Augusta Chemical Co.

In the Matter of AUGUSTA CHEMICAL COMPANY and GIBSON BAILEY, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and CHARLIE BANKS, JR., AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and FLEMING BYRD, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and ANDERSON BUSSEY, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and JOHNNIE BYRD, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and WILLIE E. BRIGHAM, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and WILLIE COOPER, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and ANDREW DAVIS, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and GID DUNBAR, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and FRED GREEN, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and JOE GILLAM, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and MATTHEW W. HANKERSON, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and TIM HOBBS, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and MARION JOHNSON, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and EUGENE MARSHALL, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and LEROY MILES, AN INDIVIDUAL 83 N. L. R. B., No. 7. 844340-50-vol. 83-5 53 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the Matter of AUGUSTA CHEMICAL COMPANY and JOHNNIE M. PERRIN, AN INDIVIDUAL In the Matter of AUGUSTA CHEMICAL COMPANY and SAUL JONES, AN INDIVIDUAL - In the Matter of AUGUSTA CHEMICAL COMPANY and JOHN T. STREET, JR., AN INDIVIDUAL - In the Matter of AUGUSTA CHEMICAL COMPANY and CLINTON T. JONES, SR., AN INDIVIDUAL In the Matter of AUGUSTA- CHEMICAL COMPANY and WOODROW WILLIAMS, AN INDIVIDUAL Cases Nos. 10-CA-118 through 10=CA-134, 10-CA-136 through 10-CA-139, respectively.Decided April 25, 1949 DECISION AND ORDER On July 15, 1948, Trial Examiner Martin S. Bennett 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 Intermediate Report attached hereto. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter the Re- spondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.2 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three- member panel [Members Houston , Reynolds , and Murdock]. 2 We agree with the Trial Examiner's finding that it was entirely proper for the Union to assist the charging parties in the preparation of their cases and the filing of their charges. We consider as superfluous and immaterial , however, his further finding in that connection that the Union "in all probability-would have been derelict in its responsibility to its membership" if it had not done so, and, accordingly , we do not adopt that finding. Although Mr. Reynolds agrees that Saul Jones was discharged under the circumstances outlined in the Intermediate Report, the Trial Examiner 's finding that Jones was not a AUGUSTA CHEMICAL COMPANY ORDER 55 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, Augusta Chem- ical Company; Augusta, Georgia, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in any labor organization of its em- ployees by discriminating in any manner with regard to the hire and tenure of employment or any terms or conditions of employment of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties 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 condition 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 to the employees whose names appear in "Appendix A," attached hereto, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The remedy" ; (b) Post at its plant in Augusta, Georgia, copies of the notice at- tached hereto and marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be main- supervisor Is open to serious question . Mr. Reynolds finds it unnecessary , however, to resolve the issue, since assuming Jones was a supervisor , Jones' discharge and the ensuing strike occurred prior to the Act 's amendment. Consequently he concurs in the ultimate findings of his colleagues as to both Jones ( Matter of Republic Steel Corporation (Upson Division ), 77 N. L. R. B. 1107 ) and the strikers (Matter of Container Mfg. Co., 75 N. L R. B. 1082 . Cf Matter of Fontaine Converting Works, 77 N. L . R. B. 1386) 2In the event that this Order Is enforced by a decree of a Court of Appeals , there shall be inserted before the words "A DECISION AND ORDER ," the words "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 that said notices are not altered, defaced, or covered by any other material; (c) 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. 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, as amended, 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, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and 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 Section 8 (a) (3) of the National Labor Relations Act. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent po- sitions 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, Saul Jones Johnnie Byrd Willie Brigham Gibson Bailey Fred Green Anderson Bussey Tim Hobbs Leroy Miles Willie Cooper Gid Dunbar Andrew Davis Matthew Hankerson Marion Johnson All our employees are free to become or remain members of any labor organization. We will not discriminate in regard to hire and tenure of employment or any term or condition of employment against AUGUSTA CHEMICAL COMPANY 57 any employee because of membership in or activity on behalf of any labor organization. AUGUSTA CHEMICAL COMPANY, Employer. Dated --------------- By ----------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. William M. Pate, Jr., for the General Counsel. Further and Fulcher, by Mr. W. M. Fulcher, of Augusta, Ga., for hespondent. STATEMENT OF THE CASE Upon 21 individual charges filed by various individuals' on November 24, 1947, and December 1, 1947, the General Counsel -of the National Labor. Relations Board' by the Regional Director for the Tenth Region (Atlanta, Georgia), is- sued a complaint dated March 24,1948, against Augusta Chemical Company, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449 and Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Man- agement Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint, the charges, and notice of hearing thereon were duly served upon Respondent. With respect to the unfair labor practices, the complaint alleged in substance: (1) on or about May 29, 1947, Respondent discharged and thereafter refused to reinstate Saul Jones because his membership in and activities on behalf of United Construction Workers, United Mine Workers of America, a labor organi- zation, herein called the Union, and because he engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection; (2) on or about May 29, 1947, employees of Respondent ceased work concertedly and went on strike because of the discharge of said Saul Jones;., (3) on or about May 30, 1947, Respondent refused, and continues to refuse, to reinstate 12 named employees ' to their former or substantially equiv- alent positions and on various dates discharged and refused to reinstate 8 named employees 4 because of their membership in and activities on behalf of the Union -Their names appear successively in the captions of the cases above 7 The General Counsel and his representative at the hearing will be referred to herein as the General Counsel Board The National Labor Relations Board will be referred to as the s Their names are : Gibson Bailey Johnnie Byrd Fred Green Charlie Banks, Jr. Willie E. Brigham Matthew ,Hankerson Felming Byrd Willie Cooper Eugene Marshall Anderson Bussey Gid Dunbar Leroy Miles 4 Their names and the alleged dates of discharge are: Andrew Davis, May 30, 1947. Johnnie M. Perrin, May 30, 1947. Joe Gillam, May 29, 1947. Woodrow Williams, May 30, 1947. Tim Hobbs, May 30, 1947. John T. Street, Jr., May 31, 1947. Marion Johnson, May 31, 1947. Clinton Jones, Sr., July 15, 1947. -58 DECISIONS-^OF NATIONAL LABOR -RELATIONS BOARD and: because they engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection ; and (4) on and after May 20, 1947, Respondent, by its officers, agents, and supervi- sory employees has interrogated its employees concerning their union affiliation and activities and threatened its employees to refrain from assisting, joining, or remaining members of the Union. - - . I - Respondent's answer admitted the allegations of the complaint with respect to the nature and extent of its business, denied the commission of any unfair labor practices, and alleged affirmatively that the individuals alleged in the complaint to have been discriminated against had in fact voluntarily quit their employment and were not entitled to reinstatement by Respondent. Pursuant to notice a hearing was held at Augusta, Georgia, from May 4 to 7, 1948 inclusive, before the undersigned Trial Examiner Martin-S. Bennett, duly designated by the Chief Trial Examiner. - The, General Counsel and Respondent were represented by counsel and both participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing, the undersigned granted a motion by the General Counsel to strike the names of Charlie Banks, Jr., and Felming Byrd from the complaint ; the, motion to strike was opposed by Respondent, whose countermotion that the complaint be dismissed as to them was denied. The undersigned also granted a motion by the General Counsel to strike the name of Eugene Marshall from the complaint. Ruling was reserved upon a motion by Respondent to dismiss the complaint herein on the ground that the Union had initiated, filed, and prosecuted the charges herein and that the complaint had been issued upon the charges of a labor organization not in compliance with Sections 9 (f), (g); and (h) of the Act. Ruling was also reserved on Respondent's motion to dis- miss the cases of Saul