Atlanta Metallic Casket Co.

In the Matter of ATLANTA MET_1,LLIC CASKET COMPANY and UNITED STEELIVORKERS OF AaIERICA, CIO Case No. 10-C-1840.-Decided November 17, 1947 Mr. M. A. Prowell, for the Board. Smith, Kilpatrick, Cody, Rogers and McClatchey, by Messrs. M. E. Kilpatrick and A. G. Cleveland, Jr., of Atlanta, Ga., for the Re- spondent. Mr. Charles C. Mathias, of Atlanta, Ga., for the Union. DECISION AND ORDER1 On January 16, 1947 , Trial Examiner Louis Plost issued his Inter- mediate Report in the above-entitled proceeding , finding that the respondent, Atlanta Metallic Casket Company , 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 exception to the Intermediate Report. 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 Interme- diate Report, the exceptions filed by the respondent , and the entire record in the case, and hereby adopts the Trial Examiner 's findings, conclusions , and recommendations , with the exceptions noted below: The Trial Examiner found that at all times material herein George Henry Whitworth was a supervisor withal the meaning of the Act, and that any anti-union activities engaged in by Whitworth and affecting the respondent's employees are chargeable to the respondent. We agree with the Trial Examiner insofar as his finding relates to the period of approximately 6 weeks commencing February 10, 1946, when Foreman Miles was absent from the vault department due 1 The power of the Boai d to issue a Decision and Oider in a case such as the instant one wheie ilie chaigmg union has not complied pith the filing requirements specified in Section 9 (f), (g), and (h) of the National Labor Relations Act as amended , was decided by the Board in Matter of Marsha17 and Brace Company, 75 N L R B 90 75 N L R. B., No. 28. 208 ATLANTA METALLIC CASKET COMPANY 209 to ilhiess.2 However, we do not agree with the Trial Examiner's find. ing that Whitworth was a supervisor during the period prior to Febru- ary 10. The record shows, by the uncontradicted testimony of Whitworth, that at that time he was engaged in production work not unlike that of the other production employees. No substantial evi- dence was adduced to support the Trial Examiner's finding that Whit- worth was then engaged in any supervisory duties. We find, contrary to the Trial Examiner, that Whitworth was not a supervisory em- ployee prior to February 10, 1046, and that the respondent is not responsible for any anti-union activities engaged in by him prior to that date. The Trial Examiner found that the respondent aided in the circu- lation of anti-union petitions among its employees. We agree with the Trial Examiner's finding insofar as it relates to the activities of Fore- nmen Camp, Elam, and Streetman in their attempt to induce employee Pannell to circulate one of the petitions. However, we are unable to agree with that part of the finding which is based on the activities of Whitworth and Welunit. As set forth above, Whitworth was not a supervisory employee during the period when these petitions were circulated. Moreover, the record lacks substantial evidence to sup- port a finding that Wehunt was a supervisory employee. We are unable to agree with the Trial Examiner that the statement of Foreman Miles to employee Holcombe that he (Miles) "didn't want the dam CIO in there," and that "the day it came in was the day he was leaving," went beyond legitimate comment by a supervisor. We be- lieve that the above statement was nothing more than an opinion expressed by Miles as to what he, Miles, would do if the Union came into the plant. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the respondent, Atlanta Metallic Casket Company, Atlanta, Georgia, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, CIO, or in any other labor organization of its employees, by discharg- ing 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 their employment; 2 The record shows that during that time. Whitworth was in complete charge of the vault department, and was, in fact, acting foreman of that department. It was during this period that Whitworth effected the discharge of Kilgore 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed 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 : (e) Offer L. C. Kilgore immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole L. C. Kilgore for any loss of pay he may have suf- fered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date on which the respondent discriminatorily discharged him to the date of the respondent's offer of reinstatement, less his net earnings during said period; (c) Post at its plant at Atlanta, Georgia, copies of the notice at- tached hereto marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the respondent's representative, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by other material; (d) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MEMBERS REYNOLDS and MURDOCiC took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : I In the event this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted before the words, "A Decision and Order," the words "A Decree of The. United States Circuit Court of Appeals Enforcing." ATLANTA METALLIC CASKET COMPANY 211 WE WILL NOT in any manner interfere with, restrain, or coerce, our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED STEEL- WORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection. WE WILL OFFER to L. C. Kilgore immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain members of the above- named union or any other labor organization. We will not discrimi- nate in regard to hire or tenure of employment or any term or condi- tion of employment against any employee because of membership in or activity on behalf of any such labor organization. ATLANTA METALLIC CASKET COMIPANY, Employer. By --------------------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. M. A. Prowell, for the Board. Messrs. M. E. Kilpatrick and A. C Cleveland, Jr, of Smith, Kilpatrick, Cody, Rogers and McClatchey, of Atlanta, Ga , for the Respondent. Mr. Charles C. Mathias, of Atlanta, Ga., for the Union. ,STATEMENT OF THE CASE Upon an amended charge duly filed October 3, 1946, by United