Taylor Manufacturing Co., Inc.

In the Matter of TAYLOR MANUFACTURING COMPANY, INCORPORATED and CARL W. HOLT and J. C. LAWSON Case Nos. 10-CA-46 and 10-CA-80.Decided April 26, 1949 DECISION AND ORDER On August 12, 1948, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in and was not engaging in certain other unfair labor practices as alleged in the complaint and recom- mended that these allegations be dismissed. Thereafter, the Re- spondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 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, with the following additions and modifications. it. We agree with the Trial Examiner that the Respondent violated Section 8 (1) of the original Act and Section 8 (a) (1) of the amended Act by such conduct as (1) threats of Foreman Charles Lane and Manager Harve Taylor that the employees would lose their G. I. benefits if they chose the Union; (2) interrogation of employees 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- member panel [Chairman Herzog and Members Houston and Murdock]. 2 At the hearing, the Trial Examiner permitted the introduction of evidence relating to events prior to a Board=approved settlement agreement . The ruling is hereby affirmed. It is well settled that the Board will go behind a settlement agreement where, as here, it has not served its intended purpose of ending the unfair labor practices . Wallace Cor- poration v. N. L. R. B., 323 U. S. 248. 83 N. L. R. B., No. 17. 142 TAYLOR MANUFACTURING COMPANY, INCORPORATED 143 by Lane, Harve Taylor, and Wayne Taylor 8 as to their union mem- 'bership and activities; (3) Wayne Taylor's threats to discharge em- ployees or close the plant if they chose the Union; and (4) Wayne 'Taylor's assault on Holt. 2. The Trial Examiner also found that Carl W. Holt was discrim- inated against in his reinstatement on August 19, 1947, and in his .subsequent discharge on September 9, 1947. The record establishes both violations of Section 8 (3) of the Act, and Section 8 (a) (3) of the amended Act, by a preponderance of the evidence, and we there- -fore concur in the Trial Examiner's finding. During his first period of employment by the Respondent, termi- nated by his discharge on June 18, 1947, Holt was on the day shift; worked first at sanding and then at glazing; 4 and was a trainee under the G. I. training program.5 As a result of the afore-mentioned .settlement agreement, Holt was reinstated on August 19, 1947. How- ever, although the agreement contemplated his restoration to his former position with all its rights and privileges, Holt was never- theless reinstated to the less desirable night shift; he was assigned to the sanding machine, which he could not operate efficiently, rather -than to glazing, in which his performance had proved satisfactory; .and he was not restored to the G. I. training program. This failure to effectuate the settlement agreement was clearly discriminatory, as the Trial Examiner found. The Respondent argues vigorously in its brief that the failure to return Holt to work as a G. I. trainee was due to circumstances be- yond its control, in that it had no power to select G. I. trainees, and that, in any event, its quota of trainees was filled when Holt was reinstated. We find no merit in these contentions. The Respondent's contention that it had no power to select its trainees is refuted by the applicable statute. It would appear that, while final approval of a trainee rests in the Veterans' Administration, there is no limitation on the employer's right to submit for approval such veterans as he chooses, or to terminate the training of any veteran. It appears further that, except for one replacement, which we infer was the one for Holt, the list of G. I. trainees remained un- 8 Taylor is a brother of President Emanuel Taylor and Manager Harve Taylor. For the reasons stated by the Trial Examiner, we find, as he did, that the Respondent is answerable for the acts of Wayne Taylor mentioned herein. 4It appears that Holt's transfer from sanding to glazing was made without prejudice, and principally because his rate of progress on the sanding machine was slow. 6 We hereby affirm the Trial Examiner's action in taking judicial notice of the applicable statute and regulations . Matter of Inland Steel Company , 77 N. L. R. B. 1, affirmed 170 F. (2d) 247 (C. A 7), cert. granted, 335 U. S. 910 , on other grounds. We note that the Trial Examiner inadvertently gave an erroneous citation for the regulations . The correct citation is Regulations issued by the Veterans Administrator No. IA, Part VIII ; 38 U. S. C. A. Chapter 12. -144' DECISIONS OF NATIONAL LABOR RELATIONS BOARD altered between the date of Holt's original termination and his re- instatement.6 Accordingly, we are persuaded- that the Respondent could have removed the employee who replaced Holt as a trainee, and that Holt's predicament was attributable solely to the Respondent's unwillingness to do so. There was clearly no warrant for the Re- spondent's inaction, particularly in view of its express undertaking to restore Holt to his former position with all his rights and privi- leges. We are accordingly persuaded, under all the circumstances, as was the Trial Examiner, that Holt was not reinstated as a trainee because of his prior union activity. - ' We also find, for the reasons stated by the Trial Examiner, that Holt was discharged on September 9, 1947, because of his union activities. THE REMEDY The Trial Examiner has recommended that the Respondent make whole Holt for any loss of pay or income incurred by reason of its discriminatory action on August 19 and September 9, 1947, by pay- ment to him of a sum of money equal to that -which he would have earned or received as a result of non-discriminatory employment with the Respondent from August 19, 1947, to March 5, 1948, the date after which Holt indicated that he did not desire reinstatement. The respondent insists in this connection that it cannot be required to reimburse Holt for any G. I. benefits he may have lost, since such benefits are a gratuity from the U. S. Government which the Respond- ent would not ordinarily pay, and which Holt may still obtain in the future. We are, however, unable to agree with the Respondent's contention. When Holt was first employed,' he was informed ' that his earnings would consist of the 50 cents per hour paid' him by the Respondent plus the G. I. benefits. Other trainees were hired on the same basis. It is therefore clear that the G. I. benefits were regarded by the Re- spondent itself, as well as by the trainees, as part of salary. Conse- quently, in order that Holt be made whole, the term back pay or income must be regarded as including both the wages paid by the Employer and the amount which would have been forthcoming under the G. I. training program.' - 6 There is clearly no merit to the Respondent's contention that, at the time of Holt's reinstatement, its quota of trainees had been reduced. And while there is evidence that a reduction did take place thereafter, a construction thereof most favorable to the Re- spondent would fix such reduction as of September 12, 1947, 3 days after Holt's second discharge. I Cf. Matter of Club Troika, 2 N. L. R. B. 90; Matter of Willard, Inc., 2 N. L. R. B. 1094, enfd. 98 F. (2d) 244 (C. A. D. C.). TAYLOR - •11VIANUPACTURING COMPANY, INCORPORATED 145 That Holt may still avail himself of the G. I. training program in the future is too speculative a consideration." The fact is that during the period involved in this proceeding Holt was deprived of certain sums of money,he would have obtained but for the Respondent's un- lawful discrimination." The policies of the Act will, in our opinion, be best effectuated by making Holt whole now for the loss which he has suffered by reason of such discrimination. 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, Taylor Manu- facturing Company, Incorporated, of Morristown, Tennessee, its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Discouraging membership in any labor organization of its employees, by discriminating in regard to their hire and tenure of employment or any term or condition of employment; (b) Interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join or assist any 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, or 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 Section 8 (a) (3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act : (a) Make whole Carl W. Holt for any loss of pay or income he may have suffered by reason of the Respondent's discrimination against him, in the manner provided in the section of the Intermediate Report entitled "The Remedy," as clarified herein; (b) Post immediately at its plant in Morristown, Tennessee, copies of the notice attached hereto marked "Appendix A." Copies of such notice, to be furnished by the Regional Director for the Tenth Region, 8 Thus, for example, Holt may never again be in employment covered by the statute, or the statute may be amended or repealed. e As noted above, there is some indication in the record that the Respondent 's quota of G. I. trainees was reduced as of September 12, 1947 . While we do not regard the evidence as sufficient for the purposes of making a finding to that effect , the possibility arises that Holt might pot have been retained after September 12, 1947, as a trainee , for non-discrimina- tory reasons. Adjustments in this respect may be made at the compliance stage. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately. upon receipt thereof and main- tained by it for.sigty (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 (Atlanta, Georgia), in writing within ten (10) days from the date of receipt of this Order what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the following allegations of the complaint be, and they hereby are, dismissed : (1) That the Respondent discharged J. C. Lawson in violation of Section 8 (a) (3) of the Act; (2) That the Respondent discriminated against Carl W. Holt, in violation of Section 8 (a) (4), because he had filed charges or given testimony under the Act ; - (3) That the Respondent engaged in surveillance of union activity; (4) That the Respondent promised employees wage increases for 'the purpose of discouraging union membership. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining and other mutual aid or protection, or to refrain from any and 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 Sec- tion 8 (a) (3) of the Act. WE WILL MAKE whole .Carl W., Holt for any loss of pay or income suffered as a, result of the discrimination against him. All our employees' are free to become or remain members of any -labor organization. We will not_ discriminate in regard to hire or tenure of employment or any term or condition of employment against TAYLOR MANUFACTURING COMPANY, INCORPORATED 147 any employee because of membership in or activity on behalf of any such organization. TAYLOR MANUFACTURING COMPANY, INCORPORATED, Employer. By---------------------------------- Dated---=------------------ (Representative) (Title) This notice must remain posted for 60 days from the date thereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER Messrs. Hilton O. Talent and Charles M. Paschal, Jr., for the General Counsel. Messrs. William E. Badgett, of Knoxville, Tenn., and W, J. Barron and C. Frank Davis, of Morristown , Tenn., for the Respondent. STATEMENT OF THE CASE Upon charges duly and timely filed by Carl W. Holt and J. C. Lawson, the General Counsel of the Board issued his complaint dated April 14 , 1948, against Taylor Manufacturing Company, Incorporated , Morristown, Tennessee, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (4) of the National Labor Relations Act (49 Stat. 449), and 8 (a) (1), (3), and (4 ) of the Act as amended June 23, 1947 (61 Stat. 136). Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon the Respondent, and upon Holt and Lawson. With respect to the unfair labor practices , the complaint alleged that the Respondent : (1) about August 19, 1947, assigned Holt to less desirable work and caused him to be deprived of "G. I. benefits" because of his union membership and activities ; (2) about September 9, 1947 , discharged Holt because of his union membership and activity and because he had given testimony in a Board proceeding ; ( 3) about September 17, 1947, discharged Lawson because of his union membership and activity ; and (4 ) restrained and coerced its employees by questioning them about union activity ; surveilling and spying upon such ac- tivity ; threatening employees with discharge and with the elimination of G. I. benefits ; and promising wage increases to employees ; all in order to discourage union membership. In due course the Respondent filed its answer denying the commission of unfair labor practices. Upon due notice a hearing was held at Morristown , Tennessee, on June 8 and 9, 1948, before the undersigned Trial Examiner . The General Counsel and the Respondent were represented by counsel and 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 . Various motions made by the Respondent at the beginning of and during the course of the hearing to strike certain portions of the complaint were denied' A motion to make the 1 Principal among these motions were the following : a motion for separate hearings with respect to the discharges of Lawson and Holt ; and a motion to strike from the complaint the allegation that United Furniture Workers of America, C . I. 0., is a labor organization. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD answer more definite and certain was granted, as was a motion to conform the pleadings to the proof, made at the close of the evidence. At the end of the hearing the Respondent moved to dismiss the case upon the merits. This motion is granted in part and denied in part, as will appear from the findings and recommendations hereinafter. Opportunity was afforded all parties to argue the issues orally upon the record and to submit briefs and proposed findings. A brief was filed by the General Counsel on June 21, and a brief and proposed findings by the Respondent on July 26, 1948. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Taylor Manufacturing Company, the Respondent, is a Tennessee corporation, or quasi-corporation, chartered under the laws of Tennessee, and maintaining its principal office and place of business in Morristown, Tennessee. The Respondent is engaged in the business of manufacturing, selling, and distributing window sash, frames, doors, and cabinets. In the conduct of its business the Respondent purchases annually materials, consisting principally of lumber and glass, valued in excess of $50,000, approximately 20 percent of which is purchased outside the State of Tennessee. The Respondent sells approximately $100,000 worth of its products annually, about 20 percent of which is shipped outside the State of Tennessee? II. THE ORGANIZATION INVOLVED United Furniture Workers of America, C. I. 0., is a labor organization affiliated with the Congress of Industrial Organizations admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES The Respondent is a woodworking manufacturer engaged in the production of window sash, window frames, doors, and cabinets. At the time of the events in question it employed 30 to 35 persons, many previously unskilled. A large number of these were veterans of World War H. By reason of the Respondent having been approved for vocational training of veterans, these employees were enabled to receive subsistence allowances, popularly known as "G. I. benefits," from the U. S. Government while working for the Respondent. The maximum allowances provided under this program were $90 per month for veterans with dependents and $65 per month for those without dependents, provided that the total compensation paid by the employer plus the Government allowance, did not exceed $200 per month s Early in 1947, around February, the United Furniture Workers of America, G. I. 0., began an organizational campaign among the Respondent's employees. Beginning in May, 2 meetings were held. At the second meeting an organizing committee of 4 employees was chosen to solicit memberships for the Union. This committee consisted of Carl W. Holt and J. C. Lawson (whose subsequent: dis- charges are here alleged as unfair labor practices and are hereinafter discussed), z These facts were stipulated by the parties. a See Regulations issued by the Veterans' Administrator, No. 1A, Part VIII ; 30 U. S. C. A. Chapter 12; of which judicial notice is taken. TAYLOR MANUFACTURING COMPANY, INCORPORATED 149 Beauford Moore and Archie Epps. This committee, and particularly, Holt, was active in soliciting the Respondent's employees to become members of the Union, and in propagandizing the employees with respect to the Union's purposes and aims. The campaign met with some success. Holt was the leader in this activity. Some 14 of the employees joined the Union at his individual solicitation alone, prior to his discharge in June, discussed hereinafter. Early in May, Holt and Edward Gerchak, an organizer and representative of the Union, met Harve Taylor, the Respondent's manager, on the street. Holt introduced -Gerchak to Taylor. Gerchak told Taylor that the Union was attempt- ing to organize the plant and asked for a meeting with officials of the Respondent. According to Holt a friendly conversation ensued during the course of which Taylor said that he was not opposed to unions, but that he did not think that it would help the employees, since they were all veterans. Holt opined that it would. Taylor then said that his was a small plant, and asked Gerchak why he was being made a "guinea pig." Gerchak told him that the Union was "also working on" other plants in the area. With respect to a meeting, Taylor said that he would have to discuss that question with Emanuel Taylor, the Respond- ent's president, but that because of the illness of his mother he would be unable to do so for several days, but that he would let Holt know at the plant when they could get together.' Although Harve Taylor indicated no unfriendliness to the Union in this conver- tasion, as the Union's organizational campaign gained momentum, it met with opposition from him and from other supervisors or officials of the Respondent. Thus, sometime after the original campaign had gotten under way, Harve Taylor told Foreman Charles Lane that he would abandon the veteran's training program in reprisal if the Union came in. Lane, called as a witness by the Respondent, further testified as follows : He [Taylor] said if the G. I.'s wanted to treat him that dirty he could do them the same way, that it was his privilege to cut off the G. I. training if he wanted to. Lane, himself on the training program, thus convinced that designation of the Union would result in its abandonment by Taylor, then questioned a number of employees as to whether they were members of the Union, told them that the Union would "mess up" their G. I. training, and reported to them the assertion Harve Taylor had made to him, quoted above. Other incidents also occurred. Thus, Carl Holt wore a union button in the plant. During late May, Foreman Charley Lane, observing Holt's button, accused Holt of being "the guy" who "started the Union" ; he further said that the employees were going to lose their G. I. benefits because of the Union, and suggested that if Holt was dissatisfied he should "get out" and "go somewhere else." 5 About the middle of May, shortly after employee Gilbert Epps joined the Union, Manager Harve Taylor told him that if the Union came in, the G. I. training would be "out." Taylor further demonstrated to Epps that under the Union,• Epps would get not more than 75 cents per hour-about $130 to $135 per month ; while under the G. I. program he was getting approximately $185 to $190. This * The above findings as to this meeting are based on the uncontroverted and credible testimony of Gerchak and Holt, but mainly upon the latter's whose recital was more de- tailed than Gerchak's. Harve Taylor did not testify. 