Atlantic Co.

In the Matter of ATLANTIC COMPANY and UNITED RETAIL, WHOLESALE, AND DEPARTMENT STORE EMPLOYEES OF AMERICA, C. I. 0., and UNITED PACKINGHOUSE WORKERS OF AMERICA, C. I. O. Case Nos. 10-C-1772 and 10-C-1955 (15-C-1081).-Decided September 21, 1948 DECISION AND ORDER On August 30, 1946, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended dismissal as to them. Thereafter, counsel for the Respondent and for the Board filed exceptions to the Inter- mediate Report and supporting briefs. The Respondent's request for oral argument is hereby denied inasmuch as the record and briefs, in our opinion, adequately present the issues and positions of the parties. The Board 2 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner except insofar as they are inconsistent with the Decision and Order herein. 1. Jurisdiction We agree with the Trial Examiner's finding that at all times mate- rial to this proceeding the Respondent has maintained, as an integral I The provisions of Section 8 (1) and 8 ( 3) of the National Labor Relations Act, which the Trial Examiner herein found were violated , are contained in Section 8 (a) (1) and 8 (a) (3) of the Act, as amended by Labor Management Relations Act, 1947. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members [ Houston, Murdock , and Gray]. 79 N. L. R. B., No. 106. 820 ATLANTIC COMPANY 821 part of its over-all business enterprise, an office and place of business at Columbus, Georgia, hereinafter called the Columbus plant, and an office and place of business at Montgomery, Alabama, hereinafter called the Montgomery plant. This finding is in accord with the stipulation of the parties.3 The Trial Examiner failed to find ex- pressly, as we hereby find, in accordance with the stipulation of the parties, that the Respondent is engaged in commerce, within the meaning of the Act, at its Columbus and Montgomery plants. 2. Interference, restraint, and coercion (a) The Trial Examiner found that the Respondent , by certain activities, interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. We agree with this conclusion, but limit the ground for our findings to the acts and statements of the Respondent's Vice-President Henry, its supervisors McDaniels, Mathias,4 Sullivan, Russell, Barnett, Penn, Gordy, and Goodman, and City Detective Frizzel, which consisted of interrogation of the' Respondent's employees concerning their union activities , surveillance of the employees ' union activities , threats of reprisals and of withholding benefits if the employees persisted in their union activities , the change of shifts at the Montgomery plant, assisting and encouraging the circulation of an anti -union petition at the Columbus plant, and the discharge of certain employees for union activities, as hereinafter set forth . The Trial Examiner also found that the speech by Plant Manager Gordy, delivered at the time when the Respondent was engaged in the anti-union activities set forth in the Intermediate Report, was a violation of Section 8 (1) of the Act. As this speech , however, contained no threat of reprisal nor promise of benefits, we find that it was an expression of opinion protected under Section 8 (c) of the Act, as amended.5 (b) The Respondent objects to the Trial Examiner's finding that it was responsible for the anti -union activities of Detective Frizzel, who worked for the Respondent during his free time while employed as a city detective . The Respondent claims that it hired him solely to investigate alleged threats to shoot the Respondent 's car icers. It is 3 This finding does not conflict with the qualification to the stipulation , to which the Respondent and the Board agreed at the hearing, to the effect that the Respondent 's labor, business , and purchasing policies , and the conduct of its affairs with its customers, are not absolutely controlled by the Respondent 's head office at Atlanta, Georgia, but are, to a large extent, handled locally at the various plants " There is no evidence to support the Trial Examiner 's finding that Mathias was sent to Montgomery from Columbus at the specific request of McDaniels, and we, therefore, sustain the Respondent 's exception to that finding This does not alter any of the Trial Examiner's conclusions. Matter of Carpenter Steel Company,.-76 N L. R B 670 809095-49-voI 79--53 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not material herein whether or not these threats were actually made,, or whether or not the Respondent believed they were made, in view of : (1),the lack of evidence that Detectives Frizzel and Davis,6 after being hired, made any attempt whatsoever to investigate the alleged threats;, (2) the evidence that'Frizzel devoted himself entirely to anti-union activities of the type set forth in the Intermediate Report; (3) the Respondent's failure to inform the city Chief of Police of the alleged threats, and thus to obtain protection at the expense of the city ; and (4) the collaboration between Frizzel and the Respondent's supervisor, Sullivan, in the incident set forth in the Intermediate Report involv- ing employee Green White. We, therefore, agree with the Trial Ex- aminer's finding that by.the activities of Frizzel, the Respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. (c) The Trial Examiner found, and we agree, that the change from an 8-hour to a 12-hour shift at the Montgomery car-icing plant was instituted by the Respondent in an effort to defeat the self-organization of its employees. The Respondent's contention that the reason for the shift change was to make its operations more efficient in order to meet complaints about slow car-icing is not supported by the circumstances under which the change was made. Just prior to the consolidation of shifts, the Respondent, through its Vice-President Henry and Plant Manager McDaniels, asked for and received information from Fore- man Penn as to the union activities of its employees, and was advised by Penn that application cards had been circulated but not yet signed. Although Mozingo, agent of the Fruit Growers' Express Company," had suggested the consolidation of shifts in the spring, and McDaniels had promised to consider this suggestion after the'rush season, the rush season had been over for more than 2 months when the change was instituted. Significantly, the Union had begun organizing during that period. The Trial Examiner found, and we agree, that the 2 com- plaints received shortly prior to the change in shifts, which the Re- spondent cites in support of its contention, were merely routine com- plaints admittedly caused by circumstances beyond the control of the Respondent, and which would not be avoided by the shift change. While the Respondent claims that the slow car-icing was caused by the unreliability of the night-shift employees in reporting for work and the difficulty of obtaining replacements at night, the 4 employees selected for discharge because of the shift change worked on the day The record contains no evidence of any activity on the part of Detective Davis except to show that he was present during one of the conversations between Frizzel and employee Edward 'Bruce 7 Fruit Growers' Express Company, which contracts with the railroads to keep refrigera- tion cars properly iced, sublets part 'of'its contract to the Respondent. ATLANTIC, COMPANY ' 823 shift. Although, allegedly, one of the aims in the shift change was to reduce the number of irregular and casual laborers on the job, and 'to form a small stable labor force of 13 men, this figure was not reached until about 2 months after the discharges took place, when the Re- 'spondent's operations were at their seasonal low. The consolidation of shifts increased the weekly pay roll of the Respondent from $536 to $706. Finally, the remark by Foreman Sullivan that the Union "got the Number 2 boys" 8 indicates that the consolidation of shifts was undertaken for the purpose of providing the Respondent with a pre- text for discharging union members. (d) The Trial Examiner found, and we agree, that at the time of the Union's organizing activities at the Columbus plant, Goodman, a supervisor, when making loans to employees, made statements to the effect that the Respondent would no longer give money to the Union, and, in one case, made the granting of a loan dependent on the signing of the anti-union petition by the borrower. The Trial Examiner did not find, as the Respondent claims he did, that there was a change in the Respondent's loan policy with the advent of the Union. It was Goodman's remarks accompanying the making of a loan which are discussed in the Intermediate Report, and which we, like the Trial Examiner, find to constitute a violation of Section 8 (1) of the Act. (e) The Trial Examiner found, and we agree, that the Respondent encouraged and assisted in the circulation of the anti-union petition by two non-supervisory employees, Yarborough and Cato. The Re- spondent's disclaimer of responsibility for these activities is not borne out by the record. In addition to the evidence discussed in the Inter- mediate Report," the record shows that Plant Manager Gordy asked employee Eddie Riggins, after getting him out of jail, whether he had signed with Yarborough, and, when informed that he had done so, stated "That will do." Employees Frank Culpepper and Jake Bettis credibly testified that Cato had come to their homes in the Respondent's truck to have them sign the petition. This is significant in view of the Respondent's claim, in connection with the discharge of Sam Davis,10 that it was strictly against the Respondent's rules to use its trucks on private business. 8 The Respondent's icing stations were generally referred to as the "Number 1" or "Number 2" plants. All the discharged employees worked at the Number 2 plant. ° The Trial Examiner erroneously states that it was Frank Culpepper who was refused a loan by Gordy until he had signed the anti-union petition. The record shows that it was Willie Battle rather than Frank Culpepper who was involved in this incident. We, therefore, sustain the Board's exception to this finding. 10 The Trial Examiner dismissed the Board's charge that Sam Davis' dismissal was a violation of Section 8 (3) on the ground that he had been justifiably discharged for using a truck of the Respondent on private business . The Board has not appealed from this dismissal. 0 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The discharges (a) The Trial Examiner found, and we agree, that the Respondent discharged Woody May, Ed Belser, Joe Ward, and John Robinson in violation of Section 8 (3) of the Act. The Respondent admits that the occurrences involving these employees which are set forth in the Inter- mediate Report did not, by themselves, constitute grounds for dis- charge, but claims that they were considered by its foreman, Mathias, in deciding which men to lay off after the consolidation of shifts. Even if this were so, as we have found that this consolidation of shifts was undertaken to break up the organizing drive of the Union, any discharges pursuant to this undertaking are in violation of Section 8 (3) of the Act." The record shows that all four of these employees were union mem- bers. While there is no direct showing that the Respondent knew of the union membership of these employees, we infer such knowledge from Mathias' statement, while discussing the union activities of Cleve Williams, that "I hears most everything, hears it pretty regular," and from the interrogation of employees concerning union member- ship and activities by the Respondent's supervisors and by Frizzel. Moreover, the credited testimony of all four of these employees shows that when discharging them, Mathias informed them that he had orders to let them go .12 (b) We do not agree with the Trial Examiner's finding that the Respondent violated Section 8 (3) of the Act by terminating the em- ployment of Clayton Williams, Edward Jones, and William Garri- son. The Trial Examiner states as the basis for his finding that all three of these night-shift employees were farmers who were unable to work in the daytime, and that this fact was known to the Respondent when he offered them assignments on the day shift after the con- solidation of shifts. The record shows that only Ed Jones was a farmer, and is silent as to the daytime occupations, if any, of the other two. While the Trial Examiner discredits Mathias' testimony that he did not know that these three employees would be unable to work on the day shift, the only evidence in the record that either Mathias or any other supervisor of the Respondent knew that these three would be unable to work during the day is the fact that these employees had always worked on the night shift while employed by the Respondent. Although the circumstances cause us to suspect that 11 Matter of Capital City Candid Company, 71 N L R B 447. 12 Woody May testified that Mathias had also told him that he was being let go because of a reduction in force. The other three discharged employees denied that any explanation other than the one set forth above had.been given them concerning the reason for their lay-offs. ATLANTIC COMPANY 825 the Respondent was discriminating against these employees when it put them on the day shift, there is not enough evidence td support such a finding, and we shall, therefore, dismiss the complaint as to them. (c) We also disagree with the Trial Examiner's finding that Tom Garrison, Willie Jones, James Cargill, and John Aiken were dis- charged in violation of Section 8 (3) of the Act. We find that the circumstances of the termination of employment of these four, fully set forth in the Intermediate Report, did not constitute a constructive discharge by the Respondent, but a voluntary quitting of their employ- ment by these employees. The night of September 12, when their employment was terminated, was the first night that the extra amount of work was demanded of them, and they had no information as to how long that situation would continue. While Foreman Barnett probably should have assured them that the extra work was not going to be the general practice, his failure to do so does not transform the quitting of these employees because of the extra work into a con- structive discharge. Moreover, as far as the record shows, the only union activity on the part of any of these employees was attendance at a union meeting by Tom Garrison. While the Respondent may have suspected all these employees of union activity, there is no evidence in the record to show that it did suspect them. Under these circum- stances we shall dismiss the complaint as to these employees. (d) The Trial Examiner found, and we agree, that William War- ren 13 was discharged because of his union activity in violation of Section 8 (3) of the Act, and that the watermelon-eating incident set forth in the Intermediate Report was only a pretext. This conclusion is supported by the credited testimony that Frizzel gave Warren's union activities as the reason for his discharge; that the Respondent failed to discharge Warren's helper, who was also absent from his work in the ice-crushing room at the time in question; and that it was customary for employees to leave the crushing room on occasion be- cause it became too cold. In addition, it is significant that Warren's discharge occurred during the .period when the Respondent had in- stituted the shift change, was discharging union members, and was engaging in a general program to eliminate the Union from the plant. (e) The Trial Examiner found, and we agree, that the Respondent discharged Charles Bailey in violation of Section 8 (3) of the Act. The "Contrary to the Respondent's contention , we attach no significance to the fact that the names of William Warren and Charles Bailey were included in the charges in Case No 15-C-1082 The charges in that case were filed on October 9, 1945 , the same day as the charges in the instant case (15-C-1081) were filed, and were withdrawn without prejudice on November 15, 1945 On May 10, 1946 , the charges in the instant case were amended to include some of the names contained in the earlier charges, amongst them those of Wil- liam Warren and Charles Bailey 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner erred in finding that Frizzel told Bruce that either- Bruce's or Bailey's name appeared on most of the union cards , whereas the record shows that Frizzel mentioned only Bruce's name in that con- versation . Inasmuch as Bailey did sign up several employees, how- ever, and, as Frizzel's statement shows, the Respondent apparently had seen the union cards of several of its employees '14 we find this error immaterial. (f) The Trial Examiner found that the Respondent discharged Edward Bruce in violation of Section 8 (3) of the Act . Bruce was one of the employees responsible for signing up the others , and this fact was known to the respondent . The Respondent claims that it refused to reemploy Bruce when he got out of jail because it did not wish to have in its employ a truck driver who had been convicted of driving a car while drunk. Foreman Sullivan 's testimony that Fred Green had been bailed out of jail by the Respondent after he had wrecked a com- pany truck, and had been put back to work, where he wrecked another, shows that the Respondent was not always concerned with the safety records of its drivers. According to Green's credited testimony , his bail and reemployment by the Respondent hinged on his assurance that he knew nothing of the Union and intended to have nothing to do with it. In view of this testimony , and of the Respondent's repeated attempts, fully set forth in the Intermediate' Report, to have Bruce divulge the names of union members in return for bail, we find that Bruce 's wreck- ing of a private car, on his own time, merely furnished a pretext for re- fusing him reinstatement after his jail sentence was served. We, therefore , find that the Respondent