Jones, John T. Street, Jr., Clinton Jones, Sr., and Woodrow Williams, on the ground that the respective charges in their cases were filed on December 1, 1947, more than 6 months after the termination of their employ- ment. These motions are disposed of hereinafter. The undersigned denied motions by Respondent to strike the names of Joe Gillam, Marion Johnson, John T. Street, Jr., and Clinton Jones, Sr., from the complaint for the reason that the dates of their alleged termination of employ- ment as set forth in the complaint, did not correspond to the dates appearing in the respective charges.' At the conclusion of the hearing, a motion by the General Counsel to conform the pleadings to the proof with respect to formal matters was granted. The parties were afforded an opportunity to argue orally upon the record and argument was waived. They were also afforded an oppor- tunity to file briefs and proposed findings of fact and conclusions of law with the undersigned. A brief has been received from Respondent. Upon 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 Augusta Chemical Company is a Georgia corporation which maintains its principal office and place of business at Augusta, Georgia, where it is engaged in the manufacture, sale, and distribution of dyestuff. During the year ending There' was no variance in the case - of Street. The variances .for Gillam, Johnson; and Jones were 8, 1, and 7 days respectively. AUGUSTA CHEMICAL COMPANY 59 March 1, 1948, Respondent purchased raw materials valued in excess of $250,000, of which approximately 75 percent was shipped to,its,Augusta, Georgia, plant from points outside the State of Georgia. During the same period, Respondent sold finished products valued in, excess of $500,000, of which approximately 90 percent was shipped from its Augusta, Georgia, plant to points outside the State of Georgia. The undersigned finds that Respondent is engaged in commerce within the meaning of the Act.- II. THE ORGANIZATION INVOLVED United Construction Workers, United Mine Workers of America, is a labor, organization admitting to membership employees of Respondent.' III. THE UNFAIR LABOR PRACTICES A. Respondent's motions to dismiss 1. Section 10 (b) of the Act Respondent moved during the hearing to dismiss the charges in Cases Nos. 10-CA-136 to 139 inclusive, with respect to the discharges of Saul Jones, John T. Street, Jr., Clinton Jones, Sr., and Woodrow Williams, on the ground that these charges were filed on December 1, 1947, more than 6 months after the alleged unfair labor practices occurred and that Section 10 (b) of the Act de- prived the General Counsel of authority to issue a complaint based upon those charges! The General Counsel contended in effect, that the amended Act became effective on August 22, 1947, that Section 10 (b) took effect on that date pro- spectively and not retrospectively, and that in cases of unfair labor practices occurring prior to August 22, 1947, the 6 month period provided in Section 10 (b) for the filing of a charge did not commence until August 22, 1947 8 Neither the express language of the statute, nor the legislative history of the amended Act discloses that consideration was given to the effect of the proviso to Section 10 (b) upon pre-existing unfair labor practices. This would indicate that the statute was intended to have prospective and not retrospective effect. In addition, the Federal courts have held that causes of action are gov- erned by the limitation of the statute in effect at the time the cause of action arose. Thus, statutes shortening prior statutory periods of limitations have not been held to apply to causes which accrued prior to the amendment, but only to those subsequently accruing.° It has further been held, where there were no limitations under the original statute, that claims could be filed for such pre-existing causes of action during 6 At the time of the incidents set forth hereinafter, this labor organization was affiliated with the American Federation of Labor ; it subsequently disaffiliated. I Section 10 (b) of the Act as amended provides in part , ". . . Provided, That no com- plaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board, and the service of a copy thereof upon the person against whom such charge is made * * *" I In the case of Clinton Jones, Sr., the charge was actually filed less than 6 months after the alleged discrimination against him. The Respondent's motion with respect to his case, 10-CA-138, is accordingly denied. ° See, e. g., United States v. St. Louis R. R. Company, 270 U. S. I; The Poeahontaa, 20 F. Supp. 1005 (D. C. N. J.) ; N. Y. C. v. Wheeling Can Company, 275 U. S. 490; Baron v. Compagnie Gen., Trans., 108 F. (2d) 21 (C. C. A. 2). 11 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the new statutory period commencing on the effective date of the statute. This is consistent with the policy adopted by Congress in various acts to the effect that the repeal or expiration of a statute is not deemed to extinguish a liability arising thereunder unless.it is specifically so proyided,-in theater statute.'° In the opinion of the undersigned the postponement of the effective date of the amended Act for 60 days to August 22 was patently to afford an opportunity for the extensive administrative reorganization and adjustment of functions to the requisites of the new statute and not to set up a period for litigants to perfect existing causes of action. The undersigned accordingly finds that Section 10 (b) of the amended Act attaches a limitation upon the issuance of complaints effective August 22, 1947, and that as to theft existing causes of ac- tion the statute does not prevent the acceptance of charges based thereupon if said charges were filed and served within 6 months of the effective date of the amended Act. In the instant case, the 3 remaining charges were filed on De- cember 1, 1947, within 6 months of August 22, 1947. The undersigned finds that the complaint was properly issued by the General Counsel and Respondent's motion to dismiss these allegations of the complaint is denied." 2. Section 9 (f), (g), and (h) Respondent further moved to dismiss the complaint herein on the ground that these proceedings have been initiated, filed and prosecuted not by the various individuals whose names appear on the charges, and who, in fact, signed them, but actually by a labor organization for which these individuals were fronting, which was not in compliance with the provisions of Section 9 (f), (g), and (h) of the amended Act. In support of its proposition the Respondent cites the decision of the Board in Matter of Campbell Soup Company, 76 N. L. R. B. 950. The record discloses that a charge based upon the subject matter in the current complaint was filed by United Construction Workers, United Mine Work- ers of America (then affiliated with the American Federation of Labor) on or about June 3, 1947, in Case No. C-2269, and that this charge was dismissed by the Regional Director for the Tenth Region on or about December 10, 1947, because the charging labor organization was not in compliance with the provi- sions of Section 9 (f), (g), and (h) of the amended Act, requiring the filing of various reports and affidavits. It is Respondent's contention that the instant charges and complaint were resorted to by the Union as a stratagem so that it might actually use the enforcement machinery of the General Counsel and the Board, which it is denied by the Act. Section 10 (b) of the Act, which provides the method by which unfair labor practice proceedings may be initiated before the Board, provides merely for the- filing of a charge. No restrictions of any sort are ther6in set forth as to who may file a charge, and it is not restricted to a labor organization or even an employee.12 This is recognized by the Board in its Rules and Regulations, Series 5, effective August 22, 1947, which state, "Sec. 203.9 ... a charge that any person 10 Act of February 25, 1871, C. 71, 16 Stat. 431 ; Act of March 22, 1944, C. 123, 58 Stat. 118; Smartley v. Pennsylvania Sugar Company, 108 F. (2d) 603 (C. C. A. 4) ; and Carscad- den v. Alaska, 105 F. (2d) 377 (C. C. A 9). 11 This rationale would also apply to the motion in the case of Clinton Jones, Sr., which has previously been disposed of upon other grounds. 17 See e g, N. L. R. B. v. Indiana and Michigan Electric Company, 318 U. S. 9; Martin- Rockwell Corporation v. N. L. R. B., 133 F. (2d) 288 (C. C. A. 2). AUGUSTA CHEMICAL COMPANY 61 has engaged or is engaging in any unfair labor practice affecting commerce may be made by any person ...." 