Steelworkers of America, C. I 0., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint, dated October 7, 1946, against Atlanta Metallic Casket Company of Atlanta, Georgia, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce 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 together with notice of hearing thereon were duly served upon the Respondent and the Union. With respect to the unfair labor practices the complaint alleged in substance : (a) that the Respondent expressed disapproval of the Union ; circulated and per- mitted the circulation of an anti-union petition; urged, persuaded, threatened and 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warned its employees to refrain from assisting, becoming members or remaining members of the Union ; interrogated employees concei ring their union affiliations ; kept employees engaged in union activities under suiveillance and made deroga- tory remarks to a union representative in the presence of its employees; (b) that the Respondent discharged L. C. Kilgore because he joined, assisted the Union, and engaged in concerted activities with other employees in behalf of the Union, and (c) that by the foregoing conduct the Respondent interfered with, restrained, and coerced its emplo ees in the exercise of rights guaranteed in Section 7 of the Act, more particularly within the meaning of Section S (1) and (3) of the Act On October 16, 1946, the Respondent tiled an answer, and an amended answer on November 4, 1946.. in which it admitted that it was engaged in commerce within the meaning of the Act, denied that it had engaged in any of the unfair labor practices alleged in the complaint and averred that L. C. Kilgore quit its employ after refusing employment in another department. Pursuant to notice a hearing was held at Atlanta, Georgia, on November 4, 1946, before Louis Plost, the undei signed Trial Examiner, duly designated by the Chief Trial Examiner The Board and the Respondent were represented by counsel and the Union by a representative Full opportunity was afforded all parties to he heard, to examine and cross-examine witnesses and to intro- duce evidence hearing upon the issues The undersigned granted a motion, without objection, to amend the complaint in a minor particular. At the close of the hearing the undersigned likewise granted a motion, without objection, to conform all the pleadings to the proof with respect to typographical errors, errors In dates, and eniors of similar nature. An opportunity was afforded all parties to argue orally on the record and to file briefs with the undersigned. All the parties waived the presentation of oral argument and the right to file hiiefs with the undersigned Upon the entue iecoid in the case and fion his observation of the witnesses, the undersigned makes the following: q FINDINGS OF FACT 1. TOE BUSINESS OF THE RESPONDENT The Respondent, Atlanta Metallic Casket Company, is a Georgia corporation, having its principal plant and office in Atlanta, Georgia, where it is engaged in the manufacture, sale, and distribution of caskets. In the course of its business the Respondent annually uses raw materials consisting of wood, silk, cotton, and metal valued in excess of $:100,000 The Respondent purchases and has delivered to it annually in excess of 90 percent of such materials from points outside the State of Georgia The Respondent annually sells finished caskets in excess of $1,000,000; more than 60 peicent of such caskets are sold and shipped by the Respondent to points outside the State of Georgia. The Respondent concedes and the undersigned finds that the Respondent is engaged in commerce within the meaning of the Act. If. THE ORGANIZATION INVOLVED United Steelworkers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Respondent. ATLANTA METALLIC CASKET COMPANY III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coeicton 1. Background 213 Charles C Mathias, field representative of the Union, testified that he was assigned to olgauize the Respondent's employees on January 16, 1946, and con- ducted an active organizational drive among them until March 1946 when the active effort was permitted to become dormant Prior to January 16, another field iepresentative of the Union had engaged in organizational work among the Respondent's employees by distributing literature, conducting meetings and soliciting and obtaining members Union organizational meetings were held each Friday night and literature was disti ibuted at the plant gates. On or about January 30, while Mathias was distributing Union literature at the plant gate, Paul E Miles, the foreman of the Respondent's vault department, ap- proached him and asked, "Why don't you go to work?" Mathias replied that he had been working for the United States Government for the past 21/2 years and offered to show Miles his Army discharge as proof of his statement. Miles made an obscene reply and characterization of Mathias' proffered discharge paper Mathias' testimony was not denied and is credited by the undersigned. 2 The supervisory status of Henry George Whitworth' Paul E. Miles, foreman of the Respondent's vault department, testified that Henry George Whitworth was the oldest employee in point of service in the vault rlepartntent and that Whitworth "helped me design vaults and lie was more suit- able, more capable, than to tell the boy's which was right and which was wrong." He denied that Whitworth had the right to hire or discharge employees or that he was clothed with any supervisory authority Miles was absent from the plant for a period of 6 weeks beginning February 11, 1946 Miles testified that when he left on February 11, it was not necessary to give any specific instruc- tions to Whitworth because the men naturally looked to Whiitwoith because he was the "oldest man " Whitworth testified that during the 6-week period of Miles' absence, "I carried on what lie told me to do, to see that everything was going all right If I had need of any help, why, he told me who to go to for information " Whitworth denied that lie had any supervisory author ity but admitted he had no fixed work in the vault department, and further admitted that when