Rockingham Poultry Marketing Cooperative, Inc.

In the Matter of ROCKINGRAM POULTRY MARKETING COOPERATIVE, INO. and AMERICAN FEDERATION OF LABOR Case No. 5-C-1734.-Decided November 25, 1944 DECISION AND ORDER On June 17, 1914, the Trial Examiner issued his Intermediate Re- port in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and that it had not engaged in certain other unfair labor practices, and recom- mending that it cease and. desist from the unfair labor practices found and take certain affirmative action, as set out in the copy of the Inter- mediate Report attached hereto, and that the complaint be dismissed as to the remaining allegations. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. No exceptions were filed by the Union. Oral argument, in which the respondent and the Union participated, was held before the Board in Washington, D. C., on October 24, 1944. The Board has consid- ered the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's brief and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions and recommendations of the Trial Examiner, with the exceptions and qualifications noted below : 1. The Trial Examiner found, and we agree, that Ray Shoemaker and Beverly Bowman were laid off because of their concerted activities in circulating a petition for a wage increase. As we have held in several 'recent cases,' such activities come within the meaning of Section 7 of the Act, and a, lay-off or discharge for engaging in such activities violates not only Section 8 (1) of the Act, but also discourages mem- bership in a labor organization in violation of Section 8 (3). More- over, whether the discharge be regarded as a violation of Section 8 (1) or of Section 8 (3) of, the Act, we find that it is necessary to order the I Matter of Hymte Schwartz, 55 N. L. R. B. 798; Matter of The Sandy Hill Iron & Brass Works, 55 N. L. R. B. 1; Matter of Ever Ready Label Corporation, 54 N. L. R. B. 551; Matter of Texas Textile Mills, 58 N. L. R. B. 352. 59 N. L. R. B., No. 98. 486 ROCKINGHAM POULTRY MARKETING COOPERATIVE, INC. 487 employees to be made whole in order to effectuate the policies of the Act.2 2. The Trial Examiner found that the respondent discharged Nelson Whetzel because of his outstanding activities in behalf of the Union, thereby violating Section 8 (3) of the Act. We have care- fully reviewed the record and, although we note that the respondent's conduct in this matter is not entirely free from the suspicion of dis- crimination, unlike the Trial Examiner, we are unable to conclude from all. the evidence that its motive in discharging Whetzel was unlawful. In reaching this conclusion we are persuaded, among other things, by the following considerations : Although Manager Pringle denied Whetzel's requested release in November 1944, when the respondent's operations were at their' seasonal peak, Pringle stated at that time that the release would be granted as soon as the respondent could find a replacement for Whetzel. Thereafter, Whetzel's work, which had not been too satisfactory for some time prior thereto, deteriorated sharply. He was absent from work without permission on several occasions and numerous complaints were made about him to Manager. Heitz by several supervisors who recommended that Whetzel be dis- charged. Manager Heitz did not comply with these requests at that time because he felt that "poor help is better than none" during the busy season. The respondent's production records, introduced in evidence, corroborate Heitz's testimony regarding the heavy volume of business during this period. On January 12, 1944, after the re- spondent had begun to experience its seasonal decline in operations, the respondent fulfilled its prior promise by releasing Whetzel. Although on the date of Whetzel's release the respondent had reason to expect that orders from the War Shipping Administration would be forthcoming, we are unable to conclude from that fact that the respondent was unlawfully motivated in discharging Whetzel, in view of the other considerations outlined above.. Accordingly, we shall order that the complaint be dismissed insofar as it alleges that the respondent violated the Act in discharging Whetzel. 3. The Trial Examiner found that, on the day before Shoemaker and Bowman were laid off, Foreman Hawes remarked to Shoemaker, "that was a good way" for him and Bowman "to get discharged." In construing this remark to refer to the circulation of the petition for a wage increase by these employees, the Trial Examiner relied, in part, upon an earlier threatening remark made by Hawes concerning the petition. We believe, and find, that the Trial Examiner's con- struction of Hawes' statement is proper, but we base our finding on I Fort Wayne Corrugated Paper Co. v. N . L. R. B., 111 F. (2d) 869, 870-871 (C. C. A. 7) ; Matter of Ever Ready Label Corporation, 54 N. L. R. B. 551 ; Matter of Texas Textile Mills, 58 N. L. R. B., 352. 488 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shoemaker's testimony that, at the time the statement was made, he interpreted it to refer to the circulation of the petition, and on the fact that the statement admits of no other reasonable construction. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) ,of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Rockingham Poultry MIar- keting Cooperative,'Inc.,'Timberville, Virginia, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : - (a) Discouraging membership in the American Federation of Labor, or any other labor organization of its employees, by laying off or discharging, and 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 their employment; (b) In any other ,mamnier interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act.- 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : - (a) Make whole Ray Shoemaker and Beverly Bowman for any loss 6f 'pay they have suffered by reason of the respondent's discrimination against them, by payment to each of them of a suin of money equal to the amount which he normally would have earned as wages from October 9, 1943, the date of the discrimination against him, to the dtite of his employment at the position which he held at the time of the hearing, less his net earnings during such period ; (b) Post immediately in conspicuous places at its plant in Timber- Ville, Virginia, and maintain for a period of at least sixty (60) coii- secutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order, (2) that the respondent will take the affirmative action set forth in paragraph 2 of this Order; and (3) that the respondent's employees are free to become and remain members of the American Federation of Labor, or any other labor organization, and that the respondent will not discriminate against any employees because of their concerted activities; ROCKINGHAM POULTRY MARKETING COOPERATIVE, INC. 489 (c) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent engaged in surveillance within the meaning of Section 8 (1) of the Act, and discriminated against Nelson Whetzel, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. George L. Weasler. for the Board Hunton, Williams, Anderson, Gay, and Moore, by Mr Edmund M. Preston, of 'Richmond, Va., for the Respondent. Mr. J. R. Millet, of Richmond, Va, for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on March 29, 1944, by American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifth Region (Baltimore, Maryland), issued its complaint dated April 4, 1944, against Rockingham Poultry Marketing Cooperative, Inc, a corporation, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint and notice of hearing thereon were duly served upon the re spondent and the Union. With respect. to the unfair labor practices, the complaint alleged in substance that the respondent: (1) on or about October 9, 1943, discharged Ray Shoemaker and Beverly Bowman' and thereafter and at all times since said date has refused to reinstate said Ray Shoemaker and Beverly Bowman to their former or sub- stantially equivalent positions because they had engaged in concerted activities with other employees of the respondent for the purposes of collective bargaining or other mutual aid or protection; (2) on or about January 12, 1944, discharged Nelson Whetzel and has at all times since said date refused to reinstate said Nelson Whetzel to his former or substantially equivalent position because said Nelson Whetzel joined or. assisted the Union and engaged in concerted activities with other employees of the respondent for the purposes of collective bargaining or other mutual aid or protection; (3) since on or about September 15, 1943, to and including the date of the issuance of the complaint, interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by urging, persuading, and warning its employees to refrain from becoming or remaining members of the Union, questioning its employees concerning their membership in and activities on behalf of the Union, making disparaging and derogatory remarks about the Union and its membership, threat- ening its employees with discharge and other reprisals if they became or remained members of the Union, and keeping under surveillance the activities of its em- ployees and the meetings and meeting places of said employees for the purpose of ascertaining the activities of its employees in and on behalf of the Union. ' Erroneously referred to in the complaint as Roy Shoemaker and Beverley Bowman. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent's answer filed on April 13, 1944, admits the allegations in the complaint with reference to its corporate entity and the nature of its business, denies the jurisdiction of the Board, and the commission of any unfair labor practices, and affirmatively avers that the employees alleged to have been dis- criminated against were properly released by the respondent by reason of the curtailment, in the cases of Ray Shoemaker and Beverly Bowman, of employ- ment in the department in which they were employed, and of , the seasonal cur- tailment of employment at the respondent' s plant in the case of Nelson Whetzel: Pursuant to due notice, a hearing was held on May:-4, 5, and 6, 1944, before George Bokat; the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by one of its representatives. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues. During the course of the presentation of the Board's' case, the respondent moved to dis- miss the allegations in the complaint insofar as they relate to the discriminatory- discharges of Ray Shoemaker and Beverly Bowman, on the ground that these em- ployees did not desire reinstatement. These motions were denied. Counsel for the Board and the respondent also joined in motions to conform their respective pleadings to the evidence adduced. These motions were granted without ob- jection. Ruling on a further motion made by the respondent at the close of the hearing to dismiss each and. every,allegation in the complaint, as well as the complaint in°its entirety, for lack of substantial evidence, in addition-to the further ground of lack of jurisdiction, was reserved. The motion is hereby denied. All parties availed themselves of the opportunity to argue orally on the record. Although afforded an opportunity to do so, all parties declined to file briefs. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Rockingham Poultry Marketing Cooperative, Inc., is a Virginia corporation, operating and maintaining plants at Timberville and New Market, Virginia, the main plant being located in Timberville, where it is engaged in the business of killing and dressing poultry. From January 1, 1943 to date, live poultry valued at approximately $4,325,000 was, purchased by the respondent; between 15 and 20 percent of which was purchased and shipped from points outside the State of Virginia to the plants of the respondent at New Market and Timberville. The greater portion of materials, supplies, machinery and replacements , measured in dollars, purchased by the respondent is shipped to its plants from outside the State of Virginia. During the same period, the respondent sold eviscerated and dressed poultry valued at approximately $7,000,000. During the year 1943,65.74 percent of such sales was to points outside the State of Virginia, and 0.39 percent was shipped and delivered to the United States Army for storage at Winchester, Virginia. From January 1, 1944, to date, 9.73 percent of such sales was to points outside the State of Virginia, and 61.45 percent, waN shipped and delivered to the United States Army for storage at Winchester, Virginia. The respondent 9 At the close of the hearing, the undersigned granted the respondent's motion to amend its answer with respect to Nelson Whetzel , by adding at the end of paragraph 5 thereof, the words "because of his prior request for a release and because of his 'unsatisfactory employment record." ROCKINGHAM POUITPRY MARKETING COOPERATIVE, INC . 491 employs approximately 167 employees at its Timberville, Virginia, plant, which is the only plant involved in this proceeding.' II. THE ORGANIZATION INVOLVED American Federation of Labor is a labor organization admitting to membership employees of the respondent. UI. THE UNFAIR LABOR PRACTICES A. The nature of the respondent's operations at the Timberville plant The respondent owns and operates a cooperative enterprise, organized under the laws of the State of Virginia governing cooperatives. It has approximately 3,200 farmer-producer members from whom it purchases all but approximately 25 percent of the total amount of its live poultry. In the event that earnings of the cooperative are, sufficient to warrant it, members are paid a dividend based on the amount of their annual sales, in which case the cooperative is required by its charter to pay a bonus to its employees of a total of approxi- mately 20 percent of the amount of the dividends. Poultry is purchased at the farms and transported in trucks operated by the respondent to its plant. Upon arrival at the plant the chickens are placed in feeding "batteries," after which they are killed, processed and prepared for shipment.4 The poultry is killed and hung on an "endless chain" at the top floor of the plant and gradually carried down on this chain to the bottom floor, during which, .in successive stages, it is put through a scalding tank, picking machine, and second picking machine. During this process, the wing and tail feathers are removed manually, after which the poultry is dipped in wax, and then sprayed with cold water to permit the wax to harden. The wax acts as a depilatory, removing the feathers in the course of the operation. The hardened wax is removed by hand, after which pin feathers are removed manually by a crew of women. The chickens are then run through gas flames, or "`torched," and passed over tanks where the vents and crops of the chickens are emptied. Thereafter, the chickens are sprayed, washed, and deposited in 'cooling or freezing tanks where the animal temperature is reduced to about 40 degrees. They are then weighed, packed in ice, and in the case of eviscerated poultry, carried to the eviscerating room where this operation is performed, and made ready for shipment 6 In view of the fact that the respondent has denied jurisdiction of the Board, without stating the specific grounds relied upon, it will be observed from the foregoing facts that the respondent is not engaged in agriculture, and that its em- ployees are not "agricultural laborer (s)" within the exemption under Section 2 (3) of the Act.' The undersigned finds that the respondent is engaged in commerce within the meaning of the Act. " The findings in this paragraph are based upon a stipulation entered into by the parties. The respondent, however, expressly denied the Board's jurisdiction, without specifying the grounds relied upon. 4The respondent handles both chickens and turkeys . The processing of both types of poultry is substantially the same, except that turkeys are not fed before being killed. 