13 It is obvious, therefore, that, the right to file charges and utilize the processes of the Board extends beyond a labor organization and includes various individ- uals, whether employees, former employees, or not. Thus, when Section 9 (f), (g), and (h) imposes certain specific restrictions upon labor organizations and labor organizations alone, it is clear that this specific treatment of labor organiza- tions manifests an intent not to subject individuals, entitled to file a charge, to these restrictions. It is accordingly found that the provisions of Section 9 (f), (g), and (h) do not apply to an individual and the Act continues to protect employees who have engaged in activities in behalf of a non-complying union. The right of an alleged discriminatory dischargee to file a charge in his own behalf is a personal right and any benefit which might result to a labor organi- zation, as a result of an order following a finding of a discriminatory discharge by the Board, is coincidental. This is clearly distinguishable from the ob- jectives of the statute as set forth in Section 9 (f), (g), and (h) which are clearly to keep a non-complying labor organization from obtaining the benefits of appearing before the Board, and also to deny benefits such as a certification and a bargaining order which in their very essence accrue directly to a labor organization. In the Campbell Soup Company case, relied upon by Respondent, the Board found that an individual who intervened in a representation hearing, asking to represent employees of the employer, was actually the alter ego and agent of a non-complying labor organization, and denied the individual a place on the ballot. The instant case, however, is different from the Campbell Soup case. This is not an individual who is attempting to achieve the status of a collective bargaining representation in bad faith as a front for a non-complying labor trganization. There is involved, rather, the right of an individual who alleges that he has been discriminated against, to bring his action before the Board. It is true that the Union herein advised the various charging parties of their rights before the Board, assisted them in the preparation of their cases, and even filed their charges for them with the Regional Office of the Board. In the opinion of the undersigned, it was entirely proper for the Union to assist its membership and in all probability it would have been derelict in its responsibility to its membership had it not advised them of their legal rights and assisted them in the proper procedure, especially where, as is the case here, the individuals involved were, as the undersigned observed, in large measure uneducated and totally inexperienced in matters of this sort. The undersigned accordingly rejects Respondent's contention herein and denies its motion to dismiss." B. Introduction and Sequence of Events Respondent's plant has approximately 145 employees with few supervisory officials. Respondent's top management officials, who are involved in this proceeding, are L. E. Whittelsey, general manager and secretary, John Boesch, u This provision appeared in substantially similar form in prior Rules and Regulations of the Board. 14 This is not to say that under some circumstances a charge filed by an individual would not amount to a fraudulent subterfuge in behalf of a, non -complying labor organization to avoid the filing requirements of Section 9 (f), (g), and (h). It is apparent, although it is not-necessary for decision herein, that administrative considerations might well justify an administrative dismissal of a charge filed by an individual alleging a refusal to bargain with a labor organization and conceivably in still other situations. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vice-president, Kenneth Miller, superintendent, E.'T. Corbitt, laboratory manager, and E. H. Rhodes, master mechanic. There is no evidence of any union activity among the employees of Respondent prior to the organizational attempt made by the Union which commenced with the distribution of cards among the employees on and after mid-April, 1947. Organizer William Smartt 36 interested several of the employees in the Union and cards were distributed and signed by the employees while going to and from work. Saul Jones, whose discharge is discussed below, personally signed up a number of employees ; the signatures of 6 of those who testified in this proceeding were procured by Jones, *ho estimated the number of signatures he had obtained at 19. On May 29, 1947, shortly before 2 p. in., Vice-President John Boesch discharged Saul Jones, a job pusher, allegedly for being responsible for the leakage and resultant waste of chemicals from a small tank 10 The news of Jones' discharge spread rapidly through the plant resulting, shortly after 2 p. in., in a work stoppage by a group of employees, which is hereinafter found to have constituted a strike. The employment of a number of these employees who engaged in the strike was terminated the following morning, May 30. There were several other discharges for various assigned reasons, which followed shortly thereafter, and these are taken up seriatim. C. The discharges 1. Saul Jones Jones entered Respondent's employ in 1939 and was continuously'employed by Respondent, but for shut-downs, until his discharge on May 29, 1947. Insofar as the employment record of those involved in this proceeding is concerned, he was the second oldest employee in terms of seniority. Approximately 31/2 to 4 years before his discharge he was promoted to the position of job pusher which he retained thereafter. In this position he supervised and directed 20 to 25 unskilled laborers in the manufacturing department. He did not hire or dis- charge any employees, but on occasion when he considered an employee unsatis- factory, he would report the matter to superintendent Miller who might or might not ask Jones for his opinion whether the unsatisfactory employee should be laid off. Although the case is close, the undersigned is of the opinion that Jones is not a supervisor within the meaning of Section 2 (11) of the Act17 As noted above, Jones was very active in the Union organizational campaign, which had started several weeks earlier, by soliciting the membership of a large number of employees and obtaining their signatures on membership applications. Shortly before 2 p. in. on May 29, while Jones was engaged in his normal duties which entailed his moving about the manufacturing department, Vice-President Boesch summoned him to the vicinity of No. 6 tank. This tank is used for storage ss Smartt is an organizer for the American Federation of Labor , with which the Union was then affiliated. 10 The tank, referred to as No. 6 tank, is 12 feet deep and 13 feet in diameter. 37 Jones was at best an employee whose duties approached a supervisory status on a 'sporadic basis. For example, the undersigned is of the belief that Respondent , absent anything else, would probably not be held responsible by the Board for threatening or coercive statements to other employees by Jones. Entitled to some weight in this resolu- tion is the factor that Jones was colored, as were the other employees whose work he directed, whereas employees clearly of a supervisory nature were generally white In any event, assuming that Jones was in fact a supervisor , this would not affect the dis- 'position of his case. See Matter of Republic Steel Corporation ( Upson Division), 77 N. L. R. B 1107. AUGUSTA CHEMICAL COMPANY 63 purposes and has an agitator to stir the dyestuff generally stored in the tank. The tank also has a water line through which water is added from time to time, as well as a pump line for the dyestuff. Boesch, whoa had discovered that the tank had run over and dyestuff had, as a result, leaked out and accumulated on the ground, told Jones, as the latter testified, that "I were fired and he was tired of the waste, and the damn Union too, told me to come to the office and get my time." According to Boesch, he told Jones only that, "We should not have this waste around here and for him to go and punch his card out." Jones punched out as instructed and went to the office where his pay was immediately computed 1° Contentions and conclusions It is Respondent's contention that Jones was discharged on May 29 for negli- gence in permitting a tank of dyestuff to leak or overflow. The General Counsel contends that he was discharged because of his union activities. The record discloses that Jones had an exemplary record of employment, hav- ing been in Respondent's employ approximately 8 years at the time of his dis- charge. His work had been such as to merit promotion to the position of job pusher which position he had occupied for 31/2 to 4 years preceding his discharge. His work had not been complained of previously and, as he uncontrovertedly testified, he had been complimented by Superintendent Miller on his work 2% months prior to May 29. There is no evidence of any complaints concerning the nature of his work and more particularly he had never been responsible for any prior wastage of chemicals." According to Jones' uncontroverted testimony, one of his subordinates, Marion Johnson, generally looked after No. 6 tank, although Jones was generally and ultimately responsible for its operation, as Well as that of other installations. Johnson, however, was not at work on May 29, and his place was filled by a substitute. The record does not reveal just what part the substitute played in the incident, although the undersigned assumes, in the absence of any evidence to the contrary, that the subordinate performed the duties usually undertaken by Marion Johnson. Despite the direct handling of the operations of No. 6 tank by one of the men on Jones' shift, no effort was made by any representative of Respondent, insofar as the record shows, to ascertain just how the incident took place, although the water control which admitted water to the tank was adjacent to the tank and the tank was outside the building within which Jones normally worked. In fact, no investigation was made concerning the causation of the'incident and Jones was peremptorily discharged despite the fact, as night job pusher Thurman Donoway testified,2° that minor accidents were common in the plant, and, as Vice- President Boesch admitted, there had been no prior cases of tank leakage of this sort 21 Of further significance and highlighting the abrupt termination of an 18 It may be noted that this day, May 29 , was not pay day. The regular pay day was Friday, which was the following day. " According to Vice-President Boesch, in December 1946, he had reprimanded Jones because his time card was punched at a time when Jones was not in the plant. Another employee, Andrew Davis, was disciplined by a lay-off for this incident. In any event, this incident played no part, as far as Respondent was concerned, in its treatment of the negligence incident of May 29, 1947. 