Miles was not present he was charged with seeing that the department Operated efficiently; that other employees came to him, for instructions; that lie had recommended at least two individuals for employment, who were thereafter employed by the Respondent, and that during the time material herein he effected the discharge of at least one employee.' Furthermore, the record discloses that Whitworth transferred employees apparently on his own authority and that he was the highest paid employee, except Miles, in the department. Various wit- nesses testified that Whitworth was the assistant foreman of the vault department and Huberene B Dowda, employed in the department and called by the Respondent as a material witness, characterized Whitworth as the department foreman during Miles' absence t Refeited to in th,' contpl ,tint as Henry NV hitooith 2 L C Ktlcore 71;6972-48-N of 75-15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record is clear that for the 6-week period beginning February 11, 1946, during which Miles was away from the plant, Whitworth was the foreman of the vault department. It is equally clear that Whitworth acts as foreman of the department during any time Miles is absent. It is apparent that the Respond- ent's employees at all times regard Whitworth as assistant foreman to Miles and close to management. The character of Whitworth's work, including the fact that he instructs employees in their work, and that employees are expected to "naturally" look to him, when experiencing any difficulty with their work, coupled with the authority conferred on him during any absence of Foreman Miles, would lead the Respondent's employees to regard Whitworth as a supervisor. The undersigned is persuaded that in fact the Respondent's employees do regard Whitworth as the assistant foreman to Miles. From the entire record in the case, the undersigned finds that during all times material herein Henry George Whitworth was a supervisor in the Respondent's vault department and that any unfair labor practices engaged in by Whitworth and affecting the Respondent's employees are chargeable to the Respondent. 3. Acts of interfei ence, restraint, and coercion L. C. Kilgore testified that on or about January 1, 1946, he overheard a conver- sation between H. D Streetman, the assistant to the general foreman of the Respondent's sheet metal department, and employee Johnnie Wilson. Kilgore testified as follows : H. D. Streetman, and Johnnie Wilson came by within four feet of where I was working, turned up a little alley tt ere. Streetman told Johnnie, says, "Paul Miles and Henry Whitworth and a fellow by the name of Ragsdale a and Whitworth and Streetman," lie said they wasn't supposed to know any- thing about they was trying to organize there, and that they had tried to organize once before and they would let it rock along until it got ripe, and then they'd pluck it in the bud They's squashed it one time, and they could squash it again. Streetinan was not called to testify. Wilson in his testimony did not deny the above-related incident. The undersigned credits Kilgore. H L Moulder testified that he was employed by the Respondent until January 18, 1946, and that about 4 or 5 days prior to his leaving the Respondent's employ, Whitworth asked him if lie had attended the Union meeting on the previous night.' Moulder replied that he had done so, whereupon Whitworth inquired as to the size of the crowd and asked if certain employees whom he named and other em- ployees whom he identified only as "the boys over in the corner" and "the girls woiking out there on the press" had signed Union cards. Whitworth admitted asking Moulder "how it [the Union] was going " The undersigned credits Moulder Whitworth admitted that he attended a Union organizational meeting on Jan- uary 18, at which he had a conversation with Organizer Mathias and took blank union application cards with him when he left. Kilgore, corroborated by Floyd Holcombe, testified without contradiction, that on or about February 15, Cannon, the Respondent's president, addressed the em- ployees of the vault department Cannon spoke to these employees in the Re-_ spondent's conference room, during working hours, the employees being paid for 3 Kilgore testified without contradiction that Ragsdale was a foreman. Pions the dates of Union meetings it is apparent that this conversation occurred on January 11. ATLANTA METALLIC CASKET COMPANY 215 the time consumed. Cannon, inter alia, outlined a projected plan under which employees would receive 48 hours pay for 40 hours actual working time and requested those present to indicate approval. Kilgore further testified that he did not raise his hand to indicate his approval whereupon Whitworth who was sitting beside him said, "Kilgore, you didn't raise your hand, did you?" Kilgore replied, "What difference does it make'? The majority's going to rule anyway." Some 2 or 3 days later, Whitworth approached Kilgore at his work and asked, "Well, Kilgore . . . After Mr. Cannon outlined the new deal for us here .. . what do you think about the Union coming in?" Kilgore replied that he did not intend to vote against a union coming in the plant. Hubert Pannell, employed by the Respondent for 11 years, testified that Fore- man Camp of the plating department "a little before or a little after" February 21, asked him "about going around" through the plant to see who was for or against the Union. Pannell testified as follows : Well it was on the third floor He [Camp] asked me about taking the paper around and see something about the Union, and I told him I didn't want anybody-to cause anybody to lose his job, and he said it wasn't going to cause anybody to lose his job. and I continued to ask him how and what it was He told me to go down and see Mr. Streetman, so I went down to see Mr. Streetman While Pannell and Camp were engaged in the above-related conversation Fore- man Elam, of the hardware department, came up and handed Pannell some blank paper and told him that Streetnian would instruct him what to do with it. Pannell then went to Streetman who told him that "the way they was doing it was going around and getting the names of those that didn't want the Union," that "there was already men going around through the factory " Pannell returned to Foreman Camp and reported his conversation with Foreman Street- man Upon his return he found that employees Wilson and Kemp were circulat- ing a document. Wilson asked him to sign the document which was headed "We don't want a Union." Pannell signed the document. Pannell is not a member of the Union. Neither Camp, Elam or Streetman were called as witnesses. The undersigned credits Pannell's testimony. 