U. S. Trailer Manufacturing Co.

In the Matter of S. W. DIxoN, D/B/A U. S. TRAILER MANUFACTURING Co. and INTERNATIONAL ASSOCIATION OF MACHINISTS Case No. 17-C-1542.-Decided March, 16, 1949 DECISION AND ORDER On October 15, 1948, Trial Examiner Peter F. Ward issued his In- termediate 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 In- termediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended dismissal of those allegations of the complaint. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board' 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 supporting brief filed by the Re- spondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, in- sofar as they are consistent with this Decision and Order 2 1. We find, in substantial agreement with the Trial Examiner that the Respondent discriminatorily discharged the nine named employ- ees on July 25, 1947. The Respondent argues that he laid off these nine employees because of a shortage of -materials, particularly ply- :1 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 [Chairman Herzog and Members Rey- nolds and Gray]. 2 The Trial Examiner found that the unlawful conduct of the Respondent violated both Section 8 ( 1) and (3) of the National Labor Relations Act and Section 8 (a) (1) and (3) of the Act as amended. We find it unnecessary to determine which of the Respondent's unfair labor practices violated the Act and which violated the amended Act, inasmuch as the relevant provisions are, in all material respects , identical. 82 N. L. R. B., No. 11. 112 U. S. TRAILER MANUFACTURING CO. 113 wood. But even assuming a compelling material shortage,8 it seems significant to us that the employees weer dismissed without any notice, although the Respondent claims to have made the decision to lay them off several days earlier ; that the employees were given no assurance of reemployment when materials'were again available; and that the dismissals were announced at the start of work on July 25, the morn- ing after these employees and no others 4 had attended a union meet- ing kept under surveillance by the Respondent and Foreman Jones, rather than at the close of work on July 24, before the union meeting. Furthermore, the Trial Examiner finds, and we agree, that the Re- spondent, in addition to engaging in surveillance of the union meeting, had also committed unfair labor practices by interrogation. The Re- spondent asserts, in support of his argument, that he attempted to recall these nine employees on or about August 1, 1947, upon receiving a firm commitment for plywood. But the Trial Examiner finds, and we agree, that the Respondent recalled only five of these employees. Moreover, the recall was not made until after the Respondent had received notice of the unfair labor practice charges filed with this Board. On the entire record, we agree with the Trial Examiner that, but for their union membership and activity, these nine employees would not have been terminated on July 25, 1947. 2. We do not agree with the Trial Examiner's finding that the Respondent violated the Act by disparaging the Union. Although the Respondent characterized the Union as "outlaw," "wildcat," and "off-breed," such speech is privileged under Section 8 (c) of the Act and affords no basis for finding a violation of the amended Act. Ac- cordingly, we shall overrule the Trial Examiner and dismiss the com- plaint insofar as it relates to disparaging the Union. 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, S. W. Dixon, d/b/a U. S. Trailer Manufacturing Co., Kansas City, Missouri, and his agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists or any other labor organization of his employees, by 'Actually, the record shows that, although there had been occasional shortages of materials at times during the past 2 months, there were sufficient materials on hand at the time of the dismissals for several days work. *The record is not convincing as to the exact time of the discharge of a tenth employee The Trial Examiner finds , and we agree, that this employee was not terminated at the same time as the other nine employees. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharging or refusing to reinstate any of his employees, or in any other manner discriminating in regard to their hire or tenure of em- ployment or any term or condition of their employment; (b) Interrogating his employees concerning their union affiliation or activities; (c) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Association of Machinists or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer Leonard L. Jeffress, Finus Hudson, and Frederick Krause immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; 5 (b) Make whole Finus Hudson, Mitchell Hooper, James W. Rooks, Leonard L. Jeffress, W. T. Harper, Frederick Krause, Damon Hepple, Lester M. Tull, and Jasper Parisi 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 period from July 25, 1947, the date of discrimination: (1) to the date of the Respond- ent's offer of reinstatement, in the cases of Leonard L. Jeffress, Finus Hudson, and Frederick Krause; (2) to the date of the reinstatement by the Respondent, in the cases of Mitchell Hooper, James W. Rooks, W: T. Harper, Damon Hepple, and Lester M. Tull; and (3) in the case of Jasper Parisi, to the date of his second discharge in December 1947,8 less their net earnings during said period; 5 Contrary to the Trial Examiner, the record shows and we find that Mitchell Hooper was in fact reinstated by the Respondent. Accordingly, we shall not adopt the recom- mendation for his reinstatement. a Although the Respondent reinstated Parisi to an inferior position in August 1947 and then discharged him in December 1947, the Trial Examiner recommended only that the Respondent make Parisi whole for the period ending with the December 1947 discharge. No exception was filed to this recommendation, and we adopt it. See Matter of Ford Motor Company, 57 N. L. R. B. 1814, 1821. U. S. TRAILER MANUFACTURING CO. 115 (c) Post at his plant in Kansas City, Missouri, copies of the notice attached hereto as an appendix.' Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the Respondent or his representative, be posted by the Respondent immediately upon receipt thereof, and maintained by him 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 the said notices are not altered, defaced, or covered by other material; (d) Notify the Regional Director for the Seventeenth 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 the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent disparaged the Union; threatened to cut wages in the event the Union organized the plant; discriminatorily discharged Elmer Dudding; and did not reinstate Lester M. Tull, Damon Hepple, W. T. Harper, James W. Rooks, and Mitchell Hooper to their former or substantially equivalent positions. APPENDIX 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 interrogate our employees concerning their union affiliation or activities. 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 INTERNATIONAL ASSOCIA- TION OF MACHINISTS 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 such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. 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." 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 : Leonard L. Jeffress Frederick Krause Finus Hudson WE will, make whole the additional employees named below for any loss of pay suffered as a result of the discrimination: Mitchell Hooper James W. Rooks W. T. Harper Lester M. Tull Damon Hepple Jasper Parisi 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 member- ship in or activity on behalf of any such labor organization. U. S. TRAILER MANUFACTURING CO. 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 Mrs. Margaret L. Fassig and Mr. Robert S. Fousek, for the General Counsel. Mr. Harry A. Hall, of Kansas City, Mo., for the Respondent. • STATEMENT OF THE CASE Upon a second amended complaint duly filed April 16, 1948, by International Association of Machinists , herein called the Union , the General Counsel of the National Labor Relations Board,' issued a complaint dated July 7, 1948, against S. W. Dixon, d/b/a the U. S. Trailer Manufacturing Co., Kansas City, Missouri, herein called the Respondent , and on occasion referred to as Dixon, alleging that the Respondent had engaged in and was engaged in unfair labor practices af- fecting commerce within the meaning of Section 8 ( 1) and (3), and Sec- 1 The General Counsel and his representatives at the hearing are referred to herein as General Counsel; National Labor Relations Board is referred to as the Board. U. S. TRAILER MANUFACTURING CO . 