20 Thurman Donoway is presently employed by Respondent as a night job pusher and has been in Respondent's employ for 2 years. 21 Also noteworthy to the undersigned is the fact, as master mechanic Rhodes testified, that Boesch never discharged an employee under Rhodes' supervision without first taking it up with him. The record does not indicate Boesch 's policy on discharges with respect 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee with an exemplary record, -and who had risen to a position of some authority presumably through 'merit, is the fact that during the spring and summer of 1947 Respondent was experiencing a considerable turnover of em- ployees. This is demonstrated by the fact that in a plant whose employment totaled approximately 145, large numbers of applicants for employment were being given entrance physical examinations at that time. Thus, according to paid receipts introduced in evidence, Respondent paid for pre-employment physical examinations given to 71 employees during the month of April 1947; during May there were 34 examinations and during June, 29 examinations. It is obvious that this reflects a scarcity of help of unduly large proportions for a plant of this size. According to Boesch, he first received information of union activity in the plant late in the afternoon of May 29, some hours after Jones' discharge. An interoffice communication was sent that afternoon to 10 individuals, including Boesch, from general manager Whittelsey which said in part : I have just received a letter from the American Federation of Labor claim- ing that a majority of our employees have elected the United Construction Company Union, an American Federation of Labor affiliate, as bargaining agent. This is the first that I have known or heard of any unionization activity among our employees. You are therefore instructed that the policy of the Company is, and will be, to refrain from discussing either pro or con the matter of unionization among the employees * * *.12 On the other hand, maintenance mechanic Rhodes, a supervisory employee, testified that he had heard from 4 to 5 weeks earlier from his rank and file per- sonnel of the organizational activities of the Union. Rhodes, when asked whether he had said anything to Boesch about the union activities in the plant, testified : Q. Never talked to Mr. Boesch about it at all? A. I don't think I have had a point of conversation about the set-up of the union organizing. Q. Did you have any kind of conversation? A. I don't remember. Q. Did you ever say anything to Mr. Boesch about it? A. At any time? Q. Yes. A. I can't say that I did but it was quite some talking going on. As I say, four or five weeks before this walk-out occurred that I heard quite a bit about it and I don't think-I don't know whether I had any conversa- tion with Mr. Boesch or not. Jones impressed the undersigned as an honest and reliable witness whose testimony merits credence and the undersigned accepts his version of the conversation with Boesch on the day of his discharge. In view of the findings made above as to Jones' lengthy and meritorious em- ployment with Respondent, the relatively minor nature of the incident for which ,be was allegedly discharged, the abruptness of his discharge with no attempt to to Superintendent Miller under whom Jones worked, but it would seem that a similar policy would be followed throughout the plant (526). z' A copy of the communication was introduced in evidence. Boesch's testimony as to receipt of this memorandum was corroborated by that of Rhodes, Miller and Corbitt. I AUGUSTA CHEMICAL COMPANY 65 ascertain the direct responsibility for the incident, the acute shortage of per- sonnel in the plant and, as found above, the statement made to Jones by Boesch in discharging him which indicated knowledge of the union activity in the plant, the undersigned rejects Respondent's contention that Jones was fired because of negligence and finds that leakage of a tank was not the cause of Jones' dis- charge. In view of the over-all picture as set forth above, the undersigned is of the belief and finds that Jones was discharged on May 29 because of his union Activities among Respondent's employees, thereby discriminating with respect to the hire and tenure of his employment 2. The work stoppage of May 29 and'the resulting discharges a. The facts Prior to and including May 29, 1947, Respondent's day shift was split into two sections, one whose hours were from 6 a. m. to 2 p. in. and the other from 8 a. in to 4 p. in. Saul Jones' discharge, set forth above, took place shortly before the 2 o'clock section of the shift was due to finish for the day. The news of Jones' discharge spread rapidly through the plant and caused some dissatisfaction among the employees who felt that he had been treated unfairly. Thus, when Jones, after his discharge, made his way to the plant washroom to shower and change clothing prior to departure, a number of em- ployees varying in estimates from 7 to 25 in number gradually assembled in the washroom and proceeded to discuss Jones' discharge.23 No plan of action, inso- far as the record reveals, was decided upon by the assemblage and the group continued to express their respective views with respect to the discharge; in sum, that they felt that he had been treated unfairly. Presumably, they might have arrived at a decision to present their views to management or take no action but the meeting was not permitted to proceed to that stage. The re- spective versions of what took place in the washroom thereafter are somewhat at variance, but the consensus of the testimony is as follows. It is clear that laboratory manager Corbitt went to the washroom, as he testified, and "gave them a chance to go to work or leave." According to some of the witnesses, Corbitt was accompanied by General Manager Whittelsey and Vice-President Boesch; others merely recalled Corbitt's presence; and still others did not recall who it was who spoke to them. According to Corbitt, he went to the washroom and announced that, "all of my men who were quitting to punch, change clothes and punch out, and the rest get back on the job. Then I turned around and walked out." Corbitt's conclusion that the men had "quit" is based upon the fact that the men had ceased work and that he had found them assembled in the washroom 24 After Corbitt left the washroom the employees decided to leave the plant rather than return to work. This group, in addition to Saul Jones, included Johnnie Byrd, Willie Brigham, Gibson Bailey, Fred Green, and Anderson Bussey ; also 5 others, Gid Dunbar, Andrew Davis, Tim Hobbs, Leroy Miles and Willie Cooper, who entered the washroom after Corbitt's statement or else did not hear it while 23 The work on Respondent 's premises was apparently dirty in nature and the majority of the men generally showered and changed clothing upon leaving the plant. 24 Corbitt's testimony is silent as to being accompanied by anyone. Whittelsey, on the other hand, referred to his accompanying Corbitt and Boesch to the washroom. Accord- ing to Bothell Farmer, who testified for Respondent, Whittelsey and Boesch asked the men what the matter was and they replied that they were dissatisfied with the treatment of Saul Jones. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the washroom and who joined with the group that left the plant. Matthew Hankerson, although not in the washroom, also joined the group which was estimated to be 30 or 40 in number. These individuals, named above, all of whom had joined the Union within a period of several weeks preceding, left the plant proper sometime after 2 p. in. but prior to 3: 30 p. m.2' After stopping at several street-corners to discuss the situation, the group finally went to a Masonic hall where union meetings had been held. They were there addressed by an assistant to union representative Smartt, who advised them to return to work on the fol-, lowing morning. The following morning the men returned to the plant and were not permitted to pass through the gate. According to Corbitt and superintendent Miller, they decided on the afternoon of May 29 that the men who had left the plant that day had "quit" their employment and that they, Respondent's repro sentatives, would not take them back on the following day save for some of this strikers who had informed the officials that they actually wanted to work. The men, including those named above, were told either by Miller or Corbitt to return that afternoon, May 30, for their paychecks. The men generally did so and were given their checks. b. Contentions and conclusions Respondent's primary contention with respect to the group that assembled in the washroom to discuss their common view that Saul Jones had been unfairly treated on May 29, is that these men quit their employment on May 29 and by leaving the plant that day signified to the management, in effect, that they were abandoning their employment. This cessation of employment is, however, rather a strike or concerted activity, the nature of which Respondent misconceives. It is true that strikers will tem- porarily cease their employment, but it is not the situation where an individual notifies his employer that he is permanently quitting its employ. A strike or concerted activity of the type herein involved, by its very nature consists of a concerted cessation of employment by a group of employees who are acting in concert and this is a form of quitting of employment