Super-Cold Southwest Co.

In the Matter of SUPER-COLD SOUTHWEST COMPANY and RETAIL, WHOLESALE & DEPARTMENT STORE UNION, C. I. O. Case No. 16-C-1435.-Decided January 12, 1949 DECISION AND ORDER On September 15, 1947, Trial Examiner Charles E. Persons issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices 1 and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is hereby denied, as the record and brief adequately present the issues and positions of the parties. The Board 2 has considered the rulings of 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 brief filed by the Respondent, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the fol- lowing additions and modifications. 1. We agree with the Trial Examiner that the Respondent discrimi- natorily discharged Walter H. Bahn and Lee R. Rainwater in vio- lation of the Act. As found by the Trial Examiner, the record does not support the Respondent's contention that Bahn's and Rainwater's work record was unsatisfactory. The Respondent alleges that the immediate cause which precipitated their discharge was the fact that 'Section 8 ( 1) and 8 (3) of the National Labor Relations Act, which the Trial Ex- aminer found was violated, is continued in Section 8 (a) (1) and 8 (a) (3) of the Act, as amended by the Labor Management Relations Act, 1947. 2 Pursuant to the provisions of Section 3 (b) of the Act, as amended , the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-man panel consisting of the undersigned Board Members [Reynolds , Murdock, and Gray]. 81 N. L. R. B., No. 18. 96 SUPER-COLD SOUTHWEST COMPANY 97 Bahn and Rainwater were among the group of employees whom General Manager Fallon found loafing. But no satisfactory expla- nation was offered to show why the two complainants were singled out for discharge of all employees involved. In agreeing with the Trial Examiner, however, we do not rely on his finding that Fallon's speech on August 21, 1946, the day of the discharge, was "a thinly veiled warning to these employees that their jobs would Le insecure if they persisted in the endeavor" to unionize the plant. Aside from this speech, there is convincing evidence, as fully set forth in the In- termediate Report, that at all times material herein, the Respondent had knowledge of Bahn's and Rainwater's interest in organizing and promoting the Union, and had evinced animus against them because of this activity. Thus, Service Manager Zenor told employee Taylor that "it is too bad that Rainwater and Bahn got mixed up in that mess just about the time they were getting ready to go out on service. They should have known they couldn't have gotteli by with the Union there." In a conversation with employee Elva Word," Fallon stated that several G. I.'s were trying to raise trouble by starting a union in the plant, that he was planning to discharge two of them 4 2. We do not agree with the Trial Examiner's finding that the dis- charge of employees Calvin, Vermillion, Weaver, Moore, and Willis for failing to obey an order to work overtime was in violation of the Act. At about 5 p. in., September 27, 1946, Foreman White ordered all employees in his department to return to the plant at 6 o'clock for overtime work. The purpose of the order was to tear up an old floor and lay a new one that night so that there would be no inter- ruption to business on the following morning. As soon as the order was issued, several men offered plausible excuses for not returning, 8 The Intermediate Report inadvertently, at one place , mentions August 20, 1946, instead of August 21 , as the date on which Elva Word applied for a job and was inter- viewed by Fallon That the Trial Examiner intended August 21 , and not August 20, is clear from his findings that Word applied for work on August 21 ; that Fallon did not come to the plant on August 20: and that "twice on that day" (August 21) "both before and after the discharges , in conversations with Word and Schmidt , Fallon de- clared that he was prepared to close the doors of Respondent's plant if the Union came in." We have considered Respondent's point in its exceptions to the effect that Word's testimony concerning Fallon's anti -union remarks on August 21, cannot be credited because the date on his application and on the hiring slip shows August 22, which is the day Fallon testified he saw Word . As indicated in the Intermediate Report, the Trial Examiner considered these documents but nevertheless found Word's testimony credible. In affirming the Trial Examiner, we rely on his opportunity to observe the demeanor of the witness ; on the fact that the record shows that Word attended the union meeting on the evening of August 21, at which he reported to Bahn, Rainwater, and Schmidt the anti-union remarks made by Fallon ; and on the further fact that on the same evening Schmidt telephoned Fallon concerning the discharge of the complainants and reduced this conversation to writing. ' Bahn and Rainwater, both veterans, were the only employees discharged at that time. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which were readily accepted by White.' All unexcused employees returned to work, except the five complainants who instead attended a union meeting. In our opinion, the record fails to establish that the overtime order was discriminatorily issued to prevent the employees from attending the union meetings Since we find, contrary to the views of the Trial Examiner, that the order was legally issued and the men had dis- obeyed, it, the Respondent had a right to exercise its managerial pre- rogative in ordering their discharge. 3. The Respondent defends employee Taylor's discharge on the ground that "he had carelessly, if not maliciously" damaged beyond their repair a certain compressor on which he had been working. We, like the Trial Examiner, are not convinced that Taylor was guilty of negligence in his work on the compressor.7 Nor do we believe that the Respondent's claim of negligence motivated Taylor's discharge. As set forth in the Intermediate Report, except for the compressor incident here under consideration, Taylor's work record was com- pletely free from criticism. He had been rewarded with several pay increases during his more than 2-year period of employment and had acted as leadman for some 4 months prior to August 1946. Giving due consideration to Taylor's work record and the Respondent's need for skilled mechanics, we are convinced by the record as a whole that Taylor's active and unconcealed union interest, as set forth in the In- termediate Report, was responsible for his discharge. We therefore agree with the Trial Examiner that Taylor's discharge was in vio- lation of the Act. 4. We further find that by the statements of Service Manager Zenor to Taylor, the remarks of General Manager Fallon to employee Word, mentioned above and fully set forth in the Intermediate Report, and the statement of Foreman Scott that anyone was foolish to vote for the Union and that if the election went in favor of the Union "they would all have their salaries cut back to apprentice wages and have to work for 6 months before they can expect another raise of any kind," the Respondent interfered with, restrained, and coerced its employees in violation of the Act. However, unlike the Trial Examiner, we " According to the Trial Examiner, one of the five complainants said he did not know whether he could return or not, and another declared he could not work that night or the next. Neither, however, offered any specific excuse nor were they actually excused The remaining three gave no indication that they would not report for overtime work 9 The lumber for the floor was received at 3 p in. that day. Although Respondent had been trying to obtain it for some time, the necessity for a speedy completion of the job appears clear 'This view is confirmed by a decision of the U. S. District Court, Northern District of Texas, involving, inter alia, the same question of negligency by Taylor as is here raised by the Respondent C R Taylor et al. v. Super-Cold Southwest Company, No 2358 Civil. May 27, 1947. SUPER-COLD SOUTHWEST COMPANY 99 do not find that other statements mentioned in the Intermediate Re- port were violative of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Super-Cold Southwest Company, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Retail, Wholesale & Department Store Union, C. I. 0., or any other labor organization, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of their employment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist Retail, Wholesale & Department Store Union, C. I. 0., or any other labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Walter H. Bahn, Lee R . Rainwater, and C. R. Taylor 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 persons named in the preceding paragraph for any loss of pay they may have suffered by reason of the Respond- ent's discrimination against them, by payment to each of them of a sum of money equivalent to the amount which he normally would have earned as wages during the period from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earn- ings, if any, during said period; (c) Post at its plant in Dallas, Texas, copies of the notice attached hereto marked "Appendix A." 8 Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being signed by the Respondent's representative, be posted immediately by the Respondent upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all IIn the event that this Order is enforced by decree of a Court of Appeals , there shall be inserted in the notice , before the words . "A DECISION AND ORDER " the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 829595-50-vol. 81-8 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the Respondent discriminatorily discharged James A. Calvin, Charles B. Vermillion, Charles A. Weaver, James R. Moore, and John W. Willis. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, 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 RETAIL, WHOLESALE & DEPARTMENT STORE UNION, C. I. O. or any other labor organiza- tion, 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 previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Walter A. Bahn Lee R. Rainwater C. R. Taylor 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 membership in or activity on behalf of any such labor organization. SUPER-COLD SOUTHWEST COMPANY, Employer. Dated---------------- By ------------------------------------- (Representative) (Title) NOTE : Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement SUPER-COLD SOUTHWEST COMPANY 101 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 Elmer P. Davis, Esq., for the Board. Malone, Lipscomb, .Seal d Shuford, by George E Seal/ and Harry A. Shuford, Esqs., of Dallas, Tex., for the Respondent. Mr. Fred H. Schmidt, International Organizer, of Dallas, Tex., for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed on December 9, 1946, by the Retail, Wholesale & Department Store Union, CIO, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated June 9, 1947, against the Super-Cold Southwest Company, herein called the Respondent, alleg- ing that the Respondent has engaged in and is 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. Copies of the second amended charge, the complaint and the notice of hearing' thereon were duly served upon the Respondent and the Union. With respect to the unfair labor practices the complaint alleges in substance that the Respondent: (1) through its named officers, agents and employees has "vilified, disparaged and expressed disapproval of the Union ; has interrogated its employees concerning their Union affiliations ; and has urged, persuaded, threatened and warned its employees to refrain from assisting, becoming mem- bers of or remaining members of, the Union" thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act; and (2) discharged Walter H. Bahn and Lee R. Rainwater on August 21, 1946, James A. Calvin, Charles B. Vermillion, Charles A. Weaver, James R. Moore and John W. Willis on August 28, 1946; and C. R. Taylor on October 24, 1946, and has since these dates failed or refused to reinstate them, because they joined or assisted the Union or engaged in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection. On or about June 17, 1947, the Respondent duly submitted its answer in which it admits the facts alleged in the complaint as to its corporate organization and the nature of its business. that the Union is a labor organization within the meaning of the Act and that the eight employees named above were discharged on the dates stated. The answer denies the commission of any unfair labor practices and states affirmatively that each of the complainants was discharged for causes which are set forth in its answer. Pursuant to notice, a hearing was held on July 14, 15, 16, 17, 18, 22 and 23, at Dallas, Texas, before the undersigned Charles E. Persons, the Trial Examiner i The original notice of hearing covered representation Case No. 16-R-1965 in addition to the above-entitled case. The cases had been consolidated by an Order of the Board duly served upon the parties. Subsequently the cases were severed and the Regional Office dismissed the representation proceedings. An amended notice of hearing was issued and duly served on the parties to the effect that "hearing will be had only on the issues raised by the complaint which was attached" to the original notice of hearing. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duly designated by the Chief Trial Examiner . The Board and the Respondent were represented by counsel and the Union by one of its officials. Full opportun- ity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties . At the beginning of the hearing the Respondent presented a motion for a bill of particulars . This motion was denied with two provisos : That reasonable continuance would be granted on the conclusion of the Board's presentation in case the Respondent found itself surprised by the evidence presented and that any Board witness whom the Respondent desired would be recalled for further cross-examination. At the close of the Board's presentation continuances were granted on Respondent's request. At the conclusion of the Board's case the Respondent moved to dismiss the complaint and separate paragraphs therein for failure of proof and other reasons stated. These motions were denied without prejudice to their renewal later. They were renewed at the close of the hearing and were then taken under advisement by the undersigned and are now disposed of by the findings, conclusions and recommendations in this Intermediate Report. The Respondent further renewed at this time certain motions , made during the course of the hear- ing, to strike specified testimony . These motions were denied The Board moved to conform the pleadings to the proof in matters of detail not touching substan- tive matters . This motion was granted . All parties waived the presentation of oral argument before the undersigned . Although they were duly advised that they had the privilege of presenting briefs for the consideration of the Trial Examiner, none has been received. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I THE BI-SINESS OF THE RESPONDENT 2 The Respondent, Super-Cold Southwest Company, is a corporation duly organ- ized under the laws of the State of Texas. It has its principal office and plant in Dallas, Texas, and a branch office in Houston, Texas. It is engaged in the manufacture, reconditioning, sale, distribution and servicing of commercial re- frigerators and compression units. During the calendar year of 1945 the Respondent purchased equipment in the State of California valued at $510,799 and manufactured in the Dallas plant equipment sold for $97,480. Of the equip- ment purchased in California $5,451 worth and of that produced in the Dallas plant $4,041, in value, was sold in interstate commerce. In the calendar year 1946 equipment with a value of $721,479 was purchased in the State of California and products with a value of $436,450 were manufactured in the Dallas plant. Of the equipment purchased in California, $51,829 in value and of that produced in Dallas $21,754 in value, was sold in interstate commerce. For the purposes of this proceeding the Respondent admits, and on the foregoing data, the under- signed finds, that it is engaged in commerce within the meaning of the Act. It. THE ORGANIZATION INVOLVED Retail, Wholesale & Department Store Union, CIO, is a labor organization which admits to its membership employees of the Respondent. 2 These findings are based on a stipulation of the parties entered in the record, on allegations in the complaint admitted by the Respondent in its answer and on uncontro- verted testimony. SUPER -COLD SOUTHWEST COMPANY III. THE UNFAIR LABOR PRACTICES A. Background and sequence of events 103 Respondent's plant is located in two buildings. The main building has three floors. On the first are the showrooms and the offices of General Manager Fran- cis C. Fallon and that of his secretary. On the second floor front are the offices of the bookkeeping and purchasing departments, of the wholesale sales manager and of the retail sales manager. At the time with which this proceeding is con- cerned, Robert Fallon, son of F C. Fallon, was purchasing agent. On the third floor was located the reconditioning or assembly department under Foreman A. F. Cowan;' the paint shop under Foreman Hugh Alexander ; the sheet metal de- partment under Foreman David Wolfe; and the mechanical department under Foreman Floyd Scott The second building, located two doors away, was a two-story building entirely devoted to the woodworking and carpenter shop. These operations were under Foreman Henry White. Other officials were H I. Meade, assistant to F C. Fallon ; J. C. Bownds, office manager ; A. Davis, gen- eral service manager ; E. N Nash, sales manager ; and All in H. 'tenor, service manager in Dallas. The Respondent maintains a branch office in Houston. This proceeding, however, is not concerned with it. In the various departments about 60 production workers were employed ; there were 6 or 7 office employees. Union activities were initiated about the middle of August 1946, when ar- rangements were made for a meeting on August 20, at CIO headquarters in Dallas. Eighteen employees met with Fred H. Schmidt, international organizer for the Union and its representative of record fn the instant proceeding. All those present signed application cards for membership in the Union. Employees James A. 'Moore and Walter H. Bahn were elected as joint chairmen or spokes- men for the group. On August 21, 1946, by telephone and by letter dated Au- gust 22, Schmidt communicated with General Manager Fallon claiming to repre- sent a majority of the employees and requesting a conference for the purpose of discussion. Schmidt stated also that he was petitioning the Board to certify the Union as exclusive bargaining representative. Fallon replied promptly, stating that the Respondent "was unwilling to recognize [the] Union or to bargain with it, until you have furnished satisfactory evidence that you do, in fact, represent a majority of the employees who would constitute a proper unit." In view of the Union's petition to the Board, Fallon stated that "any proposed meet- ing can now be deferred until the certification proceeding has been concluded." Bahn and Rainwater were discharged on August 21 and five employees in the carpenter shop on August 28, 1946. A second union meeting had been held on the evening of August 27, 1946. The Union filed a Petition for Certification of Representatives on September 26, 1946, and an election, in which the Union was narrowly defeated, was held under supervision of the Board on October 22, 1946 Thereafter on October 24, 1940. employee C. R. Taylor was discharged. B. The discriminatory discharges 1. Walter H. Bahn and Lee R. Rainwater Bahn was hired by the Respondent on January 14, 1946. He was discharged on August 21, 1946. His employment began shortly after he was discharged 3 Cowan was familiarly known as Uncle Jack and is frequently referred to in the record by that name. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from service in the Navy and his status with the Respondent was that of a trainee under the G. I. Bill of Rights. Bahn was first assigned to work in the carpenter shop but was soon transferred to the mechanical department. Here he came under the immediate supervision of Leadman C. R. Taylor and, late in his service there, of Foreman Floyd Scott. When assigned duties as helper in the service department he came under Alvin Zenor as service manager and of A. Davis, the general service manager. About a week before his discharge Bahn was approached by Davis who stated that he desired to assign him to a truck doing service work. Bahn testified as to the change involved in his work, as follows : Well, in the shop I was doing most everything-welding and general over- hauling of refrigeration compressors and installation of coils and com- pressors in the new refrigerators and the work I would have done on the truck would have been, to my understanding, delivery of boxes, installation of refrigerator boxes and service work, taking service calls on boxes. Davis at the time asked Bahn if he could move to Dallas. Bahn replied that he had bought a home in Lancaster, situated some 14 miles from Dallas, and could not easily do so. He suggested he could take calls over the long distance tele- phone. Bahn testified that Davis said, "We will see if we can't work it out."' It is agreed that work on the service truck was a responsible position. Service- men repair valuable equipment and prompt and efficient work is required to safeguard the perishable products contained therein. Rainwater was hired on May 6, 1946, as a trainee under the Veterans Admin- istration training program. Until his discharge on August 21, 1946, he worked in the mechanical department, first cleaning up compressors and overhauling them and later installing units in boxes. Both Bahn and Rainwater were paid 65 cents an hour throughout their period of service with the Respondent. This was in addition to their governmental allowance. Bahn and Rainwater were active in informing the employees of the plan for a union meeting on the evening of August 20, 1946. Bahn testified: I was all for the meeting and trying to get as many out as I could. .. . [I talked] to every one that I could come in contact with all the employees around the plant that I came in contact with through the day, like maybe I would be over in the carpenter shop after some type of board, or something to set a unit on, and I would say something to somebody over there, and if I would go in some other department, I would say something there. . He further stated that he made no attempt to conceal his activities. That Rainwater was similarly active is indicated by his credited testimony, "I talked it [the meeting] up around the shop." He named six employees whose attendance he had invited 6 Both Bahn and Rainwater attended the meeting and each * Davis testified that he said , "We will have to see about that and see what can be done about it," and further "I dismissed it from my mind, when he couldn ' t move to Dallas" He further stated that lie had nothing to do with the discharge and did not know it was contemplated 5 The prominence of Bahn and Rainwater in the organizational campaign is indicated by certain testimony of Taylor. He was asked who he thought were members of the Union organizing committee. He answered : A. I thought Mr Rainwater and Mr. Bahn were. Q. You thought the Super-Cold Organizing Committee was Mr. Rainwater and Mr. Bahn? A. Those two is all I knew was making an effort at the time. SUPER-COLD SOUTHWEST COMPANY 105 signed an application card. During the meeting an election was held for the position of chairman of the group. Employee James A. Moore received the high- est number of votes but since Bahn was a very close second it was agreed that he and Moore should become joint chairmen. Schmidt suggested that the em- ployees present take cards with them and solicit other employees to sign. Both Bahn and Rainwater did so. Bahn, being inexperienced in union matters, solic- ited Foreman Scott to attend the Union meeting. As Bahn testified, Scott replied that as a foreman he could not participate in union activities. The Board's reliance in proving that Respondent had knowledge of the union activities of Bahn and Rainwater rests in part on this solicitation of Scott's at- tendance by Bahn. Further, Rainwater testified that Scott asked him on the following day how the meeting went. Rainwater replied, "all right" so far as his knowledge went. Although Scott admitted that he told Balm "along about the 20th" that since he was a foreman he could not participate in union activities, he denied the remainder of the testimony by Bahn and Rainwater ° After con- sidering the demeanor of these witnesses, the mutually corroborative character of this testimony by Bahn and Rainwater and in the light of further incidents set forth in detail below, the undersigned rejects Scott's denial and credits the testimony by Bahn and Rainwater Confirmation of knowledge of their union activities by General Manager Francis C. Fallon, the official