Magee Carpet Company And Textile Workers Union Of America, Cio, 103 (1950)

In the Matter of MAGEE CARPET COMPANY and TEXTILE WORKERS UNION OF AMERICA, CIO Case No. 4-CA-178.-Decided August 31, 1950 DECISION AND ORDER On May 11, 1950, Trial Examiner W. Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent has engaged 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. The Respondent also requested oral argument. This request is hereby denied as, in our opinion, the record and the exceptions and brief adequately present the issues and the positions of the parties.

Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel [Members Houston, Reynolds, and Murdock].

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. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications:

1. We find, as did the Trial Examiner, that the Respondent violated Section 8 (a) (1) of the Act by interrogating various of its employees as to whether they were solicited by Crabtree and Newhart to join the Union.2 In excepting to this finding of the Trial Examiner the 1 Contrary to the Respondent's contention, we find nothing in the record or in the Intermediate Report reflecting bias or prejudice by the Trial Examiner in either the conduct of the hearing or in his findings, conclusions, or recommendations. Accordingly, we deny the Respondent's motion for the reopening of this case and for the designation of a new Trial Examiner.

   2 The record does not show and we do not rely on the Trial Examiner's finding that these employees were asked whether they had become members of the Union.

   91 NLRB 17.

   Respondent seeks to justify these interrogations on the ground that they were legitimately carried out as part of the Respondent's investigations to determine whether Crabtree and Newhart had breached the company no-solicitation rule. We find no merit to this contention for, apart from any legal question of privilege, the record conclusively demonstrates, and we find, that Crabtree and Newhart were discharged for their union sympathies and activities and not for violation of a company rule, and that the Respondent did not interrogate its employees in pursuance of a bona fide investigation.3 The interrogation of its employees by the Respondent concerning attempts to have them join the Union was therefore unwarranted and per se violative of Section 8 (a) (1) of the Act.4 Similarly, we find that the interrogation of Crabtree and Newhart by various of Respondent's officials and supervisors concerning their union views and activities, as detailed in the Intermediate Report, constituted independent violations of Section 8 (a) (1) of the Act.

   The Trial Examiner further properly found that statements by President Magee to Crabtree contained threats of reprisal, were intimidating, and coercive. We accordingly find that the following remarks made by Magee to Crabtree constituted additional violations of Section 8 (a) (1) of the Act:

   (a) Magee's statement that he would never allow anyone who believes in CIO to work in his mill; that he would shut down the mill before he would let any union, AFL, CIO, or even TWA,5 tell him how to run the mill, and that he was in a position to do so because he was his own board of directors and controlled over 90 percent of the stock;

   (b) Magee's ultimatum to Crabtree to change his mind before the following Monday morning about working in behalf of the CIO under penalty of discharge for failure to comply with this condition.

   The Remedy The Respondent has excepted to the broad cease and desist order recommended by the Trial Examiner and asserts, without abandoning its opposition to the Trial Examiner's 8 (a) (1) and 8 (a) (3) findings, that the order should be limited to the particular violations found.

   It is our opinion, however, that the unfair labor practices found herein reveal a hostile attempt by the Respondent to defeat the attempts by its SIt is noted in this connection that employee Coombe, produced as Respondent's witness, testified that he was interrogated by Foreman Lunger concerning his solicitation by Crabtree one day subsequent to Crabtree's discharge.

   4 Standard-Coosa-Thatcher Company, 85 NLRB 1358.

   5 This reference is to the Textile Workers Alliance of the Magee Carpet Company, an unaffiliated union which for several years has been recognized by the Respondent as the bargaining representative of its employees.

   employees at self-organization and a fixed attitude of opposition to the purposes of the Act. We find therefore, as did the Trial Examiner, that the unfair labor practices committed by the Respondent are potentially related to other unfair labor practices proscribed by the Act and that the danger of their commission in the future is to be anticipated from the Respondent's past conduct. The preventive purposes of the Act will be thwarted unless our order is coextensive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, we shall order that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act.

   As recommended by the Trial Examiner, we shall order the Respondent to offer Lewis Crabtree and Robert E. Newhart reinstatement with back pay from the dates of their discharges. Since the issuance of the Trial Examiner's Intermediate Report, however, the Board has adopted a method of computing back pay different from that recommended by the Trial Examiner.6 Consistent with the new Board policy, we shall order that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called 'quarters,' shall begin with the first day of January, April,

   July, and October. Loss of pay shall be determined by deducting from a sum equal to that which these employees normally would have earned for each quarter or portion thereof, their net earnings,' if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.

   We shall also order the Respondent to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due.8 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations 6 F. W. Woolworth Company, 90 NLRB 289.

   SBy 'net earnings' is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work, and working elsewhere which would not have been incurred but for this unlawful discrimination and the consequent necessity of his seeking employment elsewhere. Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. Republic Steel Corporation V. N. L. R. B., 311 U. S. 7.

   8 F. W. Woolworth Company, supra.

   Board hereby orders that Magee Carpet Company, its officers, agents, successors, and assigns shall:

1. Cease and desist from:

   (a) Discouraging membership in Textile Workers Union of America, CIO, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment;

   (b) Enforcing its rule against solicitation, or any other plant rule, in such manner as to discriminate against its employees because of their union affiliation, activities, or sympathies;

   (c) Interrogating its employees in any manner concerning their union affiliation, activities, or sympathies, or threatening them with discharge or other economic reprisal because of their union affiliation, activities, or sympathies;

   (d) Threatening employees that it will close its plant, or taking other economic reprisals against its employees if they join Textile Workers Union of America, CIO, or any other labor organization, or if a majority of its employees select a new labor organization to represent them in collective bargaining;

   (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Textile Workers Union of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act.

2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:

   (a) Offer to Lewis Crabtree and Robert E. Newhart immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges;

   (b) Make whole Lewis Crabtree and Robert E. Newhart in...