117 tion 2 (6) and (7) of the National Labor Relations Act, prior to amendment, herein called the original Act or the Wagner Act, and Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management Relations Act of 1947,' herein called the Act or the amended Act. Copies of the complaint, with charge attached, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices the complaint alleged in substance that: (1) on or about July 25, 1947, the Respondent discriminatorily discharged nine named employees ; 8 (2) that since the date of such discharge the Respondent discriminatorily failed and refused to reinstate said Hudson, Krause, and Jeffress to their former or substantially equivalent positions of employment; ( 3) that on or about August 11, 1947, the Respondent did reemploy said Hooper, Harper, Hepple, and Tull, and on or about August 25, 1947, the Respondent did reemploy said Parisi and Rooks but discriminatorily assigned them, and each of the six employees next above named to more arduous and less agreeable work at a decrease in pay ; (4) on or about August 30, 1947, the Respondent discriminatorily discharged employee Elmer Dudding and since such date has discriminatorily failed and refused to reemploy or reinstate said Dudding; (5) from on or about July 23, 1947, to the date of the complaint, the Respondent has interfered with, restrained, and coerced his employees in violation of Section 7 of the Act prior to amendment and Section 7 of the amended Act;' and (6) by the acts described above the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act prior to amendment, and Section 7 of the amended Act. On July 19, 1948, the Respondent filed its answer to the complaint denying the commission of any unfair labor practices. Pursuant to notice a hearing was held at Kansas City, Missouri , on August 4 and 5, 1948, before the undersigned Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Re- spondent were represented by counsel. All parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing counsel for the Respondent objected to and moved to strike certain hearsay testimony as to certain conversations between employees and union or- ganizers. The undersigned overruled the objections and denied the motions to strike with the provision that such objections and motions could be renewed at the close of the hearing. The objections and motions were renewed at the close of the hearing. The undersigned reserved ruling thereon and now overrules the said objections and denies the motions to strike. The parties were afforded an opportunity to argue orally before and to file briefs and proposed findings and conclusions with the undersigned. Oral argument was waived by the parties. Briefs were filed by the General Counsel and counsel for the Respondent. = The National Labor Relations Act as amended by Public Law 101, Chapter 120, 80th Congress, 1st Sess. 8 The nine employees were Finus Hudson, Mitchell Hooper, James W. Rooks, Leonard L. Jeffress, Jasper Parisi, W. T. Harper, Frederick Krause, Damon Hepple, and Lester M. Tull. * Stated generally these alleged acts are that the Respondent vilified, disparaged, and expressed disapproval of the Union; interrogated its employees concerning their union affiliations ; urged, persuaded, threatened, and warned its employees from assisting, becom- ing or remaining members of the Union ; has kept under surveillance the meeting places, meetings and activities of the Union and the concerted activities had for the purpose of self- organization or improvement of working conditions of its employees. 838914-50-vol. 82-9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT S. W. Dixon d/b/a U. S. Trailer Manufacturing Co., the Respondent herein, is engaged in the manufacture, sale, and distribution of house trailers. His principal office and place of business is located in Kansas City, Missouri. Dur- ing 1947, the Respondent purchased raw materials consisting of lumber, steel, metal fittings, and other items of a total value of approximately $25,000, of which sum approximately 10 percent was shipped to the Respondent from points located outside the State of Missouri. During this same period the Respondent manufactured and sold finished house trailers valued at approxi- mately $100,000, 25 percent of such sales were made to dealers located outside the State of Missouri, who caused such trailers to be transported by their em- ployees to points outside the State of Missouri' The undersigned finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Association of Machinists , Kansas City, Missouri , is a labor organization within the meaning of Section 2 (5) of the original and the amended Acts. III. THE UNFAIR LABOR PRACTICES A. The discriminatory discharges of July 25, 1947; interference, restraint, and coercion 1. Sequence of events Insofar as is disclosed by the record, the first union organizational activity on behalf of the Respondent's employees occurred on Wednesday, July 23, 1947,' on which day a representative of the Union handed out mimeographed copies of a notice, reading as follows : SPECIAL MEETING MANOR HALL 8 P M. THURSDAY NITE JULY 24, 1947 FOR ALL EMPLOYEES OF THE U. S. TRAILER MFG CO. ALL EMPLOYEES BE SURE AND ATTEND A SPECIAL 'MEETING CALLED FOR YOUR BENEFIT. IN ORDER TO SECURE ALL THE BENEFITS YOU ARE ENTITLED TO YOU MUST BE ORGANIZED. G The findings in this section are based upon a stipulation of the parties entered into at the hearing Counsel for the Respondent in his brief, however , argues that the effect of the Respondent's interstate transactions on commerce are of such insufficient magnitude as not to justify the application of the Act to the Respondent 's business . The undersigned finds this contention to be without merit Unless otherwise indicated all events referred to herein occurred in 1947 U. S. TRAILER MANUFACTURING CO. 119 THE ONLY WAY THIS CAN BE ACCOMPLISHED IS THRU ORGAN- IZATION AND IN THAT WAY YOU WILL RECEIVE BETTER WAGES AND WORKING CONDITIONS. THIS WILL BE AN OPEN MEETING AND WE WILL TRY AND AN- SWER ANY QUESTIONS YOU MAY WANT TO ASK. THIS THE INTERNATIONAL ASSN. OF MACHINISTS NOW HOLD CONTRACTS WITH ALL LARGE TRAILER MFG. CO. ALL VETERANS OF WORLD WAR II ARE GIVEN FREE INITIATION IN THE MACHINISTS. BE SURE AND SEE THAT YOUR FELLOW WORKER ATTENDS THIS MEETING. (S) THoMAs F. LYDON, Business Representative Local 314, I. A. M., Manor Hall, 39th & Troost, Kansas City 3, Mo. On Thursday, July 24, Dixon instructed Walter T. Jones, his foreman, to inform all of the employees that they were to attend a meeting in Dixon's office during the smoke period from 2: 30 to 2: 35 p. in. When the employees reported as instructed they found Dixon standing be- hind his desk with a copy of the pamphlet giving notice of the special meeting, set out above, in his hand. Dixon proceeded to address the employees on the subject of union organization. According to employee Rook's testimony, Dixon ... called us in. He was standing behind the desk, and he had a union pamphlet in his hand. He said it must be a sort of an outlaw union to pass out pamphlets on the outside instead of coming into the office to leave the pamphlets with them or pass them out inside. He said if anyone was going to go to the meeting he would attend the meeting and take some of us along, if they wanted to go. There was one fellow who said he would go with him, but he didn't show up at the meeting. I don't know what happened. Employee Hepple's testimony was substantially the same as Rook's with the exception that Hepple testified that Dixon also said : ... that he was in favor of unions but he didn't think that was the right one, and he wanted to know if any of us belong to the Machinist Union, and one of the fellows said yes, he had an honorary card in it . . ? Harper with reference to such meeting testified that Dixon ... wanted to know if there were any union men there, and there was one, Mr. Phillips, said he was an honorary member, and he [Dixon] also said he was in, [sic] favor of organized labor. Harper further testified : Q. Who said that? A. Mr. Dixon, but he thought this wasn't the right union to represent the plant. Q. Did he say why he thought that? A. Well, to the effect that it was a wildcat union, or something to that effect. I can't recall his exact words. ° In this connection, Dixon's secretary who was present at this meeting testified . Q What else, if anything, was said, as you recall? A. I don't recall too much about it. He (Dixon) asked if any of them did belong to that particular union and Phillips said he had an honorary card from Pratt-Whitney. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this same connection Tull, in part, testified : ... He [Dixon] asked any of us if we were machinists, if we were ma- chinists, if this was the Machinists Local 314,8 asked if any of us were Machinists [Members], and Mr. Phillips spoke up and told him he had an honorary card from Pratt-Whitney, and he said he was in favor of organized labor but he didn't believe that was the organization we should be in, or something about being an off-breed-something of that kind- organi- zation .... Dixon's version of the events of this meeting was as follows : A. Some of my employees came in and said, "Do we have to go to the meeting tonight?" And I said, "What meeting?" They said, "Well, didn't you call a meeting for us, aren't you having a meeting?" I said, "I don't know anything about it." So they handed me a handbill. I said, "Where did you get it?" They said, "Someone passed it around out there." I said, "I don't know anything about it but I will have a talk with all the boys." I called them in at smoke period. I said, "I understand"-I believe this gentlemen I had talked to handed me a bill and I read it. I said, "Boys, I understand you have some pamphlets here on the union meeting tonight." Some of them said yes. I said, "Well, this says the Machinists Union. Do you think that is the union or do you think you should belong to the cabinet- makers union? I was under the impression," I says, "that Machinists Unions would hire machinists." I said, "Are any of you boys machinists?" They said no. I said, "I am strictly for unionism or organized labor and if you boys want to join it is O. K. with me, but," I said, "I would like for you to be sure that you are getting in the right union for the type of work you are doing, and if any of you boys would like to go tonight if you will meet me over here I will go up there with you and we will see what it is all about, and if this is the proper union and you want to join it it is O. K. to join it." Nobody said they wanted to go but one man, Mr. Johnson volunteered to go with me. He was my electrician. So after the boys went back from the smoke period, why, Mr. Johnson approached me, and he said, "Do you want me to go with you?" I said, "Would you like to go and investigate the union?" He said, "No, I am not interested in it, but I am just going along for company for you if you want me." I said, "Since none of the other boys want to go I won't go and if you have no special interest coming over I am not going," and that was the last of it. From the foregoing it is clear that upon learning that the Union had called a special meeting for his employees, Dixon called a special of his own during which he questioned his employees as to their union affiliation ; disparaged the Union as one in the nature of an "outlaw," a "wild-cat" or an "off -breed" one ; 8 and one that was guilty of improper, if not reprehensible conduct by passing out pam-, phlets to the employees "outside" the plant instead of bringing them to the office or distributing them inside the plant. s In the Notice of Special Meeting set out above it will be noted that the words and numbers "Local 314, I. A M." follows the signature of the Union's Business representative. e The witnesses testifying to the terms Dixon used in his description of the Union did not use identical words or terms. It is significant that the terms they did use, were under the circumstances, practically synonymous. The undersigned is convinced and finds that Dixon used the words ascribed to him above or similar derogatory ones in an attempt to discourage his employees from attending the Union meeting to which they were invited. U. S. TRAILER MANUFACTURING CO. 121 In his version of the events and the occasion for calling such meeting testified in part that : Some of my employees came in and said, "Do we have to go to the meeting tonight?" and I said, "What meeting?" They said, "Well didn't you call a meeting for us, aren't you having a meeting?" I said, "I don't know anything about it...." No employees were called to testify that they asked Dixon if he had called the meeting in question or that they asked Dixon if they would "have to go" to such a meeting. A perusal of the notice of such meeting set forth above discloses that such notice contained no information or suggestion that would indicate directly or indirectly that Dixon had called such meeting, quite the contrary is apparent from such notice. The undersigned does not credit Dixon's quoted testimony above in this connection. It is undisputed that Dixon did, on the occasion of this office meeting state in substance that he was in favor of organized labor and that he did not believe that the Union was the right type of Union for his employees to join.10 On the foregoing and the record the undersigned finds that Dixon called the July 24, 1947, meeting of his employees at his office for the purpose of disparaging the Union, questioning his employees concerning their union affiliation and in an attempt to discourage his employees from attending the special meeting that had been arranged for them by the Union." On the night of Thursday, July 24, nine employees attended the union meeting at the place designated in the notice of "Special Meeting" '2 and all nine of these employees signed authorization cards designating the Union as their representa- tive for the purposes of collective bargaining. When the employees reported for work on the following morning, Friday, July 25, they found that their time cards had been withdrawn from the rack. They waited outside the plant until the 8 o'clock bell rang and they were then all called into Dixon's office. The latter then announced that there was going to be 10 No finding adverse to the Respondent has been made by the undersigned as a result of Dixon's having expressed an opinion that he did not believe that the Union was not the right type of union to represent his employees. 11 There was testimony of employee Tull to the effect that Dixon, during the meeting of employees at his office on July 24 , stated that he was paying all the wages he could afford; that if any employee felt that he was not getting enough money to come to him and he would either give such employee a raise or fire him ; and that if the men joined the Union they would be working for lower wages by the end of the year. Employee Harper testified that Dixon "said that it might be that if they got a Union there that wages wouldn't be as good as they was, that he was paying all he would pay anyway." Four other winesses called by the General Counsel were asked to recount all that they "recalled" as to what was said and done at such meeting. None of the four mentioned any statements made by Dixon with reference to wages, and only Tull testified that Dixon said any employee who felt he was not being paid enough could see him and he would either give such employee a raise or fire him. While the undersigned has credited the testimony of both Tull and Harper generally, and does not now definitely conclude that Dixon did not make some reference to wages during the meeting, he is of the opinion that had Dixon included in any discussion of wages, a threat to cut wages or discharge any employee not then satisfied with his wages, such statement by Dixon would have remained uppermost In the minds of his employees and more than one or two out of six employees who testified to events of the meeting, would have recalled such statements . From the foregoing the undersigned finds that the preponderance of the evidence will not support a finding that Dixon made any threats to cut wages in the event that the Union organized his plant . It is so found. 12 See footnote 3, above. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a lay-off, "due to shortage of materials" He then handed Foreman Dixon certain time cards and instructed him to call off the names on them, and stated that those whose names were called would return to work, and that those whose names were not called were to get their tools and return to the office and receive their checks 1' Only the nine employees who attended the union meeting on the preceding evening and signed authorization cards, were laid off on this Friday morning, July 25 14 On July 25, notwithstanding that Dixon allegedly found it necessary to lay off nine employees, four additional employees were added to the pay roll.36 On July 28 the Union filed charges of unfair labor practices against the Re- spondent alleging the discriminatory discharge of the nine employees named hereinbefore. On July 29, the Regional Director for the Board for the Seven- teenth Region, Kansas City, Missouri, notified the Respondent o, the filing if such charge. Following the receipt of the notice of filing charge next above mentioned, the Respondent sent notices to a part of the employees discharged on July 25 requesting them to return to work. 2. The issues as to the July 25 terminations The General Counsel contends that the terminations of July 25 were discrimina- tory, and the Respondent contends that such terminations were occasioned by a shortage of material. As to the Respondent's contention, the record does disclose that during June and July there had been some shortages of materials ; that such shortage as it applied to plywood was greater in June than in July ; and that instead of laying employees off during June, the Respondent found other work for them to do and retained them on the pay roll. While the Respondent contended that a shortage of plywood was the chief reason for the July 25 lay-offs, the record clearly dis- closes that as to a number of the employees so laid off, the alleged shortage would not have interfered with their continued employment. For instance, Harper made panel doors for furniture used inside the trailers, cabinets, etc. He used scrap plywood and it is undisputed that there was always "a good big pile of that." Jeffress was an all-round laborer who worked all over the plant whenever needed '6 The record discloses that one week's pay was held back. On this occasion those who did not return to work were paid in full. 34 On direct examination Catherine Pilsl , Dixon's secretary , testified that in addition to the nine men mentioned that were laid off "on the week ending July 25" that one, Joseph Carey was also laid off at the same time ( during the week ending July 25 ). On cross- examination the Witness Pilsl referred to one "Perry" as "the" employee who had been laid off along with the nine men above referred to. The Respondent offered no testimony as to the type of work which had been performed by Carey, or Perry (whichever is the correct name), as to the type of work which had been performed by Carey ( or Perry ), or the reason for his termination as an employee or whether he voluntarily quit, or had been discharged for misconduct or for reasons other than the alleged material shortages. No Respondent witness testified that Carey (or Perry ) was laid off or terminated on the morning of Friday, July 25, at the time the nine employees who had signed union authorization cards were terminated. The record will not support a finding that Carey (or Perry ) was dis- charged or laid off at the same time as were the nine employees named in footnote 3. 