4. The anti-union poll John H. Wilson, previously referred to herein as ".Johnnie" Wilson, testified that he had been employed by the Respondent for a petiod of 19 years Wilson has no supervisory authority. He is employed in the Respondent's assembly department and during the time material herein apparently had no regularly assigned job but worked as a utilrly man throughout the assembly department as well as other departments in the plant. Wilson testified that (luring January 1946, he heard "a lot of talk" about the Union in his department to the effect that all but 8 employees in the department which contained approximately 50 employees had signed cards for the Union : that lie had never attended any of the Union's meetings. and that of his own volition he "started a list to see who wanted the Union " Wilson wrote on the top of a sheet of paper "We the undersigned do not want a Union," and after affixing his signature "started down the line with it" in his department Wilson further testified that he told those whose signatures he solicited Now, this is among ourselves and all this is for is to let these fellows that's working for the Union know how many don't want the Union and 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maybe it'll discoui age them before it conies to a vote , because if it comes-if they get enough cards signed to come to a vote , there's some of the crows in here that don't know what to do, and they're liable-they don't know which they-which way they liable to vote. Wilson further testified that he was asked by employees to take signatures in other departments but: I told them to start with I wasn 't fooling with nobody's depaitnietit but ours, because they said all the ti ouble was in our department. Other departments however were polled, apparently at the same time Wilson admitted, "I told them we'd got up a list in our department . I told them if they wanted to get up a list in their department they could , and we'd come around and-when we had a chance and get the list ourselves ." He also admitted that during the circulation of the poll sheets he visited various departments to obtain signatures and check on progress, and that he was assisted by other employees in circulating the poll sheets. After signatures had been obtained all the sheets were returned to Wilson who then determined that a majority of the employees did not want a union and according to his testimony then "told enough in each department to where it 'd get around , everybody 'd know." The poll was conducted over a period of 3 or 4 days . According to Wilson, although foremen were in all departments , none knew of the affair and no super- visory official of the Respondent noted his unusual activity except Foreman Street- man whom he met in the plant. Wilson testified : Well, he [Streetman ] asked-he saw me with a list and he went-wanted to know what it was. I just kind of passed it off. Wally Frank Reid , employed by the Respondent from September 10, 1945, to an undisclosed date in the latter part of February 1940 , at which time he was laid off because his job was alleuedly abolished , testified that he was asked to sign the anti-union poll by Wilson and an employee named Kemp . The two men were accompanied by one Wehunt . Reid testified that Wehunt was his "boss" and described the latter 's duties as those of a supervisor He further testified that at the time he was "laid off," that Wehunt made the lay -off Wilson testified that Wehunt was the shipping clerk The record contains no fui thei testmuonv regarding Wehunt's status No official of the Respondent denied that Weliunt was a supervisor nor was Wehunt called as a witness . The undersigned finds that Wehunt was a supervisory employee of the Respondent . Reid refused to sign the poll sheet whereupon according to Reid, Wilson said to him , "If you don't sign it, it might mean your job. " Wilson admitted asking for Reid's signature but denied ever telling any employee that failure to sign might result in the loss of employment and further testified that he did not remember if Wehunt was present at the time Reid's signature was soclicited From his observation of Reid and Wilson the undersigned credits Reid. Reid further testified that on the day before his employment with the Respond- ent was terminated he overheard a conversation between employees Kemp and Wilson and Foreman Streetman in which Kemp told Streeti nan and W i lson that lie [Kemp] had attended the Union's meeting on the pievious night and that "there wasn 't very many at the meeting " and also that lie " thought they'd about had the Union squashed " Neither Street man nor Kemp were called to testify and Wilson who testified was not asked to deny the occurrence The under- signed credits Reid Whitworth also participated in taking the anti-union poll IIe testified that after attending the Union meeting on Jainary 18, as heieui found , lie then ATLANTA METALLIC CASKET COMPANY 217, decided to conduct a poll among the employees to find out how many wanted a union. Whitworth testified that when he started his poll he was not aware of Wilson's similar activity, but that his action was wholly independent and "I was doing that for my own benefit." Whitworth began his poll by signing his name on the page of a pocket notebook. The page bears nine other signatures and has no caption, statement or legend. Regarding this notebook page, which together with all the poll sheets was admitted as an exhibit, Wilson testified, "I said something to him [Whitworth] about it while I was doing it. He brought it to me-I guess he got it up." Wilson also testified that he went to