which is expressly protected by the Act and which retains for the principals their status as employees. These employees concertedly gathered in the washroom to voice their protest of the discharge of Jones, found above to have been violative of the Act. In fact, both Master Mechanic Rhodes and Vice-President Boesch testified that Saul Jones' discharge provoked the assemblage that afternoon. No course of action had been decided upon and the situation had not progressed beyond mere discussion. A discussion of this nature by employees with respect to their superior, a job pusher who had been active in behalf of the Union and in fact had solicited the membership of a number of them, which activity was shortly followed by the job pusher's discharge,, permits of no view other than that they assembled to advance their own interests and for their "mutual aid and protection", an objective guar- anteed to them by Section 7 of the Act. In view of their belief that Jones had been treated unfairly, together with the fact that a number of those assembled had joined the Union at Jones' behest, it is logical to assume that they anticipated 25 The undersigned rejects the testimony of employee Bothell Farmer that he and sev- eral others were threatened by 50 or 60 men assembled in the washroom with physical injury if they did not join them in the walk-out. His testimony is in complete variance with that of others in the washroom who testified . Whittelsey's testimony that he had been informed by Corbitt that there had been threats of employees in the washroom is unsupported and it is rejected . Corbitt's testimony is silent as to receiving or relaying any report of this nature. AUGUSTA CHEMICAL COMPANY 67 similar reprisals for their own union activity.29 In this case, Respondent's officials confronted the employees who were discussing Jones' discharge and gave them the choice of returning to work or leaving the plant. The workers accepted one of the alternatives and concertedly left the plant being joined therein by some employees who had not heard the alternatives as originally extended. By so doing, the entire group became strikers who were making common cause with a fellow workman over his grievance and this thereby constituted a strike and concerted activity for their mutual aid and protection. 27 In view of the findings hereinabove made, with respect to the discharge of Saul Jones, the strikers were unfair labor practice strikers who were, as the undersigned finds, protected from discharge for engaging in this activity 28 Respondent's supervisory employees, Corbitt and Miller, admitted that after the walk-out on May 29 they decided that these men had quit their jobs, thus severing their employment with Respondent and that they, on the afternoon of May 29, accordingly decided to pay them off. Thus, on the following morning the men, having abandoned their strike and reported for work, were denied admission and employment and were paid off later that day. The record also reveals that Re- spondent had hired no new employees in the interim between the walk-out and the application for reinstatement, but had merely reassigned some of its existing personnel to the positions held by the strikers. It is clear, and the undersigned finds, that the Respondent discriminatorily refused to reinstate these, strikers when they unconditionally applied for reinstatement on May 30, thereby dis- criminating with respect to the hi;•e and tenure of their employment.29 3. The individuals involved in the walk-out As the circumstances with respect to the participation of the various individuals in the walk-out vary somewhat, the undersigned deems it advisable to consider the respective cases separately. Johnnie Byrd, Willie Brigham, Gibson Bailey, Fred Green, and Anderson Bussey were employees in the washroom at the time the group was addressed by Corbitt. They engaged in a concerted activity by leaving their employment in concert, to protest the discharge of Saul Jones, decided to return the next morning, and were denied reinstatement at that time. Tvni Hobbs, Leroy Miles, and Willie Cooper were employees in the washroom when Corbitt addressed the employees but did not hear his remarks. They acted in concert along with the five named above, as well as others and walked out with, 26 See e. g., N. L. R B. v. Phoenix Mutual Life Insurance Co , 167 F. (2d) 983 (C. C. A 7) decided May 7, 1948, 22 L. R. R. M. 2089, Matter of Westinghouse Electric Corporation, Ansonia Plant, 77 N. L R B. 1058, and Matter of Container Mfg. Co., 75 N. L. R. B. 1082. 27 See N L R B. v. Peter Cailler Kohler Company, 130 F (2d) 503 (C C. A. 2) ; Carter Carburetor Corporation v. N. L. R. B., 140 F. (2d) 714 (C. C. A. 8) ; and Matter of Nor- folk Shipbuilding Company, 70 N. L. it. B . 391. Also Matter of Washington National In- surance Company, 57 N. L. R. B. 1657. 28N. L. R. B. v. Mackay Radio and Telegraph Company, 304 U. S. 333. Although these strikers are found to be unfair labor practice strikers , the results hereinafter would be the same if they were economic strikers. Of course, economic strikers may be per- manently replaced by an employer prior to their application for reinstatement , but, as appears hereinafter, such permanent replacement was not made. 20 It will be recalled that the group of strikers included employees who had finished their work for the day at 2 p. m. as well as those who were due to finish at 4 p. m. Re- spondent was entitled to instruct both factions of the group to leave the plant or return to work as the case may have been , and his so doing does not constitute a violation of the Act. It is by the locking out of this group on the following morning and by the termina- tion of their employment that Respondent has gone beyond the protected field of conduct. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and made common cause and association with, their fellow employees. They too decided to return the following morning and were denied reinstatement.33 Gid Dunbar was employed on the 8:00 to 4:00 shift in the shipping department. Between 2: 00 and 2: 30 he was notified by another employee, as he testified, that, "the Union done shut the mill down, they done struck." Dunbar and two of his co-workers then walked into the mill and joined a group of employees who were milling about. At that time, Corbitt appeared on the scene and spoke to Dunbar as well as the other two and told him that, "If you ain't going to work get over to the railroad with the rest of the boys. 31 Dunbar left the plant and joined the strikers who were assembled near the railroad tracks and proceeded to a street- corner with them and then to the hall where the Union held its meetings. He too decided to return to work the following morning at which time he was denied rein- statement. 3z Dunbar accepted the alternative of leaving the plant and joining the strikers as propounded by Corbitt and he thereby associated himself with the strikers both as to leaving the plant and returning the following day. His case is, therefore, of a pattern with those who left the washroom at Corbitt's bidding and it is so found. Andrew Davis and Matthew Hankerson: After the group in the washroom, as well as those who had associated themselves with them, left the plant on the afternoon of May 29, after Corbitt's statement, there was no one on the operating floor, according to Vice-President Boesch, but Andrew Davis and Matthew Hanker- son Boesch asked each of the two to take over Saul Jones' duties. Each refused and after some discussion Boesch instructed them to continue working. They refused, stating they could not work by themselves and both left the plant and joined the strikers across the railroad tracks. as They went to the union hall along with the other strikers and returned the next morning at which time they too were denied reinstatement. As in the other cases, the undersigned is of the belief and finds that Davis and Hankerson associated themselves with their co- workers who were on strike and that their cases are of a pattern with those who left the washroom at Corbitt's bidding on the afternoon of May 29. 39 30 Willie Cooper testified that Corbitt asked him to sign a paper of some sort just before he, Cooper, joined the group in the shower room. It appears that Corbitt did carry a paper in his hand hue speaking to Cooper , but it is apparent that Cooper misunderstood Corbitt. The undersigned in no way considers this incident significant other than of the fact that after Corbitt asked Cooper what was happening , Cooper joined the others in the washroom 31 This referred to a railroad track which was near or at the plant boundary and signified, as a number of witnesses testified and the undersigned finds, a direction to leave the plant grounds. The original group which had assembled in the washroom had by this time assembled at or near the railroad tracks. Dunbar also testified that Corbitt questioned him on this occasion as to whether he had a union card and he admitted that he had. Corbitt did not deny speaking to Dunbar on this occasion but did deny that he mentioned the Union to him The undersigned believes that Corbitt did speak to Dunbar as quoted above, but deems it unnecessary to pass, in view of the findings herein, on whether Corbitt queried Dunbar concerning the Union. 