6 No attempt has been made to describe in detail the method of processing. The facts related in the text are outlined to assist in visualizing the respondent's operations insofar as they affect the consideration of the allegations in the complaint and the issues involved. 6 Cf. Matter of Wilbur E. Lindstrom, at at., d/b/a Lindstrom Hatchery and Poultry Farm, 49 N. L. R. B. 776. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Chronology of events During the early part of October 1943, there was some dissatisfaction among the respondent's employees with wages and working conditions at the plant. Some of the employees discussed the possibility of a strike, and as an alterna- tive to this method of asserting their demands, Ray Shoemaker and Beverly Bowman, employees in the eviscerating room, initiated the circulation of a "petition" for a wage increase of 5 cents per hour.? Shoemaker and Bowman took turns circulating the petition, and from about October 5 to October 9, obtained approximately 100 signatures between them. The petition was circulated, and signatures were obtained, openly„both, inside and outside the plant. There were at that time approximately 150 employees in the plant, of whom between 50 and 60 were employed in the eviscerating room. On October 9, 1943, Shoemaker and Bowman were laid off by the respondent, and their employment terminated, under circumstances described below Organizational activity commenced in the plant on or about December 9, 1943. In response to a 'letter addressed to the Union by Nelson Whetzel, one of the employees alleged to have been discriminatorily. discharged, Organizer J. R., Miller wrote Whetzel, informing him that he would be in Harrisonburg on < December 18 and 19 and would like to meet a committee of the respondent's employees. On Sunday, December 19, Miller met with such a committee compris- ing some 9 employees, including Whetzel, Floyd Bennett, and Kirby Meadows, at the Kavanaugh Hotel in Harrisonburg. The committee voted to organize a union, and Miller gave about 200 membership application cards to Whetzel. Several of the committee, including Whetzel, signed cards at this meeting. Membership cards were thereafter distributed at the plant during rest periods, after working hours, and at the homes of employees A total-of 74 membership cards was signed, of which Whetzel- obtained 60, 40 to 50 during the remainder of the month of December and the balance during the first part of January. On December 27 or 28, Miller again wrote to Whetzel, instructing him to call an open meeting at Timberville. Whetzel made the necessary arrangements, and a meeting was thereafter held at Community Hall in Timberville on Friday evening, January 7, 1944. About 25 employees attended. Organizer Archibald, who was acting in Miller's absence, was in charge of the meeting On January 12, Whet- zel's employment with the respondent was terminated. A further union meeting scheduled for January 21 never materialized. Sometime during the month of October 1943, at about the time that the peti- tion was being circulated, Mose Hawes, foreman of the picking room, approached Whetzel and asked him if he had signed the petition Whetzel admitted that he had and added that he "would like to see a union get" into the plant. Hawes replied that "the union would never get" into the plant, that "it was against the law to try to organize labor in a food processing plant," and that all those who "signed the petition was liable to a jail sentence " On January 10, the Monday following the union meeting, Foreman Hawes approached Bennett, one of the employees who had attended the meeting of the committee at the Kavanaugh Hotel and who had also been present at the Timberville meeting the previous Friday evening, and, in the presence of Whetzel, said, according to Bennett, "I understand you were the main cheese down there at the meeting the other night? . . . I thought you used judgment . . . You going to get a union?" Bennett replied, "I don't know ; I am going to try to." Hawes T The "petition" consisted of a blank sheet of paper to which employees subscribed their names It . bore no caption or other explanatory writing, but employees were verbally informed of the purpose of the petition. ROCKINGHAM POULTRY MARKETING COOPERATIVE, INC. 493 asked him where he intended to get the members, to which Bennett answered that he was "going around and expected to get them" in the plant. Hawes retorted with, "Yes, you will," or some similar remark 8 In the late afternoon or evening, several days following this conversation of January 10, and after Whetzel's employment was terminated, while Bennett and several other employees were in the rest room, Superintendent Andrew Fitzwater came into the room. Bennett had some membership application cards with him at the time and was discussing the Union with employees Turner Fulk and Sam Perky. Fitzwater inquired of Bennett and Perky, "What have you got there?" Perky replied, "The union." Fitzwater then asked the men what they expected to gain by it, and Perky replied, "40 cents,:an hour " Fitzwater then stated, "I don't see what you are going to accomplish by it," adding that the respondent was paying all that the Wages and Hours law allowed.' The-day following the union meeting of January 7, Fitzwater asked Meadows if he had attended the meeting or signed a card. Meadows replied that he had not Fitzwater thereupon asked him what he, thought about the Union, and Meadows told him that he wanted to find out a little more about it before he joined Fitzwater replied, "Be sure you know what you are doing before you do sign," adding that he did not think the employees were interested in the Union " C. The lay-offs of Shoemaker and Bowman Shoemaker was employed by the respondent on December 8, 1941. At the time of his lay-off he was employed in the eviscerating room. Bowman, who was laid off with Shoemaker, also worked in the eviscerating room and his employ- ment dated from'January 1943 On or about October 5, 1943, Shoemaker and Bowman initiated the circulation of the petition already discussed The circula- tion continued until October 9 on which date both were released. It has already been stated that these two employees obtained the signatures of over 100 employees to the petition On Friday, the day preceding Shoemaker's lay-off, while he was taking a can for the removal of plash to employee Long, Hawes remarked to Shoemaker, "that was a good way" for him and Bowman "to get discharged." " These employees learned that they were to be released for the first time on October 9, and upon being informed of the termination of their employment, s This finding is based upon Bennett 's testimony , corroborated in substance by Whetzel, who attributed considerably stronger language to Hawes . Hawes denied this testimony except for his admission that he "may have" referred to Bennett being the main speaker at the union meeting Bennett was an utterly guileless and naive witness of unques- tionable honesty and his testimony is credited Hawes also denied having the conversation with Whetzel concerning the petition, as set forth above This conflict is more difficult to resolve since neither Whetzel nor Hawes was an entirely credible witness In regard to this incident, however, the undersigned credits Whetzel's testinionv, particularly in view of the testimony of Shoemaker regarding a remark Hawes made to Shoemaker, evidently about the petition, more fully described below See footnote 11, infra. 