannot be
reconciled with [other] decisions of [the] Court ...." 91
But we can find valid bases for distinction or else modify
our conclusions if we are to maintain a consistent and
logical system.
Putting aside the question of remedy, the finding of
violation depends not at all on any requirement that the
employer stay in or return to business. While in the face of
the Court's decision to the contrary, I may no longer
regard the shutdown as violative, my own lengthy and
repeated involvement may provide license, if objections
are not permitted, to indicate these problems which the
decision creates.
To state this in another if not more persuasive way, if
the right to go out of business as stated be absolute, the
Act does not modify that right, regardless of possible
result. On the other hand, if chilling purpose or
repercussions must also be taken into consideration, then
the right to terminate has now been declared not to be
absolute, despite any statutory, constitutional, or practical
questions. Considering the right42 to shut down as
distinguished from remedy, there is no basis in statute or
reason for declaring the rights to be different because in
one case the closing is complete while in the other it is
partial. Similarly, if motivation be relevant in a closing
where substantial interests are held in other businesses,
etc., there is no basis in the Act (still considering the right
to close) for declaring motivation irrelevant and the right to
close absolute where the closing is complete and there are
no such interests elsewhere.
Since the Supreme Court has directed pursuit of the
question of intimidation of employees of other businesses,
it is here for the first time declared that discharge of
Darlington's own employees may be but is by itself not
violative; the outcome depends on intent and acts related
to employees elsewhere. But if chilling purpose and effect
be found with respect to employees of other mills, there is
no suggestion of remedy for those employees. Our remedy,
if any, is to be applied against the Respondents here and in
favor of Darlington's employees;43 and such remedy, even
the finding of violation, depends on a purpose with respect
to and an effect on employees elsewhere !44
At this late date it may be in order to point out that this
case does not include, among other things, allegations
against businesses other than Darlington and Deering
Milliken, or allegations of conspiracy or of a common plan
or purpose among mills or corporations not named as
respondents. Although the issues through the years have
been violation by Darlington, at Darlington, and with
respect to Darlington employees, we have transferred
attention fro in what would be violation against
Darlington's employees but for the complete, shutdown to
effect on employees elsewhere of acts which might be
declared violative in proceedings involving the latter.
The instances of alleged violation at other mills cited by
the General Counsel would normally be made the basis of
charges and complaints against those mills. Cases are not
unusual in which an employer is found to have
discriminated by refusal to hire employees of an organized
plant or to have interfered unlawfully by citing as a
warning or threat plants elsewhere which have closed with
the advent of a union. But the organized or closed plants
are not charged with such interference. Here they maybe !
Further in such other cases, violation of the rights of the
employees discriminated against or otherwise interfered
with is alleged on their behalf against the later employer.
1s Similarly, it was brought out at the hearing that Simpson, one
of the local stockholders but a substantial one and owner of stock
in other Deering Milliken and non -Deering Milliken , unionized
and nonuniomzed mills, opposes unions generally Like many
other points explored at the hearing , this has no bearing on the
instant issues since Simpson 's was hardly a controlling voice at
Darlington and his "pocketbook" motive reflects no chilling
purpose toward other businesses
39 139 NLRB 241, 271
40 Id , at 292, 314, passim.
4' The American Ship Building Company v N L R.B , supra at
318, concurring opinion of Mr. Justice White
41 It is a truism that if the right to act exists, the act cannot be
violative
43 If employment could be directed in the controlled and
related other businesses defined by the Court, what remedy if
these are not "in the same line of commercial activity" and
therefore cannot use the discharged employees ? From one
extreme of no violation , we could go to the other of backpay until
equivalent employment elsewhere be available , which we have
seen can be more harsh than an order to reinstate.
44 Novelty is neither its own sole nor its best recommendation
DAJILINGTON MFG. CO. 1095
In the instant case, while the inquiry is into the effect on
such employees, the violations with which we are
concerned are against Darlington and any remedy would
run to its employees-without remedy to those interfered
with at the locus delicti.
Having indicated that what was done at other mills was
not within the scope of the pleadings before us, I would
state further that there may be some question whether the
Supreme Court's interest , encompassing the effect of
Darlington's acts elsewhere, includes the effect of what
was said or done at another mill if this latter were itself
found to be an effect of what was done at Darlington; i.e.,
effect of effect. Whether this will clarify or confuse, the
question now is, if we find that what occurred at
Darlington prompted an act which interfered with
employees at another mill, should we weigh the effect of
the latter interference as chargeable to Darlington or a
proximate result of the acts at Darlington, or only as the
effect of the later interference at the other mill? If we are
concerned with foreseeable effect or tendency, a finding
can be based on rather extended inferences as we consider
other mills or businesses in which a substantial interest
was held, etc. (More of this, infra, when we consider
chilling effect.)
Nor should we overlook a question of policy which is at
least suggested by the Act's 6-month limitation. What if
interference with the rights of employees of other mills
and discrimination against them were now disclosed?
Section 10(b) bars finding of violation against those
employees by such mills or by the Respondents here. It is
true that these matters are here inquired into only for their
reflection on the events at Darlington and under charges
timely filed as to Darlington and its employees, and as to
Deering Milliken.45 But those 10-year-old charges and the
complaints issued under them did not embrace or
contemplate events elsewhere, whether contemporaneous
or later. Consideration needs to be given at least to the
question whether, in view of the statutory limitation and its
purpose, new and different matters should now be
inquired into when during the intervening years there was
no recognition or suggestion that they were within the
scope of any charge before the Board.
This point has troubled counsel for Deering Milliken to
the extent that he moved to dismiss the claim presented by
the remand on the ground that, whatever unfair labor
practice had occurred and might be found- under the
remand , it was not against Darlington 's employees or
within any complaint before us. While seeking
clarification as indicated, we have proceeded in the belief
that to grant the motion would be contrary to the Court's
direction for remand and the Board's remand order; and
that the Supreme Court' s attention has not been diverted,
in counsel's words, from "the unfair labor practice charge
[which] was directed at the Darlington employees." We
do not here have an "enlarging"46 of the charge. What the
Supreme Court has declared may indicate administrative
procedure to be followed in the future.
Hence without jurisdiction over other mills and even
without purpose to weigh acts at other mills as themselves
violative or not, we have received evidence pro and con
concerning such acts and must pass on its sufficiency to
establish a benefit47 to be reaped; that benefit must run,
not to the "other" mills or employers, but to Darlington or
Deering Milliken. Indeed the issue presented is not even
whether benefit runs to the Respondents: the benefit to be
found must inure to "the persons exercising control over"
them. Similarly the issues of chilling purpose and effect
relate to those who control Darlington and Deering
Milliken: Darlington because that is the corporation which
was liquidated, Deering Milliken to the extent that it
further identifies those in control and because it is a
Respondent. That such persons who exercise control are
not respondents must not concern us. If we find benefit to
them, we are directed to find violation and remedy against
the corporate respondents which those persons control.
Say what one will, and it probably will be said. But a
Pandora's box has been opened in the following respects
at least:
1. Illegality in closing part of a business vanishes if the
entire business is closed.
2. A threat to terminate a business for antiunion
reasons is unlawful, but consummation of the threat may
be lawful.
3. If the work had continued with new personnel,
discrimination would be found because Darlington would
thus have "discourage[d] any future union activities."48
The benefit would be sought from the new employees: the
discrimination and interference would presumably be
found to have been against the discharged employees.
(What could more effectively discourage new employees,
former employees, and employees at other businesses
than knowledge of a decision that a complete shutdown
because the employees have voted for a union may be
lawful?)
4. A shutdown for antiunion reasons, specifically
because a union has won an election, is not violative if
aimed only at the employees terminated. Complete
shutdown is not violative, we are told, "in the absence of a
showing of motivation which is aimed at achieving the
45 Distinction may be necessary between a finding of violation
by chilling purpose, to explain the acts alleged and found violative
within the Bryan Manufacturing rule (Local Lodge No. 1424, lAM
v N L.R B , 362 U S 411 ), and a finding of chilling effect, based
on act, which would themselves be found violative if properly
alleged We are in effect saying that the latter acts cannot be
found violative but that they are necessary for and do support the
allegations before us
44 Cathey Lumber Company, 86 NLRB 157, 162
4'' For the element of harm done to employees or interference
and discrimina tion has been substituted a test of benefit to the
employer The Supreme Court refers to "repercussions . .
affording employer leverage" for interference with Section 7
rights of employees elsewhere , whose rights are not in issue. Our
attention is again directed , not to remedy in favor of the
employees elsewhere interfered with and for the acts against
them, but to remedy to Darlington employees for such acts
elsewhere or the likelihood thereof If there be improper leverage
against employees elsewhere , the remedy lies in a proceeding on
their behalf In fact, despite the reference to employer leverage,
the benefit to be found under the remand and pursuant to the
Court's test runs to those individuals who control the employer.
49 At this point in the Supreme Court 's opinion it was pointed
out that the Court was not "concerned with a shutdown where the
employees , by renouncing the union , could cause the plant to
reopen ." We recall that Roger Milliken said that he would not
operate with a 17 percent hard core of prounion employees The
implication is that, but for that hard core, steps taken to shut
down would have been reversed and operations continued
Violation would be found under those circumstances , but not
necessarily now where the shutdown is effectuated and all
employees discharged.
1096 DECISIONS OF NATIONAL
prohibited effect." 49 But such prohibited effect is now
sought among employees elsewhere since, referring to an
"ambiguous act of closing a plant following the election of
a union ," the Supreme Court does not consider the finding
that the closing here was unambiguous and unlawfully
motivated, which as noted supra has not been disturbed.
The Court posits instead the three factors of substantial
interest, purpose, and effect, with respect to the closing,50
all relating to other businesses and employees.
5. Intent with respect to, and activity at, other
businesses are relevant to the issue of violation although
neither charged nor alleged.
6. Violative acts elsewhere somehow establish a
remedy for Darlington's employees.
7. Acts elsewhere are examined for what might be
found to be violations but without remedy for the
employees directly affected.
4' Unwilling to assume the motive and effect which were to be
proved, the Supreme Court did not in this case rely on the concept
of "natural consequence" (Radio Officers' Union v N.L.R B., 347
U S. 17, 45) in discouraging union activities as proof of unlawful
motivation , intent , or purpose In my 1957 report I overruled
Darlington 's argument that "motivation loses all significance
when the employer permanently quits business," and stressed
Darlington 's motivation but not that of any other corporation or
individual In the interest of historical accuracy , I should point out
that the brief now submitted on behalf of Darlington erroneously
declares that I earlier held that the Darlington "closing was
unlawful because ' (a) termination due to a mixture of reasons,
some lawful and others not, violates the Act."' (Emphasis not in
original ) I did not say that the closing was unlawful "because" of
a mixture of reasons I did there refer to authority previously cited
on that point But my finding was specifically that "the decision to
close the mill was not in fact based on economic factors, and that,
but for the Union's election victory, that decision would not then
have been made"; and further , whatever now be said concerning
motive or purpose as to employees elsewhere , that such a decision
"would not have been made but for the protected organizational
activities " Hence, in the language of N L.R B . v Brown, et al
d/bla Brown Food Stores, et al , 380 U .S. 278, 288, the employer's
conduct was not "reasonably adapted to achieve legitimate
business ends or to deal with business exigencies "
Darlington 's brief relies on Brown Food Stores as requiring
proof not only of motivation , but that the conduct was as therein
declared "primarily motivated " by unlawful animus or purpose
This is at the other extreme from the concept of motivation "at
least in part ," to quote from the Board 's remand order. As pointed
out infra, the proper test and necessary measure can well be
between these two a substantial or a triggering purpose without
which the action would not have been taken, but not necessarily
the dominant purpose This harmonizes with the idea stated by
the Supreme Court in the instant case of "promise of their reaping
a benefit" without reliance on bare existence of such a promise,
which would call for little or no proof, or on the other hand on its
status as the dominant or primary factor
American Ship Building , 380 U.S. 300, 310, cited by Darlington,
is not quite in point in this connection for there the Supreme
Court relied on the employer 's sole purpose , not on any primary or
partial motivation (cf. p 326)
so Whether or not it were held, as I did earlier, that Darlington
violated Section 8(a)(1), (3 ), and (5) of the Act, it would seem that
any inquiry into purpose and effect would be with respect to all
such violations , including acts of independent interference in
violation of Section 8(a)(1), and the 8(a)(5) refusal to bargain, not
merely the shutdown Where as here violation of Section 8(a)(3)
has not been found but is declared to depend on purpose and
effect elsewhere , considerations of consistency and relevance
would suggest inquiry into purpose and effect of all of
Darlington's acts which I found to be violative or which were
alleged to be so-or , if we go beyond the allegations , into the
purpose and effect elsewhere of all acts at Darlington. Thus,
LABOR RELATIONS BOARD
8. Because of problems of remedy, what appear to be
violations and findings thereof pursuant to the language
and stated significance of Sections 2(3) and 8(a)(3) of the
Act are nullified.
9. Transcending the natural and statutory limitation of
effect on the employees directly involved as alleged, we
face ever-widening circles of effect elsewhere.
10. Violation is found on the basis of acts which are
barred by Section 10(b) of the Act.
11. The statutory test of violation of employees' rights
has here been replaced by a criterion of benefit to those
who control the employer.51
12. Identity of economic interest rather than exercise of
common control is made to determine singleness of
enterprise and mutual liability of corporation S.52
With respect to the questions of single employer and
possible remedy, it may suffice for the present to note that,
finding interference by Darlington's supervisors , I held that these
did not reflect Roger Milliken 's declarations , the Board in its
decision did "not adopt , or pass upon" this latter holding Were
the question now before us, a finding of Roger Milliken's
connection with such interference might provide a starting point
for further inquiry into his chilling purpose with respect to
employees elsewhere.
Si One question considered at the heating on single employer
relationship was whether there was preference in transfer of
orders from Darlington to other Deering Milliken mills at the time
of closing Another was whether the latter mills attempted to take
over Darlington 's business and accounts by undertaking the cloth
constructions on which Darlington had been engaged The
negative answer to both of these questions still stands. While the
Supreme Court 's interest in benefit to Darlington and Deering
Milliken or those who controlled them is limited to benefit in
connection with organizational activities at other mills, there is at
least logic in extension of such interest , even if belated; and we
can here note the finding of absence of benefit to the other mills,
and thus to those holding a substantial interest in them, with
respect to manufacture and sales
52 The burden of a finding of chilling purpose with respect to
other mills and therefore of violation by Darlington, their
corporation , is imposed on local minority stockholders who, it
appears, had no interest in the other mills and some of whom
opposed the shutdown (I do not mean to add to the problems in
this case those dealing with relations between a corporation and
its stockholders .) The loss to these lesser stockholders is based on
their "association," in no case close or personal (conceivably in
another case as literal strangers ), with others who exercise control
here while holding substantial business interests elsewhere, as
defined With corporate existence ignored , the loss to one group
of stockholders is made to depend on benefit to the other group. I
would distinguish between the acts of Darlington , the corporation,
which may cause loss to all of its stockholders , from the intent of
some stockholders with respect to other businesses and
employees My earlier finding of violation was based on the acts of
Respondent Darlington
An additional possible problem which only relatively could be
called slight would be an order for backpay where reinstatement
could not be ordered (Section 10(c)) because a closed business
could not be directed to reopen (This would not obtain where the
work has been continued in another department , or in another
single employer situation ) While the Board directs backpay,
where work has been completed , to date of completion, that can
be deemed equivalent ( and more ) to reinstatement and payment
which the employees would have received while the job was
available In the instant case, however , no job was available to
anyone from the date of the respective discharges that date
would be the " date of completion" unless backpay were directed
into the undefined future, supra Any other date to limit backpay
bungs us back to my original question concerning remedy where
there has been a violative but complete shutdown
DARLINGTON MFG. CO.
while the Board, without reference to arguments or
analogies cited, reversed the Trial Examiner's finding that
Darlington and other corporations were not a single
employer, this point has not been decided by the courts.
Although troublesome, that issue may yet clamor for
decision, and then the further troublesome issue of
remedy, raised in the original hearing and report thereon
but since avoided.53
Only with respect to Section 8(a)(1) and (5) violations
may it be said that distinction between violation and
remedy has been noted in the majority opinion of the court
of appeals where, at the close, violation of those sections
was recognized, the court then declaring: "Remedies for
these offenses are not now available as Darlington is no
longer alive." It will suffice to note that, with respect to
findings of violation of Section 8(a)(5) also, whatever the
subsequent relations among the employer, its employees,
and other employers (and subsequent problems
concerning remedy because of "a basic operational
change,)" 54 they do not modify whatever obligation may
exist to bargain concerning shutdown or the violation for
failure to meet that obligation. Whatever has been or may
be said concerning remedy, our problems would be clear
and perhaps more simple were violation found whether the
shutdown be partial or complete.
This is not to say that there may not be cases involving
multiple businesses and common plan or purpose. But
such cases must include a comprehensive initial concept
and consistent supporting steps thereafter. Complications
could be avoided or minimized, and the promise or hope
offered for a proper decision not too long delayed.
To borrow at this point from the Court of Appeals for the
Ninth Circuit in the recent Great Western Broadcasting
case,55 where it was pointed out that the Supreme Court
had spoken in broad terms, "the incongruity . . . may not
control the ultimate decision ... whatever difficulties an
analytical dissecting ... may reveal." Additional benefit
may lie in noting this in the instant case since many of
these points have not yet been argued before the Supreme
Court.
Whatever action the Board may take with respect to my
findings, conclusions, and recommendations, these and
other comments herein are by their very nature not
addressed to it; and the Board is, of course, not
responsible for them. Prompted by my own long
connection with the case and heightened concern for final
and adequate disposition, such comments, in the usual
phrase, do not necessarily reflect the opinion of the Board.
If it be not the Trial Examiner's function to attempt to
persuade the courts, what has here been said may explain
the Trial Examiner's earlier findings in the light of the
questions since raised; and it may further elicit
explanation or reconciliation which will assist in the
decisional process at these lower levels.
II. SCOPE
Testimony was long ago received on the violations
originally alleged and the nature of the relationship
between Deering Milliken and Darlington; and as we have
seen, full opportunity granted for proof of relationship
between Deering Milliken and other corporations. All
Sa Were we to return to basic principles and the original issues,
more could be said on the issue of possible remedy where
violation is found in the closing of the business I resist the
temptation to express further thoughts on that issue at this time
1097
parties agreed that we were not here considering these
questions, and neither offering nor receiving testimony
concerning them. Whatever such proof, it was available
before the remand. Whatever findings be made
concerning that proof, it was agreed that they will not be
based on the evidence received at this fifth hearing. I
recognize and of course- accept the Board's contrary
findings on the single employer question, and I shall not
now add to my earlier analyses, explanations, or findings
on either issue.
On the other hand, findings of chilling purpose and
effect are to be based on both the evidence now received,
and the earlier evidence on the issues originally presented
concerning violations at Darlington and thereafter on
single employer status. To avoid repetition of what had
earlier been brought out and to enable the parties to meet
a very relevant claim, it was proposed and agreed that,
with respect to chilling purpose and effect, consideration
of such earlier evidence be limited to the portions cited at
this hearing.
This having been noted, it should be unnecessary to
point out that the sum total of the evidence received prior
to this latest hearing will not suffice for findings of chilling
purpose or effect. The Supreme Court, considering these
issues, did not decide them on the basis of such prior
evidence but remanded for further findings; and the Board
remanded for further hearing. To this, I shall add what
might have been stated at the beginning: That it can be
assumed that the Supreme Court did not envision the
possibility of no foreseeable effect. Whether foreseen or
even considered at Darlington, some effect can be
assumed. No more than a man can a corporation act
without effect elsewhere; and effect is presumably greater
within the same industry and within a group whose
members are related as here. Darlington, Deering
Milliken, and Roger Milliken are neither islands nor
isolated. We must weigh to a point of degree a foreseeable
effect (of the acts at Darlington of those who controlled it)
on which to base liability.
As our problem becomes one of sufficiency of proof that
there was a chilling purpose and effect, evaluations may
differ on the issue of weight or sufficiency. In any event, as
we shall see, the hearing has proceeded on the issue of
actual effect as against the limited proof of such effect and
the testimony that it was not purposed. We find ourselves
again, in this Sisyphean project, with more problems than
initially existed or were submitted by the parties.
The possible scope of the instant hearing was very wide.
Our inquiry could have extended into many places and
could have delved into many specific situations for the
evidence called for by the remand. That this would have
been a tremendous burden cannot be gainsaid; but we are
limited to the proof received, which concerns Deering
Milliken mills only, and only some of those; and we may
not assume that what has been received is typical and to
be regarded as if multiplied many times. Certainly in
weighing effect, the extent of the effect, whether
foreseeable or actual, is obviously important. There is no
precedent for holding, for example, that what a supervisor
in one mill said to a number of employees is to be
multiplied by a factor which will bring before us and
represent all of the employees in the mill or in all of the
54 N.L R B v. Adams Dairy, Inc , 350 F 2d 108,111 (C A. 8).
55 Great Western Broadcasting Corp. d/b/a KXTV v. Hoffman,
Reg Dir., 356 F 2d 434,436-437 (C A 9)
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
businesses with which, under the remand, we ought to be
concerned.
My own expectation, indicated at the hearing, was that
the proof under the remand would be far more extensive;
and that having labored so long, the proponents would
grasp this opportunity to submit the mass of testimony
which was now conceivably made possible on these new
and so wide issues. Certainly with the issue of actual effect
on employees in other businesses, a mass of testimony
concerning this would be expected-unless such effect
were nonexistent or exiguous. The importance,
prominence, and very age of this case merit no less.