6 This finding is based on Holt 's testimony. Lane testified only that he did not remem- ber the conversation . He did not deny that it had occurred. 844340-50-vol. 83-11 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demonstration was based upon the assumption, however, that if the Union came in, the training program would be abandoned.' - Around the same time Harve Taylor approached employee James C. Lawson on the plant floor, and asked Lawson what he knew about the Union. After some discussion Taylor told Lawson that if the Union was voted in the G. I. benefits would stop. He also explained that after earnings reached a certain point, G. I: benefits could no longer be paid. Thus, he told Lawson that his income with the Union would amount to only $130 a month instead of the $189 which Lawson was then getting. About mid-May, shortly after employee Archie Epps had joined the Union and had begun to wear a union button in the plant, Manager Harve Taylor called Epps to the office and asked him what he knew about the Union. Epps told him. Taylor then asked whether Epps belonged. When Epps answered in the affirm- ative, Taylor asked him why he wanted the Union, saying that he (Taylor) was "trying to take care of you boys." Taylor then went on to say that if the employees chose the Union, he would abandon the training program. Taylor demonstrated to Epps that his present -wage plus the Government allowance amounted to more than he would get with a union wage scale but without the allowance. Taylor further stated that he was "for the Union" himself, that "in a way" the Union was "all right" but that he did not think that it would benefit the veterans.' On another occasion Harve Taylor had a conversation with employee Kaiser Cotter in which he told Cotter that he did not think that it "paid to fool with the Union," and he promised that he would give Cotter a raise as soon as he could. Harve Taylor's statements to the effect that the G. I. benefits would not con- tinue if the Union came into the plant caused concern among some of the employees. Thus, after his own conversation with Taylor concerning the elimination of the training program (discussed heretofore) employee Gilbert Epps made inqui- ries of the local representative of the Veterans' Administration, named Fry, as to whether Taylor could drop the program. He was advised that Taylor could do so. Epps then got in touch with Holt, and related these developments. At the same time Epps told Holt that he was worried and that he did not see how he could carry on with the Union if it meant the loss of'his veteran's allowance. Holt promised to bring Union Representative Gerchak to Epps' house to discuss the problem. On the same night or the following one Holt and Gerchak called on Epps at his home. Epps explained the situation to Gerchak, telling him that he could not continue with the Union if it meant the loss of his G. I. benefits. Gerchak said that he could not understand Taylor's "being so foolhardy" as to invite unfair labor practice charges, but that he [Gerchak] would try to get a written .commitment from Taylor to the effect that the training program would not be dropped if the men organized. Epps stated that if he got such assurances he would continue to support the Union. The finding as to this conversation, as well as to all other conversations related herein- after in which Harve Taylor participated, are based, unless otherwise indicated, upon the uncontradicted and credible testimony of the employees involved. * On cross-examination Epps stated that this was a "matter of fact" conversation, and that the sum and substance of it was that the Union would not provide the veterans with greater benefits than they were already receiving The testimony upon which the findings in the text are based was not, however, impeached or modified. TAYLOR MANUFACTURING COMPANY, INCORPORATED 151 On the following day, Harve Taylor asked Epps what Holt and Gerchak had been doing at his house the previous evening. Epps told him of the reason for the visit. Epps testified that Taylor's response was that "they wasn't going to make him write a dam thing to anybody." Taylor thereupon reiterated his prior statements to the effect that he would abandon the training program if the Union came in. Epps quoted Taylor as stating that he would "get even with you G. I.'s for screwing me up, I'll have you fellows fixed by taking away the G. I. training and the figures will show you where you're a fool " The conversa- tion concluded with the assertion by Taylor that he was "not going to have no, union." On June 18, 1947, Carl Holt, the leader of the union movement in the plant, was discharged. On August 19, pursuant to a settlement agreement reached after charges had been filed alleging that Holt had been discharged for his union activity, Holt was reinstated by the Respondent 8 In the interval between Holt's discharge and his reemployment, union activity apparently came to a standstill. Upon Holt's reinstatement however, he con- tinued to proselytize for the Union on his own time. Prior to his discharge Holt had secured about 14 members for the Union among the Respondent's employees- During the 3-week period of his reemployment he secured 9 more members. On Tuesday, September 9, 3 weeks after his reinstatement, Holt was again discharged. On the Saturday preceding Holt's discharge, September 6, the Union held a meeting of employees, the first such meeting since the spring, at the home of Archie Epps. At that time the plant operated on two shifts, one day and one night. On the Monday following the meeting, September 8, at 11:30 a. in., Wayne Taylor, a brother of President Emanuel Taylor and of Manager Harve Taylor, called the day shift employees together at the plant and spoke to them about the Union ° Neither Emanuel Taylor nor Harve Taylor was at the plant at that time. The testimony of the witnesses called by the General Counsel as to what Wayne Taylor said is not disputed by witnesses for the Respondent. Thus Archie Epps, whose testimony is the most specific, testified credibly as follows : . .. he said he wanted to know who was for the Union, who was going to join it, and the biggest part said they wasn't in it or wasn't going to join, and he says it will ruin his brother if they get one in like that, that this was just a small place and his brother was trying to get it started and then he said, "I'm superintendent here and I can fire every damn one of you right now, and let me tell you there aint going to be no union in here, that's all there is to it." On the following afternoon, September 9, about 2:50 p. in., just prior to the beginning of the night shift (which started at 3 p. m.), as Carl Holt and a number of other employees, all employed on the night shift, were engaged in a discussion before going to work, Wayne Taylor came over to the group and asked how many of them were "for the Union." One of the group answered that about all of them were. Taylor then said, "You are going to get this damn shop closed down if you keep on." Holt's credible and undisputed testimony„ corroborated by other witnesses, as to what then occurred, is as follows : 8 No finding is made or inference drawn herein that Holt's June 18 discharge was dis- criminatory. Wayne was employed at the plant ; whether as a supervisor or official is disputed. The question of the Respondent's responsibility for his conduct is resolved hereinafter. 152 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD, Nobody said anything to that and Wayne went on, "Do you fellows want to pay money so John L. Lewis, the son a bitch, can ride all over the country on the money you give him?" I asked him then if he didn't know that John L. Lewis was out of the C. I. 0., and had been for a long time, and he said, "Was t i he?" and I said, "Yes, he was out of the C. I. 0.," then he said, "Well, you fellows have been talking about a closed shop, well you are going to get the shop closed all right, closed down,,' then he looked at me and said, "I'm talking to you, God damn you." Although there is no evidence that Holt gave Taylor any provocation, the latter then either struck or seized Holt. As they were parted, under circum- stances not quite clear from the record, Taylor accused Holt of "sneaking around" having a union meeting ; told Holt that while Emanuel and Harve were away he was in charge, and asserted that he was going to discharge Holt "the very first time you give me a thing to fire you for." At this point Foreman Holly Graham told the men it was time to go to work. About an hour and half later, while Holt was at work, Wayne Taylor ap' proached him again and attempted to provoke further argument about the Union. When Holt responded that he did not care whether or not Wayne liked his union activity the latter said, according to Holt's undenied testimony : "Well, I don't like it ; I don't like you, and I don't like your looks or your damn union. The best thing for you is to go get your time and get out of here or I am going to fire you." Wayne then asked Holt how many of the employees were union members. When Holt responded that he would have to consult the union records, Wayne said that he would "find out right now." Wayne thereupon stopped the night shift, as he had the day shift on the previous day. 