Fulton Bag and Cotton Mills, 883 (1947)

In the Matter of FULTON BAG AND COTTON MILLS and INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS UNION OF NORTH AMERrCA, AFL

In the Matter of FULTON BAG AND • COTTON MILLS and AMERICAN FEDERATION OF LABOR

Cases Nos. 10-C-10444 and 10-C-1980, respectively. Decided January 21,19118

Mr. William M. Pate, for the Board.

Messrs. Frank A. Constangy and John M. Slaton, of Atlanta, Ga., .for the Respondent.

Mr. Ralph Sanders, of Atlanta, Ga., for the Union.

DECISION

AND

ORDER

On February 17, 1947, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto.' Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. Oral argument, originally granted, was subsequently canceled, at which time the respondent was notified of a further opportunity to file a supplemental brief or written argument, setting forth the matters which would have been covered in the oral argument. The respondent has not filed a supplemental brief in lieu of oral argument.

The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions, modifications, and additions noted below :

'These piovislons of Section 8 (1) and (3) of the National Labor Relations Act, which the Trial Examiner found were violated, are reenacted in Sections 8 (a) (1) and 8 (a) (3) of the Labor Management Relations Act, 1947

75 N. L. R. B, No. 111.

766972-48-col 75-57 883

1. We agree with the Trial Examiner's-finding that the respondent, by the statements and actions of supervisors Johnson, Roberts,

Chancy, Lanford, De Loach, Coleman and Couch, as set forth in the Intermediate Report, engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act. The respondent excepts to the finding, pointing out as the basis for its exception that the Trial Examiner failed to mention in his report a letter from the respondent's president to all its employees dated July 11, 1946, in which the respondent set forth its position regarding union activities by its employees and declared that they could join or not join the union as they pleased, free from fear of any reprisal. While the Board has, on occasion, held that the posting of a notice, will relieve an employer from responsibility for acts of interference on the part of its supervisory personnel,2 it is to be observed that the letter, regarded as a notice in the present instance, contains no reference to any disavowal by the respondent of the past unneutral conduct on the part of its supervisors; neither does it specifically disclaim responsibility on the part of the respondent for any future acts of like nature by such supervisors.3 The Board has held ineffectual to relieve an employer from responsibility for the unneutral acts of a supervisor, a notice of neutrality which contained no specific disavowal of partisan conduct by a supervisor, as would normally have dissipated the effects of his activities.4 We find, therefore, that the failure of the Trial Examiner to mention the letter in question is immaterial, and that the respondent's exception thereto is without merit.

We do not find, however, that all statements in the Intermediate Report attributable to the above-named supervisors constitute a violation of Section 8 (1). An examination of the record discloses that such statements, other than the questions regarding union affiliation, are in the nature of opinions and do not contain any threat of reprisal or force or promise of benefit. We are of the opinion, therefore, that the statements, other than the interrogatory remarks 5 and other than the anti-union activities upon which the Trial Examiner relies and upon which we affirm his finding of interference, are non-coercive utterances within the meaning of the Act, as amended.

2. We also agree with the Trial Examiner's findings that the respondent discriminated against employees Smith, Rose, Longmire, s Matter of Midwest Piping and Supply Co., Inc., 63 N. L. R. B. 1060.

The only reference to possible future acts of interference is a statement that, as other misstatements come to the respondent 's attention , it will do its best to tell its employees the truth.

4 See Matter of Parkchester Machine Corporation, 72 N. L. R. B. 1410.

5 The interrogation of employees regarding their union affiliation remains an unfair labor practice under the Act, as amended . Matter of Ames Spot Welder Co., Inc., 75

N. L R. B 352

FULTON BAG AND COTTON MILLS 885.

Kelley, and Guthrie, with respect to their working conditions and wages in violation of Section 8 (1) of the Act.6

3. We concur in the Trial Examiner's finding that the respondent, in violation of Section 8 (3) and ( 1) of the Act, discriminatorily laid off Harper C. Long, because of his activities in behalf of the Union, at various times from May 20 , 1946, to September 3, 1946. The respondent contends that a curtailment of operations in its Engraving Department, due to certain limitation orders issued by the President of the United States which restricted the milling and use of grain and the manufacture of flour, necessitated Long's lay-off. The respondent's contention is, however, inconsistent with the position which it took in a letter to a customer dated August 19, 1946, wherein the respondent stated that it was unable to fill an order because of a shortage of engravers, thereby implying that it had more work than it could handle.? It does not appear, therefore , that the limitation orders reduced the amount of work available in the Engraving Department at the respondent's Atlanta plant during the period in question . Under the circumstances, we find that the respondent 's contention is without merit.

4. The Trial Examiner found that the respondent , by its discriminatory treatment of Long, in violation of Section ' 8 (3) and ( 1) of the Act, constructively discharged him because of his membership in and activities on behalf of the Union. The respondent excepts to this finding and contends that Long resigned as the result of an altercation between Long and Blalock. In our opinion, the record does not support the Trial Examiner's finding, especially in view of the clear showing, as found by the Trial Examiner , that the affray was not instigated or provoked by the respondent. It is evident that the respondent's unlawful treatment of Long was interrupted by an independent act, the afore-mentioned altercation . It appears, therefore, that the proximate cause for Long's resignation was not the respondent's discriminatory treatment of him, but rather his unwillingness to work 9 We find, as did the Trial Examiner, that although the complaint contained no specific allegation of discrimination against employees Smith, Rose, Longmire, Kelley, and Guthrie, the issues with respect to such discrimination were fully litigated at the hearing, and an opportunity was afforded the respondent to adduce testimony to refute the charge of discrimination against these employees. Accordingly, we find immaterial any varIancp between the allegations of the complaint and our present finding based thereon See Matter of Ford Motor Company, 57 N L. R. B. 1814 ; cf. Matter of Marshall and Bruce Company, 75 N L R B 90, fn 10 and the cases cited therein.

7 The respondent asserts, by way of explanation , that the customer requested only a $200 order involving a $40 engraving cost, which made it unprofitable for the respondent to handle The respondent's explanation is, however , irrelevant to the issue since it does not appear that it has in any way denied the existence of a shortage of engravers or the implication therefrom that the Engraving Department was working at full capacity at that time with Blalock as a result of the altercation between them., Under the circumstances, we do not find that Long was constructively discharged by the respondent on September 3, 1946.'° Accordingly, the Trial Examiner's finding in this respect is hereby reversed.

5. The Trial Examiner found that the respondent, in violation of Section 8 (3) and (1) of the Act, discharged employee Ruby Ethridge because of her union activities and not, as the respondent contends, because of her inefficiency and incompetence. We agree. It is apparent from the evidence detailed in the Intermediate Report that Ethridge's asserted shortcomings were not the reason motivating her discharge, but were merely an excuse for eliminating a known union leader. This is indicated by testimony to the effect that while Ethridge was given, as were other employees, an alleged non-discriminatory assignment, the respondent intended, in her case, to hold her to an impossible standard of performance for the purpose of later bringing about her discharge ,on the ground of inefficiency. Moreover, it is clear that Ethridge's work, which at best was only fair, became unsatisfactory only after her ,discriminatory transfer by the respondent to work which she was less ,capable of performing. Furthermore, we are convinced that a contributing cause for the unsatisfactory quality of her work was the respondent's failure to repair her machine although, on several different occasions, she had requested the respondent to repair it. We find, as did the Trial Examiner, that the real cause for Ethridge's discharge was the respondent's desire to discriminate against her because of her union activities, and not her inefficiency as claimed by the respondent 10 THE REMEDY

The Trial Examiner recommended that, in...