In fact, if considering the possible extent of inquiry for
proof of actual effect, very little has been submitted, even
less new matter has been added that would bear on the
chilling purpose entertained with respect to employees
elsewhere, at the time of the shutdown, by those who
controlled Darlington; and the tendency of the shutdown
at Darlington to chill union activities elsewhere could quite
as well have been determined without this hearing. But
since a hearing was directed and held, we shall proceed to
consider the testimony received on the issue of purpose
and of foreseeable and actual effect.
At the hearing and in his brief the General Counsel has
argued various points and details. But the supporting
evidence is meager. Whatever the legal conclusions hoped
for by counsel, and the arguments for such conclusions,
we must first have supporting facts. Briefs and arguments
are important supplements, but they do not substitute for
proof. The Supreme Court, remanding the case as one of
first impression, surely expected a mass of evidence, pro
and con; I did. The number of mills previously noted and
the number of their employees, even if additional
businesses were not referlred to at the remand hearing,
warranted such expectation.
It could be argued that a chilling effect would limit the
number of witnesses available to the General Counsel. But
the latter was at the hearing permitted in this respect to
elicit hearsay testimony of conversations among
employees at the New Holland and Hartsville mills. This
was argued and explained when some of the testimony was
received56 and later. In issue here is not only whether the
Respondents committed acts as part of Darlington's
purpose, but the question whether employees of other
mills were thereby actually affected. With employees'
reaction a fact which counsel sought to establish, we
received testimony which would otherwise and normally
be rejected as hearsay concerning employees' reactions in
deeds or words, including conversations among employees
or statements by them outside the presence of employer
representatives. If experienced counsel were astonished
by this liberal procedure, it was no less novel to me.57 But
the issue submitted covers the very fact that employees
talked about the Darlington shutdown as an effect under
the remand. With effect and its extent noted, we could
consider the further issue whether it was chilling. The
56 Some had been earlier received without objection.
5' Counsel for Deering Milliken damned this procedure with
faint praise when he pointed out that it was not quite so bad to
take testimony "dealing with people in a plant " as it is when the
testimony is from a union organizer about conversations with
employees outside the plant.
59 If such an assignment appears to be an impossible task, the
prognosis can further be aggravated: Even proof of widespread
fear of retaliation for organizational activity at other businesses
might be of obscure etiology in view of the r iamfold possibilities
hearing has served to provide a broad basis for ultimate
decision concerning a chilling purpose and effect. Because
of the novelty and difficulty of the task which he faced, the
General Counsel was also accorded great latitude in cross-
examination of witnesses. There is no evidence or
statement by counsel of attempts and inability to obtain
evidence of chilling concerning which witnesses out of fear
refused to testify, thus barring the proof anticipated and
preventing the inquiry directed.
During the hearing, inquiry was made as to the number
of employees in the Deering Milliken mills at the end of
1956, after Darlington's shutdown. There had earlier been
reference to approximately 19,000 employees; we were
now told that the number was some 14,000. This was no
idle question: the Supreme Court was concerned with all
of these and more, and we should have an idea of how
many are conceivably involved and might be the subject of
our inquiry. Although the earlier hearings were extensive,
their natural limitation did not apply here, as I indicated at
the hearing. Whether 19,000 or 14,000, we have an
approximation and, if they had not thought in such terms
before, counsel were given what may have been
unnecessary notice of the realistic requirements of any
inquiry. But the hearing did not cover the smallest fair
sampling on the basis of which one could generalize with
respect to employees at other businesses or other mills.511
On the other hand, much time was spent on the history
of affairs at other mills in which the Millikens had had an
interest and which had been liquidated. Aside from the
variations among those mills, whether unionized at time of
liquidation, previously unionized but not when liquidated,
or never unionized, the findings heretofore made in this
proceeding and the direct testimony now received from
Roger Milliken sufficiently show his opposition to
unionism: he clearly stated that he deems a union "a
detrimental economic factor." Readily elicited from
Milliken, this superseded and made unnecessary 5' much
of the testimony which he gave when called as an adverse
witness early in this hearing; it sufficiently indicates
attitude and animus to the extent that these in connection
with the Darlington shutdown may support evidence of a
chilling purpose and effect elsewhere, which will be
considered infra.
That this testimony also supports the early findings
concerning the reason for the closing may not now be
important. What is important is that our attention was not
sufficiently focused on proof (as distinguished from
inference from the acts at Darlington) of actual chilling
purpose and effect at Darlington with respect to other
businesses. The time spent in preparation and at the
hearing with respect to background or history could well
have been devoted, on the question of purpose, to
evidence of Milliken's knowledge of and activities bearing
on union efforts at Darlington and elsewhere shown to be
in esse, pending, or anticipated by him in 1956; and on the
question of effect, to more substantial proof thereof,
of sources and interacting factors which might lead or contribute
to such fear or chill-unless a specific causal relationship were
shown and others eliminated.
se No more could be added by reference to a speech by Milliken
in 1955. This was analyzed in detail on the record If not
sufficiently related and not probative with respect to immediate
violation at Darlington, it is less so insofar as other mills are
concerned even if, as I pointed out, the Darlington closing alone
was earlier tried. We recall that Milliken's "antiunion animus"
and the fact that Darlington was closed because of this were found
by the Board without dissent, as noted by the Supreme Court.
DARLINGTON MFG. CO.
presumably stemming directly from the Darlington closing
in addition to any "effects of effects" as where intervening
statements by supervisors at other mills or refusals to hire
allegedly affected employees elsewhere.
Insufficiency here should perhaps not be charged to the
General Counsel: the task imposed upon him was
Herculean. He called some 50 employees or former
employees or supervisors of Darlington or other mills.
Some witnesses were clearly unreliable and their
credibility destroyed. In other instances we have
unreliable testimony pro or con which may or may not
itself offer basis for findings of credibility. Witnesses were
testifying concerning details of events 4 to 9 years earlier.
We recall that we do not relate the testimony now
received to the issue of a single employer tried 7 years ago
which presumably took some 9 months plus whatever time
was spent on the issue before the Board's remand of
December 1957. Neither are we trying a case against any
mill corporations other than Darlington. The very absence
of other respondents to whom proof might be limited and
the scope of the remand provide the almost limitless area
indicated for remand; and for these and perhaps other
reasons we must recognize that the burden on counsel is
virtually insuperable.
With respect to chilling effect, the General Counsel
must show effect on employees in various places. 10
employees? 100? 1,000?-and why not many more?
Indeed the Respondents might then show that, whatever
the effect testified to, it is relatively slight; and further that
similar effect on businesses before us might flow from
activities of truly stranger employers elsewhere, whether
in California, Texas, Michigan, or Massachusetts. While
some items might not appear to be directly relevant (e.g.,
alleged effect on supervisors at other mills, which in turn
prompted them to affect and interfere with their
employees) under the Supreme Court remand for
consideration of the effect of the acts at Darlington, they
may be held by the Court to bear on the issue whether a
given effect stems from Darlington wholly or at all,
whether it be called indirect, secondary, or remote.
Among the subjects or topics included at the hearing
with respect to chilling effect are remarks to supervisors at
Darlington or other mills by an attorney for the
Respondents and various other Deering Milliken mills,
supervisors' remarks to employees at various60 Mills,
employees' remarks among themselves, knowledge of
employees of other mills concerning the Darlington
shutdown including their readership of various
publications which carried articles concerning Darlington,
and futile attempts by some Darlington employees to
obtain employment at another mill. To some extent the
testimony received on these subjects might reflect on
chilling purpose also, as did that of Roger Milliken, called
as an adverse witness among the 52 witnesses called by
the General Counsel to show chilling purpose and effect.
The number of topics listed further indicates that we had
very limited coverage of each. With chilling purpose and
effect with respect to thousands of employees in issue, the
bits and chards offered were insufficient in quantity and
unimpressive in quality.
Aside from the relative paucity of proof received, and
aside from findings which could be based on the demeanor
of witnesses, the bare transcript indicates patent
unreliability of much of the testimony concerning alleged
80 Proof at this hearing was concentrated on and with few
exceptions limited to three other mills
1099
chilling effects of the Darlington shutdown. Thus
Galloway, a former employee at the Hartsville mill,
testified that a supervisor, Laughlin, told him in the
presence of Luther Howard and other employees at the
time of the shutdown and many times thereafter, "If
people in Hartsville vote a Union in Hartsville, they will
probably close this one down just as they did the
Darlington Mill." Laughlin was not called to deny this, but
neither was it testified to by Howard, who also testified for
the General Counsel.
Galloway testified further that about a week after the
shutdown another supervisor, Ott, told him that all of the
second hands had met with Mr. Milliken's lawyer, who
said that he wanted the overseers to tell the employees
that Milliken "would not61 operate a mill under a Union; if
they voted it in, he would close the Hartsville Mill just like
he did the Darlington company."
Ott was not available to testify, having died in December
1962. We can contrast the statement which Galloway
attributed to him with the statement attributed to Laughlin
and the latter's further alleged statement to Galloway that
he "felt like" they would probably close the plant as they
had Darlington. Strangely although Laughlin discussed
this so many times, he never purported to report what the
lawyer, Poag, had said at the meeting with these
supervisors or that Laughlin, whatever he may have said to
Galloway, supported his own impression (that being what
he testified to and what he had included in a prior
statement) by reference to Poag and what the latter had
allegedly said. From all of this together with the fact that
Galloway in several repetitions of Ott's remarks variously
included and omitted reference to Darlington; and from
Galloway's explanation that in his statement less than a
week before he had not mentioned Ott because he had not
been asked about him but that Ott had been brought up by
counsel the night before he testified (we recall that this
was 9 years after the event; he did not charge that counsel
had "brought up" the reference by Ott to Poag, which
Laughlin had not made), I do not rely on Galloway's
testimony as indicating that Ott quoted Poag or that the
latter made the statements thus attributed to him
including an alleged request that the overseers pass the
word to the employees.
On the other hand, not to "balance" credibility findings
or to anticipate the topics infra, but to indicate further the
quality of some of the testimony received, the
Respondents' witness Coker denied that he was a
supervisor before November 1963 and that he had told
employee Plott at the New Holland mill during a drive
there by the Teamsters Union not to take a union handbill
(Plott's version was that he should not talk to the
distributor of the handbill), or that he might be fired. His
recollection refreshed, Plott added that he and Coker had
talked about Darlington several times and that Coker had
said that Deering Milliken had "closed it down because it
went union."
From the time in 1959 that he was asked about "taking a
section" of the platform, Coker supervised the activity of
six others. Without reciting details in his account, I do not
credit his testimony that all seven performed substantially
the same duties and that he did not have or exercise
authority over the others. Not without doubt as to either, I
would credit Plott's testimony concerning the direct threat
to him, but not about the reference to Darlington.
s' No "probably" here.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By similar comparison and detailed analysis of the
testimony, findings can be made with respect to other
statements allegedly made by supervisors in various mills,
and on the basis of the transcript without considering or
relying on demeanor.62 I have considered fully and
carefully each instance as testified to pro and con and
have weighed the attendant circumstances as in the case
of the events described by Galloway, Plott, and Coker; and
my findings must embrace all. But I see no need in this
case to detail each of them and to point out all variances
and other bases for credibility findings. Counsel have
themselves, and quite understandably, cited only limited
portions of such testimony, and have not covered all of the
witnesses.
No more than of court proceedings should a travesty be
made of administrative proceedings. With relatively little
presented where the possible relevant testimony is so
great, encompassing many businesses, we should not
spend more time and further delay ultimate decision by
that "fragment by fragment" analysis which evidence
sometimes merits and requires. Should detailed findings
concerning each witness' testimony be deemed necessary
although I deem it unlikely where the sum total is so slight,
they can be made free of my own impression of
inadequacy63 and without any confirmatory evaluations of
witnesses' demeanor.
The scope of the hearing was by ruling limited, as
indicated supra, to events not later than the year 1961.64
The General Counsel argues that "the threat of
Darlington" allegedly made by Poag in 1963 goes directly
to the issue of effect and is "also somewhat probative of
purpose back in 1956." No more than at the hearing would
I now rule out a possibility. But Poag's words in 1963 do
not significantly add to the effect of his similar language in
1956-61 as testified to; and with respect to purpose,
expression in 1963 would be "somewhat" less probative
than the several earlier instances described in detail.
Counsel for Deering Milliken urges differently that we
should limit t he question of motive to chilling intent at the
time of the shutdown. To the extent that the motive
concerning other businesses is relevant as bearing on the
issue of violation, we should consider motive or purpose at
that time to chill then or into the future as foreseeable
within respect to effect. The promise or hope of possible
benefit to which the Supreme Court refers ran into the
future. In the exercise of discretion it appeared to be
reasonable , practical, and fair to limit proof of the
foreseeable effect of the alleged 1956 purpose to the period
ending with 1961. In the exercise of discretion and in the
absence of any suggestion of unusual reason or events for
extending it, this 5-year limitation covers a "realistically
foreseeable" period of hoped for effect. Five years appears
62 Demeanor , like beauty, may reflect the quality of the
examiner 's vision and can be too convenient a crutch or weapon
even though it sometimes pellucidly indicates credibility or lack
of it.
63 This suggests (cf. Jackson Maintenance Corporation, 126
NLRB 115, 117) my credibility findings in general , some specific
findings having lust been made and others appearing Infra
64 No corresponding limitation was placed on the General
Counsel's inquiry into events prior to the Darlington shutdown
Because such earlier events might bear on the purpose at
Darlington it poor closings were shown to have had a chilling
effect, and conceivably on foreseeable effect, inquiry was made
into events at other Deering Milliken mills many years before
1956, as mentioned above and as we shall further consider
to be generous when compared with the usual few months
limitation observed in cases where knowledge of
employees' union activities is claimed to warrant findings
of employer animus and discriminatory discharge. But the
question here posed of purposeful plotting with respect to
other plants and their employees warrants this longer
period. Certainly, as I did at the hearing, when I
disclaimed exactitude in this connection, I would not deny
that 4 years may be long enough or that 6 years may not be.
Whenever effect might be manifest after the shutdown,
our inquiry into chilling purpose concerns such purpose
when Darlington was closed in 1956.65 Later events, even
later chilling purpose, must be shown to be a continuation
and reflection of a 1956 purpose, and as purpose it must be
connected with those who exercised control over
Darlington; not merely to be similar to or consistent with
an alleged earlier purpose which they do not prove. As for
chilling effect, it might well be expected that this would
become manifest within 5 years; it would be even clearer
where it could be spotlighted by another organizing
campaign within that period, reference being mainly to the
Teamsters efforts at New Holland and elsewhere in 1961
in connection with which a great deal of testimony was
received. But even within the 5-year period, opposition to
unions at other plants is not enough to show chilling effect.
The General Counsel has the unenviable task of showing
that such opposition was purposed at Darlington and is the
effect of what occurred at Darlington.
III. SOME POINTS OF SOCIOLOGICAL CONCERN
For those who, aside from the legal aspect, think that we
should concern ourselves with sociological considerations
and the economic effect on employees, the very point with
respect to remedy which I earlier made concerning the
self-limiting possibilities of loss to employees when an
employer goes out of business, the Supreme Court has
itself made in connection with its finding of no violation
under such circumstances. "The very permanence of
[employees quitting their jobs en masse which] would
negate any future economic benefit to the employees" (in
the words of the Court) is similar to the permanence and
absence of future economic benefit or encouragement to
an employer who shuts down completely; personal
satisfaction and "the mere possibility that other employers
will follow his example are surely too remote to be
considered dangers ...." No more than did the Court are
we to involve ourselves in sociological problems as they
may affect employees. Recognizing that an employer
might not carry out an announced intention to close, the
Court did not consider it of sufficient significance.66
We must accept the Court's declaration that "[t]he
65 "Foreseeable effect" is determined by the Board What "the
directors of Darlington knew or had reason to know in 1956,"
connected in the Deering Milliken brief with foreseeable effect,
bears on the issue of purpose
66 The problem which the Supreme Court notes of "possible
consequence" of encouragement of an employer to decide
definitely to close his plant to discourage union support and to
threaten to do so, followed by the employees' vote to organize,
would vanish if the encouragement were removed; if, consistently
with the holding that a threat to close because of union activities
is violative, it were held that the consummation of the threat by
actual closing is also violative. What to do with respect to remedy
would be another question which, without being inconsistent, the
Court could answer as it does in the same footnote in its concern
over violation the possibility is unlikely
DARLINGTON MFG. CO.
employer's right to go out of business is no different" from
the right of employees to quit en masse. But it may be
helpful and in order to point out first that, when employees
thus quit, they may be replaced and the employer is not
necessarily without recourse; while where an employer
goes out of business, without more, it has here been
declared that the employees have no recourse. Secondly, it
would seem that the balancing element accorded to
employers for employees' right to strike en masse is the
right to replace the strikers en masse, not to discharge
them in the face of the statutory provisions.
Lawyers may indeed be interested in sociological
problems, and the Supreme Court has confirmed the
propriety of reference to such and their possibilities. But
this is the forum, and mine certainly is the province, for
legal not sociological decisions- even if it becomes
necessary, however pure the motive, to apply a tourniquet
to one's aorta. If policy may concern itself with what
appears to be ultimate good, the judicial process and the
Trial Examiner must follow legal methodology.
We must recognize the social or sociological aspects of
the Act. (Disagreement can be expressed to Congress.)
But having done that, I conceive it to be my duty not to
approach problems with an apparent "social purpose" or
in a manner dishevelled. Mine is to weigh the facts and to
interpret the law, the latter with regard to our particular
statute and cases and the body of law in general . I state
this, if I be in error these many years, "for reproof, for
correction, for instruction."
IV. Purpose and Effect
The Supreme Court, directing findings on the issue of
purpose and effect with respect to employees elsewhere,
apparently deems both purpose and effect necessary to a
finding of violation in the acts at Darlington . While one
does not prove the other, the same testimony may bear on
both.67 Indeed effect may suggest motive, although, in
recognizing this, we must also remember that foreseeable
effect does not prove purpose, of which we need
independent evidence, as the Supreme Court pointed out.
Similarly, purpose if shown is no more than a hope or plan
for effect: it does not prove effect 66
The General Counsel has argued that purpose and effect
"went together"; that although he had shown effect, that
was unnecessary: his object had been "to show that the
purpose was there, that it preexisted, that it was continued
and shown by the actions of the people involved." In fact,
the General Counsel, as he analyzes the evidence in his
brief, combines purpose and effect and thereafter argues
that the foreseeable effect "flows almost by necessity"
from a finding of purpose. As a purpose may have an
effect, so conversely may an effect reflect a purpose. But
effect does not necessarily reflect purpose. Indeed, as we
have just been reminded, the Supreme Court has told us
that proof of foreseeable effect is not violative unless there
be evidence of violative purpose.
Whatever the General Counsel's statement concerning
the need for independent proof of actual effect, he did at
67 The analysis of each will to some extent be similar or
reciprocal , but separation , infra, may aid in clarification
88 Even if we limit attention to foreseeable effect or tendency,
purpose is not the same, for it is subjective with its owner while
tendency is an objective recognition on the basis of expertise, in
this case by the Board , however unintentional or even naive the
action being appraised In any event , testimony was offered
concerning actual effect , which is clearly different from purpose
ss The Board found causal connection, as in the phrase "for
engaging in protected activities "
1101
the hearing offer testimony (and he refers to it in detail in
his brief) of actual effect on employees of other mills, as
indeed he had promised in his bill of particulars; and the
hearing proceeded on that basis. The Respondents also
testified the question of actual effect on such other
employees, as the result of information concerning
Darlington passed on to them orally or by newspapers or of
events at their mills based on the Darlington shutdown. At
least one New Holland employee, who had told us that his
supervisor had warned that the mill "would close down
overnight if they went under Union," testified thereafter
without objection that, as the union literature argued, he
"didn't think they would close down if they did go Union."
As for the discrimination alleged, the motivation was
early found to have stemmed from the union activities of
Darlington's own employees. But despite that finding of
unlawful motivation and discrimination, the Supreme
Court held that the "act of closing a plant following69 the
election of a union" is ambiguous and therefore not
inherently discriminatory. Then, concerned with possible
"employer leverage" elsewhere, which it would prevent,
the Court directed an inquiry into intent or chilling
purpose with respect to employees of other businesses.
Employer leverage also reflects or may be reflected in the
effect produced, as do "repercussions on what remains of
the business";70 and proof of purpose is not alone
sufficient to cover employer leverage and repercussions.
Nor is a complete shutdown with chilling purpose and
effect elsewhere to be analogized on principle with a
runaway shop, a "contracting out" situation, or
replacement of all employees. As the Supreme Court
indicates, in such cases the same work is continued but
with new personnel. Thus tenure of employment is
affected at the new or continued place of employment as
well as among the former employees against whom there
has been discrimination. Whether by the same or another
employer, new people are in each case put to work. Here,
on the other hand, the new test declared is not at all one of
tenure of employment (Section 8(a)(3)) among other
employees, but interference (Section 8(a)(1)) with
employees' protected activities elsewhere. Violation of
Section 8(a)(3) is now to be found on the basis of 8(a)(1)
violation elsewhere, not 8(a)(3).
As for foreseeable or actual effect here, the Court
several times referred to reasonably or realistically
foreseeable effect. Whether because the closing reference
is to "further findings on the issue of purpose and effect"
(without the modifier, "foreseeable"), or because the
Court did not employ the common phrase, "tendency to
effect," or for whatever reason, the Board in its remand
order called for "additional evidence bearing on the
`purpose' and `effect' of the closing of the Darlington mill,"
with a later more specific reference to whether the
Respondents "may reasonably have foreseen" the effect.