violated Section 8 (3) of the Act by discriminatorily refusing to reinstate Edward Bruce. (g) The Trial Examiner concluded that there was insufficient evi- dence to support a finding that Lewis Henry was discharged for union activity. Counsel for the Board has excepted, and we find this excep- tion to have merit. Lewis Henry had refused to sign the anti-union petition. On the salve day, he was arrested and jailed on a charge of prowling. Upon being released on bond when the complainant could not identify him, he reported back for work. At that time Supervisor Goodman, as reported in the Intermediate Report, stated that Lewis Henry had to get out of the "mess he was in," and that he had "got to do like a buzzard , straighten up and fly right." This conversation also included a statement by Goodman that Clayton Henry, Lewis' brother, had "got straight" and was working. Clayton Henry had signed the anti-union petition , and had not been in jail for a long time. 14 Employee Cleve Williams ' testimony, set forth in the intermediate Report , shows that the Respondent attempted to possess itself of the union application cards of its employees. ATLANTIC COMPANY 827 This indicates, in our opinion, that the conversation discussed above referred to Lewis Henry's refusal to sign the anti-union petition. This conclusion is given added weight by the fact that the Respondent fre- quently rehired employees who got into difficulties with the law. In fact, it customarily appeared at the city jail on Monday morning to bail out its employees. It had rehired Virgil Culpepper after he had .been released from jail for stealing hams from the Respondent; lead rehired James Bennett after he had attacked a fellow employee with, a knife, and again after he had threatened a truck driver with an ice pick; and had reinstated Heywood Billingsley while he was out on bail on an assault and battery charge. In view of these facts, we do not ,credit Goodman's explanation that Lewis Henry was merely required to clear himself of any suspicion of crime before he was rehired. We find, instead, that his refusal to sign the anti-union petition was the cause for his discharge. We shall, therefore, sustain the Board's obj ec- tion to the Trial Examiner's finding in this instance, and find that Lewis Henry was discriminatorily discharged in violation of Section ,8 (3) of the Act. (h) The Trial Examiner found, and we agree, that Heywood Bil- lingsley, Clayton Henry, Frank Culpepper, and Jake Bettis were not ,discriminatorily laid off and refused reinstatement in violation of Section 8 (3) of the Act. Counsel for the Board objects to these find- ings. In his brief, he admits that the Respondent had a legitimate reason for shutting down its boiler room and laying off some of its employees until it resumed operations. It had no seniority system to guide its selection of employees for lay-off, and there is an insufficient showing that any of the employees were selected for lay-off on account 'of their union activities. Employee Jake Bettis, who had refused to sign the anti-union petition, was laid off, but was offered reinstate- ment after the Respondent resumed normal operations. Employee Clayton Henry had signed the petition on the advice of the union or- ganizer. He was taxed with this fact by Supervisor Goodman 15 after he had been laid off, when he requested reinstatement, which was .,refused at- that time. • He was, however, at a later time offered rein- statement for which he reported too late. Employee Billingsley, who had signed the anti-union petition, was nevertheless laid off, and was later reinstated. Employee Frank Culpepper refused to sign the petition, was laid off, and was not offered reinstatement. Under these ..various circumstances, we find that although there is some indication "Goodman found out about Clayton Henry's reason for signing the petition after his conversation with Lewis Henry, discussed above. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent discriminated against these employees because of their union membership or activities, there is not enough evidence to justify a finding that the Respondent's conduct in relation to these employees constituted a violation of Section 8 (3) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the policies of the Act, as amended. By its discriminatory discharge of employees and by other acts and conduct, particularly its surveillance of union activities and its anti-union threats, the Respondent has demonstrated a clear attitude of opposition to the purposes of the Act, and a determination generally to interfere with the rights guar- anteed in Section 7 of the Act. We shall, therefore, order the Re- spondent to cease and desist from the unfair labor practices in which we have found that it engaged, and, in addition, that it cease and de- sist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in the Act 16 Having found that the Respondent has discriminated against the employees named in "Appendix A," attached hereto and made a part hereof, in regard to their hire and tenure of employment, in violation of Section 8 (3) of the Act, we shall, in order to effectuate the pur- poses of the Act, order the Respondent to offer these employees im- mediate and full reinstatement to their former 11 or substantially equivalent positions,"' without prejudice to their seniority and other rights and privileges, and to reimburse each of them, except Lewis Henry, for any loss of pay he has suffered by reason of the discrimina- tion 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 of the Respondent's discrimination against him to the date of the Respondent's offer of reinstatement, less his net earn- 'O N L. R B. v Express Publishing Co., 312 U. S. 426 ; May Department Stores Co. v. N. L R B., 326 U. S. 376 1' In view of the circumstances under which the Respondent refused to rehire Edward Bruce, set forth in the Intermediate Report and discussed above, the Respondent need not reinstate him as a truck driver , but shall be deemed to have fully complied with this Order if it offers him substantially equivalent employment in another capacity. 1e In accordance with the Board's consistent interpretation , 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. ATLANTIC COMPANY 829 ings during such period,19 and to reimburse Lewis Henry for any loss of pay he has suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which lie normally would have earned as wages during the period from the date of the Respondent's discrimination against him to August 30, 1946, the date of the Intermediate Report herein, and during the period from the date of this Decision and Order to the date of the Respondent's offer of reinstatement'20 less his net earnings during such period. We affirm the Trial Examiner's ruling that evidence intended to show that the discriminatorily discharged employees had obtained substantially equivalent employment elsewhere is inadmissible. The Respondent in its brief urges upon us the proposition that this evi- dence is material as it would not effectuate the policies of the Act to order reinstatement of employees who had obtained substantially equivalent employment elsewhere. The Act permits us to order rein- statement whenever it is necessary to do so in order to effectuate the purposes of the Act.21 In Matter of Ford Motor Co.,22 we held that a reinstatement order had the dual function of making whole the em- ployee against whom the discrimination had been practiced, and of dissipating the coercive effect of the discharge upon other employees by demonstrating that the Act carries sufficient force to restore to work anyone who had been discharged for exercising his rights under the Act. We therefore held that the policy of the Act would best be effec- tuated if we ordered reinstatement regardless of whether or not the discriminatorily discharged employee had obtained equivalent em- ployment elsewhere .21 Evidence to the effect that discriminatorily discharged employees have obtained equivalent employment elsewhere is therefore immaterial and not admissible at the hearing- 24 "By net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the Respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Co., 8 N. L. R. B 440. Monies received for work performed upon Fed- eral, State , county, municipal , or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N L. R. B., 311 U S 7. 20 This abatement of back pay for the period between issuance of the Intermediate Report and our Decision and Order follows our practice where, as here , we have reversed a Trial Examiner 's finding that allegations of discrimination were lacking in merit. See Matter of Gibson County Electrw Membership Corp., 74 N L. R. B. 1414, and Matter of Capital City Candy Company, 71 N. L it. B. 447. 21 Phelps Dodge Corp. v. N. L. R B., 313 U S. 177. 22 31 N L. R B. 994, 1099 23 The question of substantially equivalent employment, and the effect thereof on the amount of back pay owed by the Respondent , becomes an appropriate matter for consider- ation when the Respondent complies with the Order herein 21 N. L. R. B. v. Regal Knitwear, 140 F ( 2d) 746, aff'd 324 U. S 9 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Atlantic Com- pany, Atlanta, Georgia, and its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Discouraging membership in United Retail, Wholesale and Department Store Employees of America, C. I. 0., and United Pack- inghouse Workers of America, C. I. 0., or any other labor organiza- tion of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employ- ment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of, the right. to self-organization, to join or assist United Retail; Wholesale and Department Store Employees of America, C. I. 0., and United Packinghouse Workers of America, C. I. 0., or any other labor organization of their choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2., Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to those employees whose names are listed on "Appendix A" immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (b) Make whole the said employees for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, in the manner set forth in the section entitled "The Remedy," above; (c) Post at its Montgomery,' Alabama, and 'Columbus, Georgia, ; plants, copies of the notice attached hereto and marked "Appendix. B." 25 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respond- ent's representative, be posted by the'Respondent immediately upon, receipt thereof, and be maintained by it for at least sixty ( 60) consecu- tive days thereafter, in conspicuous places, including all places where 21 In the event that 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." ATLANTIC COMPANY 831 notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of the receipt of this Order, what steps the Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discharged and refused or failed to reinstate Clayton Williams, Edward Jones, William Gar- rison, Tom Garrison, Willie Jones, James Cargill, John Aiken, Odell Harris, Henry Harris, Felton Willis, Sam Davis, Primo Strong, Jacob Averett, Ben Patillo, James Bennett, Heywood Billingsley, Clayton Henry, Frank Culpepper, Jake Bettis, and Virgil Culpepper. APPENDIX A B. F. Allen Charles Bailey Ed Belser Edward Bruce Fred Bradley A. B. Frazier Lewis Henry John Jackson Paul Jones Woody May John Robinson Willie Robinson Joe Ward William Warren APPENDIX B 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, we hereby notify our employees that : 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 RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF AMERICA, C. I. O., Or UNITED PACKINGHOUSE WORKERS OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. B. F. Allen Charles Bailey Ed Belser Edward Bruce Fred Bradley A. B. Frazier Lewis Henry John Jackson Paul Jones Woody May John Robinson Willie Robinson Joe Ward William Warren All our employees are free to become or remain members of the above-named union or any other labor organization. We will not dis- criminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization. Employer. By ------------------------------ (Representative ) (Title) Dated --------------------- NoTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. 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 Messrs. Sidney Rettinan, William M. Pate, and Charles G. Kessler, for the Board. Swift, Pease, Davidson, Swanson and Chapman, by Mr. W. Edward Swenson, of Columbus, Ga.; Battle, Smith and Elliott, by .31r. A. Edward Smith, of Colum- bus, Ga.; and Ball and Ball, by Mr. Fred Ball, of Montgomery, Ala., for the re- spondent. Mr. H. W. Denton, of Atlanta, Ga., for the Department Store Employees; and Mr. John D. Hyden, of Birmingham, Ala., for the Packinghouse Workers. STATEMENT OF THE CASE Upon an amended charge' tiled on April 22, 1946, by United Retail, Wholesale, and Department Store Employees of America, 0 I. 0., and upon an amended charge' dated May 10, 1946, by United Packinghouse Workers of America, C. I. 0., both of which organizations are herein referred to jointly and severally as the Union, the National Labor Relations Board, herein called the Board, by its Re- 'Case No. 10-C-1772. 2 Case No. 1o-C-1955 (formerly 15-C-1081). ATLANTIC COMPANY 833 gional Directors for the Tenth and Fifteenth regions, respectively , issued com- plaints dated April 22, and May 10, 1946, against Atlantic 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 8 (1) and (3 ) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. In accordance with Article II, Section 36 (c) of the Board's Rules and Regula- tions, as amended, the Board, on May 23, 1946 , ordered Case No. 15-C-1081 transferred from the Fifteenth to the Tenth Region and continued as Case No. 10-C-1955, and consolidated for the purposes of hearing with Case No. 10-C-1772. The previously issued complaints were withdrawn. On May 31, 1946, the Union filed a second amended charge , and on the same date the Board issued a con- solidated complaint against the respondent. With respect to the unfair labor practices the consolidated complaint, as amended at the hearing, alleged in substance : ( 1) that the respondent, through supervisory employees and others , at both its Columbus , Georgia, and Mont- gomery, Alabama , plants, vilified and disparaged the Union , threatened and warned its employees to refrain from joining or assisting it; at its Montgomery plant attempted to keep its employees and meetings of the Union under surveil- lance and advised and urged other employers in the community not to hire dis- charged employees of the respondent because of their union affiliation ; and (3) at its Columbus plant discharged 15,3 and at its Montgomery plant, 19' named employees , and thereafter refused to reinstate any of them, because of their membership in and activity on behalf of the Union. Copies of the complaint , together with notice of hearing thereon, were duly served upon the respondent and the Union. On June 10, 1946, the respondent filed an answer admitting certain allegations of the complaint but denying that it had enaged in any unfair labor practices . On June 11 , the respondent made a motion for a bill of particulars to make the complaint more definite and certain. Pursuant to notice, a hearing was held from June 17 to July 1, 1946, at Columbus, Georgia , and at Montgomery , Alabama, before Horace A. Ruckel, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by two organizers. Counsel for the Board and for the respondent participated in the hearing. Full opportunity to be heard, to examine and cross -examine witnesses, and to introduce evidence bearing upon the issues , was afforded all parties. At the opening of the hearing counsel for the respondent moved to sever the con- solidated cases. The Trial Examiner denied this motion . Counsel for the respondent, in effect, withdrew his motion for a bill of particulars , stating that counsel for the Board had furnished him with the information which he had sought. The undersigned granted without objection a motion by counsel for 3 These employees, and the dates of their alleged discharges were : August 4, 1945, Paul Jones ; August 17, Felton Willis ; August 24, Sam Davis ; September 8, B. F. Allen and A. B. Frazier ; September 12, Primo Strong; September 14, Jacob Averett and Ben 1 atillo ; September 21, James Bennett ; September 22, Lewis Henry ; October 5, Haywood Billingsley, Clayton Henry, Frank Culpepper, and Jake Bettis ; and January 25, 1946, Virgil Culpepper. * Those alleged to have been discharged at the Montgomery plant were : September 10, 1945, Charles Bailey ; September 11, Ed Belser, Woody May, Joe Ward, and Willie Robin- son ; September 12, John Robinson, Edward Jones, Clayton Williams, William Garrison, John Akins, Thomas Garrison, James Cargill and Willie Jones ; September 13, Odell Harris, William Warren, Fred Bradley, and Henry Harris ; and, September 21, Edward Bruce. At the hearing, John Jackson was added to the complaint by amendment. 