responsible for their discharges. is found in the testimony of a former employee of the Respondent, Elva Word. It was Word's testimony that he applied for employment at Respondent's plant, where he had a "buddy," Bill Davenport, working, at approximately 4: 45 p. m. on August 20, 1946. His further testimony is recorded as follows: Well, I got acquainted with [Fallon] out in the main floor, hit him up for a job. He said, "Well, lets go in my office, and we will talk this thing over." I walked in the office and I introduced myself He asked me where I was from, and he asked me how much experience had I had as a refrigeration man, mechanic. I told him I had nine months in Draughon's Business Col- lege in Oklahoma City, and three months with Vaden Refrigeration in Okla- homa City. Well, he asked me-he told me, said "I am laying a couple of guys off in the morning." Said, "I think I can put you on," and said-he asked me did I belong to the Union I told him, "No." And he said, "There are some of these ex-G. L's around here that are raising a little trouble, starting to trying to get a Union in here." Then he said, talked a long time about the Union. In other words, he didn't talk anything in favor of the Union, always seemed like it was all against the Union. Well, he said, "You wouldn't want anyone to tell you when to go to work and tell you how many hours a week you can work, . . the Union does that. We don't need a Union . . . I will go even further if the Union comes in, I will close the doors." That is the last statement he said. Word further testified that he filled out an application form that afternoon and was thereafter introduced to Scott by Fallon who said, "Starting tomorrow morning he is going to work and I want you to take him up and show him around." It was Word's testimony that while he was at the Union hall that Scott further testified that he told Bahn, "a union was good for some people but not for me " 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evening he met Bahn and Rainwater for the first time and learned of their dis- charge. He told Schmidt of his conversation with Fallon. Schmidt typed a statement and Word signed it. This statement, bearing the date August 21, 1946, was entered in the record. Its content is substantially in accord with Word's testimony quoted above. His statement relative to the circumstances under which it was taken was fully corroborated by Schmidt.7 Fallon denied the conversation ascribed to him by Word. He testified that he left the office about 4 p. m. on August 21; that his interview with Word occurred on the morning of August 22, 1946, and that Word began work immediately. In support of this testimony the Respondent introduced the application form and hiring slip both dated August 22, 1946. After consideration of the full record and the demeanor of the witnesses con- cerned the undersigned rejects Fallon's denials and credits the testimony of Word and Schmidt. Each impressed the undersigned as candid and truthful witnesses. Their testimony was clearly and readily given and was specific in character. It was not shaken under lengthy and searching cross-examination. The events which immediately led to the discharge of Bahn and Rainwater were encompassed within a brief period. Fallon left Dallas by automobile on a vacation trip on August 8, 1946. He returned about 8, 30 p. in. on August 19. Being tired and having arrangements to make for his wife's leaving on August 20, he did not go to his office until the morning of August 21. After disposing of his accumulated mail he made a tour of the plant. When he opened the door of the third floor on which the mechanical, painting, reconditioning and assem- bling, and sheet metal departments were located lie discovered "a complete slow down or shut down of [the] departments on that floor." Rainwater was seated on the work bench and other employees were gathered around.' It was Fallon's testimony that "There was no work being done." Foreman Scott was present but was giving no attention to affairs in his department. As Fallon testified he reprimanded Scott, saying, "Scott you keep those fellows off that bench, and if you can't, I'll get somebody that can, and if I catch a man on that bench again, I will fire you and the man." Fallon further testified that he found similar lack of industry in the other departments on the third floor and in the carpenter shop located in a nearby building There he found Foreman Henry White, who, although on vacation, had visited the shop His brother, Frank White, was temporarily in charge. H. White, as Fallon testified, told him of dissatisfaction among the G. I. trainees, because some of them were getting larger governmental allowances than those complaining. As White stated the matter those dissatisfied blamed Office Manager J. C. Bownds for this inequality of treatment. Later Jack Cowan, foreman of the reconditioning and assembly department, coni;rmed the statement of White's relative to the grievance of certain trainees. Fallon then determined to call a meeting of all trainees at 2 p. in. Bownds at the time was in Houston. The foremen, however, attended the meeting. At this meeting Fallon made a speech. As reconstructed from the testimony of Board witnesses,' he said : 1. I understand there is some dissatisfaction among the employees. All the men came to the plant with good discharges that they should be proud ' Rainwater also testified that Word was present at the Union hall on the evening of August 21. 1946. 8 Scott testified that Rainwater had been singing a little song whereat the other em- ployees were much amused n Bahn ; Rainwater ; Calvin ; and Vermillion . Cf. Fallon. SUPER-COLD SOUTHWEST COMPANY 107 of and that I would be proud to possess myself. If any man is dissatisfied if he will stand up and say so I will write a letter to the Veterans Adminis- tration stating that the man is unsatisfactory for the job and recommending a transfer to some other type of work. But if anyone tries to undermine me I'll see that his government subsistence is cancelled.10 2. When you were in the battle field if a Jap or a German came through the lines and called on you to assist in killing the colonel, would you do it? 3. You men are getting the best type of training available in the United States. I might pay you 50 cents an hour but I am paying 65 cents because I want to see my employees go home satisfied and with a substantial check to maintain their families. Fallon in his testimony stated he "had called to their minds the fact that they came there as trainees, that they were either sent by the Veterans Bureau or came of their bwn accord, but in no case were they selected by us." He further stated that his foremen had remonstrated with him for taking in so many trainees and had complained of lack of cooperation from them. Fallon's further testimony relating to paragraph 1, above, reads : I told them that the veterans' program was designed to give them their training, that we had it there for them, and it was evident that some of them did not appreciate the opportunity that they were being given. I told them that we had definite-we knew definitely that some of them were not fitted for the training and we'd prefer that those men, who must know they are not fitted for the training, would voluntarily withdraw from the training and allow us to turn them back to the Veterans' Bureau. Fallon denied in toto, as silly, what is incorporated in paragraph 2. However, he testified as follows : I told those boys that they had had good Army training ; they realized the importance of discipline ; that I had had complaints in the departments from the foremen, as to the conduct of the men in front of me, and they must consider their foreman in the same light that they considered their colonel in the Army. That is what I told them. Under questioning Fallon substantially admitted having said in effect what is incorporated in paragraph 3 above. Since three Board witnesses," whom the undersigned finds in every respect worthy of credence, were clear in their remem- brance of the passages quoted and substantially corroborated each other, Fallon's partial denials and divergent versions of these passages can not be accepted. Fallon asserted, in his testimony, that his purpose in calling a meeting of the G. I. trainees wa, "simply to put them right on their subsistence pay; no other reason." On the basis of his own testimony regarding his speech on that occasion, as well as that of the Board's witnesses, this was palpably not true. Fallon made no mention of the subject of subsistence pay until employee Moore broached that matter in a question from the floor. The burden of Fallon's 10 Employee Vermillion stated this matter as follows • "He said lie wasn't going to stand to be pushed around, and that if we were dissatisfied, he would wi rte a letter and see that we were transferred to another job, and if we stuck around and were fired, he would write a letter to the Veterans Administration disqualifying us " 11 Bahn, Rainwater, and Vermillion. Calvin also corroborated the testimony of these three witnesses in regard to the quoted statement about the hypothetical question re- garding killing the colonel. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remarks, as he stated the matter, was admonishing the trainees that some of them were not taking full advantage of their opportunities or were unfitted for the training available and suggesting that it would be wise for such employees to voluntarily withdraw. It is clear that his reference to an enemy within the lines referred to the Union of whose advent during his vacation he had recently learned. The purport of his speech was to give the trainees a warning against support of that organ zation.12 It was Fallon's testimony that he was responsible for the decision to dis- charge Bahn and Rainwater and that he made this determination on the morn- ing of August 21. As he was leaving that evening he instructed his assistant, H. I. Meade, to have Scott inform Bahn and Rainwater that they were to call for their checks at the close of the day. When so instructed Scott demurred on the ground that he had recently been appointed foreman and that he had a kindly feeling toward Bahn and Rainwater as fellow G. I.'s! Meade then took the matter upon himself and told them that they were being dismissed. Upon their inquiry as to the reason Meade answered only "Your work is just not satisfactory." 1e Immediately thereafter Bahn and Rainwater joined in applying to Scott for an explanation. Scott stated that he knew nothing about the discharge and had not been asked about their work." That evening they, together with employees Gordon and C. R. Taylor, met Scott on the street. Rainwater's testi- mony gives the following account of this interview : Well one of the men [Gordon] asked him [Scott] what was the matter with our work and he said he didn't see anything, that we were two of the best trainees he had, that he could send us to draw parts and we would get our parts and complete a job without him having to tell us or help us on it. When this testimony was quoted to Scott he denied that he had made such a statement. Bahn 15 and Taylor corroborated this testimony in full detail. Under these conditions the undersigned is constrained to reject Scott's bare denial. Bahn and Rainwater together with other union adherents visited the Union hall on the evening of their discharge day. After listening to their story Schmidt called Fallon on the telephone about 7:40 p. in. He had been erroneously informed that three union employees had been discharged. As Schmidt stated 12 This was the impression gained by Bahn. His pertinent testimony reads : I thought Mr. Fallon was putting himself as the colonel and putting us that joined the Union and were trying to get the Union in the shop as the Jap that was slipping in trying to kill him That is the way I would state it. To further explain my idea for that, it was more or less a joke around the shop that afternoon, lust referring to Mr. Fallon as the little colonel. 