Where the issue is interference with rights under the Act,
it is well established that the test is tendency to interfere,
and neither actual effect nor intent.71
We do not appreciate how well they wrought who
TO The reference to what remains of the business appears to
include what is later described as "another business "
7i This proposition with respect to effect has recently again
been pointed out by the Board Lee Cylinder Division ofGolay &
Co , Inc , 156 NLRB 1252 As for intent , the Supreme Court in the
instant case declared. "A violation of Section 8(a)(1) alone
therefore presupposes an art which is unlawful even absent a
discriminatory motive "
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
declared that tendency to interfere rather than actual
interference must be determinative. But while the element
of foreseeability itself may reflect on purpose, all parties in
this posture of the case proceeded at the hearing, as we
have seen, with proof of actual effect as relevant to the
inquiry; and I received such proof despite the general rule
and my own theretofore unbroken practice, with respect to
foreseeability, of limiting proof of interference72 to proof of
tendency. Presumably from this proof we are to find the
answer to the question whether "the employer may
reasonably have foreseen that [the] closing [would] likely
have [ a chilling] effect."
Thus, aside from mere reliance on the Court's
conjunctive, as we consider evidence of chilling purpose
and effect, there must be proof of each. With respect to
the latter, we shall not overlook the testimony concerning
actual effect.
Discussing , supra, the time limitation imposed at the
hearing, I intercalated the clause , "and as purpose it must
be connected with those who exercised control over
Darlington." We must regard the foreseeable aspect of any
effect as an effect which was actually foreseeable or
perhaps foreseen at Darlington. Since we are concerned
with the purpose of those who had a substantial interest
and stood to gain, we must consider foreseeability from the
point of view of the Respondents, whose purpose is being
regarded. Here is another caveat: Not only are we
concerned with purpose as of or in 1956, and without
inferring purpose from effect, but to whatever extent
purpose might be inferred from general circumstances it
must here be connected with the specific persons who
exercised control over Darlington and their interests
elsewhere.
To show both chilling purpose and effect, the General
Counsel referred to the liquidation sale of Darlington's
assets piecemeal rather than as a going concern. The
auction sale was passed upon in an earlier report in this
case. While the General Counsel in the instant hearing
asked stockholder Manning whether he knew of a certain
bid for the entire plant, there is no evidence of any bids for
Darlington as a going mill which would have netted more
for the stockholders. We were told that the total received
at the sale piecemeal was a quarter of a million dollars or
approximately 15 percent more than the highest or only
single bid mentioned. These facts do not evidence chilling
purpose or effect with respect to employees at Darlington
or elsewhere in the sale and dismantling of the plant,
beyond what was earlier found to be discriminatory-aside
from the fact that Roger Milliken first learned of the bid
for the entire plant when it was made at the auction sale.
The call at the auction sale for bids for the plant as a
going operation would appear to negative a purpose to chill
elsewhere by liquidation. As for the attempts by various
directors, including a former mill treasurer, to obtain a
buyer for the entire mill, such attempts indicate their
impression of the existence of any purpose to chill by
shutdown.
I would not overlook the General Counsel's reliance on
memoranda between Roger Milliken and treasurers of
other mills (and other officials), many of such memoranda
received at an earlier hearing. Opposed to unionization, as
noted, Milliken encouraged mill treasurers to take such
steps as a public relations program among employees. The
"primer" thus circulated to mill treasurers reflects
Milliken 's opposition to unionization . But no greater
inference can be dawn from that specific piece of evidence
long ago received than from the general and broader fact
of his admitted opposition.
It does not appear from the Supreme Court's opinion
that any chilling action must itself exceed the bounds of
lawful activity or be so intended. But whatever the
conclusion concerning acts of supervisors73 at other mills,
it does not appear that these stemmed from the
memoranda in question ; and it was testified that such
memoranda were not brought to the attention of the rank-
and-file employees. At Hartsville the supervisors were
summoned and told "to be good citizens and go to church
to keep up the mill's community image"-hardly a
chilling effect of any memoranda or of any action taken, or
leading to such effect; or reflective of a chilling purpose.
What the General Counsel emphasizes as "the object
lesson of Darlington" speaks to mill treasurers of the need
for better public relations; it was not intended for mill
employees, and neither intended nor used to limit their
activities. Instead of a chilling purpose here it would be
easier to assume, were we to speculate , that years before
any issue arose with respect to employees at other mills,
had Milliken purposed to affect such employees, he would
at least have suggested that such a memorandum be called
to their attention . Insofar as the memoranda indicate
Milliken 's opposition to unionization , they are cumulative.
Furthermore and again , Roger Milliken 's general attitude
does not prove chilling intent and purpose elsewhere when
Darlington was shut down-or this hearing was itself
unnecessary and excessive.
As I have indicated , testimony concerning purpose or
effect may, but does not necessarily bear on the other of
these. But because such testimony in a given situation
may bear on both, we have briefly considered purpose and
effect jointly, as we shall again now, making reference to
either as indicated. But even where there be basis for
inferring one from the other, we must avoid the bootstrap
operation of drawing mutual inferences where proof does
not exist.
We shall be reminded that the purpose which concerns
us is the purpose of those who controlled Darlington and,
in the words of the Supreme Court, at the time when they
"act[ed] to close their plant"; and to the extent that we
consider foreseeable effect, it is effect deemed foreseeable
at that time in 1956. It is in that light that we must consider
references to Darlington's closing made by supervisors of
other mills to their employees (and any refusal to hire
Darlington employees at other mills ). Those remarks are
material here to the question of chilling purpose if at the
time of the decision to close Darlington, it was there
intended that supervisors at the other mills would make
such remarks, violative or not; they are material to the
question of chilling effect if it could reasonably be
foreseen, not that other employees would tend to be
directly affected by the Darlington closing, but that there
would be a tendency on the part of supervisors at other
mills to speak to their employees concerning Darlington
and that the tendency of such remarks would be to chill
the employees.
We must thus infer tendency of a tendency, applying to
inferences the law's historical and valid extension of
72 As a reminder , since this is involved , the issue of ]J As distinguished from the purpose or effect of the
discrimination here depends on interference with employees memoranda when they were issued, the activities of supervisors
elsewhere at various other mills will be considered infra
DARLINGTON MFG. CO. 1103
proximate effect; unless we consider proximate actual
effect. Our concern with purpose similarly becomes one of
second degree. But both purpose and effect will be
regarded and weighed herein between Darlington on one
hand and employees elsewhere on the other as if there
were no intervening elements or persons.
Having referred to "the time of the shutdown," I would
emphasize that we must concentrate on that time with
respect to both purpose and foreseeability even though the
inquiry has been extended to employees of other plants.
To the extent that so much of the testimony received at
this hearing does not prove purpose and does not warrant
an inference of foreseeable effect, with respect to
employees elsewhere, at the time of the action to close
Darlington, it is not even material to this inquiry. It was
received on the assurance that it would bear on the actual
issues; an assurance on which the Board presumably
relied in issuing its remand order on the basis of the bill of
particulars which listed so many later events. Had the
Board been able to draw inferences as to purpose and
foreseeability of effects in the future from the evidence
earlier received concerning what occurred in 1956 and
before, that could be done without this hearing. This is not
to say that a hearing should not have been directed. But
new evidence which might conceivably have been offered
was not.
V. CHILLING PURPOSE
While we recognize the need for proof of chilling
purpose directed elsewhere, it appears that every action
taken to shut down Darlington would have been taken
properly and of necessity were there no purpose to chill
employees elsewhere.74 Unless it be shown that more was
purposed at Darlington by those who exercised control
over it than was customary and reasonably necessary to
liquidate the plant, a finding now of chilling purpose
elsewhere would be a per se finding: there would be no
need for additional proof concerning purpose with respect
to employees elsewhere.
Purpose can be proved directly by the testimony of the
very persons whose motive is in issue. Thus the General
Counsel called Roger Milliken to testify on this point.
(Milliken and the other directors of Darlington were
thereafter called by the Respondents.) But motive may not
be inferred from the foreseeability of various effects since,
as has been pointed out to us, action which has a
foreseeable consequence is not violative in the absence of
a showing of motivation. But if motive is not to be inferred
from foreseeable effect, actual effect a fortiori does not
prove motive.
We recall that Roger Milliken openly stated that he
would not continue Darlington in operation so long as a
hard core of 17 percent of its employees were prounion;
and that he told us that he deems a union "a detrimental
economic factor." It may be urged that the very frankness
of his declaration of attitude, upon which I and then the
Board based findings of violation, suggests75 that he would
have been equally frank had he acted out of concern for
other 'mills and with the purpose to affect employees at
other mills or businesses.
Admittedly, Milliken made no statement or reference to
other mills or employees to be affected in connection with
the Darlington shutdown.76 He had denied that he had any
such intent, whether or not in connection with union
campaigns, which were neither in being or shown to be in
the offing. To find intent, contrary to his testimony, we
must find facts from which we can reasonably draw
inferences contrary to his denial. Even if one did not
believe that he would frankly (perhaps intentionally to
achieve an effect, if that were his intention, which was not
declared a possible issue until 8 years later) have
mentioned his concern for the other mills, or credit his
denial with respect to their employees, we do not have
evidence to warrant a finding of the intent which the
General Counsel has here set out to prove.
Quoting a statement of intent from the dissent in the
court of appeals, and citing two cases with different facts
and even a footnote (all of that antedating this hearing)
from the Supreme Court's opinion in the instant case
which of course makes no such finding with respect to the
"entire industrial complex" here, the General Counsel
argues that Roger Milliken's financial interest in the
various mills plainly influenced his actions at Darlington:
the Respondents and "affiliated corporations" (the
"Employer" as defined by the General Counsel) intended
to restrain employees and to achieve future benefits at all
of the other mills. But if such an argument be valid and we
indulge in that presumption, we would be doing what the
Supreme Court or the Board could have done on the then
available record but did not do.
For the Court did not find violative motive although it
declared that intent with respect to the employees
elsewhere is a ground for finding violation even if single
employer status does not exist; and the Board on remand
did not rely on any such presumption of motive either in
whole or in part. In its order of October 25, 1965, the
Board declared that "the record as previously made is not
entirely devoid of evidence bearing on" purpose and
effect. If a quantity and quality of evidence of a "not
entirely devoid" modicum will suffice, and the evidence at
prior hearings, be deemed to bear on the issues; and if we
superimpose on that a need to show motivation "at least in
part," then was the lengthy promise of the bill of
particulars unnecessary, and our hearing also. Were the
problems to be solved by less than significant proof,
considering the wide potential here, the solution and
finding would lie in that declaration made before this
hearing. Presumably then we are to make findings and
conclusions with respect to substantial evidence of true
and more than incidental purpose and effect. The Board
has not remanded this case for me to find contrary to its
declaration, and I shall not presume to review it: my own
findings and conclusions will reflect the existence of
significant or substantial evidence on the record as
"supplemented" and as a whole. My own disinclination to
subscribe to a legal mathematics in which an inference of
"Publicity and Attorney Poag's activity are considered infra.
75 The possibility of this was greater at the original hearing,
when he attempted to justify the decision to close, which was then
in issue, and when there was no suggestion of responsibility or
purpose concerning other businesses, which is not in issue It is
far from inconceivable that Milliken or Poag, in contact with the
Union, would have indicated a purpose to hinder the Union's
efforts at other mills also Yet of the various statements charged
to Milliken in connection with and at the time of the Darlington
shutdown, such as his reference to a 17 percent hard core and
"resis tance to our program at Darlington ," not a single one
mentioned other mills
76 We shall again consider infra a 1956 magazine article and a
speech concerning mills previously closed and Milliken's attitude
toward unions
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
general purpose (becoming a form of per se claim) or of
multiplication of witnesses outweighs and is preferred to
much preparation and necessary witnesses, may not be
determinative. But where the Board made no finding
although it discerned evidence, neither will I find chilling
purpose or effect unless sufficient additional evidence is
submitted. The further hearing for factual proof would
have been unnecessary were the presumption or inference
now sought warranted.
If Milliken would not abide unionized mills and shut
down several such (now overlooking those which were not
organized but were nevertheless closed), what then?
Discrimination might in each instance or some of them
have been indicated-or not, because the shutdown was
complete.77 But if antiunion attitude existed in each case,
would it follow there-or here-that the purpose was to
chill unionism at other businesses? (We shall soon see that
the earlier findings herein did not cover prior shutdowns.)
Roger Milliken's attitude toward unions shown and
found earlier and again, it may be that, in earlier closing
other mills which were organized, his purpose was wholly
or in part to chill unionism elsewhere, Darlington
included.78 But aside from the fact that both organized and
unorganized mills had been closed, the testimony
concerning prior closings provided, if as much, no more
than did Roger Milliken's statement that he opposed
unionization because it entailed greater costs. The
motivation at Darlington was early in this case held to be
discriminatory and coercive at Darlington. But as at the
prior mill closings, an intent to chill unionism elsewhere is
something else; and it should be unnecessary to point out
that it is this latter which we must consider.
The prior closings are not themselves in issue here. It
can be and is argued that in closing mills earlier, both
unionized and nonunionized, and in closing Darlington, the
purpose was to chill organization elsewhere. But proof is
still necessary, and the fact of multiple closings does not
prove as fact a chilling purpose with respect to remaining
businesses. Were we to speculate or draw inferences from
the shutdown at Darlington by comparison with earlier mill
closings, it could be noted that a majority of the Darlington
employees, if fearful and affected, did vote for the Union,
as Oeland pointed out on cross-examination; they
disavowed it only after steps were taken to close the mill.
(This is not to say that they might not otherwise have voted
for the Union by a larger margin.) As we consider purpose
or motive, this apparent absence or insufficiency of effect
would not be overlooked by management, which could be
expected to be more forceful in any action taken for the
purpose of discouraging employees elsewhere if that were
its motive.
Even if the effect of prior mill closings had been to
discourage Darlington employees' organizational
activities, we would still be required to prove motive. If
vv We cannot ignore the possibility of valid and
nondiscriminatory reasons in those instances No more than
events after 1956 were earlier ones alleged or tried as violations
78 Thus it can be pointed out again that to the extent that we are
asked to draw an inference with respect to chilling purpose
elsewhere this could as readily be drawn, or not, on the basis of
the testimony received before this latest hearing Although the
Union won the election, events at Darlington may have been the
chilling effect of prior closings i
71 It could still be argued that such latter closings had a chilling
shutdown after an antiunion vote at Darlington could not
itself prove earlier motive, certainly the latter was not
proved by prior closings elsewhere. Bearing in mind that
other mills under similar control have been closed, some
unionized, others not, there is no suggestion that the
unorganized mills were closed to chill unionism
elsewhere;79 and nothing to indicate that the purpose or
reasons for closing organized mills were different. It is
quite as consistent with the evidence received to find that
the antiunion motive at Darlington and its closing were
directed only against its employees who had by majority
vote called for the Union, and of whom a 17 percent
prounion hard core remained; as that the closing was
intended to and did chill employee activities at other mills.
Finally in this connection, if all of this testimony does not
prove purpose to chill employees elsewhere at the time of
the several earlier closings, it is not clear how that
testimony proves purpose at the time of the Darlington
closing regardless of how many times it may be brought up
in these proceedings.
It may not be amiss to note, as declared in my first
report, that "Counsel for the Union ... charged Milliken
with lack of regard for employees' welfare and undue
concern with return on investment." Whatever the
competing emphases with respect to Milliken's purpose,
they were not directed and the issue was not raised toward
motive or concern with employees at other plants. The
quoted statement supports the Respondents' position here
and appears to answer the Supreme Court's inquiry.
To the extent that a direct report to supervisors or
others, or the absence of a report, concerning Roger
Milliken' s position may reflect on testimony that his
attitude toward the Union was declared by others as a
warning or threat to employees at other mills, the General
Counsel probed at length into supervisors' knowledge of
Milliken's attitude toward unions. We have noted
memoranda to mill officials. But the relationship between
Milliken on one hand and rank-and-file employees,
supervisors, and even top plant officials on the other
indicates that these latter had no personal or direct
knowledge of that attitude or the memoranda. One can
believe that, whether it be the reflection of reticence or
aloofness, Milliken did not commune even with his fellow
directors,B° as reflected in their testimony concerning
their limited discussions prior to the meetings at
Darlington at which it was decided to liquidate. Further,
we have Milliken's testimony on cross-examination that he
asked the people with whom he came in contact in the
Deering Milliken mills "not to discuss the Darlington
situation at all."
Thus as we come to analyze the testimony, we must
consider as a necessary element the extent to which
anyone who might be found to have interfered or offended,
were that in issue, could indicate motive attributable to
effect, etc., so that closings become per se violative-and in some
eyes they are Our concern remains with their lawfulness. Again,
we must not substitute preconception for proof that Darlington,
organized, was shut down with a chilling purpose and effect with
respect to employees at other mills or businesses.
so While steps were being taken to liquidate, two of the local
directors went to New York City to seek a purchaser for the entire
plant and to talk with Roger Milliken, without first attempting to
obtain assurance that he would be available They did not know
that he was out of the country at the time
DARLINGTON MFG. CO.
persons exercising control over Darlington. It may be
noted that the Section 8(a)(1) interference earlier"' found
against Darlington and not now challenged did not rest on
reference to the prior closings; and the violative findings
on the principle of respondeat superior reflected no
actually demonstrated purpose on the part of Roger
Milliken or any persons exercising control with whom we
are concerned.
Were violations at other plants directly in issue, the
principle of respondeat superior would apply, and the
respective other plants would be liable for their
supervisors' acts. It is something else to hold "the persons
exercising control" over Darlington (where their intent or
purpose is in issue), and through them Darlington and
Deering Milliken, liable in the second degree insofar as
purpose is concerned for the acts of supervisors at other
plants or businesses and in the absence of evidence of
authorization, prompting, or other connection, and aside
from the time of purpose, supra. An exception, because of
his close relationship with Roger Milliken and the various
mills, is Poag, attorney for Darlington and other mills,
whose acts are attributable to and who could be held to
show purpose with respect to such other mills.82
Nor was the General Counsel's case strengthened by his
questioning of Hatch, a director of Darlington for almost 50
years and a member of the Milliken family group. Hatch
testified on cross-examination that his reasons for voting to
liquidate were "more fundamental than the labor
situation ." It is clear that his experience and competence
lie in the financial field. While as agreed and noted supra
we are not here reviewing the reason for Darlington's
shutdown, Hatch's testimony lends no support to any
claim of chilling purpose and effect with respect to
employees of other mills.
Of the testimony of the other Darlington directors, on
the stand or by deposition'83 it may be said as was found
after the first hearing that their concern over the effect of
unionization of Darlington triggered the shutdown. If one
may no longer say that this was violative (and even were it
held to be violative), none of this testimony indicates or
remotely suggests a chilling purpose on the part of the
directors or any of them in the light of their interest in
other mills or businesses. Whatever foreseeable effect on
employees of such other businesses may be inferred or
otherwise found, there is no evidence that this was
intended or considered by Darlington directors, a group
which included all who exercised control over Darlington.
Repeated questions of the directors served only to
emphasize that action had been based on the expectation
heretofore found discriminatory that the Union would have
an increasingly larger voice in management of Darlington:
even if weak, it would insist on some economic
concession.84 However anticipatory an assumption and
81 We shall consider infra, testimony now submitted
concerning additional interference at Darlington Although it was
explicitly agreed at this hearing that , in fairness to the other side,
testimony at prior hearings would be relied on in connection with
the present issues only to the extent that it was cited before this
hearing closed , items not thus cited have now by brief been noted
by both sides with transcript references , not as prior findings.
12 What Poag said will be considered tnfra
93 Directed in detail on cross - examination to the motive of other
directors, the testimony of those directors who had no substantial
interest in other mills could be enlightening with respect to those
who did have such interest
84 It could be argued that the union majority was too slim to
1105
"built in" a reason for counteracting a union victory, this
was still apparently limited to Darlington. If any of the
directors were called unfeeling or unconcerned beyond the
economic aspects of the Darlington operation, this would
not show a chilling purpose with respect to employees
elsewhere.
No reason has been indicated for questioning the
testimony of various minority stockholders of Darlington,
whose financial interest was in the main limited to that
corporation, that they had no purpose to chill unionism at
other Deering Milliken mills, that their concern was with
Darlington, its employees, and the effect on the town, and
that they did not expect the amount of publicity
subsequently received. If this casts any reflection on those
in control of Darlington, it is negative as to chilling
purpose.
A different situation or possibility exists as to members
of the Milliken family who had substantial interests
elsewhere. But (here again) the facts and findings of stock
ownership and control85 were before the Supreme Court,
and were decision to be based on such facts or on an
inference therefrom, the Court (or the Board) could itself
have made the decision regardless of any determination of
the issue of single employer. The statements of purpose
are negative, and whoever would regard them with
skepticism cannot rely on them as proving the contrary.
The testimony now received from the Darlington directors
and stockholders supports the original finding that
Darlington would not have been liquidated in 1956 but for
the Union and its election victory.
As for any motive in publicity at or after the shutdown,
we shall consider infra whether this was purposed or
foreseeable on the basis of precedent or whether it was
sponsored, prompted, or encouraged by the Respondents.
So far from the testimony before us indicating that the
purpose was to chill unionism elsewhere, a contrary
possibility exists and argument could be made that, had
that been the purpose, those who controlled Darlington
and had both interest and purpose in other mills might
have attempted to accomplish that purpose by deciding to
continue in operation in view of the disavowal petition. In
such speculation, that the petition would not have
overcome the election result is beside the point here; it
does not appear to have led to consideration of the
possibility that disavowal followed by a speedy reversal of
the decision to liquidate might be very effective in chilling
unionism at other mills. Here as elsewhere we are
speculating: may have been, may not have been. There is
no proof or preponderance in favor of a claim of purpose to
chill elsewhere.
