National Labor Relations Bd. v. Asheville Hosiery Co., 4515.

• Decision Date: 15 December 1939
• Docket Number: No. 4515.,4515.
• Citation: 108 F.2d 288
• Parties: NATIONAL LABOR RELATIONS BOARD v. ASHEVILLE HOSIERY CO.
• Court: U.S. Court of Appeals — Fourth Circuit

108 F.2d 288 (1939)

NATIONAL LABOR RELATIONS BOARD v. ASHEVILLE HOSIERY CO.

No. 4515.

Circuit Court of Appeals, Fourth Circuit.

December 15, 1939.

Alvin J. Rockwell, Atty., National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Samuel Edes and William F. Guffey, Jr., Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Thomas J. Harkins, of Asheville, N. C. (Harkins, Van Winkle & Walton, of Asheville, N. C., on the brief), for respondent.

Before SOPER and NORTHCOTT, Circuit Judges, and LUMPKIN, District Judge.

SOPER, Circuit Judge.

National Labor Relations Board seeks enforcement of an order whereby it directed Asheville Hosiery Company to cease and desist from discouraging membership in American Federation of Hosiery Workers, an affiliate of the Congress for Industrial Organizations, and to offer reinstatement to certain employees and to make them whole for any loss of wages suffered by their discharge or expulsion from the company's mill in the manner hereinafter described. The order was issued after hearing upon certain charges filed by the Union.

The Hosiery Company is a Delaware corporation, engaged in the manufacture and sale of hosiery at Asheville, North Carolina, where it employs approximately two hundred and twenty workers. A larger percentage of the raw materials used in the manufacture are purchased outside North Carolina, and shipped into the State, and a large percentage of the finished products are shipped in interstate commerce to points outside the State. The application of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and the jurisdiction of the National Labor Relations Board are not disputed. Nearly all of the stock of the corporation is owned by Theo. Y. Rodgers, only one per cent being held partly by his son, John T. Rodgers, treasurer and general manager of the company, and partly by an attorney of the company. The relationship between the Rodgers and their employees has been close and intimate; and the controversies which are the subject of this suit were not occasioned by dissatisfaction on the part of the employees with their working conditions.¹

These controversies began with the discharge of George Baxter from the company's employ on November 22, 1937. The Board found and now contends that Baxter was discharged for Union activities. In the middle of October, Baxter received a telegram that his mother was sick at Greensboro, North Carolina, and borrowed money from the company in order that he might visit her. While there, he visited the offices of the Union and became acquainted with its organizers; and as a consequence, an organizer came to Asheville on Sunday, November 14, and a meeting was held at Baxter's home. During the following week there was some solicitation of the employees to become members of the Union, but it was purposely kept secret from the management. On Saturdays the plant is not operated, but certain employees go to the mill to put their machines in order for the piece work operations of the following week. On Saturday, November 21, Baxter and others solicited workers at the plant to join the Union. During the afternoon the night foreman came to the plant. He denied any knowledge of the solicitation, and there is no direct evidence that it reached the ear of the management.

On the afternoon of Sunday, November 21, a score of workers and an organizer met at the home of Fulton Silvers, a fellow employee, and formed a tentative Union organization, by the election of a committee of five to take charge until permanent officers should be chosen. Edward A. Taylor was chosen spokesman for the committee. On Monday, November 22, at the close of the day's work, Baxter was discharged.

The Board found from this sequence of events that Baxter was discharged for Union activities. In order to reach this conclusion it was necessary to reject, as unworthy of belief, the testimony of John T. Rodgers and of others that Baxter was discharged for poor workmanship and inattention to his duties. The poor work record of the man was established by convincing testimony of which the Board had the following, amongst other things, to say in its opinion: "At the hearing it (the company) introduced records comparing the work of Baxter with that of seven other employees. These records show clearly that Baxter was the poorest of the eight and had been for some time. Other figures show Baxter to have made the poorest record of all the leggers for the week preceding his discharge. In addition, considerable testimony was introduced to show that Baxter was negligent and careless in his work and had been guilty of misconduct of various kinds, including gambling and drinking".

