Columbian Carbon Co.

In the Matter of COLUMBIAN CARBON COMPANY and INTERNATIONAL UNION OF OPERATING ENGINEERS, A. F. of L. Case No. 1-7-C-1405.-Decided August 26, 1948 DECISION AND ORDER On September 30, 1947, Trial Examiner Peter F. Ward issued his Intermediate Report in the above entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices 1 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection wit11 this case to a three-man panel consisting of the undersigned Board Members.* The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner insofar as they are consistent with the findings, conclusions, and order hereinafter set forth. 1. We agree with the Trial Examiner that the Respondent, by Plant Production Foreman Bond,2 interfered with, restrained, and coerced its employees in violation of Section 8 (1) of the Act. We base such 'Those provisions of Section 8 (1) and ( 3) of the National Labor Relations Act, which the Trial Examiner found were violated , are continued in Section 8 (a) (1) and (3) of the Act, as amended, by the Labor Management Relations Act, 1947. *Houston, Reynolds, and Gray. 2 Bond left the Respondent 's employ in June 1946 , and did not appear at the hearing. While we agree with the Respondent that the Trial Examiner was not warranted in finding that the Respondent knew of Bond's whereabouts, this circumstance does not affect our conclusions herein. 79 N. L. R. B., No. 12. 62 COLUMBIAN CARBON COMPANY 63 findings upon Bond's threats to withhold an increase 3 and to discon- tinue customary rest periods if the employees joined the Union, his interrogation of Barker concerning the latter's union membership, and his statement to Barker that the activities of the Union were under surveillance.4 The Respondent asserts that its policy concerning the question of union organization among its employees was one of strict neutrality as evidenced by a form letter 5 which it mailed to the employees just before the election. It urges that Bond's statements, mentioned above, even if made, were contrary to this policy. We note, however, that this letter did not retract or in any way refer to Bond' s statements, nor did the Respondent take any other action specifically repudiating Bond's remarks. The Respondent also asserts in this connection that Bond's activities were ineffectual in any event, inasmuch as the election results show that the employees voted overwhelmingly in favor of the Union. As the Board and the Courts have repeatedly held, the Act is violated by the commission of coercive acts, regardless of whether such acts are effective in accomplishing the intended results. 2. We also concur in the Trial Examiner's finding that the Re- spondent violated Section 8 (3) of the Act by discriminatorily dis- charging Barker." 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 Relations Board hereby orders that the Respondent, Columbian Car- bon Company, Ulysses, Kansas, its officers, agents, successors, and assigns shall: 3 We also agree with the Respondent that the record does not show that a competitor of Respondent had granted or had announced its intention of granting a wage increase "on or before May 1 ." The precise date, however, is immaterial in the consideration of this case. k We do not rely on Bond's conversation with Shift Foreman Bellis , wherein Bond asked if Bellis had heard any organizational talk among the employees and Bond 's instruction that Bellis report any "argument" concerning the Union. Inasmuch as Bellis replied that he would report such "argument," "providing they were neglecting their duties," we construe Bond's request as referring only to such activities as impeded production during working hours which we do not consider violative of Section 8 (1) of the Act. 6 This letter, dated June 5, 1946 , states among other things that the Respondent "does not discriminate between any employees in any way regardless of whether they belong or refrain from belonging to any labor union . . . In reaching this conclusion , we do not reply upon the statements made by Shift Foreman welsh in his conversation with Barker and Shores, as set forth in the Intermediate Report, or on the reference by Shift Foreman Phillips to Barker as "one more of the union radicals," no evidence appearing that Phillips or welsh had anything to do with Barker's discharge. Nor do we interpret the term "horse play" as used by Milton in explaining the reason for Barker's discharge , as referring to "union activity " As stated in the Intermediate Report, Milton also remarked shortly after Barker 's discharge that he had "got rid of two of my radicals." While it is highly probable that he may have been referring to Barker, we do not find on the preponderance of the evidence that this was, in fact , the case. 64 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Discouraging membership in International Union of Operating Engineers, AFL, or any other labor organization of its employees, by discharging or refusing to reinstate 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 their employment; (b) In any other manner interfering with, restraining or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist International Union of Operat- ing Engineers, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, 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 as amended : (a) Offer Lee Roy Barker immediate and full reinstatement to his former or substantially equivalent position without prejudice to h