13 This quotation is from Bahn's testimony. Rainwater's version reads . Your work is not satisfactory. . . . We just don't like the way you do it. 14 Scott confirmed these statements, testifying that their discharge "wasn't discussed with me. Mr Meade let them go." "I didn't know until Mr. Meade came up there and told me " 15 Bahn's version reads : He stated that afternoon that Rainwater and I were the only two trainees he had in the shop, that he could turn loose on a project without constantly standing over them and telling them every move to make. He said he could turn a job over to us and that we would go ahead and work it out and he wouldn 't have to worry about it. Taylor's testimony is to the same effect SUPER-COLD SOUTHWEST COMPANY 109 their conversation in his testimony, he assured Fallon that a majority of the employees had authorized the Union to represent them and asked for a meeting as soon as possible to discuss recognition of the Union and the negotiation of a contract. Fallon stated that he could not meet with Schmidt until the following Monday. He further affirmed that the claim of a majority membership was not true and declared , as Schmidt testified , that "he had ways of knowing how many are and how many are not members of the Union ." When Schmidt referred to the fact that three men had been discharged that day and stated that the employees would be afraid to tell him whether or not they adhered to the Union, Fallon retorted that the men had not been discharged because they were members •of the Union but had been on his discharge list for some 2 weeks, and further declared, as Schmidt testified, "Let's get this clear. I want you to know that I will close these doors down there before I will see a union come in." 18 Schmidt expressed an intention to file a petition for an election with the Board and also a charge of unfair labor practices covering the discharges. Fallon's testimony agrees as to the circumstances of the interview and its general outline. He stated that he told Schmidt two men "were discharged for cause." He denied having made any statement that he would close the plant doors if the Union came in. It will be remembered that Word testified to a similar statement by Fallon made a short time earlier in the day. Since both Schmidt and Word impressed the undersigned as trustworthy witnesses, the undersigned is impelled , after consideration of the demeanor of the witnesses involved and the entire record, to credit the mutually corroborative testimony of Schmidt and Word and to reject Fallon's denial that he made the statement quoted. Schmidt on the evening of August 21, 1946, assisted Balm and Rainwater in writing letters to Fallon requesting a v.rittcn statement of the r:ason for their discharge. Under date of August 31, 1946, Fallon replied stating, in identical letters, "the cause for your discharge was incompetence and inability on your part to develop under the training program into the type of man needed and being trained for duties as a serviceman ." The letter further stated that their services were "unsatisfactory." On the following morning Schmidt accompanied by Balin and Rainwater dis- tributed a leaflet to the employees of the Respondent as they reported for work. It was headed "Mice or Men" and, after rehearsing the facts of the discharge on August 21, 1946, announced that the Union was filing charges against the Respondent and concluded with an appeal for 100 percent membership in the Union. Conclusion The record as stated in detail above shows that Bahn and Rainwater were summarily discharged on the day after their attendance at the initial Union meeting which they had actively promoted and for which on the day of their discharge they had been soliciting members. Responsibility for the discharge rests solely on General Manager Fallon who returned to the plant on the morning of August 21 after 2 weeks' absence on vacation. It does not appear that he made inquiry as to their work record during his absence. Scott who had assumed the duties of foreman in the mechanical department on August 5, shortly before Fallon's departure on vacation, was not consulted and disclaimed any share in 18 Schmidt quoted this statement in a letter sent to Fallon, dated August 22, 1946. Fallon's answer written on the 23rd "denies that he made the statement 'Which you attempt to quote." 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the decision to make these discharges . Furthermore Scott at the time stated that their work had been eminently satisfactory. The Respondent sought to justify its action by attacks on the work records of Bahn and Rainwater . Bahn had been assisted on applying for employment by E. N. Nash, sales manager for the Respondent. Bahn and Nash had formed an acquaintance as fellow-Texans while in service with the Navy. On a date not exactly established in the record but "four or five or six weeks" before Bahn's discharge, Nash inquired of General Service Manager A. Davis how Bahn was getting along. Nash replied in language which indicated that Bahn was a worthless employee.17 Nash thereafter proffered the suggestion to Bahn that "the way for any man to get along in the company was to keep himself busy and not wait for somebody to tell him what to do." Davis testified that he had frequent occasion to discuss Bahn and Rainwater and other employees with Fallon and had been constrained to make unfavorable reports about them and other trainees. His estimate of their records was, in effect, that Bahn was lacking in initiative and that Rainwater was boisterous and interfered with the work of other employees by manifestations of the exuberance of youth. Davis testified that he made such reports early in their employment and at intervals thereafter.18 However, Davis testified that he "had no quarrel with Mr. Rainwater's work." Fallon testified what in the course of such reports Davis stated that others were "not doing so well." However, Fallon could not recall the names of any employees adversely reported on other than Bahn and Rainwater. It will be remembered that despite such alleged adverse reports Davis discussed with Bahn the possibility of a service truck job where his responsibilities would have been increased and be would have worked prac- tically without direct supervision. Respondent's answer avers that Balm's refusal to move to Dallas in order to accept this position was one reason for his discharge. Davis, however, testified that Bahn's chance of making good in the position was so slight that he would not have felt justified in advising Bahn to sell his home in Lancaster and move to Dallas. Respondent's answer declares that Bahn and Rainwater "were discharged on August 21, 1946, prior to Respondent's being notified or having any knowledge that there was a Union claiming to represent the employees." The record, however, makes clear that the Respondent was fully cognizant of the move to 17 Both Nash and Davis so testified 1S Davis' recollection was hazy as to the date when such discussion occurred He testified that he made such a report to Fallon "around a week" before Bahn and Rain- water were discharged Since Fallon was absent on his vacation from August 8 to August 20 , 1946 , this was manifestly impossible Davis further testified , "I don' t recall any exact time when I just specifically talked about them two with him [Fallon] " Fallon , however, testified that he discussed Bahn and Rainwater with Davis about 10 a. in on August 21, 1946. This testimony reads I told Mr Davis about the situation I had found upstairs and he said that was no news to him. He said "I told you we had troublemakers in that department." I said, "Who are they 7" He said, "Mr. Rainwater is the biggest troublemaker" I said , "Is there anyone e1se9" He said, "Balin is just about as bad." Davis testified that he went to Crockett , Tees, "ea'ly in the morning" that clay; Fallon that he spent 2 hours in his correspondence and therentter made a complete tour of the two buildings discussing conditions found with Foremen Scott , Cowan. and White There is obvious difficulty in correlating their testimony Equally trouble- some is the fact that Davis manifested no recollection of such it conference Fallon further testified that he made his decision to discharge Bahn and Rainwater before this discussion with Davis In this state of the record the undersigned has given no weight to Fallon's alleged conference with Davis on August 21, 1946. SUPER-COLD SOUTHWEST COMPANY 111 unionize the plant. Fallon's speech to the trainees on August 21, 1946, was a thinly veiled warning to these employees that their jobs would be insecure if they persisted in the endeavor. Twice on that day both before and after the discharges, in conversations with Word and Schmidt, Fallon declared that he was prepared to close the doors of Respondent's plant if the Union came in. That the underlying cause for the discharge was Bahn'S and Rainwater' s union activity was clearly stated by Service Manager Alvin H. Zenor to Taylor on an occasion shortly after the discharges when they were driving to a service call. As recorded in Taylor's testimony Zenor said: It is too bad that Rainwater and Bahn got mixed up in that mess just about the time they were getting ready to go out on service. They should have known they couldn't have gotten by with the Union there." Although Zenor denies that this conversation occurred, the undersigned accepts Taylor's testimony as correct. Taylor was an exact and careful witness who frequently admitted the truth of matters damaging to his own interests. As a leadman for some months he had close contact with Zenor and it is plausible that confidential conversations of the type quoted above might occur between them. Finally, conclusive proof that General Manager Fallon was cognizant of the movement toward union organization before the initial discharges occurred is found in credited testimony of Respondent's own witness, Foreman Scott, given under cross-examination.19 This testimony is recorded as follows : I Q. I will ask you to state whether or not it isn't a fact that . . . F. C. Fallon called you into his office, two or three days before Bahn and Rain- water were discharged and asked you if there was anybody soliciting for the Union. A. Yes, I believe Mr. Fallon did call me in there Q. And at that time you told him you didn't think they were? A. That's right. Since Fallon did not return from his vacation until August 20, 1946, and did not visit the plant until the following day, it is clear that he must have made this inquiry on August 21, 1946. After consideration of the complete record and of the demeanor of the wit- nesses involved, the undersigned concludes and finds that Bahn and Rainwater were summarily discharged when their leading part in the movement toward union organization became known to Respondent's General Manager Fallon. The discharge followed immediately upon the first Union meeting at which Balm had been elected joint chairman of the Union adherents . Fallon made the decision, as he testified, on his own initiative on the first day of his return after 2 weeks' absence. Under these conditions the undersigned finds that the attacks on the work records of Bahn and Rainwater were afterthoughts brought forward as specious pretexts to justify discharges, which were, in reality, caused by the union membership and activity of Bahn and Rainwater. 2. James O. Calvin, Charles B. Vermillion, Charles A. Weaver, James A. Moore, and John W. Willis. Calvin, Vermillion, Weaver, Moore and Willis were discharged on August 28, 1946. Their service for the Respondent is indicated in the following table: "Fallon testified that he did not remember making this inquiry but "he could have done it." He placed the date as after August 22, 1946. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Approximate Date of hiring length of servzoe Calvin --------- March 28, 1946________________________ 5 months Vermillion----- August 12, 1946________________________ 21/2 weeks Weaver -------- January 9,1946________________________ 8 months Moore_________ - oyember2,1945______________________- 10 months Willis 20_______ April 1, 1946__________________________ 5 months All of these men except Weaver were G. I. trainees and carpenter's helpers- Weaver was a journeyman carpenter and received 871/2 cents an hour. Moore, presumably because of his longer service, was paid 75 cents an hour. The three others were paid the entrance rate of 65 cents an hour. All of these five employees, except Calvin, attended the first Union meeting and signed Union application cards on August 20, 1946. As stated above Moore was elected chairman, or spokesman of the group that night. Calvin signed an ap- plication card next day on the solicitation of Willis. Buttons carrying the letters "C. I. 0." were distributed either August 21 or 22 and each of the five, as the record clearly reflects, regularly wore such a button thereafter. This gave publicity throughout the plant to their membership due to a general roll call ordered by Fallon on the morning of August 22, 1946. All employees, including clerical work- ers, supervisors and officials were summoned to the third floor, immediately after the opening hour on that date. They were grouped in one space. Bownds called the roll of production employees in the order of their clock cards and other em- ployees from an alphabetical list. As the names were called employees answered "here" and moved to a designated space a considerable distance from the original group. All employees were present or accounted for. Fallon testified that he ordered this procedure because of a threat made by Schmidt in their telephone conversation the night before to the effect that "he would do all he could to stop the production in the plant." 