32 Dunbar was slightly confused as to the date on which he returned to the plant. The testimony of other witnesses , however, places him with the group that returned on the morning of May 30 and which was locked out. 93 This finding is based upon the testimony of Davis and fankerson which is in substan- tial agreement. Boesch's testimony supports that of the two, but he claimed that "there 'was no thought in my mind at the time that I was asking him [Davis ] to take Saul Jones' job." It is apparent , however, that by looking after the entire operation floor alone, as requested by Boesch , these two employees, in effect, would have temporarily assumed Jones' duties 3S In the case of Davis there is considerable testimony in the record as to whether or not he had received permission to leave work early on the afternoon of May 29 Davis AUGUSTA CHEMICAL COMPANY 69 The undersigned finds that by locking out and denying reinstatement on May 30, 1947 to 'Johnnie Byrd, Willie Brigham, Gibson Bailey, Fred Green, Anderson Bussey, Tim Hobbs, Leroy Miles, Willie Cooper, Gid Dunbar, Andrew Davis, and Matthew Hankerson , Respondent has discriminated with respect to the hire and tenure of their employment thereby discouraging membership in a labor organiza- tion. It is further found that by locking out and denying reinstatement to these 11 employees on May 30, 1947, Respondent has restrained and coerced its em- p of ees in the exercise of the right guaranteed by Section 7 of the Act to engage in "concerted activities for the purpose of * * * mutual aid or protection." 4. Other discharges a. Marion Johnson Johnson entered the Respondent's employ in December 1946 and there is no evidence of any complaints with respect to his work record. As in the case, of the strikers whose discharges have been discussed above, Johnson, 'who was employed on the 8 a. m. to 4 p. m. shift, joined the Union approximately 2 weeks before the walk-out on May 29, his membership having been solicited by Saul Jones. Johnson requested and received permission on May 28, according to his testi- mony, to be absent for a "day or so," as a result of which he was absent on May 29 and 30 for the purpose of moving his family to a new residence According to Superintendent Miller, Johnson requested his pay check early on May 28 and left early that day to move his family to another residence that afternoon and on the following day, May 29 Miller contended that Johnson should have returned to work on May 30 and that because he had taken an extra day without permission he had been discharged according to Respondent's policy. Johnson returned to the plant on May 31, discovered that his card was out of the rack and pointed out the absence of the card to Miller. Miller asked whether or not Johnson should have returned the previous day and whether he knew of the men walking out on May 29. He asked Johnson whether he would have walked out had he been present and then stated, "Well, you're not fooling me * * * I know you know about this union stuff all the time" and then gave Johnson his paycheck. Miller denied mentioning the Union in this conversation and claimed that he discharged Johnson on May 31 because of his absence on May 30, telling him that his services no longer were needed. Johnson had been in Respondent's employ for approximately 6 months and had been absent but once before and then with permission . It is found, there- fore, that his attendance record is exemplary. Highlighting the excellence of Johnson's attendance is the fact that in the pay-roll periods between January 18 and May 24, employee Andrew Davis was absent for approximately 48 days, with the absences for the most part distributed over the entire period. No dis- ciplinary action was ever taken with respect to Davis, although on at least one occasion his job pusher, Saul Jones, asked Superintendent Miller to discharge him for inefficiency.u claimed that he had been granted such permission and superintendent Miller denied that such was the case. It is unnecessary to resolve this conflict for, as found above, Davis as well as Hankerson joined the strikers that afternoon and in the view of the undersigned, their cases turn upon that posture of the situation 35 According to Miller, Davis received permission for all these absences. It is clear, however, in view of their large number , that absences were not normally treated with the degree of severity that Miller applied to that of Johnson. 844340-50-vol. 83-6 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, as set forth above, this discharge took place at a time when Re- spondent was experiencing for a plant of its size an enormous turn-over of help. Even on the assumption that Johnson's absence took place under the circum- stances attributed to it by Miller, the discharge of an exemplary employee with- out warning of any sort and where there was at the very least a misunderstand- ing between Johnson and Miller as *to the period he intended to be absent, is, to the undersigned, highly suspect. Further significant in supporting Johnson's version that he worked all day on May 28 and then asked for a "day or so" off and that he had not left early ,on May 28, as testified by Miller, is the fact that Respondent did not introduce any time cards or other evidence as to whether Johnson left the plant on May 28. This is particularly pertinent to the undersigned because in the cases of Joe Gillam and Woodrow Williams, which are discussed hereinafter, Respondent did introduce the time cards of those two employees to rebut their testimony as to the dates and hours they worked during the period preceding and following the strike of May 29. It is therefore found that Johnson worked all day on May 28.3° Respondent's representatives admitted that they learned of the union ,organizational activities in the plant by late afternoon of May 29 and Johnson's -discharge took place on May 31. Further, Johnson favorably impressed the undersigned as an honest and credible witness. In view thereof, the relative triviality of the reason assigned for the discharge of Johnson and the implausi- bility of Miller's testimony concerning his motivation in discharging Johnson to May 31, the undersigned rejects Miller's testimony concerning the discus- sion had with Johnson in discharging him and credits Johnson's testimony that Miller stated that he knew of Johnson's familiarity with the Union campaign. In view of the above, the undersigned finds that upon a preponderance of the testimony, Respondent discharged Johnson on May 31, 1947, because of his union activities and membership, thereby discriminating with respect to the hire and tenure of his employment. b. Woodrow Williams r Williams had been in Respondent's employ for approximately 1 month at the time of his discharge. He was employed on the late shift from 4 p. m. to mid- night and had joined the Union about 1 week before his discharge on May 30. He alleged that he had worked until midnight on the night of May 28, his usual quitting time, and had them punched out. He claimed that he had reported to the plant on the afternoon of May 29 and that the group of employees assembled near the railroad track informed him that checks to all workers were being given out at 2 p. in and that he accordingly returned at 2 p. in. and received a check from Vice-President Boesch when the latter called out his name.37 Respondent contends that Williams actually left Respondent's employ on May 28 and that he was discharged for that reason alone. Thus, job pusher Thur- man Donoway credibly testified that at 10 p. in. on the night of May 28 he in- structed Williams to perform a particular job which was within his usual duties, that Williams said he would rather go home than do the job, that Williams then punched out and went home, and that Williams never returned to work. 3° Miller also contended that Johnson asked for his check early on May 28, implying that that was pay day. As a matter of fact, however, pay day was not until May 30. 31 As found above, the walk-out and assemblage of men at the railroad track occurred on May 29, but the discharge and paying off of the employees took place the following day, May 30, and not May 29, as testified by Williams. AUGUSTA CHEMICAL COMPANY " 71 Williams' time card was introduced in evidence and showed that Williams did in fact punch out at 10: 01 p. in. on May 28 and that he did not work on May 29. In view of the above, the undersigned finds that Respondent's position herein has merit and it is found that Williams was discharged for valid cause. It is ac- cordingly recommended that this allegation of the complaint be dismissed. c. Joe Gillam Gillam entered Respondent's employ in December 1946, was employed as a fire- man on the 4 p. in. to midnight shift, and joined the Union on or about May 5 or 6. He testified that he worked the night of May 28, that he saw the employees assembled near the railroad tracks on the afternoon of May 29 just before he reported for work, that he spent some time with them, and that he reported to the plant shortly after 4 p m. on May 29. He alleged that superintendent Miller asked him at that time if he had seen the employees who walked out that day, what they were discussing, and whether Gillam knew of the Union and had joined it. According to Gillam, he stated that he had joined the Union and Miller told him to return on the following day, May 30, at which time he was paid off. The complaint alleges that Gillam was discharged on May 29 for his union activities. It is Respondent's contention that Gillam actually quit his employment on May 31. Gillam's time card reveals that he worked the night of May 20 and that he was absent until he again worked on the night of May 30, after which he did not return to Respondent's employ, thus negating Gillam's testimony that he worked the night of May 28. Further, the testimony of plant guard McKellar and superintendent Miller, which is credited, is in substantial agreement that Gillam appeared at the plant some days after May 