Gullett Gin Co., Inc.

In the Matter of GuLLETT GIN COMPANY, INC. and ELLIS W. PECHON, AN INDIVIDUAL Case No. 15-CA-53.-Decided April 21, 19.49 DECISION AND ORDER On January 14, 1949, Trial Examiner Herman Marx issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act, as amended, and recommending that it cease and desist therefrom and taken certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief, and later filed supplemental exceptions to the Intermediate Report. 1. The Board" has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner insofar as they are consistent with this Decision and Order. The Trial Examiner found that the discharge of the 10 tin shop employees was in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. The Trial Examiner concluded that, in part, the motivation of Superintendent Wallace in discharging these employees was his fear that they would strike if the wage defMiiid they had gathered together to present met with no success. We do not believe that the record supports this inference. Rather we believe that in discharging the employees Wallace was motivated entirely by the fact that these employees did not immediately accept his explanation of the reason 'Pursuant to the provisions of Section 3 (b) of the National Labor Relations 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]. 83 N L. R. B., No. 1. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for not granting the wage increase. Instead of summarily accepting ,the proffered explanation and immediately disbanding the meeting, the employees began to discuss the matter among themselves. It was this momentary hesitation which, in our view, provoked the dis- charges. ' Such concerted action under the circumstances of this case was not insubordination,2 but was concerted activity for the mutual aid or protection of the employees involved, participation in which is protected by Section 7 of the Act. A discharge for having engaged in such activity violates Section 8 (a) (1) of the Act. Because such a discharge also amounts to a discrimination in hire and tenure of employment, thereby discouraging membership in a labor organi- zation,3 it violates Section 8 (a) (3) of the Act. Moreover, whether the discharge be regarded as a violation of Section 8 (a) (1) or of Section 8 (a) ' ('3) we find that it is necessary to order reinstatement and back pay, as recommended by the Trial Examiner, in order to effectuate the policies of the Act. 2. The Trial Examiner accepted some evidence at the hearing as to the loss of earnings of the employees discriminatorily discharged and their efforts to seek employment elsewhere. The record, however, does not enable-us to'determine whether-or not or to what extent there -has been a willful loss of earnings-of any of the complainants as of the time of the hearing.4 We shall- not require additional evidence at this time, however, since the parties, may be able amicably to adjust the amount of back 'pay due upon, the basis of facts disclosed when compliance with our Order-is undertaken.5 2 Like the Trial Examiner, we find that nothing in Wallace's statements could reason- ably be construed as an 'order that the men return to work immediately . However, in finding that the employees , were not discharged for insubordination we, unlike the Trial Examiner, do not rely on any finding that employee Cutrer was absent at the time of the discharge. Assuming that the record supports a finding ' that he was absent, this fact becomes significant only if it were to further appear that Wallace knew that Cutrer was absent The record will not support a finding that Wallace had such knowledge. 3 We adopt the Trial Examiner 's finding that by gathering together to present a wage demand the employees constituted themselves a "labor organization " within the meaning of the Act. Matter of Ever Ready Label Corp ., 54 N. L. R B. 551; Matter of Duro Teat 'Corporation, 81 N. L. it. B 976. Chairman Herzog dissents from the holding that this ad hoc grouping of employees comprised a "labor organization" within the meaning of Section 2 (5) of the Act, and would therefore find no violation of Section 8 (a) (3). He agrees, however, that Section 8 (a) (1) was violated and joins in the remedial Order. * The Respondent argued in its supplemental exceptions that any sums of money paid to the complainants from the Louisiana Unemployment Compensation Fund should the deducted from any back pay award the Board would grant. We have previously ,held that any money received by a discriminatorily discharged employee from a State itinemployment fund shall not be regarded as earnings when compensatory back pay is awarded. Matter of Rockwood Stove Works, 63 N. L. it. B. 1297. 