0 Fitzwater, in admitting this conversation, conceded that he had started it 10 Fitzwater admitted, while testifying, that this conversation occurred substantially as set forth above. 11 The undersigned believes and finds that Hawes was referring to the circulation of the petition by Shoemaker and Bowman when he made the remark quoted above. Although Hawes denied making this statement, Shoemaker's testimony in regard thereto was elicited in the course of a response to an inquiry fiom the undersigned as to the first intimation Shoemaker had that he was going to be released The statement attributed to Hawes was. made spontaneously , developed during cross-examination of the witness by respondent's counsel, and gave every indication of veracity. Furthermore, Hawes' previous remark to Whetzel that those who signed the petition would be liable to a jail sentence supports the inference that Hawes in threatening dischaige was referring to the circulation of the petition 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shoemaker and Bowman went to the office of General Manager Heitz, after receiving their pay envelopes and releases, to ascertain the reason. Heitz explained that the respondent was shutting down the eviscerating room and that in consequence of a discussion between him, Assistant Manager Pringle, and Superintendent Fitzwater, it was decided to release Shoemaker and Bowman as employees with whose services they could most easily dispense. According to Heitz's testimony, Shoemaker thereupon, and for the first time, exhibited the "petition" to him and asked, "Are you sure this isn't the reason?" Heitz replied that he knew nothing about the document, testifying that it had no heading, and consisted merely of a list of names. Shoemaker explained the object of the petition, stating that he "hoped" that the persons signing the petition would receive 40 cents an hour. Heitz then replied that "they could have saved themselves a lot of trouble" inasmuch as an increase had been contemplated by the respondent. Shoemaker testified that after he turned the petition over to him, Heitz remarked that he could get Shoemaker into trouble, but that he would not do so, and further stated, "This is a damn good way to get in the Army." Shoemaker replied that Heitz did not need to "waste a stamp" as he was already in "4-F." Heitz denied this statement, testifying that he under- stood at the time that both Shoemaker and Bowman had been classified in 4-F and that he was certain of it, at least as to Bowman" The respondent's contentions as to the lay-offs of Shoemaker and Bowman The respondent in its answer alleged that Shoemaker and Bowman were released "upon curtailment of employment in the department in which they were employed." In the latter part of September, as a result of regulations promulgated by the Office of Price Administration,18 the respondent decided to curtail operations in the eviscerating room, at least temporarily.14 Of the 50 to 60 persons employed in this department at the time, all but five or six were women. The respondent, recognizing the paramount importance of "main- taining the nucleus of [its eviscerating] crew," determined to retain and utilize all these employees, with the exception of Shoemaker and Bowman, elsewhere in the plant, Superintendent Fitzwater testified that the respondent was able to absorb all but two of the eviscerating employees' and that he recommended that Shoemaker and Bowman be selected for lay-off primarily because of their unsatisfactory work and their previously expressed desire to leave the employ of the respondent. Plant Manager Heitz testified that of the five or six men in the eviscerating room "we decided we would keep the good ones or those who wanted to stay, and let the rest of them go." In determining to release Bowman, Heitz testified that this decision was based on Bowman's poor attendance record as well as his unsatisfactory work, while 11 Shoemaker's testimony was corroborated by Bowman . The undersigned credits their testimony as to this incident. 16 The OPA regulation, dated September 28, 1943, provided, in part, that poultry classi- fied as eviscerated must be "quick -frozen" within 6 hours after evisceration and kept in a "quick-freezing chamber until quick-frozen solid." The respondent was unable to comply with this requirement due to lack of adequate facilities. 14 Heitz testified that subsequent to this decision between 15 and 20 women and about 3 men were kept on part-time work in the eviscerating room "until we developed a new process that would give them more employment." The respondent's "hope" that the OPA ruling would be modified was subsequently realized. The eviscerating room was in opera- tion at the time of the hearing. 16 Subsequent to the decision to lay off two employees , some of the female employees were engaged in part-time work in the eviscerating room and the remainder of the time in the picking room. The remaining male employees were assigned to work on "temporary con- struction" as well as part-time work in the eviscerating room. ROCKINGHAM POULTRY MARKETING COOPERATIVE, INC. 495 as to Shoemaker, his release was based "mostly [on his] lack of interest in his work" during the preceding month or two, resulting from his desire to leave. At the time of their release, the respondent delivered to each of these employees the following letter, the contents of which were identical : We are sorry to inform you that your services will no longer be required in as much as we are curtailing operations in the Eviscerating Room. At some future date we can possible (sic) take you back into our employment. Your official release has been sent to the U. S. Employment . Bureau, in Harrisonburg as per the above. Concluding findings as to Shoemaker and Bowman Although the respondent operates its plant throughout the entire year, its pro- duction varies somewhat according to seasonal demands. The peak season occurs during the months of October, November and December when, according to Heitz, "we are overworked . . . The plant always handles more poultry than it can handle well during those three months . . ." In order to meet its per- sonnel requirements during this period, the respondent employs transient or itinerant workers in addition to its regular complement of employees, until such time as its operations return to normal. While the number of employees used by the respondent depends to some extent upon the volume of poultry eviscerated, Heitz testified that even if no poultry is eviscerated during the months of October, November and December, "we would still need a very large employment, because our tonnage is terrific " The respondent does not employ skilled labor; of the employees continuously employed throughout the year, about 80 percent are drawn from among neigh- boring