834 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD the Board to include in the complaint the names of certain additional super- visory employees of the respondent alleged to have engaged in activities in opposition to the Union. At the conclusion of the hearing the undersigned granted, without objection, a motion by counsel for the Board to conform the pleadings to the proof in formal matters. Counsel for the respondent moved generally to dismiss the com- plaint. The undersigned reserved ruling on this motion, which is disposed of by the recommendations hereinafter made. The undersigned also reserved ruling on the admissibility of certain exhibits offered by the respondent.' They are hereby admitted. The parties were advised that they might argue orally, and might file briefs with the Trial Examiner by July 15. None of the parties argued orally. Sub- sequently, the time within which to file briefs was extended to August 5. On that date the respondent filed a brief. On August 26 the undersigned entered an order correcting the transcript of testimony in the respects agreed to by counsel for the Board and the respondent in letters to the undersigned under date of July 8 and 23, 1946, respectively. Copies of the order were duly furnished counsel. Upon the entire record in the case, and from his observations of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a Georgia corporation having its principal office at Atlanta, Georgia. It operates approximately 70 plants located in the States of Georgia, and Alabama and in various other States of the United States where it is engaged in the manufacture, sale, and distribution of ice, beer, and coal and the storage of fruits and other products. At all times material to this proceeding the respond- ent has maintained as an integral part of its over-all business enterprise an office and place of business at Columbus, Georgia, herein called the Columbus plant ; and an office and place of business at Montgomery, Alabama, herein called the Montgomery plant. In the course and conduct of its business operations during the calendar year 1945, at its Columbus plant, the respondent purchased coal valued at approxi- mately $70,000, all of which was shipped to the Columbus plant from points out- side the State of Georgia. During the same period the respondent's sales of ice at the Columbus plant were in excess of $300,000, of which approximately 16 per- cent was shipped outside the State of Georgia, and its sales of coal were in excess of $50,000, of which approximately 3 percent was shipped outside the State of Georgia. During the same period, the respondent's income for storage at the Columbus plant amounted to approximately $40,000. This was derived from storage of fruit and other products, approximately 20 percent of which was received from points outside the State of Georgia. During the same period the respondent in the course and conduct of its busi- ness at the Montgomery plant caused to be purchased, transferred, and delivered to its Montgomery plant, coal, ammonia, salt, and other materials valued in excess of $40,000, of which approximately 90 percent was transported to the Montgomery plant from States of the United States other than the State of Alabama. During the same period the respondent manufactured at its Montgomery plant ice valued in excess of $450,000, of which approximately 40 percent was transported to and 6 Respondent's Exhibits Nos. 5, 6, and 7. ATLANTIC COMPANY 835 through States of the United States other than the State of Alabama, in the icing and re-icing of refrigerated railroad cars carrying perishables to States of the United States other than the State of Alabama. During the same period, the respondent's income from storage amounted to approximately $35,000, which was derived from storing food and other products of which about 50 percent was re- ceived from points outside the State of Alabama. During the same period the respondent's income from the sale of coal was approximately $42,000, of which approximately 5 percent was transported from the State of Alabama to States of the United States other than the State of Alabama. 11. THE LABOR ORGANIZATIONS INVOLVED United Retail, Wholesale, and Department Store Employees of America, C. I. O. and United Packinghouse Workers of America, C. I. 0., are labor organizations admitting to membership employees of the respondent at its Columbus and Montgomery plants, respectively. III. THE UNFAIR LABOR PRACTICES The Montgomery Plant A. Interference, restraint, and coercion 1. The organization of the respondent's employees and the respondent's initial reaction Organization of the respondent's employees began during the latter part of August or the first part of September 1945, when employees Ed Bruce and Charles Bailey procured membership application cards from the Union's office in Mont- gomery, and obtained the signatures of a substantial number of the respondent's employees. The respondent's reaction was immediate On September 10, accord- ing to the testimony of John Jackson, an employee with approximately 25 years' service,° Clem McDaniels,' manager of the Montgomery plant, accosted him while he was at work and a conversation ensued to which Jackson testified credibly as follows : Q. What was your conversation with Mr. Mack? A. While, Mr. Mack called out as he came by me, he say, "John Jackson". And I say, "Yes, Sir." And I say, "I am here but I ain't much good. No good." And he just asked me, "Old John Jackson." "Yes, sir," I say, "but I ain't much good." Q That is what you said? A. Yes, Sir; what I said. And he said, "John, what about the Union." "What about it, I don't know?" And he said, "Who started it. Who at the head of it?" And I said, "I don't know." And he said, "John, if you will go and locate who is the head of it I will give you a ten dollar bill and a pint of whiskey." Mr. SwINSON. Mr. Mack said that? Q. (By Mr. REITMAN) What did you say to Mr. Mack? ' Jackson was discharged on September 12, along with a number of other employees, under circumstances hereinafter related. ' His name also appears in the record as Clem McDaniel. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I told him I would do the best I could. Q. Did you ever tell Mr Mack? A. I never did tell him because I never did get any more conversation with him. McDaniels denied the above testimony of Jackson but the undersigned found McDaniels throughout his testimony to be a shifty and evasive witness and does not credit his denial. About September 15 McDaniels called upon the Montgomery Chief of Police, Ralph King, and asked King to assign two detectives to work at the respondent's plant after their regular hours on the police force King assigned to McDaniels two operatives, Frizzel8 and Davis, and McDaniels put them on the respond- ent's pay roll for a week as watchmen. McDaniels testified that he told King that his request was made because of certain threats of violence which were in circulation at the plant. But King testified that he did not recall that McDaniels gave any reason, and the undersigned finds that he did not0 At the hearing, however, McDaniels testified that there were rumors that employees engaged in icing refrigerator cars would be shot from the top of the cars Although Mc- Daniels stated that this rumor was the subject of general conversation among the employees, most of those who testified stated that they had not heard it, while the testimony of those who declared that they had, was generally vague and unsatisfactory in nature 6 Frizzel's name occasionally appears in the record as Frizzell 0 King's further testimony as to the circumstances under which McDaniels requested the services of two detectives lends additional support to the conclusion that McDaniels did not inform King of the reasons for his request Trial Examiner RUCKEL. If I come in and tell you that threats on my life and prop- erty were occurring regularly or occasionally around midnight and you take it seriously, you will assign somebody to see that my life and property are protected although the individuals Frizzell and Davis wouldn't happen to he on duty 9 The WITNESS Seriously, I would send a couple of police with you Trial Examiner RUCIcEL If I wanted a couple of people to take orders from me on a private matter of investigation without telling you why, that is a private job and you expect them to be remunerated if it is after hours. The WITNESS. Yes, sir. Trial Examiner RUCKEL. Is that a fair statement of the difference between the two types of work? The WITNESS. Yes 10 The rumor originated with two employees, Henry Frazier and John Gadson Gadson described its origin as follows Q Did you hear about the threats that were made there one night last September? A I did. Q. Where were you when you first heard about them? A. When I first heard about it I was in the room when I heard about the threats. Q. You mean the receiving room? A In the receiving room. Q Was anybody in there with you? A The man what was in there with me, I knew them both was sitting out in the yard at the time that a blue car drove up on the side where parked the truck, see Q Is that on the south side of the plant 9 A On the south side of the building, and when they drove up there we still sat there while they still set there in the car, but I didn't pay them any mind, see, so many people passed around there Well, I gets up and when I get up to go inside and pick up, I says, "Let's get these dump trucks," and at that time the car drove up to buy some ice and I said, "Catch the car," and then walked on in, and he (Frazier) said, "All right," and I went in and picked up the box, and he came in afterwards, after he served that car, and he came on in, and he says, "John ," and I said , "What?" ATLANTIC COMPANY 2 The respondent's surveillance of its employees 837 Immediately upon his employment . Frizzel in conjunction with certain super- visory employees of the respondent, instituted a campaign of intimidation di- rected at those of the respondent's employees who had joined the Union, or whom it might be suspected were interested in doing so. Neither Frizzel nor Davis was called as a witness, and no showing was made that either of them was unavailable, so that the testimony as to Frizzel's activities, hereinafter sum- marized, remains uncontroverted. There is no evidence whatever that either he or Davis, after their employment by McDaniels, questioned Gadson, Frazier, or any other employee, concerning the incident of the blue car, or made any sort of investigation of the alleged threats to car icers On, the other hand the record is replete with testimony as to conversations held at various times of day and night between Frizzel and employees of the respondent, concerning the latters' union activities For example, Cleve Jenkins, still in the respondent's employ, testified credibly that on September 16, a few days after the employees named in the complaint were discharged under cir- cumstances hereinafter related, Frizzel called upon him at his home across the street from the plant, asked him if he was "involved with the Union," which he stated was endeavoring to organize the employees "against Mr. McDaniels," and inquired if Jenkins knew who in addition to himself had signed cards. Frizzel added that the only purpose of the Union was to collect money from the employees. On September 10, still according to Jenkins, Frizzel approached him while at work and asked him for information about the Union, and on September 24 and 30 again visited him at his home and made similar inquiries. Felton Underwood, still employed b4' the respondent, testified credibly that on one occasion Frizzel approached him while at work, stated that some of the employees were "playing a trick" on McDaniels, and warned Underwood not to have anything to do with the Union. William Warren testified credibly that after his discharge along with others named in the complaint, Frizzel visited his home one night and routed him out of bed. The two men sat on the porch while Frizzel displayed two guns which he was carrying, remarking of one of them : "It is a good gun. If we can't get it with that gun I will get it with this one" Frizzel then asked Warren if he belonged to the Union and when Warren replied that he had signed an appli- He says , "You see those men out there ?" and I says , "Yes" And he says, "Well, I hear them say something about shooting people off the car if they ice the car " Q He said what' A I says, "I hear they say something about shooting anybody icing the car." I says, "Sho nuffi" he says, "Yeah " Well, I says, "Have you told Mr Blake about it?" and he says , "No " I savs , "Well, let's go in there and tell him I don 't want to go back and icing no cars and get hurt , nothing of the kind." I went in the office, me and him both, and I asked Mr . Blake , and I says , "What is the matter?" He says , "What is the matter sho null, John?" and I says, "I don't know . Henry (Frazier) come tell me something about some men in the car and he says, "Did they tell you?" And I haven 't-ain't anybody tell nie. Henry come to me and told me about it, nobody told nie. Frazier testified substantially along the same line, except that in doing so he reversed the rules as described by Gadson In Frazier's version , Gadson was the one who stated that he had overheard a conversation between two men in a blue car, and reported it to Frazier W B Blake, night clerk at the respondent's No 1 plant, testified that Frazier and Gadson Caine to him one night in September and told him that someone in a blue car told him that anyone who iced cars "would be shot off the cars " The next morning Blake reported the incident to McDaniels. 809095-49-vol 79-54 :838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cation card, Frizzel said, in effect, that that was why he had been discharged. Frizzel then went on to state, still according to Warren, that he had "so many children not to be working" and offered to help him get his job back. A day or so later Frizzel took Warren to the plant and spoke to Sullivan, delivery superintendent, about Warren's returning to work. Frizzel's apparent inter- cession, however, was without result. Warren was not reemployed. Henry Frazier, still employed by the respondent, and previously identified in connection with the incident of the blue car, testified that Frizzel announced to him on the occasion related above concerning Warren, that he was going to talk with Warren because he was "a good Negro" who had been "misled by fooling with the Union." Cleve Williams testified credibly that one night during the same week that Frizzel called upon Warren and Jenkins, Frizzel came to Williams ' house, aroused Williams from bed, and engaged him in the following conversation : Q. What did he say? A. He said, "Did you join that Union?" I said, "I done exactly what the others done joined, signed the card." He said, "Well, don't you let nobody fool you up to joining that Union because Mack is a good fellow." I said, "Yes, I know it." I said, "Well, it is all over with now." Trial Examiner RUCKEL. Meaning, with the Union? The WITNESS. Yes, sir, I told Mr. Frizzel that it was all over with. Trial Examiner RUCKEL. What do you mean by that? The WITNESS. That no more to it, you know ; didn't hear no more singing about it, you know ; no more talk. 3. Anti-Union statements by supervisory employees The repondent did not rely solely upon the employment of Frizzel and Davis in its efforts to discourage membership in the Union . The record is replete with credible testimony relating to statements by supervisors concerning the union activity of the employees. Felton Underwood testified that Charles Henry ," vice president of the respond- ent, encountered him on one occasion and asked him how the employees felt about the Union, and that on another occasion, J. J. Russell, Underwood's foreman, asked him if he had joined the Union and, when Underwood replied that he had signed a card, suggested that he attempt to get it back. On the following day Underwood again was accosted by Russell who asked him where Cleve Williams was, stating, according to Underwood , that Williams was going to be discharged because it had been reported to McDaniels that he was "trying to keep the union going." Underwood gave it as his opinion that such was not the case, and Russell suggested that Underwood tell that to McDaniels. On the same day that Russell talked to Underwood about Williams, he ap- proached Williams himself, asked him if he had joined the Union, and told him that McDaniels had threatened to discharge him. When Williams denied that he was "shoring the union up," Russell suggested, as he had to Underwood, that he so inform McDaniels Accordingly, Underwood and Williams called on McDaniels 11 Further activities of Frizzel are hereinafter set forth in connection with the discharge of certain employees named in the complaints. 12 Felton did not identify Henry by name but only by physical appearance . Later, he saw the same person in McDaniels' office when Underwood and Williams went in to discuss Williams' status in the Union . McDaniels testified that the person with him on that occa- sion was Henry. . ATLANTIC COMPANY 839 in the latter's office where Henry was also present. Underwood repeated to Mc- Daniels what he had told Russell, that Williams was not active in the Union, and that he had tried to recover his application card. With respect to the re- spondent's knowledge of the union membership of its employees McDaniels, ac- cording to both Underwood and Williams, stated that nothing occurred at the plant that did not come to his knowledge sooner or later, and that he got reports two or three times a day from employees. Williams' testimony as to the con- -versation in McDaniels' office was, in part, as follows : Q. . . . and tell us what happened when you got into Mr. Mack's office. A. I walked in there and said, "Gentlemen of the Jury." Mr. Mack turned around and said, "Well, we are waiting to hear the case." I said, "Mr. Mack, I would like to know who told you that I am starting a Union up." He said, "Some of the boys over to No. 2. I hears most anything, hears it pretty regular." He said, "Nothing can't get by me." I said, "Well, if you present them before me, " I will be satisfied." I said, "I am going up and get them to testify and get rid of them tonight." 