With respect to chilling purpose, the General Counsel
summarized: "Looking clearly to these realities [of the
testimony as he noted it], there is only one reason to close
enable it to insist or to make substantial demands on Darlington.
One can speculate to that effect ; or on the contrary , that the slim
margin might itself lead the Union to be more assertive by way of
proving itself and in order to gain additional employee support.
There is testimony of union promises of substantial improvements
in wages and changes in control. ("Economic circumstances" or
reasons for shutdown were noted in my first report, and the
finding made that to equate the Union 's election victory with
prevention of operation would create a built -in nullification of
statutory rights. The present issue is whether there was a purpose
directed toward employees elsewhere.)
e' These were limited to Deering Milliken mills The testimony
here has been no more extensive
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this plant at this time, and that is to make an example of it
to every other mill." Were Ito ignore the testimony to the
contrary, I could hold that this may indeed have been the
"only one reason," or merely one of the reasons for the
shutdown. But having found that the Darlington
liquidation was motivated by opposition to the Union
there, I cannot ignore the equally likely possibility that the
Union's election victory and Darlington's desire to cancel
it at Darlington (as the Respondents maintain and as they
have now been told that they lawfully can), as that desire
was emphasized, admitted, and found-that these alone or
in combination with the economic circumstances
prompted the shutdown, and not a purpose to chill
unionism elsewhere. The evidence before us does not
prove the latter purpose.
It is no easy task to prove purpose; and chilling purpose
may have existed. But it has not been shown.
VI. CHILLING EFFECT
With a finding that chilling purpose has not been shown
although necessary, one can anticipate a declaration by
the Board, or on further review, that it is deemed
unnecessary to consider findings or review the testimony
concerning chilling effect. But the time and effort spent in
the latter connection in both preparation and at the
hearing warrant analysis of the problems raised and the
more weighty portions of such testimony, in this and
subsequent sections.
The effect of hurling the stone of what would elsewhere
be called violative acts into the sea of labor relations may
extend in every direction and almost without limit.
Whatever effect we discover, it is our task to determine
whether any of it stemmed from the Darlington closing,
having been so intended. With widespread effect shown,
the problem of ascribing any recognizable or substantial
portion to the Darlington shutdown would be difficult. But
the difficulty has been magnified because our inquiry has
been limited: not only has there been no attempt at proof
with respect to businesses not "engaged in the same line
of activity as the closed plant" although Roger Milliken
and others exercising control over Darlington have
substantial interests in such businesses8a but, questions of
credibility aside, the testimony has been limited to a
relatively few instances at a few of the Deering Milliken
mills.
As already explained, but for the terms of this remand,
"I should have felt pretty clear about"87 any concern with
actual effect rather than tendency to interfere. But we now
have an antinomy which I shall not attempt to explain or to
resolve, pointing out only that, were tendency of the acts at
Darlington determinative, we have little more than we had
before the remand; and again that all parties proceeded
with evidence concerning actual effect. As we now
consider effect alone, it may help to add to what has
86 In view of the problem in identifying cause, it could
reasonably be argued that nonunionization of some other
businesses no more proves chilling effect of the Darlington
shutdown than persistence in organizational activities or
unionization of some, as testified to by Minot Milliken on cross-
examination , proves absence of such effect.
87 Mr. Justice Holmes, dissenting in Adair Y. United States, 208
U S.161,190
88 In closing argument the General Counsel denied the need to
"show chilling effect in each and every circumstance ," declaring,
"If others do believe this is necessary , we have to some degree
shown that ." This although, to persuade the Board to grant
already been said, supra, concerning tendency and
foreseeability.
"Foreseeable effect" is an ambiguous phrase. It may
mean actual effect which was foreseeable; or, equivalent
to tendency of reasonable expectation, it may mean
foreseeable as an effect, the emphasis being on
foreseeability rather than on effect. Without again
attempting to explain any impression of the Court's or the
Board's intent, the Board in its remand relied on the
General Counsel's bill of particulars, which included
instances of actual effect; and as we have seen, all
counsel" proceeded with testimony concerning actual
effect. This alone was the basis for receipt of testimony
concerning conversations between supervisors and
employees at other plants (and among employees alone).
Were we limited to the tendency of Darlington's acts to
interfere, we would not consider their actual effect
elsewhere (or at Darlington).e9
Furthermore, were the Court's concern with tendency
rather than with actual effect, it would be the tendency of
the acts committed at Darlington, which alone were in
issue under the pleadings; and as to such acts, the Court
or the Board would normally declare and find a tendency
to interfere (or no such tendency) with Darlington's
employees; or even, going to other plants, a tendency in
Darlington's acts to interfere with employees at the other
plants. In all of this the issue would be whether we could
find at Darlington or even elsewhere a tendency in
Darlington's acts, not an effect or tendency of acts by
supervisors or employees elsewhere. But such limitation
does not apply, nor has it been applied, under this remand
and the testimony offered under the bill of particulars.
Putting aside any question of common scheme and
consequent liability to remedy violations at other plants,
and bearing in mind that, on the mass of evidence before
it, the Board drew no inferences and made no findings
concerning effect elsewhere of what occurred at
Darlington, this hearing produced few additional facts
bearing on Darlington itself except with respect to
publicity given to the closing and to the extent that such
publicity could be connected with or deemed foreseeable
by Darlington or those exercising control over it.
Without suggesting that such inferences should or could
reasonably have been drawn, I point out, as supra with
respect to chilling purpose, that we have not been limited
to publicity which would naturally as a chilling effect
follow the Darlington shutdown, or to the tendency to
affect employees of other businesses or to lead supervisors
elsewhere to interfere, etc. We were directed to and took
proof, as counsel proceeded with testimony of actual
publicity, whatever its source and foreseeability, and its
effect on employees of other mills, such employees'
knowledge of the Darlington shutdown and the effect on
them, and acts and effect of interference and
discrimination by supervisors or others at those mills.
further hearing , he had at great length cited actual effect in his
bill of particulars. Facts cited to and relied upon by the Board as
probative and necessary should not be claimed before me to be
unnecessary. In any event , testimony concerning actual effect has
been received and cannot be ignored even if we might otherwise
be inclined to rely on tendency , inference , and expertise.
89 The statements by supervisors would in the usual case be
considered for their tendency to interfere where so alleged. But
within this remand , such statements can themselves be weighed
only as the actual effect of acts connected with the Darlington
shutdown, as the General Counsel urges , unless again we infer
tendency of a tendency.
DARLINGTON MFG. CO.
Aside from any question of admissibility of
conversations among employees, referred to on the record,
it can now be asked to the extent that we are concerned
with actual effect on employees and since the testimony
was offered to show that, what indication of effect of the
Darlington closing is there when employees say that they
believe their mill will close if it goes union? Would these
employees otherwise have supported a union, and would
they now reject it because of what occurred at Darlington?
(Because this last can so readily be taken out of context, I
repeat that we are now considering actual effect.) As we
shall further inquire, if they have been chilled, has it been
by Darlington, by other90 closings before or since, by union
announcements or reminders, by antiunion attitudes
throughout the area, etc. 791
Beyond this, if it be a violation to chill, how extensive
must that chilling be? One could speak of chilling effect if
only one of thousands of employees were shown to have
been affected; but the Court would readily have thus
defined the inquiry had it intended that, and the search
and testimony would have been similarly limited, as
suggested supra. Then, as the problem has earlier been
posed, how many employees, or what percentage of the
approximately 14,000 employed in the various Deering
Milliken mills besides the unstated number employed in
businesses in which the defined interest is held? If chilling
purpose were shown, there is no suggestion that the claim
of effect extends to less than all employees in the other
businesses. (Presumably, it would be "inferred" as to all.)
Is the effect, if found, with respect to some unstated
number or percentage, or must its extent reflect some
undefined substantiality?
Were we now told that tendency is still the test, we
should first discard (if we can) the testimony pro and con
with respect to actual effect. With that done, value
judgments would be made or conclusions drawn from the
acts committed at Darlington which have been in issue.
But then time has been wasted in preparation and in
hearing inasmuch as, except for the relatively few
additional items now presented, the tendency of such acts
to chill and interfere could as well have been found before
this last hearing. But further, we would face the more
serious objection that the testimony once received
concerning actual effect overcomes or bars any possible
contrary inference which might be drawn.
The right to draw reasonable inferences, especially on
the basis of expertise, is not to be gainsaid. But where
facts are adduced and they indicate a finding to be made,
there is no room for a contrary inference which might
otherwise have appeared valid. If expertise warranted an
inference of foreseeable effect on the thousands of
Deering Milliken and other employees, the showing that
the effect actually was inconsequential is overriding. The
testimony as a whole leads to this conclusion, and
necessary analysis can only argue for it. The valid
90 We were told that over a period of years textile mill closings
averaged 50 per year, with a reduction of some 300,000 jobs How
many of these mills were unionized and how their closing affected
other employees, we do not know.
9i Extended to include employees of other businesses bearing
the defined relationship , this proceeding is no substitute for an
inquiry covering the textile industry in the South and assessing
total liability for any conditions in the area
92 This has been noted supra, as bearing on motive when
Darlington was closed. We can no more say that there was no
effect at all than we can say whether and to what extent
1107
elements of implication and expert surmise which are
relied upon in finding reasonable tendency cannot blind us
to the facts received concerning actual effect once these
have been called for and received.
As we further search and speculate on the effect of
knowledge of the Darlington closing on employees of other
mills, we must consider, as Oeland pointed out, and
although this was not "union country," that prior closings
of Deering Milliken mills which were unionized had not
"scared" Darlington's employees from voting for a
union. 92
While the effects of chilling purpose may not be
contemporaneous, we recall that the acts whose purpose
and effect concern us occurred at the time of the
Darlington shutdown. But with little exception, we now
have no more evidence concerning such acts than we had
at the end of the first hearing. 93 Of the acts at Darlington
conceivably attributable to it or to Deering Milliken, the
only new evidence94 before us is in either of two
categories. The first is that concerning the extent to which
those acts (not others) prompted the publicity concerning
the shutdown; and this is indeed meager, as we shall see,
whether our concern be actual effect or tendency. The
second category is the testimony concerning remarks at
Darlington and other mills by Poag, attorney for the
various corporations. Considered infra among threats and
other interference elsewhere, Poag's remarks at other
mills will be distinguished from those of supervisors at
other mills.
It may be of interest to note parenthetically that, if
employees of other mills were in this proceeding found to
be chilled, the uses of adversity would be marvelous
indeed. There would be neither a finding of violation nor a
remedy as to those employees. But the chilling effect on
them would determine violation against Darlington's
employees and would presumably warrant a remedy in
behalf of the latter. This reflection will not be better
received with the realization that such problems should
have been considered many years ago at or before the
commencement of this litigation so that the entire concept
and offense could have been properly tried.
A recent and very different case may help to portray the
strangeness of the situation before us. In Acme Markets,95
besides locking out employees in a multieinployer
bargaining unit, as it admittedly could, the respondent had
locked out nonunit employees. The discrimination there
alleged was against employees who were before the Board,
and their employer was the respondent in the case. Citing
American Ship Building96 and holding that the employer's
purpose had not been "to injure a labor organization or to
evade its duty to bargain collectively," the Board ruled
against the contention that the employer had
"discriminated in the terms and conditions of employment
of these nonunit employees in order to discourage unit
employees from engaging in collective bargaining....
employees may have been affected by any of many possible
causes
93 Later events at other mills , which affected employees, are
considered infra although alleged to be themselves only the effect
of the acts at Darlington which concern us.
9' We shall refer infra to seven instances of interference
alleged, three of them in the presence of employees
9s Acme Markets, Inc., 156 NLRB 1452
90 Local 374, Boilermakers [American Ship Building Company]
v N.L R B., 380 U S. 300,308.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the issues in Acme were quite different, remedy
there could have been imposed in favor of the other or
nonunit employees, who were before the Board; and a
purpose to injure the union and to evade the duty to
bargain by affecting and discouraging unit employees, as
alleged, could have been found. In the instant case,
Darlington's employees could not be affected (except by
recent declaration of law) by what was done or intended
elsewhere, and the remand does not suggest that they
were or could be. The remoteness here is underscored by
the absence, as we have seen, of any possibility of a
finding of loss and remedy in connection with any
testimony offered under this remand. Yet a purpose and
effect would vouchsafe a remedy for them. The employer's
purpose in Acme was with respect to employees before the
Board; the purpose sought on the instant remand is that
with respect to other employees concerning whom there is
no allegation of interference, discrimination, or refusal to
bargain.
Insofar as "specific evidence of intent" is concerned, as
considered in American Ship Building, that and
discrimination have herein been found. But with its
distinction between partial and complete shutdown as
violative, the Supreme Court has now introduced the
question of intent vis-a-vis employees elsewhere.
We have previously referred to the effect of prior
closings as conceivably suggesting a purpose to those
who controlled the Darlington closing; but also that
Darlington employees nevertheless voted for the Union
although the earlier closings may have had some
unmeasured effect. We now set out to measure or note the
effect of the Darlington closing on employees of other
mills.
There may be in any business a natural and even
foreseeable effect from "stranger" closings anywhere, not
at all related. Indeed, earlier events in the history of labor-
management relations may have a chilling effect, the
extent varying with passage of time and nature of the case,
among other factors. But even if we cannot ignore it, we do
not at this hearing consider the possible chilling effect,
violation, and remedy with respect to employees of
businesses in which the now defined interest does exist,
resulting apart from acts at Darlington from their
supervisors' statements or knowledge otherwise obtained
by the employees (as via newspapers) of discharges and
shutdowns at stranger businesses . While there is no
suggestion that such stranger mills are now to be held
liable even if responsible for chilling employees at Deering
Milliken mills or businesses related through those in
control, can we measure or assess the respective
responsibilities for chilling those employees? Or, again,
are we to "infer" effect from any business with respect to
which the issue has been extended?
For example , quite near at hand and relevant in this
context is the longstanding opposition to unionization by
another textile manufacturing corporation cited by Hogan,
a former shift supervisor at Pacolet, of whom more infra.
Asked by the General Counsel to explain how he "knew
they didn't want [a] union" when the Teamsters
attempted to organize other mills in 1961, Hogan testified,
"Well, everywhere they go they fight them." While he
declared that he could not " at random" identify the
91 If an element of judicial knowledge enters here , the parties
may within 10 days move to reopen on this point.
98 That publicity is not before us
companies to which he referred, he did name J. P.
Stevens, very well known in the industry and among the
residents of the cotton textile manufacturing area.97
Before the recent publicity concerning unfair labor
proceedings involving the latter company, its opposition to
unionization as well as opposition by the industry
generally, including Deering Milliken mills, was widely
publicized by the Charging Union, as by notice of
organization campaigns, etc.98 If the Union has sought in
this manner to obtain employee support and to encourage
union activity, we cannot charge to the Respondents the
resultant employee knowledge and fear of company
opposition to union activities. It becomes increasingly
difficult to determine how much if any such fear resulted
from the Darlington closing, and how much from the
widespread opposition thus advertised. (We shall return,
infra, to the issue of publicity.)
In short, if we are concerned with chilling effect on
employees of Deering Milliken mills to the extent that such
effect was intended by those who controlled Darlington,
can we ignore the question of the extent to which those
employees were chilled by other events including unfair
labor practices anywhere even if the latter were not
intended to chill here? Can we measure the effect of such
violations, or can we attribute any observable effect here
to those who controlled Darlington rather than to stranger
businesses and their acts?99
While we shall say more with respect to publicity given
to the Darlington closing and with respect to the testimony
concerning the effect on specific employees of acts
connected with Darlington, Hogan's testimony, with the
suggestion that he withheld more, bears on the problem of
multiple cause for any chilling of employees. Hogan gave a
statement to the General Counsel, then refused to talk to
him again and was hostile when called as a witness. It does
not appear that the Darlington closing had chilled Hogan
(certainly not when he first spoke with the General
Counsel not long before this hearing), who had quit at
Pacolet, "had an ax to grind," and had thus given a
statement to the General Counsel, which he now
repudiated. It does appear that he was thereafter chilled
by fear that his wife and other relatives employed by
Pacolet would lose their jobs because he had given that
statement. Whether or not Hogan's fear was reasonable,
such fear of reprisal by the immediate employer (Pacolet
in this case) may not be unusual ; but to whom is it
chargeable? Also possible and a factor to be considered is
insecurity which stems from the closing of any other mill:
in this case another Pacolet mill, #3, which was not
unionized and was closed after Darlington; or the
Darlington closing; or indeed from knowledge or an
impression of opposition to unionization throughout the
industry in the South. To say that fear was caused or
heightened by the Darlington shutdown is to assume the
effect which needs to be shown.
Hogan testified that after Pacolet #3 was closed, he
heard his neighbors say that Milliken "would not operate a
plant under a union ." However well or ill founded their
impression , which does not appear to have been connected
with the closing of their own nonunionized mill, were
Hogan's neighbors chilled when they worked at Pacolet
and because Darlington had been closed? Or were they
99 We do not have any such problems of isolating, before we
measure or infer, where the issue is a respondent 's liability for his
own or his agents ' acts (without any question of secondary effect)
and the tendency of such acts to interfere
DARLINGTON MFG. CO.
chilled because Pacolet was closed? Or were they chilled?
The same questions remain unanswered: Were employees
at various mills chilled and, if so, by activities at their or
other plants in the region, or elsewhere? Whatever
conditions existed at Deering Milliken mills, at other mills,
or at other businesses related by controlling interests, are
these ascribable to the Respondents? We cannot say that
any fear which existed stemmed from or was an effect of
the Darlington closing.'
As with purpose, so with effect: One can easily enough
"understand" or "imagine" certain purposes and effects.
These are other words for "infer." But here also, even if an
inference and the basis for drawing it appeared valid, the
Board did not deem an inference warranted when it
remanded for proof. That proof has not been provided.
Finally, as we consider chilling effect generally, while
the Supreme Court has referred to the possible
consequence that an employer may be encouraged to shut
down, another interesting consideration is the chilling
effect on employees elsewhere and everywhere which is
created by a decision, as here, that a shutdown may not be
violative. No more foreseeable by Darlington, Deering
Milliken, or Roger Milliken at the time of the acts in issue
than by counsel or the Trial Examiner at the first hearing
or by the Board itself some years later was the Supreme
Court's decision which, with the further delay entailed and
the surrounding publicity, could itself effectively chill
organizational activities at other businesses.
Despite such possibly very effective chilling because of
the duration of the proceedings, the Respondents would
not be held responsible therefor. On the other hand, with
respect to finding violation based on a shutdown because
of "protected" concerted activities, it remains the
declared policy of the Act to encourage collective
bargaining and to protect "the exercise by workers of full
freedom of association, self-organization, and designation
of representatives of their own choosing."
What has been said generally to this point concerning
the significance of chilling purpose and effect and the
absence of proof could dispose of this inquiry. But the
issues being of first impression , and with the possibility of
different appraisals, I shall continue with analysis of
testimony received.
VII. PUBLICITY
To show chilling effect and the Respondents'
responsibility therefor, more than 200 newspaper articles
referring to the Darlington closing were received in
evidence together with circulation figures for the
respective newspapers. The General Counsel did not rest
on this evidence with the claim that it should be inferred
that employees at other mills read the articles and that, in
the language of the Supreme Court, they were thereby
made to "fear that [their mill would] also be closed down
if they persist[ed]2 in organizational activities." As in
' The facts, the possibilities, and the inferences to be drawn are
as referable to rank-and-file employees as to Hogan. We cannot
assume that others were not available as witnesses for the
General Counsel because they had been chilled, specifically by
the Darlington closing That too would be an assumption of the
very answer to our inquiry.
8 "Persist" implies a sometime existing activity, with limited
exception, this has not been shown Without intention to slight the
language of the Court, my findings are not restricted to a
requirement that a previously begun or intended activity be
1109
other respects, he undertook to establish actual readership
and effect. Aside from the question of responsibility for
such articles and for their effect, the proof of readership
and of effect is so slight as to indicate that the inferences
sought would be unwarranted and erroneous.
The Respondents also relied on many articles, some
already designated by the General Counsel, and various
circulation figures. I have considered all of the clippings
submitted by both sides, and particularly those or those
portions which have been cited to me as material to the
issues. It was also noted that between September 1, 1956,
and April 1, 1957, newspapers in several Deering Milliken
mill areas made no reference to the Darlington closing. I
do not suggest that failure to cite specific articles in briefs
or argument indicates abandonment.3 But in this
connection I see neither need nor requirement to go
beyond the details cited by counsel themselves; nor
indeed, considering the circumstances noted concerning
such publicity, to include here some details cited by the
Respondents.
If counsel rely on general and all-embracing factors in
the publicity, I agree, as will be seen. Thus, aside from any
question of responsibility for a story and the language
used, it is clear that a great deal could be argued pro and
con concerning the possible effect or tendency of various
articles.
Taking at random one paper cited by the General
Counsel, which carried two related stories on the same
page, the first of these quoted a union organizer declaring
that the threat to close was mere propaganda to discourage
the calling of elections at the other plants and "to put fear
in the minds of people now at Darlington." The organizer
also stated that relations between Darlington and its
employees had been poor. In the second of these articles,
it was pointed out that the closing would cause both the
city and county to suffer economically, the mill being the
city's second largest taxpayer. On one hand it can be
argued that the effect noted in these articles is on
Darlington employees only and their community. On the
other hand, such stories, communicated to employees
elsewhere, could chill or prevent their union activities.
To take an article cited by the Respondents, one
evening daily, reporting the stockholders' approval of the
proposed liquidation, declared:
It was decided, however, to lessen the employment
hardships, to offer the physical assets of the plant at
auction Dec. 12-13, it was announced.