is seniority or other rights and privileges ; (b) Make whole Lee Roy Barker for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he would have earned as wages during the period from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during such period; (c) Post at its plant at Ulysses, Kansas, copies of the notice attached to this Intermediate Report, marked "Appendix A."' Copies of such notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the Respondent's representa- tive, be posted by the Respondent 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 Re- spondent to insure that said notices are not altered, defaced, or cov- ered by any other material. ., 3. Notify the Regional Director for the Seventeenth Region in writ- 'ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 7 This notice, however, shall be and it hereby is, amended by striking from the first para- graph thereof the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." In the event this Order is enforced by a 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." COLUMBIAN CARBON COMPANY 65 INTERMEDIATE REPORT Mr. Robert S. Fousek, for the Board. Messrs. B. 31. Britain and J. C. Sanders , of Amarillo , Tex., for the Respondent. Mr. H. R. Shepherd, of Oklahoma City, Okla., for the Union. STATEMENT OF THE CASE Upon a charge duly filed on May 24, 1946, by International Union of Operating Engineers, A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint dated June 10, 1947, against' Columbian Carbon Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section S (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, accompanied by notice of hearing, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance : (1) that from on or about May 1. 1946,1 to date of the complaint herein, the Respondent disparaged and expressed disapproval of the Union; attempted to secure information from its employees concerning the Union, the active organizers, and the members thereof ; and attempted, by holding out promises of a wage increase, to induce its employees to retrain from becoming members of the Union, all in order to discourage membership in the assistance to the Union; (2) that on or about May 10, 1946, the Respondent discharged Lee Roy Barker. and since the date of such discharge has failed and refused to reinstate said Lee Roy Barker to his former position for the reason that he joined the Union and engaged in concerted activities on its behalf; and (3) by the acts above described the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On June 23, 1947, Respondent filed its answer to the complaint wherein it ad- mitted that it was engaged in interstate commerce ; that the Union was a labor organization within the meaning of the Act ; but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held at Liberal, Kansas, on June 23, 1947 before Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the Respondent were represented by counsel and the Union was represented by an international organizer. All parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing counsel for the Board moved that certain hearsay testimony,2 introduced by B. M. Britain, counsel for the Respondent, who testified on the Respondent's behalf, be stricken. The undersigned overruled the motion to strike when first made, with the proviso that it might be renewed at the close of the taking of the testimony herein. The motion to strike was duly renewed and the undersigned reserved ruling thereon and now, for reasons set forth in Section III, B, below, grants said motion to strike. The parties were afforded an opportunity to argue orally before, and to file briefs, together with proposed ' Unless otherwise indicated , all events referred to herein occurred in,1946. 2 Such testimony pertained to certain statements, allegedly made to Britain as attorney for the Respondent , by Rowan Bond, plant production foreman, and Otis ,A. Milton, then warehouse foreman, with reference to the discharge of Lee Roy Barker. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD findings and conclusions with, the undersigned. The parties waived oral argu- ment. No briefs or proposed findings and conclusions have been submitted. On 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 The Respondent is a Delaware corporation with a license to transact business in the State of Kansas. It maintains an office and operates a plant at Ulysses, Kansas, where it is now and has been continuously engaged in the manufacture, sale and distribution of furnace type carbon and related products. Respondent, in the course and conduct of its business operations at its Ulysses plant, causes and has continuously caused a substantial amount of materials to be purchased, delivered and transported in interstate commerce from and through States of the United States other than the State of Kansas to its Ulysses plant, and causes and has continuously caused a substantial amount of products manufactured, sold and distributed by it as a part of its business, to be delivered and transported in interstate commerce to and through the States of the United States, other than the State of Kansas, from its Ulysses plant s II. THE ORGANIZATION INVOLVED International Union of Operating Engineers , A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Sequence of events The record discloses that union organizational activities at the Respondent's plant began about March 1. The ensuing campaign was carried on with con- siderable