14 Q. Did you say anything else to Mr. Mack? A. Yes, oh, yes, I said, "I don't want to do anything against a Company that I am working for to cut my bread and meat off." A day or so after his conversation with McDaniels, Williams, at Russell's -suggestion, endeavored to recover his and other application cards from the ;Union. His testimony as to this incident was as follows : Q. Did Mr. Russell have anything to do with that? A. Well, he didn't want to see the boss mad, and I didn't either. Q. Did Mr. Russell tell you to do anything? A. No more than that. He just wanted to see him happy. Q. What did he tell you to do? A. He said, "Well, if I was you, I would go and get those things." Q. Get what things? A. Them cards. Trial Examiner RucKEL. Union cards? The WITNESS. Yes, sir. And give them to Mr. Mack. * * * * * * Q. You are not sure whether it was the day before you had the talk with- Mr. Mack? A. It was right along in that time. I disremember what day it (sic)- You see, all I wanted to do was to get things happy if I could. Q. I see. A. You know things is mighty miserable when you work on a job and some is going one way and some going another. Russell, while testifying, denied having the conversations with Underwood and Williams related above. The undersigned was not impressed by his denial and finds that he made in substance the statements attributed to him. McDaniels, while admitting that Underwood and Williams called on him in his office on the occasion which they described, testified that Williams in that conversation merely apologized for having joined the Union and declared that he was going "That is, Williams requested that he be faced with his accusers 14 The undersigned concludes and finds that Williams meant that he would obtain pos- session of his and other union application cards and dispose of them He uses approximately the same terminology and defines his meaning in a conversation hereinafter related. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get out of it. McDaniels denied making any remark whatever to Williams or Underwood. The undersigned has previously found McDaniels to be an un- reliable witness, and does not credit his denial. The undersigned was favorably impressed with the demeanor of Williams while testifying and credits his testi- mony which is supported, in part, by that of Underwood. Henry was not called as a witness. The undersigned finds that by the activities of Frizzel, as well as by the activities and statements of its supervisory employees described above, the re- spondent has interfered with, restrained, and coerced its employees in the exercise of the iights guaranteed in Section 7 of the Act 35 B The discharges; other interference, restraint, and coercion 1. The car icers Prior to the first of September 1945, the icing of refrigerator cars at the respondent's No. 1 and No. 2 plants at Montgomery had for some time been done in three 8-hour shifts, the day shift working from 7 a. in. to 3 p. in., the afternoon shift from 3 p. in. to 11 p. in., and the night shift from 11 p. in. to 7 a. in. All three shifts were under the supervision of William Penn, day fore- man, and Barnett, night foreman. Penn worked from 7 a. in. to 7 p. in., and Barnett from 7 p. in. to 7 a. in., thus splitting the afternoon shift. During the first week in September, according to the credible and undenied testimony of Penn, McDaniels called him to his office where he was introduced to Charles Henry, previously identified as vice president of the respondent. Henry called off the names of a number of employees from a list, and asked Penn if they worked for him When Penn had given the information, McDaniels asked him if he knew whether any of the employees on his shift had joined the Union. Penn replied that he did not know. McDaniels then asked Penn to inquire among his employees and Penn promised to do so. Subsequently, Penn asked at least three employees, Vish Mahone, Ed McCall, and Woody May, if they had joined the Union, and was told that, although application cards were being circulated, none had yet been signed. Penn did not press the matter any further, but subsequently reported the result of his inquiries to McDaniels who told him to "forget about it." A few days after this incident, George Gordy, the respondent's division man- ager; e at the request of McDaniels. transferred T. H. Mathias from the Columbus to the Montgomery plant, to take the place of Penn as icing foreman on the day shift. McDaniels informed Mathias, upon his arrival, that he had received several ]e Evidence was introduced to show that there is an agreement of long standing between the respondent and other employers in the ice business in Montgomery , not to hire each others' discharged or laid off employees without clearing with the employer for whom the employee last worked . The respondent admitted the existence of this agreement, and that in'the case of one or two employees named in the complaint it had intervened to prevent their hiring by other parties to the agreement The respondent contends that the purpose of the agreement is to prevent the drivers of one employer from building up a list of customers and then leaving and transferring patronage to another employer. The de- pressing effect of such an agreement upon wages is obvious . But whatever may be said of its economic effect , or of its legality under State or Federal law, there is no substantial evidence in the record in this case that the agreement was used as a blacklist of union members, as alleged in the complaint 'e As division manager , Gordy was responsible for both the Columbus and Montgomery plants As hereinafter related. Gordy assumed active management of the Columbus plant during the first part of September, relinquishing it about November 1. ATLANTIC COMPANY 841 complaints from railroads of delays in car icing on the night shift and according to both his testimony and that of Mathias, McDaniels instructed the latter to take whatever steps he felt were necessary to eliminate these complaints. Mathias discussed the situation with T. R. Mozingo, agent for the Fruit Growers Express Company, which handled the car refrigeration for several railroads " and Moz- ingo suggested that Mathias take up with McDaniels the possibility of combining the three 8-hour shifts into two 12-hour shifts. Mathias testified that the princi- pal objection to the 3-shift arrangement was that the employees assigned to the night shift could not be counted on to show up for work. On September 11, Mathias instituted a new schedule of two 12-hour shifts, one from 6 a. m. to 6 p. m., and the other from 6 p. in. to 6 a. m. Mathias announced this change to the employees on the afternoon of September 11, and told Woodyo May, Ed Belser, and Joe Ward that they were discharged because the shift change had resulted in a surplus of labor. Mathias testified that these men were the only ones he had definitely decided to dispense with. He admitted that he did not in- form them why they were being selected for discharge in preference to others, except that he told May that he was dissatisfied with hi$ work, without specifying in what respect. Later the same afternoon, Mathias told John Robinson that he was discharged. The circumstances surrounding these discharges and the separa- tion from the respondent's employ of other car icers are hereinafter related. Woody May. May first came to work for the respondent in May 1941. He was regularly employed until his discharge by Mathias on September 11, 1945. At one time, for an interval of 3 or 4 years, he had performed some supervisory duties, but for the last several years be iced cars at plant No. 2, the respondent's main plant, on the day shift. May joined the Union during the latter part of August or the first part of September. On September 11 May worked the new day shift, of 12 hours. At 6 o'clock that evening, after the completion of the shift, Mathias called May to his office where he gave him his final pay, telling him, according to May, only that he had orders to pay him off At the bearing, Mathias testified that his reason for selecting May for discharge was that on the day of his discharge lie instructed May and another employee, McCall, to go to plant No. 1 to help ice cars and that May re- plied : "I don't go to No. 1. I stays over here to look after this business." Mathias testified that he told May that he, Mathias, was in charge and would run things as he saw fit. It is not contended that May refused to go to plant No. 1, and in fact he did so May denied making any comment when directed to go to plant No. 1. Assuming, however, that he made that which Mathias attributed to him, the under- signed finds it to be trivial as constituting a reason for discharge, particularly under the circumstances existing here. This was the first day that May, as well as the other employees, had worked under Mathias, and it was the first occasion many of them had seen him. Conversely, the employees, as Mathias admitted, were strangers to him. It was highly improbable that he had knowledge of all the practices in connection with the icing of cars at the Montgomery plant, or of how the employees may have, by custom, come to distribute themselves between plants No. 1 and No. 2 The undersigned finds it unlikely that Mathias discharged May by reason of a statement which was not shown to have been anything but con- versational in tone and manner. The triviality of the assigned reason for, and the summary nature of, May's discharge, when contrasted with his 31 years' employ- "The railroads contracted with the Fruit Growers Express Company who, in turn, contracted with the respondent to furnish car icers 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, lead the undersigned to conclude that May's discharge was wholly unre-, lated to his conduct as an employee. Ed Belser. Belser first came to work for the respondent in March 1944. He joined the Union about a week before he was discharged on September 11, when Mathias told him, according to Belser, only that he had orders to let him go. Mathias, while testifying, denied that he stated that he had orders to let Belser go, although he admitted that he gave him no reason for his action aside from stating that the shifts were being changed. Moreover he advanced none at the hearing. The undersigned accepts the testimony of Belser in this respect as true. Joe Ward. Ward came to work for the respondent in August 1944, and worked as a car icer until discharged by Mathias on September 11, 1945. He joined the Union the preceding August. Ward, like May and Belser, worked the day of September 11 until the end of the shift at 6 p. m. At that time Mathias called him to his office and told him, according to Ward, that he had orders to.let him go Mathias denied this while testifying but admitted that he gave Ward no reason for selecting him for discharge. John Robinson. Robinson was first employed by the respondent in March 1943. At the time of his discharge on September 12, 1945, he was icing cars. He joined the Union in August 1945. About 4 o'clock on the afternoon of Sep- tember 12 Mathias directed Robinson to take a wheelbarrow and to go to Swift and Company for a load of salt. Robinson went for a wheelbarrow and an argument took place as to its possession, which Mathias testified to as follows : Q. When was the first time you knew anything about the incident of the wheelbarrow? A. One of the boys, I don't recall who, yelled out, "They are going to ice cars and he is taking the wheelbarrow." And I saw him coming down the platform and John Robinson had the wheelbarrow. Q. Tell what happened in regard to that-exactly what happened and what was said by John Robinson and by you and Mr. Mozingo, if anything, was said by either of them. A. I told John to give the wheelbarrow back and he did and I told him to wait until they got through with the cars and he did and went and got the wheelbarrow and went to Swifts [Italics supplied.] Q. That was one thing that did enter into your selection? A. That's right. That was one of the deciding factors and I laid him off: Q. Did you tell him why you laid him off? A. On that occasion I told John Robinson, "You knew better than to do, with that wheelbarrow what you did." During his further testimony Mathias phrased his reason for discharging Robin- son in the following language : On the morning of the 10th through the 11th I observed him and he was, backward ; didn't want to cooperate and whenever we would have cars placed there was always someone else who would have to slide the pipes and it went on along until on the afternoon of the 12th I told him to go to Swift and` Company and get the salt and after a cut of cars had been finished and he got to wrangling about the wheelbarrow and the boys said they needed it and', it was finally decided he could take it and finally I just decided to let him go_ ATLANTIC COMPANY 843. Robinson credibly testified, as did the other employees laid off, that Mathias- stated to him that he had orders to discharge Robinson. The undersigned finds Mathias' stated reasons for discharging Robinson unconvincing. The "incident" of the wheelbarrow does not reveal Robinson as having refused to obey orders, or to have been insolent, nor is it contended that either was the case. The- matter constituted nothing more than a petty problem for lower supervision, and for it to have played any part in a discharge would argue either a bankruptcy of' supervision or a motivation based upon factors other than Robinson's conduct as an employee. Willie Robinson. Willie Robinson, the father of John Robinson, worked from September 1942 until September 11, 1945. He joined the Union during the latter- part of August or the first part of September. When Mathias discharged him he had been working on the second shift, which ended at 11 p. in. Mathias told him- that there was a change in shifts and to report for work at 6 o'clock the following morning, September 12 Robinson, according to his own testimony which the undersigned credits, although it is denied by Mathias, told Mathias that the first bus in the morning, and the one he ordinarly caught for work, left his neighbor-- hood at 6 a. in., and that he could not report until a few minutes after 6 o'clock. He testified, without contradiction, and the undersigned finds, that during the- rush season the previous May and June, when he worked on the morning shift under the supervision of Penn, he customarily caught this bus and arrived at work at 6: 15 a. in., working 15 minutes later in the evening when Penn requested him to do so. On the morning of September 12 Robinson arrived 15 minutes late, and was told by Mathias that his place was filled and to report for work the following morning, September 13. September 12 was a pay day and that afternoon when Robinson called at the office to receive his pay-check he was met by Mathias- who told him that he was paying him in full because he was being let go. Robinson's separation notice reads : "Discharged for failure to come to work on time." Mathias testified that Robinson came to work late on the morning of September 11 as well as on the morning of September 12, and that on the first occasion he was from 15 to 30 minutes late. The undersigned does not credit Mathias' testimony that Robinson was late on the morning of September 11 and finds, as Robinson testified, that it was not until the morning of September 12 that Robinson went to work on the new schedule. Clayton Williams, Edward Jones, and William Garrison. These three em- ployees have worked the night shift since their first employment with the- respondent. They are small farmers who live in the country and they ordinarily come to work in a truck driven by Jones. By reason of their farming it has never been practicable for them to work for the respondent in the day time, a fact known to and accepted by the respondent prior to Mathias' assumption of duties. At the end of their shift on the morning of September 12, Barnett, night icing- foreman, at the direction of Mathias, told them to report at the plant at 6 o'clock that evening. Mathias testified that he did not intend that these men should go to work at that time, but merely wanted them to report to the plant so that he might give them their shift assignments. That evening Mathias informed them thatt thereafter they were to report on the new day shift, which, as has been related, was to begin at 6 a. in. Jones pleaded that it was impossible for him to work- the day shift and to farm at the same time. The record does not reveal what- Garrison said, if anything. Mathias told the three men that, if that was "how- they felt," they would have to accept, their discharge because "that is the way it is going to be." The men were given their time slips and went to plant No. 1_ where they received their pay in full and left the plant. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing, Mathias testified that he had decided to keep Williams, Jones, and Garrison, provided that they would work the day shift. He further testified that these employees did not tell him that they could not work the day shift and that he had no knowledge of this fact when he discharged them. The under- signed does not credit Mathias' testimony in this respect. Tom Garrison, Willie Jones, James Gargill, and John Aiken. These four em- ployees, only the first of whom testified, were employed on the shift from 3 p. m. to 11 p. in., prior to the arrival of Mathias. On September 12 they were assigned to the night shift. When the respondent was working three S-hour shifts, eight icers had been assigned to this shift. On the night of September 12 only these four employees were on duty after 10 p. in., although up to that time they received, assistance from several of the day shift employees whom Mathias had called to the plant for that purpose. For the remainder of the evening such icing as was done at plants No. 1 and No. 2 was done by these four men, who went from one plant to the other as refrigerator cars were spotted. After the day shift employees left at 10 p. in., Garrison and Aiken, who at that time were icing cars at plant No. 1, went to plant No. 2 to talk with Foreman Barnett. They protested to him that it was difficult for them to do the work of car icing without further assistance. Barnett replied that there was nothing he could do about it, and asked them if they wanted their time. Garrison and Aiken said that they did, and Barnett made out their pay vouchers. They then reported the result of their conversation with Barnett to Jones and Gargill, and all four men then left the plant. Henry Frazier testified, and the undersigned finds, that a day or two after the, above employees were discharged, Sullivan took him in his car to recover a truck and a conversation took place which Frazier testified to as follows : Mr. Sullivan, he said, "Henry, what about the Union"? I said, "What about the Union, sure 'nuff"? He said, "All you know, you see how the Union got the No 2 boys." I said "How is that?" He said, "Got them laid off and without a job, and see Union ain't nothing but for to keep a good man without a job and hungry." Conclusions as to the discharge of the car icers Mathias admitted while testifying that in selecting May, Belser, Ward, and John Robinson for discharge, he relied solely upon his observation of their work during the one or two days after his arrival in Montgomery and prior to his assumption of the foremanship, and that he consulted neither McDaniels, Barnett, nor any one else as to the work records of the three men. He further acknowledged that he did not refer to the respondent's employment records, and did not take into consideration the length of time any employee, as for example May, had worked for the respondent, nor his reputation as an efficient worker ; and this in spite of the fact that,. by his own admission, he knew few, if any, of the employees by name, and in general could not make any connection between names and faces. The undersigned for the moment reserves further comment upon the circum- stances attending the selection of individual car icers for discharge, and under- takes a consideration of the motivation underlying the respondent's decision to combine its three shifts of car icers into two. The Board contends that this decision was discriminatorily made in order to defeat the organization of the respondent's employees. The respondent urges that it was rendered necessary ATLANTIC COMPANY 845 by reason of the uncertainty of the employees on the night shift reporting for work. Mozingo testified that sometime during the early spring of 1945 he sug- gested to McDamels that complaints of slow car icing might be fewer if this change were made, and that McDaniels stated that he would make it as soon as the rush season was over. The peak of the rush season, according to Mozingo, is ordinarily reached about June 15, although the respondent handles quite a few perishables as late as July 15. It was fully two months after the end of the rush season, however, before the change in shifts was made. It has been found above that the formation of the Union intervened during the latter part of August. Moreover, Mozingo's testimony is contradictory with respect to the reliability of employees on the night shift. Apparently it was the additional temporary employees which the respondent hired at the beginning of the busy season in April who were unreliable, and not the permanent employees among whom were included May, Belser, Ward, and John Robinson. Furthermore, Mozingo thought that inadequate supervision might have been responsible for delays in car icing. On these points Mozingo, on cross examination, testified : Q. I think you testified on direct examination that sometime in April is when you noticed the delay in cars, that was when you made your com- plaints to Mr. McDaniel is that correct? A. That is correct, yes. Q. And isn't it true that is the beginning of the busy season? A. That is true, about April 15. Q And weren't your complaints referred to the new or extra help that they took on to help out in the rush season's A. Not necessarily. Most of the complaints involved these other plants where we were located. At Plant 2 we had sufficient help and it was pretty good over there. [Italics supplied.] Q. Where did the foreman stay? Did he stay at Plant 1? A. Plant 2. Q Where ever you had a foreman you had good operations, and where you did not have a foreman that is where your operations were slow? A The foreman goes to the other Plants, too, at times. Mozingo further testified that there were enough men assigned to the night shift to do the work provided that they all showed up, but that "at times" they did not show up. He was unable to recall the name of any employee on the night shift who was irregular in reporting for work however, nor does the record reveal any. Neither May, Belser, or Ward who were the ones first selected by Mathias for discharge, worked on the night shift. The respondent cites two complaints from railroads respecting car icing which were communicated to the Fruit Growers Express Company. The first, dated August 29, 1945, from the Louisville and Nashville Railroad was as follows : Ice House people unusual long time icing connection cars from South, this a in delaying delivery to L. & N. F. G. E. Main claim short of labor. The other, dated September 1, was from the yard master of the Western Railroad : Five cars placed at icing platform 6: 00 p. in. were finished icing at 8:15 p. in. I had 9 re-iced cars handing out that I could not get in until they finished at 8: 15. Meat from Swift missed first 210. '846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These complaints were referred to Mozingo by King, general agent of the Fruit Growers Express Company, in a letter dated September 8. On September 11 Mozingo wrote King as follows : ' Due to the heavy business of both Plant 2 and Plant 3 on afternoon of August 31, it was impossible to get labor over to Plant 1 before 7 p. in. to begin icing. When iced cars are placed at all these places at the same time, it is impossible to have them at each place when the cars are placed, and the railroad that places the cars first are taken care of first. We have eight laborers on each shift, which is ample except in a situation of this kind. On this night we iced 14 cars at Plant No. 1, from 7: 00 p. in until 10: 50 p. in., which an my opinion is very good time at this location. [Italics supplied.] It would appear that the above complaints were not other than routine com- plaints of slow car icing. Moreover, it will be noted that each of the two com- plaints, which Mozingo in effect admitted were without justification, concerned icing on the day shift, and had nothing to do.with the night shift, the alleged unreliability of whose members in reporting for work the respondent urges as the reason for combining the three 8-hour shifts into two 12-hour shifts. If any doubt remained that the reasons advanced by the respondent for com- bining the shifts were not the true reasons, it would be dispelled by Sullivan's statement to Frazier, made a day or so following the discharges of the car icers, that the Union "got the No. 2 boys." The undersigned concludes and finds that the institution of the 12-hour shift under the circumstances related above, was brought about by the respondent in an effort to defeat the self-organization of its employees. Moreover, the undersigned believes and finds that, the change in shifts having been discriminatorily decided upon, the respondent proceeded to select for dis- charge those employees whom it believed to be most active in the Union. The extent of the activity of every employee, and, in a few cases their union mem- bership, were not, so far as the record reveals, known with complete certainty to the respondent. The widespread activities of Frizzel among the employees, however, and McDaniels' statements, for example, to Cleve Williams that he heard everything "pretty regular," that nothing could "get by" him, and tide respondent's persistent efforts to ascertain the identity of the Union members, coupled with the trivial reasons given for many of the discharges, warrants the conclusion that the individuals selected for discharge as the result of the change in shifts were selected because they were believed to be members of, or active on behalf of, the Union. The undersigned finds that by discharging the above-gamed employees because of their union membership and activity, and by the anti-Union statements de- .scribed in this section of the Report, the respondent discouraged membership in the Union, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Other discharges John Jackson. Jackson had worked for the respondent approximately 25 -years up to September 12, 1945, when he was discharged. During the latter part of his employment he drove an ice wagon. He joined the Union the latter -part of August or the first part of September. McDaniels' offer of a $10 bill ATLANTIC COMPANY 847 and a pint of whiskey if Jackson would divulge the names of the moving spirits in the Union , has previously been recited. This conversation took place on September 10. Green White, who was not discharged by the respondent , testified that during the day of September 12 Sullivan asked him if he belonged to the Union. White said that he did not , whereupon Sullivan declared that he was going to have a "show-down" that evening. Sullivan denied White's testimony , but the under- signed does not credit the denial. On the evening of September 12, after he had returned to the plant from his delivery route, Sullivan , Jackson's foreman , told him that he was discharged and to go to the office and get his pay check. Jackson testified that neither Sullivan nor any one else gave him any reason for discharging him. Sullivan testified that on the day of Jackson's discharge Sharp, a clerk in the office , reported to him that a customer on Jackson 's route complained that she had been given short weight in ice. Sullivan further testified that there had been previous complaints against Jackson of the same nature Sullivan could not recall, however, the name of the customer whose complaint he con- tended occasioned Jackson's discharge on September 12, and his testimony was in other respects vague and uncertain . Sharp was not called as a witness. The vagueness of the charge against Jackson , and his summary discharge without warning after 25 years ' service with the respondent , lead the undersigned to conclude , and lie finds, that Jackson was discharged because of his activity on behalf of the Union and not for the reason advanced by the respondent. Odell Harris. Harris was employed by the respondent for approximately 14 years prior to his discharge on September 13, 1945, at which time he was working as an ice crusher in the ice manufacturing department. He joined the Union about August 30, 1945 A week later Scott , his foreman , approached him and asked him if he had joined the Union. When Harris admitted that he had done so, Scott stated that he "didn 't see where it would do any good." 18 On the morning of September 13, at the end of the night shift, Russell handed him his pay and without giving any reason, told him that he was discharged. Harris' separation notice, however , gives it as "Laid off reducing force." On September 15 Harris telephoned Sullivan and asked him to come to his house. Sullivan did so later the same day , and a conversation ensued during which Harris inquired as to the possibilities of getting a job in Sullivan's de- partment. Sullivan , according to Harris , told him that if he would go to the Union and get his application card and give it to Sullivan, McDaniels would probably rehire him ; but that if he did not, then there was nothing that could be done about it. Sullivan denied Harris' testimony in this respect, and testified instead that when Harris asked him for a job he told him that it was against the policy of the company to hire a man in one department who had been discharged from another. Harris , according to Sullivan , gave the latter a glimpse of the former 's union card which he said he had recovered from the Union , although he held the card in his hand in such a way that Sullivan could not read it except to see that Harris' name was on it. The undersigned has heretofore in general discredited the testimony of Sulli- van. In this instance, however, the undersigned was also unfavorably im- pressed with the demeanor of Harris while testifying , and believes and finds that S'ullivan's testimony that Harris showed him his union membership card, or •a 11 This was Harris' testimony. Scott was not called as a witness. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facsimile of it, is true," and that Harris' testimony that Sullivan volunteered the suggestion that Harris obtain his card from the Union, is untrue. Russell testified that the last night Harris worked he had not shown up by 10 p. in., his regular starting time, and that he, Russell, went to Harris' home and found him in bed. Russell, according to his testimony, waited until Harris was dressed and went with him to the plant, arriving about 11 o'clock At the end of the shift he told Harris he was discharged. Harris had another job at which he was employed during the day time, and the record seems clear that he was frequently late in reporting to work on the respondent's night shift because of his need for sleep. William Warren. Warren came to work for the respondent in 1941, and at the time of his discharge on September 12, 1945, was employed as an ice crusher on the day shift under the foremanship of Sullivan He joined the Union during the latter part of August or the first part of September Frizzel's visit to his home after his discharge and his statement that the discharge was due to his union membership, have already been related, as has Frizzel's statement to Henry Frazier that Warren had been "misled by fooling with the Union " Warren testified that on September 12, 15 minutes before quitting time, he and his helper, Tommie, left their work to go to the office to receive their pay. This, according to Warren, was customary because the paymaster left at 6 o'clock Warren testified that when he left his work the bins were full of crushed ice and no trucks were waiting to be loaded When he arrived at the office, Sullivan accosted Warren, reprimanded him for leaving his work ahead of time, saying that he should have waited until Sullivan brought his pay envelope to him, and discharged him. Sullivan denied having any such conversation with Warren, and testified to an entirely different set of circumstances. According to both Sullivan and Mc- Daniels, Warren was discharged by McDaniels about 4 o'clock in the afternoon when he found Warren sitting on one end of the loading platform eating water- melon, when he should have been in the crushing room where, according to McDaniels, several trucks were waiting to be loaded with ice The undersigned accepts the account of Sullivan and McDaniels as substantially in accord with the facts. Ace ding to McDaniels' own account, however, not only was Warren not present in the crushing room when he should have been, but neither was any one else. Warren's helper, however, was not discharged, nor was any other crush- ing room employee The undersigned believes that the real reason for Warren's discharge was revealed by Frizzel, and that it was not prompted by his absence from his job on the day in question. Charles Bailey. Bailey had worked for they respondent for 2 or 3 years prior to his discharge on September 12, 1945, when he was working in the receiving room under J. J. Russell, pulling ice and loading trucks It has already been found that Bailey and Ed Bruce were the two employees who had originally obtained Union application cards from the Union's headquarters. They were also the only two solicitors for the Union to witness the signatures of applicants, because they were among the few employees who were literate As is hereinafter set forth in con- nection with the discharge of Bruce, Frizzel commented on one occasion that either Bruce or Bailey's name appeared on all the union cards. About 9: 30 o'clock on the morning of September 12, as Williams was changing his clothes preparatory to going to work, Russell told him lie was discharged. According to Bailey, Russell did not give any reason for his action, nor did Bailey 19 Harris testified that he had obtained a "copy" of his membership application card from the Union , without saying why he did so. ATLANTIC COMPANY 849 inquire. Russell testified, on the contrary, that that morning he discovered Bailey shooting craps with several of the respondent's truck drivers at a time when they were off, but Bailey was on duty, and told him to get back to work. About an hour later, according to Russell, he again found Bailey shooting craps with other drivers, and discharged him. Bailey denied that he was shooting craps on the day of his discharge, although he admitted having done so on previous occasions when not on duty. The undersigned credits Bailey's testimony in this respect. Edward Bruce Bruce cattle to work, for the respondent in April 1944, and at the time of his discharge was employed as a truck driver He joined the Union in August, and along with Bailey was responsible for signing up other employees The last day Bruce worked was September 14. That night he was arrested along with another employee, Green White, for driving an automobile while intoxicated, and put in jail. His fine and costs amounted to $208. Bruce requested his wife to ask Sullivan to get him released, and later the same day Sullivan himself came to the jail. A conversation took place during which, according to Bruce, Sullivan asked him if he belonged to the Union, saying that McDaniels and "the man from Atlanta" would be down to the jail to talk with him, and that if he told them everything he knew about the Union McDaniels would get him out. Bruce, still according to his own testimony, replied merely that he knew nothing about the Union other than that he had signed an application card. About 2 weeks later, while Bruce was working with a gang on the streets, McDaniels drove up near where Bruce was working and, according to Bruce, signalled the latter to come over. According to Bruce, McDaniels, as had Sul- livan, asked him it he belonged to the Union, and if he knew who the ring leaders were, promising Bruce that if he gave this information he would pay his fine. Bruce, however, repeated that all that he knew about the Union was that he had signed an application card. About October 1, Bruce, according to his uncontradicted testimony, which the undersigned credits, was interviewed by Frizzel in the city detective's office in the City Hall. Frizzel had some cards with him on which were recorded the names of some of the respondent's employees, and as he called them off he asked Bruce as to their Union membership, stating again that if Bruce would tell him all he knew about the Union and its leaders McDaniels would get him out of jail. Frizzel remarked that his or Bailey's name appeared on most of the Union cards.20 A day or so later Frizzel asked him if lie had seen McDaniels, repeating his statement that McDaniels would have him released in return for information about the Union. Not long after this last conversation, still according to Bruce, he saw Frizzel on the street in front of the City Hall in the company of McDaniels and Davis. Frizzel beckoned him over and the following conversation took place : Q. Did Mr. Frizell say anything to Mr. Mack at that time? A. Yes, sir. Q. What did Mr. Frizell say to Mr. Mack? A He said, "Here's your nigger. What's you going to do, Mr Mack?" and Mr. Davis said, ` He ain't worth a damn," and Mr. Mack said, "He's a good worker but he's trying to get me in trouble. He won't tell me who the ring leaders are for the Union." 