It might be urged that an intent "to lessen the
employment hardships," if accurately reported, would
indicate a purpose not to chill and a nonchilling effect. On
the other hand, who can say what the purpose is and the
possibile effect of reference to employment hardships?
As much, or as little, could be said concerning later
articles. Not only arguments but inferences also could be
urged pro and con, multiplied several hundred times with
little if anything to commend one finding over another. The
shown Whether in publicity or in connecion with any other
element cited , we can broadly include, as we do throughout, the
issue of purpose and effect to chill employees' organizational
activities at related businesses Thus I do not adopt the Deering
Milliken argument , reasonably based on the Court's language,
that an organizational campaign at another mill must be "actual or
threatened" or "simultaneous" to bring the case within the rule
laid down by the Court . But whether such a campaign appears to
be imminent or threatened (within what period?) may bear on the
tion of intent at the time of the shutdown
3 Cf Berger Polishing, Inc., 147 NLRB 21, 33
299-352 0-70-71
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer is indicated by such considerations as authorship
and responsibility, chilling purpose, and effect. Thus,
unlike the situation after the second hearing, when
hundreds of documents were cited in the Trial Examiner's
report because their very language, authorship, and
circulation explained the relationship then under
examination, the articles here received in evidence can be
cited as a group with respect to their tenor, circulation,
and with few exceptions, their source, without separate
and specific references. As for special significance, if
there be any, of particular articles not otherwise referred
to herein, it has not been indicated-and this is scarcely
the time to commence a search for significance.
The nature and extent of radio4 or television coverage of
the Darlington closing (as distinguished from the chart
showing stations) and the stations' viewer ratings remain
unknown to us. Although included in the General
Counsel's bill of particulars with its promise of proof,
these are understandably not mentioned in his brief unless
it be deemed included in the phrase, "the scope of the
news media."
In appraising the foreseeable effect of the publicity, we
must consider the nature and extent of such publicity as
stimulative or productive of any effect, this being part of
the basis for evaluating any tendency to affect or
foreseeable effect; and also, as does the General Counsel,
the employees allegedly affected, and their readership and
general interest as indicated. The question is not how any
employees or people anywhere would be affected, but how
these mill employees would foreseeably be or were
affected; as they were observed and as they tend to react
on the basis of their reading interest and general
knowledge of and concern with Deering Milliken and
Darlington events. The forseeable effect of a stimulus
depends on the persons stimulated, as the record here
portrays them and as I observed them.
In reply to the Respondents' objection that the articles
cited were hearsay, it was explained at the hearing that our
concern is with the purpose and effect of the articles;
whether the statements made be true or not, their effect is
not hearsay. If the Respondents' responsibility for
publication be shown as reflecting their purpose, and with
it a chilling effect on employees at other mills or
businesses as defined, we would have chilling purpose and
effect chargeable to them. For whatever it does show, the
publicity is properly before us.
In its remand order the Board pointed out that the
widespread publicity5 given the Darlington shutdown and
the knowledge of the shutdown obtained by employees of
the Deering Milliken mills appeared relevant to the issue
of foreseeable effect. Perhaps in reliance on this reference
to effect alone (not purpose), the General Counsel
appeared at one point to claim only, as I noted on the
record when he referred to the many newspaper clippings
and offered the summary exhibit, that the articles show a
chilling effect. Indeed, it would be difficult to claim that
4 Scarcely challengeable and as scarcely probative are
statements by a few employees that they heard or thought they
heard of the shutdown, over the radio
By whom the publicity cited in the bill of particulars was
given was not at that time considered.
s Aside from the rule that effect without motive is not violative,
I insert the reminder because of the length of this decision that I
have not overlooked the General Counsel's claim that purpose
and effect go together . At the moment the problem is whether,
the many articles themselves shows a chilling purpose at
Darlington for that would be to argue that, if the shutdown
was otherwise lawful, those who controlled it should have
desisted and were obliged to continue operations if they
had reason to foresee that others would promote publicity
concerning it.7
But no more than the effect can the amount" of publicity
given the Darlington shutdown be determinative of any
issue here unless shown to be foreseen and purposed.
True, a shutdown of an important employment factor in a
small community will receive publicity in the area and
perhaps throughout the industry. Were it argued that this
must affect employees elsewhere and that the intent to do
so is to be presumed, it would call for a per se finding that
Darlington could not be closed. The Board has not made
such a finding of purpose and effect, nor can I. On the
other hand, no attempt has been made to compare the
amount of publicity received with any so-called normal
quantity. If in fact it was only " normal ," a finding that
such an amount reflects a chilling purpose would leave no
alternative but continued operation regardless of the
absence of actual chilling purpose, lest a shutdown receive
normal publicity and be thereupon declared violative !
While the situation is different where there are common
controlling interests, similar objection must be noted to
the requirement of continued operation (where shutdown
would otherwise be found lawful) if the alternative be an
uncritical finding of publicity with an inference of chilling
purpose.
One can expect some correlation between proof of
intent or motive to chill employees elsewhere and the
extent of publicity and number of releases issued by the
Respondents through news media availed of by employees
of other businesses, including other Deering Milliken
mills, in which the persons exercising control over
Darlington had a substantial interest. Yet Roger
Milliken's9 testimony concerning his attitude, his purpose,
and his acts with respect to publicity stands
uncontradicted and unshaken. On cross-examination he
testified that, because the Union had won the election, he
did not expect it to file charges concerning the election;
and that he did not think that he had considered that the
Union might file charges in connection with the liquidation
of the plant. He had earlier told us that he had thought it
best that "the absolute minimum" be said about the
calling of the stockholders' meeting to liquidate, and that
he "did not comment at all" when queried by the press
between the directors' and the stockholders' meetings. It
was later brought out that he asked those with whom he
came in contact (presumably the mill treasurers, Poag,
infra, and others who appeared at various mills) " not to
discuss the Darlington situation at all."
A trade paper published in New York City (not one of
the newspapers here cited on the issue of chilling
employees at other mills) reported Milliken' s statement on
September 12, 1956, that the directors had that day
despite the Court's call for proof of motive, chilling purpose flows
from or can be found from a showing of chilling effect.
9 In addition to this, we have such questions as foreseeability of
publicity in the light of earlier closings, sources of and
responsibility for the articles, and, of course, the chilling effect on
employees elsewhere
s Reference was made to a "whittling down" from 350 articles,
including substantially similar ones, to 225
s No attempt has been made to connect publicity concerning
the shutdown with others who controlled Darlington.
DARLINGTON MFG. CO. 1111
unanimously recommended that the stockholders vote to
liquidate at a meeting to be held on October 17, and that
"Mr. Milliken had no further comment." Immediately
after the stockholders' meeting, Darlington issued a news
release which was published and which included a partial
inventory of assets to be sold. Milliken explained that he
hoped thereby to gain publicity for the sale.
The third and only other statement which Milliken or
Darlington (Deering Milliken's connection is vicarious or
to be imputed) issued, even if it be regarded with cynicism
and as self-serving although long before the current issues
and investigation, recited some of Darlington's economic
history and the purpose to make the mill ready for sale at
the earliest opportunity so that, if it were sold as an
entirety, its people would still be available to run the plant
and, if piecemeal, so that new industry could quickly be
attracted and the serious economic effects minimized. We
do not know whether this statement was published in any
newspapers.
None of these evidence a purpose to chill employees
elsewhere. Nor had publicity in connection with prior mill
closings indicated that there would here be either a mass
of publicity or a chilling of employees elsewhere thereby.
Mill Treasurer Oeland told us that, when reporters asked
for a statement, he would tell them that he had nothing to
report; and that when he joined in the directors'
liquidation recommendation to the stockholders, he did
not expect the quantity of publicity which was thereafter
generated.
The General Counsel has not disputed the Respondents'
summary that, of the mass of articles cited in these
newspapers, only three emanated from or reported
conversations with Roger Milliken. Some reflect a normal
(an undefined term) and foreseeable newspaper interest
reflected in the writers' initiative. Many are attributable to
the Charging Union (or the Teamsters). These cannot be
held to be a foreseeable effect of the shutdown, and I
would not base on them any liability by the Respondents.io
The bill of particulars submitted to persuade the Board to
reopen the record for further hearing and testimony, lists
many newspaper stories and editorials but disclaims
knowledge of the extent to which the Respondents are
"immediately" responsible" for their publication or
circulation. We have just seen that no more than three
articles represented press releases or statements by the
Respondents.
The Respondents did not purpose or intend the publicity
received and, as we have seen, could not from prior
closings have foreseen it. Aside from any question of duty
to take different action, it does not appear that they
foresaw or were responsible for the publicity indicated.
If the Respondents were not initially responsible for the
publicity concerning the Darlington shutdown, did it
become their duty to make disavowals, and does the
absence of disavowals indicate the necessary chilling
purpose? The General Counsel may have in mind his
disclaimer of the Respondents' "immediate"
responsibility as he cites publicity and "the picture thus
portrayed of the Employer," and points out that "the
Employer never disavowed the image publicly attributed
to it." Despite this apparent claim that disavowal was
necessary, he does not argue or cite authority to show the
existence of a duty to disavow although that issue was
raised at the hearing. It may be advisable to cover this
point since argument on it may yet be made and received.
The Board has long held that an employer is not liable
for an alleged threat not otherwise shown to have been
made but reported in a newspaper article which he failed
to disavow.12 In the instant case the publicity cited centers
mainly on alleged attitudes as appraised and reported by
others. To the extent that Roger Milliken, by sending a
copy to mill treasurers, adopted an article which indicated
his admitted opposition to unionization, we must keep in
mind that our concern is with a purpose to chill employees,
and the effect; and it does not appear that any such article
was by him intended for or directly or indirectly
distributed to employees; he would have neither reason
nor obligation to make disavowal to them. is
It should be unnecessary to point out that our issues are
different from that of failure to maintain laboratory
conditions for an election, which can be found without
responsibility of the parties involved but, where effect on
employees is declared, on the basis of third party
statements and advertisements for which the "editors and
other, unidentified, third parties" are responsible.14
Coming now to the chilling purpose and effect of the
items cited, we note the application of what has already
been pointed out with respect to purpose and effect
generally: We must find that publicity and readership
were purposed and foreseeable by those who controlled
the Darlington closing; and then that the effect of such
foreseeable publicity on employees of other mills was itself
purposed and foreseeable. As with respect to testimony
concerning other events, however, testimony by an
employee of another mill that he read and was actually
chilled (without the element of chilling purpose) by
newspaper articles does not prove earlier motive.
The General Counsel, brought out that it was a
reasonable assumption' 5 that the employees at other mills,
and specifically at the nearby Hartsville mill, would know
of the Darlington shutdown. From this he argues that
chilling intent (in addition to effect 16) is to be inferred
from the fact that the shutdown was nevertheless
consummated. Thus somewhere between the absence of
immediate responsibility of the Respondents for the
publicity noted and the assumption that what happened at
10 Not only is issuance of releases by the Union not chargeable
to the Respondents , but it suggests that the tendency of the
publicity, and certainly its purpose , would be to encourage
employees' organizational activities , not to chill them
11 Neither has any "mediate" or secondary responsibility been
shown
11 Vermont American Furniture Corporation, 82 NLRB 408,
Byrds Manufacturing Corp., 140 NLRB 147
11 Cf Standard Coil Products, Inc, 99 NLRB 899, 914, Bibb
Manufacturing Company, 82 NLRB 338; Hamburg Shirt
Corporation, 156 NLRB 511, Lake Butler Apparel Company, et
al., 158 NLRB 863, Monroe Auto Equipment Company, 159 NLRB
613. Cf also Henry I. Siegel Co, Inc., Case 26-RM-179, Decision
on Review, June 28, 1966, where the employer made no attempt to
disavow after having facilitated distribution by another of material
which inhibited employees from freely exercising their choice in
an election
14 Universal Manufacturing Corporation of Mississippi, 156
NLRB 1459, Proctor-Silex Corporation, 159 NLRB 598.
11 As the examination continued, the witness told us that he
gave "no consideration " to the shutdown as impeding
unionization of other mills
16 We are reminded that, in line with his argument that they
"went together," the General Counsel treats purpose and effect
simultaneously, and cites publicity and Roger Milliken's
awareness of it under the combined heading
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Darlington would be known" to employees elsewhere, the
Respondents have allegedly become guilty of chilling
purpose and responsible for chilling effect.
Once again, this proves too much, the argument being
that publicity is to be expected and, whatever the actual
motive and legality of the shutdown, its effectuation
proves the existence of a chilling purpose. In short, given
publicity, including presumably that which emanated from
the Charging Union, of which there must necessarily be an
awareness or expectation, there could be no shutdown
unless there had been a chilling purpose-an inference
which could as well have been drawn from stipulated facts
and without a hearing.18 As for a foreseeable chilling effect
of the publicity stipulated to, the same objection lies to a
per se or built-in inference based on the fact of publication.
We shall consider the extent of the publicity; that it is not
chargeable to the Respondents, we have seen.
If a great deal of publicity followed the first steps taken
to liquidate Darlington and the ultimate liquidation, much
of it prompted by the Union, any excess over the "normal"
did not emanate from and does not reflect a chilling
purpose by the Respondents. No duty was thereby
imposed on them to call off the shutdown. Whatever their
purpose before, an "overwhelming19 amount of publicity,"
in the General Counsel's words, not purposed and not
chargeable to the Respondents, neither changes nor adds
to the other evidence received on the issue of purpose.
Beyond the possible inferences from the extent of the
publicity and the circulation or coverage of various news
media, and aside from any question of the Respondents'
responsibility therefore with respect to either chilling
purpose or effect, we must consider the facts as indicated
at the hearing concerning actual readership among
employees of other mills.
The General Counsel's reference to "The Employer's
Public Image," if convenient, can be misleading. The
Supreme Court has remanded for consideration of the
foreseeable effect on various employees. Thus whatever
portion of the public received the image from a November
1956 magazine article and a speech by Roger Milliken in
January 1956, 2 months before the beginning of the
Union's campaign at Darlington, which image the General
Counsel details, there is no evidence that rank-and-file
employees were acquainted with or affected by either of
these. At the moment we are merely reviewing items
which were considered many years ago and which do not
adequately substitute for the evidence called for now.
The background of Milliken history has been cited time
and again. Whatever may be said about it, we can now only
find that it has not been shown to have affected employees
at Darlington or at other Deering Milliken mills. The
testimony received at this hearing indicates that employee
interest at other mills has been confined to their own place
of employment; in fact, it does not appear to have
extended to jobs beyond their own. (This is a problem
which has faced the Union.) No more than their knowledge
of circumstances at mills earlier closed, whether in Maine,
New York, or Alabama, and whether unionized or not, can
11 This would dispose of the issue of chilling effect if it were
necessary to show only that there was some effect, however slight.
is The argument for such built -in purpose is no more
persuasive than was that for the built - in cause for shutdown when
made at the first hearing or as since recognized in the case of a
complete closing to counteract organizational activities
19 This is more than the General Counsel would have to prove
It is doubtful that the Supreme Court, referring to chilling effect,
called for proof that employees in other businesses were
their knowledge of Darlington be cited or facts which
indicate that they were affected by it. If one could hazard
the guess that, of the thousands of employees with whom
the Supreme Court is concerned, one did read America's
Textile Reporter or the report of Roger Milliken's early
speech, it is not of such stuff that proof of effect on rank-
and-file employees consists. Here again, Roger Milliken's
attitude toward unions is different from a purpose on the
Darlington shutdown to affect employees elsewhere; and
we must also consider the effect, not on businessmen or
another segment of the undefined "public" (as in "public
image"), but on employees of other businesses as
described, a specific, extensive, yet limited portion of the
public.
Were it in issue on a complaint of interference with
employees of other mills (to this point we would have no
more than intent , neither sufficient nor relevant), and were
it responsibly brought to the attention of such employees
(a necessary element for tendency to interfere), Milliken's
January 1956 Kiwanis speech would constitute
interference with those other employees' protected
concerted activities. But the use to which the speech
would be put in the instant proceeding is quite different.
Not claimed to constitute interference, and not brought to
the attention of those employees, the speech is cited as
evidence of a purpose to chill them effectuated in the
Darlington shutdown. But that is the argument that,
because he opposed unionization, Milliken purposed to
chill other employees when he effected the Darlington
shutdown. This argument covers the element which the
General Counsel must prove and as has been pointed out,
were it sufficient, we would have no need for proof since
the opposition20 and the shutdown are admitted. Whether
we would rely on the speech or on the admitted opposition
to unionization, we have been asked by this remand for
more than an inference that the intent at Darlington
extended to other businesses.
Called by the General Counsel or by the Respondents,
various mill employees indicated limited readership of
newspaper articles and notices and limited knowledge of
the Darlington shutdown, to the extent of ignorance as to
who owned Darlington, much less of any common control;
their testimony indicated lack of interest, not any chilling
by what had occurred at Darlington. The greater interest
and knowledge of the Darlington closing displayed by
supervisors in response to questioning is not here relevant.
A fair conclusion to be drawn from the testimony in this
respect is that rank-and-file employees' readership
generally is less than cursory, being virtually nonexistent,
and that the attention paid to such news or reports rises
with responsibility in the plants. We need not now
establish which is cause and which is effect; concomitance
is clear. This is not to say that employees are not
interested in events at other mills although some
questioned about such events did not indicate even an
interest. The testimony shows that the concern over
events at other mills is limited and neither stems from nor
is dependent on newspaper reports.21
overwhelmed.
20 Citing the Kiwanis speech and other statements , the Gen-di
Counsel has himself noted that Milliken's appraisals of
employees ' uncooperative attitudes "were in earlier testimony of
his, in regard to why he closed Darlington."
21 Conceivably the Respondents might have purposed oral
discussion and rumors among rank - and-file employees of related
businesses . But the testimony concerning such discussion,
received as noted supra , is minimal.
DARLINGTON MFG. CO.
We have seen that the Board did not feel warranted in
employing its expertise to determine the tendency of
Darlington's acts, previously testified to, to interfere with
employees at other plants. For this there would be neither
precedent nor anything more than theorizing, albeit by
experts. This would be a more remote expression of the
tendency of Darlington's acts since it would depend on the
intermediate reporting to employees elsewhere, who are
admittedly more remote than Darlington's employees
themselves.
With evidence now received concerning publicity,
circulation figures, and actual readership among the rank-
and-file employees of the various mills, inferences could
be drawn with respect to the tendency of the articles to
chill. But here again expertise and inference must give
way to the evidence received concerning the actual effect
of the publication or of the acts as publicized on mill
employees elsewhere.
Like the Board, the General Counsel did not rest on
inference, based on expertise, from the fact of publicity to
the extent that it might be shown by statistics and charts.
He sought to prove actual effect of such publicity, and to
this end called witnesses, but very few, whose testimony
even if multiplied as typical virtually barred a finding of
chilling effect. Any possible inference of effect on
employees elsewhere, which might now be drawn even if it
was not earlier , is thus negated by the actual proof
received.
Even were the effect of publicity considered without the
element of chilling purpose, we should be reluctant, and
with good reason, to charge any untoward effect on the
basis of these news reports; or to attempt to evaluate the
effect of stories of union gains or defeats, advantages to
employees, or losses suffered. To the extent that some
publicity can be foreseen, it would indeed be anomalous if,
quite apart from the lawfulness of given acts, one had to
fear publicity given to such acts (if they were committed
with a certain intent 22) under that freedom of the press
which is constitutionally ours; or if what is declared lawful
but for such publicity becomes unlawful when publicized
among strangers to the proceeding who were never within
its purview or within the indicated consideration of the
parties.23
Beyond noting that the responses received indicate that
some mill workers, subscribers among them, do not read
the newspapers, and that the interest of others does not
extend to news reports and editorials like those before us,
we need not detail the clippings submitted to show the
publicity given to the Darlington closing and the effect
thereof. As for purpose, the General Counsel's disclaimer
of knowledge of the extent to which the Respondents are
immediately responsible for their publication or
circulation was well advised; no greater than his
prehearing knowledge has been his proof of the
Respondents' responsibility for the newspaper stories
which he has cited.
22 Cf. Ginzburg, et al v U.S , 383 U.S 463, where purpose as
well as direct dissemination were found.
23 In connection with any attempt to evaluate the publicity
here, an interesting factual contrast can be seen in the recent
Universal Manufacturing Corporation of Mississippi case, 156
NLRB 1459, in which the Board set aside an election because of
the nature and extent of the publicity and other community
action.
1113
There is no basis for finding that the Respondents
purposed or planned the publicity (such action being the
sine qua non of the effect inquired into and the benefit
allegedly sought) when it was decided to close Darlington.
Not only did the Respondents not sponsor or promote the
mass of documents which have been submitted, but aside
from any "natural" or "normal" publicity which might
have been foreseen (it was not shown to have been marked
in the case of liquidation of other mills, unionized or not, in
which the Milliken family had a substantial interest), it
appears that a considerable amount of publicity originated
with the Union. We have seen that there was no obligation
on the Respondents to disavow the product of newspaper
writers, not solicited by them; and certainly not to disavow
items sponsored by the Union. Whatever the effect of the
publicity, and even. had there been a coercive effect on
employees elsewhere, the Charging Union could not by its
own acts impose upon the Respondents a liability for any
effect, much less for motive.
VIII . REFUSALS TO HIRE
Whatever has hereinabove been said concerning
tendency to affect rather than actual effect, there is no
issue or question here about any inference which might be
drawn that Darlington employees would not be employed
at other Deering Milliken mills. The General Counsel, in
his bill of particulars, claimed such'actual refusals, and he
called witnesses to testify concerning them. While the
testimony pro and con will be analyzed in deference to
possible interest on review, certain principles which
appear to dispose of these items will first be mentioned.