21 Both Fallon and Bownds admitted that the pres- ence of employees could have been easily checked by inspection of the cards in the time clock racks and by observation of the six or seven office employees' Nevertheless Fallon insisted that the only reason for the roll call was to see whether or not people were out on strike. When asked to account for his presence and that of Meade, his assistant, he replied, "I am always where there is any- thing going on, if I can be; that was the reason I was there." He testified further that Meade's presence was for similar reasons Unrefuted and credited testimony by Calvin shows that his wearing it Union button definitely came to the attention of a supervisor. Calvin testified that his work attracted the attention of Foreman David Wolfe of the metal department who solicited him to transfer there from the carpenter shop On August '2. 1946, while attempting to induce Calvin to transfer, Wolfe noticed the Union button and said, "Throw that button away, it won't get you a hot dam thing." A Union meeting was called for the evening of August 27, 1946. It was an- nounced some days in advance and was the subject of considerable discussion about the plant. The assembly department on the third floor was experiencing 20 Willis did not appear as a witness. It was stated that he was in California. The facts as to his service were stipulated on the record by the parties 21 Schmidt denied that he made such a threat. The undersigned does not find it necessary to resolve this conflict of testimony. 22 Also available was an inter-communication system through which the employees present could have been checked SUPEII-COLD SOUTHWEST COMPANY 113 difficulty because of the fact that the floor was badly worn Heavy cabinets in course of being fitted with refrigeration apparatus were rolled along an assembly line on dollies. T7psuccessful,efforts had been made to purchase flooring. On August 27, 1946, Robert Fallon, son of General Manager Fallon, who was pur- chasing agent for the Respondent, found that he could purchase the necessary flooring. It was accordingly arranged that Foreman A. F. Cowan of the assembly department should clear the floor space before the close of operations that day and that Foreman Henry White should assemble an overtime crew to lay the floor that night The plan was to finish the operation so that the assembly line could continue next day with the minimum of inteiiuption The record presents a congeries of conflicts of testimony and contradictions as to simple matters of tact which renders judgment difficult. White testified that near 5 p in., on August 27, 1946, as the employees in the carpenter shop were preparing to leave for the day, "I told them that I wanted every man that could drive a nail to be back there at 6: 00 o'clock." It was White's further testi- mony that he gave no other order and had not requested the employees individually to work overtime However, there were admitted exceptions in the case of his brother Frank White and employee Herbert Voight who was working with him on an outside job Frank White came in about 4 o'clock that afternoon and, as Foreman White testified, agreed to work overtime and to notify Voight of the plan to lay the floor that pight. Moreover, employee August J. Cobern, who assisted in laying the floor, testified without contradiction and the undersigned credits his testimony, that White asked him to work overtime about 4 o'clock that afternoon. He testified further that he overheard Coy B. Fraizer excuse himself from working on the ground that his brother was coming home from service in the army. Foreman White testified that Fraizer was excused from overtime work and confirmed this statement. Further, Weaver and Vermillion agreed in testify- ing, and the undersigned credits their statements, that Foreman White asked them to work overtime at about 4: 00 p. in. August 27, 1946. Weaver then told White that he could not work overtime on the evening of either August 27 or August 28. Vermillion stated in answer to White's request, "Well, I don't know." The un- dersigned finds on the basis of this testimony, and of the entire record, that White was in error in testifying that his order at 5 p. in. was his only announcement of the projected overtime work. White's testimony, in general, was inexact, confused and, at times, contradic- tory. He testified that the space refloored was approximately 20 by 30 feet. Cobern estimated the space in his testimony at 35 to 40 feet by 12 feet. Cowan testified that he had measured the new floor on the day preceeding his testimony and found it to be 40 feet by 12 feet in area. The difference in area between this exact measurement and Foreman White's estimate is over 100 square feet Such discrepancies by a carpenter of over 20 years' experience, in a job on which he had worked and concerning a floor in a building with whose dimensions he was familiar, casts discredit on the exactitude of his testimony generally. White ordered 500 board feet of 4-inch flooring. The invoice shows that 535 feet were delivered. His testimony proceeded on the assumption that only the flooring bought was used until his attention was called to the fact that 535 board feet will cover, with allowances for matching and a minimum of waste, considerably less than 500 feet of floor. White then testified that about 100 board feet in stock were taken to the third floor and laid next morning. Again, he testified that he had decided in the afternoon of August 27 that he would need the entire crew of 21 carpenters to tear up and relay the floor in an 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evening. When he was questioned, under cross-examination, as to the possibility of using so many men in the limited space to be covered, he reduced his estimate to 12 or 15 men. His credited testimony shows, however, that of 21 members of his crew one was on vacation, 2 were unavailable since the terms of their hiring provided that they would not work overtime, and that he had excused 8 others without question or protest23 This reduced the possible crew to 10. Of these, 5 men worked 24 and the 5 under discussion here failed to report. While White stated that the job was unfinished when the overtime employees quit about 10 or 11 p. in., he did not give an accurate estimate of the space not finished that evening. Cobern testified specifically that the employees quit work about 10:00 p. in. and that the floor had been finished except one strip 13/4 inches at one end and 2% inches at the other.23 Cowan stated that some 18 to 20 inches in width of the floor was not laid on the evening of August 27, and that 2 carpenters worked there most of the next forenoon. White, however, testified that employee Wiggins completed the job in a couple of hours next day. Furthermore, White testified under direct examination that he had no knowledge that the 5 employees discharged were members of the Union or any union. Under cross-examination he admitted that he had seen each of them wear a Union button. Because of these discrepancies in White's testimony, and others discussed in detail below, the undersigned has not credited him unless his statements were corroborated and confirmed by other credible witnesses. After starting the five employees who reported to work on the flooring job, White called Fallon and reported that he had a short crew and doubted that he could finish the job that night. He suggested that Fallon come to the plant. Fallon drove to the plant in his automobile and picked up Bownds on the way. White's testimony as to what then transpired is recorded as follows: I told him I wasn't going to get it through that night, I didn't have enough men. I wanted to talk to him about the other men that hadn't showed up. * * * * * * I told him I thought we ought to fire them. If I had to run the shop I had to have discipline down in the shop, or I couldn't run the shop no other way.2° Fallon testified that when he arrived White stated that he could not finish the flooring that night; that he then told White to do the best he could and 23 It was Foreman White's testimony that Voight told Frank White he had promised to help his brother move. Foreman White accepted that excuse . William Bankston stated that his wife was sick ; Coy B . Fraizer stated that his brother was returning from Army service ; Otto Williams that he had been working on a church and desired to finish the job that night ; L A Roberts that he "wasn't feeling good" ; T. T Barnes that he lived out of town ; G. C. Stevenson that "he wasn 't feeling well and he didn't feel like working"; C. A Keel that "his wife was sick or something like that." In each case, as White testified, he told these employees , "Okay." J. 0 and C. R. Harwell were elderly men and it had been agreed when they were hired that they would not work overtime nor at night. 24 Willis Ficklin, James W. Wiggins, J. J. McKenzie , Frank White and August J. Cobern. Foreman White was also present and did an undetermined amount of work. 25 Coburn's testimony at this point reads : That was measured . We measured that that night in order to rip down a piece the next morning and send over these to be nailed down. 2° Bownds heard this discussion and testified as follows : Mr. White made the statement that several of the men he had told to come back to work, didn't report, didn't give him any excuse and he didn 't like it. He told Mr. Fallon he wanted him to do something about it. . . . wanted them fired. SUPER-COLD SOUTHWEST COMPANY 115 expressed surprise that he had been called to the plant to receive this information. Fallon's testimony as to what next transpired reads as follows : He (White) said, "That is not it. These men that didn't show up de- liberately flaunted my authority when I told them that they should work." He told me he told all the men that could drive a nail to come back that night and I said to him, "Well , you told them all to come back " and he said, "Yes, but there is some of them old men that never do come back, but I have been giving these young fellows all of the extra work and I expected them to back me up, to come back and help me. Those are the fellows that didn't come back." * * * * * * * "I can't run that department if you are going to let the men run it." * * * * * * 0 "Well," I said, "Henry we ought to think about this. Why don't we get the men in here tomorrow morning and talk to them?" "No sir," he said, "I have stood all I am going to stand. It's either me or them." At Bownds' suggestion Fallon called his attorney, stated the situation, and requested his advice. Fallon testified that he was advised, "If you can't fire them under those conditions, you might as well close the place up." White was then recalled and the decision reached to discharge the men. Bownds testified that White then, on Fallon's orders, pulled the cards of the five men and gave them to Bownds who figured the time and typed out the checks. A short time later Fallon, as Bownds testified, came to the office and signed the checks. Bownds then put them in his desk for safe-keeping. Fal- lon, however, testified very positively that he did not sign the checks until the next morning. When the five men reported for work next morning they found that their cards had been removed from the time-card rack. On application to White they were told, "I haven't got a thing to do with it. Don't tell me. Go see Mr. Fallon." o Calvin, Vermillion, Weaver, and Moore agreed in testifying that White on giving out their checks, asked them no questions and gave no reason for their discharge. As Calvin testified, when asked whether he made any explanation regarding his absence on the evening of the 27th, "I didn't have time, sir, I had only got in within 5 minutes before I had my check in my hand." ¢8 a+ This quotation is from Calvin's testimony. 