29 and probably on or about June 4 and asked for his check, announcing that he was quitting because he had a better position. Respondent's records further substantiate its position herein as they indicate that Gillam was given a check dated June 4 which was deposited on June 5 and which represented 8 hours of work performed during the pay-roll period ending May 31, which tallies with his time card. In view of the above, the undersigned is of the belief that the allegations of the complaint with respect to the discharge of Gillam have not been sustained and it is accordingly recommended that his case be dismissed. d. Johnnie M Perrin " Perrin entered Respondent's employ in March 1947 on the 4: 00 to 12: 00 shift as a helper and joined the Union on or about May 1 He testified that he worked on May 28 and that when he reported for work on May 29 at his usual time, master mechanic E. H. Rhodes told him to get his pay; according to Perrin, he went to superintendent Miller who gave him his pay check. Rhodes testified that he instructed no one to get his check and Miller alleged that he had dis- charged Perrin on May 30 for not reporting on May 29. There is no evidence that Perrin participated ip the concerted activity of May 29 or that his union member- ship was known to any officials of Respondent. The undersigned is of the opinion that even on the basis of Perrin's testimony the General Counsel has failed to sustain the allegations of the complaint with respect to his discharge by a preponderance of the evidence and:it is recommended that his case be dismissed. " Appearing in the transcript as John Perrin. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD e. Johm. T. Street, Jr. Street entered Respondent's employ as a maintenance mechanic in March 19M. He left of his own accord in June but applied for and was reinstated to his former position in November 1946. Street worked under the supervision of master mechanic E. H. Rhodes and was employed on the night shift from 11: 00 to 8 a. in. He became interested in the Union, joined it on May 15, 1947, and signed up approximately five employees between May 13 and 21. On the night of May 30, actually shortly after midnight on May 31, Street was discharged by Respondent allegedly for intimidating another employee. The complaint alleges that Street was discharged on May 31, 1947, for his union and concerted activities. Street's discharge was brought about by the following sequence of events. After Saul Jones' discharge on the afternoon of May 29, hereinabove found to have been discriminatory, vice-president Boesch contacted a former employee, Hubbard Donoway, and asked that he return-to work 31 Donoway did not report to the plant on the morning of May 30 but did appear late that evening at approximately the hour that Street reported for work. The versions of the conversation which ensued between Street and Donoway are in substantial agree- ment though differing in some details, and the undersigned credits the testimony of Donoway as appearing below. Donoway approached Street and asked him for some advice, testifying : I said I wanted to see him. He said, "What the hell are you doing here?" I said, "I want to talk to you, I want to go back to work " I say, [said] "Do you think it would be all right for me to go to work?" He said, "No, It's not all right for you to take Saul's job. You might get hurt." 40 Vice-President Boesch passed by as the- conversation took place and overheard a snatch of it. He later asked Donoway why he had not reported for work that morning. Donoway replied that he had been afraid to report and also mentioned his talk with Street, repeating in substance the entire talk to Boesch. Boesch conferred with General Manager Whittelsey who also spoke to Donoway about the incident, and then Street was summoned to the plant office in the presence of Boesch, Whittelsey, and Rhodes.41 Street was questioned as to whether he had threatened Donoway earlier that evening. He originally denied having so done, but finally admitted that he had spoken to Donoway but that he had not threatened him.42 Whittelsey, who was the only spokesman for management, again repeated the substance of the conversation between Donoway and Street as had been relayed to him and extracted from Street an admission as to having made the statements attributed to him by Donoway. Whittelsey then stated 99 Donoway had formerly been in Respondent's employ and had quit He had worked on the 4: 00 to 12: 00 shift with duties similar to those of Saul Jones on the day shift. 40 On cross-examination Donoway stated that Street's final statement was, "No, it wouldn't be all right. This plant is being union .. . It wouldn't do for you to take Saul Jones' job. You might get hurt." 41 Although this was late at night, Respondent's supervisory hierarchy was at the plant. This was not uncommon and it may be assumed that the lock-out of the strikers that morn- ing and resulting shortage of personnel had something to do with their presence at the plant. 42 According to Street, in his original discussion with Donoway, he had replied to Dono- way's question on the problem of taking over Saul Jones' job solely with the phrase, "Per- sonally, I wouldn't take it." AUGUSTA CHEMICAL COMPANY 73 that he had no alternative but to discharge Street because of his intimidation of Donoway.43 Conclusions An employer may if it wishes, in applying plant discipline, impose restric- tions on its employees' conduct which, although of a relatively severe nature, are not violative of the Act unless they interfere with the right to engage in con- certed activities guaranteed by Section 7 of the Act or discriminate with respect to employment because of union activities'" In the instant case, the language used by Street to Donoway is too, ambiguous to permit of exact interpretation, in the opinion of the undersigned. On the one hand, Street's statement is susceptible of the interpretation that he was openly advocating the cause of the Union in urging Donoway not to take Saul Jones' job. On the other hand, it is clearly susceptible of the interpretation that he was only pointing out to Donoway the risks of physical injury involved in accepting employment at a plant where a strike had taken place, and as a result Street's language might have been con- strued as a threat by Donoway. The undersigned is of the opinion, although the case is not free from doubt, that Street was not engaging in a union or concerted activity when he spoke to Donoway on the evening of May 30. Management chose to regard this incident as intimidation of an employee which went beyond the bounds of normal free discussion among employees. As this reason does not constitute, upon all the credible evidence, a pretext for a discriminatory motive in effecting the discharge, Respondent's conduct, although somewhat heavy handed, cannot be held violative of the Act. " It is accordingly found that this allegation of the complaint is not supported by a preponderance of the reliable, probative and substantial evidence, and it is recommended that the case of Street be dismissed. f. Clinton T. Jones, Sr. Jones entered Respondent's employ in 1937 and at the time he last worked for Respondent was a foreman of the manufacturing department and a super- visor. His last day of employment was May 9, 1947, on which date he took ill' and he was thereafter absent because of illness for 8 to 9 weeks.' During Jones' illness and absence from the plant, he joined the Union on or about May 15 and signed up a number of employees. He regularly contacted management during his illness and was told by General Manager Whittelsey to take as much time as he needed to recuperate. On or about July 8, Jones returned to the plant and informed Vice-President Boesch that he felt fit for work and was ready to return. Boesch decided that Jones should take a physical examination and referred him to the company doctor, a private practitioner in the city of Augusta who gave 43 According to Street, Whittelsey at the close of the conversation asked him if he had heard of the Union, if he was a union member, and if he had signed a card. This was denied by Whittelsey. Rhodes and Boesch, in giving their versions of the conversation, sup- ported Whittelsey's testimony and their versions were silent as to any mention of the Union; although these two were not asked the specific question whether Whittelsey men- tioned the Union, their versions of the incident, in effect, constitute a denial of Street's version Upon a consideration of the entire picture, the undersigned credits Whittelsey's version herein and finds that he did not mention the Union. 41 See e. g. Republic Aviation Corp. v. N. L. R B., 324 U. S 793. 4" Noteworthy also is the fact that the union activity at the plant was all on the day shift but for Street, and further, Street did not join the strikers but continued to work on the evenings of May 29 and 30. 4" It will be recalled that the discharge of Saul Jones, who was the son of Clinton Jones, and the resulting strike took place on May 29. 