Even refusal, if shown to have been purposed at
Darlington, to hire former Darlington employees at other
mills would not establish chilling effect or a tendency to
chill employees of other mills. The General Counsel would
also need to show purpose at Darlington with respect to
the hiring of its employees elsewhere, and also that such
purpose was by Darlington or someone else responsibly
communicated so that it affected other plants' employees;
and this we must consider.24 Discrimination in refusal to
hire former Darlington employees, were it shown, is not
discrimination against or chilling effect on employees at
other mills. The General Counsel, attempting to show what
would amount to discrimination in refusals to hire at other
mills, has not claimed, much less attempted to show that
the subjective response or reaction of applicants
constitutes chilling effect on employees of other mills,
which is the proof called for by the Supreme Court.
Neither has it been suggested that Section 8(a)(3)
discrimination lie found against the other mills and that
they be directed to hire with backpay any who were denied
employment. Whatever violation this might be, there is no
evidence to indicate that it reflects a purpose to reap a
benefit vis-a-vis the employees of businesses other than
Darlington; nor is it, as an effect, a benefit with respect to
such other employees. If, on the other hand, there was no
24 It can again be pointed out, although this is necessarily
dictum if the findings with respect to credibility and insufficiency
of proof be accepted , that on the issue of chilling purpose,
whatever liability might be imposed on the Respondents for
discrimination by an employment office on the theory of
respondeat superior, it is something else to attribute fell purpose
at the time of the shutdown by those who determined the
shutdown
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
untoward or violative act25 against Darlington employees
at other mills, this basis for the claim of chilling purpose
and intent to demonstrate to employees of Hartsville and
other plants, alleged by the General Counsel, stands
without support.
But, on review, interest may yet conceivably be
disclosed in the circumstances as warranting an inference
of chilling purpose at Darlington communicated to the
other mills. Conceivably also it might be urged that a
chilling purpose at Darlington was "sensed" and reflected
at the other mills- this inferentially establishing both
Darlington's chilling purpose and a chilling effect at the
other mills.
In this connection it must be pointed out that any
refusals to hire former Darlington employees, if found to
be an effect of the Darlington shutdown, could at most
have a remote or secondary result on employees of the
other mills if such refusals were shown to have come to
their attention. Insofar as alleged discrimination against
Darlington people is itself concerned, the multiplication of
issues prompts the reminder that our inquiry is into
chilling purpose and effect with respect to employees
elsewhere.
Aside from the question of effect on other employees,
the General Counsel's position is and must be that the
Respondents purposed a denial at other mills of
employment for former Darlington employees. The fact
that some Darlington people were hired despite the alleged
control itself suggests that the picture of the reception
accorded them and outright rejection at the employment
office, drawn by the General Counsel's witnesses, is not
true. If other arrangements, as exceptions to the purpose
and policy claimed, were made for those hired so that the
purposed discriminatory procedure was not followed as to
them, this is still a matter of proof. The General Counsel
offers but his own a priori argument that those Darlington
employees who found employment were specially favored
(although a chilling purpose could be expressed without
distinction between pro- and anti-union employees-as
indeed it was in the shutdown); while any refusals of
employment reflected a chilling purpose.
Having received the testimony without objection and for
the possibilities which existed of their bearing on the
remand issues, and since the inquiry is novel and one
cannot be certain of the light in which it will be reviewed,
we can proceed to analyze it briefly. We recall that in our
earlier consideration of specific incidents, it could be
stated as the Board did in its decision of October 1962 that
the evidence was to a large extent uncontradicted. With
respect to the instant alleged refusals to rehire, as with
respect to incidents of threat and other interference at
various mills, infra, we have direct issues of credibility.
Testimony was received concerning refusal at other
mills to hire former Darlington employees; specifically 1 at
Kingstree mill, and 10 at Hartsville.26 Of those who
applied at Hartsville in October or November 1956, a few
months or within six after the shutdown, early in 1957, in
March or April of 1957, or in the fall of 1958, according to
their testimony, all except Gooding allegedly went to the
employment office; all but two spoke to a lady there; given
and having filled out an application, some were asked
whether they had voted for the Union at Darlington, and
their negative answer elicited the response, "Nobody
did !" Others having indicated that they had worked at
Darlington were refused an application form or saw the
completed form deposited in the waste basket; other
responses were that there were no openings and none were
expected, while one applicant was allegedly asked why the
Darlington employees had closed the mill down and then
was told, "that they raised their own help there."
Since we shall shortly refer to people who were hired at
Hartsville, a number of them on recommendation of Dixon,
a former Darlington supervisor, we should not overlook the
testimony by two other former supervisors, one of whom
sought employment at Hartsville and elsewhere27 but was
refused, the other unsuccessful in obtaining jobs for some
Darlington employees in 1957. Success and failure among
former Darlington supervisors thus mirrored the results of
efforts by rank-and-file employees. No reason has been
suggested, and certainly no discriminatory or chilling
purpose for the different results insofar as various
supervisors were concerned. Further, since supervisors did
not vote in the Darlington election, it may be questioned,
aside from the absence of evidence that any of this was
"demonstrated" to employees at Hartsville or elsewhere,
whether the refusal to hire or follow these
recommendations could be, as alleged in the bill of
particulars, "in order to demonstrate, to the employees of
their Hartsville mill and their remaining plants, the dire
effects of voting for a union in one of their mills."
If we consider further one of the instances cited of
alleged appearance at Hartsville and refusal of an
application, it might be urged that a 2-year wait to apply
after Darlington's shutdown demonstrates the extent to
which some Darlington employees were themselves
chilled. That they were interfered with I long ago found.
Were further proof now relevant concerning the effect on
Darlington employees, this additional testimony would not
warrant the finding thus urged in the face of many other
possibilities and explanations for the 2-year delay. Again
we must remind ourselves that the effect on Darlington
employees, already proved, did not lead Court or Board to
find and does not warrant our assumption that the chilling
purpose and effect with respect to employees elsewhere,
concerning which we were to take proof, existed.
If retribution is to be visited upon the Respondents for
Dixon's sins in having and helping friends, I can find
intriguing, since I dare not ignore it, the testimony
concerning Henry J. Yarboro. As the General Counsel
points out, Yarboro had assured Oeland that he would help
fight the Union at Darlington, and fight it he did. Oeland,
far more influential than Dixon , allegedly suggested about
5 days after the election that Yarboro go to Kingstree mill,
where there was a job opening. Whether Yarboro
mentioned his impressive support does not appear . He told
us only that, after he submitted his application, he was
first told by an overseer to start work the following
morning; but that the overseer then went out and on his
25 We need not decide whether chilling purpose or effect could
be found in the absence of discriminatory refusal to hire at the
other mills if their employees knew of applications by Darlington
people. (Presumably Hartsville employees knew that some people
from Darlington were hired , infra.) This is but another interesting
problem suggested by the reference to purpose and effect with
respect to employees elsewhere . For example , would chilling
purpose and effect be found if and because those who closed
Darlington knew that a poor employment market would mean no
jobs for the discharged employees?
$6 Two of the latter did not testify , their alleged application was
testified to by one of the other eight.
87 Without further details , he testified that he also applied at
Lockhart and Union mills
DARLINGTON MFG. CO. 1115
return told Yarboro that he could not put him to work; he
had just received orders "from the Home Office" not to
hire anyone from Darlington.
It is quite unnecessary to detail the testimony by
Kingstree's 1956 overseer. While Yarboro appreciated the
importance of the alleged incident when "it came back to
[his] mind" so that he sent a letter about it to the Union's
attorney, he had made no mention of it in a 3-page
statement given to the General Counsel. I credit the
oversee's denial of Yarboro's testimony, and his own
testimony concerning the employment situation at
Kingstree, his practice with respect to age limits, and the
different experience required. The testimony concerning
Kingstree does not support the General Counsel's position.
Following closely on this, the General Counsel cites
Yarboro among those given employment at Hartsville.
That like Yarboro seven other Darlington supervisors or
rank-and-file employees, whether related to, friendly with,
or recommended2S by supervisors or employees, were
hired at Hartsville does not prove discrimination against
any not hired; and certainly not a purpose at Darlington or
Deering Milliken not to hire former Darlington
employees.29 If Pitts at Hartsville discussed any of these
employees with Oeland, it appears to have concerned their
ability, without evidence of a chilling purpose at
Darlington.
Before we consider the testimony received to refute that
submitted by the applicants to whom we have referred, it
should be noted that Gaines, personnel manager at
Hartsville recently and for a short time but not during the
period in question, testified on the basis of summary
exhibits which were later withdrawn after their accuracy
or completeness was challenged. If we cannot rely on
Gaines' testimony and his explanations based on
information available to him, because he was not at
Hartsville during the period covered and because
necessary records had been destroyed, neither can it be
said that the testimony that some former Darlington
people had applied but had not been hired while others
were hired30 proved discrimination because of union
activities. While we cannot rely on the documents
submitted and withdrawn, and since because of missing
records it does not appear that a full examination into
earlier conditions could now be made, the explained
unavailability of original records31 leaves us without proof
of the extent and circumstances of any hirings. The
General Counsel cannot prove, from the limited
information on hand, that former Darlington employees
were discriminated against and, because old records are
no longer available, the Respondents cannot prove that
employees were hired without discrimination: the burden
of proof remains on the General Counsel aside from any
questions of relevancy and timeliness of this aspect of the
inquiry.
Mention has been made of Gooding as one of the former
Darlington employees who was refused employment at
Hartsville. This witness testified that he went to the
Hartsville mill in November 1956; that as he got to the
factory door (he apparently had missed or ignored the no
admittance sign which other witnesses saw and the fact
that the employment office was in another building and
another direction), a man in street clothes asked where he
was going ; that he said he was going to see the spinning
room foreman for a job and , in response to the man's
question , that he was from Darlington; and that the man
thereupon blasphemously ordered him off the property,
saying that he wanted "nobody on this property from
Darlington ." Gooding further testified that he then went to
his car while the other man "went on toward the office."32
At this point Gooding asked a man who had just driven up
and said he was going to work, who the other man was, and
was told that he was the factory superintendent.
An initial comment here would be that the extreme or
broad aspect of the alleged remark to Gooding is belied by
the contrary claim by the General Counsel that some
Darlington people were hired while others were permitted
to file applications. Certainly the unknown speaker
identified as factory superintendent by the unknown
employee did not know Gooding or his sympathies. That
the latter did not reach the point of formal application
need not give us pause. This would be a case of
anticipatory refusal were the other needed elements
present.
The hearsay identification of the factory superintendent
or the erroneous identification, by one who appeared to be
a rank-and-file employee, of another who might be a
chilled rank-and-file employee (as ingeniously argued by
the General Counsel) was permitted to stand because of
such circumstances as location and dress and although the
identifier was himself unidentified and not available for
examination . We could await further testimony in
corroboration or contrariwise by the "factory
superintendent."
Treasurer of Hartsville in 1956 and its chief operating
officer, Pitts testified that he had not been involved in any
such episode as Gooding had described. In the attempt to
cover all recognizable possibilities under Gooding's
reference to the factory superintendent, the Respondents
called Arrowood, who had been production
superintendent, also known as "General Superintendent,"
at Hartsville in 1956. He too denied involvement in such an
incident as Gooding's. Arrowood explained what he would
do or did in directing applicants to the employment office.
Questioned further, he testified, and quite credibly, that
he did not use such language as Gooding had testified to.
We need not pursue the uncertain possibility suggested by
the General Counsel, and only somewhat limited in its
extent that, supervisors having been instructed to tell any
unauthorized person to leave mill property, Gooding may
have met one of the supervisors.
To the extent that the question of application by
Darlington employees for employment at other mills may
"Weldon F "Buck" Truett, a former Darlington supervisor,
does not fall into any of these classifications.
21 Or "personnel," the term employed by the General Counsel
in his bill of particulars as the scope was thus broadened so that,
even if discrimination could not be found against supervisors, a
chilling effect on employees at other plants might be found were
there evidence of their knowledge and such effect
30 Although much was made of this pro and con at the hearing
it was the subject of the withdrawn exhibits as well as of
others received , we shall see that the issue concerning Hartsville
is not the availability of jobs except as it affected willingness or
refusal to hire Darlington people.
31 This was accepted by the General Counsel in his prehearing
investigation and at the hearing although he now speaks of
counsel's reference , unquestioned at the time , to "some sort of
flood." Under these circumstances, we could rely on the
uncontradicted testimony by Pitts, former chief operating officer
at Hartsville until 1958 , that employment there was on the wane
during this period
32 This building is 1-1/2 blocks from the factory building,
Gooding evidently knew that it was the office
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here be deemed relevant, we must consider the
Respondents' testimony concerning its hiring practices
and the alleged events, particularly at Hartsville. In
addition to the little just noted, our attention in this
connection centers on the testimony by Garner, who was
examined and cross-examined at length. On the issue of
identity it was stipulated that she was the lady in the
personnel office described by those Darlington applicants
who referred to and described a lady with whom they
allegedly dealt; yet an outstanding feature, which was
omitted from their descriptions was the nurse's white
uniform and cap which Garner wore while on duty.
A registered nurse, Garner lived in the building which
bore the sign , Personnel and Clinic. She doubled as
personnel manager and plant nurse . No other lady handed
out applications, and once when Garner was sick for 2
days, the office was closed. I have not overlooked bits of
Garner's testimony which could be taken out of context to
suggest that she was both partisan and untruthful. Thus
she adequately explained such questions33 put to
applicants as their past employment. Without
dissimulation she avoided credibility traps as she admitted
reading of the possibility that Darlington might be closed,
and knowledge of some relationship between Darlington
and Hartsville and also that Roger Milliken was connected
with both. She would be charged with carelessness or false
testimony had she denied that she checked applicants'
employment history, including any at Darlington.(This
supports the testimony that she accepted and retained
applications from former Darlington employees.) It does
not appear that from the latter she learned of union
activities or sympathies of the applicants, or even that the
Darlington personnel manager, with whom she checked,
had such knowledge. Nor is my impression of Garner's
credibility lessened by her testimony that as a nurse she is
"neutral" to the idea of unions but that, having quit at
Hartsville on good terms, she called and notified the
treasurer after a union representative who she thought was
from the Board came to her home prior to this hearing.
If the Darlington people who testified that they applied
at Hartsville did apply and were not hired, their
applications kept with others as Garner related were
destroyed in a fire at the mill. I find that none was denied
an application or had his application rejected in the
employment office because he was a former Darlington
employee. Some Darlington personnel were hired although
as explained the policy at Hartsville was to give preference
to ex-servicemen, employees out on medical leave or
pregnancy, those laid off because of automation, friends or
relatives of supervisors or rank-and-file employees, and
local residents. If postal lines are arbitrary or misleading
as to location or distance,34 or if they incorrectly suggested
that residents of Darlington lived a greater distance from
Hartsville or the Hartsville mill, or had different local
interests, none of this proves that Hartsville discriminated
when it considered applicants' address or the other factors
cited.
If those Darlington employees who came recommended
by a Darlington supervisor could be deemed antiunion, it
cannot be found that Garner or others at Hartsville who
33 The responsibility for such questions , which are not unusual,
was not hers . But her explanation went to the suggestion that the
answers could be used and that she did improperly use them as
she allegedly discarded the applications
34 Unless a designated geographical area is a perfect circle with
the plant at the very center , there must be points outside the area
which are closer to the plant than are some points within it But
were involved in hiring knew or believed that any
applicants from Darlington who were not hired favored the
Union and that those hired were opposed to it. As for any
rule or practice against hiring former Darlington
employees unless they came well recommended, the
evidence before us does not prove it and I credit Garner's
testimony to the contrary. Certainly if a supervisor who
needed help checked applications to fill his need and
discarded any because it indicated prior employment at
Darlington, we would have evidence of discrimination by
that supervisor. But we have no such evidence with
respect to these few applicants or others from Darlington
who were not hired, if there were others.
I do not believe that Garner, who was in charge of the
employment office and whose testimony under lengthy
cross-examination made it clear that she handled all
applications, prevaricated so egregiously or at all as she
must have done were the alleged applicants to be credited.
Garner impressed me as an honest and reliable witness. If
the conflicting stories indicate that one set or the other
was made of the whole cloth, I have here less problem than
that frequently faced in finding the facts.
We have here an absence or failure of proof in the
limited extent to which proof has been offered; and in the
latter respect, the proof is to the contrary of the claims of
discriminatory refusal to hire at the other mills.35 Whether
employees of their or any classification were needed when
the applicants allegedly presented themselves at
Hartsville does not appear. If a Darlington employee
applied for "any job" (one testified that he did), it does not
appear that any was available at the time. The application
form, on which experience was to be listed, did not call for
specification by the applicant of the job sought; placement
being left to the respective overseers on the basis of the
other information on the application and the mill's need.
Nor does it appear that applications were deliberately or
discriminately passed over. (We recall the absence of old
records to cast light on this.)
But unlike the situation at Kingstree, where it was
shown inter alia that there was no need for Yarboro, the
defense concerning Hartsville is that no applicants were
turned away because of their prior employment at
Darlington. Thus not only does the extent of labor turnover
at Hartsville in 1954 and 1955 not show conditions or need
for employees in late 1956 and thereafter, but such proof is
quite unnecessary to the General Counsel' s case, which in
this connection rests on the alleged attitude toward
Darlington people.
Having pointed out that proof of knowledge by
employees of the other mills or businesses that Darlington
personnel had been refused employment is needed to
show the chilling effect inquired into; and having indicated
that the testimony has been carefully considered, both
sides treating the subject as fully as if it involved Section
8(a)(3) allegations against the respective mills, I would add
that it has not been shown which employees of other mills
were chilled or that any were. True, applicants can be
included as employees where discriminatory refusal to
hire appears.36 But the issue here being the chilling effect
as purposed by those who controlled Darlington, unless
this does not bar preference based on location in the area.
as We note infra the Respondents ' argument that known union
supporters at other mills were not discharged.
36 This has long been recognized even if the Act does not
explicitly include them as it does those who have been terminated
(supra)
DARLINGTON MFG. CO. 1117
there be evidence of earlier purpose, later applicants do
not fall within the definition as we relate events back to the
time of the acts at Darlington.
Were our issue whether, in closing Darlington, Roger
Milliken or others sought to discourage Darlington
employees' union activities elsewhere,37 such purpose
would include even Darlington employees who might later
seek employment at the other businesses. But this is not
the issue. There has been no suggestion of any question
whether Darlington interfered with and discharged its
employees in order to discourage them from applying
elsewhere; the discouragement meted out to them at
Darlington was quite complete or at any rate sufficient
within the meaning of the Act and reality even if in this
case not found to be discriminatory. The testimony
concerning refusals to hire relates to Darlington
employees only; we have been directed to consider chilling
purpose and effect with respect to employees of other
businesses.
Nor, even if discrimination against them at other mills
were alleged and shown, were the few applicants brought
to our attention chilled by Darlington insofar as those other
mills were concerned: they did apply at these other
Deering Milliken mills. We have to this point been spared
the claim and the speculation that, but for chilling, they
would have applied elsewhere and many other Darlington
employees would have applied at other mills.
These findings are supported by the apparent absence
of any complaint or charge against the other mills that
these employees or any of them were discriminatorily
refused employment. This is not to say that multiple
actions are necessary. But the simple and certainly less
involved proceeding is one directly alleging discrimination
for refusal to hire: at the time of the alleged refusals and
prior to the Supreme Court's remand, it was the only one
recognized. The rebuffs and refusals as testified to were
egregious and clearly violative. Yet none of these
individuals, now allegedly tainted and with little more to
lose, is shown to have complained or to have attempted
any action directly, through the Union, which continued
active, or with the aid of those State or local officials who
the record shows were sympathetic. While it has not been
relied upon or needed for the findings herein with respect
to the alleged applications and denials of employment, this
thought is consoling after one has faced and weighed
questions of credibility.
IX. INTERFERENCE AT OTHER MILLS
Under this heading we shall again note some of the
items pointed out generally, supra. The General Counsel
relates the Supreme Court's references to the
"realistically foreseeable" and "reasonably foreseeable"
effect to his so-called Employer-stimulated statements.
But the Court's expressed concern with the Darlington
closing as connected with those who controlled it: there
was no suggestion earlier or at this hearing that, except for
Roger Milliken whose statements we have considered, any
of the supervisors who were guilty of interference at
Darlington were thereby connected with other mills in
intent or effect. As for "Employer-stimulated statements,"
at other mills, we must not permit ourselves to become
confused by the term "Employer" as used in the General
Counsel's brief and which, we have seen, embraces the
Respondents and also "affiliated corporations."
Statements stimulated by any other mills do not
themselves make the General Counsel's case. Under the
issues as remanded, the stimulation or purpose must be
shown to have stemmed from only certain of the
corporations defined by the General Counsel as the
"Employer;" i.e., the Respondents or more definitively
those who controlled Darlington.
Here again we should note that not only does the
General Counsel cite actual effect while quoting and
ostensibly relying on foreseeable effect, but he extends the
affecting element beyond the Darlington closing. But
because I cannot predict reaction on review to what is
herein said concerning Darlington's connection with and
responsibility for supervisors' impressions and statements
at other mills, and because testimony was received
concerning these latter, we shall now briefly advert to such
items.
The impression or belief (and action based thereon) of a
supervisor of another mill concerning Roger Milliken's
admitted attitude toward unions does not bear on the
chilling purpose toward employees into which we are
inquiring unless it be shown or inferred that the purpose at
Darlington was to chill those other supervisors and, by
their acts, the employees under them. More reasonable in
this connection are the attempts to show, as part of the
purpose to chill, instructions to supervisors at other plants
that they limit and interfere with employees' union
activity. (This focuses attention particularly on the
testimony concerning Poag,infra.)