Whitworth and talked to him regarding the poll after Wilson had obtained the signatures in his own department. Floyd Holcombe, who was employed in the vault department, testified that during his employment Whitworth, who "acted as foreman when Mr. Miles wasn't there," came to him with a little book and asked him to sign it as he [Whitworth] was "seeing how many didn't want the Union." Holcombe refused to sign. The following morning Foreman Miles approached Holcombe at his work and told him that he wanted to find out how Holcombe felt about the Union. Holcombe replied that he thought the Union was a good thing, upon which according to Holcombe, "He [Miles] said, well, he didn't want the damn CIO in there; he said the day it came in was the day he was leaving " Miles did not deny Hol- combe's testimony which is credited by the undersigned Whitworth did not impress the undersigned favorably. His testimony was evasive, it was necessary to ask him the same questions several times in order to obtain a responsive answer, and it was apparent that his replies were intended to conceal rather than disclose the truth. Despite Whitworth's testimony that he was seeking, independently of Wilson, to determine the extent of union sentiment in the plant and his reiteration at several points in his testimony that lie was acting solely for his "own benefit" and Wilson's testimony that he too was acting of his own volition, the undersigned is persuaded by the entire record that such was not the case. It has been found that Foreman Camp and Elam suggested to employee Pan- nell that he circulate some sort of document "about the Union" and sent him to Foreman Streetman for instructions, and that when Pannell reported to Street- man the latter informed him that others were already going through the plant obtaining the signatures of employees who did not want the Union. Immedi- ately thereafter on returning to his department, Pannell was asked by Wilson to sign the anti-union poll. It is also clear that the anti-union poll was circulated inall departments of the Respondents' plant for 3 or 4 days It seems singular that this activity could be so well concealed from the supervisors in the various de- partments that its very existence was not suspected although the document was circulated by employees who did not belong in the departments where they sought signatures. It has been found that Supervisor Wehunt accompanied Wilson at the time Wilson sought Reid's signature to the anti-union poll. By Wehunt's silence at the time of Wilson's threat to Reid that failure to sign the poll might lead to dis- charge, Wehunt gave credence to the threat Whitworth admittedly engaged in taking the anti-unnou poll The contention that Whitworth and Wilson began independent polls, unbe- known to each other, and that later in some unexplained nebulous fashion these polls as well as other spontaneous simultaneous independent polls were con- solidated and the poll sheets turned over to Wilson is far beyond the realm of credibility. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From the entire record in the case the undersigned is convinced and finds that the anti-union poll was a device of the Respondent to thwart its employees in their efforts toward self-organization, and as stated by Wilson in his account of the statements be made to employees whose signatures he sought, its purpose was "to let those fellows that's working for the Union know how many don't want the Union and maybe it'll discourage them before it comes to a vote." The undenied testimony relating to employe Wilson's report to Streetman wherein Wilson naming Miles, Whitworth and Ragsdale said "they" were not supposed to know that a union was being organized but that when the time was ripe "they" would "squash" it and the undenied testimony that employee Kemp reported to Streetman that a Union meeting held the preceding night was small, and that he thought the Union "about squashed" point to surveillance of Union employees by the Respondent ; however, the undersigned does not believe the evidence conclusive on ,this issue but is persuaded that it shows the Respondent's knowledge and attitude in the Union affairs of its employees. Holcombe's undenied testimony to the effect that on the day following his re- fusal to sign the anti-union poll Foreman Miles quizzed him regarding his union affiliations and told him that Miles "didn't want the damn C. I. O. in there," goes far beyond any legitimate inquiry and comment by a supervisor, as does likewise Whitworth's quizzing of Moulder as to the size of the Union meeting and the names of employees signing union cards, as herein found. Upon the entire record the undersigned finds that by the acts and statements of Foremen Streetman, Miles, and Whitworth, and by the acts and conduct of Foremen Camp and Elam, and by the taking of the anti-union poll, all as here- inabove found, and by their totality, the Respondent has interfered with, re- strained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discriminatory discharge of L. C. Kilgore L. C. Kilgore began work with the Respondent on December 5, 1945, and was discharged on February 19, 1946. Kilgore joined the Union on December 15, 1945, and became the most active of the Respondent 's employees in its behalf . He made no attempt to conceal his union sympathies , wearing his union button in the plant , and soliciting mem- berships among fellow employees. On January 11, 1946, Kilgore was elected chairman of the Union's organizing committee . Whitworth admitted attending the Union 's meeting on January 18 Kilgore was present at this meeting. Kil- gore testified without contradiction that on a day between January 11 and January 18 , while he was at his work, Wilson asked him to sign the anti-union poll. Kilgore testified : "Now", I told him, "Johnnie, I was raised up, believed in organized labor, my father carried a Union card for about 26 years with the Seaboard Rail- road. I had a brother that carried one for about 16 or 17 years with them. I can't believe in anything but organized labor." I said , "From my seniority, it don't amount to bill of beans here ; I've only been here for