secrecy to the end that a majority of the employees might be signed up in the Union before the Respondent learned of the campaign to organize. The Union had organized a Local at the United Carbon Co. Inc., herein called the United, a competitor of the Respondent, which operated a plant at Ryus, Kansas, a distance of some 8 to 10 miles from the Respondent's Ulysses plant. On or prior to May 1, the United granted, or announced the intention of granting, an 11 cents per hour raise to its employees. The proposed raise at United was rumored among Respondent's employees. The Respondent's officials and top supervisors then heard rumors to the effect that its employees were attempting to organize at the Ulysses plant. Thereafter, Rowan Bond, plant production foreman, began and continued a course of anti-union talks among the Respondent's employees. On or about May 1, Bond discussed the Union with Shift Foreman' D. E. Bellis, and asked him if he had heard of any organizational talk among the mem- a The findings in this section are based upon the admissions contained in the Respondent's answer and upon ^credited, uncontradicated testimony contained in the record. 4 , Shift foremen are included in the appropriate unit and are presently covered under the 'contract in force between the Respondent and the Union. COLUMBIAN CARBON COMPANY 67 hers of his shift. Bellis replied that he had heard no such talk. Bond then asked him to report any "argument" (concerning the Union) that he might hear. Bellis agreed to do this, "providing they were neglecting their duties." On another occasion during May, Bond expressed himself concerning the Union in the presence of Bellis, R. L. Hampton, C. C. Marshall, R. W. Marshall, and Joyce Wilburn, to the effect that he had heard that the United had granted its employees an 11 cents hourly increase in wages ; that the Respondent was going to check the records with the United ; and if it found the rumors of such increase to be true, the Respondent's employees would get "just as much or more" as the United employes did "without any duet to pay or joining any labor organization." Bond stated further, however, that if the Union went ahead and organized the Respondent's plant, the employees, would have to fight for the raise themselves if they got one. (Emphasis added.) At and prior to the time the foregoing statements were made it was customary for the Respondent to grant rest periods and the above statements were made during one such rest period . Bond concluded his above referred to remarks as follows : The rest periods will be stopped . These 5 minute rests will be over with ... when the Union comes in we will have to have a full 8-hours' work without any breaks. e w days before the Board-conducted election' was held, employee James D. Cullum, who had heard rumors of a raise in wages, in the presence of Main- tenance Foreman Gray, asked Bond if he thought the employees would "have a raise right away." Bond replied: Yes, we have a letter at the office and we would have had the raise already if this Union had not been talked up too much. . . . Now, I don't know whether we will ever get a raise. . . . So far as I am concerned you won't if it goes Union.' (Emphasis added.) 2. Conclusions as to interference , restraint, and coercion On the basis of the foregoing and the entire record, the undersigned concludes and finds, that by the acts and statements of Bond, in requesting Bellis to report to him any "Union argument.' that the foreman might hear from the crew ; by Bond's statement to the effect that the Respondent would meet the raise in wages to its employees by the United "without any dues to pay or joining any labor organization" ; by Bond's statement to the effect that if the Union went ahead and organized, the employees would have to fight for a raise and would be deprived of their customary rest period ; by Bond's statement to the effect that a raise in pay would have been had but for the fact that the Union had "been talked about too much" ; and by Bond's further statement that "so far as I am concerned you won't [get a raise] if it [the plant] goes Union," the Respondent has interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby violated Section 8 (1) thereof. G The Union filed its petition for certification on May 16 or 17. Pursuant to a consent agreement an election was held on June 13 which was won by the Union. These findings are based upon the credited, uncontradicted and combined testimony of Bellis, R. W. Marshall, Hampton and Cullum. Bond was not called as a witness. While the record discloses that he voluntarily left the Respondent's employ in the late summer of 1946, to enter a business of his own , it indicates that the Respondent was aware of his whereabouts No application for a continuance or request to take Bond's deposition was made on behalf of the Respondent. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The discriminatory discharge of Lee Roy Barker Barker, a former employee of United, was hired by the Respondent on March 28. He was temporarily employed on construction work and was then assigned to "pulling black." He was an experienced carbon black worker, whereas a majority of those employed on pulling black were inexperienced. Barker re- ceived a 10 cent per hour raise shortly after he began to work. During practically all of his employment with the Respondent, Barker worked on the "graveyard shift," or from midnight to 8 o'clock a. m. Shift Foreman Welch who super- vised the graveyard shift, worked under the immediate supervision of Warehouse Foreman Otis A. Milton. Welch discussed the Union with Barker and one Shores, a fellow worker on the same shift, and told them, in'substance, "how-sorry the Union was" ; that it would take the employees' money ; deprive their families, and call strikes. Welch's union discussions caused Barker and Shores to inform him that such discussions interrupted their work. Barker lived in one of the Respondent-owned houses, which was so located that all cars and persons going-to and from this house during the daytime could be easily noted, since there was nothing to obstruct the view. One Patrick, an employee of United, was one of the Union organizers who assisted in organizing the Respondent's plant. At Barker's request, Patrick visited him at his home on Sunday, May 5, between the hours of 1 and 2 o'clock in the afternoon. Patrick came by car which he parked at the east side of Barker's house. During his visit Patrick gave Barker a union organization card which the latter signed and returned to Patrick' Barker worked from 4 o'clock p. m. to midnight on that Sunday (May 5). About 9 o'clock p. in. on this same day Bill Cullum' and, Pat Fugate, employees of the United, called at Respondent's plant and went to the place where Barker and Shores were working. The two United employees were accompanied by'Shift Foreman Welch After Cullum and Fugate left the plant, Welch contacted Barker and asked him if Cullum was not the president of the Union's Local at the United plant Barker replied that one Capley, who had worked at the United for 2 years, had informed him that Cullum was president of the Union's Local at the United plant. Welch then used bad words," and said that if he had known that Cullum was such president he would not have let him into the plant. Barker worked the Monday (May 6) shift with no untoward events occurring. On the following day, Tuesday, May 7, Barker was again assigned to the day shift. About 3: 45 p. m. Bond told him that when he had checked certain sacks Bond wished to see him. Barker contacted Bond as directed When he did so Bond said, "You know who is organizing this Union, if you will only talk" Bond- then asked Barker if the latter belonged to the Union. Barker replied that he did. Bond stated further that he knew who went to Barker's house, and that he knew every car that drove up to his house," because he had "some- body watching." On this occasion Bond also stated that he had checked the pay rolls at United's plant; that the Respondent's employees were going to get the same rate until they started "this campaign;" and added "if you get the Union you will get nothing " (Emphasis added) Bond stated in substance, that he 7 Barker had belonged to the Union while he was employed at the United plant. 8 Not to be confused with James D Cullum, an employee of the Respondent who appeared as a witness on behalf of the Union herein "It is undisputed that Patrick visited Barker's home several times between May 5 and May 10 ' COLUMBIAN CARBON COMPANY 69 'would prosecute the next man (outsider) he caught trying to organize a union at the Respondent 's plant 1° Some 2 weeks prior to May 10, Bond in a conversation with Bellis, stated that if Barker "didn't discontinue politicjng and talking" he was going to have to fire him. On May 10 at about 8 or 9 o'clock in the forenoon Bellis had a further conversation with Bond during which Bond, which reference to Barker, said, "I am going to tell Milton to fire that son-of-a-bitch today."" -On the evening, of Friday, May 10, Barker who had heard that one Woods (an employee with less seniority than either Barker or Shores), had been promoted ahead of himself and Shores, asked Milton what the latter meant by promoting Woods ahead of Barker and Shores Milton replied that he had nothing to do with Woods' promotion. Barker then told Milton that if it took "a union to straighten this thing out and get it where the men could work it out, he (Barker) was for the Union." Immediately following the foregoing discussion both Milton and Barker left the plant Barker went to his home Shortly thereafter Barker's wife answered a knock at the door; then returned and reported that Milton had been at the door and left word -that he had turned in Barker's time and for the latter to "come down 'and get" it. Barker then called to Milton who refused to stop. Barker then went to the plant, saw Bond, and asked why he was fired. Bond replied, "You are not satisfied ... go see Milton." Bond added that when a foreman turns in a complaint about a man, he (Bond) "fires him." Barker left Bond and immediately called at Milton's house and knocked at the door When Milton opened the door and saw Barker he slammed the door in Barker's face a Following Barker's discharge employee James D. Cullum asked Milton if the latter thought Barker was discharged for a good reason. Milton replied : I don't really think it is right, but the fellows have got to stop all this horse play [union activity] or else the Company is going to clamp down" A, day or two after Barker"s discharge Milton discussed the Union with R. W. Marshall and stated to the latter that if the Union did not come into the plant the men-would get the raise automatically. When Marshall said, "It looks like it would be better if we didn't get the Union," Milton replied, "Yes; I have got rid of two of my radicals." After Barker's discharge, Milton told employee Harley L. Carrol that he (Milton) "had nothing against his [Barker's] work." 10 These findings with reference to Barker's conversation with Bond and Welch are based upon Barker's credited and uncontradicted testimony. Neither Bond nor Welch were called as witnesses. The record does not indicate that either Bond or Welch were unavailable In fact, it indicates that the Respondent was aware, as hereinabove stated, of Bond's where- abouts, and made no request for an adjournment or request to take Bond's deposition. 