16 These four were Elmer J. Dudding , Roman Luckenotte , Harvey Sparks, and Howard Sparks. 16 Dixon testified that he instructed his secretary to send notice to all nine men who were terminated on July 25 . The record discloses that Lester Tull, Harper, Rooks, and Hepple received such letters and subsequently reported for work. Jeffress, Krause, Hudson, and Parisi denied having received such letter. This issue as to these latter four employees, is discussed and determined in Section III B below. U. S. TRAILER MANUFACTURING CO. 123 and could have done work that was done by new employees hired on July 25. Parisi was a welder who worked from 6 a. in. to 12 noon building frames. It is undisputed that there were several tons of steel on hand at the time of Parisi's lay-off. Krause was a spray painter and had as his helper Cleo Hudson. The record discloses that his spray painting job would not keep him busy at all times, and when not doing spray painting, aid odd jobs such as to hang doors and finishing work on the inside of trailers" and could have been continued at the latter jobs. While the record indicates a shortage of plywood on occasion , it discloses that on the evening of Wednesday, July 23, the Respondent received 100 sheets of plywood ;18 that on the evening of Thursday, July 24, the Respondent received a semi-trailer load of 2 x 4's and 1 x 6's; and that on Monday, July 21, a shipment of steel for making frames was received. As is noted hereinbefore, the Respondent hired at least four new employees on July 25, the date of the discharge or termination of the'nine employees who signed union authorization cards. In connection with two of the new employees, Dixon testified : Q. What work did you put the Sharp ( sic)19 brothers to doing when they came to work? A. Put them in the work done on the line. Q. What is the work done on the line? A. Anywhere from building sides, laying floors, to tightening up screws and bolts on the frame, helping the masonite crew, stretching canvas on the trailer, installing windows, just general work that any laborer can do. No skilled work. From a description of the duties allegedly assigned to the newly employed Sparks brothers, it would appear that any of the nine employees discharged, as found above, could have performed the work assigned to the Sparks brothers 2° Dixon testified and contended that at the time of July 25 lay-offs or discharges, he had no knowledge that the nine employees in question attended the union meeting. In this connection Krause testified that he went to the union meeting by streetcar alone, arriving about 7:30 p. in.; that he went into a tavern and had a glass of beer ; that he returned to the vicinity of the union hall where he found employees Tull and Hepple sitting in a parked car ; and that behind the Tull-Hepple car, "about two car lengths," was Dixon's secretary's car occupied by Dixon and Jones. Krause further testified that he "told the boys' that " the boss and the foreman was (sic) behind us." Neither Tull or Hepple testified that they personally saw Dixon and Jones in the secretary's car, but did testify that 17 While Krause was included among those for discharge on July 25, his "helper," Cleo Hudson, who did not attend the union meeting, was retained 19 Foreman Jones testified that 100 sheets of plywood would normally last about 3 days. Since the supply above referred to had only been used 1 day, at least 2 more days supply was on hand when the nine men in question were discharged on July 25. 19 This should have been "Sparks" The undisputed evidence in the record discloses that Harvey and Howard Sparks, twin brothers, were employed on July 25, 1947. 20 The undersigned does not credit testimony of Dixon and Foreman Jones that the four or five men hired on July 25 were hired in order that they could be broken in as trailer workers by the time a new supply of plywood became available and the discharged em- ployees were recalled to work, since he is convinced as is found below, that all nine employees were discriminatorily discharged on July 25, and that the Respondent at the time of the discharges, had no intention of calling them back to work. The fact that the Respondent subsequently rehired a part of the discharged employees after the Union had filed charges, is under the circumstances herein, no evidence that the discharges of July 25 were, as Respondent contends, merely lay-offs. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Krause joined them at Hepple's car . Rooks testified that he saw a car that looked like that of the Respondent's secretary, but could not swear who was in the car. Hudson testified that he too saw a car that looked like Dixon 's secretary's car. Parisi, who did not work afternoons , testified that he did not learn of the meeting until the night of the meeting, when Finus Hudson handed him a notice of such meeting : that he went to the meeting alone by streetcar and arrived late. He testified : Q. Who did you see after you got off the streetcar, A. As I got off the streetcar and got on the sidewalk I noticed Mr. Dixon and Mr. Jones in Catherine's car there. Q. In whose car? A. Catherine, the secretary. Mr. Dixon was driving. Evidently he didn't see me. He had to watch the traffic. It was pretty heavy. He made a left turn to going North on Troost, or Thirty-seventh.21 Q. How about Mr. Jones? A. I don't know whether Jones saw me, but he was sitting facing Mr. Dixon. Q. Would that have been facing towards you? A. Facing towards me. Q. When you went on up to the union meeting? A. I went on to the Union hall and the fellows asked me if I saw Mr. Dixon and I told them yes, I did and if I saw anyone else. I told them no. Miss Pilsl, Dixon's secretary, testified that Dixon often borrowed her car, a gray 1947 Plymouth , for his personal use, and that she could not recall whether he had borrowed it on the evening of July 24 . Both Dixon and Jones cate- gorically denied being present at or near the union meeting place and each testified that they were at their respective homes on the night in question. Neither Krause nor Parisi were cross-examined on their testimony to the effect that they saw Dixon and Jones near the union meeting in Pilsl 's car. As found above, Dixon expressed a willingness and an intention to attend the union meeting in the event any of the employees expressly indicated an intention to attend such meeting, and offered to take them to the meeting. Both Krause and Parisi impressed the undersigned as credible witnesses. Their testimony in connection with the events of the evening of July 24 is credited n2 Dixon , on the other hand , was vague and inconsistent in his testimony to say the least. With reference to the exact time that he determined to lay off the nine employees named in footnote No. 3, Dixon on cross-examination testified : Q. When did you have the conference with Mr. Jones as to exactly which employees you were going to lay off? 22 Respondent's counsel, in his brief, states that Parisi testified that he saw Dixon and Jones in the gray Plymouth at "27th " and Troost or "over a mile from the meeting place." In such statement Respondent's counsel is in error, as Parisi referred to "37th" Street. The record discloses that the meeting was held at 39th and Troost Streets ; and that Parisi was from 7 to 15 minutes late; and it is reasonable to believe that Parisi, arriving late, could have noted Dixon and Jones leaving the vicinity when he was within 2 blocks of the meeting place. As is set forth below, the undersigned credits Parisi's testimony in this connection. 