2O It is not contended that the cards Frizzel had with him were union cards. There was some indication that they might have been social security records. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sullivan, while admitting having conversations with Bruce on the occasions testified to by.him, denied the substance of the statements attributed to him concerning the Union. He testified that on the first occasion described by Bruce he went to the jail because Bruce had sent woad through Green White that he wanted to see Sullivan. As to the second occasion, Sullivan testified that he encountered Bruce at the jail, but did not state what caused his presence there. According to Sullivan, on each of the two, or possibly three, occasions when he talked with Bru^•c at the jail, the conversation consisted merely of Bruce's asking, and of his refusing, to advance the amount of Bruce's fine. Sullivan denied that the Union was mentioned, and stated that the reason he would not get Bruce out of jail was that Bruce was not "worth" $208 to him. McDaniels admitted having a conversation with Bruce in front of the City Hall, but testified only that Bruce asked him to get him out of fail, a request which he refused. McDaniels was not asked if Frizzel was present and if he, made the statements attributed to him by Bruce. Davis was not called as a witness. Green White, arrested along with Bruce, was not held and Bruce appealed to him, as he had to his wife, to see Sullivan about getting him out of jail. White did so, and reported to Bruce that Sullivan would get him out of jail if Bruce could raise $50 toward his fine. On the stand, White's testimony in this respect was contradictory. He stated on direct examination that Sullivan volunteered to have Bruce released if he raised $50. On cross-examination, however, White stated that this was his own idea. Sullivan denied that he at any time, offered; to get Bruce out of jail on any condition. The undersigned does not find it necessary to resolve the contradictions in White's testimony. Bruce subsequently raised $50, and he and White went to the respondent's plant where they offered it to Sullivan, who refused it. Bruce was released from jail on January 13, 1946, after he had worked out his fine. A day or so later he went to the plant and asked McDaniels for his job. According to Bruce, McDaniels asked him why he had joined the Union, and if the respondent had not treated the employees well, and told Bruce that he could not use him. McDaniels testified only that he did not "recall" making the state- ments attributed to him by Bruce on this occasion. The undersigned finds that he made them in substance. Although in some respects Bruce was not a satisfactory witness, the under- signed credits most of his testimony and discredits the versions given by Sullivan and McDaniels. It is not contradicted that Frizzel, on two or three occasions, attempted to persuade Bruce to reveal the names of the leaders of the Union, making his release from jail contingent upon his doing so. Such activities by Frizzel were consistent. with numerous other acts of surveillance and anti-Union activity by Frizzel, previously related. Moreover, the activities attributed by Bruce to Sullivan were consistent with other activities of that individual, pre- viously recited, as well as with similar negotiations with another employee, Willie Green. Green was arrested on July 7, 1945, for reckless driving, and during the last week or so of his confinement worked on the street gang with Bruce. Green testified as follows concerning his bailing out by Sullivan and Frizzel, acting in concert: • Q Did you, have any conversation with Mr. Sullivan or Mr. Frizzel on the day you were released from jail? A. Yes, sir. ATLANTIC COMPANY 851. Q. Was pit Mr. Sullivan or Mr. Frizzell or both? A. Spoke to them both. Q. Where did you talk to them for the first time? A. In jail-in the jail house up in the lavoratory. Q. What was your conversation with Sullivan and Frizzel at that time? A. They asked me did I want to get out of jail and I said, "Yes, Sir." It was to work in the crushing works and would pay $42 50 a week and I say I will work for that and they say, "No, you don't. We had a right smart of boys we done fired about joining the union." And didn't want nothing about the union and I told them I didn't know nothing about the union because I was in jail Trial Examiner RucKEL. You said what for joining the Union? Mr. REITMAN. Right smart, isn't that what he said? The WITNESS. He said-told me-, "I am paying $42 50 and we will get you out We don't want you joining the union." And I say, "Why, I don't know nothing about it." And he say, "We done fired a right smart of boys there just for joining the union." And I told him I didn't know nothing about the union. Upon Green's release from jail on a Saturday night, Sullivan and Frizzel drove him to the plant. On the way, Frizzel, according to Green, repeated his statement that the respondent had discharged a number of employees for joining the Union, and again warned Green not to do so, and Sullivan, upon their arrival at the plant, repeated the warning. On the following Monday, McDaniels, ac- cording to Green, passed where he was working and told him : "Don't you join, the Union," and Green replied that he would not. Sullivan denied making any statements concerning the Union or Green's membership in it, as testified to by Green, and further denied that Frizzel made the statements which Green attributed to him. Sullivan admitted that he went to the jail in the company of Frizzel to bail out Green, but testified that he did so because the police authorities, whom he acknowledged to be good friends, recommended Green as a good worker. He admitted that he had no personal knowledge of Green's ability, and that he did not consult anyone at the plant as to Green's efficiency or refer to the employment records. Green would seem to be a disinterested witness, and the undersigned accepts his testimony as true in substance, and does not credit the denials of Sullivan and McDaniels. He concludes and finds that Sullivan, in conjunction with Frizzel, attempted to persuade Bruce to reveal the names of the Union's leaders, and to sever his own connection with the Union, and that only when the attempt failed did Sullivan decide that he would not intervene in Bruce's behalf. In Green's case, the undersigned concludes that Frizzel and Sullivan met with a more favorable response and that for that reason the respondent paid his fine and reemployed him. Fred Bradley. Bradley had been employed by the respondent about 9 years prior to his discharge on October 5, 1945. On the latter date he was driving a truck, work which he had done for the last 3 years. On the night after the discharge of John Jackson, Frizzel, according to Bradley's testimony, approached him while at work and engaged him in a conversation which Bradley testified to as follows : Q. (By Mr. REITMAN). What was your conversation with Mr. Frizzel? A. Well, he just walked up down there when I was washing the wagons. He walked up and spoke, and I spoke to him. He said, "You don't want the. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job." I said, "Yes, I do like it. I try to be honest and work and sell as much ice as I can " He said, "You don't act like it," he said, "You joined the Union against your own job." He said, "When you get through , Mr. Sullivan wants to talk to you. Go tip and see Mr. Sullivan before you go home." A little later, Sullivan called Bradley to McDaniels ' office where Sullivan asked him if he had joined the Union . and, when Bradley said that 'he had, told him that he and the other employees were going to get themselves in a "wreck" by reason of their union activities, and that the Union could not make the respondent pay higher wages than it was already paying. On the night of October 5. after Bradley had returned from his route and had gone home, Sullivan, according to Bradley 's testunony , came to his house and demanded possession of his ice tongs, accusing him of having been drunk on duty. Bradley accompanied Sullivan to the plant, where Sullivan, having obtained the tongs, discharged him. According to Sullivan, his visit to Bradley's home occurred on a previous occasion several weeks earlier, and at that time Sullivan , although reprimanding him, did not discharge him. Sullivan's version is to the effect that sometime during the day of October 5 Sharp, a clerk in the office, told him that a customer had called up and complained that Bradley was drinking on his route, and that when Bradley returned to the plant that evening Sulli- van discharged him. Sullivan was unable to recall the name of the customer and Sharp was not called as a witness Sullivan testified that he had had several complaints about Bradley 's di ink- ing and about his being impolite to customers over a period of time. The most important concerned a controversy over the quality of a watermelon which Brad- ley had purchased from a customer on his route. There was considerable testi- mony as to the language Bradley had used on this occasion . Sullivan was vague, however, as to the date of the incident, and one of the witnesses for the re- spondent, a neighbor of the watermelon vendor, placed it in the previous July or August. It is not even certain that it followed , in point of time, the occasion on which Sullivan was on the point of discharging Bradley, only to reprimand him instead , or whether the two occasions were not actually one and the same. In any event, Bradley continued to serve the same route for some time there- after. Accepting Sullivan 's version of the sequence of events immediately preceding Bradley's discharge as more correct than the latter's version, the undersigned is still not persuaded that Sullivan discharged him because of a complaint against him on the afternoon of his discharge. He believes that there was no such complaint that afternoon. Henry Harris. Harris was a wagon driver at the time of his discharge on September 12, by Sullivan . He had never signed a union card, although fre- quently asked to do so, or exhibited any other interest in the Union. So far as the record reveals, none of the respondent's supervisory employees ever spoke to him about the Union or its activities . Sullivan testified • that Harris was drinking on his route on the day of his discharge , and that, because of this and previous complaints of shortages , he decided to let him go There is no substantial evidence to support the theory that the respondent believed , though erroneously, that Harris was interested in the Union , and discharged him in - that- belief. ATLANTIC COMPANY 853 Conclusions as to the discharges On the basis of the facts set forth above, including the statements of Frizzel and others acting in behalf of the respondent, that the employee in question would be or had been discharged because of his union activities, and because of the trivial reasons advanced in connection with the discharge of others, the undersigned con- ,cludes and finds that all the above-named employees with the exceptions of Odell Harris ,and Henry Harris, were discharged because of their union membership and activities, and not for reasons arising from their work or their conduct as employees. The undersigned finds that by discharging the said employees because of their membership in and activity on behalf of the Union, and by making the anti-Union statements related above in describing the discharges, the respondent discouraged membership in the Union, and interfered with, restrained, and coerced its employ- ees in the exercise of the rights guaranteed in Section 7 of the Act. The Columbus plant A. Interference, restraint, and coercion I Union organization began at the respondent's Columbus plant during the early summer of 1945, although there is no clear evidence in the record that it came to the attention of any of the respondent's supervisory officials prior to the filing of the Union's petition for investigation and certification of a bargaining representa- tive.'' on August Du ing that mouth .1 G Goodman, hoad engineet, called at the homes of four or live employees to obtain an extra hand, and found them all at a union meeting According to his own admission, lie told a number of them at the plant on the following day : "I found out where all you boys-where you were at. You were all down to the union hall." The respondent's reaction to the organization of the emlloyees at its Columbus plant differed only in degree, if at all, from its reaction to similar attempts of its employees at its Montgomery plant. Various witnesses called by the Board testi- fied credibly that when they asked Goodman for a small loan, hitherto customarily though not invariably granted, Goodman told them, in substance, that the re- spondentwas not going to lehd money with which to support the Union Heywood Billingsley testified that Goodman told him to go to the Union if he needed money, that the respondent was not lending it any more to union members. and com- plained : "You poor white folks and niggers sneak around and join the Union and none of you let me know anything about it." Although Goodman denied stating to any employee that the respondent would not lend money to union members, and denied the testimony of numerous wit- nesses that he inquired as to their union membership, the undersigned found his denials unconvincing Although it does not appear that, in fact, any applicant was refused a loan, the record is clear, and the undersigned finds, that requests for loans were frequently met by statements similar to those made to Billingsley. The credible testimony of Sam Davis is that during August shortly before his discharge, he was accosted at the plant by Goodman who asked him to "tell the truth" about his union membership. Davis admitted that he had joined the Union and named several other employees who had done so, whereupon Goodman replied, "You ain't violating no law but I don't like the Union We been together a long time (but) we might have 'to part." " Case No 10-R-1574. 809D95--49-vol 79-5s 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In September,. Leonard Cato and W;jO,,,Yarbrough, two non-supervisory em- 1 1, 1 ployees, circulated throughout the plant copies of the following declaration, characterized in the record as a "petition" : To whom it may concern: We, the undersigned employees of the Atlantic Company, desire to express our idea that we do not desire a union to represent us in the Columbus plant of the Company, and those of us who have previously joined a union or signed a union card have changed our minds and do not now want a union to represent us, and we want to withdraw from the union and authorize to take such steps as may be necessary to secure our withdrawal. Various witnesses called by the Board testified that Cato and Yarbrough asked them to sign this petition. In general, the undersigned credits the testimony of these witnesses. Goodman, although admitting that he had heard that Yarbrough and Cato were circulating same kind of a paper, professed not to have had information as to its nature. The undersigned found Goodman to be an evasive and unreliable witness. Moreover, his testimony in this respect is contradicted by that of Belcher, an employee who was assigned to the Columbus plant in September to take the place of B. F. Allen, a boiler-room operator. Belcher testified that he was asked by Allen to join the Union and that he promptly reported the fact to Goodman. The result as is hereinafter seen, was Allen's discharge. When Yarbrough asked Belcher to sign the anti-Union petition he did so, and told Goodman about it. The contrast between Goodman's reaction to Belcher's information that Allen had asked him to join the Union, and his apparent lack of interest when informed that Belcher's intervention had been solicited against the Union, is hereinafter commented upon in the discussion of Allen's discharge For the moment, it is sufficient to note that Goodman had knowledge of the circulation of the petition. The following described incident ]ends further support to the conclusion that the respondent knew of the petition and supported it. On the evening of September 20, three employees, Frank Culpepper, Eddie Riggins, and Willie Battle, while shooting craps at the plant, got in a fight and were subsequently arrested at their homes by A. G. Reese, chief of detectives. The following morning they weie questioned at' police headquarters by Reese, in the presence of Vice=President Henry, and Gordy Each of the three employees testified that Gordy, whether or not within the hearing of Reese is not clear, told him that he was being released from custody, but that he was to have nothing to do thereafter with the Union. Riggins and Battle testified that after they resumed work at the plant later that day, they were approached by Yarbrough and/or Cato who asked them to sign the petition, saying that the respondent had been "good" to them in getting them out of jail. Riggins and Battle signed. Riggins testified that he was later asked by Gordy if he had signed "a paper," and Riggins told him that he had done so at Yarbrough's request. Culpepper, who was approached by Cato at his home, refused to sign at the time, but the next day at the plant, when he asked Gordy for a loan of $10, Gordy told him to see Yarbrough Culpepper saw Yarbrough and signed the petition, reporting to Gordy that he had done so. Gordy then, accord- ing to Culpepper, reached in his pocket and handed him $10 Gordy denied making any of the statements attributed to him by Culpepper, Riggins, and Battle While it may be that Gordy did not make them in so many words, the undersigned finds that, whether by figure of speech or otherwise, he ATLANTIC COMPANY 855 intended to and did convey to the three'arrested employees the 'idea that in return for their release from jail they should refrain from union, activity.