'Holt's testimony is as follows : , ... he walked over to the light switch directly on the other side of the plant from my machine and pulled the light switch, which was a signal for the people to stop work, then he yelled to the boys "lets find out who is in this damn union." Q. Go on. ' A. So then everybody came up there just inside the Glazing Department, right inside the door and gathered up in a circle... . -He waited until they all got in there then he asked "how many of you fellows are for a union." Nobody said anything, so he turned and asked me and I said "they are lying, they are probably afraid to tell you the truth from the way you have been carrying on here." Then he asked each one individually, starting on one end of line and working his way to the other, and everyone of them said he didn't belong to the union except Kaiser Cotter, he said he belonged until yesterday, and of course, he asked me and I told him "yes, I belong to the union." Then he asked them about John L. Lewis riding all over the country stealing money from us, then he said "well, you guys are going on and get a union and you are going to also get this shop shut down. We will close the damn thing down and let the union take over the debits and credits and no work will come out of here." I said, "o. k.," but I did not think the shop was going to shut down on account of the union. Q. What did he say next? , , • , A. Then he wanted to know where the C. I. O. son-of-a-bitch was, where he lived, and I told him Mr: Gerchak's address, and told him that I was sure "Mr. Gerchak would be glad to talk with you and would meet you half way," TAYLOR' MANUFACTURING COMPANY, INCORPORATED 153 then he says "well get him up here right now I want to fix him up good," I said "I can give you his phone number and you can go call him. He said "no, you go call him," and I said "no, you go call him yourself you are the one that wants to talk to him," then he took his hand and slapped me in the jaw and says "you are luck [sic] that wasn't my fist." I said to him "you can beat me up or kill me but you don't worry me one bit," then he got me by the arm and walked on in the office and called Mr. Gerchak and while he was trying to get Gerchak I walked out back to the boys and I couldn't understand what he said over the phone, and a little later Wayne came back in and said "I couldn't get the son-of-a-bitch," and I said "I imagine he is not at home" so he said "well, o. k." and I asked him then, I said "what are we going to do, go to work or going home" and he said "you are going to work" so again I went back and started working. Both Day Shift Foreman Charles Lane and Night Shift Foreman Holly Graham were present and witnessed the incident. Neither interfered or offered any comment. When Wayne Taylor had finished, Graham laconically told the em- ployees to go back to work.1o Immediately following this incident Wayne Taylor and Foreman Lane left the plant and called on employee Archie Epps at his home. Wayne Taylor told Epps that he understood that Epps had something to tell Harve Taylor, and when Epps indicated that he did have, Wayne urged Epps to relate it to himself. Epps declined, on the ground that it was a private matter. Wayne then turned the discussion to the Union, asked Epps whether he belonged to it; and when Epps answered in the affirmative, Wayne asked why he belonged. Epps ex- plained his reasons. Wayne said that he had noticed that there had been a "pretty good crowd" at the meeting the preceding Saturday, and asked Epps why he had let his home be used for it. Somehow Holt's name was brought into the ensuing discussion, and the conversation concluded with Wayne's rising from his seat and stating that he was going back to the plant and "throw that red-headed- son-of-a-bitch [Holt] out of the shop for good." 11 Harve Taylor was not in the plant at the time of Wayne's speech to the night shift. Later in the evening, however, Harve came into the plant, came over to. Holt and said that he had heard that Holt had been "[giving] some of his damn lip" to Wayne Taylor. Holt denied the accusation. Taylor then said that Wayne did not represent the Company and that Holt could not do anything about "The findings as to the night shift meeting are based on the testimony of Holt recited above, and of Kaiser Cotter. Foremen Lane and Graham testified with respect to this meeting. This testimony is not in conflict with that of Holt and Cotter save that of Lane in one respect : Lane testified that Wayne Taylor stated that he was not a foreman and had nothing to do with the plant. Lane's testimony in this respect was not corroborated by Graham. It is concluded that Lane was mistaken in his testimony. Sometime after the above occurrences Holt had Wayne Taylor arrested upon charges of assault and battery. Wayne pleaded guilty and was fined $2.50 and costs. 11 The above findings as to Wayne Taylor's and Charles Lane's visit to Archie Epps are based on Epps' credited testimony. Wayne Taylor did not testify. Lane admitted having gone to Epps' home. He did not specifically deny Epps' testimony except to say that Epps did the talking and not Wayne. He further testified that Epps told Wayne that he had some things to tell Harve but that he was "scared" that Harve was "mad about them having a union meeting." According to Lane, Wayne merely told Epps that Harve was not "mad about that" and urged Epps to go talk with Harve. Lane also testified that he did not remember whether Wayne said anything else. His testimony does not indicate for what purpose he and Wayne went to Epps' home. Under the circumstances, Epps' testimony seems the. most complete. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it, to which Holt responded that it was queer that Wayne should have threat- ened to discharge him if he did not represent the Company. Harve looked at him for a moment and then said, "I don't believe your work is satisfactory, so we will just write out your time." He then took Holt to the office and gave him his pay. There was some accompanying discussion in the course of which Harve accused the Union of attempting to drive him out of business, and char- acterized the settlement agreement by which Holt was reinstated as "stealing money." When Holt attempted to respond, Harve said, "You better go on, you have been fired." Holt then left the premises. Conclusions 1. Interference, restraint, and coercion The complaint alleged, in part, that the Respondent, by the actions of Harve and Wayne Taylor, Foremen Charles Lane and Holly Graham, attempted to dis- courage union activity among its employees by interrogating them concerning their union activities, threatened employees with discharge and the loss of G. I. benefits, promised them wage increases, and caused the commission of acts of violence against union leaders. On the facts heretofore recited, however, there is no basis in the evidence for this allegation as to Holly Graham. As to him the complaint is therefore not sustained. Nor is there substantial ground for the conclusion that the Respond- ent promised employees wage increases in order to discourage union membership, unless it is to be found in Harve Taylor's statement to Kaiser Cotter, related heretofore, to the effect that he did not think it "paid to fool with the union," and that he would give Cotter a raise as soon as he could. There is nothing in that statement to indicate, however, that Harve Taylor's declaration was in- tended as a bribe or promise of benefit to induce Cotter to abandon union activity. The assertion that Harve did not think it "paid to fool with the union" does not contain any apparent threat of force or reprisal, but appears to be no more than an expression of opinion, and consequently privileged. It is therefore found that this conversation does not sustain any allegation of the complaint. Other of the evidence recited heretofore does, however, sustain certain allega- tions of the complaint. As the evidence shows, Harve Taylor and Foreman Lane, admittedly management representatives, 'questioned employees as to whether they were members of the Union. However legitimate their motives may have been, such questioning of employees is an unwarranted and coercive interference in a concern exclusively the employee's own and is violative of the Act. Reeves- Ely Laboratories, Inc., 76 N. L. R. B. 728; Sunland Biscuit Co., 78 N. L. R. B. 714. The threats made by Harve Taylor to the employees to the effect that the G. I. benefits would be eliminated if the employees chose the Union, threats which Lane admittedly relayed to the employees, were likewise coercive. Counsel for the Respondent sought to show at the hearing and in its brief that the various state- ments made by Harve Taylor and Charles Lane were not threats, but were mere' expressions of opinion and hence privileged. It appears from the evidence to be true that in his interviews Harve Taylor attempted to demonstrate to the em- ployees that they would suffer actual loss in wages even if they succeeded in securing a wage increase by reason of the Union's