Gluck Bros., Inc.

In the Matter of GLUCK BROS., INC. and UPHOLSTERERS INTERNATIONAL UNION OF NORTH AMERICA, A. F. L. Case No. 10-C-2267.-Decided January 28, 19149 DECISION AND ORDER On September 13, 1948, Trial Examiner Louis Plost issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recommended dismissal of these allegations of the complaint. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members.* The Respondent's request for oral argument before the Board is denied, as the issues and the contentions of the parties are adequately set forth in the record and in the brief filed with the Board by the Respondent. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and supporting brief, and the entire record in the case, and hereby adopts the findings,' con- clusions,2 and recommendations of the Trial Examiner. *Chairman Herzog and Members Reynolds and Gray. ' The Trial Examiner incorrectly stated that, during the year ending January 1, 1948, the Respondent purchased raw materials valued in excess of $10,000 and manufactured and sold finished products valued in excess of $10,000. The record indicates, and we find, that the Respondent's purchases and sales during this period were each in excess of $100,000. 2 The Respondent contended that it discharged John I Smith because of excessive absenteeism and violation of its rule that an employee is subject to discharge , if absent for 3 days without permission or proper excuse made before the 3 days have Plans-d The Trial Examiner found that Smith did not violate this rule, as Smith's sister had given Si N. L. R. B., No. 62. 351 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Gluck Bros., Inc., Morristown, Tennessee, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Discouraging membership in Upholsterers International Union of North America, A. F. L., or in any other labor organization of its employees, by discharging or refusing to reinstate any of its em- ployees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Upholsterers International Union of North America, A. F. L., 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, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed by Section 7 thereof. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer Virgil Rednower and Willie F. Long immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; 3 (b) Make whole Virgil Rednower, Willie F. Long, John I. Smith, and Thomas Atkins for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the periods from the date of discrimination : (1) to the date of the Respondent's offer of rein- statement, in the cases of Virgil Rednower and Willie F. Long; and (2) to the dates of employment elsewhere, in the cases of John I. Smith and Thomas Atkins ,4 less their net earnings during said periods; the Respondent timely notice of his illness. In its brief to the Board, the Respondent in effect concedes that this finding is supported by the record 8 The other discriminatorily discharged employees, John I. Smith and Thomas Atkins, declared at the hearing that they did not desire reinstatement. 4 John I. Smith and Thomas Atkins testified that they had secured employment elsewhere after their discharge by the Respondent and at that time had determined that they would GLUCK BROS., INC. 353 (c) Post at its plant in Morristown, Tennessee, copies of the notice attached to this Order and marked "Appendix A." 5 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and main- tained 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 the said notices are not altered, defaced, or covered by other material; (d) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that in all other respects the complaint herein be, and it hereby is, dismissed. 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 the right to self-organization, to form labor organizations, to join or assist UPHOLSTERERS IN- TERNATIONAL UNION OF NORTH AMERICA, A. F. L., or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed by Section 7 thereof. WE WILL OFFER to Virgil Rednower and Willie F. Long imme- diate 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. not return to the Respondent' s employ. Accordingly, we are directing back pay in the case of these two discriminatorily discharged employees only to the dates when they secured employment with other employers . In the case of Smith, his new employment started on July 17 , 1947. Atkins testified that his new employment began on or about June 10, 1947. ' In the event that this Order is enforced by decree of a United States 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." 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL MAKE John I. Smith and Thomas Atkins whole for any loss of pay suffered by them as a result of the discrimination. All our employees are free to become or remain members of the above-named union, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of mem- bership in or activity on behalf of any such labor organization. GLUCB: BROS., INC., Employer. Dated----------------------- By---------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Morgan C. Stanford, Esq., for the General Counsel. McCanless & Taylor, of Morristown, Tenn., by Earnest R. Taylor, Esq., for the Respondent. Poole, Pearce & Hall, of Atlanta, Ga., by Warren E. Hall, Jr., Esq., for the Union. STATEMENT OF THE CASE Upon a second amended charge filed February 24, 1948, by Upholsterers International Union of North America, A. F. L., hereinafter called the Union, the General Counsel of the National Labor Relations Board; by the Regional Director of the Tenth Region (Atlanta, Georgia), issued a complaint dated March 23, 1948, against Gluck Bros. Inc., of Morristown, Tennessee, hereinafter called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 61 Stat. 136, herein called the Act? Copies of the charge and the complaint, accompanied by a notice of hearing, were duly served on the Respondent and the Union. With respect to the unfair labor practices the complaint alleges in substance: (a) that on certain days in January 1947, the Respondent disciiminatorily dis- charged certain of its employees and thereafter has refused to reinstate them ; (b) that from on or about January 1, 1947, the Respondent discouraged union activity among its employees and warned and threatened its employees against engaging in union activities; (c) that the Respondent published and circulated anti-union letters to its employees; 3 and (d) that by these acts the Respondent 1 The representative of the General Counsel presenting the case at the hearing is also referred to herein as the General Counsel, and the National Labor Relations Board, as the Board 2 Section 8 (a) (1) and ( 3) and Section 2 (6) and ( 7) are unchanged, reenacted counter- parts of Section 8 (1) and ( 3) and Section 2 (6) and ( 7) of 49 Stat. 449. 