` The undersigned alto credit!; the'testim6ny of Biggins and Battle that they were referred to Yarbrough by Gordy. This incident constitutes further proof that the respondent knew of and aided the circulation of the petition. At about the same time, that Culpepper, Higgins, and Battle returned to the plant, and coincident with the circulation of the anti-union petition throughout the plant, Gordy addressed a meeting of employees and read to them the speech which is attached hereto and marked "Appendix A " Under the circumstances here obtaining the undersigned finds that the speech was not privileged under the doctrine enunciated in the American Tube Bending case." The record is replete with incidents of coercion by the respondent, and the speech could have been interpreted by the employees only as a further indication that the respondent was actively opposed to the Union. By the above-described statements and activities of Gordy and Goodman, and by encouraging and assisting the circulation of an anti-Union petition, and by their totality, the respondent has interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharges; other acts of interference, restraint. and coercion Paul Jones. Jones first came to work for the respondent in May, 1940 At the time of his discharge his duties were to repair and maintain the boiler room and other plant equipment He worked a 12-hour shift, 7 days a week, with the exception of Sunday. On Sunday laa woik waa more that of boiler room op- erator, and his hours were from noon until approximately 5 o'clock. On this day he relieved Goodman, who worked as operator in the morning. He was relieved by B. F. Allen Frazier. the regular night operator, relieved Allen. These four employees, Goodman, Jones, Allen, and Frazier, were the only white employees in the respondent's manufacturing department. The three last named consti- tuted, along wih Clayon Henry, the Union' s organizing committee, of which Jones was chairman. Jones, Allen, and Frazier were without doubt those whom Goodman described to Billingsley. in the conversation recited above, as the "poor white trash" who had joined up with the Negro employees to form the Union. The last day that Jones worked was Sunday, August 12, 1945. As usual, be relieved Goodman at noon. At 3 o'clock in the afternoon he received a telephone call advising him that it would be necessary on Monday morning to return his brother to a mental hospital in a neighboring town, for further observation and treatment. When Jones was relieved by Allen at 5 o'clock, be told Allen that he would have to be absent from the plant on the following day, described the nature of his business, and requested that Allen convey the information to Goodman when Goodman, as was his custom, visited the plant that evening. Allen testified that he delivered Jones' message to Goodman that evening Good- man denied that Allen informed him before Monday morning. The undersigned "The undersigned does not find the evidence sufficient to support the Board's contention that Reese collaborated in anti-union activities with Gordy, as did Frizzel and Davis at the Montgomery plant with Sullivan and MeDaniels. The undersigned does not find any sub- stantial, credible evidence that Reese made any anti-union statements or shared in those made by Gordy. "N L. R B v. American. Tube Bending Co, 134 F (2d) 993 (C. C A. 2) setting aside 44 N L R. B. 121, 320 U S 768, cert denied 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has previously found Goodman to be an unreliable witness. and he accepts Allen's testimony in this respect as in accord with the fact When Jones arrived for work on Tuesday Goodman sent him to the office of L. H Costa,2' plant manager, who told him that he was being laid oft because he had been absent on Monday without Goodman's permission. Jones protested that he had asked Allen to inform Good- man on Sunday night that he could not be at work Monday, and that he believed Allen had done so Goodman, according to Jones, was silent about not having received word from Allen until Monday morning, and Costa did not question Goodman on the point. The undersigned finds it unusual that Goodman did not, as he admitted, ask Jones why he had been absent on Monday, or give him a chance to explain his absence, before sending him to Costa. Goodman, Allen and Jones, all of whom worked on the day shift on week days, were, as has been observed, the only white employees in the respondent's manufacturing department. They were on friendly terms. Goodman and Jones, at least, customarily visited together for about 30 minutes during the noon hour after they had finished lunch. Moreover, this was, so far as the record reveals, the first complaint of any kind against Jones. The fact that Jones was given no prior warning, or asked by Goodman to explain his absence, and that Allen was not called to Costa's office to verify whether he had spoken to Goodman Sunday night, indicates to the undersigned that the respond- ent availed itself of a pretext in discharging .Jones, and, that the real reason for his discharge was his activity on behalf of the Union B. F. Allen and A B. Frazier. Gordy assumed the duties of plant manager about September 1, replacing Costa A few days later, T W. Belcher, who the year previously had trained Allen in his duties as boiler room operator, was trans- ferred back to the Columbus plant to take Allen's place as day shift operator. Allen was transferred to work in the garage, at the same rate of pay, to fill a vacancy. The first few days of Belcher's return to the Columbus plant were spent, according to his own testimony, in helping Allen operate. During this period he was asked by both Allen and Frazier, the first named of whom had taken over Jones' duties as chairman of the organizing committee, to join the Union. Ac- cording to Belcher's testimony, which is not specifically denied by Allen or Frazier, the latter of whom was not called as a witness, these conversations oc- curred while Belcher, at least, was actually performing his duties. Belcher im- mediately reported his solicitation by Allen and Frazier to Goodman and informed Goodman that he had been told that, in effect, he would have to join the Union if he expected to continue to work for the respondent. About the same time, as has been previously related, Yarbrough approached Belcher while at work and en- gaged him in conversation concerning the anti-union petition which he was cir- culating in the plant, and to which, as has been found, he had already obtained the names of numerous employees. Belcher signed the petition and promptly reported this anti-union solicitation by Yarbrough, to Goodman. The respondent took no steps against Yarbrough or Cato, who continued to be employed by the respondent and to circulate the petition. On September 8, Gordy called Allen to his office, told him that he had "definite evidence" that he had been soliciting membership in the Union during working hours, and discharged him. Frazier was discharged the same day, allegedly for the same reason. Allen denied to Gordy that he had solicited members on com- 24 Costa was relieved as plant manager about September 1 by Gordy, the respondent's division manager . Gordy had formerly been plant manager at Columbus Costa left the respondent's employ for reasons not revealed in the record , but apparently voluntarily. ATLANTIC COMPANY 857 pany time. Gordy did not tell Allen the source of his information, or whose membership he was supposed to have solicited. The respondent defends its discharge of Allen and Frazier on the ground that they violated a rule against solicitation. There was no formal rule of that nature posted in the plant. and the record is vague as to the existence of any. It seems to have been generally understood that employees were to pay attention to their work and were not to discuss matters which interfered with it. Belcher testified as follows as to his understanding of the "rule": Trial Examiner Ruc$EL. What is the rule as you understand it? The WITNESS. Not to go back to the manufacturing department in where all that machinery is; it is too dangerous, your Honor. Trial Examiner RUCKEL. Was that all of the rule as you understand it? The WITNESS. That's the rule as I understand it. Trial Examiner RUCKEL Talking about things, the weather, unions or any- thing, what do you understand the rule is? The WITNESS. If I understand the rule right, there isn't anybody got any business in the plant there for anything talking about anything unless he is employed back there. Trial Examiner RIICKEL. -I am talking about those working there. The WITNESS. They can talk about anything they want to as far as I know. Trial Examiner RUCKEL. So long as they don't neglect their work? The WITNESS. So long as they don't neglect their duty, they can talk about anything they want to. Assuming that the practice of the respondent's employees as described by Belcher amounted to a rule, the undersigned finds that it was discriminatorily enforced as to both Allen and Frazier. inasmuch as it was not invoked against either Yarbrough or Cato, whose activities in circulating the anti-Union petition: were widespread, and were brought to the attention of both Goodman and Gordy, and to the former by Belcher himself. Goodman admitted that the circulation, "if it occurred," constituted a violation of the "rule." Moreover employees were permitted to talk on any subject so long as it did not interfere with their work. There is no substantial, credible evidence that there was any interference with work or neglect of duty whdh Allen and Frazier solicited Belcher. The undersigned finds that the respondent discharged Allen and Frazier be- cause of their membership in and legitimate activity on behalf of the Union. Felton Willis. Willis had been employed by the respondent for about 7 years as a truck driver, delivering ice. He joined the Union in the fall of 1945, and his membership became known to the respondent as did that of all the employees named in the complaint. On August 17, 1945, according to Willis' testimony, he requested Costa for, and Costa refused, a loan of $7. The next day, before starting out on his route, Willis renewed his request, and, when Co,ta again refused him, Willis stated that he would have to go somewhere else to borrow the money because he had to have it that day. -He Stated that Ye ,would return to workathe following, morning. Willis left, obtained the money, but when he returned to work the next day he was told that he was discharged. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Costa's version is that on the morning, of,A,ugust 17 Felton refused to load his truck without a helper, and when reminded that he had frequently done this by himself, said , in effect, that he would not do so on this occasion . Costa then told him that he was laid off and Willis left the plant , returning the next morn- ing to be again told that he was no longer in respondent 's employ. Whichever of these versions is accepted as true, the undersigned does not find therein any substantial evidence to indicate that Willis was discharged by reason of his union membership or activity. Sam Davis. Davis was a truck driver . Goodman maintained for his personal use a truck which the employees were never permitted to use without first ob- taining permission from Goodman. Generally, permission was granted only to deliver ice to the homes of employees . On the evening of August 23, at the end of his shift, according to Davis' testimony , John Howard , an employee, asked Davis to deliver 25 pounds of ice to his home giving the money for this purpose to Joe Rivers, another employee . Rivers, according to Davis, put the ice in the truck and Davis and Rivers left the yard . Goodman observed them leave from his office window. The testimony of both Howard and Rivers contradicts that of Davis, the former testifying that it was on a previous occasion that he re- quested Davis to deliver ice at his home, and Rivers testifying that on the occa- sion in question the truck had nothing in it but himself and Davis, and that it did not stop at Howard 's home. The undersigned accepts the version given by Howard and Rivers as the correct one. The truck ended up at Davis' home, and it is not contraverted that Rivers, at Davis' request, drove the truck back to the plant that night . When Davis re- turned to the plant the next morning he was discharged by Goodman for using the truck without permission. Although perhaps some suspicion attaches to the respondent's motive in discharging Davis by reason of Goodman 's statement to him on one occasion , previously related, that his membership in the Union might cause Davis and the respondent to part company, the undersigned finds the evidence insufficient to support a finding of discriminati on and concludes that Davis was discharged for the reason assigned by the respondent. Primo Strong. Strong worked in the beer department , and his duties included keeping the floor clean . He joined the union along with the rest of the em- ployees, but the record does not reveal any conversation between him and any supervisory employee concerning the Union . On September 12, Cook, supervisor In 'the beer department , reproved Strong for the condition of the floor and in- structed him to dispose of some empty bottles and, in general , to clean up the beer room. Strong, in effect, refused to do so, stating that he was thinking about quitting. Cook then told Strong that he was discharged , to which' Strong replied that he was intending to quit at the end of the week in any event. The above account is in 'substance ' that given by R. D. Gay, the respondent's office manager, who overheard the conversation between Strong and Cook. Cook was not called as a witness . Strong's own testimony is not inconsistent with that of Gay. Strong contends that he had said at various times during his employment that he intended to quit, but that the respondent never took him seriously and should not have done so on this occasio 'tr. Strong subsequently was employed by the respondent for a short time during the Christmas season of 1945, but was never again regularly hired. The undersigned does not find the evidence sufficient for a finding of discrimination , and concludes that Strong was discharged for legitimate business reasons. Jacob Averett. Averett worked in the receiving room and his duties were, among others, to keep the floor clean. Three or four days prior to his discharge ATLANTIC COMPANY 859 there was added to his duties the task of•keeping a part of the loading platform clean. Averett admitted that on September 14 Gordy spoke to him about the con- dition of the loading platform, but testified that lie cleaned it up that evening before he quit work. On the next morning, upon arriving at work, Goodman called his attention to the floor of the receiving room and to that part of the plat- form for which Averett was responsible Averett admitted, while testifying, that the floor and the platform were dirty although stating that he had told Goodman that he had left them clean the night before when lie went off duty. Goodman told Averett that he was discharged. The undersigned finds Averett was discharged by the respondent for neglect of duty and not because of his activities in behalf of the Union, which, so far as the record reveals, consisted only of having signed a membership application card. Ben Patillo. Patillo drove an ice delivery truck. His testimony is that L. R. Sims, delivery superintendent, told him on September 14, that, inasmuch as he had previously stated that he wanted to quit work sometime toward the end of the busy season, the respondent was letting him go. Patillo admitted, while testify- ing, that he had told Sims the previous June or July that when he could be spared he wanted to be laid off, and that Sims promised to arrange it at the earliest pos- sible date. Shortly after Patillo was laid off he bought a truck and, on the strength of a conversation with Gay, the respondent's office manager, undertook to buy ice at the respondent's plant and to sell it as an individual contractor to his personal customers. This practice was known as "peddling" ice, and the respond- ent sold ice under this sort