11 These findings are based upon Bellis' credited and uncontradicted testimony. 12 These findings covering the events of Barker's discharge are based upon Barker 's cred- ited testimony. As related elsewhere herein neither Bond nor Milton were called as wit- nesses Barker impressed the undersigned as a truthful witness who sought to answer all questions put to him both on direct and cross-examination, in conformity with the facts as he saw or recalled them. 13 These findings are based upon James D. Cullum's credited and uncontradicted testi- mony. Milton was not called as a witness. The recoid indicates that the Respondent had discharged Milton in or about August 1946; had made an effort to locate him before the heating; and that such efforts proved to be of no avail. The undersigned granted addi- tional time for the Respondent to locate Milton and take his deposition, by giving it until July 10, 1947, in which to locate Milton and advise the undersigned that Respondent had found him Under date of July 10, 1947, counsel for the Respondent notified the under- signed by letter that its search for Milton had been unsuccessful. 809095-49-vol. 79-6 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the day of Barker's discharge, Shift Foreman Phillips stated to employee Ray Hampton, "There goes one more of the union radicals." 14 Contentions ; issuess ; conclusions The Respondent contends in substance and effect (1) that it discharged Barker because he was "fussy and overbearing" with his fellow workers and his immedi- ate supervisors ; and because he was "continuously complaining and griping about the way things were done," particularly with reference to "the promotion of men to different jobs" ; and (2) that inasmuch as Respondent had entered into a consent agreement for holding the election, whereby the Union was selected as bargaining representative of its employees, and from the promptness with which the Respondent met with and concluded an agreement with the Union covering wages, hours and working conditions, the Respondent demonstrated that it was not anti-union and thus may not be found to have engaged in any of the unfair labor practices alleged herein. As to the first contention, the Respondent called neither Bond, Milton, Welch nor Phillips as witnesses and the testimony of Board witnesses with reference to the statements and anti-union conduct of these four foremen, all as set forth above, is uncontradicted. No other witnesses who purported to have first hand or personal knowledge of the events occurring between Bond and Barker from May 5 to May 10, or purported to have had first hand knowledge of what oc- curred between Milton and Barker during the same period, were called by the Respondent B. A. Britain, one of counsel for the Respondent, took the witness stand and sought to testify in substance, and in part, that as attorney for the Respondent he investigated Barker's discharge and in doing so interviewed Foreman Milton. Britain sought to relate what purported to be Milton's version of the events connected with such discharge. Such proposed testimony was ob- jected to by counsel for the Board, who moved to strike all testimony thereto- fore given by Britain relating to Milton's alleged statements to Britain. The undersigned sustained the objection to the extent that Britain was not permitted to proceed further in giving Milton's version of such events, but Britain was advised that he might make an offer of proof of record.. Britain then offered in evidence a written statement purportedly signed by Milton on July 11, 1946, and purporting to relate Milton's version of the events connected with Barker's discharge. Counsel for the Board's objections to receipt of such statement in evidence was sustained by the undersigned,16 who reserved ruling on the motion to strike Britain's testimony theretofore given insofar as it related to statements by Milton pertaining to Barker's discharge. Inasmuch as Britain's hearsay testimony is inadmissible under the circumstances, the motion to strike is hereby granted. The Respondent relies upon two letters, each purportedly written under date of May 16, one signed by Bond and the other signed by Milton and each ad- dressed to the attention of J. B. Stewart, Plant Supervisor. The undersigned admitted such letters in evidence over the objection of counsel for the Board, upon Stewart's testimony that it was Respondent's custom to require the im- 14 The findings with reference to statements made to Marshall by Milton ; the statements made by Milton to Carrol ; and statements made by Phillips to Hampton , all as related above, are based upon the credited and uncontradicted testimony of Marshall, Carrol, and Hampton. Phillips was not called as a witness , and, unlike Milton, was not shown to have been unavailable. 