efforts. If that result would have followed independently of any action by the Respondent, Taylor would have been perfectly within his rights to point out the consequences to the TAYLOR MANUFACTURING COMPANY, INCORPORATED 155 employees. Here, however, the result which Taylor explained would follow the designation of the Union was based upon the stated assumption that Taylor would eliminate the G. I. training program if the employees chose the Union. In other words, not merely implicit-but explicit-in Taylor's "persuasion" was the outspoken threat that if the employees designated the Union, Taylor would, in reprisal, abandon the training program, and the employees would then lose their allowances. A threat by an employer that he will, in reprisal for designation of a union by employees, take action which will result in loss of employment income to them is a threat of reprisal, and not an expression of view, argument, or opinion. It is therefore an unfair labor practice. (Sunland Biscuit Company, 78 N. L. R. B. 714.) That Harve Taylor's threat to abandon the training program was a conse- quence of the union campaign and in reprisal for it is evident from his statement, as testified to by Lane, that "if the G. I.'s wanted to treat him dirty he could do them the same way, that it was his privilege to cut off the G. I. training if he wanted to"; his statement to Gilbert Epps that he would "get even with you G. L's for screwing me up" and that he would have the employees "fixed by taking away the G. I. training" ; and his further reiteration to other employees of the assertion that the training program would be eliminated if the Union came in. The Respondent urged, both at the hearing and in its brief, that it had no con- trol over the training program, which it says is administered wholly by govern- mental authorities. Consequently, the Respondent argues, in effect, that the threats, if made, were inefficacious, and that no finding of unfair labor prac- tice can be made upon a threat not within the power of the declarant to carry out. The General Counsel's position, expressed both at the hearing and in his brief, is that, first, the Respondent had the power to discontinue the program ; and, second, that the ability to carry out the threat is immaterial ; it being enough if the employees believe that the employer has the power to do so. There is, however, no citation in the briefs to any evidence in the record, nor citation in the record or briefs to any appropriate statutory or other authority, by which the issue as to Harve Taylor's power to execute his threat can be resolved, either one way or the other. In sum, although both parties make assertions as to the fact, neither has cited any basis, evidentiary or statutory, therefor." The Regulations of the Veterans Administration referred to in footnote 3, supra, which the undersigned has examined and of which he has taken judicial notice, contain no apparent provision on the subject. They do provide, however, that any employer desiring to participate in the program must file an application showing the nature of the work covered, the course of training envisaged, and other working conditions contemplated, which application requires investiga- tion and approval either by the Administrator or by an appropriate recognized State agency. Periodic reports are required showing the progress of trainees. (Part VIII, subsection 11 (b).) It is further provided that the Federal Govern- " Gilbert Epps did testify (as has been heretofore found ) that he had telephoned Fry, a local representative of the Veterans Administration , who informed him that the Re- spondent could terminate the program at will . While Epps' testimony as to this conversa- tion has probative value to show Epps' concern , and the motivation for his subsequent conversations with Holt and Gerchak ( related heretofore), it is not competent to estab- lish Taylor's power to abandon the training program . On the latter issue it is hearsay evidence, and there is no showing that Fry was unavailable as a witness to testify to the primary facts.' 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment shall exercise no supervision or control over the business except for such institutions as are, for other reasons, under Federal supervision (Subsection 8). It seems plain, therefore, from the Regulations, that employers participating in the program are required to maintain certain standards. It would likewise seem to be contemplated that the Administrator or State agency retains author- ity to terminate approval if the standards are not maintained. Otherwise the requirement that the original conditions must be investigated and approved by the Administrator or the State agency has little meaning. That being so, an employer could secure the termination of the program as respects himself simply by reducing the standards to a non-approvable point. Too, there is nothing in the Regulations that would appear to deny to the employer the right to go out of business, or to change his operations in such a way as to make his approved training plan unfeasible or no longer applicable. It would seem to follow that the Respondent was possessed of the power to secure the abandonment of the G. I. training program, and thus to carry out Harve Taylor's threats. It is so found. It is consequently unnecessary to pass upon the question as to the legal- ity of the conduct in the absence of such a power 13 There remains for consideration the question as to the Respondent's responsi- bility for the acts of Wayne Taylor, an issue which is disputed. It is clear that Wayne questioned Gilbert Epps as to his union membership and activity, and that on September 8 and 9 he similarly questioned the members of the day and the night shifts, threatened them with discharge, threatened the closing of the plant, and assaulted Holt. It is likewise clear that this conduct was motivated by Wayne Taylor's antipathy and opposition to the Union. If his conduct is attributable to the Respondent it was coercive and constituted unfair labor practices. Threats to discharge employees or to close down the plant, because of their union activities, are not expressions of opinion. The Respondent contended that Wayne is not a supervisor or official of the Respondent. Wayne is a brother of President Emanuel Taylor and Manager Harve Taylor. He was described by witnesses for the General Counsel as the superintendent or the assistant superintendent. Foreman Lane, however, testi- fied that Wayne was an ordinary employee and, so far as Lane knew, not an officer or foreman of the Respondent. Foreman Graham first testified that Wayne "Just worked like one of the hands." When asked, however, who was in charge of the plant when Emanuel and Harve were away, Graham testified as follows: A. Well, when Harve was away Emanuel was there and on the outside me and Wayne and Charlie Lane was all there. Q. But Wayne was in charge? A. Well, I don't know, but if there was anything I run up against hard that I couldn't figure out I would go to Wayne. Q. He gave you orders about it? A. Yes, sir; he would tell me what to do when I couldn't figure it out. 18It is to be noted that Harve Taylor appeared to have no doubt as to his power to eliminate the program, as the following testimony by Foreman Lane illustrates : Q. Did Harve Taylor tell you he would cut off the G. I. training if the Union came in? A. He told me he could do it. Q. Did he say he would? A. Yes. Q. What did he say? A. He said that if the G. I.'s wanted to treat him that dirty he could do them the same way, that it was his privilege to cut off the G. I. training if he wanted to. TAYLOR MANUFACTURING COMPANY, INCORPORATED 157 Q. He told you how to do it? A. Yes, sir. Q. And he checked on the windows and all production? A. No. Q. He didn't check on that? A. He didn't check on nothing. Glenn McClain, a witness called by the Respondent, testified as follows, on cross-examination, with respect to the status of Wayne Taylor : Q. Who took charge of the management while [Harve Taylor] was on his vacation? A. I suppose Wayne was foreman at that time, they say he took charge, I suppose he was the head man. Q. He was in charge while [Harve] was on his vacation? A. I suppose so. * * * * * * Q. Was it customary for Wayne Taylor to take charge of the plant while Harve was away? A. You mean when he was away on his vacation? Q. I mean when Harve would be away for a day? A. It might have been, I don 't know. Q. Did Wayne Taylor ever give you any orders? A. Well, he has asked me to do things, I suppose you could call it giving orders. It seems a fair conclusion to draw from the testimony that Wayne was looked to as a representative of Harve Taylor when the latter was away. At the least his status was sufficiently ambiguous to provide warrant for the conclusion drawn by the employees to the effect that he was a superintendent or assistant superin- tendent. Whatever his actual authority, it is undisputed that Wayne, summoned the day and night shifts from their work, stopped operations, and spoke to them about the Union on September 8 and 9. Foreman Lane and Graham did not in- terfere, although both were present at the September 9 occurrence. Harve Taylor was informed of the incident but did not disavow it to the employees 14 Under such circumstances the failure of Harve Taylor to inform the employees that Wayne's actions, which on their face purported to be those of a managerial spokesman, were in fact not, constituted a ratification or adoption of them. It is therefore found that Wayne Taylor's conduct is attributable to the Re- spondent's 14 Harve's statement to Holt, on the evening of September 9, to the effect that Wayne did not "represent the Company," even if deemed a disavowal as to Holt, did not serve to disabuse the other employees. In any event, when Holt pointed out to Harve the incon- sistency between Harve's assertion and Wayne's statement, Harve made no responsive answer. While there is some testimony by Graham to the effect that Wayne had had several drinks and was "feeling no pain," on the September 9 occasion, there is no evidence that Wayne was under any such disability on September 8. ss It appears from the testimony of Foreman Graham that in the summer of 1947 a notice was posted in the plant to the effect that the employees had the right to join unions. This was apparently the usual Board notice accompanying settlement agreements and was no doubt posted at the time of Holt's reinstatement. The posting of such a statement does not avoid responsibility for subsequent conduct belying the assurances contained in the notice. 