farmers and members of their families. These employees are trained by the respondent and are frequently transferred from one operation to another in the plant. In determining upon the selection for lay-off of Shoemaker and Bowman, the respondent contended that if considered the unsatisfactory work of Shoe- maker a month or two before his lay-off and his alleged previously expressed desire to leave its employ. With the exception of this period of one or two months, Assistant Manager Pringle characterized his work during 22 months of employ- ment as "very good." Although the respondent contended that the quality of his work deteriorated after he lost interest because of his desire to leave for a higher paying job, Shoemaker admittedly never asked for a release and was never disciplined or laid off until about 5 days after he had instituted the circulation of the petition. Moreover, the respondent, while resting its decision to release him, in part at least, upon his alleged desire to leave the plant, made no effort to as- certain from him, prior to determining on his release, whether or not he desired to remain. Although the quality of Bowman's work was admittedly less satisfactory than Shoemaker's, and Bowman himself was frank to admit that complaints had been made to him, and that his attendance record was not exemplary, nevertheless, when he requested a release from Fitzwater about a month and a half before his lay-off, it was refused. Furthermore, Fitzwater testified that he had "fired" Bowman about 2 months before his lay-off for refusing to perform work assigned to him, and yet permitted him to return to work several days later, after Bowman "apologized." With respect to whether both of these employees would have been retained if the eviscerating room had not been shut down, Fitzwater testified, "Probably would have for some time, but eventually they would have been gotten rid of." Asked whether he had any intention of taking them back at the time they were 618683-45-vol. 59-33 - 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laid off, he testified, "At some future date, probably", adding, "If we got real busy and needed them bad enough, we probably would, even with the bad record." It is clear from the foregoing that the basic reason advanced by the respond- ent for the lay-offs of Shoemaker and Bowman was the necessity for curtail- ment of employment in the eviscerating room, resulting from the OPA Regula- tions. It will be recalled that these employees were laid off in October at the beginning of the peak season of the respondent's operations when the respondent normally hires additional employees. Manager Heitz testified that even if no evisceration was done during this period, the respondent "would still need a very large employment" due to its "terrific" tonnage. Furthermore, it is difficult to reconcile its contention regarding the necessity for curtailing employment in the eviscerating room to the extent of only two employees, with the admittedly crit- ical manpower shortage confronting the respondent which prompted it to main- tain the nucleus of its eviscerating crew, even to the extent of making work if necessary for the employees whom it desired to retain. Thus, of the 50 to 60 em- ployees in the eviscerating department, all the women were absorbed in the picking room, and all the men, with the exception of Shoemaker and Bowman, were retained "part-time" in the eviscerating room and the remainder of the time, assigned to "temporary construction." No other employees were laid off at that time.'6 That there was in fact no necessity for lay-offs at the time, notwithstanding the curtailment of operations in the eviscerating department, is further evi- denced by employment records of the respondent, introduced in evidence, which revealed that it hired one employee during the week ending October 6, anothler, the week ending October 13, during which it lost 3 employees, including Shoe- maker and Bowman, and hired 3 employees during the week ending October 14 This is borne out by the following testimony of Heitz : Q [By Trial Examiner BOKAT] So that your problem at that time would be with the majority of people who worked in that department to determine whether you could absorb them in the rest of the plant ; is that correct? A. There was no real problem'from the women's standpoint, because it happened to come right at the peak load of our dressing room Q. That is what I want to get In other words, as I understand your testimony, October , November, and December are your busiest months 9 A. That is right. Q You normally have to hire additional' employees to carry over that period; is not that correct? A. That is correct. Q. You hire men, as well as women, during those months , do you-October, Novem- ber, and December, if the need arises? A Not so many men as we do women. Q. All right. Now, you then eliminated the problem of what to do with the women at this conference, as I understand it, and you had five or six men left, and you had to determine what to do with them? A. That is right Q. Is that correct 9 A. Yes Q What you were trying to determine as to the five or six men was whether or not you could use them in the plant in other jobs? Is that what you were trying to determine? A. Not entirely. If the men were good workers and wanted to stay, my advice was to keep them, and even if we had no work to do, we would manufacture some work for them to do We would have had them fix chicken coops. Q That was because of your manpower shortage? - A. That is right. Q And on account of your busy season? A. That is right. Q And you anticipated that you would at least have to hire additional people, men or women, I assume ; is that right? A. Yes ; we had hoped that the OPA ruling would be changed. ROCKINGHAM POULTRY MARKETING COOPERATIVE, INC. 497 20, while losing one employee during the same period."P It is further significant that Barnhart, manager of the United States Employment Service in Harrison-' burg, testified that a number of "referrals" were made through that office to the respondent during the months of October, November and December 1943.18 Furthermore, it is clear that in October the respondent anticipated hiring addi- tional employees for use in the unloading,- weighing and feeding of chickens. Pringle admitted that the number of employees in this department increased with the added purchases of poultry. This is substantiated by the employ ment records of the respondent which demonstrated that the respondent did in fact hire additional employees at about this time. Under the circumstances' it is clear, and the undersigned finds, that the reasons assigned by the re, spondent for laying off Shoemaker and Bowman were not based upon the exi-, gencies of its business conditions at the time. It now remains to be determined what actually motivated the respondent in effecting the lay-offs of these two employees It has already been found that Foreman Hawes, on the day preceding their lay-off, threatened them with discharge. Obviously, he knew that they had been circulating the petition.. Fitzwater, too, knew that these employees had been circulating the petition 18, The undersigned is convinced and finds from all the circumstances, that the respondent knew that Shoemaker and Bowman had been circulating the peti- tion prior to its determination to lay them off. Upon the basis of the foregoing and all the attendant circumstances, the undersigned is convinced and finds, in view of the fact that it knew that Shoemaker and Bowman were circulating the petition and threatened to discharge them therefor prior to its determination to lay them off ; in view of the re- spondent's expressed desire to retain the nucleus of its eviscerating crew and the provision made by it for absorbing all the remaining eviscerating employees, except Shoemaker and Bowman, into other parts of the plant ; the anticipated need for help in departments other than the eviscerating room at the time the respondent laid them off in the face of a critical manpower shortage; the hiring 17 The respondent made no explanation for hiring these employees at a time when it contended that it was confronted with the necessity for laying off 2 employees. 