15 Such statement was, by direction of the undersigned , included in the record as a "rejected exhibit." COLUMBIAN CARBON COMPANY 71 mediate foreman and the production foreman to make written reports when an employee was discharged, and that such letters constituted reports required from Bond and Milton. Bond's "report" reads as follows : This is in regards to Mr. Lee R. Barker who was employed by the Colum- bian Carbon Company. He was discharged May 10, 1946 because of being fussy and overbearing with his fellow men and his immediate supervisors. On several occasions the warehouse foreman, Mr. Otis Milton, came to me and stated that Mr. Barker was very fussy and hard to get along with. I told Mr. Milton that I would talk to Mr. Barker which I did on April the 8th, telling him that I had received complaints from his foreman Mr. Milton, and that he had to stop this fussing. That if he wasn't satisfied I'd rather he would quit, that I did hate to fire a man and more especially with a family the size of Mr. Barkers. He promised me faithfully that he would stop it. On April the 12th Mr. Milton came to me stating that Mr. Barker came into the Warehouse and gave him a cussing and that he was tired of it. I gave Mr. Milton authority to fire Mr. Barker, which he did. Mr. Barker came to me then wanting to know why he was fired. I told him it was for keeping up a disturbance on the job and cussing Mr. Milton which we can't allow on the job. Milton's "report" reads as follows : The man in question, Lee R. Barker, was fired from this plant on Friday, May 10, 1946. He was fired for continually complaining and griping about the way things were done. By things, I mean the promotion of men to different jobs. Mr. Bond had charge of the promotion, but Mr. Barker would eat me out for things over which I had no control. I had warned him at different times that he had better keep his mouth shut. Other men, including shift foremen, had also warned him. Only three or four days before he was fired, Mr. Bond took him aside and talked to him for some time about his continual complaining and attitude toward others with whom he worked. He also made it hard on the men with whom he worked. He would throw off on them by not doing his full duty. Hoping that this will help clearify (sic) matters, I am- Each of the foregoing alleged reports are in the form of a letter and addressed to Stewart's attention by the way of a Post Office box number thus indicating that the letters were written outside of the plant and sent to the Respondent by mail. The letters are dated 6 days after Barker's discharge and are not in the form of separation slips normally used by employers. The Board has held 16 that entries made in the course of business purporting to show reason for employees' separation from employment to be admissible in evidence. On the record herein, however, the undersigned cannot find that Bond's and Milton's letters are entries made in the course of business.. From their con- tents both letters indicate that they were prepared after the Respondent knew or had reason to believe that charges alleging Barker's discriminatory discharge were to be or had been filed. "An entry made in the course of business" having to do with a non-discrimina- tory discharge, made in good faith, would not normally conclude, as did Milton's 113 See In the Matter of Mountain City Mill Co., 25 N. L. R. B. 397. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleged report, with the following: "Hoping that this will help clearify (sic) matters, I am _.11 17 On the above and the record the undersigned concludes and finds that the Bond and Milton letters were and are not entries made in the course of business, but are self-serving documents which were evidently prepared after the Respond- ent had reason and believed that charges had been or were to be filed alleging that it had discriminatorily discharged Barker. Inasmuch as the subject matter of the letters had not been sworn to and since counsel for the Board and the Union have not been afforded an opportunity to cross-examine either Milton or Bond in connection therewith, the letters and each of th8m are insufficient to support any finding of fact other than that it appears from their face that they were prepared as a defense to an anticipated filing of the charges herein It is so found. This contention is without merit. As to the second contention, the record does disclose that the Respondent signed a consent agreement for the holding of the election hereinbefore referred to; and that the Respondent's representatives met with union representatives with the result that an agreement covering wages, hours and working conditions satis- factory to each party were promptly reached. While the Respondent's conduct in consenting to an election without requiring formal recourse to the Board's pro- cedure, and its promptness in meeting with, and bargaining with the Union, is highly commendable, it is no defense to the unfair labor practices detailed above and found to have been committed by Bond, Milton, Welch and Phillips, for each of whose actions the respondent is chargeable under the Act. It is so found. This contention is without merit. Conclusions On the above and the entire record the undersigned concludes and finds that by the discharge of Lee Roy Barker on May 10, 1946, by thereafter refusing to reinstate him to his former or substantially equivalent position, because of his Union membership and activities, the Respondent has discriminated in regard to his hire and tenure of employment and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COM MERCE 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, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. 