The Board supported its rejection of Rodgers' testimony as to the cause of the discharge by also finding that Rodgers' testimony was untrue when he said that at the time he had not heard of the recent tentative organization of the local branch of the Union or of Baxter's connection therewith. There was disputed hearsay testimony that Rodgers had heard of Baxter's contact with the Union upon the occasion of his visit to Greensboro;² and there was also disputed testimony that on Sunday, November 21, following the meeting at Silvers' house, Rodgers had heard of a movement to unionize the mill, although no mention of Baxter occurred in the testimony last referred to. But taken as a whole, the evidence adduced to show that the discharge was due to Baxter's connection with the Union rather than to his admittedly bad work was sufficient to give rise to nothing more than a conjecture or suspicion, and was too unsubstantial in law to support the Board's finding. See Edison Co. v. National Labor Relations Board, 305 U.S. 197, 238, 59 S.Ct. 206, 220, 83 L.Ed. 126.

Several subsequent events are also relied upon by the Board to indicate a discriminatory discharge. They give little confirmation to this theory unless one has already adopted it, but they require careful examination since they form the basis of additional findings upon which other provisions of the Board's order directed to the employer were grounded. Eleven Union employees were ejected from the plant on December 1 and 2 by the workers, who would not consent to their return to the mill until a week or more later; and four of the eleven employees left again on December 29 and have not yet returned for the reason, as they allege, that they were fearful of bodily harm. The Board held that the company was responsible for the consequent loss of employment of all of these workers on the ground that by its conduct it caused its employees to engage in the ousters and refused to offer the four men who left on December 29 unconditional reinstatement under a guarantee of protection. The company was therefore ordered to make good the loss of earnings, not only of nine of those who were out of work from the period December 1 to December 8, but also of the four who have not worked in the mill since December 29, 1937. A similar provision was made with regard to the earnings of George Baxter.

The events which led to the division of the workers into two factions, and the ejectment of some of the leaders of the minority Union group, were substantially as follows: The discharge of Baxter in the afternoon of November 22 led immediately to an accusation by the Union committee that he was discharged for Union activities. Rodgers angrily denied the accusation and warned Taylor, the spokesman of the Union committee, that he also might lose his job. The next day Rodgers apologized to Taylor for his hasty words. Previously, according to the testimony of numerous witnesses, Union members had been solicited upon the misrepresentation that a majority of the workers had signed Union cards, and upon the threat that when the Union came into power, non-members would lose their jobs. To some of the workers it was explained that if the management did not meet the demands of the Union when it was fully established, a strike would be called, the plant would be picketed and the non-Union men would not be allowed to enter. The largest Union membership at any time was forty-nine, of whom fourteen subsequently withdrew. The testimony of scores of witnesses as to the misrepresentations and threats of the active Union men is so circumstantial and detailed that it is impossible to disregard it in reaching a correct decision of the case.

During the afternoon of November 22 and the morning of November 23, there was considerable unrest among the workers as well as inattention to work. Rodgers made two speeches on the morning of November 23, one to the knitters and the other to the seamers and loopers, in order to quiet the unrest and dispel the confusion. These speeches were followed by a speech by Brewer, a foreman of the company on the following day. With regard to these speeches and the removal from the plant of coal and empty silk boxes, the Board had the following to say in its opinion:

"On Tuesday, November 23, John T. Rodgers spoke to the employees in assembly, in order, according to his own testimony, to dispel the confusion. He spoke about business conditions generally, saying that they were bad and that orders were dropping off. He pointed out to Ed Taylor that modern equipment in the plant had resulted in increased earnings for Taylor and for other employees. He stated that they had a perfect right to join a labor organization, but suggested that they think it over and not do anything hastily. He then intimated that his father disliked unions, and that there was a possibility that on his return he might shut the plant down when he learned about `this trouble.' This speech of Rodgers was followed the next day by a speech by Brewer, also allegedly in an attempt to quiet the continued unrest among the employees. Brewer, in the same...