of an arrangement when it had a surplus. A consistent surplus could not be depended on, however. The respondent furnished Patillo with ice for several days, and then stopped, as the result of which Patillo's career in the ice business came to an abrupt and unprofitable end and he had to dispose of his truck. It is not clear whether the Board contends that Patillo was elim- inated from the ice business because of his union membership, or whether it rests its case solely upon the circumstances surrounding his lay-off, or both. Nor in the view of the undersigned, is it material, inasmuch as he accepts the re- spondent's explanation of the discharge as true. Sims testified that on September 14, Patillo reminded him of a previous promise to let him go at the end of the busy season, and insisted that he be released at that time, a demand to which Sims reluctantly acceded. The result, according to Sims, was that Patillo's route had to be combined with another route, a combination which Sims would have preferred to postpone a few weeks. Whichever one,of these two accounts is accepted as true, there seems no substantial basis for believing that the respondent discharged Patillo by reason of his union membership and activity. James Bennett. Bennett worked off and on for the company as a temporary employee for several years prior to his last lay-off in September 1945. During the early part of that month, a route driver by the name of Robert Allen quit, and Bennett, who was in the truck yard at the time, asked Sims, route super- intendent, for the job. Sims gave it to him, but told him, according to his own testimony, that he had a white driver picked out for the route who would not be available for about a week, and that Bennett could take the job for that time. The permanent driver showed up on September 20, and the respondent let Bennett go. He was subsequently rehired in the spring of 1946 and was still employed at the time of the hearing. The undersigned credits the testimony of Sims as to the hiring of Bennett, and finds that he was only a temporary employee and that his lay-off on Sep- tember 20 was not occasioned by reason of his union membership or activity 860 DECISIONS OF NATIONAL LABOR `RELATIONS BOARD ' Lewis Henry Henry had worked for tlio respondent approximately 19 years, prior to September 1945 For the last several years of his employment he had worked as an oiler in the boiler room. On the afternoon of September 21, Cato asked Henry to sign the anti-union petition and Henry refused to do so. That night Henry was arrested and spent the following 2 or 3 days in jail. I. R. Gibson, a city police officer who arrested Henry, testified that he had received several complaints of a "prowler " in Henry's neighborhood , and sus- pected Henry whom he kept in jail a day or so pending identification. The identification ultimately failed and Henry was released, apparently on bond. Henry returned to the plant and asked Goodman for his job . Goodman re- plied, according to Henry, that he would have to get out of the "mess" that he was in, and that he had "got to do like a buzzard, straighten up and fly right " Henry testified that he understood this to mean that he should get out of the Union. Goodman testified, however, that he meant only that Henry would have to clear himself of any suspicion of crime before he way rehii I'd The undersigned finds the evidence insufficient to support a finding that the respondent refused to reemploy Henry because of his Union membership and activity. Heywood Billingsley, Clayton Henry, Frank Culpepper, and Jake Bettis. The first three named worked as oilers in the respondent 's boiler room. The nature of Bettis' work is not clear in the record . All of them joined the Union and all of them, except Henry, refused to sign the anti-union declaration cir- culated by Yarbrough and Cato. Henry signed it on the advice of Denton, the Union's organizer, the day after his brother, Lewis Henry, was arrested. These four employees were laid off on October 5 , along with a number of others who worked in the boiler room . Billingsley was rehired in January 1946, and was working for the respondent at the time of the hearing. Henry was sent' for by Goodman about the same time , but he delayed reporting to the plant and when he did so someone else had been hired in his place . At the same time Goodman tried unsuccessfully to hire Bettis. The reason alleged by the respondent for the lay -off of these four employees was that it was necessary to close down the steam plant on October 5 , to begin the electrification of the plant , an improvement which had been contemplated for some time . The testimony of Gordy was that in the fall of 1945 the respond- ent received word that a number of electric compressors would be delivered by December 15. Whereupon, as soon as the ice season was over, about the first of October, the respondent began to tear down a wall and to take out some of its steam equipment to prepare for the installation of the new compressors. In point of fact, according to Gordy, only a few of the compressors, together- with certain other machinery, had been received as of the date of the hearing. Con- firmation of Gordy's testimony that some changes were made is found in the testimony of Billingsley , who stated that when he came back to work the fol- lowing January some of the machinery with which he was familiar was missing, and new machinery was in its place. The undersigned finds the evidence insufficient to support the conclusion that the respondent, on October 5, 1945, closed down its boiler plant in order to fur- nish a pretext for the discharge or lay-off of Billingsley, Henry, Culpepper, and Bettis. Virgil Culpepper. This employee was a temporary,,employee Who had , worked. part time at various odd jobs from sometime in 1945 to his discharge on February ATLANTIC COMPANY 861 15, 1946. On the latter date lie was binning ice for storage over the winter months. This work was completed the middle of February, and several employees, In- cluding Culpepper, were laid off. The testimony of Goodman was that Culpepper was among those selected because he was frequently drunk and generally unrelia- ble in reporting for work. Culpepper admitted, while testifying, that he frequently drank, although he denied that he was drunk on February 15, when he was laid off, as the respondent contends The undersigned finds the evidence insufficient to support the conclusion that the `r'@pondent discharged Culpepper because of his Union membership and activity. Concluding findings The undersigned finds that the respondent discharged Paul Jones, B. F. Allen, and A. B. Frazier because of their membership in and activity on behalf of the Union, and thereby discouraged membership in the Union and by said discharges and by making the anti-Union statements set forth in this Section of the Re- port, 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 COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with its operations as described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and- tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor prac- tices the undersigned will recommend that it cease and desist therefrom and that it take certain affirmative action which the undersigned finds will effectuate the policies of the Act. The undersigned has found that the respondent has discriminated against the employees named in "Appendix B," attached hereto and made a part hereof, in regard to their hire and tenure of employment. He will therefore recom- mend that the respondent offer the employees named in "Appendix B" imme- diate and full remsfatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges. He will further recommend that the respondent make whole said employees for any loss of pay they may have suffered by reason of the respondent's discrimina- tion against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of their discharges to the date of offer of reinstatement, or of their actual reinstatement, less their net earnings 25 during said period. Finally, because of its widespread hostility to the efforts of its employees to organize as demonstrated by the record, indicating an intent to interfere generally with the 25 By "net earnings " is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and ,working else- -where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, 8 N L It. B. 440 . Monies received for work performed upon Federal, State, county, municipal , or other work relief projects shall be considered as -earnings See Republic Steel Corporation v. N. L. R. B , 311 U. S. 7 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights of the employees as guaranteed±by the Act, the undersigned will recom- mend that the respondent cease and desist from in any other manner interfering with, restraining, or coercing its employees in their right to self-organization.' . Upon the basis of the above finding of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. United Retail. Wholesale and Department Store Employees of America, and United Packinghouse Workers of America, both affiliated with the Congress of Industrial Organizations, are labor unions within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Ssctiou 8 (1) of the Act. 3. By discriminating in regard to, the hire and tenure of employment of those persons whose names are listed in "Appendix B," the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. I , , 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 foregoing findings of fact and conclusions of law, the undersigned recommends that Atlantic Company, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Retail, Wholesale and Department Store Employees of America, and United Packinghouse Workers of America, affiliated with the Congress of Industrial Organizations, 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 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 the right to self-organization, to join or assist United Retail, Wholesale and Department Store Employees of America, and United Packinghouse Workers of America, 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 undersigned finds will effectuate the policies of the Act : (a) Offer to those employees whose names are listed on "Appendix B" im- mediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority and other rights and privileges ; (b) Make whole the said employees for any loss of pay they may have suffered by reason of the respondent's discrimination against them, in the manner set forth in the Section entitled "The remedy," above ; 26 See • May Department Stores v. N. L. R. B , 326 U. S 376, affirming as modified, 146 F. (2d) 66 (C. C. A 8) ; enforcing 53 N. L. R. B. 1366. ATLANTIC COMPANY 863 • (c) Post at its Montgomery, Alabama, and Columbus, Georgia, plants, copies of the notice attached hereto and marked "Appendix C." 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 the respondent immediately upon receipt thereof, and be maintained by it for at least 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 such notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of the Intermediate Report the respondent notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations , file with the Board, 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 (including rulings upon all motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, 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. As further provided in said Section 33, 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 the order transferring the case to the Board. Any party desiring to submit a brief in. support of the Intermediate Report shall do so within fifteen (15) days from the, date of the entry of the order transferring the case to the Board, by filing with, the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director. HORACE A. • RUCKEL, Trial Examiner. Dated August 30, 1946 APPENDIX A STATEMENT OF PLANT MANAGER OF ATLANTIC COMPANY TO EMPLOYEES Some of the employees of the Company have reported to the management that they have been threatened in regard to joining and voting for the Union. I am told the threats were made by other employees who have already joined the Union. It as reported that the Umun employees stated to the employees who have not joined the Union, (1) That later they would be made to join the Union or they would lose th,6ir jobs, (2) 3 that they then would °be "Inu.de to pay a large amount to join the Union: and (3) that the Union was going to sue the Company for back time or back pay to 1941, and recover a large amount of back 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay for employees of the Union , and,if , they. did not join the Union and vote for the Union, they would not receive any of the back pay. The Company has the right to inform its employees of their rights , and is, therefore, making this statement to all of its employees The Union has no more right than the Company has to threaten you. The Union cannot now or later force or compel you to join or vote for the Union. The Union cannot now or later force or compel the Company to enter into a closed-shop agreement, which would force you to join the Union. The Company is opposed to the closed shop or to any agreement which compels its employees to belong to any, organization The Company intends to continue to act so that you shall be free. For, after all, you are free men and have the right to make up your own minds as to whether you will join or not join the Union, or whether you will vote for, or not vote for , the Union Also, under the law, you have the right to change your mind at the last moment and vote like you want to . Even if you have already signed a Union card or pledge,' you are not forced to vote for the Union , but you are free to change your mind and to vote against the Union. If the Union , or any Union representative, is claiming that the Union is going to obtain a large amount of back pay for you or for members of the Union, the claim is false and untrue. Especially is it untrue if the Union is claiming that it can compel the Company to pay back pay to the year 1941, or even to the first of the year 1945, or to the present time. Under the law, the War Labor Board does not compel companies to pay hack pay beyond the date that the Union and the Couipany'begin to tr'y to make a contract . ' And' if the Company is ordered by the National Labor Relations Board to bargain with the Union for a contract, it will be some time yet before that happens So do not be deceived by wild claims, but, if you want to know the facts, go to someone who you know can and will give you the truth. The Company does not approve of threats. If the Union made such threats, then the Union has been engaging in unfair methods. Do not. let such threats control your actions or frighten you. The Company gives you its promise that you will not, and that you cannot , be forced to vote for or to join the Union now or later. If anyone tries to threaten or force you either to join or not join, to vote for or to not vote for the Union, do not pay any attention to him, and so far as the Company can properly do so, it will protect each of its employees in his or her rights. One thing I want to make clear to each of you is, that the Company does not demand or expect from you anything except that you do your work efficiently and well , and that you be honest and observe all reasonable company rules. APPENDIX B John Aikens Leon Garrison Joe Ward Charles Bailey John Jackson William Warren Ed Belser Edward Jones Clayton Williams Fred Bradley Willie Jones B. F. Allen Ed Bruce Woody May A. B. Frazier James Cargill John Robinson Paul Jones . William Garrison Willie Robinson ATLANTIC COMPANY APPENDIX C 865 NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Field 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 employ- ees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES Or AMERICA or UNITED, PACKINGHOUSE WORKERS OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively through rep- resentatives 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 employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority ,or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. At the Montgomery, Alabama, plant: John Aikens Charles Dailey Ed Belser Fred Bradley Ed Bruce James Cargill William Garrison Tom Garrison John Jackson Edward Jones Willie Jones Woody May John Robinson Willie Hobui.on .Joe Ward William Warren Clayton Williams At the Columbus, Georgia, plant: B. F. Allen A. B. Frazier Paul Jones All our employees are free to become or remain 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. ATLANTIC COMPANY, Employer. By ---------------------------- (Representative) (Title) Dated -------------------- NOTE -Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. ERRATUM Messrs Sidney Reitman, William M. Pate, and Charles G. Kessler, for the Board. Swift, Pease, Davidson, Swinson anil Chapman. by Mr. W. Edward,Swinson, of Columbus. Ga.; Battle, Smith and Elliott, by Mr. A. Edward Smith; of Columbus, Ga. ; and Ball and Ball, by Mr. Fred Ball, of Montgomery, Ala., for the respondent. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. H. W. Denton, of Atlanta, Ga., for the Department Store Employees ; and Mr. John D. Hyden, of Birmingham, Ala., for the Packinghouse Workers. The undersigned , under date of August 30, 1946, issued his Intermediate Report in the above entitled matter, in Appendix C of which attached thereto entitled "Notice To All Employees" it was stated that such notice was made pursuant to the recommendations of a Field Examiner . To correct a clerical error, and so that this portion of the Intermediate Report may conform to the report as a whole, the said Intermediate Report is hereby corrected by striking out the word "Field" in the notice and inserting in lieu thereof the word "Trial." HouAcE A. RuCKEL, Dated October 10, 1946. Trial Examiner.