28 Vermillion testified of his interview with White that "there was no comment between either one of us. . . . I just asked him if he had my check and he said, 'Yes,' and that was all." Weaver, shown by the record to be a man sparing in the use of words, testified as follows : Q. Did Mr. White say anything to you at the time he gave you your check? A. He never said a word. Q. Did you say anything to him? A. I didn't open my mouth. Moore, who accompanied Weaver, gave testimony similar in effect. It is recorded as follows : Q. What conversation, if any, did you have with Mr. Henry White? A. We asked him did we get paid off too, and he said, "You sure do." 829595-50-vol. 81-9 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD White, however, gave the following testimony regarding his conversation with Moore on the morning of August 28, as he gave him his pay check: Q. What did you say? A. I asked him why he wasn't down the night before. Q. What did he say? A. He said he had other business to attend to. Q. Why did you ask him, Mr. White, why he didn't show up. A. I asked him why he didn't give an excuse the night before White further gave practically identical testimony in turn relative to his con- tacts that morning with Weaver, Calvin, Vermillion, and Willis His further testimony reads : Q. Your testimony is that you asked each of these five persons the same questions, and they gave you identically the same answers, is that right? A. That is right. Q. Identically the same answers? A. That is right. The undersigned finds this testimony wholly incredible both on general grounds and after consideration of the widely various characteristics, vocab- ulary, temperament and education, as evidenced by the record, of the four com- plainants who appeared as witnesses. As stated above, the undersigned has not felt justified in putting reliance in White's unsupported testimony. Here four witnesses, found worthy of credence, directly refuted his testimony. Under those conditions the undersigned rejects this testimony of White and credits that of the four Board witnesses. After a period of indecision the five discharged employees determined to seek an explanation from Fallon. Weaver was occupied in packing his tools and was late in joining the group. Seemingly he took no active part in the subsequent happening in Fallon's office. On Fallon's invitation to enter the office Moore, in his capacity of Union chairman, made the initial inquiry as to the cause of the discharges. Fallon testified that he then stated that he preferred to have Fore- man White present. His further testimony, which is in accord with that of the other participants and is credited by the undersigned, reads : We didn't discuss anything further until Mr. White came When he came in, I said, "Now Henry these men want to know why they were dis- charged. We called you here because you are the man who demands their discharge." He said, "They know why they were discharged. They refused to work last night Besides most of these fellows have been loafing on the job." Then there was a bedlam broke loose. I don't know who said what after that. It ended with a little dark fellow [Calvin] shaking his fist in my face trying to pull his shirt off, and shouting, he wished he had me in a fox hole. As Fallon and the other witnesses testified, he expressed full willingness to meet Calvin in personal combat. Meade, who had summoned White, and Moore, restrained Calvin and escorted him from the office. Conclusions Respondent's answer avers that Moore, Vermillion, Weaver, Willis, and Cal- vin "were discharged for refusing to obey orders of their foreman, Henry White, SUPER-COLD SOUTHWEST COMPANY 117 and for refusing to report for overtime work on the evening of August 27, 1946, and making no explanation in connection with the same , and such discharges were made at the request of the foreman who was charged with maintaining discipline in his department ; and such conduct of the employees constituted a flagrant disregard of the authority of their foreman." Nothing in the record suggests that either of these employees had refused to obey any order of Foreman White other than his instruction given at about 5: 00 p. in. August 27, 1946, to return for overtime work, unspecified as to character or duration , at 6: 00 o'clock that evening. Each of the four complainants who ap- peared as Board witnesses testified positively that it was understood that over- time work was on a voluntary basis. Such understanding has support in this record in the unhesitating and uncritical manner in which White, as his own testimony clearly shows, accepted all reasons given on August 27 for not return- ing for the overtime work. It should be noted in this connection that the men excused were mainly the older and more skilled workmen who would have been most valuable in getting the flooring laid efficiently and expeditiously . Moreover, Calvin, as his testimony , confirmed by White, shows had on a previous occasion failed to keep a promise to return for overtime work and *had thereafter been excused on explanation, without penalty or reprimand . Weaver , as found above, had declined to work overtime when approached by White. His refusal was accepted without comment at the time. Vermillion also told White that he was not certain he could work . This fact did not protect him from summary dis- charge in his absence and without opportunity to explain his failure to report. In general it cannot be found that the order given by White at 5 p. m. August 27, 1946, was a legitimate order nor that failure to obey it was a "flagrant disre- gard of the authority of their foreman." Contracts of employment in the United States do not convey such plenary control of employees ' time nor require them to forego plans made for the use or enjoyment of their free time on such slight notice Nor yet do such contracts lodge in the foremen full discretion to de- termine whether the work planned for overtime is of such importance that employees perforce must devote their free time to its performance . This is a question customarily determined freely between employer and employee. This determination is in effect a new contract for a limited and mutually fixed period The contention by the Respondent that the employees could be legitimately ordered to perform overtime work at any time and for any period detracts from its affirmative defense. It does not accord with the readiness with which White accepted excuses proffered by eight of his best qualified employees. The testimony of the four complainants definitely proves that there had been "no meeting of minds" to execute such a contract of employment. The attempt to bolster its case by casting discredit on the word record of these complainants, is found by the undersigned to be a further weakness in its defense. It is clear from the testimony of Bownds, White, and Fallon that the decision to discharge these five employees was made on the evening of -August 27, 1940, solely on the basis of the failure to report for overtime that night . Their time was computed, their checks written and signed and the discharge fully consum- mated that evening. Nothing in the record suggests that consideration was given to their work record. One of the employees discharged, Vermillion, had been employed less than 3 weeks. His capacity was still undetermined. White testi- lied that Weaver had built a cabinet too short on one occasion not del;nite]y fixed It is clear that this mistake had been condoned. He testified also that "Moore had been a pretty fair hand, and Calvin had been a pretty fair hand. The others 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD weren't so hot." No specific evidence was adduced to support the general indictment. Nor can any support be found in the record for the statement in the answer that the five employees discharged "made no explanation." The discharges were made without giving opportunity for such an explanation. White's testimony that he asked each of them next morning why they had not appeared and in each case was told they had other business, as found above, is incredible and refuted by the testimony of four credible witnesses. Its effect is only to cast discredit on the Respondent's attempted defense. The five men were all Union adherents and customarily wore Union buttons while at work. Moore was chairman and spokesman for Union employees. Fallon admitted that he had seen him wear a Union button. It is proven that the Respondent had knowledge of such Union connection. The record as a whole reflects that Respondent was sternly opposed to the entry of the Union into its plant. The Union meeting called for the evening of August 27 had been freely discussed in the plant for several days preceding. It is a justified inference made by the undersigned that Respondent and its supervisors were informed of that meeting. Each of the five employees discharged attended the meeting. It cannot be successfully argued that attendance on such a meeting was a less worthy excuse than some offered by other employees and accepted without protest by Foreman White. In the anti-Union atmosphere of Respondent's plant it is a necessary conclusion that such attendance and a desire to discourage Union activities had a substantial part in the decision to discharge five employees who prior to the advent of the Union had been acceptable employees That the dis- charge had the effect of discouraging membership in the Union is shown by the fact that the practice of wearing Union buttons in the plant practically ceased thereafter. After consideration of the entire record and the demeanor of the witnesses involved, the undersigned concludes and finds that James A. Calvin, Charles B. Vermillion, Charles A. Weaver, James A. Moore, and John W. Willis were discharged on August 28, 1946, 1 week after the discriminatory discharge of Bahn and Rainwater, because of their Union membership and activity. C. R. Taylor was hired by the Respondent in late July 1944 as a helper or general worker in the mechanical department. His entering wage was 65 cents an hour. After a short period he was assigned work in reconditioning and rebuilding of compressors. . He had had prior experience for 35 years with compressors, pumps and steam engines in the oil fields. In January 1945 and for a period of about 6 months he was given a bonus of $10.10 a week. This was 101/_, hours overtime pay at 65 cents an hour counted as time and a half. After July 15, 1945, Taylor received 87 cents an hour. For a period of about 4 months preceding August 5, 1946, he acted as lead man in the mechanical shop. Fore- man Smith quit at the beginning of this period and at its close Foreman Floyd Scott returned from war service to assume this foremanship. As lead man Taylor had no authority to discipline, hire or discharge employees. As he described his duties they were "to help the new men and instruct them as to what to do and how to do it, and help them with their work." The record contains no criticisms of Taylor's performance as a workman during the period of 2 years and 3 months from late July 1944 to October 22, 1946. Taylor had been given the wrong address for the initial Union meeting on August 20, 1946, and was not in attendance. However, he signed an application card on the solicitation of Rainwater and Bahn on the morning of August 21. He made no secret of his Union membership and sympathies. That his mem- bership was known to the Respondent is shown by several contacts he had with SUPER-COLD SOUTHWEST COMPANY 119 supervisory employees or officials. A week or two after the discharge of Bahn and Rainwater, Bob Fallon, as Taylor testified, asked him what he thought of the Union and if the employees would organize. Taylor replied that he believed they would and added, "Bob, I have been a Union man all my life, I first joined the Union in 1905, the Oil and Gas Well Workers." Taylor further testified that he told Fallon he had "belonged to some Union practically all [his] life, in all [his] public work." Taylor also testified about an incident occurring on the day of the Board election, October 22, 1946, as follows : I had started from the shop over to the carpenter shop, down the alley. Bob [Fallon], Mr. Zenor and one other party, I don't remember who it was, was standing out at the back of the house conversing about the election. I don't know just what it was. They had set up a booth inside, and Bob hollered out at me as I got a few feet from him, walked up and said, "How do you think it will go this evening?" He said, "Do you believe the Union will win?" I says, "I know they are strong for it in the shop, at least, I think so, and from what I bear they are pretty strong for the Union in the carpenter shop, and I believe it will go over." Although Fallon gave a qualified denial of these incidents, saying, inter alia, "I remember having no conversation