74 DECISIONS OF NATIONAL LABOR` RELATIONS BOARD physical examinations to the Company's employees. Jones did so and several days later Respondent received a report from the doctor that Jones was in "poor general physical condition" and was "disqualified to fill the position of plant foreman." On or about July 12, Jones returned to the plant and was told by Boesch of the unfavorable medical report and that Respondent would be unable to take him back. Jones asked if the Union had anything to do with the Com- pany's failure to take him back and Boesch replied in the negative. The complaint alleges that Jones was denied reinstatement to his former position because of his union activities. In support thereof Jones' further testimony is offered to the effect.that approximately 2 weeks before he re- turned to work master mechanic Ed Rhodes said to Jones, "They tell me you are a damn union man," and Jones replied that he had signed a card" The General Counsel also offers in evidence the fact that about 2 weeks after Jones was denied reinstatement, he returned to the plant and asked Boesch for a letter of recommendation to another plant where he had sought employment. Boesch at first agreed to give him a letter of recommendation, but then in- formed Jones that if Jones would ask the prospective employer to telephone him, he, Boesch, would be glad to talk to anyone in,his behalf. According to Boesch, he felt that a written recommendation was not required. The record indicates that Respondent during 1946 instituted a policy of re- quiring entrance physical examinations of all new employees, but that this was not applied to the older employees." There is evidence of at least one other older " employee, Lindsey Jones, whose employment antedated the institution of the policy of physical examinations, who was required to take a physical examination after being absent for illness and who was rejected as a result of the examination. The physical report on Clinton Jones clearly revealed him to be in extremely poor physical condition and suffering from two severe ailments.`' Although refusal to reinstate an employee of such long service or make some provision for him is not the ideal example of employer-employee relationship, and the fact that 2 weeks earlier a supervisory employee announced that he understood Jones to be a member of the Union is suspicious, nevertheless the undersigned is not persuaded that on a preponderance of the testimony Jones was denied rein- statement for a cause other than that assigned by Respondent, namely, his poor physical condition, which is established in the record. It is accordingly recom- mended that this allegation of the complaint be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in Section III, above, occurring in con- nection with the operations of Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. '''Rhodes was not questioned concerning this alleged conversation and it stands un- denied This interrogation of. Jones by Rhodes is found to constitute interference, re- straint, and coercion per se. ss The records of Respondent Introduced in evidence disclose bills from the Company physician and payments for a large number of physical examinations during the period of Jones' illness. ' The details of Jones' condition appear more fully in the medical report which was introduced in evidence. AUGUSTA CHEMICAL COMPANY V. THE REMEDY 75 Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain. affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has discriminated with respect to the hire and tenure of employment of Saul Jones, Johnnie Byrd, Willie Brigham, Gibson Bailey, Fred Green, Anderson Bussey, Tim Hobbs, Leroy Miles, Willie Cooper, Gid Dunbar, Andrew Davis, Matthew Hankerson, and Marion Johnson, by dis- charging them and denying them reinstatement because of their concerted and union activities. The undersigned will therefore recommend that Respondent offer each of them immediate and full reinstatement to his former or substantially equivalent position,80 without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss he may have suffered by reason of such discrimination, by payment to each of them of a sum of money equal to that which lie would have earned as wages from the date of such discrimi- nation to the date of offer of reinstatement, less his net earnings n during such period. Having found that Respondent has not discriminated with respect to the hire and tenure of employment of Woodrow Williams, Joe Gillam, Johnnie Perrin, John T. Street, Jr, and Clinton T. Jones, Sr., because of their union or concerted activities, it will be recommended that the complaint be dismissed as to them. Inasmuch as the discharge of an employee for reasons of union affiliation or concerted activity has been regarded by the courts as one of the most effective methods of defeating the exercise by employees of their right to self-organization; 3 the undersigned is of the belief that there is real danger that the commission of unfair labor practices generally is to be anticipated from Respondent's unlawful conduct in the past. It will therefore be recommended that Respondent be re- quired to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act.L3 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Construction Workers, United Mine Workers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating with regard to the hire and tenure of employment of Saul Jones, Johnnie Byrd, Willie Brigham, Gibson Bailey, Fred Green, Anderson Bussey, Tim Hobbs, Leroy Miles, Willie Cooper, Gid Dunbar, Andrew Davis, Matthew Hankerson, and Marion Johnson, thereby discouraging membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning Of Section 8 (3) and Section 8 (a) (3) of the Act. 60 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, San Juan, Puerto Rico, Branch, 65 N. L R B. 827. 61 See Matter of Crosset Lumber Company, 8 N. L. R. B 440, 492-8. 01 N. L. R. B. V. Entwistle Manufacturing Co., 120 F. ( 2d) 532, 536 , (C. C. A. 4) ; N. L. R B. v. Automotive Maintenance Machinery Co., 116 F. (2d) 350-353 (C. C. A. 7). 68 See May Department Stores Co . v. N. L. R. B., 326 U. S. 376; N. L. R. B . v. Empress Publishing Go, 312 U. S. 426. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) and Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices -are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondent has not discriminated with respect to the hire and tenure of employment of Woodrow Williams, Joe Gillam, Johnnie Perrin, John T. Street, Jr., and Clinton T. Jones, Sr. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that Respondent, Augusta Chemical Company, Augusta, Georgia, its officers, agents, successors and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Construction Workers, United Mine Workers of America, or any other labor organization of its employees, by discrimi- nating with regard to the hire and tenure of employment or any terms or condi- tions of employment of its employees ; (b) In any 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 United Construction Workers, United Mine Workers or America, 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, as guaranteed by 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 the employees whose names appear in "Appendix A," attached hereto, immediate and full reinstatement to their former or substantially equiv- alent positions without prejudice to their seniority and other rights and privi- leges, and make each of them whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section hereinabove entitled "The remedy" ; (b) Post at its plant at Augusta, Georgia, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being signed by Respondent's repre- sentative, be posted by it immediately upon receipt thereof and maintained for sixty (60) days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (c) Notify the Regional Director for the Terith Region in writing, within ten (10) days from the receipt of this Intermediate Report what steps Respond- ent has taken to comply herewith. It is further recommended that unless on or about ten (10) days from the date of receipt of this Intermediate Report, Respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the aforesaid action. It is further recommended that the complaint be dismissed insofar as it alleges that Respondent has engaged in unfair labor practices by discriminating with AUGUSTA CHEMICAL COMPANY 77 regard to the hire and tenure of employment of Woodrow Williams , Joe Gillam, Johnnie Perrin, John T. Street, Jr., and Clinton Jones, Sr. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board , Series 5, effective August 22, 1947, any party may within twenty ( 20) days from the date of service of the order transfering 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 Inter- mediate Report or to any other part of the record or proceeding ( including rul- ings upon all motions or objections ) as he relies upon , together with an original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203 .46, should any party desire permission to argue orally before the Board , request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transfering the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations , the findings , conclusions , recommendations and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings , conclusions and order, and all objections and exceptions thereto shall be deemed waived for all purposes. MARTIN S. BENNETT, Trial Examiner. Dated July 15, 1948. 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, as amended, 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 organi- zation, to join or assist UNITED CONSTRUCTION WORKERS, UNITED MINE WORKERS OF AMERICA , or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full 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, Saul Jones Johnnie Byrd Willie Brigham Gibson Bailey Fred Green Anderson, Bussey Tim Hobbs Leroy Miles Willie Cooper Gid Dunbar Andrew Davis Matthew Hankerson Marion Johnson. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 and 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. AUGUSTA CHEMICAL COMPANY, Employer. By ---------------------------- (Representative ) ( Title) Dated - ------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.