11 This is further substantiated by the respondent's employment records. 19 Fitzwater's testimony on this point was impeached by his own self-contradictions. At one point in his direct testimony, be testified Trial Examiner BoictT. Did you know that they [Shoemaker and Bowman] had been circulating the petition ? The WITNESS. I had heard indirectly that they had Trial Examiner BOKAT. All right Q. (By Mr. PRESTON) . now long before they were released had you heard that? r ► s • s s A. I would say about the last of September That was about the first I had beard about it, because that was just in the beginning stage. Later, on cross-examination he testified Q. Would you say that the petition was circulated prior to that week? A. Yes, sir; by the gossip that went around, I would say so s * * I did not know anything about it otherwise Q. (By Mr. WEASLER). Did the gossip around the plant also tell you who was cir- culating the petition? A No, sir Q You just knew that a petition was'being circulated? A That is right. Q. Did you know what the petition was asking foi ? A Someone had said it was a five-cent raise in pay. That is all I knew. Trial Examiner BOKAT Well, did you or did you not know whether Bowman or Shoemaker had anything to do with the circulation of the petition? The WITNESS. I didn't know that they had anything to do with it. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of additional employees at about the same time; and especially, in view of the timing of these lay-offs with the circulation of the petition between October 5 and October 9, that the respondent would not have laid off these employees. in the absence of their concerted activity in circulating the petition. The discharge of Nelson Whetzel Whetzel first entered the employ of the respondent on July 20, 1942, and worked until July 29, 1943, when he left voluntarily. From the latter part of July 1943 to September 10, 1943, he was employed as a mechanic in a local garage at Timberville. Following Fitzwater's request on several occasions, Whetzel re- turned to work at the respondent's plant on September 14, 1943, where he was employed on various jobs until January 12. Sometime between November 1 and November 15, Whetzel told Assistant Manager Pringle that he wanted to leave the employ of the respondent and requested a release. According to Pringle, Whetzel complained that his health was being affected by working in the basement and that he did not wish to kill poultry any longer. Pringle asked him whether he would prefer to do some other type of work, but Whetzel replied that he did not. Pringle testified: I did offer him work either upstairs or downstairs, either inside or outside, and reminded him also that on various other occasions during his employ- ment with us he had become dissatisfied with the job he had had and always wanted a different one, and that I had tried my best to satisfy him, and if there was any place in the plant that he felt he would be contented, I would be glad to let him try it. Then it developed that that was not the reason at all. The real reason was that he had been offered a job by a firm in Timberville . . . So I told him I couldn't do it right then, but if he couldn't be satisfied, that the quickest I could replace him with another man, I would give him his release. He told me then that he wanted it right then, and I said, "Nelson, I can't give it to you right now. In the first place the Employment Bureau up there doesn't look with favor upon the company granting releases, and then the next minute asking them for additional help, because they haven't anybody to replace you with, and they are always asking `Well, if you need them, why do you release them?' So then he said, "Well, I am not going to work." "Well," I said, "Nelson, I can't make you work. That is a question you have to decide for yourself, but I can't make you work, but neither can I legally give you a release at this time." Whetzel went back to work and never repeated his request for a release there- after. From the time that Whetzel returned to work in September until the day he asked Pringle for his release, as described above, Pringle received various com- plaints about Whetzel's work. Pringle, however, as pointed out, was anxious to retain Whetzel despite his poor work. Pringle further testified, that during the several weeks following his refusal to release Whetzel, he received numerous com- plaints from Whetzel's supervisors that he was "not taking care of his own job and interfering with other people doing theirs." Manager Heitz testified that in November and December both Fitzwater and Hawes recommended that he dis- charge Whetzel but that he "advised them to change him to another job ; be might do better." This, testified Heitz, was because "We were extremely busy . . . and I was using every effort possible to keep everybody with us, under the i theory that poor help is better than none." % However, on January 12, Pringle reminded Whetzel of his request for a release and told him that he had it for him then. Whetzel replied that it did not suit ROCKINGHAM POULTRY MARKETING COOPERATIVE,' INC . 499 him to be released at that time and that he had no desire to leave. Pringle replied, "Well, Nelson, I am sorry ; you never told me any differently than what you did want it; I have made other arrangements to replace you ; we can get along without you ; consequently it will have to go through with those plans as made." Heitz, who testified that the final decision to release Whetzel was made by him and Pringle, stated at the hearing, "After talking to the different foremen who had tried him on different jobs, we had concluded that he really did want his release as he had asked for, and that we better give it to him. We were further helped, to that conviction by the fact that his wife and daughter, who had also worked in the plant, had quit." At the time of his termination Whetzel was handed the following letter: January 12, 1944. Mr. NELSON WHETZEL, Timberville, Virginia. DEAR NuasoN : A short time ago you'asked nTe for your release stating that your health was not holding up with inside work as you, had expected it to and consequently wanted to be released from our employ. At the time we could not give you a release because we needed help badly and we had both inside and outside work to offer you., We have been able, in the last few days, to secure some additional help 20 and also our poultry volume is on the low side and will continue to be so for several 4nonths, to a point where we can not give you,full time. Consequently, we are complying with your request of several weeks ago and are granting you a release. Thanking you for your consideration and courtesy in staying with us from the first time you asked for your release until now when we can give it to you. Very truly yours, ROCI{INGHAM POULTRY MARKETING CO-OP., INC. V. PRINGLE, Asst. Manager. Concluding Findings It has