Returning to a supervisor's own impressions of
Milliken's attitude, such impressions, once proved, would
not necessarily be helpful in our inquiry since purpose at
Darlington and chilling effect on employees elsewhere
might or might not appear regardless of supervisors'
impressions38 pro and con, which are at most intermediate
as far as their own rank-and-file employees and Darlington
are concerned. Again, chilling purpose can be shown if
these supervisors or their acts are connected with a
purpose on the part of those in control at Darlington.
It will be seen that most of the testimony offered to show
,interference by supervisors with employees at other mills
falls within the long-established rule of tendency to
interfere, as by threats, and was not directed to showing
actual effect. But since there is no evidence, except that
with respect to Poag, concerning direct relations between
those in control of Darlington and employees at other
mills, we consider the testimony submitted concerning
intermediates . We have referred to such testimony as of
secondary effect, and the purpose at Darlington which it
can indicate is necessarily more remote.
As we consider the tendency of the supervisors'
statements to chill these employees at other mills, we must
bear in mind the few39 claimed thus to have been spoken
to compare with the number who could conceivably be
affected were chilling purpose and effect shown and, aside
37 Distinguished here from their activities qua Darlington
employees.
35 If an explanation must be repeated , the issue is not only what
a supervisor believed and whether he issued a threat, but whether
what he did was intended by and the result of the acts of those
who controlled Darlington
39 Again, we are concerned with the extent of effect which the
Supreme Court would deem sufficient for a finding that
Darlington 's acts were violative even if general chilling purpose
were shown with the intent to reap a benefit from fear of the
employees in related businesses as defined.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from variances which were not litigated and matters of
credibility, the question whether any of this was purposed
at Darlington.
We recall that where the testimony of several witnesses
concerning alleged statements by supervisors was
considered, supra, it was suggested that similar detailed
analysis of every other statement is unnecessary. But we
can note the testimony by a father and son, which rounds
out that offered by the General Counsel concerning
statements by Hartsville supervisors. Former employee
Lonnie Howard appeared to be testifying in support of the
allegation, otherwise supported, concerning statements by
Hartsville and Pacolet supervisors prior to the election at
Darlington. But the General Counsel now cites this under
the heading that the Darlington closing was cited to
employees at Hartsville as an example, and therefore that
the incident testified to occurred after the shutdown.
Howard first told us about remarks by a supervisor now
deceased concerning "the results of the Darlington mill."
Despite this, the next question put to him on direct
examination was, "Talking about before the election?"-
and Howard obediently testified that the supervisors said
that both Darlington and Hartsville would shut down if the
employees went into the Union, the statement being made
before the election. Confusion was worse confounded
when, having testified to an election at Hartsville as well
as at Darlington, Howard told us on redirect examination
that he had been referring to an election at Hartsville the
year that the first World War was declared.
The younger Howard, Luther, was a combative witness.
He testified that at various times after 1956 Assistant
Overseer Seymour told him in personal discussions, some
in the presence of other employees, that if Hartsville were
organized it would be shut down as Darlington had been.
In a statement shortly before this hearing Howard
mentioned general conversations in the plant in 1956, not
after 1956; he explained that he "had to sign no statement
as to giving dates on anything except one year there that
was mentioned." But he then claimed that he did tell the
union representative to whom he gave that statement that
there were later conversations although the representative
did not include reference to these.
Concerned with credibility, I have noted further
inconsistency in Luther Howard's testimony that his
statement contained no reference to Poag because he was
not asked about him, and that the union representative
asked if he "knew anything [about the Darlington closing]
to tell him." It does not appear that what Seymour
allegedly told Howard as his own opinion40 about
organization and shutdown at Hartsville as at Darlington,
as declared in Howard's statement, was pinpointed by the
union representative's questions any more than was
reference to what Howard now testified that Poag was
reported to have said. I do not credit Howard's addition at
the hearing concerning Seymour's alleged remarks.
It appears that Seymour was hospitalized on
December 15, 1965, while the hearing was in progress, and
had a recurrence on January 15. The Respondents did not
respond to the General Counsel's suggestion that
40 Were this otherwise significant, it would be no less so
because they were talking " man to man [ a]nd not from an
employee to a supervisor."
41 We recall that he testified concerning statements by
Laughlin.
Seymour's deposition be taken. Galloway, who according
to Howard was among the employees present, did not
include such remarks by Seymour41 in his testimony
although on cross-examination he testified that he told the
union representative, who first mentioned Seymour's
name, "what Mr. Seymour said."
Having tabulated the testimony concerning statements
by supervisors at New Holland in 1961,42 I note little prima
facie evidence of interference by supervisors at other mills
with their employees. But beyond that, for the various
reasons pointed out, I would not find that the instances
cited establish at all or sufficiently a chilling purpose at
Darlington and a chargeable chilling effect on employees
elsewhere.
I have not overlooked such uncontradicted testimony as
employee Miller's that in 1956 or 1957, shortly after the
Darlington closing, he went from his sanforizing plant to
get some boxes on the shipping platform and that Cagle,
the second hand there who is apparently no longer
employed at the mill, had been talking to another man;
that Cagle stopped and the three "were just standing there
talking about the union "; and that Cagle said that they had
shut Darlington down on account of the union and would
shut down the New Holland plant if it went union . Neither
Cagle nor the "other man," whom Miller could not recall,
was called to testify. There is no explanation for the failure
to call Cagle. On the other hand, there were other facts
which Miller failed to remember as he recalled only his
brief conversation 9 years before: if he had heard about
another Pacolet mill closing or discussed other mills
closing at about the same time, he could not recall.
Another early statement, this one in 1958, was allegedly
made by Supervisor Campbell to Employee Payne at New
Holland. Campbell died in 1964. In his statement to a
union representative a few months before he testified,
Payne declared that "`he' or `they' (he did not know whom
Campbell had meant !) had closed one plant because of the
union"; then that Campbell had said that it was in
Darlington. When it was pointed out that this last did not
appear in his statement, Payne thought he had mentioned
it but it had not been put down. I note also that Payne
testified that two to four other employees allegedly heard
Campbell warn against filling out union papers, but he did
not "remember anyone by name."
I do not credit such testimony as Miller's and Payne's;
nor does it add any credibility to the General Counsel's
position. Without suggesting that the remainder of the
testimony of interference by other supervisors is of such
quality, little is to be gained by detailing and comparing
each account. The above summary covers 25 separate
allegations placed at the New Holland plant, testimony
being received concerning 15 of them.
Three witnesses called by the General Counsel testified
to four allegations in his bill of particulars concerning
apparently six incidents or series of incidents in which
four Gainsville supervisors were involved. (Another series
of talks with a Gainesville supervisor, listed as
interference at New Holland, was placed at the end of 1962
or the beginning of 1963.) The General Counsel in his brief
41 One listed among these allegedly was made in 1957 The
supervisor charged, Fair , is now deceased and it is not clear from
the record whether the man to whom the statement was made was
himself not a supervisor
DARLINGTON MFG. CO.
cites only two of these incidents.
Employee Kirby testified to some innocuous43 remarks
by Supervisor Whitfield at Gainesville in 1961. He also told
us that, beginning several years before 1956 and
continuing for several years thereafter, Supervisor Allen,44
now deceased, allegedly said to Kirby many times that, "if
the union came in down there at the Gainesville mill, that
Mr. Milliken would have the plant shut down." Despite the
allegation that Allen said, "Like the Darlington plant,"
Kirby did not recall any mention of Darlington. Such
statements in 1952 or 1953 were hardly purposed at
Darlington in connection with the closing in 1956; and
there is nothing to indicate any different basis or new
purpose for Allen's alleged later repetitions, or a
connection purposed at Darlington. Nor can we assign any
recognizable portion of a chilling effect to the Darlington
shutdown (again , unless we assume it).
Employee Collins testified that in 1961, with respect to
the Union, he and Whitfield "would just kick it around a
bit in the waterhouse and drop it on the floor and cart it
around, and that would be about all." Pressed further,
Collins told us that employees would bring union literature
into the plant "and naturally they would drop [some of] it
on the floor." The extent of the discussion between the
witness and Whitfield concerning the union literature was
"more or less the untidiness of the room"; Whitfield
"would just say that they should not bring the literature in
the plant." Whitfield made no other statement concerning
the Union and, when counsel continued the examination
concerning him, we were told that Whitfield did not say
anything about closing the plant.
Collins also testified45 that Supervisor Long told fixers
and supervisors at a meeting that "it would be bad if the
plant there voted union, it would be bad; it was a
possibility that it would close the plant down there ...";
then, "He just said, `They would close the plant,"'
identifying who would do that. Identification does not offer
any problem; credibility does. Long denied that he had any
conversation with Collins about the Union and further, on
cross-examination, that he had told Collins that it would be
bad if the Union came in. As between Collins and Long, I
have not found any basis for comparative credibility
findings with respect to this alleged incident.
Moon, supervisor for about 2 years until he left
Gainesville in 1962, testified for the General Counsel that
about 1959 he had conversations with Long approximately
every week and that Long would tell him "to get it before
the people46 that were a little unruly that they, Mr.
Milliken, wouldn' t run a mill organized." Against this we
have Long's testimony that he never told Moon that
Milliken would not operate an organized mill; he and Moon
talked about unions 10 or 15 different times; Moon would
talk to him about the president and assistant president of
the "old union" at Gainesville "cutting their jobs a little bit
short or their infractions of the rules"; Moon was not
opposed to the Union but was a perfectionist and, although
he tried to be honest, would exaggerate employees' faults;
13 With this mention, the details are that "in a sort of an
indirect way" Whitfield said that if they did not work hard they
could lose their jobs.
"" This is one of the two items under this heading cited by the
General Counsel.
11 This is the other instance of a statement by a Gainesville
supervisor, mentioned by the General Counsel in his brief.
' 6 Since it does not appear that Moon ever put this to the
employees , there can be no effect in this connection. If
1119
he did not himself know Roger Milliken's opinion of
unions, although his own opinion was and he assumed that
Milliken would not like a union to run his plants; and
finally he himself had "no viewpoint" concerning what
would happen if a union came into the Gainesville plant.
Finally, if justification for setting forth these details lies
in the fact that fewer instances are alleged and even fewer
maintained , Moon testified that about 1961, when
Teamsters literature was being distributed at Gainesville,
Overseer Jarrard, during the course of a conversation with
Moon in the office, told him, "Well we had to keep [the
Union] out." According to Jarrard, he probably did say to
Moon, as he did to all of his shift overseers, that it was
desirable (as distinguished from "necessary") to keep the
Teamsters Union out of the plant ; he did not tell Moon or
anyone else that Milliken would not operate the plant
organized or that they should get rid of the employees who
they thought were for the union.
The allegation concerning supervisors' remarks at
Drayton mill was covered by employee Dizbon's testimony
that in the fall of 1956, shortly after the Darlington
shutdown, his supervisor, Anthony, repeatedly questioned
him about his attitude toward the union ,47 and once told
him that the Drayton stockholders were losing money and
could shut the plant down as at Darlington. Anthony
denied that he had asked the questions or made the threat.
Neither the bare transcript nor the witnesses' demeanor
suggests a credibility finding.
Here or elsewhere reference should be made to the
testimony concerning the posting at New Holland of
notices which cited the Darlington closing . Little, a
Teamsters organizer , with three assistants , all from
Detroit, organized at the New Holland and Gainesville
mills and elsewhere in the area in the spring of 1961. That
campaign was not limited to textile mill employees. Little
testified that four notices were posted on the bulletin
board at the New Holland mill. As to three of these, which
were available at the hearing and which Little referred to
as the first, second, and fourth notices, there is no issue or
significance here (beyond their significant availability).
There is issue concerning the so-called third notice, of
which no copy was now presented. According to Little,
this third was "a pressure notice" which advised
employees not to join the union and mentioned other mills
which had been organized and then closed down; it
"referred to one in Darlington , South Carolina, and ... to
two somewhere on the east coast ...."
Little testified that he had asked employees to bring him
a handwritten copy of this third notice, but an unidentified
someone took an actual copy off the bulletin board and
gave it to him. He sent this copy to his office in
Washington after first making copies in longhand, of
which there were an original and three carbon copies.
(This made a total of five copies which Little allegedly had
in one form or another.) The original of the handwritten
copies Little took personally to his Atlanta office, and he
was almost positive that he sent one of the carbon copies
considered at all, it would be presumably on the question of
Milliken's purpose , knowledge of which was rather remote from
Long and Moon.
"7 With reference to the Teamsters at other mills , the identity
of the union at Drayton was not indicated . On cross-examination,
Anthony testified that he did not know which union distributed
leaflets at Drayton. Dizbon was not asked to and did not identify
the union to which he referred.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Detroit office. He told us further that he has
attempted to locate the copies in Detroit and Atlanta; he
did not try to get the one in Washington; no further
reference was made to the remaining two copies, their
disposition or whereabouts.
Whatever the Respondents' motives and attitude with
respect to unions, whether the Charging Union or the
Teamsters, neither at this or the earlier hearings has there
been evidence of withholding of documents or distortion of
their contents. Jackson, plant manager at New Holland in
1961, testified that he and Poag approved notices before
they were posted on the bulletin board; that none referred
to Darlington or the Darlington plant, or to any mill closing
because of the Union.
The third notice as described by Little was violative. It
would tend to chill and certainly to interfere with
employees' protected concerted activities. On the issue of
credibility concerning this notice, we note Little's
testimony that he took the notice to the Teamsters office in
Atlanta, not to the Board office there, in an attempt to
have an unfair labor practice charge filed. Not only is there
insufficient explanation for the failure to make adequate
attempt to produce the original notice or one of the copies
which Little allegedly made, but there is no explanation for
the failure to file a charge despite the violation as he
described it, now relied on by the General Counsel,48 and
Little's testimony that he tried to get an unfair labor
practice charge filed against the New Holland plant. It is
unnecessary to point out contradictions in Little's
testimony.
The witness Waldon testified that he did not recall how
many notices he saw on the main bulletin board during the
Teamsters drive: "Well, one of them concerned the
closing at Darlington and vaguely I remember, like Mr.
Little said, two other plants that were closed, the names of
which I don't recall."
One of the notices referred to by Little, which is before
us, referred to the Teamsters campaign and questions
which had allegedly arisen, and purported to state the
mill's position. The notice contained the following, inter
alia:
(1) This matter is, of course, one of concern to the
Company. It is also, however, a matter of serious
concern to you and our sincere belief that if this Union
were to get into this Plant, it would not work to your
benefit but to your serious harm.
I believe that it was in 1961 that the Board, by 2 to 1,
first held that such language constituted unlawful
interference.49 Examination of the cases indicates that
management has only recently adopted this incantation,
now quite common in the area and the subject of both
Board and circuit court opinions. Opinions may and
frequently do differ as to whether statements transcend
the permissible.50 I do not presume to question the
Board's holding in Threads, which it has consistently
followed. But the question now is not whether New
Holland interfered with employees by posting this notice.
Rather , as in connection with activities generally at the
other mills, did those in control at Darlington act to
produce what has since been held by the Board to
4' In passing, it may be noted that some of the violative
statements by New Holland and Gainesville supervisors , listed in
the bill of particulars, occurred during Little's campaign.
40 Threads, Incorporated, 132 NLRB 451, 452.
50 See N.L.R.B. v. Herman Wilson Lumber Company, 355 F.2d
426 (C.A. 8), where a divided court reversed the decision, finding
constitute interference? I cannot find that such
interference, held to be such shortly after the Teamsters
campaign at New Holland and 5 years after the events at
Darlington, was purposed at Darlington as discouragement
of unionization at New Holland.
X. INTERFERENCE AT DARLINGTON
Statements by Darlington supervisors, including
references to Roger Milliken's attitude and prior mill
closings, were long ago found violative. To hold that they
indicate a purpose to affect employees in other businesses,
aside from any questions of authority and responsibility, is
something else. Even though the point is now raised under
a different heading, it may not be necessary to explain
again that the issue here is not Darlington's liability for its
supervisors' interference with its employees, but the
intent or purpose with respect to employees elsewhere
(and the effect on them) of those who controlled the mill
and its shutdown. Here as elsewhere there is no warrant
for a per se inference that what occurred at Darlington
must have been done with an eye to employees elsewhere,
the very question at issue.
The responsible group as defined by the Supreme Court
does not include Darlington supervisors or even Goodwin,
production superintendent at the time of the shutdown. As
much, or little, can be said of any remarks by Sterling
Smith at that time, manager of the cost department of
Deering Milliken Service Corporation and a "high level
supervisor," who visited the various mills. Goodwin's and
Smith's contacts with Roger Milliken were limited, and did
not include discussion of attitude or intent toward unions.
The chilling purpose and effect which here concern us are
not to be found in remarks charged to them in the absence
of a showing of sponsorship or other connection with
respect to a chilling purpose elsewhere in those who
controlled Darlington's shutdown. We therefore need not
concern ourselves with credibility aspects of the testimony
in this connection even if, if credited, newly noted remarks
attributed to them and other Darlington supervisors would
constitute further interference with employees at
Darlington.
No more determinative of the chilling purpose of those
who controlled" Darlington could be remarks by Oeland
(aside from his credible denials). He did know that Roger
Milliken was opposed to unionization; so do we. Oeland,
whose work was terminated with Darlington's liquidation,
was no closer than others at the mill to knowledge of any
purpose with respect to employees elsewhere.
With respect to Milliken's acts and statements in or
about 1956, which the General Counsel now details, he
testified at length earlier and now again concerning his
motives and reasons for liquidating Darlington. It has been
barely suggested, supra, that at that time, perhaps to
divert attention from the discrimination against Darlington
employees with which he was charged, he could have
indicated a purpose to reap a benefit at other mills.
Certainly when he testified in 1957, it was not
contemplated that such a purpose would reflect on the
acts with which he was charged. We have here no
violation, of a divided Board in 149 NLRB 673.
51 Oeland was not part of nor did he represent the Milliken
family group which the Board found owns and controls the various
corporations ; neither did he have the other business interests
described by the Supreme Court.
DARLINGTON MFG. CO. 1121
statement or act by Milliken on which the Board and the
Court could not have relied previously.
Finally in this respect, if once again we consider the
chilling effect of statements at Darlington even though the
motivation which the Supreme Court has told us is
necessary to inculpate the Respondents has not been
shown, the evidence fails to connect any greater fear,
noted or which might be inferred among employees
elsewhere, with the events at Darlington rather than with
the closing of other businesses anywhere. We have already
seen that the effect on employees of the statements
testified to at this hearing is minimal. With respect to
other statements now cited by the General Counsel, it does
not appear that knowledge of them was even
communicated to employees of other mills.
Looking at such statements in another way, of the seven
instances at Darlington cited in the bill of particulars as
amended, three52 were described as made to or in the
presence of rank-and-file employees. (The bill of
particulars reference to one of these three is to a
supervisors' meeting.) No more than knowledge of the
purposes of those in control did any of these mill officials
or supervisors (whether speaking to rank-and-file
employees or other supervisors) have the status to make
admissions on behalf of the Respondents. If further
analysis serves no greater purpose with respect to the
issues than did the submission of such testimony in the
first place, it can shed light on the credibility level.
Beginning with such questions as delay in the presentation
of this testimony, of the type received at the first hearing;
and the alleged recollection now, there is no warrant for
crediting such testimony of further interference at
Darlington and discrediting the denials by the supervisors.
The first of these three instances depends on the
testimony of Mrs. Yarboro, a cloth inspector at Darlington
until 1956, that about the first of August her overseer,
Anderson, said in the presence of several employees,
including herself, "Mr. Milliken wanted the union
squashed there so that it would not spread to the other
Mills." Anderson denied that he made such a statement.
Aside from the question of authority and the absence of
any basis to indicate Anderson's knowledge of Milliken's
purpose, I do not believe that Anderson so opportunely
anticipated by 9 years the Supreme Court's opinion.
Questioned about a statement which she had given to a
union representative and one to the General Counsel, both
shortly before this hearing, neither of which mentioned
Anderson's alleged statement, Yarboro explained, "I
happened to think about it later on."
Head carpenter White testified in line with one of the
items of the bill of particulars as amended that Oeland
said53 to him in the presence of several laborers, whose
names he did not recall, that Roger Milliken had told him
that, if the Union were voted in, he "would close the mill or
liquidate it, because he wouldn't have the Union telling
him how to run his mills." Such testimony is no more
effective to prove chilling purpose elsewhere than is the
testimony received a long time ago and Milliken's
admitted opposition to unionization. Further, I credit
Oeland's denial and his explanation as it appears on the
record. As for White's credibility, he testified that he was
neutral in 1956 and did not tell any union investigator
about this statement by Oeland although he did return
"some information" (whether to the General Counsel or to
the Union is not clear). Not until he was interviewed by a
union representative in January 1966 was he asked about
this specifically; he then told about it. White had
previously testified, "[The union representative] just
asked the questions, and I answered by what I knew."
Whether or not the other questions were "specific" or
general, he told us that the representative did not ask
specifically about Oeland's alleged statement. Here again
it should be clear that, were we to draw and rely on
inference, evidence more favorable to the General
Counsel's position and without any issue of credibility
appears in the record made years ago in Milliken's now
famous "hard core" statement.
In the third of these instances (it is not clear whether
this refers to more than one incident) Superintendent
Goodwin is alleged to have said about a week before the
election to Williams, himself a supervisor, that Milliken
would not operate under a union but would close the mill
down. Goodwin cited a mill in Maine and told Williams to
tell the employees that that was what would happen there
if they voted for the Union; and Williams did so tell
employees. It appears from White's further testimony that
the "message" which he transmitted to the employees
under him was that he was told that Milliken would not
operate under a union, although this is not quite clear. "I
told them that they wouldn't operate under a union. That
Milliken would not operate a Mill under a union. That's
what I was told." If the last five words were included in the
message which he transmitted, this is not inconsistent
with his 1957 testimony that he did not tell anybody that he
knew that Milliken would close the plant. Goodwin denied
that he made the statements attributed to him by
Williams, but did not remember him.