22 In evaluating the testimony of Krause and Parisi in this connection the undersigned has considered among other things the fact , that in selection of employees for discharge, only those employees who attended the union meeting on July 24 , were chosen for dis- charge ; and the further fact that the Respondent failed to offer plausible and convincing explanations demonstrating that the reason for such discharges were non-discriminatory ones. U. S. TRAILER MANUFACTURING CO. 125 A. Oh, two or three days after 2' (before) the layoff. Q. You actually made up a list of employees at that time? A. Yes, Ma'am. Q. When did you say you decided on the lay off? A. About a couple of days, or three days, before. Q. I would like to ask, why didn't you have the checks made up so as to give them that evening (July 24) so as not to come back to work the following morning to get the checks? Why didn't you let them go that evening? A. We didn't have the checks made out. Q. You decided two or three days earlier you were going to have the lay off; why didn't you have the secretary prepare the checks earlier? A. I was busy and didn't get around to it, I suppose. While Dixon testified in substance and effect that he and Foreman Jones had together agreed who was to be laid off and that such decision was made 2 or 3 days before July 24, Jones testified : Q. Do you recall just when you and Mr. Dixon had this meeting, at which time you agree upon the men to be laid off for lack of materials? A. Well, it was that week, it was just, I think that day that we had that meeting in the office that we fully decided to shut down and lay off half of them instead of laying them all off. ( Emphasis added.) Q. You decided the same day that he called them into the office? A. Yes. Q. Do you remember whether it was that morning? A. Well it was around noon when we were talking about it? Q. You and Mr. Dixon got together at that time and went over the pay roll and decided which men would be laid off? A. He told me which men he wanted to keep and what he didn't in order to do that, or else shut the whole plant down." The record discloses that the Respondent's normal pay roll averages about 30 production and maintenance employees 2' If the testimony of Dixon and Jones Is to be credited, one must find, purely as a matter of coincidence, that prior to the time any of the employees had either decided to or attended the union meet- ing and signed authorization cards, the Respondent, without knowledge as to whether a union meeting was to be held, or whether, in the event a union meet- ing was held, which if any, of its 30 employees might be expected to attend such " The word "later" was used either inadvertently or by way of a typographical error, since on direct examination , Dixon had already testified as follows : Q. Now, at that time (meeting during smoke period 2: 05 p. in., on July 24, in Dixon's office ) had you already made up your mind as to whether or not you would lay off some men? A. Yes. Q. And had made up your mind as to who the men were? A. Had the list already made up. K It should be noted at this point that Jones's answer has reference to July 24 and that the record discloses without dispute, that Dixon hired at least four new employees on July 25. u Dixon at one point in his testimony referred to the number as from 30 to 35 employees ; Secretary Pilsl gave the number as from 25 to 30 ; and the pay roll for August 6 lists the names of 26 employees with the Secretary and Foreman included and the names of 9 dischargees excluded. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting and sign authorization cards, it selected for lay off only the nine employees who later attended the union meeting and signed authorization cards. The mathematical possibility that selection of the nine employees terminated on July 25 bore no relationship to their common interest in the union and their joint attendance at the meeting on July 24, but resulted from the opera- tion of chance, is exceedingly remote.26 While such possibility, however remote, may not be ignored altogether, the mathematical improbability that the attend- ance at the union meeting of these nine employees was disregarded as a relevant factor in their choice for termination is so great as to cast the burden upon the Respondent to come forward with a plausible and convincing explanation demonstrating that the action taken by it with respect to each affected employee was based solely upon non-discriminatory consideration .27 This the Respondent has not done. As found above, among the 9 employees terminated were painters, welders, cabinet makers 22 and laborers from which only those in each category who attended the union meeting were terminated on July 25. No plausible or credible explanation was advanced for the retention of any of the 2129 retained employees in preference to the 9 let go. Moreover, as found above, Dixon and Jones were present in the vicinity of the Union Hall at a place where they could observe those employees who entered the hall at or about 8 p. in., on July 24 when eight of the nine employees entered the Hall and that Dixon and Jones passed Parisi at a point a short distance from the hall, as the latter who arrived late, was en route to the meeting. From the foregoing and the record the undersigned is of the opinion and finds that Dixon and Jones observed the nine employees as they entered or were en route to the Union Hall on the evening of July 24. The record indicates, as found above, that on July 21, the Respondent received a supply of steel for frames ; on the evening of July 23, it received a shipment of plywood ; and on July 24, it received a shipment of 2 x 4's and 1 x 6's, and was thus equipped to continue normal products for several days after July 24.80 28 At the time of the lay-offs Respondent employed 30 production and maintenance employees. Of this group, only 9 had attended the union meeting on July 24. On the basis of pure chance, the mathematical possibility of terminating these 9 employees who attended the union meeting, and no others , was less than 1 chance in 14,000,000. The situation is comparable to that of a blindfolded person selecting at random 9 red marbles in succession from a bowl containing 30 marbles , 21 of which are white, and 9 are red. See Mills Statistical Methods, Henry Hall & Company , New York, 1942 , p. 518. "The Multiplication of Probabilities." See also Matter of Harold Y. Baker Company, 71 N. L. R. B. 44. 71 N. L. R. B. v. Bachelder, Receiver, 120 F. (2d) 574 (C. C. A. 7) ; N. L. R. B. v. Chattanooga Bakery, 127 F. (2d) 201 ( C. C. A. 6 ) ; Woolworth Co., F. W., v. N. L. R. B., 121 F. (2d) 658 (C. C. A. 2). 28 Dixon, with reference to cabinet makers, testified : Q. But you decide the policy and from which department to lay them off? A. Yes Ma'am. Q. It would be your decision to lay off cabinet makers? A. Yes, Ma'am, the majority of them. There were a few exceptions. 20 The only possible exception contained in this retained group of 21 , is James Ketteman listed in the record as a welder. The record discloses that on and prior to July 25, Ketteman was Parisi's helper. While Parisi generously testified that Ketteman was a competent welder, and the Respondent contended that it needed but one welder who could work full days, the record discloses that Parisi was a competent and satisfactory employee who built one frame each workday ; that there was ample steel on band for frames ; and that the Respondent was preparing for and expected his business to expand. On the record the undersigned is convinced that but for the fact that Parisi attended the union meeting he would not have been discharged on July 25. 16 This would be the first day on which the plywood shipment which was received on the evening of the preceding day could have been used. U. S. TRAILER MANUFACTURING Co. 127 From all of which it is clear that the alleged shortages of material was not so great as to require the abrupt discharge or lay-off, without prior notice, of the nine employees, and only the nine employees, who had attended the union meeting and signed union authorization cards. Assuming, however, that an economic lay-off was advisable, the Respondent's conduct in selecting for lay-off, only those 9 employees who had attended the meeting and signed union authorization cards, while retaining some 21 em- ployees who had taken no part in the union activities discloses a disparity of treatment between the two groups-those employees who attended the union meeting and signed authorization cards and those employees who did not attend such meeting or sign such cards-leading to a clear conclusion that anti-union discrimination was shown in such lay-offs. It is so found." From the foregoing and the record the undersigned concludes and finds that on July 25, 1947, by terminating the employment of Finus Hudson, Mitchell Hooper, James W. Rooks, Leonard L. Jeffress, Jasper Parisi, W. T. Harper, Frederick Krause, Damon Hepple and Lester M. Tull, the Respondent discrimi- nated with respect to their hire and tenure of employment, thereby discourag- ing membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Wagner Act and Section 7 of the Amended Act. It is further found that by, on July 24, 1947, calling a meeting of his em- ployees at his office for the purpose of and by disparaging the Union ; by ques- tioning his employees concerning their union affiliation in an attempt to keep them from attending a meeting of the Union on the night of July 24, 1947; and by keeping said union meeting under surveillance, all as found above, the Re- spondent interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Wagner Act and Section 7 of the amended Act all in violation of Section 8 (1) of the Wagner Act and Section 8 (a) (1) of the amended Act. B. The discriminatory refusal to reinstate certain employees (a) Jeffress, Hudson, and Krause It has been stated above that these 3 former employees were discriminatorily discharged on July 25. The Respondent contends and testified that all 9 em- ployees discharged on July 25, were, under date of August 1, by letter, requested to return to work. Jeffress, Hudson, and Krause each testified that they were not recalled to work after the lay-off of July 25. The only issue for determina- tion in this connection is whether or not the Respondent actually sent word to these 3 former employees requesting them to return to work. On direct examination, in this connection, Dixon testified : Q. (By Mr. HALL:) How soon after that (August 1), Mr. Dixon, was it you had Miss Pilsl write to the men to return to work? A. Immediately. Q. On that same day? A. Yes, sir. In this same connection, and on direct examination, Secretary Pilsl testified : Q. Were you the one who notified the, wrote the letters to the, men on August 1, 1947, to come back to work? A. Yes. 31 See footnote 27 above. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. At whose instruction did you ... A. (Interrupting) Mr. Dixon's. The two preceding questions and answers constitute the entire testimony of the secretary in connection with the writing of letters to discharged employees requesting their return. On cross-examination Dixon testified : Q. Did you request all of the employees that you did rehire, did you send them letters at about the same time? A. Yes, Ma'am. Q. Would you request them one at a time as you had no need for them? A. No, we sent the letters all out, I believe. My orders to Miss Pilsl were to send them all letters. I don't know whether they were sent the same day or not. I can check it. Q. Did you mean that you had her send a letter or requested her to send a letter to all those who had been laid off? A. Yes, Ma'am. Q. Parisi included? A. I don't recall. Q. All nine men that had been laid off, you requested all of them to be sent letters offering them reemployment? A. Yes, Ma'am. Q. Did you check to see whether or not those letters were sent. A. No. I didn't. Q. Did you make any inquiry why you didn't hear from all of them? A. No, I didn't. Q. Did you make any effort to follow up on any that you did not hear from? A. No, Ma'am. Q. In other words, you sent letters on August 1 and then did not make any attempt to make a second effort to contact any of those that you had not heard from or had not reported for work? A. No, I didn't. s s r s s r s Q. Do you know definitely whether any of the letters were actually written? A. I do not. I took Miss Pilsl's word for it. She has worked for me a good many years. I had no reason to doubt that she wrote them. Notwithstanding that the three employees referred to herein had testified positively that they had not been recalled to work, the Respondent offered no evidence in support of his claim that the three had been notified to return to work, other than the above-cited vague and indefinite testimony of Dixon and Secretary Pilsl. Two of the employees, namely Jeffress and Hudson, were not cross-examined in connection with their testimony to the effect that they had not been recalled to work after the July 25 discharge. On cross-examination Krause was asked if he did not receive a letter recalling him to work. He denied receiving such letter but testified that he had a letter from the Respondent which purported to give the reasons for his lay off. The undersigned is of the opinion that if the Respondent had in fact sent letters to Jeffress, Hudson, and Krause requesting their return to work, that it U. S. TRAILER MANUFACTURING CO. 129 would have had copies of such letters on file.and would have offered them in evidence in support of their contention, if in fact such letters had been sent. Jeffress, Hudson, and Krause were credible witnesses and their testimony to the effect that they were not recalled to work during 1947 is credited by the undersigned. From the foregoing and the record the undersigned concludes and finds that the Respondent by failing to recall Jeffress, Hudson and Krause following their discriminatory discharge on July 25, discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union and in- terfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Wagner Act and Section 7 of the amended Act. It will be recommended below that Jeffress, Hudson and Krause be offered immediate and full reinstatement to their former or substantially equivalent positions together with back pay, less net earnings. (b) Parisi As found above Parisi was discriminatorily discharged on July 25. Parisi credibly testified, and the undersigned finds that the Respondent did not by letter or otherwise request Parisi to return to work after his discriminatory discharge on July 25 but that on or about August 25, Parisi upon personal request made to Dixon, was permitted to return to work. However, at the time of his dis- charge Parisi was working as a welder at $1 per hour" While Parisi returned to work on August 25, he was not assigned to work as a welder or to any other substantially equivalent position, but was assigned to work as a common laborer at 80 cents per hour. Parisi subsequently received 90 cents per hour for a time. Parisi was discharged by the Respondent during December 1947. Such last discharge is not alleged as a discriminatory one. Since Parisi was discriminatorily discharged on July 25, he was entitled to reinstatement to the same or substantially equivalent position when he returned to work on August 25. Since the record shows Parisi was not reinstated to his former or substantially equivalent position, but was assigned to a more arduous position at a decreased rate of pay, it will be recommended below that the Respondent make him whole for any loss of pay he may have suffered between July 25, 1947 and the date of his last discharge in December 1947 by a payment of a sum of money equal to that which he normally would have earned as wages between said dates less his net earnings during such period. 82 The record indicates that for a short period during the summer of 1948 Krause had been employed by the Respondent. Krause testified without contradiction that about "two months ago" (prior to the hearing herein on August 4, 1947 ) he was temporarily employed to paint a trailer for the Respondent ; that subsequently he was employed by the Respondent for about a week during the absence of a painter and was replaced on the painter 's return. Dixon then offered Krause a job on "the line" at a cut in pay which Krause refused. There was no contention on the part of the Respondent that Krause's temporary employment in 1948 constituted a reinstatement to his former position. se The record discloses that Parisi was employed as a welder by the Respondent for some 5 to 7 months commencing in the winter of 1947 ; that inasmuch as he was attending a G. I. Body and Fender School, he worked but 36 hours a week as compared to the 48 hours a week worked by other employees. His work day as a welder began at 6 a. in. and ended at 12 noon. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The alleged discriminatory reinstatement of Tull, Hepple, Harper, and Rooks" The complaint alleges that the Respondent or or about August 11, 1947, did reemploy Tull, Hepple, Harper and Rooks,' and that Respondent assigned them to more arduous and less agreeable work at a reduced rate of pay. The record discloses as to these four employees that when they returned to work, they returned to the same jobs they had prior to July 25 at the same rate of pay formerly enjoyed. There was testimony to the effect that both Dixon and Jones were less friendly than prior to the July 25 lay off and did not visit with or joke with the employees after their reinstatement to the extent that they had prior to the July 25 discharge. The record will not support a finding that the Respondent assigned the four men last above-named to more arduous and less agreeable work and at decrease in the rate of pay upon their reinstatement after their discharge. It will be recommended below that the complaint insofar as it alleges that Tull, Hepple, Harper and Rooks were not reinstated to their former or substantially equivalent employment that it be dismissed D. The alleged discriminatory discharge of Elmer Dudding The complaint alleges that the Respondent discharged Elmer Dudding on or about August 30, 1947, and since said date has failed and refused to reinstate him to his former or substantially equivalent position of employment because of his union and other concerted activities. Dudding was one of the four or five men hired by Respondent on July 25, following the discharge of the nine employees referred to above. He was referred to the Respondent by the Missouri State Employment Office. He was hired by Dixon and was told that he could begin work on the afternoon of July 25, or on the following morning, July 26. He started to work on the latter date. With reference to his employment , union activities, and subsequent discharge Dud- ding, in substance , testified that: when he was hired , Dixon asked if he belonged to a union and that he replied in the negative ; when asked if he had any prior experience, he answered "no," and was told by Dixon