158 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD 2. The discharge of Holt As has been noted heretofore , Holt was discharged by Harve Taylor for the second time on September 9, after having originally been discharged in June and reinstated on August 19, pursuant to a settlement agreement , after charges had been filed alleging that his discharge was for union activities . No con- tention is made in the instant proceeding , nor is any finding made or inference drawn, that the June discharge constituted an unfair labor practice. The General Counsel contends, however, that the Respondent discriminated against Holt, in reinstating him, because of his union activities, and further alleges that Holt's final discharge on September 9, 3 weeks after his reinstatement , was discrimina- tory. The Respondent denies that Holt was discriminated against in reinstating him or that his finale discharge was for union activity . The Respondent specified the following as the reasons Holt's services were terminated : General inefficiency, apathetic attitude, belligerency toward employers and supervisors, insubordina- tion and contumacy , a passive attitude toward work, refusal to submit to con- stituted corporate direction and instruction , refusal to work at job assigned, loafing on the job, and " for cause." As has been noted previously , Holt was the leader of the union movement among the employees, a fact generally known, and one of which Harve Taylor and Fore- men Lane and Graham had specific knowledge . About a month after he went to work for the Respondent , Holt, who had had no previous experience at wood- working, was put on the sanding machine. The work proved too difficult for his limited experience . Harve Taylor consequently transferred him to glazing. He told Holt at that time that the work was too difficult for him, but that every- body could not learn it and that he was therefore putting Holt on another job. Although Foremen Graham and Lane testified that Holt's work as a sander was deficient ( a fact which Holt candidly admitted ) there is no testimony or ap- parent assertion that his work as a glazer was unsatisfactory. Holt continued to work as a glazer until his discharge on June 18. Although it was contemplated by the settlement that Holt was to be returned to his old job with all his prior rights and privileges , when he was reinstated on August 19, 1947, Holt was not put back as a, glazer. Instead he was put on the sander, on the night shift. He continued at that job until he was discharged again on September 9. In addition, although he had been on the veterans training pro- gram during the period of his first employment and thus was receiving a sub- sistence allowance, when he was reinstated he was not put back on the train- ing program. His income was thus only his hourly pay of 50 cents per hour. When Holt protested the conditions of his reinstatement , Harve Taylor merely told him that there was no room on the day shift , a more desirable shift, and that there were no vacancies on the training program. Holt then accepted the conditions because, as he testified ". . . I knew that if I said anything else, [Harve would] say I was raising trouble, and I wanted to get along the best I could, so I went ahead trying to do my job the best I could even though it was difficult for me to do it." There is no evidence of any union activity in the plant during the period of Holt's absence from it between June and August. Upon being reinstated, how- ever, Holt resumed his solicitation and the union movement again became ac- tive. During the short period of 3 weeks of his reemployment Holt secured 9 `additional members. During his previous employment he had secured 14. TAYLOR MANUFACTURING COMPANY, INCORPORATED 159 Following the revival of activity in August the Union again began to hold meetings. The Saturday September 6 meeting at Archie Epps' home has already been adverted to. On the following Tuesday Wayne Taylor provoked an argu- ment with Holt, struck him, and announced his intention to have Holt dis- charged. Shortly after having made the latter threat Wayne Taylor and Fore- man Lane went to Archie Epps' home where they questioned Epps about the Union. That visit concluded with Wayne's declaration that he was going back to the plant and throw Holt out of the shop "for good." On the same evening Holt was discharged by Harve Taylor. The Respondent contends that Holt was terminated for cause for the reasons given heretofore. No direct evidence was introduced by the Respondent, how- ever, as to why Holt was discharged. Thus, Harve Taylor, who effected the dis- charge and who presumably made the decision, did not testify, although present in the courtroom during the hearing. While Foreman Lane and Graham tes- tified as to the character of Holt's work, they conspicuously did not claim to have had any voice in Holt's separation, or to have recommended any action to Harve Taylor respecting him. Thus, while Lane and Graham testified to facts which would, were they the motivating factor, constitute adequate ground for non-discriminatory discharge, there is nowhere in the record any direct evi- dence that Harve Taylor relied on such grounds in discharging Holt. While Harve did tell Holt in discharging him that his work was unsatisfactory, that declaration, unaccompanied by any sworn testimony by Taylor to the effect that that was the factor which motivated him in discharging Holt, is not conclusive. Whatever probativeness that declaration may have is destroyed by the cir- cumstances of the discharge, which compel the conclusion that it was Holt's union activity and not the quality of his work, which disturbed Harve Taylor. The failure of the Respondent to produce direct and available testimony, which only it could produce, as to the reasons for Holt's discharge, and instead to leave it to be inferred that such testimony, if produced, would substantiate its conten- tions, must be considered in determining the issue. As the Sixth Circuit Court of Appeals said in the case of Owens-Illinois Glass Co. v. N. L. R. B., 123 F. (2d) 670, cert. den. 316 U. S. 662: "All evidence is to be weighed according to the proof which it was in the power of one side to have introduced and in the power of the other to have contradicted." When the Respondent's evidence to establish that ground for discharge existed is weighed with this principle and the surrounding circumstances in mind, it ap- pears to me that the only reasonable conclusion that can be drawn is that Holt's discharge was actually for his union activity and that the asserted grounds, whether or not existent, were pretexts. Holt readily and voluntarily disclosed that his work as a sander was not up to par, and that he found it too difficult. This fact, however, was known to Harve Taylor during Holt's first period of employment, at a time before Holt appears to have become interested in the Union. Harve at that time changed his job. When Holt was reinstated, however, he was unaccountably put back on the sanding machine, at work which the Respondent knew that he could not perform. In addition he was put on the undesirable night shift, and taken off G. I. training, thus losing his allowance. While Harve told Holt on reinstating him that there were no G. I. vacancies, there is no evidence to substantiate that declaration " 16 While there is evidence that on September 12, 1947 , the Respondent was approved for 14 trainees and in August actually had 22, there is no evidence as to how many trainees the Respondent had approval for in the latter month. t 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The settlement agreement, of course, contemplated the restoration of Holt to his former position with all, the rights and privileges pertaining thereto. As the Board has said : "... our reinstatement order in the instant case, as in all cases, en- visages 'a restoration of the situation, as nearly as possible, to that which would have obtained but for the employer's illegal discrimination."' ( Chase National Bank, 65 N. L. R. B. 827.) Holt was not so reinstated. The burden was on the Respondent to show why he was not. This burden has not been met. While Foreman Lane testified gen- erally that there were no vacancies at that time except on the night shift, and those only on the sander, there is no evidence that Holt's former job had been eliminated. The Respondent urges that employees were not hired for any par- 'ticular job, and the evidence shows that they frequently changed operations for periods of time. That fact would seem to have made it more