3 The parties stipulated at the hearing that under dates of March 25 , 26, 27, and 28, 1947 , the Respondent wrote and distributed certain letters to its employees . In these letters the Respondent inter alia advanced arguments against the unionization of its GLUCK BROS., INC. 355 has interfered with, restrained, and coerced its employees, and is interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, and more particularly has violated and is violating Section 8 (a) (1) and (3) thereof. On April 12, 1948, the Respondent filed its answer' in which it denied that it had engaged in any of the unfair labor practices alleged in the complaint, admitted that it had discharged the employees named in the complaint as having been discharged but averred that these employees were discharged for cause. Pursuant to notice, a hearing was held at Morristown, Tennessee, on May 24 to 27, inclusive, 1948, before Louis Plost, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. All the parties were represented by counsel. Full opportunity was afforded all the parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. The Respondent moved to amend its answer in order to correct an obvious clerical error. The undersigned granted the motion without objection. At the close of the hearing the undersigned granted without objection a motion by the General Counsel to conform the pleadings to the proof with respect to names, dates, spelling, and like matters. The parties waived oral argument. A date was set for the filing of briefs, proposed findings of fact, and conclusions of law or both with the undersigned. Thereafter the Respondent requested an extension of time for filing its brief which was granted. A brief has been received from the Respondent and has been considered by the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Gluck Bros., Inc., the Respondent herein, is a corporation organized under the laws of New York and licensed to do business in the State of Tennessee, where it is engaged in the manufacture, sale, and distribution of furniture at Morris- town, Tennessee. The Respondent in the course and conduct of its business operations at its Morristown plant during the year ending January 1, 1948, purchased raw mate- rials consisting principally of lumber, varnish, glue, and hardware, valued in excess of $10,000, approximately 85 percent of which was purchased outside of the State of Tennessee and shipped in interstate commerce to the Morristown plant. During the same period the Respondent manufactured and sold finished products, consisting principally of bedroom furniture and desks, valued in excess of $10,000, approximately 90 percent of which was sold and shipped to customers outside the State of Tennessee.' employees. Inasmuch as the letters on their face do not carry any threats of reprisal or force or promise of benefit as an inducement to influence the Respondent's employees in their actions with respect to the Union, the undersigned finds that distributing the letters above referred to, does not per se constitute a violation of the Act. The undersigned will therefore recommend that the complaint be dismissed insofar as it so alleges. 4 The answer was dated April 9, 1948 5 The Board has previously taken jurisdiction of the Respondent. See Matter of Gluck Bros., Inc., 45 N. L. R. B. 1154, 49 N L. R B. 724, 49 N. L. R. B. 1428, 52 N. L. It. B. 1144. 829595-50-vol. 81-24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED Upholsterers International Union of North America, affiliated with the Ameri- can Federation of Labor, is a labor organization admitting employees of the Re- spondent to membership. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion and the discriminatory discharges 1. The organization of the Union A. C. Terry, an organizer for the Union, testified without contradiction and with corroboration that in mid-December 1946, he began to organize the Respond- ent's employees for the Union. The first contact he made among the Respondent's employees was Virgil Rednower who signed an application for membership and took application cards for distribution among his fellow employees. Rednower in- terested employees Tom Atkins, John I. Smith, and Willie F. Long who also took cards for distribution. A meeting was held at Rednower's boarding house on Jan- uary 11, 1947, at which officers were elected. Among those elected to office were Rednower, elected vice president, Long, recording secretary, Smith and Atkins, trustees. Thereafter several organization meetings were held in Rednower's boarding house and in a local hotel. 2. The discriminatory discharges (a) John I. Smith John I Smith testified that he was first employed by the Respondent in 1942 and that with the exception of a 4-month period in 1943, this employment was unbroken until his discharge in January 1947. Smith suffers from asthma. Upon Smith's return to the Respondent's employ in 1943 he worked in the "rough room" where lumber is first processed and be- cause the sawdust was harmful to him he told H. R. McNeil, the then plant super- intendent, that he (Smith) "was going to quit" whereupon McNeil transferred him to the cabinet room, where Smith operated an electric screw driver, and later transferred him to the shipping department where Smith worked during his last 2 years with the Respondent. In the shipping department Smith set glass in frames and wrapped and labeled finished products for shipment. Smith had one helper, Andrew Harville ; however, Smith was charged with keeping the neces- sary records of glass set and time worked. Smith joined the Union in January and was elected one of the trustees at the Union's first meeting which was held January 11, 1947. Smith testified credibly that he openly solicited his fellow employees for union membership and that of the 16 employees in the shipping department he signed 12 into the Union. Smith testified that on January 14, he was ordered to work in the "rough end." He reported to the "rough end," and then told Superintendent McNeil that he "wasn't able to take it." McNeil told Smith to see Assistant Superinten- dent Clark, who according to Smith told him "son this is no hospital here." Smith worked at a planer all of the day, and on coming to work the next morn- ing reported to his own department. He was ordered to report to the "rough end" again. He protested the assignment to his foreman, but accepted the as- signment and worked at the planer all day. Smith further testified that during the (lay: GLUCK BROS., INC. 357 Well, I took a bad spell of bronchitis, getting overheated and I got sick. I went in that night, underclothes ° all wet and my chest closed up and I got sick. . . . Smith testified that he was too sick to go to work the next morning and that he was unable because of his sickness to return to work until January 217 On January 17, Smith asked his sister to telephone the Respondent's office and report his illness. Smith testified that he reported for work on January 21 and found that his card had been removed from the rack. Smith thereupon went to his foreman, Carl Shockley. Smith testified as follows : He [Shockley] knew that I was fired. "I guess you blame me with this," but he says, it is not my fault," so he gave me my release and my check. Smith also testified that Shockley then told him that "he told McNeil one time I was the best glass setter he ever had." The separation slip given to Smith gave the cause of his discharge "work un- satisfactory, too much time out." Smith testified that after receiving the sepa- ration slip he went to McNeil's office and: I said, "I want to thank you for the lie," or misrepresenting the release that he had gave me, "work unsatisfactory, too much time lost." I also pitched him a union card and said, "here's what you fired me for," and he says, "you ought not to work too openly with it." Smith testified without contradiction that since he had worked at glass setting, he had not previously been sent to do any work outside hie own department, and that his work had never been criticized Mrs. Reba Fleenor, Smith's sister, testified that at Smith's request she tele- phoned the Respondent's plant on January 17 and asked for Willie Moore. Mrs. Fleenor testified that she was unacquainted with Willie Moore but that someone answered the phone who stated that "this is Willie Moore" and to this person Fleenor delivered the message that Smith was ill. Fleenor was corroborated by Joe Daugherty who testified that Fleenor came into the office of the plant where she works, and of which he was the manager, and asked to use the telephone ; to "call Gluck Brothers" ; that he looked up the number for her and heard Fleenor ask for Moore. Daugherty was positive of the date being January 17, because a mistake had been made in the pay roll of that day and he was working on it. He testified : Q. . . . How do you fix it as being exactly on January 17, 1947? A. Because I had made this mistake on this particular payroll and hadn't been in a habit of doing it. Mrs. Willie Moore, called by the Respondent, testified that she kept the employee absentee record under the direction of McNeil ; that Smith was absent from work from January 16 through 22.x Moore testified on direct examination by the Respondent's attorney : Q. You recall whether or not during the period of those absences there, that is, from January 15 through the 22, if anyone called you to explain why John I. Smith was absent? ° All quotations from the transcript are exactly as they appear therein. No changes are made in punctuation and quotation marks used by the reporter. Y The Respondent's records show that Smith reported for work on January 22. 