17 The , charge herein was sworn to on May 23, 1946, and filed on May 24, 1946. As stated hereinbefore the petition for investigation and certification was filed on or about May 16 or 17. COLUMBIAN CARBON COMPANY 73 The undersigned found that the Respondent discriminated in regard to hire and tenure of employment of Lee Roy Barker, thereby discouraging membership in the Union. It will be recommended that the Respondent offer said Lee Roy Barker immediate and full reinstatement to his former or substantially equiva- lent position," without prejudice to his seniority or other rights and privileges. The undersigned will further recommend that said Lee Roy Barker be made whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would have earned as wages from the date of such discrimination to the date of his offer of reinstatement, less his net earnings 19 during such period. Upon a consideration of the entire record, the undersigned is convinced that Respondent's conduct indicates an attitude of opposition to the purposes of the Act generally. This attitude is disclosed by its discrimination against Lee Roy Barker. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act,20 thereby minimizing industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recom- mended that the Respondent cease and desist from in any manner infringing upon any of the rights guaranteed in Section 7 of the Act. On the basis of the foregoing findings of fact and of the entire record, the un- dersigned makes the following: CONCLUSIONS OF LAW 1. International Union of Operating Engineers, affiliated with the American Federation of Labor, 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 Lee Roy Barker, thereby discouraging membership in International Union of Operat- ing Engineers, affiliated with the American 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. 3. 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. 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 Columbian Carbon Company, Ulysses, Kansas, its offi- cers, agents, successors , and assigns shall : 1 Cease and desist from: (a) Discouraging membership in International Union of Operating Engineers, affiliated with the American Federation of Labor, by discharging and refusing to reinstate any of its employees, or in any other manner discriminating in Is In accordance with the Board's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wherever possible, but if such position is no longer in existence , then to a substantially equivalent 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. 10 See Matter of Crossett Lumber Co., 8 N L R. B. 440, 497-498. 20 See May Department Stores, etc., 326 U. S. 376 , Matter of D. C. Beck & Company, 63 N. L. R. B. 1426 ; and Matter of Caroline Mills, Inc., 64 N. L. R. B. 376 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regard to hire and tenure of employment, or any term or condition of employ- ment ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organi- zations, to join or assist International Union of Operating Engineers, affiliated with 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 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 effectuate the policies of the Act : (a) Offer Lee Roy Barker immediate and full reinstatement to his former or substantially equivalent position and make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination in the manner provided herein in the section entitled "The remedy" ; (b) Post in conspicuous places at its plant in Ulysses, Kansas, in)all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced or covered by other material ; (c) Notify the Regional Director for the Seventeenth Region, in writing, within ten (10) days from the date of this Intermediate Report, what steps Respondent has taken to comply therewith. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period; file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46, should any party desire permission to 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. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, and recommendations and recommended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, con- clusions and order, and all objections and exceptions thereto shall be deemed 0 waived for all purposes. PETER F. WARD, Trial Ecvaminer. Dated September 30, 1947, COLUMBIAN CARBON COMPANY APPENDIX A NovicE To ALL EMPLOYEES 75) 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 notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their rights to self-organization, to form labor or- ganizations, to join or assist INTERNATIONAL UNION OF OPERATING ENGINEERS, affiliated with the AMERICAN FEDERATION OF LABOR, or any other labor organi- zation, 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. WE WILL OFFER to the employee named below,* 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. *Lee Roy Barker All our employees are free to become or remain membprs of the above-named union, or any other labor organization. We will not discriminate in regard to. the hire or tenure of employment, or the term or condition of employment because of membership in or activity on behalf of any such labor organization. COLUMBIAN CARBON COMPANY, Employer Dated ------------------------------- By ---------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material.