plausible, had the Respondent been motivated by considerations of efficiency, for it to have shifted the man who took Holt's glazing job, if there was such, rather than to have placed Holt on the sander, which it knew that he was not qualified to operate. The conclusion seems required that the Respondent discriminated against Holt in reinstating him. While Lane and Graham testified that Holt's work was unsatisfactory, Graham, although questioned about it, did not deny that he had told Holt, shortly before the latter's final discharge (as Holt testified), that Holt's work was satisfac- tory. Lane also testified that Holt "loafed." The only testimony of a specific nature in support of this characterization, however, seems to be an incident, trivial in itself, wherein Holt and Lane apparently had some words over the "length of time Holt spent in drinking a Coca-Cola at the vending machine in the plant 17 It seems quite clear from the foregoing facts and it is found, that Holt was discriminated against in his reinstatement because of his union activities; it likewise appears established and it is also found, that Holt was discharged on September 9 because of his union activities, and that alleged dissatisfaction with his work was merely a pretext. Wayne Taylor's assaults on Holt are plainly attributable to Wayne's opposi- tion to the Union and to Holt's support of it. Since Wayne's conduct is at- tributable to the Respondent, the latter is responsible for the assault upon Holt. It is found that Manager Harve Taylor, Wayne Taylor and Foreman Charles Lane questioned employees as to their union membership and activities ; that Harve Taylor threatened employees with the loss of G. I. benefits if they desig- nated the Union ; that Wayne Taylor threatened to discharge employees and to close the plant if they adhered to the Union, and assaulted Holt ; that the Respondent discriminated against Holt in reinstating him on August 19, 1947, and thereafter discharged him on September 9 because of his union membership and activities, thereby discouraging membership in a labor organization. It is further found that by these enumerated acts the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in ;Section 7 of the Act. In addition to alleging that the Respondent caused the commission of acts of violence against union leaders, 'an allegation which I find sustained by Wayne 'Taylor's assault on Holt, the complaint also alleged that the Respondent insti- "Employees were permitted 'to go to,the vending machine at their pleasure. There is no evidence from which it can reasonably be inferred that Holt abused the privilege. TAYLOR MANUFACTURING COMPANY, INCORPORATED 161 gated the commission of such violence. Employee Robert Shelton testified as to one incident in support of the latter allegation . His testimony, in substance, was that near the end of August 1947 he overheard either Wayne or Harve Taylor, he was not sure which , tell Foreman Lane that they would pay his fine if Lane would "whip" Holt. Lane denied that Wayne made any such state- ment to him. He did not testify as to whether Harve did so. Lane admitted, however, having told a number of employees that he "guessed" that Harve would pay his fine if he "whipped " Holt. In view of the indefiniteness of Shelton's identification, I am not prepared to find that Harve or Wayne made the alleged statement to Lane. It is found, however , that Lane's declarations to the em- ployees as to what he "guessed" that Harve would do if Lane "whipped" Holt had the effect of restraining and coercing the employees in their organizational activities. 3. The alleged unfair labor practices a. The discharge of Lawson J. C. Lawson was hired on March 21, 1947. After a short period of service on the cut-off saw, Lawson was put on the molding machine, a device which cut window sash. Lawson joined the Union .in April and was appointed to the organizing committee. He solicited union membership in the plant-but not on company time-and attended union meetings. It is inferred that the Respondent was aware of his union activity. Lawson was discharged on September 17, 1947, 8 days after Holt. According to Lawson's testimony the circumstances of his discharge were as follows : on September 16, Lawson was given unusually short stock, ranging in length from 18 inches to 5 feet, to run through the molding machine. Usually the stock was 6 to 14 feet in length. Apparently because of the shortness of the stock, a gouge was produced in the material as it left the machine. His own attempts at adjusting the device to eliminate the difficulty being unsuccessful, Lawson called over Harve Taylor. The two then worked on the machine for several hours, and finally succeeded in minimizing the defect, but they were unable to eliminate it altogether. Harve then told Lawson that that was "as good as they could get it" and that Lawson should go ahead with the operation. Lawson then locked the adjustments and proceeded to run the stock through the machine. Later in the day Foreman Lane came over and asked Lawson what the trouble was. Lawson explained the situation. Lane made no further comment. At the end of the day Lawson shut down the machine and went home. On the following morning when Lawson arrived at work he found a piece of long stock, which was off dimension, in the machine. Lawson called Lane to look at it; Lane refused. Harve Taylor then came over and asked what the trouble was. Lawson asked Harve to caliper the piece in the machine. Harve refused and grabbed Lawson. There were some words and the two scuffled. In the scuffle Lawson was knocked down. Other employees separated the two. Harve Taylor thereupon discharged Lawson. Lawson denied having said anything to Harve Taylor that would have given offense. This is Lawson's version. Lawson's work record was good. It is not seriously disputed, and it is found, that he was an excellent employee. The other employees, who had witnessed the incident, apparently resented Harve's treatment of Lawson, for they immediately walked out of the shop in protest and gathered outside. After a time Harve Taylor came out and told 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them that they could either go back-to work.or leave, as they chose. Somehow in the discussion ( it is not clear how or why ) Harve said to one of the group, employee Ray Hill, that he understood that Hill was "one of the damn union leaders." After a while all but two of the employees returned to work. There- after Lawson filed assault and battery charges against Harve Taylor, who pleaded guilty and was fined. Harve Taylor did not testify. Ray Hill and other employees witnessed and testified about the incident. None, however, overheard what was said between Harve and Lawson ; and only Hill could give any information other than that there was a fight. Hill testified that as he looked up he saw Lawson come out from behind the machine and push at Harve, at which point Harve grabbed Lawson and struck him. Foreman Lane testified as to the events which led up to the altercation. Lane's testimony was that, on the day before Lawson's discharge, he noted that bad stock was being sent for assembly ; that he asked Lawson what the trouble was, telling him that the sash was wrong and asked him to correct the trouble. According to Lane, Lawson answered that the machine had been set up by Harve Taylor and that he was not going to change it. It is conceded that Lane did not know how to adjust the machine himself. At that time, according to Lane, Harve Taylor was not in the shop. On the following morning, when Harve came in (apparently before Lawson had arrived) Lane told him of the incident. Harve went to the machine, measured the stock and found it so far off dimension as to be unusable. He then told Lane that he would speak to Lawson about it. Lane did not testify with respect to the fight itself. It will be noted that the differences between Lane's testimony and that of Lawson and Hill are slight , and the respective versions are, in general , supple- mentary, rather than contradictory. Lane's version is plausible. Whichever version is accepted, however, the evidence does not warrant a finding that Law- .son's discharge was discriminatory. While Harve was opposed to the Union, and Lawson one of its organizing committee , there is no evidence of any antip- athy toward Lawson because of it. He was not made the object of special atten- tion by the Respondent as was Holt. His activity as a member of the organizing committee does not appear to have been pronounced. Ray Hill, for example, whom Harve accused of being a union leader at the time of Lawson 's discharge, testified that he did not know whether Lawson was a member of the Union or not. In sum, even if it is inferred that Harve Taylor's actions toward Lawson were arbitrary and without justification, there is insufficient evidence to warrant a finding that Lawson's discharge was the result of anything more than the scuffle in which he and Harve engaged. It will therefore be recommended that the com- plaint be dismissed as to Lawson. b. Other alleged unfair labor practices (1) Alleged violations of Section 8 (a) (4) The complaint alleged , inter alia, that Holt was discharged, in violation of Section 8 (a) (4) of the Act, because he had given testimony in another Board proceeding involving the Respondent. No evidence was introduced in support of this allegation . Its dismissal will therefore be recommended. At the hearing the complaint was amended to allege additionally, that Holt was discharged because he had filed charges under the Act in connection with