8 January 18 and 19, 1947, fell on Saturday and Sunday and were not working days. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. No, I cannot remember, I don't remember dates at all. I did know there was some telephone conversation but I don't remember dates. Q. You don't remember whether anyone called in during that period to state that Mr. Smith was ill. A. I could not say. On the entire record the undersigned credits Fleenor and finds that on January 17, 1947, Mrs. Reba Fleenor notified the Respondent by telephone that employee John I. Smith was unable to report for work because of illness. The undersigned infers that the telephone message was taken by Mrs. Willie Moore who then had charge of the Respondent's employee absentee record. The undersigned so finds. H. R. McNeil, superintendent of the Respondent's plant at the time material herein, on direct examination testified as follows : Q. Why was Smith fired? A. Well, he had been losing too much time, and the foreman came and told me, Carl Shockley, said John I. Smith had been losing so much time and got so contrary he could not do nothing with him anyway, and he said, and he has been out, this is the fourth day, and he said, I believe I will pull his card, and I said OK. There is evidence in the record ° that the Respondent had a rule to the effect that an employee absent for 3 days without permission or proper excuse made before the 3 days had elapsed was subject to discharge. There is also evidence that this rule was not uniformly applied. McNeil testified that he examined the absentee record book on frequent occa- sions and if any employee was absent more than 3 days, Mrs. Moore would notify him. McNeil testified: Q. When you learned Mr. Smith had been absent for three days what did you do? A. I didn't do anything at all. The foreman came down and asked me what to do about it... . Smith testified without contradiction that neither Shockley nor McNeil made any mention of the 3-day absentee rule to him or advanced any break of such rule as a reason for his discharge. McNeil also testified that at the time Smith was sent to work in the "rough end" he did not know who was sent until the next day. He was not asked to deny Smith's testimony to the effect that Smith protested the assignment and that McNeil sent him to Clark. McNeil further tesified that on the day of Smith's discharge, Smith came to McNeil's office and after examining the separation slip given him, Smith said to McNeil "thank you for the damn lie," and then threw a union card on the desk. McNeil denied that he told Smith that Smith had "been working too openly for the union." Carl Shockley testified that he was assistant shipping foreman but that in 1947 he had been shipping foreman and that Smith worked under him. On direct examination by the Respondent Shockley testified: Q. He [John I. Smith] worked in your department? A. Yes, sir. Q. What sort of worker was he? A. John was a good worker. Testimony of Harry J. Gluck. GLUCK BROS., INC. 359 Shockley testified that on January 14, ... they sent down for a man they said to run a screw driver, and that was a job Smith could do, and Mr. McNeil came and asked if I had a man, and I gave him John Smith because I knew John was good on a screw driver. Shockley also testified that the man wanted to operate the electric screw driver was to be used in the bed department. On the next day Smith reported to Shockley but acting on orders Shockley sent Smith back to the department in which he had worked the previous day. Shockley further testified : Q. When did you next see him [Smith] to your knowledge? A. Well, that I could not say as to the day. John was laid off and didn't come back any more, and, I don't know, he was off three or four days. Shockley testified that he learned of Smith's absence when "Mrs. Moore called and asked if I knew why John Smith was absent and I said I didn't know." Shockley testified that he then "pulled" Smith's time card, thus discharging him, and so advised Mrs. Moore and McNeil. Shockley testified that Smith was discharged "because he lost too much time" ; that Smith was absent "as far as three weeks at a time" ; that McNeil told him to warn Smith about his absences, however, immediately following his testimony to the effect that McNeil had instructed him to warn Smith, Shockley testified that McNeil had not "actually mentioned John Smith's name." The Respond- ent's records disclose only one lengthy absence by Smith, 8 days from April 1 to 5, 1946, and from April 8 through 10, 1946 (April 6 and 7, being Saturday and Sunday), but this occurred 10 months before Smith's discharge.10 Mrs. Moore testified that she did not remember telling McNeil of Smith's absence from work and further testified on direct : Q Do you know specifically whether or not you called him [Shockley] on this occasion and asked him what was the matter with Mr. Smith? A. No, I do not. The mutual and material contradictions in the testimony of McNeil and Shockley, as well as the contradictions in the testimony of Moore and the two supervisors is clear in the record. In view of these considerations as well as the undersigned's observation of the witnesses the undersigned does not credit the testimony of McNeil and Shockley, to the effect that Smith was discharged because of absenteeism, or because he violated a rule requiring an excuse for absence to be made within 3 days on pain of discharge and further finds that in the event such rule did exist and was enforced, which is by no means clear, that Smith did give the Respondent notice of his inability to report for work because of illness within the 3 days allegedly required. 10 The Respondent's absentee record shows that Smith was absent a total of about 22 days in approximately 1 year' s time. January 1946________ 4 days Longest consecutive period being 2 days. March 1946_________ 1 day April 1946 ---------- 8 days (5 days and 3 days). May 1946___________ 1 day October 1946________ 2 days November 1946 ------- 4 days 2 days being consecutive. December 1946_______ 2 days Consecutive. January 16-22, the period under discussion. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shockley also testified that at the time he sent Smith to work out of the de- partment there was not enough work for both Smith and his helper in their own department, and that Smith was not replaced. Andrew Harville who was Smith's helper testified that at the time Smith was sent from the department there was enough work on hand setting mirrors, to keep them both busy and that after Smith was sent away "they put several men to help me out." Harville further testified that Smith kept union cards in his shirt pocket ; these cards were visible and that : Well, he [Shockley] came to the table one morning where I was working and he said John better watch what he is doing about those cards, Mr. McNeil is going to fire him, he has got those cards and if he catches him he is going to fire him. Shockley denied making the statement. The undersigned credits Harville. Smith impressed the undersigned as a wholly honest and forthright witness, worthy of credence. Neither McNeil nor Shockley so impressed the under- signed, therefore from his observation of the witnesses and upon all the evidence in the case the undersigned finds that McNeil on January 22, 1947, told Smith that in regard to his union activity "you ought not to work too openly with it" and further finds that Shockley told Harville that McNeil would discharge Smith if the latter were caught with union application cards. The undersigned is persuaded and finds on all the evidence in the case that the reason assigned by the Respondent for the discharge of John I. Smith, namely, that he "lost too much time" was not the real reason therefor but that this contention is a mere pretext and that the Respondent on January 22, 1947, discharged John I. Smith because of his membership in and activities on behalf of the Union. Smith testified that he does not want reinstatement. (b) Virgil Rednower Virgil Rednower was employed by the Respondent for a period of 4 years and had at the time of his discharge, January 18, 1947, approximately 21/.2 years' experience as a band saw operator which he acquired in the Respondent's plant. As found herein Rednower was the first of the Respondent's employees to become active for the Union in December 1946; Rednower distributed cards openly, interested others in the Union, held meetings in his boarding house and was elected vice president of the Union on January 11. Rednower testified without contradiction that on or about December 1, 1946, the operator of the band saw used in the Respondent's plant for rough sawing, such as forms and glue blocks, was injured, and Rednower was assigned to operate the saw. A short time after Rednower began operating the saw his foreman, Albert Bales, told him "the band saw was running better than it had ever run" and that Bales intended to leave him there. This testimony was not denied by Bales. Rednower further testified that sometime in January 1947, at a time he "had twenty five or thirty" union cards visible in his shirt pocket, Bales came to his place of work and entered into a conversation with him. Rednower testified : Well, he came to me and he said how you getting along Virgil, and I said, what do you mean Albert. He said, you know what I mean. I said, do you think I am for the union. And he said you cannot fool me, I know. GLUCK BROS., INC. 361 Thereafter, on an undisclosed date in January 1947, Rednower was taken off the band saw and put to work at a planer, where he remained for about 11/2 days, after which he was transferred to a sander where he remained for 1% days. The operator of another band saw, used for skilled work, became ill at this time and Rednower was transferred to this band saw but he remained on this saw only a few hours when he was sent to the boilerhouse to work at stack- ing wood. Rednower testified that after he had worked in the boiler room for 2 or 3 days: Well, McNeil came out there, which was the superintendent, and I asked him what was the meaning of it, and he said, that is the place for you, I need you out here, and there wasn't anything more said. Q. Did you leave the boiler room, stacking wood, shortly afterward? A. Yes, sir, he came back a few hours later and told me to check to Albert Bales. Q. Did you check with Bales? A. Yes, sir, I said Albert, Mac sent me back here, and told me to check with you, and he said, what in the devil do you think I have got for you to do in here, and I said, I don't know. Rednower testified that Bales then put him to work operating the band saw used for skilled work. This occurred on Friday, January 17. While at work, Rednower, according to his testimony, broke a band saw blade, which was the only saw blade lie broke that day. After breaking the saw blade Rednower took it to the file room to be repaired and got another blade. On the next day, Saturday, January 18, according to Rednower's testimony : Well, I was working and Mr. Bales came to me and asked me what was the idea of all the saws broke up in the file room and I told him I didn't know. He said, Virgil, I am not taking the blame down here for what you do. I said all right, Albert. And he went off and in about three to five minutes he came back and says, here is your time. Rednower testified that he did not break any saw blades on Saturday, January 18. The Respondent contends that "Rednower was discharged because he was intentionally breaking up valuable machinery of the respondent." H. R. McNeil testified that Rednower would break band saw blades inten- tionally and maliciously "about as be could get them" and that after so breaking the blades Rednower would "hide them and throw them away." McNeil testified that he saw Rednower break a saw blade into short lengths and thereafter McNeil found a pile of broken blades in a corner of the file room, where the blades were repaired . McNeil testified : I asked the file room man and he said Virgil Rednower put them there. The file room man according to McNeil was one Walls, who was not called. McNeil also testified that about 2 weeks before his discharge Rednower "tore up" a machine called a dove tailer. On cross-examination, McNeil testified, with respect to Rednower's breaking of the dove tailer, as follows : Q. How did he do it? [break the dove tailer] A. I don't know how he did it. Q. Why didn't you fire him at that time? A. Well, I was in hopes he would do better but he kept getting worse. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McNeil also testified that Foreman Bales "finally came and told me he could not get him [Rednower] to do half right and he was going to have to get rid of him." McNeil testified that Rednower had also been discharged in 1946. McNeil testified that in 1946 Rednower had cut a piece off a straight edge in order to make a knife for himself and that Rednower was a troublemaker. McNeil testified as follows : Q. Was he fired for that? [In 1946] A. Yes, sir. And we had a straight edge to fix band saws and he cut about fourteen inches off to make a knife, and that is really what caused it. On cross-examination McNeil testified : Q. . . . you stated Rednower was fired once before January 18, 1947? A. I said he either quit or was fired. I didn't remember which There was some disagreement between him and the machine room foreman. Q. Over what? A. Over him tearing up machinery, having confusions in the department and cutting up a straight edge. Q. Did you say anything to him about breaking it up? A. Yes, I asked him why he did it. Q. And what was his answer? A. He said he didn't have no more sense. He said he was going to snake him a knife. Q. Did you fire him on account of it? A. No. In his testimony Rednower volunteered that he had cut up a straight edge in 1946; denied that he had previously been discharged, but testified that he had quit on two occasions. In its brief the Respondent avers that Rednower "quit twice before he was discharged" and does not claim any previous discharges for any cause. Albert Bales, machine room foreman, testified that Rednower was "a good band saw man" and was discharged for "breaking band saws"; that 3 or 4 days before Rednower was discharged he saw him break five to eight saws in 1 day; that when a saw blade was broken it was supposed to be taken to the file room but Rednower would not do this, but broke the blades into small pieces. Bales testified : Q. How many [saw blades] did you see him break up? A. Well, I don't know how many, I stood there and watched him break them a few times. Q. Why didn't you fire him when you saw him break them up? A. Well, I don't know, I would tell him he should take them in the file room and have them welded and he would say they are not any good, could not be welded. Despite his testimony to the effect that Rednower would not take broken blades to the file room, Bales testified at a later point on direct : Q. What, if anything, happened just before you fired him? A. Well, we run out of band saws and I noticed he was piling them up in the rile room. [Emphasis supplied.] Q. And