that prior experience was not necessary ; about 3 weeks after his employment he signed a union authoriza- tion card at the request of an employee in the cabinet shop, one Harper,3e a dischargee of July 25, who had been reinstated ; on the following day, which was either Tuesday, August 26 , or Wednesday, August 27, informed Roger O'Dell, a fellow employee, that he signed such card ; that shortly thereafter Foreman Jones called him outside and demanded to know who had given him the union card, not knowing Harper by name, Dudding described his appearance to Jones and stated he worked in the cabinet shop; Jones then said , "0. K., keep it under your hat," after which, Jones went to his office, and Dudding returned to work ; that he [Dudding ] worked for the rest of that week , during which time he "noticed that the foreman was watching me . . ." that on Saturday (August 30), when the checks were handed out Jones told him Dixon wanted to see him. 14 The complaint includes Mitchell Hooper with this group . Hooper did not testify as a witness at the hearing. The record, however, discloses that he was discriminatorily discharged on July 25, and was entitled to reinstatement by the Respondent. No witness testified that he had actually been reinstated. If he was reinstated, he would be entitled to back pay from the date of the discrimination on July 25 to the date of such reinstate- ment If not in fact reinstated Hooper is entitled to be reinstated with back pay from the date of his discriminatory discharge on July 25, 1947, to the date of the offer of such reinstatement. 25 Date of reemployment of Rooks is alleged as August 25, 1947. 36 Dudding testified that he did not know Harper by name at this time. U. S. TRAILER MANUFACTURING CO . 131 Dudding further testified : A. . . . When Mr. Dixon come in the office I asked what he wanted to see me about . He said he was short of materials and he was going to have to lay me off. I asked him if it had anything to do with the union. He said `What about the Union ?' I said, `Well Jones asked me about signing the card.' We went out in the shop and Mr. Dixon talked out in the shop. He asked me, 'Did you sign the union card?' I said, `Yes , I did: He said, 'A man of your age, I don't see why you let them pull the wool over your eyes. I liked your work,' and he also said, 'I wouldn't let any white-collared, back- biting, son-of-a-bitch take you.' I went out and got on the bus. The fore- man 37 I worked for got on the bus with me. He said, 'I heard you got fired.' I said yes , and he said, 'What was it over?' I said, 'Over the union, I guess.' He said, "Who told it?' I said 'Roger did.' He said, 'You ought to know not to tell Roger nothing, he runs to the office with everything.' Q. Why did you think Roger (O'Dell) was the one who told you? A. Roger was the only one in the plant who knows I signed a union card. Q. Other than the fellow who gave the card to you? A. That is right. Roger O'Dell, with reference to Dudding's alleged union activities, testified in substance, that he was employed by the Respondent from July 17 to sometime in September ; that about a month after Dudding went to work he asked O'Dell to join the Union and the latter replied that he might do so if his group of fellow employees from Strausburg joined ; that Dudding's suggestion that O'Dell join the Union grew out of one "Doc," 38 "pushing" them : that budding then told O'Dell that the former was a member of the Union; that after the "pushing" incident Jones asked O'Dell if he thought Dudding had joined the Union and he [O'Dell] said, "Yes"; that "the next day Elmer (Dudding) told me Jones got on him," and asked O'Dell if he had told Jones that budding had joined the Union, and O'Dell said that he had done so ; that after Dudding left the plant Jones asked O'Dell who had the "union slips" in the plant; and O'Dell replied that he did not know. O'Dell voluntarily quit his job a few days after Dudding left. Harper testified in substance that he was the one who gave budding a union card to sign ; that it was handed to Dudding after working hours while the two were at the bus stop; that budding returned the card with the signature to Harper during a rest period on the following day ; that he passed out cards to other employees to get them to join the Union ; that while he was not criticized by Dixon or Jones for such acts; he did not think they knew he "was doing it," as he was careful not to pass out cards in the presence of either Dixon or Jones. Jones categorically denied ever discussing the Union with either Dudding or O'Dell. Dixon likewise denied that he had discussed the Union with budding either at the time he hired or at the time he laid him off or that he ever knew that he had engaged in union activities while at the plant. Dixon further testified that he laid budding off because, "the man wasn't getting out the work, he wasn't adapt- ing himself to that type of work." Dudding had had no experience in such type of work as he had been in the insurance business before his employment by Dixon. In order to find that budding was discharged for Union activities one must credit the testimony of budding and O'Dell and find that a chain of events "The record discloses that Jones is the only "foreman" employed by the Respondent Dixon may have referred to one "Doc " ; see footnote next below 11 "Dot's" full name not disclosed by the record 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred, as follows: (1) that Dudding engaged in union activities, and signed a union authorization card; (2) that O'Dell asked Dudding if he belonged to the Union, and that Dudding replied, "Yes, I signed a card"; (3) that on the same day O'Dell learned that Dudding had signed a union card Foreman Jones asked O'Dell if he thought Dudding had joined the Union and that O'Dell said, "Yes"; (4) that on the following day Jones called Dudding outside and asked him who gave him the card to sign with the result that Dudding described Harper, after which Dudding informed O'Dell that "Jones got on him," and asked O'Dell if he had told Jones that Dudding had joined the Union and O'Dell replied that he had done so; and (5) that Jones informed Dixon that he had learned of Dudding's union activities, with the result that the latter was discharged for such activities. Insofar as the record discloses, the only union activities engaged in by Dudding consisted of signing an authorization card, which he signed away from the plant on one evening, and delivered the signed card to Harper during a smoke period on the next day. Both Dudding and O'Dell, however, testify that as the result of an employee identified only as "Doc," "riding" them, Dudding stated to O'Dell, "Well, if we had a union we wouldn't have that trouble." Neither Dudding or O'Dell testified that the above statement or any other pro-union statement was made by Dudding within the hearing of "Doc" or Foreman Jones nor is there any testimony credible or otherwise, in the record tending to indicate that Jones knew or had reason to know or suspect that Dudding had signed an authorization card prior to the time that Jones allegedly asked O'Dell if the latter "thought" Dudding had joined the Union. • Thus, on the record, there would seem to have been no occasion for Jones to ask O'Dell if he "thought" Dudding "had joined" the Union. As is set out above, O'Dell testified that after Dudding's termination, Jones asked O'Dell who had the Union "slips" to pass out for signatures, and that he told Jones that he did not know. Dudding on the other hand testified that some 3 or 4 days prior to his discharge Jones asked him who gave him the card for signature ; and that he finally described the employee [Harper] I as "a heavy set guy," who wore a "gray hat," and worked on the "cabinet shop." Since there was a limited number of employees engaged in the cabinet shop, the undersigned is of the opinion that Jones would have no trouble in identifying Harper from Dudding's description, if in fact Dudding did describe Harper or any other employee as the source of union cards. It would appear that if Dudding's testimony to the effect that he described the employee from whom he received the union authorization card for signature be true, Jones would have no occasion to query O'Dell, some 6 or 7 days later, as to the source of such cards. As Harper was in fact actually engaged in union organizational activities, though not on company time, he and not Dudding would have been the one likely to be selected for discharge on this occasion if the Respondent actually knew of the activities of Harper, and was at this time disposed to resort to further discrimination in an effort to discourage membership in the Union. Conclusions From the foregoing and upon the entire record the undersigned concludes and finds that between on or about August 11 and 25, 1947, Dudding, at the request of Harper, signed a union authorization card; that the record contains insuffi- 8' The undersigned credits Harper's testimony to the effect that he was the one who gave Dudding the authorization card for signature and that he also passed out cards to other employees for signatures. U. S. TRAILER MANUFACTURING CO . 