been shown that Whetzel was the principal protagonist of the Union at the respondent's plant. He wrote the letter to the Union which resulted in the commencement of organizational activities in the plant, arranged for a committee to meet with the Union organizer at the Kavanaugh Hotel and for the subsequent union meeting in Timberville, signed a union membership appli- cation card on December 19, and himself obtained signatures to about 60 cards between December 19 and January.12, the date of his release. He was the prin- cipal contact between the union organizer and the employees in the plant. It is clear that the respondent was fully cognizant of the union activities in the plant. Fitzwater testified that he first learned of these activities in De- cember 1943 as a result of "various talk around with the employees that would come to my ears," that Heitz and Pringle instructed him at the time "to assume a perfectly neutral attitude", and that, although he saw solicitation for union membership going on in the plant, he never tried to stop or interfere with it. Pringle testified that his first knowledge of union activities in the plant and Whetzel' participation therein was received at about the same time. He further testified : My first knowledge of it was when one of the employees, not a foreman-I don't even recall now who it was-told me that they had seen a letter "The respondent's employment records show that for the weeks ending January 5 and 12, the respondent hired no male employees, although it did hire 3 women over this 2-week period. During this same period it lost at least 5 women and 6 men. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD addressed to Nelson Whetzel from the American Federation of Labor, which said that they were going to have a representative call on him, and shortly after that date someone came out to the plant and parked a short ways from it and came in the restaurant and inquired where they could find him [Whetzel] ... but he didn't happen to be working that day, and I think they were directed to where his home was. The undersigned finds that the respondent was not only aware of the union activities in the plant in December, 1943, but was fully apprised of the nature and extent of Whetzel's participation therein. On January 5, 1944, a week before Whetzel was released, the respondent in- serted the following advertisement in the Daily News-Record, Harrisonburg, Virginia : Help Wanted. We need 40 women and 15 men to help put up poultry for the armed forces. Apply in person to Rockingham Poultry Marketing Co- operative, Inc., Broadway, Virginia. Pringle testified, in explanation of the advertisement, that prior to its insertion, the respondent, in an effort to discover means of resuming operations in the eviscerating room, had been negotiating with the War Shipping Administration, herein referred to as the WSA, for the sale of substantial quantities of poultry. According to Pringle, the WSA "received our suggestion quite readily and,talked in terms of some pretty big volume, up in the neighborhood of fifty or sixty or seventy thousand pounds a week On the basis of that we thought probably, rather than curtail, we would have to expand our eviscerating operations, and I made that much preparation . . ." The WSA instructed the respondent to prepare a sample consisting of 20,000 pounds of poultry, and if this proved satisfactory, indicated that larger quantities would be ordered Pringle further testified that about the time he placed the advertisement, the WSA "decided that they wanted to try this sample" . . . , but that the respondent had better not "make too many plans until the first sample had the first full trial. Consequently there were no results came from that ad, and it was never pressed any further." Actually, ac- cording to Pringle, orders from the WSA did not materialize until sometime in March, since which time the respondent has "put up a reasonably sizable amount", of poultry for this agency. There is nothing in the record, however, to indicate that on January 12, the day Whetzel was released, and a week after the insertion of the advertisement, the respondent did not reasonably anticipate that orders would be forthcoming' from the WSA. While the respondent evidently postponed its original plan to hire 55 additional persons, nevertheless, on January 12 it must have reasonably an- ticipated the possibility that orders from the WSA might materialize any day. Confronted with the critical manpower shortage in this area, as is borne out by the fact that only 2 persons applied for enrployment in response to the advertise- ment of January 5, it is improbable that under these circumstances the respondent would lay off or release any of its regular employees, despite the normal slackening of production in January. It would appear that substantially the same factors which dissuaded the respondent from releasing Whetzel in November, so far as the exigencies of its business needs were concerned, existed on January 12 Whetzel, in November, prior to engaging in union activities, requested a release. Despite the fact that the respondent was dissatisfied with his work at that time, it was refused. Thereafter, his discharge was recommended by two supervisors, but the respondent still did not see fit to release him. However, on January 12, 5 days after the first open meeting of the Union, when Whetzel's role as the out- standing protagonist of the Union became increasingly manifest, the respondent ROCKINGHAM POULTRY MARKETING COOPERATIVE, INC . 501 determined that it was then in a position to release him, without ascertaining from Whetzel whether he then desired his release. As has been pointed out above, the respondent's manpower shortage was, at least potentially, as critical in January as it was in'Noventber and December. Since the undersigned, as found above, is convinced that Shoemaker and Bow- man were laid off because of their concerted activities, the undersigned is per- suaded in resolving the more difficult problem of the alleged discrimination against Whetzel, that the respondent would not have released him when it did, in the absence of his outstanding union activities. Upon the basis of the entire record herein, the undersigned finds that the respondent, by the lay-offs of Shoemaker and Bowman, by the discharge of Whetzel, and by the anti-union remarks of its supervisors to its employees, as described above, has discouraged concerted activities of its employees, as' well as membership in the Union, and by the totality of its conduct, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act 21 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the respondent set forth in Section III above,, occurring in connection with the operations described in Section I above, have a close, intimate,' and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It has been found that Ray Shoemaker and Beverly Bowman have been dis- criminated against by the respondent in regard to their hire and tenure of employ- ment. Since neither Shoemaker nor Bowman desire reinstatement, and are pres- ently employed elsewhere, it will not be recommended that they be offered rein- statement. It will, however, be recommended that the respondent make them whole for any loss of pay they may have suffered by reason of the discrimination by payment to each of them of a sum of money equal to the amount that they normally would have earned as wages during the period from October 9, 1943, the date of the discrimination against them, to the date of their employment at the positions which they held at the time of the hearing herein less their net earnings 22 during such period. 