you discharged him? A. Yes, sir. GLUCK BROS., INC. 363 On cross-examination Bales testified : Q. Did you ever see broken pieces of band saws in that corner of the file room? A. Yes, sir, piled up there. Q. The man working in the file room piled them in the corner? A. No, Virgil throwed them in there. Q Did you ever see him throw them in there? A. No, but he was the band saw man and they accumulated in two or three days. Bales further testified that from the time Rednower was put on the band saw [apparently in December 1946] he was not transferred to any other work and contradicted Rednower's testimony that Rednower had some days before his discharge been sent to work on a planer, a sander, and to stack wood in the boilerhouse, being returned to the band saw the day before his discharge. In contradicting Rednower's testimony, Bales also contradicted that of McNeil who admitted that Rednower complained to him about being put to work in the boiler room and asked to be sent "back in the front." Bales further testified : Q. How many [band saw blades] did he break altogether? A. I guess we had twenty or twenty-five in the file room. Q When did you first find out he was breaking them up? A. On the last day he worked there. Q. You didn't know it the first time? A. No, sir, I hadn't paid no attention. Clarence Morrison testified that he was elected president of the Union at its first meeting but that later "I just decided to quit, and drop it" testified that "one day" he saw Rednower break up six or eight band saws, and throw them in the trash barrel. Morrison also testified : Q. Did you ever find band saw blades behind your lathe? A. Yes. Q. How many? A. Lots of them. I don't know that he [Rednower] put them there but I found them there. Henry Hodge, called by the Respondent, testified that he was the plant janitor ; that he found broken band saw blades near Morrison's lathe, and in the wood pile but did not know who put them there. Rednower admitted that in the course of his work he broke band saw blades but denied that he ever broke seven or eight saws in any 1 day. He testified that he broke only one blade on the day before his discharge and none on the day of his discharge; he denied that he broke blades into small pieces or that he hid broken blades in the wood box or behind Morrison's lathe, and testified that he took broken blades to the file room for repairs. Superintendent McNeil admitted that band saw blades can be broken in use because of several factors beyond the operator's control. Joe Ed Lee, who regularly operated a band saw in the Respondent's plant, testified that at times he (Lee) broke as many as four band saw blades in 1 day. Byrl McCullough credibly testified that he worked in the file room at the time of Rednower's discharge and that at this time there was a large accumulation of short pieces of broken band saw blades in the corner of the room, thrown there 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by himself, which had not been removed for several weeks as the scrap could not be taken to the trash lot because the path was blocked by snow and mud. On the entire record and from his observation the undersigned does not credit the testimony of McNeil and Bales to the effect that Rednower willfully broke an inordinate number of band saw blades or that he willfully damaged a machine called a dove tailer. Rednower impressed the undersigned as a truthful witness whereas Superin- tendent McNeil and Foreman Bales did not, and therefore, for this reason and on all the evidence, the undersigned credits Rednower's testimony as against that of McNeil and Bales. The undersigned finds that the Respondent did not discharge Virgil Rednower because "he was intentionally breaking up valuable machinery of the Re- spondent" but finds this reason to be a here pretext. The undersigned finds that on January 18, 1247, the Respondent discharged Virgil Rednower because of his membership in and activities on behalf of the Union (c) Thomas Atkins Thomas Atkins was employed by the Respondent for approximately 4 years, and was discharged on January 21, 1947. Atkins was employed as a stockroom clerk, his duties being to unload cars of lumber, pile it in the stockroom and redistribute it to various machine operations as required. Apparently Atkins had no regular assistant but was assigned casual helpers. On January 21, 1947, one Calvin Helton was assigned to help Atkins ; Atkins testified that on January 21, between 8: 30 and 9 a. m. he and Helton were moving a load of plywood which was stacked on a platform resting on a movable, wheeled jack, and that the load turned over. Atkins further testified that lie and Helton immediately prepared to pick up the load of lumber. While they were working, according to Atkins' testimony, one Parks, whom Atkins described as a superintendent,' "came over about that time and stood and looked at it and walked over to where Mr Bales was." Bales then came over to Atkins and discharged him. Bales said nothing to Helton. Atkins was given a separation slip which gave the reason for his discharge as "unsatisfactory work." Atkins testified that he had turned over loads of lumber on other occasions but that he had never before been reprimanded for it. Foreman Bales admitted that other employees had turned over loads of lumber, and that he himself had also (lone so. Apparently it was not an uncommon occurrence in the Respondent's plant for an employee to suffer mishaps while moving loads of lumber, and according to Bales apparently at least Bales had never before discharged an employee therefor. Calvin Helton testified that on January 21, he was helping Atkins unload a car of lumber and that the loaded "lift" which they were moving turned over "right inside the door as you come off where you load out of the box cars." Helton testified, as did Atkins, that none of the lumber was damaged. Helton further testified : Well, when the lumber fell on the floor, the best of my remembering Albert Bales came around there and I went out to get another flat to pick it up, and I heard him tell Tommy something about he would have to let him go, seemed like he told him about that too many times, or something. "There is no other testimony regarding Parks, who was not called to testify , however, there is testimony that one Clark was the Respondent's assistant superintendent in Janu- ary 1947. GLUCK BROS., INC. 365 Q. Did Albert Bales say anything to you about the lift turning over? A. No, sir. Superintendent McNeil testified as follows : Q. Why was Mr. Atkins fired? A. Well, he got to where he wouldn't work , and kept his stock room in such a shape you could not get through it, part the time you could not even walk through it. Q. Describe that stock room. A. Well, there was a space we had laid out to put our dimension stock when it came in the cars . We took it out the cars-in fact , it really was not a stock room but we called it a room. Q. What condition did Mr. Atkins keep this room in? A. Well, on the afternoon before we discharged him the next morning he turned a truck over in the aisle and that was about four-thirty, and I went and got on the machine room foreman about it. I didn't say anything to Mr. Atkins, I usually dealt with the foremen, I asked him why it was in such a mess. And he said he would get it up. And the next morning I came in and the truck was still there. Q Was tl'at the same truck or it might have been another? A. Well, it was the game one, but right over from that there was an- other. The one I spoke about the afternoon before was there and right beyond that there was another And I told the foreman I was not going to stand for it. Q Was he discharged? A. Yes, lie was Foreman Bales testified that Atkins was discharged because he " was careless about his stockroom and he would turn loads over and lie had it stacked in a way it would fall over and there was always something