about a month or 6 weeks . These other boys have been here 12 or 14 or 16 years-I don't want to stand in their way if they need a Union in here." Kilgore testified that shortly after January 18, he was transferred to the vault department. In the vault department Kilgore helped to operate a stamping or pressing machine called a "break. " This machine is designed to form sheets ATLANTA METALLIC CASKET COMPANY 219 of metal into grave vaults. Four men operate the device, two at the front and two at the back of the machine. The two men at the front insert a sheet of metal partway into the machine, pressure is then applied and the metal is bent into a box-like shape. As the sheet is pressed by the machine that part of the metal not in the'inachine rises at a right angle. As the metal out of the machine rises it is steadied by the two men at the front of the press, however it is the pressure , not the two operators, which causes the metal sheet to rise as described. Kilgore and employee Huberne B Dowda operated the front portion of the "break." Kilgore testified, credibly, that until the day of his discharge no fault had been found with his work, and that he had never been told of any complaint regarding his work being made by fellow employees. Kilgore testified, his testimony not being denied by Whitworth, that on Febru- ary 19, Whitworth came to him and told him that Kilgore's teammates had been complaining "all clay" and he suggested that Kilgore quit. Kilgore refused to quit, and was sent back to the machine by Whitworth. Later in the day Whit- worth again came to Kilgore and said, "Kilgore these boys say they're going to quit, if you don't." Kilgore replied, "Well I'm not quitting. I'm going to give you the opportunity you've been wanting for the last 2 weeks. I'm going to let you fire me." Whitworth then told Kilgore to go back to the machine. Following this colloquy, Whitworth took a place at the machine and demon- strated the manner in which the work should be properly done Kilgore there- after in Whitworth's presence helped form "three or four" vaults, one of these being imperfect. Whitworth then replaced Kilgore with Dowda, who had been working on the shears in the vault department and took Kilgore to the Respond- ent's office, removing Kilgore's time card from the rack on the way. In the office, Whitworth told Cochran, the general foreman of the metal department, "Kilgore here, I don't know what the matter is, He's always been on time, his work's been satisfactory up to today.' Those three men on the shears down there, big break, has ... say they're going to quit if he don't." Cochran asked if there was work for Kilgore at the job he held-before his transfer to the vault department and upon being told by Whitworth that the job had been filled, Cochran instructed Kilgore to "go ahead and wash and change clothes and be ready to go when they get the necessary papers fixed up." It is significant to the undersigned that Cochran did not offer Kilgore the job on the shears, just vacated by Dowda's transfer. Kilgore was asked by the office clerk to sign a separation slip stating that be had quit, could not "get along" with fellow workers, and that his work was unsatisfactory. He testified further : I asked her, "You mean I've got to sign this before I can get my money?" She said, "Yes." I said, "I'm sorry, I won't. When you bring out one saying I was fired by Henry Whitworth or some other official of the Company, I'll sign that;" which she did. Dowda testified that he worked together with Kilgore on the "break" and that for a period of about 11/, weeks Kilgore did his work properly but there- after lie did not properly guide the metal being raised by the machine which caused the weight to be thrown on Dowda so that "it was killing my shoulder." Dowda further testified that although Kilgore's failure to perform his work properly continued for "several days" he did not remonstrate to Kilgore and only ' Whitwoitli did not deny that on this occasion he told Cochran that Kilgore's work had been satisfactory 'up to today." In view of the testimony of Dowda, hereinafter set out, Whitworth's failure to deny Kilgore 's testimony is significant. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complained to Whitworth once at which time "I didn't tell him who was to bLime or anything about it. I just couldn't stand it" Later in his testimony Dowda varied his account and testified that lie told Whitworth that Kilgore "wasn't holding up his end " Following his complaint Dowda was removed from the "break" and apparently worked on the shears in the same department for a period of approximately a week when he was recalled to replace Kilgore on the "break" lollowing the latter's discharge Dowda testified that after Kilgore's discharge he worked on the "break" only for "around about a week." In the light of the entire record the undersigned is not persuaded that Dowda complained to Whitworth regarding Kilgore's work but is persuaded that Dowda complained only about the work causing him discomfort The undersigned finds strong support for this conclusion in the fact that Dowda was kept on the ma- chine for only 1 week after Kilgore's discharge, the fact that at the time of Dowda's alleged complaint it was he and not Kilgore who was transferred, and further by Dowda's testimony that he is 5 feet 8 inches tall and weighs 119 pounds. The finding is further buttressed by Whitworth's statement to Cochran that Kil- gore's work had been satisfactory "up to" the day of the discharge. Clarence Arthur Brown testified that lie mechanically operated the "break" and that while Kilgore worked at the machine the vaults were not being formed correctly but that when Kilgore was not there "it formed up lust perfect " He testified that he informed Whitworth about Kilgore's faulty work on two occasions, once at the time Dowda was transferred and again on the day of Kilgore's discharge. Brown was an evasive witness It was apparent that lie was struggling with his conscience in an attempt to fit his testimony to a set of facts without directly testifying to a falsehood ; for example, on direct examination he testified as follows : Q Now, did you have occasion to complain to anyone about the method or manner in which he [Kilgore] was doing his work? A. Well, the-at times it wasn't held up right , which caused the metal to form up wrong . I'd ask him, to hold it up. Q. Ask who? A. The whole bunch. Q. Did you complain to anyone other than the three people with whom you were working? A Well it could be told where it was at. On cross-examination he testified : Q Did you ask Mr Kilgore himself to improve his work in any particular way? A. Well I asked the bunch. [Italics supplied.] Q I asked you did you say anything to him? [Kilgore.] A Not personally man to man. Q Did you at any time suggest to Mr. Kilgore in person as to what he could do to help make those forms better A. Well, he'd been there long enough ; he should have known. Brown also testified that "some of the sheets will form up wrong in spite of all you can do." Brown who was the only one of the men operating the "break" on the day of Kilgore's discharge still remaining in the Respondent's employ, did not testify that he threatened to quit if Kilgore was not removed from the "break." ATLANTA METALLIC CASKET COMPANY 221 Foreman :Miles testified that the metal sheets formed on the "break" weigh from 90 to 100 pounds. He further testified as follows : Trial Examiner ProsT. Doesn't require a great deal of skill nor a great deal of strength to hold this 100-pound sheet when it conies down on the die. does it? The WITNESS Well, in fact, to tell you the truth about it the die will really pull it up there itself. Trial Examiner PLOST. Just hold it steady? The WITNESS. That's right. Trial Examiner PLOST. And the taking of the semi-formed box or what- ever it would be-casket-out of the machine doesn't require a great deal of strength nor a great deal of skill either, does it? The WITNESS. No, absolutely. The complaint alleges that the Respondent discharged Kilgore because he joined and assisted the Union and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid or protection. Whitworth testified that Kilgore was discharged because he did not do his work properly, and this was the Respondent's sole litigated contention for the discharge. It is clear, and the undersigned has found, that Dowda's alleged complaint regarding Kilgore's work was not the cause of Kilgore's discharge. It is clear that no complaint regarding Kilgore's work was made to Whitworth between the time Dowda was transferred from the "break" until Brown's complaint on the day Kilgore was discharged. At the time Whitworth spoke to Kilgore regarding the complaint he stated that Kilgore's fellow workers threatened to quit rather than work with Kilgore, and requested that Kilgore quit. On Kilgore's refusal to quit Whitworth did not then discharge him but ordered him back to his work apparently thereafter informing Cochran that "he had a man down there" who was not doing his work properly. Later in the day Whitworth told Kilgore that his fellow workmen theatened to quit rather than work with him and after first demonstrating how the work should be performed, discharged Kilgore as soon as an imperfect vault was formed with Kilgore's help under Whitworth's supervision. Neither Whitworth nor Brown, the only one of the operators of the "break" who worked together with Kilgore during the time immediately preceding his discharge and still in the Respondent's employ, testified that the "break" crew ever threatened to quit rather than work with Kilgore. The undersigned is not persuaded that Brown's testimony discloses that Kil- gore's work was of such character as to give reason for his discharge absent Kilgore's union activity. The Respondent's antipathy toward the Union is clear ; equally clear is Kil- gore's known adherence to the Union evidenced by open statements to the effect that he intended to assist in the unionization of the Respondent's plant, the fact that he wore a union button at his work, and was the chairman of the Union's organizing committee. Whitworth admitted his anti-union feelings He attended the Union's meet- ing on January 18, and saw Kilgore there. Shortly after the meeting Kilgore was transferred to the vault department under Whitworth. Sometime between January 11 and 18, Kilgore refused to sign the anti-union poll. On February 15, Kilgore, sitting bc^ide Wlutwoitli duiuig a talk by the Respondent's president, 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not vote approval of the proposal made by the speaker and his failure to do so was the subject of comment by Whitworth. Two or three days later, which would place the incident 1 or 2 days before Kilgore's discharge, Kilgore told Whitworth, upon the latter's inquiry, that he intended to adhere to the Union despite the "new deal" outlined by the Respondent's president. Although Kilgore had worked on the shears he was not offered the newly vacated job on the shears when he was discharged, Cochran merely asking if there was work for Kilgore in the department from which he had been transferred approximately 1 month previously Kilgore was known to be the chairman of the Union's organizing committee and was the most outspoken as well as the most active of the Union's adherents among the Respondent's employees. The undersigned is therefore persuaded and finds on the entire record that the Respondent did not discharge Kilgoi e because he did not do his work properly but the reason alleged for the discharge was a convenient pretext fitted to the Respondent's desire to rid itself of the Union's most outspoken adherent, and thereby to discourage its employees in their efforts toward union organization. Under the entire record, considering the demeanor of the witnesses, the acts and conduct of its supervisors, as hereinabove found, the circumstances under which the anti-union poll was taken and the entire record in the case, the under- signed finds that by discharging L. C Kilgore, on February 19, 1946, the Re- spondent has discriminated in regard to his hire and tenure of employment, has discouraged membership in a labor organization and has interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above. occurring in connection with the operations of the Respondent 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated in the hire and tenure of employment of L. C. Kilgore, it will be recommended that the Respondent re- instate Kilgore to his former or substantially equivalent position e without prejudice to his seniority or other rights and privileges. It will also be recom- mended that the Respondent make him whole for any loss he may have suffered by reason of such discrimination, by payment to him of a sum of money equal to the amount he would have earned as wages from the date of his discharge 0In accordance with the Board 's consistent interpretation of the term, the expression "foimer or substantially equivalent position" is intended to mean "former position wher- ever possible, but if such position is no longer in existence, then to a substantially equiva- lent position." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R B. 827. ATLANTA METALLIC CASKET COMPANY 223 (February 19, 1946) to the date of Respondent's offer of reinstatement, less his net earnings' during said period. Inasmuch as the entire record clearly shows that the Respondent's illegal conduct is designed to defeat self-organization and its objects among its em- ployees and furthermore as a discriminatory discharge "goes to the very heart of the Actie the undersigned is convinced that the Respondent's unlawful con- duct as found herein, together with its underlying purpose as reflected by the record, are persuasively related to the other unfair labor practices prescribed and that danger of their commission in the future is to be anticipated from the Respondent's illegal conduct in the past. The preventive purpose of the Act will be thwarted unless the recommended order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and therefore to minimize strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, the undersigned will recommend that the Respondent cease and de- sist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact and the entire record in the case, the undersigned makes the following: Concr.usIONS OF LAW 1. United Steelworkers of America , affiliated with the Congress of Indus- trial Organizations , is a labor organization within the meaning of Section 2 (5) of the Act 2. By discriminating in regard to the hire and tenure of employment of L. C. Kilgore, thereby discouraging membership in a labor organization , the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining. and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act , the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and ( 7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law the under- signed recommends that the Respondent, Atlanta Metallic Casket Company, Atlanta, Georgia, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, CIO, or any other labor organization of its employees, by discharging or refusing Illy "net earnings" is meant earnings less expenses, such as for transportation, room, and hoard hicuned br an employee in connection with obtaining work and working elsewhere 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 It. B. 440. Monies received for work per- formed upon Fedeial, State, county, municipal, or other work-relief projects shall be considered as earnings. See Republto Steel Corporation v N. L R. B., 311 U. S 7. IN L R B v Entwistle Manufacturing Co., 120 F. ( 2d) 532, 536 (C. C A. 4). 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to reinstate any of its employees, or by discriminating in any other manner in i egard to their hire and tenure of employment, or any term or condition of employment ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their right to self-organization, to foam labor organiza- tions, to join or assist United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes 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 undersigned finds will effec- tuate the policies of the Act : (a) Offer to L C. Kilgore immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges ; s (b) Make whole L C Kilgore fo any loss of pay he may have suffered by reason of the Respondent's discrimination against him in the manner herein provided in the section entitled "The remedy"; (c) Post at its plant at Atlanta, Georgia, copies of the notice attached hereto marked "Appendix A " Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after being signed by the Respondent's representa- tive, shall be posted by the Respondent immediately upon the receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material, (d) Notify the Regional Director for the Tenth Region, in wi iting, 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 notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requii ung the Respondent to take the action aforesaid As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (Li) days from the (late of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (in- cluding rulings upon all motions or objections ) as lie relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further provided in said Section 203 39, should any party desire permission to 9 See footnote 6, supra. ATLANTA METALLIC CASKET COMPANY 225 argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board Louis PLOST, Ti tai Examine). , Dated January 16, 1947. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notity our employees that: WE WILL NOT in any manner interfei e with, iestrain, or coerce our em- ployees in the exercise o1 their right to self-organization, to form labor or- ganizations, to join or assist UNITED STEELWORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing. and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to L C Kilgore. immediate and full reinstatement to his former or substantially equivalent position without prejudice to any senior- ity of othei rights and pi ivilcgei preN ionsly enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All of our employees are free to become or retrain members of the above- named union, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. ATLANTA METALLIC CASKET COMPANY, Employer. By ----------------------------------------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material