21 The complaint alleged that the respondent kept the activities of its employees and their meetings and meeting places under surveillance In support of this allegation, it offered evidence that Phillips, assistant foreman in the feeding room, attended, and was present throughout the union meeting on the evening of January 7. In view of the fact that Phillips testified, without contradiction, that he attended the meeting at the express invitation of several employees, that his presence was made known by them to the union organizer in charge of the meeting, who remarked, according to Phillips, "That is all right ; we will be glad to have him, too," the undersigned finds that the allegation of surveillance has not been sustained, and will recommend that it be dismissed. 21 By "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 else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N L. R. B. 440 Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B. 311 U. S. 7. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since it has been found that Nelson Whetzel has been discriminated against by the respondent in regard to the hire and tenure of his employment, it will accord- ingly be recommended that he be offered immediate and full reinstatement to the former or substantially equivalent position occupied by him at the 'plant of the respondent without prejudice to his seniority and other rights and privileges; since the undersigned finds that Whetzel did not make reasonable efforts to.obtain other employment, within the meaning of The Ohio Public Service Company decision it will not be recommended that the respondent make him whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him 23 It is, however, possible that Whetzel has, since the hearing herein, obtained or made a reasonable effort to obtain other employment, or will do so hereafter. It will therefore be recommended that the respondent offer Whetzel immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges and to make him whole for any loss of pay he has suffered or may suffer because of the respondent's discrimination against him by payment to him of a slim of money equal to the amount which he normally would have earned as wages during the period from ,the date on which he obtained or shall obtain other employment, or on which he made or shall make a reasonable effort to obtain other employment, to the date of the respondent's offer of reinstatement, less his net earnings during such period. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes The following : CoNcLukioNs of LAW 1. The American Federation of Labor is a labor organization, within the mean- ing of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Ray Shoemaker, and Beverly Bowman, thereby discouraging concerted activities of the employees of the respondent for the purposes of collective bargaining or other mutual aid or protection ; and by discriminating in regard to the hire and tenure of employment of Nelson Whetzel, thereby discouraging membership in the Ameri- can Federation of Labor, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 'i (8) and (7) of the Act. 5. The respondent has not engaged in surveillance as alleged in the complaint. 23 See Matter of The Ohio Public Service Company, 52 N. L R. B 725 Whetzel testi- fied that about a week after he was released he went to the office of the USES in Harrison- burg, and gave his name and address to a "woman" in that office for the purpose of obtaining employment. Representatives of the USES, called by the respondent, testified that there was no application on file in Whetzel' s name and that the only manner in which the name and address of an applicant for employment would be taken would be on a regular form provided for that purpose. While the undersigned believes that Whetzel did, in fact, present himself at the USES office, he finds that Whetzel did not file 'such an application or leave his name and address. The undersigned further finds that, in view of the existing critical manpower shortage in the area, Whetzel did not make such reason- able effort to obtain employment as he was required to do. ROCKINGHAM POULTRY MARKETING COOPERATIVE , INC. 5Oe3 RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent , Rockingham Poultry Marketing Co- operative, Inc., and its officers, agents , representatives , and assigns shall : 1. Cease and desist from : (a) Discouraging membership in the American Federation of Labor or any other labor organization of its employees by laying-off or discharging any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment ; (b) In any-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 the American Federation of Labor or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or any other mutual aid and protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Offer Nelson Whetzel full and immediate reinstatement to the former or substantially equivalent position as that last occupied by him at the respond- ent's plant without prejudice to his seniority or other rights and privileges; (b) Make whole Nelson Whetzel for any loss of pay he has suffered or may suffer by reason of the respondent's discrimination against him , by payment to him of a sum of money equal to the amount which lie normally would have earned as wages from the date on which he obtained or shall obtain other employment, or on which he made or shall make a reasonable effort to obtain other employ- ment, to the date of the respondent 's offer of reinstatement, less his net earnings during such period ; (c) Make whole the said Ray Shoemaker and Beverly Bowman in the manner set forth in the Section entitled "The remedy" for any loss of pay they may have suffered ; (d) Post immediately in conspicuous places throughout the plants of the re- spondent, and maintain for a period of sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraphs 1 (a) and (b) of the recommendations ; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a), (b) and (c) of these recommendations ; and (3 ) that the respondent 's employees are free to become and remain members of the American Federation of Labor or any other labor organization and that the respondent will not discriminate against any of its employees because of their concerted activities or because of membership in or activity on behalf of the American Federation of Labor or any other labor organization; (e) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what. steps the respondent has taken to comply therewith. It is further recommended that unless on or before ten ( 10) days from the receipt of this Intermediate Report, the respondent notify said Regional Director in writing that it will comply with the foregoing recommendations , the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the allegation in the complaint , charging the respondent with surveillance , be dismissed. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, effective November 26, 1943, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Roclfambeau Building, Washington, D. C., an original and four copies of a statement in writ- ing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objec- tions) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of. such statement of excep- tions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire per- mission to argue orally before the Board request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. GEORGE BOKAT, Trial Examiner. Dated June 17, 1944.