with Mr. Taylor or any other employee of the company about the Union or any other organization" and "I recall no conversa- tion of that type at all," the undersigned credits this detailed and specific testi- mony of Taylor and rejects Fallon's denial. Taylor further testified that at the time the election notice was posted, he overheard Foreman Scott tell a group of employees that "anyone was foolish to vote for it [the Union], that if they did, if the election went in favor of the Union, that they would all have their salaries cut back to apprentice wages and have to work for 6 months before they can expect another raise of any kind, be eligible for one." Taylor replied to Scott, that he "thought that he was wrong about that ; that there would be no reduction made ; that if the Union went over they were organized, the contract would be drawn between the company and the Union and a regular scale set for the different kinds of work." Scott denied that this incident took place but after considering the demeanor of these witnesses, certain contradictions in Scott's testimony set forth below, and damaging admis- sions made by him, the undersigned rejects his denial and finds that this incident, stated by Taylor with convincing specificity and unshaken under searching cross- examination, occurred substantially as set forth in his testimony. It will be remembered that in discussing the discharge of Bahn and Rainwater, an incident in which Zenor discussed the matter with Taylor, was set forth above. Taylor gave testimony regarding another incident occurring sometime between August 21 and October 22, 1946, and recorded as follows : Zenor called me aside and asked me if I knew how the boys stood on the election of the shop. I told him I thought they were pretty well solid for the Union. Well, he said, "You know them all and the boys all like you. Why don't you go up and feel them out and see how they are going, and explain to them that if it goes Union, that the old man will close the dern thing down and won't any of us have any job left." Taylor explained the designation "old man" as a familiar reference to General Manager Fallon. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When called as Respondent's witness and questioned regarding the testimony quoted, Zenor said, "I did not make that statement." After considering the demeanor of Taylor and Zenor as witnesses and the setting of this testimony in the entire record the undersigned has rejected Zenor's denial and credits Taylor's testimony. Finally, compelling evidence that Taylor's union sympathies and activities had attracted the attention of Respondent's supervisors is contained in testimony given in cross-examination by Foreman Scott as Respondent's witness. It is recorded as follows. Q. Mr. Scott, did you have any conversation with Mr. Henry White about Taylor, a day or two before he was discharged? A. Mr. White told me-I don't recall the exact date, that he [Taylor] was down in his shop soliciting. Q. Soliciting for the Union? A. That's right. This uneon troverted testimony is credited by the undersigned. The incidents preceding Taylor's discharge occurred in the 4 days, October 21 to October 24, 1946. A used domestic refrigerator, described as a 6-foot Norge, had been sold on October 21 and was to be reconditioned for immediate delivery. The following account, unless otherwise indicated, follows Taylor's testimony, which the undersigned credits. On the 21st Taylor tore down the refrigerating unit, tested it for leaks, washed the parts with carbon tetrachloride, reassembled the unit, replacing all gaskets, and refilled it with sulphur dioxide gas. That night the refrigerator was given a test run. It was found that it did not freeze ice cubes efficiently. On October 22, Scott and employee Harden,29 attempted adjustments. They added gas. Finding that this did not increase the freezing action, they attempted to "pump it down," i. e., remove the gas. In so doing they had difficulty. As Taylor testified, I passed by when they were still working on it, and I said, "What is the matter ; won't it pump down?" It seemed it took an unusually long time to pump what little water was in it out. He [Scott] said, "I think we got a little shot of water," which had happened. Well, I found the water in it when I tore it down the next day. About 3: 00 p. m. on the 22nd Scott instructed Taylor to change the unit over from sulphur dioxide gas to methyl chloride gas. This was an operation with which Taylor was fully familiar. It involved, as his testimony reads, You have to take out all the machinery, clean it thoroughly to change those refrigerators, wash it out with carbon tet., see that it is dry. We also change out the evaporator and put in a different system of expansion. That afternoon Taylor pumped down the unit. The procedure is to attach a quarter-inch copper line to the suction valve and pump out the sulphur dioxide gas by running the compressor. Since this gas has a bad odor and is acid in character it is customary to pump it into a container full of caustic soda, or lye water. This deodorizes and neutralizes the gas. Taylor finished the operation at 5: 00 o'clock quitting time that night. A vacuum gauge attached to the unit showed that he had approximately a 26- or 28-inch vacuum.30 Taylor closed the ' This name is variously misspelled on the record as Hardy, Harding , and Hardin. 30 Taylor was uncertain in his remembrance of this figure. It seems improbable that the used compressor could pull more than a 26-inch vacuum. Scott agreed to this figure in his testimony. SUPER-COLD SOUTHWEST COMPANY 121 suction valve while the motor was still running Having tested the unit for leaks on the preceding day, he had confidence that it would hold. He removed the copper line from the caustic solution but did not detach it from the unit since the wrench needed was not at hand On the next morning, October 23, he found the copper line had been pushed down in the lye water container. Taylor consistently testified that he could not be certain whether it was in the water or not. How- ever, his testimony and that of Scott indicates that the reading on the vacuum gauge had not changed during the night. Taylor was principally engaged during the day in changing the evaporator. This change was necessitated by the characteristics of the methyl chloride gas to be installed. In the afternoon, however, about 3: 00 p. m. he took out the compressor and found the pistons "frozen." On investigation he found water in considerable amount in the compressor body. At this point Taylor's testimony is recorded as follows : I called Mr. Scott's attention to it. I called his attention to the fact that I had water in it, when I first discovered it, in the coils, in the condensor coils, and he had stated the day before that he thought he got water in it when he pumped it down. * * * * * * That is why he was pumping so long trying to get it out. He made the remark, "No wonder I couldn't get anything out of it," after he started it up. Well, when he discovered the compressor was stuck, he said, "We won't have time to try to loosen it up; we will get another compressor and replace that one." There was no complaint of any kind made at the time in regard to it being full of water, stuck up. No mention was made until the next morn- ing when I was called down to Mr. Fallon's office. On application to the supply room, on Scott's instructions, for a new compressor, Taylor found none available. He then found a used unit, the compressor from which would serve, and began operations to install this in the unit. He was so occupied next morning shortly after the opening hour when he was summoned to Fallon's office. Scott and Bownds were also present. All four of these indi- viduals were called as witnesses. There is no substantial variance in their accounts of what then transpired. Fallon asked Taylor to explain the condition of the compressor. He stated matters as set forth above, stating further that the vacuum gauge showed no leakage during the night. On inquiry Scott stated that he found the copper line in the lye water that morning and that the gauge showed 26 or 28 inches of vacuum. Fallon then suggested that compressor valves sometimes leak and called attention to the fact that compressor units were scarce and hard to obtain. Taylor agreed that these matters had been covered in memoranda which had come to his attention. Fallon then directed Taylor to return to his work. Scott testified under direct examination that he made a written report to General Manager Fallon on the condition of the compressor unit and Taylor's responsibility for the damage and that Fallon's action was based on this report. Under cross-examination he presented a divergent story. His pertinent testimony is recorded as follows : Mr. Taylor went to the stock room and I went ahead and laid out my work and then Mr. Fallon's son came up to me and asked me the extent of the compressor being ruined. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. The next thing that happened was that Bob Fallon came up, is that right? A. That's right. Q. What did Bob Fallon say to you? A. He came up there and wanted to know what had happened to the compressor, what was wrong with it, why it couldn't be used. Q. What did you tell him? A. I went over and showed it to him. A. Well, I told him that the case was evacuated and had set moisture back into it, caustic soda water. Q. Is that all you said? A. No. I told him Taylor was working on the job. He asked me who was doing it and I told him, I said, "Taylor." Scott further testified that Taylor's discharge was announced to him by Bownds about 4: 30 in the afternoon. As he testified, Bownds said, "You can tell Mr. Taylor to turn in all his company equipment. His service here-that lie was quitting or was being let go." Taylor testified, however, that he had worked only a few minutes after his interview in Fallon's office when Scott came back and after a short interval came to Taylor and said, "Jimmy, Bob [Fallon] said to check your tools in your tool box and come down and get your check." He further testified that he was paid for 1 hour of work on the morning of his discharge, October 24, 1946. This .accords with the testimony of General Manager Fallon that he made the decision to let Taylor go immediately after he had interviewed him. The undersigned finds significance in the obvious attempt of Respondent's witnesses, General Manager Fallon, Office Manager Bownds and Foreman Scott to conceal the fact that Bob Fallon had a leading role in the events preceding Taylor's discharge. Bob Fallon appeared as a witness for the Respondent and denied, as stated above, that he had had certain conversation with Taylor pertaining to the Union. He made no mention of his participation in the events preceding Taylor's discharge. Bownds testified that he learned of the damage to the com- pressor through the stockroom clerk and that on going to Fallon's office to discuss the matter he found him considering a written report from Scott. Bownds did not mention Bob Fallon in this connection. Bownds' testimony as to events following the interview in Fallon's office reads as follows : Well, Mr. Scott then left the office and Mr. Fallon asked me, he says, "What do you think we ought to do," and I said, "Well, that certainly looks like he has been destroying property, carelessness," and he said, "Well, I believe we will make up his check." So, I pulled his card and went upstairs and wrote out his check. In this state of the record the undersigned finds the testimony of Respondent's witnesses largely discredited. Manifestly a direct attempt was made to conceal the fact that Bob Fallon was active in the events immediately preceding Taylor's discharge." It will be remembered that, as set forth above, Bob Fallon had manifested interest in Taylor's Union opinion and activities. He was well informed of Taylor's Union connections. 