on the floor and you could walk about in the stockroom and anywhere in the machine room and he would be sitting up on a load of stock with his feet hanging off, just sitting there." Bales further testified : Well, he turned over a load of stock one afternoon and it laid there until the next morning. On cross-examination Bales testified that he did not see the load turned over. Bales testified : I noticed it that afternoon. Q When did 3 on notice it again? A. Well, I knew it from then all the time, and the next morning he hadn't made no effort to pick it up. Despite the characterization of Atkins by McNeil and Bales as an employee who loafed on the jib, spent considerable time "just sitting on lumber piles, with his feet hanging off" and kept the stockroom in such condition that "part the time you could not even walk through it," the fact remains that lie was in the employ of the Respondent for a period of 4 years. Atkins and Helton testified that they turned over one load of lumber and that Atkins was discharged almost immediately thereafter while they were pre- paring to pick it up. They placed the incident on the morning of January 21. Bales testified that but one load was turned over and fixed the time as the afternoon of January 20, and testified that no attempt to pick up the load was 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made until the next morning. Although Bales knew the load was turned over on January 20, he did not speak to Atkins about it until he discharged him the next day. McNeil testified that Atkins turned over two loads of lumber, one load on January 20, and let it lay, and on the morning of January 21, turned over another. McNeil testified that he spoke to Bales when the first load of lumber was turned over and Bales "said he would get it up." Bales discharged Atkins on January 21. From his impression of the witnesses and on all the evidence in the case the undersigned does not credit the testimony of McNeil and Bales but does credit the testimony of Atkins who impressed the undersigned as a truthful witness and therefore the undersigned finds that Atkins did not overturn a load of lumber on January 20, but that he did overturn a load of lumber on January 21st, at approximately 9 a. in., and was discharged immediately thereafter while prepar- ing to right the overturned load. The undersigned further finds that Atkins did not maintain the Respondent's stockroom in a disorderly manner, or refuse to do his work, or perform his work in an unsatisfactory manner. Atkins joined the Union in January 1947, and was elected a trustee at the Union's first meeting on January 11. Atkins was associated with Rednower and Willie Long in the effort to organize the Respondent's employees into the Union. Upon the entire record in the case the undersigned finds that the Respondent did not discharge Thomas Atkins for the reasons it assigned therefor but that the Respondent did on January 21 discharge Thomas Atkins because of his membership in and activities on behalf of the Union. (d) Willie F. Long Willie F. Long testified that he joined the Union early in January 1947, and was elected its recording secretary at the first union meeting, January 11. Long was active in the Union's behalf. Of 30 employees working in the cabinet room, where Long worked, he signed 15 into union membership. At the time of his discharge, and for a period of 2 months prior thereto, Long's job was putting tops on chests, vanities, and dressers; prior to this he had affixed mouldings to the same type of furniture in the same department. Long had been employed by Respondent since late 1945 and since sometime in 1946 part of Long's work consisted of making sandpaper belts used on various machines for dressing lumber. Until about 2 weeks before his discharge Long had made these belts on overtime, after the regular day's work had ended and on Saturday morning when the plant was not in operation. About 1 or 2 weeks before Long's discharge, Long's overtime work on belts was discontinued. Long's foreman, Truman Fellows, instructed him to make belts on regular time and when Long had no other work or when he was ordered to do so. The above-related testimony is undenied and is credited by the undersigned. Long further testified that he was discharged on January 21, under the follow- ing circumstances as shown in his testimony : Q. (By Mr. Stanford.) Along the day you were fired, January 21, did Foreman Fellows say anything to you about making sand paper belts? A. Yes, sir. Q. What did he say? A. Well, Curtis and I was nailing blocks and he came up and said we didn't have any tops to put on right then, I had better make belts, and I just told him we had to make some blocks so we wouldn't get behind with that, and he told me- GLUCK BROS., INC. 367 Q. What did he say? A. He said if I didn't want to do what he told me to he didn 't need me any more, and went and got the time. Q. Did you have a chance to explain? A. No, sir. Q Did he take you down to the office? A. Yes, sir. Q. Who told you you were fired? A. Truman Fellows. Curtis Collins testified that he was working beside Long on January 21, driving nails in blocks, and that Foreman Fellows came up to them and told Long to go and make some belts whereupon Long "told him [Fellows] they needed those blocks, if we didn't have them when the cases came on we would be behind." Collins testified further : Q. What did Foreman Fellows do? A. I heard hint say something about going with him, he told him to come go with him. Q After Long said, I will get behind with the blocks did he say anything else to Foreman Fellows? A. No, sir, he didn't give him a chance, lie took him off with him. Superintendent McNeil testified as follows: The foreman brought him [Long ] and told me he refused to make some sand belts and I just turned to Willie and said is that right, and he said yes, you hear what the man said, and I said OK, and that is about all I know about that. J. T. Fellows, the foreman over Long, testified : A. I asked him to make belts and he said he thought he had better stay and catch up on a few blocks, and he had several blocks ahead anyway, and I told him the best thing for him to do was to make belts, and he finally said he didn't think he would, and I asked him the second time and he said he was not going to make them. Q. What did you do then? A. I told him if he didn't want to make belts I didn't need him and I sent to the office and got his time. Long was the only roan in the plant at the time who made sand belts. Fellows also testified that Long had never before refused to carry out an order to make sand belts. Both Long and Collins testified that Fellows did not ask Long a second time to carry out his order but that Fellows took Long to the office for discharge as soon as he interposed an argument against quitting the work he was on to make belts. Long denied that in reply to Fellows' question "aren't you going to make those belts" Long replied "I ain't." Long testified without contradiction that at the time of his discharge there was a week's supply of sand belts on hand. Fellows testified that Long was discharged : "Because he wouldn't do what I wanted him to do." Concluding findings on the discharge of Willie F. Long There is no doubt that Long was ordered by Fellows to quit the work he was doing and make sand belts. Clearly it was Fellows' right to issue the order and it was Long's duty to carry it out. Long had no right to refuse to carry 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out his foreman's instruction; however, the undersigned is not persuaded that Long did refuse to make belts. According to his testimony and that of his helper,' Long merely pointed out that he was nailing blocks which to him seemed more necessary than making belts, and Fellows gave him no opportunity for further discussion, but led him off for discharge. It is not disputed that Long