The General Counsel has also cited in support of this
allegation the testimony by employee Small that after the
election and 2 or 3 weeks before the mill was closed
Goodwin said that he did not understand the employees'
vote for the Union since they knew that Milliken would
shut the mill down of the Union were voted in. Goodwin
remembered Small but, asked whether he had said what
Small attributed to him, he replied variously, "I don't
remember ever doing that"; "Not that I ever remember";
and "No, sir." Unlike Williams, Small was not a
supervisor; unlike the allegation, his reference was to a
conversation after the election. Nothing in the demeanor
of Williams, Small, or Goodwin or in their testimony points
to resolution of the credibility questions raised. True, it
has been found that Goodwin was guilty of interference
within the meaning of the Act in certain conversations
with employees. But it can be urged on the other hand that
his readiness to admit those suggests that he did not make
these newly alleged statements.
Goodwin made several other replies similar to those just
quoted, which appeared to me as I heard them and again
on reference to the transcript to be ambiguous. The
answers are of uncertain meaning; the question remains
whether they reflect uncertainty on the part of the witness.
"I don't remember ever doing that" may mean that the
52 A fourth statement allegedly made by a supervisor to have considered it; at other mills, chilling effect also.
employees was not supported by any testimony. As for those 53 White placed this conversation, which he claimed stands out
made to supervisors, any chilling effect would not be even on in his memory, before the election and about a month before the
Darlington employees, much less on those elsewhere. Statements plant closed. But the closing followed the election by some 3
at Darlington would presumably show chilling purpose, as we months.
299-352 0-70-72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness thinks that he may have done that but does not
recall whether) or not he did. On the other hand, it may
quite literally mean that what the witness did not do or
knows that he would not do, he does not recall. The
problem is to ascertain, without suggesting the answer,
what the witness does mean. I finally attempted this to
enable myself to make findings of fact. While the issues in
question are not important relatively, the procedure is and
it may be in order to include a brief discussion of the point
"for reproof, for correction, for instruction ... , ' or for
endorsement.
No questions may indeed be better than poor ones. The
need to be circumspect arid-tu-avoid-suggesting an answer
to the witness cannot be overemphasized. Leaving open
the weight to be given the testimony (which is our
problem), Wigmore declares:54 "The best judicial opinion
does not insist on any degree of positiveness in the
recollection, but accepts whatever the witness feels able to
present." This is particularly true where the witness is
called upon to deny something which he carefully
indicates he does not recall as when Goodwin, asked
whether he would not deny, repeated only that he did not
remember.
Clarification was not achieved when he said, "I don't
know whether they may have been said, sir"-a reply
which suggests that the witness admits the possibility that
the statements were made; but followed this with the
categorical "They have not been said." The words
themselves would be open to different interpretations even
had the witness said, "I don't recall that at all." He might
be emphasizing either a failure 'to recall or a definite
absence of the event referred to. A stated failure to recall
is understandable if the event never occurred; on the other
hand, it may reflect the witness' uncertainty, and he may
mean that the event may indeed have occurred. How the
words are to be interpreted may be indicated by the
witness' tone or demeanor. His recollection or stated
absence of a given recollection is admissible even as an
"impression."55 Cross-examined concerning his
understanding of Poag's purpose in his talks at Darlington,
Goodwin could and did reliably recall that, even if details
now escaped him.
Several interesting applications of what has here been
said can be seen in Oeland's testimony. Asked about
having suggested to Yarboro that he apply at Kingstree
mill, he did not reply directly but explained why he "tried
very carefully" not to make such suggestions. His cross-
examination continued:
Q. In other words, you are telling you don't recall
making this to Mr. Yarborough (sic) because you tried
not to do it for anyone?
A. That is right.
My impression that Oeland was definite in his answers in
this connection is supported by the finality of his earlier
statement concerning Yarboro's qualifications: a cotton
loom fixer would not be qualified without retraining to
work in a woolen mill. This followed immediately after he
54 3 Wigmore, Evidence, § 726 (3 ed 1940)
55 Id at Sec 658
5s As another variation, before he was pressed to a definite
denial of White's testimony, supra, he offered what appeared to
him the equivalent "I could not make a statement like that "
57 I include supervisors who testified for one side or the other,
and such a top management representative as Pitts, who usually
introduced Poag at Hartsville, and testified concerning the
general and consistent nature of the latter's remarks After the
was questioned about Yarboro's testimony that Oeland
had sent him to Kingstree, the reply being, "Not that I
recall." That Oeland did not distinguish56 between the two
types of reply, deeming them equivalent, may be seen
from his ready agreement at the close of this cross-
examination, as follows:
Q. Did you hear it from many people in Hartsville?
A. No.
Q. Not that you recall?
A. Not that I recall.
XI. POAG
From 1948 until 1962 or 1963 Poag represented various
so-called Deering Milliken mills. He did have direct and
personal contact with Roger Milliken, as was noted early
in the first hearing. Whatever Milliken's remoteness from
others, Poag necessarily had his confidence, spoke for
him, and certainly appeared to speak for him. As part of
this relationship of attorney and client (or president of
client corporations) Poag, when he appeared at the various
mills, represented Milliken. Unlike instances noted supra
where we consider effect of an effect, there can be no
question of Poag's authority to speak for Roger Milliken or
of the direct effect of his acts.
On the other hand, recognizing his status, to say that
Poag wanted to keep the Union out of Darlington and other
mills is no more than to say that this was Milliken's
admitted desire. That is not, however, the same as saying
that, when Poag addressed Darlington people, he had in
mind or proposed an effect with respect to employees
elsewhere; or that, when he spoke to supervisors at any
other mill, he had in mind anything other than his purpose
at that mill. To find that when he spoke at one mill he had
other mills in mind is to rely on an assumption, not proof.
Excluding Darlington for the moment, it is not suggested
that Poag had mill A in mind when he spoke to supervisors
at mill B. But were mill B to close, it could be urged, yet
without proof, that he did necessarily have A in mind! We
must look for evidence of Poag's purpose to chill
elsewhere and for evidence of chilling effect. What he said
is thus of great significance. For their bearing on the
credibility of those who testified concerning this, many
questions were asked concerning such attendant
circumstances as whether joint meetings were held and
who attended.
It will serve no useful purpose to cite all of the testimony
pro and con with reference to Poag's meetings with
supervisors of various mills. Differences and
discrepancies appear on both sides. If all overseers and all
assistant overseers in the respective mills did not attend
each of these meetings, we can believe that Poag did
address such meetings and that he did not know that
attendance was less than full or whether overseers and
assistant overseers attended jointly. It is understandable
that the mill people57 attending would not, so many years
later, recollect as clearly what was said at the meetings as
first hearing I made credibility findings with respect to various
witnesses called by Darlington and employed there, from Oeland
and Goodwin down, and I found violations on the basis of
supervisors ' truthful admissions and failure to contradict
testimony that they had been guilty of interference To the extent
that we can here consider such indicated reliability of the
supervisors and counsel , this would generally support the
independent credibility findings made herein
DARLINGTON MFG. CO.
did Poag, who recalled his purpose if not all of the
circumstances.
From all of the testimony concerning a joint meeting of
Darlington and Hartsville supervisors, it appears that
these did jointly meet once with Poag preliminarily to their
enrollment in a Dale Carnegie course, which Poag taught.
The uncertainties and variances in this respect are
typified by Oeland's testimony that, while he attended his
supervisors' meetings with Poag, he did not attend the
joint meeting but thought that there was such a meeting.
Of the first four witnesses called by the General Counsel,
all of them supervisors at Darlington, two testified to a
joint meeting with Hartsville supervisors, while two spoke
of various meetings but made no mention of attendance by
Hartsville supervisors. While I have resisted the
temptation to tally the testimony on this point, my
impression is that most of those questioned did mention a
joint gathering of supervisors of both of these mills.
Although there was much questioning concerning this at
the hearing, what Poag said at various meetings can be
found without reference to the issue of a joint meeting and
regardless of whether such meeting was held as a
preliminary to a training course.
The testimony concerning what Poag said is relevant
and important in connection with chilling purpose and also
insofar as chilling effect is concerned, on the reasonable
assumption that he made similar remarks at the other
mills, continuing any chilling purpose and with
conceivably resultant chilling effect on the employees
there. Testimony was similarly received pro and con
concerning Poag's remarks at meetings of supervisors at
other mills which he represented.
Beginning with the General Counsel's first two
witnesses, there were significant discrepancies.
Supervisor Tobias testified that Poag addressed the
supervisors at a joint Darlington-Hartsville meeting (there
was only one such) about March 1956. Supervisor Edwards
testified that he attended that joint meeting, Tobias being
present, 6 or 8 months before he left Darlington in
February 1956. Tobias told us further, as did others, that
Poag declared that Mr. Milliken would not tolerate a union
in any of his plants, and that Poag discreetly suggested
that, while an employee could not be fired because he
talked union, he might be gotten for bad work. While
violative statements were found at the original hearing and
others were then testified to, these did not involve Poag
(who cross-examined a number of these witnesses and was
no stranger to them) at that time even though various
supervisors now testified that he was the conduit for
Milliken's alleged attitude and remarks. At the first
hearing Tobias was called upon only to deny remarks
made as of his own knowledge or which he had allegedly
attributed to Milliken without reference to Poag.
Kinsey, the third witness called by the General Counsel,
58 It has previously been pointed out that Galloway, who
testified to reference by Supervisor On, now deceased, to a
statement at a meeting of all of the second hands, which
mentioned both Poag and Milliken , did not attribute to Laughlin,
also a second hand, who allegedly warned or threatened him many
times, any supporting reference to Poag
ss Parenthetically , statements to supervisors concerning Roger
Milliken's attitude purposed at Darlington and intended to be
transmitted to employees elsewhere would bear on the issue of
purpose to cause the latter to fear But such remarks as that union
supporters could be discharged under a pretext , while violative
where that is properly in issue, do not bear on the issue of the
shutdown as causing fear among employees elsewhere Such fear
1123
had also been a Darlington supervisor. He was specifically
found to have supported the disavowal petition after the
1956 election. He now told us that Pdag had urged
supervisors to persuade employees not to join the Union
and to warn that, if it came in, Milliken would close the
plant None of this was suggested at the first hearing as
involving Poag or including mention of him, an eminent
authority for such intention and statements if the intention
existed and the statements were made. In fact, if in all of
the testimony at the first hearing concerning interference
or the many allegations of interference there alleged, there
was reference by employees or by supervisors, witnesses
on either side, to a role played by Poag in passing the word
on to supervisors who in turn spoke to employees,
recollection of it escapes me.58 Yet Poag's alleged role is
now emphasized. True, the issue now is Roger Milliken's
intent and Poag's alleged expression of it. But with all that
is now attributed to Poag, it would seem that a good
portion or some of that would have crept into the record
when the issue included threats based on Milliken's
attitude toward this Union and unions generally at
Darlington and elsewhere. It is strange that witnesses who
testified many years ago without reference to the
important and violative role allegedly played by Poag, and
other witnesses who were not called at that time, now
submit in this detritus many years after the event a first
mention of statements which were within the old issues
and which were made by Poag at meetings spaced by some
as frequently as every 2 weeks or every month at
Darlington shortly before the election.
From a mere balancing of the testimony as it appears of
record, and aside from my credibility finding, there is no
sufficient basis for crediting the testimony that Poag
reminded supervisors of the Darlington shutdown and
others or that he hinted at discharge of union supporters or
warned of plant closures, and for rejecting the testimony
that, anxious to keep unions out, he discussed conditions
and advised supervisors "within the framework of the
Act"; or for concluding that, in closing down Darlington a
purpose was, in this manner among others , to instill in
employees of other mills the fear that theirs would be
closed down if they persisted in organizational activities.5s
Indeed, my impression after hearing the witnesses and
reviewing their testimony is that much of this new matter
involving Poag was created to meet the need born of the
remand
It should not be necessary to point out that even a
finding that Poag's remarks were violative and chilling
would not suffice the General Counsel. It would be further
necessary to find that Roger Milliken purposed and
foresaw such remarks when Darlington was closed. Were
an inference now to be drawn,60 we must bear in mind
that, since the same chilling remarks were allegedly made
well before the Darlington shutdown, their purpose did not
might stem from discharges thus effected , but not from an
untransmitted reference to Darlington or Milliken The same can
be said with reference to other items listed in the bill of
particulars and there charged to Poag Even if irrelevant to our
issues, the testimony that Poag recommended discharges may
bear on the credibility of those who so testified since, except for
the employees terminated at Darlington , it has at no time been
suggested that any employees at any of these mills were
discharged because they "talked union " This had not occurred
even at Darlington during the campaign , when there was a great
deal of union talk
60 If this additional point raises problems , it can be ignored as
unnecessary to the decision
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stem from or depend on that shutdown but antedated it.
But what Milliken's prior purpose was can be judged by
the early memorandum which he issued and was neither
intended nor used to prevent or interfere with employees'
organizational activities at the other mills. With efforts at
each mill prior to the Darlington shutdown directed to that
mill alone, had Poag been guilty of violative remarks such
guilt would be based on what he said at a given mill with
respect to its employees. But we are asked to assume that
a purpose in closing Darlington was to broaden the base to
include employees at other mills. Presumably any such
remarks shown to have been made at a still later time
(within reasonable time limitations) could not be free of
that same purpose to chill employees elsewhere: whether
the evidence so indicates or not, the chilling purpose
elsewhere antedated Darlington's shutdown and
necessarily was reflected in the shutdown and continued
thereafter !- even if it was never before so claimed and
was not included in Poag's earlier remarks or in Milliken's
own efforts to avoid unionization at any mill.
As for chilling purpose in Poag's remarks at various
mills, aside from the fact that the concept of a common
plan has now been newly injected, a purpose at Darlington
to interfere there, as previously found, without reference
to or consideration of other businesses, and a purpose at
other mills to interfere, if that were found, is or would be
as consonant with the facts brought out as would be an
overall plan to affect employees of various businesses by
closing one. If the shutdown be not discriminatory at
Darlington in the absence of proof of chilling purpose at
other mills, we cannot hold that interference at the other
mills together with interference in the Darlington
shutdown reflect the necessary purpose to discriminate at
Darlington; for that would be mere assumption of chilling
purpose from proof of alleged effect, without that showing
of motivation which has been declared necessary.
We recall our concern over the question whether the
purpose here to be shown with respect to employees of
other businesses existed at Darlington at the time of the
shutdown. As that has not been shown, no more does it
appear specifically that those in control of Darlington
purposed remarks by Poag concerning other mills then or
thereafter to affect employees at those mills. In fact it is
not even claimed in the bill of particulars detailed recital
of Poag's alleged offenses that at the time of the shutdown
any future activity by Poag was contemplated as
connecting action at Darlington with other plants. We do
have Poag activity at other mills. But aside from any
question concerning the nature of such activity, which
long antedated the shutdown and continued long
thereafter, there is no reasonable basis for holding that
those who controlled Darlington intended to apply or to
use the events there to affect the employees elsewhere.
We now parallel points earlier raised. Bearing in mind
that our issue is Darlington's purpose in 1956 with respect
to other businesses , we would expect early manifestation
of that purpose by Poag at other mills as according to
present testimony employees were told about it in those
earlier days; and a reasonable amount of evidence, and
indeed early charges based on this, considering the
presence and efforts and in the vicinity of both the
Charging Union and the Teamsters as the latter also
attempted to establish a case against the mills.
Insofar as effect on employees is concerned, the
statements among employees, noted supra, or by
supervisors at other mills could scarcely be charged to
Poag as we recall the role played by the Union itself in
depicting Roger Milliken's attitude. Nor can such
statements be charged, through Poag, as intended at
Darlington by those who controlled it. As for the conflict in
testimony, it more credibly appears that Poag's remarks to
supervisors, both before the Darlington closing and
afterward, were concerned with unionization of the
respective mills and, more positively, with proper
administration and supervision'61 as Jackson confirmed in
the course of cross-examination; and specifically that at
each mill he concerned himself with the needs and
problems of that mill.62
I find from the conflicting testimony that neither before
nor after the shutdown did Poag cite at any mills the
closing of other mills or Roger Milliken's attitude generally
as a warning of action which might be taken (or if this be
relevant, that union supporters would or should be
discharged). Poag had the same purpose at each mill, and
it antedated the Darlington shutdown. But there is no
warrant for assuming that his approach and methods,
common to that in many admittedly independent
businesses (even as his representation of each was
independent, whatever the relationship among the various
mills), were intended to connect the various mills in
purpose or effect; or that the purpose in closing
Darlington, never before so charged or considered with
respect to that or prior mill closings, was to affect
employees at other businesses.
I find and conclude from all of the testimony on this
point at this hearing, confirmed by that previously
received, that a purpose at Darlington with respect to
employees elsewhere has not been shown; and that
testimony concerning related events at other mills is
slight, considering quantity and credibility, and that such
events cannot be causally traced to a chilling purpose at
Darlington.
There is yet another possibility: that with Roger
Milliken advising mill treasurers not to discuss the
Darlington situation, and Poag telling supervisors not to
interfere with employees' union activities, they spoke with
a figurative "nod or a wink or a code,"63 and intended the
instructions to be disobeyed so that supervisors at the
various mills (and other businesses) would cause
employees to fear shutdowns because of their
organizational activities . Such speculation and any
findings of violation based thereon would face the inherent
S' This finding is wholly consistent with the notices which were
posted after approval by Poag, supra , as submitted by the General
Counsel . Connected with Poag , such documentary evidence, if
violative where posted, is consistent with the Respondents'
testimony and does not support the testimony submitted to show
either questionable purpose to chill elsewhere , Poag's support
thereof, or chilling effect , of Darlington 's acts, at other mills.
82 As I pointed out at the hearing, testimony that known union
supporters at other mills were not discharged and that no
instructions to discharge were ever given does not bear on the
issue whether there were discriminatory refusals to hire,
mentioned supra . But it does reflect on the alleged insistence by
Poag that pretexts be found to discharge them. We need not
concern ourselves with that beyond its value in meeting testimony
that supervisors were instructed to find pretexts for discharge;
even as we would consider such testimony as indicating intent
had there been discharges.
63 United States v. International Union, United Mine Workers
of America, 77 F. Supp. 563,566.
DARLINGTON MFG. CO.
implausibility which is proved, if implausibility must be
proved, by the comparatively limited extent of supervisors'
interference claimed and the few instances of effect
which, from the evidence, could be reasonably anticipated
or were, despite the efforts to prove effect, actually shown.
L'envoi
This decision will "disappoint" some on one side or the
other whose minds were made up before the hearing on
remand, or since the hearing but without consideration of
the facts or analysis of the principles involved. With that
we must not concern ourselves. Certainly some are not
pleased with what I have had to say concerning violation
despite complete shutdown. No more pleased have others
been with my finding of no adequate remedy and no single
employer relationship; nor will they be on the issue of
chilling purpose and effect. On the question of remedy,
more can be said. All can now await greater attention to
the single employer issue as called for by the Supreme
Court, as to the questions of chilling purpose and effect.
If "extremism," including the extreme of right' against
wrong, must be avoided, I could suggest a finding and
recommendation based on expertise or compromise with
respect to backpay, developed in the course of my concern
over this problem through the years and continued
weighing of the pro's and con's. But unlike other items,
which are related to the remand, this one of backpay has
been and is remote from any expressed consideration by
the courts. I shall say no more concerning it at this time.
This remand is centered on Darlington's purpose to
discourage unionization at other businesses related as
described, and the effect or foreseeable success in
breeding hostility to unionization or in leading employees
of such businesses to desist from organizational activities.
The evidence concerning purpose and the problems' in
proving it have been considered. With respect to effect
and in addition to what has been noted supra, both sides
could argue, although neither has to date (nor have the
64 Cf. J. P Stevens & Co., Inc, 157 NLRB 869.
1125
Board or the courts adverted to this), on the basis of a well-
known and acknowledged opposition to unionization in the
textile industry throughout the South. But the very extent
of such opposition, whether lawful or violative,64 magnifies,
the problem of assessing against Darlington or those who
exercised control over it, employee reluctance or fear.
Aside from opposition, loss, or defeat anywhere else, every
reference to opposition, in the region, in the industry, or
elsewhere, longstanding and notorious, whatever
sympathy and crusading fervor it may arouse, multiplies
the problem of connecting instances of fear with the
Darlington shutdown specifically; and this must concern
us if we would draw inferences of a tendency at Darlington
to interfere elsewhere.
RECOMMENDED ORDER
Having found and concluded on the evidence65 received
at this hearing as well as on the record previously made
and in the light of the opinion of the Supreme Court and
the Board's remand order,
1. That the persons exercising control over Darlington
did not act to close it in order to discourage unionization at
other Deering Milliken plants (I am now regarding them as
an integral part of the Deering Milliken enterprise) or
elsewhere; and
2. That the evidence adduced does not indicate either
(a) That it was realistically foreseeable that employees
at other Deering Milliken plants or elsewhere would fear
that their place of employment would be closed down if
they persisted in organizational activities; or
(b) That such other employees were in fact led so to
fear, I recommend:
That any allegation or claim of violation of Section
8(a)(3) of the Act because of chilling purpose or effect as
defined in the Supreme Court's opinion of March 29, 1965,
with respect to employees in plants or businesses other
than Darlington Manufacturing Company be dismissed.
65 Board Order, October 25,1965.
U S GOVERNMENT PRINTING OFFICE 1970 OL-299-352