133 cient credible evidence to support a finding that either Foreman Jones or Man- ager Dixon were informed, prior to August 30, 1947, the date of Dudding's discharge, that Dudding had signed such union authorization card or that he had engaged in any union or concerted activities during the period of his employment by the Respondent ; and that by the discharge of Elmer Dudding on August 30, 1947, the Respondent has not discriminated in regard to the hire and tenure of his employment.'0 It will be recommended below, that the complaint, insofar as it so alleges, be dismissed. 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, had a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, intend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged In certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policy of the Act. The undersigned has found that the Respondent has discriminated in regard to the hire and tenure of employment of nine employees, namely Finus Hudson, Mitchell Hooper, James W. Rooks, Leonard L. Jeffress, Jasper Parisi, W. T. Harper, Frederick Krause, Damon Hepple, and Lester M. Tull. As to Employees Tull, Hepple, Harper and Rooks, each of whom were reinstated after their discriminatory discharge on July 25, 1947, it will be recommended that the Respondent make them whole for any loss of pay they may have suffered between July 25, 1947 and on/or about August 11, 1947'1 by a payment of a sum of money equal to that which each would have normally earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during such period ; that as to Jeffress, Hudson, and Krause it will be recommended that the Respondent offer to each of these three employees immedi- ate and full reinstatement to their former or substantially equivalent positions 12 without prejudice to their seniority or other rights or privileges, and make them whole for any loss of pay they may have suffered by reason of the Respondent's 4° The fact that Dudding was hired on the very day that Dixon discriminatorily dis- charged the 9 employees listed in footnote No. 3, above, would be some indication that he was hired as a replacement for a dischargee and since the Respondent, after receiving notice an unfair labor practice charge had been filed, reemployed some 4 or 5 of the said 9 discharged employees, a course of conduct which leads to an inference that Dudding had been discharged in turn, in order to make room for discriminatorily discharged employee whom he had replaced. His discharge under such circumstance wouldl not be in violation of the Act. 41 The record indicates that the employees who were reinstated returned to work on or about August 11 or 12, 1947, however, the exact date as shown by the Respondent' s records was not introduced in evidence. It is the intention of this recommendation that the reinstated employees named above be paid up to the date they were actually reinstated and returned to work as shown by the Respondent's records. 4° 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 and if such position is no longer in existence then to a substantially equivalent position " See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 838914-50-vol. 82-10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discrimination against them by payment to each of them of a sum of money equal to that which he would have normally earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during such period ; and as to Parisi it will be recommended that Respondent make him whole for any loss of pay that he may have suffered by rea- son of the Respondent's discrimination against him by payment of a sum of money equal to that which he normally would have earned as wages at the rate of $1.00 per hour from the date of his discharge on July 25, 1947 to the date of his second discharge in December 1947, less his net earnings during said period ; and as to Mitchell Hooper, it will be recommended that Respondent make him whole for any loss of pay he may have suffered by reason of Respondent's dis- crimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge on July 25 to the date of the Respondent's offer of reinstatement, less his net earn- ings during said period. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. The International Association of Machinists is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Finus Hudson, Mitchell Hooper, James W. Rooks, Leonard L Jeff ress, Jasper Parisi, W. T. Harper, Frederick Krause, Damon Hepple, and Lester M. Tull, thereby discouraging membership in the International Association of Machinists, the Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Wagner Act, and Section 8 (a) (3) of the Amended Act. By interfering, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Wagner Act and Section 8 (a) (1) of the Amended Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of both the Wagner Act and the Amended Act. 4. By the discharge of Elmer Dudding the Respondent has not violated Section 8 (3) of the Wagner Act or Section 8 (a) (3) of the Amended Act. RECOMMENDATIONS Upon the above findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10 (c) of the Amended Act, the under- signed recommends that S. W. Dixon, doing business as U. S. Trailer Manufactur- ing Company, Kansas City, Missouri, his officers, agents, successors, and assigns : 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, by discharging and refusing to reinstate any of its employees or in any other manner 43 As noted hereinbefore, the complaint alleges that Hooper was reemployed on or about August 11, 1947, with a decrease in the rate of pay and was assigned to more arduous and less agreeable work by the Respondent. Hooper was not called as a witness and the record contains no testimony or evidence as to just what his rate of pay was or if he was in fact recalled as alleged in the complaint. U. S. TRAILER MANUFACTURING Co. 135 discriminating in regard to the hire and tenure of employment or any term or condition of employment ; (b) Interrogating its employees concerning their union affiliation, activities, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist International Association of Machinists, 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 and other mutual aid or protection as guaranteed in Section 7 of both the Wagner Act and the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Finus Hudson, Frederick Krause, Leonard L. Jeffress and Mitchell Hooper " immediate and full reinstatement to their former or substantially equivalent position, without prejudice to their seniority or other rights and privileges and make whole the above-named employees together with James W. Rooks, W. T. Harper, Damon Hepple, Lester Tull, and Jasper Parisi, in the manner set forth in Section V entitled "The Remedy" ; (b) Post at his plant in Kansas City, Missouri, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, after being signed by representa- tives of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notice to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced or covered by any other material ; (c) Notify the Regional Director for the Seventeenth 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 will be further recommended that the complaint insofar as it alleges that Lester M. Tull, Damon Hepple, W. T. Harper and James W. Rooks were not, at the time of their rein- statement by the Respondent, reinstated to their former or substantially equiva- lent position ; and that the complaints insofar as it alleges the discriminatory discharge of Elmer Dudding, be dismissed. 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 Inter- mediate Report and Recommended Order. 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. Statements of exceptions 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 I" This direction as to Hooper shall not apply if in fact Hooper was reinstated. 136 DECISIONS OF NATIONAL LABOR RELATIONS 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 rec- ommended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, con- clusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 15th day of October 1948. PETER WARD, Trial Examiner. 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 : 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 INTERNATIONAL ASSOCIATION OF MACHINISTS or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed and make them whole for any loss of pay suffered as a result of the discrimination. Leonard L. Jeffress Finus Hudson Frederick Krause WE WILL make whole those employees named below in the manner directed by the Trial Examiner in his Intermediate Report. A copy of said Intermedi- ate Report is on file in our office and may be examined by all interested parties, during business hours. Mitchell Hooper Lester M. Tull James W. Rooks Damon Hepple W. T. Harper Jasper Parisi 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 t& 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. U. S. TRAILER MANUFACTURING CO. Employer. Dated ------------------------ By --------------------------------------- (Representative) (Title) This notice must remain posted for 50 days from the date hereof, and must not be altered, defaced, or covered by any other material.