31 The undersigned notes that Bob Fallon and Bownds shared an office. SUPER-COLD SOUTHWEST COMPANY 123 Conclusions Respondent's answer stated that "C. R. Taylor was discharged for inefficiency and because of his having been careless in the handling of certain equipment which resulted in a total loss of the company's equipment and damages to the company in the sum of $105.00." Since nothing in the record supports the allega- tion of inefficiency, while Taylor 's considerable period of service, his substantial wage increase and his selection to act as lead man in a period closing only 21/2 months before his discharge , sufficiently disproves this accusation , the undersigned finds no merit in this contention of the Respondent. Bownds, Scott, and Fallon asserted in their testimony that Taylor was guilty of carelessness in handling the refrigeration unit on October 22 and 23, 1946 . An excerpt from Fallon 's pertinent testimony states that he made the decision to discharge Taylor because of the "fact that he had carelessly , if not maliciously, destroyed company equipment." The record, however, does not sustain this contention . Bownds' testimony carries the implication that the compressor was valueless . It developed, however, that his knowledge of its actual condition was confined to the statement that "Mr. Taylor said the body was no good, and would have to be changed out." Scott testified under direct examination as Respondent 's witness as follows : Q Were you there when it [the compressor ] was taken apart? A. I was. * * * * * * * Q. What was the condition of it then? A. It had water in it. Q. Was the equipment used after that? A. No, sir. Q. What was done with it? A. It was sold for junk. Scott further testified that the compresser was "ruined " by the lye water which it contained. Under cross-examination , however, Scott gave contradictory testimony. He was asked about possible procedure to free "frozen" compressors and restore them to use and whether such an attempt had been made on the compressor which figured in Taylor 's discharge. His subsequent testimony reads as follows : A. We never did get this one unfroze. We had to send it to the shop to get it unfroze. Q. Was it unfrozen in the shop? A. I don't know. The Eureka Manufacturing Company does that. Q. The compressor you took off the machine that Taylor was working on, you sent out to the Eureka Manufacturing Company? A. That's right. Q. What did they do to it? A. I don't know what they done to it. They done all the work on Universal bodies because we didn't have any parts there. Fallon testified regarding the compressor as follows : I found that the valve plates were badly corroded , and the flapper balance, that covered the little holes the valves made, were practically gone, and that the cylinders were stuck tightly to the cylinder walls. I looked where they took the base off and the entire shell , where the oil had been on there was corroded, like a piece of heavy sandpaper all over. The body was useless. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We left it around there for quite a little while, and finally threw it in the junk. Despite the fact that such disagreement among Respondent's witnesses make laboring of these matters a work of supererogation, the undersigned is con- strained to point out that Scott, if his testimony is to be credited, had spent a considerable time working with Taylor on the compressor. His significant testimony reads as follows : We had taken the compressor off and put it over on a bench, trying to turn the fly wheel, and whenever we couldn't turn the fly wheel, we turned it bottom-side upwards and removed the bottom base, around the bottom, so we could look into the eccentrics in it. Q. Well how long did you continue working on it or examining it after Taylor walked off. A. Oh, I would say ten or fifteen minutes. After we examined it, we taken the base off of it, why then we found the water in it, we couldn't turn it, then. We turned it over and taken the head and valve plates off of it. After this intimate and extended examination, it will be noted that Scott con- sidered the compressor worthy of shipment to a company for restorative treatment. Testimony of Respondent's witnesses, as to the value of equipment damaged, presents similar infirmities. Bownds, who testified that he was directly re- sponsible for the storeroom stock, stated the retail value in October 1946 of the entire refrigeration unit at from $125 to $135. Only the compressor body, as he testified, could not be used. The remaining equipment lie valued at $55. On this basis the total damage, at a maximum, was $80 Fallon was asked to "explain somewhat exactly what items go into that $105" alleged in Respondent's answer to represent the damage to equipment. He replied, Roughly, the body was worth about $55.00 replacement value of all parts of the body. What else now9 Q. What else makes up the $105 00? A. Well, the receiver, which was also a loss, was worth, as I recall, about fifteen or eighteen dollars, with the valves and everything possibly twenty dollars. Then the condenser part which also had to be thrown away, was worth, I imagine, you see there are valves and stuff on that which go into the make up, and that is what I understood made up the expense. After considering the full record the undersigned is not convinced either that the compressor body was ruined through carelessness on Taylor's part or that the Respondent's testimony proves damage from any cause to the extent of $105.0a as alleged. These allegations as to the reason for the discharge of an employee after 2 years and 3 months of entirely acceptable service do not carry conviction. Rather the undersigned finds the cause for Taylor's discharge in his persistence in union activities after the previous discharge of seven Union adherents. Just as Balm's and Rainwater's discharge followed immediately on the first Union meeting and that of five employees in the carpenter shop occurred on the next day after the second Union meeting, so Taylor's discharge was coincident with the renewed union activities associated with the Board election on October 22, 1946. His union sympathies had been manifested in conversations with several of Respondent's supervisors and officials Just before his discharge Foreman White had reported to Scott, Taylor's foreman, that Taylor had been soliciting for the Union in the carpenter shop. Thereafter a pretext for his discharge was SUPER-COLD SOUTHWEST COMPANY 125 found in the alleged damage to equipment. It is inherently incredible that a capable, careful and responsible employee throughout over 2 years of service should suddenly "carelessly if not maliciously" damage equipment. He must be expected to continue faithful in the performance of his duties as he continued steadfast in his allegiance to the Union. In such union membership and activity lies the only plausible reason for Taylor's discharge. After consideration of the full record the undersigned concludes and finds that C. R. Taylor was discrimina- torily discharged for that reason. The undersigned finds that by the discharge of Walter H Bahn and Lee R. Rainwater on August 21, 1946; of James A. Calvin, Charles B. Vermillion, Charles A. Weaver, James A. Moore, and John W. Willis on August 28, 1946, and of C. R. Taylor on October 24, 1946, and the subsequent refusal to reinstate them, the Respondent discriminated in regard to their hire and tenure of employment and the terms and conditions of their employment and discouraged membership in a labor union. By these discharges, and by the acts and statements of General Manager Fallon, Service Manager Zenor, Purchasing Agent Robert Fallon, Foremen Wolfe and Scott, as set forth above, the Respondent interfered with, restrained, and coerced its employees in the exercise of 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 the operations of Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and 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 take certain affirmative action found necessary to effectuate the policies of the Act. It has been found that the Respondent discharged Walter H. Bahn and Lee R. Rainwater on August 21, 1946, James A Calvin, Charles B. Vermillion, Charles A. Weaver, James R. Moore, and John W. Willis on August 28, 1946, and C. R. Taylor on October 24, 1946, and thereafter refused to reinstate them because of their union activities, thus unlawfully discriminating in regard to the hire and tenure of their employment and the terms and conditions of their employment. It will be recommended that the Respondent be ordered to offer them immediate and full reinstatement to their former or substantially equivalent positions 12 without prejudice to their seniority and other rights and privileges. It will be further recommended that the Respondent make them whole for any loss of pay they may have suffered by reason of the Respondent's discriminatory action, by payment to them of a sum of money equal to the amount they normally would have earned as wages from the dates of their respective discriminatory dis- charges to the date of the Respondent's offer of reinstatement less their net earnings during said period.°' n In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position." See Matter of The Chase National Bank of the Guy of New York, San Juan, Puerto Rico Branch, 65 N. L. R. B. 827. as Batter of Crossett Lumber Co., 8 N. L R. B. 440, 497-498 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's discharge of the employees named above for their participation in union activity constitutes an offense which strikes at the heart of the Act .m The undersigned is convinced that such action is potentially related to the unfair labor practices proscribed by the Act, and that danger of their commission in the future is to be anticipated from the Respondent's proven past offenses. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, the undersigned will recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights of employees which are protected by the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Retail, Wholesale & Department Store Union , affiliated with the Congress of Industrial Organizations , is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of Walter H Balm, Lee R. Rainwater, James A. Calvin , Charles B. Vermillion , Charles A Weaver, James R. Moore, John W. Willis, and C. R. Taylor , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3 By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. RECOMMENDATIONS 1. On the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent, Super-Cold Southwest Company, its officers, agents, successors, officials, and assigns shall: 1. Cease and desist from: (a) Discouraging membership in Retail, Wholesale & Department Store Union, CIO, or any other labor organization, by discriminating in regard to the hire and tenure of employment or any terms or conditions of employment of its employees ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form, join, or assist Retail, Wholesale & Department Store Union, CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Offer to Walter H. Bahn, Lee R. Rainwater, James A. Calvin, Charles B. Vermillion, Charles A. Weaver, James R. Moore, John W. Willis, and C. R. Taylor, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; 31 N. L. R. B. v. Entwistle Manufacturing Co., 120 F. ( 2d) 532, 536 ( C. C. A. 4). SUPER-COLD SOUTHWEST COMPANY 127 (b) Make whole those employees for any loss of pay they may have suffered by reason of Respondent's discriminatory action against them ; (c) Post at its plant in Dallas , Texas, copies of the notice attached hereto marked "Appendix A." Copies of said notice , to be furnished by the Regional Director for the Sixteenth Region, after being signed by the Respondent 's repre- sentative, shall be posted immediately by the Respondent upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material ; (d) Notify the Regional Director for the Sixteenth 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 herewith. It is further recommended that unless on or before ten (10 ) days from the date of the receipt of this Intermediate Report, the Respondent notifies the 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 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty ( 20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ( including rulings upon all motions or objections ) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 , should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations , be adopted by the Board and become its findings, conclusions and order, and all objections and exceptions thereto shall be deemed waived for all purposes. CHARI.Es E . P St8ONS, Trial Examiner. Dated September 15, 1947. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist RETAIL, WHOLESALE & DEPARTMENT STORE UNION, 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 re- instatement 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. Walter A. Bahn Charles A. Weaver Lee R. Rainwater James A. Moore James A. Calvin John W. Willis Charles B. Vermillion C. R. Taylor 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. SUPER-COLD SOUTHWEST COMPANY, Employer. Dated ------------------------ By ----- --------------------------- (Representative ) ( Title) 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.