had never before refused to carry out the fore- man's orders nor is it disputed, as Long testified, that there was a week's supply of belts on hand, and that Long was the only employee who made them. It seems therefore to the undersigned that Fellows' precipitous action in imme- diately discharging the only employee who made a very essential article used in the Respondent's manufacturing process at a time when a supply of this article, namely, sand belts, was already on hand, would indicate that the discharge was not because of sudden resentment at the alleged refusal or because of the breach of discipline, but was the result of a preconceived plan to create an in- cident which would afford an excuse for the discharge, and still not effect the operation of the plant, before another employee could be trained to do the work. McNeil's testimony that Long admitted his refusal, as well as Fellows' tes- timony that Long refused to carry out his order after it had been given to him the second time, impress the undersigned to be afterthoughts and not occurrences at the time. Upon the entire record in the case, the undersigned is persuaded that Long's account of the incidents immediately surrounding Long's discharge and the conversation between Foreman Fellows and Long at the time of Long's discharge, is the more accurate version and the undersigned therefore credits Long's tes- timony and finds that Long did not refuse to carry out an order given him by Foreman Fellows. The undersigned finds that Long was not discharged for refusing to carry out his foreman's orders and further finds that the Respondent on January 21, 1947, discharged Willie F. Long because of his membership in and activities on behalf of the Union. Concluding findings on the discharges of Smith, Rednower, Atkins, and Long The Union's first meeting and election of officers was held on January 11. On January 14, Smith, who had worked for the Respondent for more than 4 years and who was known to the Respondent to suffer from a respiratory ailment (the Respondent having transferred Smith to a comparatively sawdust-free depart- ment because exposure to sawdust was injurious to him), was taken from his work and sent to help operate a machine planing lumber. Smith's foreman testified that he had been asked for the loan of a man who could operate an electric screw driver. The foreman understood the man was to work in the bed department and sent Smith. Smith was not given this work but instead was put on the planer, over his objection. It is not denied that this was the first time in 2 years that Smith was moved from his regular work. As a result of this assignment Smith became ill. The Respondent sought to prove that Smith did not report his illness within 3 days, thus violating a company rule. On Smith's return to work January 22, he was discharged. The violation of the rule was not mentioned to him. The proof that Smith violated the rule failed. Superintendent McNeil testified that besides "losing so much time" Smith "got so contrary he [Smith's foreman] could do nothing with him anyway." 12 The undersigned is not unmindful of the testimony of J. D. Hewitt who testified that he licaid 1'cilows i,k Long "aren't you going to make those belts," and that Long replied "I ain't" Hewitt testified that he was within 6 feet of the two men and that he heard nothing of what was said before or after the above-reported statements GLUCK BROS., INC. 369 Shockley who was Smith's foreman testified that "Smith was a good worker." The reason assigned by the Respondent for the discharge of Virgil Rednower was that he maliciously broke machinery It developed that in the course of his work as a band saw operator Rednower had broken band saw blades. Break- ing of blades by a band saw operator was not an uncommon occurrence and could be caused by factors beyond the operator's control. McNeil testified that Rednower also broke a dove tailer some 2 weeks before his discharge but that he was not discharged at the time because McNeil hoped "he would do better." McNeil also testified that Rednower's foreman complained that he could not get Rednower "to do half right." Rednower's foreman, Bales, testified that Rednower was "a good band saw man." Bales also testified that he watched Rednower break saw blades and "would tell him to take them to the file room" for repair, but that Rednower would not do so, but broke the blades into pieces and threw them away. Bales also testi- fied that he did not know Rednower was breaking saw blades until the day he was discharged when Bales noted that Rednower was "piling" up broken blades in the file room. Rednower was discharged January 18, after 4 years of employment with the Respondent, except for two interruptions due to his quitting. On January 21, the Respondent discharged Atkins allegedly for turning over a load of lumber. McNeil testified that Atkins would not work and kept the stockroom in a disorderly condition. Bales, the foreman in charge, testified that Atkins spent time "just sitting" on the top of a pile of lumber "with his feet hanging off." McNeil testified that Atkins overturned a load of lumber on the afternoon of January 20. McNeil then called this to the attention of Bales who said "he would get it up," however, when McNeil, according to his testimony, came in the next morning the load was still untouched and another load of lumber was also over- turned nearby. Bales testified that Atkins overturned only one load and this was on the after- noon of January 20, but that he (Bales ) did not speak to Atkins about it until the next morning at which time he discharged him Bales admitted that it was not uncommon to overturn loads of lumber and testified that Atkins was not dis- charged because he overturned the lumber but because he failed to pick it up. Despite the bad character given him by Superintendent McNeil and Foreman Bales, the record discloses that Atkins worked at the Respondent's plant for a period of 4 years. Long was also discharged on January 21. Long was the only employee who made sandpaper belts. This was apparently an important task. Until some 2 weeks before his discharge Long had made these belts at will on overtime and as he saw fit and it would seem only a natural reaction for him to point out, when ordered to quit his regular work and make sand belts, that he felt the regular work to be the more necessary as a week's supply of sand belts was on hand. In the undersigned's opinion the foreman's reaction and the precipitous discharge point to a preconceived plan to create an incident which could be used as a basis for Long's discharge. The testimony of Superintendent McNeil and the foreman involved in the dis- charges of the four men is mutually contradictory instead of corroborative, and when considered together with the timing of the discharges of the four men, who had all been in the Respondent's employ for a comparatively long time, but who were uniformly alleged to be inefficient loafers, as well as specifically given to the malicious destruction of machinery and insubordinate conduct and who 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were also officers of the Union and actively promoting its organization among the Respondent's employees, the undersigned is persuaded that the reasons advanced by the Respondent for the discharges were not bona fide. The undersigned is also persuaded that the discharges must be viewed as being "package" discharges for the same illegal purpose. The undersigned finds on all the evidence that the Respondent discharged John I. Smith on January 22, 1947, Virgil Itednower on January 18, 1947, Thomas Atkins and Willie F. Long on January 21, 1947, because of their membership in and activities on behalf of the Union, and has thereby discriminated in regard to their hire and tenure of employment and has discouraged membership in a labor organization and that the Respondent