his original discharge. It has b-n found that Holt was discharged in Sep- TAYLOR MANUFACTURING COMPANY, INCORPORATED 163 tember because of his union activities . However, the evidence is insufficient to establish the allegation that the fact that he had filed charges concerning his separation in June played a specific part in the September discharge. It will therefore be recommended that this allegation also be dismissed. (2) Surveillance The complaint alleged, in part, that the Respondent kept under surveillance and spied -upon union meetings. Evidence to support that allegation is con- fined to two incidents . With respect to the first incident , Gilbert Epps testi- fied that on the day in the spring when Gerchak and Holt called at his home (discussed heretofore ) Harve Taylor was in a ball park across the street from Epps' home, practicing baseball , and that on the following day Harve questioned him as to the reason for Gerchak's and Holt's visit. Taylor's questioning of Epps as to union activity was, of course , an unfair labor practice. His presence in the ball park , at the time of Gerchak's and Holt's visit, does not, however, give rise to any inference that he was there for the purpose of surveillance. So far as appears the events were merely coincidental. The second incident involved the September 6, 1947, union meeting held at the home of Archie Epps , which is located across the street and some 30 to 40 yards distant from the Respondent 's plant, and separated therefrom by a railroad track. During that meeting Holt and Archie Epps saw Harve Taylor, Wayne Taylor, and another person standing in front of the plant at various times, and looking in the direction of Epps' home. For anyone standing in such a position it was natural to be looking in the direction of Epps' home. Al- though the events of the following week, described heretofore , make it quite clear that Harve and Wayne Taylor knew of the September 6 meeting, I can see nothing in this incident justifying a finding that Harve or Wayne were in front of the plant for the purpose of spying upon the union meeting. It will therefore be recommended that the allegation as to surveillance be dismissed. (3) Promise of wage increases The complaint further alleged that the Respondent promised employees wage increases for the purpose of discouraging union membership. The only appar- ent evidence as to this allegation , is the statement of Harve Taylor to Kaiser Cotter, which has been related heretofore , to the effect that he did not think that it "paid to fool with the Union ," and that he would give Cotter a raise as soon as he could. Since it has previously been found that this occurrence does not sustain any allegation of the complaint it will be recommended that the instant allegation be dismissed. Proposed findings of fact and law The Respondent filed, along with its brief , a request for 25 findings of fact. Upon consideration of these the following numbered proposed findings are ac- cepted : 9, 15 , 16, 22, and 25. In addition those numbered 5 and 23 are granted to the extent that they are not inconsistent with this report. The remainder of the proposed findings are rejected. The Respondent also filed a request for 6 conclusions of law. As to these numbers 1, 2, and 4 are accepted insofar as they are not inconsistent herewith, but otherwise rejected ; number 3 is accepted ; and numbers 5 and 6 are rejected. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set, forth in„Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated provisions of the Act, it will be recommended that it cease and desist therefrom, and that it take affirmative action designed to effectuate the policies of the Act. Carl Holt no longer desires to be reinstated by the Respondent. He testified that he decided so about March 5, 1948. It will consequently be recommended that the Respondent make whole Holt for any loss of pay or income incurred by reason of his discriminatory reinstatement on August 19, 1947, and his dis- criminatory discharge on September 9, by payment to him of a sum of money equivalent to that which he would have earned or received as the result of non- discriminatory employment with the Respondent during the period from August 19, 1947, to March 5, 1948, less his net earnings during that period. It will further be recommended that the Respondent cease and desist from interfering with, restraining, or coercing its employees in their rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. United Furniture Workers of America, C. I. 0., 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 Carl W. Holt, the Respondent has engaged in, and is engaging in, unfair labor prac- tices within the meaning of Section 8, (3) of the original Act, and Section 8 (a) (3) of the Act as amended. 3. By interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (1) of the original Act and Section 8 (a) (1) of the Act as amended. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not committed unfair labor practices by (a) discharg- ing J. C. Lawson ; (b) discriminating against Carl W. Holt in violation of Section 8 (a) (4) because he had filed charges or given testimony under the Act; (c) engaging in surveillance of union activity; and (d) promising wage increases for the purpose of discouraging union membership. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that Taylor Manufacturing Company, Incorporated, of Morris- town, Tennessee, its officers, agents, successors, and assigns, shall: ;,.1. Cease and desist from : (a) Discouraging membership in United Furniture Workers of America, C. I. 0., or any other labor organization of its employees, by discriminating in regard TAYLOR MANUFACTURING COMPANY, INCORPORATED 165 to their hire and tenure of employment or any term or condition of employ- ment ; (b) Interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join or assist United Furniture Workers of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act : (a) Make whole Carl W. Holt for any loss of pay or income he may have suffered by reason of the Respondent's discrimination against him, in the man- ner provided in the section entitled "The remedy" ; (b) Post immediately at its plant in Morristown, Tennessee, copies of the notice attached hereto marked "Appendix A." Copies of such 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 maintained by it for sixty (60) con- secutive days thereafter in conspicuous places, including all places where no- tices 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 (Atlanta, Georgia), in writing within ten (10) days from the date of receipt of this Intermediate Report what steps the Respondent has taken to comply therewith 18 It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the Respondent notifies the said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. It is further recommended that the following allegations of the complaint be dismissed : (1) That the Respondent discharged J. C. Lawson in violation of Section 8 (a) (3) of the Act. (2) That the Respondent discriminated against Carl W. Holt, in violation of Section 8 (a) (4), because he had filed charges or given testimony under the Act. (3) That the Respondent engaged in surveillance of union activity. (4) That the Respondent promised employees wage increases for the purpose of discouraging union membership.' As provided in Section 203.46 of the Rules anu Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Is The precise question as to whether a union which is not a charging party and not in compliance with Section 9 (f), (g), and (h) of the Act (the situation here), shall never- theless be named in the cease and desist order and the notice to be posted by the em- ployer, has not, up to this time, been specifically decided by the Board. However, it would seem to follow from the Board's decisions in the cases of Marshall & Bruce Company, 75 N. L. R. B. 90; and Fontaine Converting Works, Inc., 77 N. L R B. 1386, that that question is to be answered in the affirmative. Consequently the recommendations herein so provide. However, cf. N. L. R. B. V. Brozen, et at., 166 F. (2d) 812 (C. C. A. 2). 844340-50-vol. 83-12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Report or to any other part of the record or proceeding ( including rulings upon all motions or objections ) as he relies upon, together with the original and six copies of a brief, in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such a statement of exceptions and/or brief, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203 .46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed , as provided by the aforesaid Rules and Regulations, the findings , conclusions, recommendations and recom- mended order herein contained shall , as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections and exceptions thereto shall be deemed waived for all purposes. CHARLES W. SCHNEIDER, Trial Examiner. Dated August 12, 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, we hereby notify our employees that : WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist UNITED FURNITURE WORKERS OF AMERICA , C. I. 0., or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of col- lective bargaining and other mutual aid or protection. WE WILL make whole Carl W. Holt for any loss of pay or income suffered as a result of the discrimination against him. All our employees are free to become or remain members of the above-named -union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such organization. TAYLOR MANUFACTURING COMPANY, INCORPORATED, 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.