has thereby interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act and more particularly has violated Section 8 (a) (1) and (3) thereof." The undersigned finds that by Superintendent McNeil's statements to Smith to the effect that the latter should not work too openly for the Union and by Fore- man Shockley's statement to Harville to the effect that McNeil would discharge Smith if Smith were caught with union cards, as herein found, the Respondent has 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 the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Acts. Having found that the Respondent has violated Section 8 (a) (1) and (3) of the Act, the undersigned will recommend that the Respondent cease and desist therefrom. The said violations, as set forth above, clearly indicate that the Respondent's purpose was to defeat its employees in their right of self- organiza- tion. Because of the Respondent's unlawful conduct and its underlying purpose, and because a discriminatory discharge "goes to the very heart of the Act," " the undersigned is convinced that the unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the Respondent's conduct in the past 15 The preventive purposes of the Act will be thwarted unless the recommendations are coextensive with the threat. In order, therefore, to make effective the interdependent guarantee of Section 7, to prevent a recurrence 13 The Respondent offered evidence to the effect that the charges herein were not filed until after an election to determine a bargaining agent had been conducted among the Respondent's employees, which was lost by the Union, and further that none of the dis- charged employees claimed the right to vote in this election. In its brief the Respondent seems to argue that these facts serve to show the present proceeding to be "an after thought" and not in good faith. The undersigned finds no merit in this contention. 14 See N. L. if. B. V. Entwistle Mfg. Co., 120 F. (2d) 532-536 (C. C. A. 4). 15 See N. L. if. B. v. Express Publishing Company, 312 U. S. 426. GLUCK BROS., INC. 371 of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, the under- signed will recommend that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Since it has been found that the Respondent discriminated in regard to the hire and tenure of employment of John I. Smith, Virgil Rednower, Thomas Atkins, and Willie F. Long, thereby discouraging membership in the Union, the undersigned will recommend that the Respondent offer to each of them'e im- mediate and full reinstatement to their former or substantially equivalent posi- tions 17 without prejudice to their seniority or other rights and privileges and make all of them whole for any loss of pay they may have suffered by reason of the discrimination practiced against them by payment to each of them of a sum of money equal to the amount he would have normally earned as wages from the date of his discriminatory discharge to the date of the Respondent's offer of reemployment to him, and in the case of John I. Smith to the date of his refusal to claim the right of reinstatement, less net earnings 18 during said period. Upon the basis of the foregoing findings of fact, and upon the entire record, the undersigned makes the following: CONCLUSIONS OF LAW 1. The operations of Gluck Bros., Inc. (Morristown, Tennessee), constitute commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Upholsterers International Union of North America, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of John I Smith, Virgil Rednower, Thomas Atkins, and Willie F. Long, thereby discourag- ing membership in a labor organization, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 18 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act and amended Act. The Respondent has not engaged in unfair labor practices by publishing and distributing anti-union letters to its employees. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondent, Gluck Bros., Inc, of Morristown, Tennessee , its officers, agents, successors, and assigns, shall : 19 It having been found that John I. Smith did not desire reinstatement, therefore, John 1. Smith is not included in the above recommendation of reinstatement. 17 See Matter of Crossett Lumber Company, 8 N. L. R. B. 440, 492-498. 18 In accordance with the Board 's consistent interpretation of the term, the expression "former or substantially equivalent position " is intended to mean "former position wher- ever possible, but if such position is no longer in existence , then to a substantially equiva- lent position " See Matter of The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65 N. L. R B 827. 79 See footnote 16, supra. 829595-50-vol 81--25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Discouraging membership in Upholsterers International Union of North America, affiliated with the American Federation of Labor, by discharging and refusing to reinstate any of its employees, or in any other manner discriminating in regard to hire and tenure of employment, or any term or condition of em- ployment ; (b) In any manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor oreanizations, to join or assist Upholsterers International Union of North America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer to Virgil Rednower, Thomas Atkins, and Willie F. Long, immediate and full reinstatement each to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make whole the above-named employees and also make whole John I. Smith for any loss of pay they may have suffered by reason of the Respondent's discrimination in the manner provided herein in the section entitled "The remedy" ; (b) Post in conspicuous places at its plant in Morristown, Tennessee, in all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other material ; (c) Notify the Regional Director for the Tenth Region in writing twenty (20) 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 the Respondent shall, within twenty (20) days from the date of the receipt of this Intermediate Report, notify said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the Respond- ent to take such action. It is further recommended that the complaint be dismissed insofar as it alleges that the Respondent engaged in unfair labor practices by publishing and circulat- ing anti-union letters to its employees. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, 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 and Recommended Order 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 and Recommended Order. Immediately upon GLUCK BROS., INC. 373 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. Statements of excep- tions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. 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 thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 13th day of September 1948. Louis PLOST, Trial Examiner. 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, xe hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their rights to self-organization, to form labor organizations, to join or assist UPHOLSTERERS INTERNATIONAL UNION OF NORTH AMERICA, affiliated with the AMERICAN FEDERATION OF LABOR, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to each of the employees named below,* immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed and make him whole for any loss of pay suffered as a result of the discrimi- nation. *Virgil Rednower-Thomas Atkins-Willie F. Long WE WILL MAKE John I. Smith whole for any loss of pay suffered by him as a result of our discrimination. 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 the hire or condition of employment, or the term or condition of employment because of membership in or activity on behalf of any such labor organization. GLUCK BROS., INC., Employer. Dated ------------------------ By -------- --------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material.