5 This is without prejudice to the Respondent's right, in the event that this matter is not adjusted, to apply for leave to adduce additional evidence as to whether the complainants have willfully incurred a loss of earnings subsequent to the Respondent's discrimination against them. Matter of C. D. Beck and Company, 63 N. L. it. B. 1426; Matter of Detroit Gasket and Manufacturing Company , 78 N. L. R. B. 670. • GULLETT GIN COMPANY, INC. .e3 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, Gullett Gin • Company, Inc., Amite, Louisiana, and its officers,. agent, successors, and assigns, shall:. - - 1..Cease and.desist from : _ (a) Discouraging membership in any labor organization of its employees, by discharging or refusing to reinstate or. in any manner discriminating -against them in regard to their hire and tenure of employment, or any term or condition of employment; - , (b) In any other manner, interfering with, restraining, or co- ercing its employees in the exercise of their right to self-organization, to form labor organizations, to bargain collectively through repre- sentatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, or to refrain frcm any or all of such activities except to the extent that such right may be affected by an agreement requiring -membership in any labor organization, as authorized in Section 8 (a) (3) of the amended 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 Ellis W. Pechon, Van Buren Bennett, Corydon L. Pechon, J. W. Bankston, Leander Hayden, Elmer Hayden, Jesse J. Hayden, Carl E. Warren, Irving Branch, and Jesse Cutrer imme- diate and full reinstatement to their former or substantially equiv- alent positions 6 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 Respondent's discrimination, against him by payment to him a sum of money equal to that which he normally would have earned as wages from May 13, 1948, the date of the Respondent's discrimination against him, to the date of the' offer of reinstatement, less his net earnings 7 and less willful losses, if any, incurred by him during such period; "In accordance with the Board's consistent interpretation of the term , the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence , then to a substantially equivalent posi- tion." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. P. B. 827. ' By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where, which would not have been incurred but for his unlawful discrimination and the consequent necessity of, his - seeking employment elsewhere . Matter of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects shall be considered as earnings . Republic Steel Corporation v. N. L. R . B., 311 U. S. 7. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its plant in Amite, Louisiana, copies of the notice at- tached hereto and marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional,Director for the Fifteenth Region, ' after being duly signed by representatives of the Respondent shall be posted by Respondent immediately upon receipt thereof and main- tained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered, defaced, or covered by .other material; and (c) Notify the Regional Director for the Fifteenth Region (New Orleans, Louisiana), in writing' within ten "(10) days from the receipt of this order what steps 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, we hereby notify our employees that : WE WILL NOT discourage membership in any labor organization of our employees, by discharging or refusing to reinstate or in any other manner discriminating against them in regard to their tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining- or other mutual aid or protection or 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 amended Act, as guaranteed by Section 7 thereof. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and ° In the event that this Order fs enforced by a decree of a United States Court of Appeals, there shall be inserted before the words : "A DECISION AND ORDER " the words: "DE- CREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." GULLETT GIN COMPANY, INC. 5 privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Ellis W. Pechon Elmer Hayden -Van -Buren Bennett Jesse' J: H'aydein Corydon L. Pechon Carl E. Warren J. W. Bankston Irving Branch Leander Hayden Jesse Cutrer GuLLETT GIN COMPANY, INC., 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER. Messrs. C. Paul Barker and Jerold B. Sindler, for the General Counsel. Messrs. Lawrence A. Molony and Conrad Myer, of New Orleans, La., for the Respondent. Miss Mary Purser, of Amite, La., for Ellis W. Pechon. STATEMENT OF THE CASE On July 2, 1948, Ellis W. Pechon filed an amended charge dated July' 1, 1948, with the Regional Director for the Fifteenth Region of the National Labor Relations Board.' Thereafter the General Counsel' of the Board issued a complaint dated September 10, 1948, alleging, in substance, that the Respondent, Gullett Gin Company, Inc., had engaged, and was engaging, in unfair labor prac- tices affecting commerce within the meaning of Section 8 (a) (1) and 8 (a) (3) of the National Labor Relations Act (49 Stat. 449-457), as amended (61 Stat. 136-163), herein referred to as the Amended Act. With respect to the alleged illegal conduct, the complaint avers, in essence, that on May 13, 1948, the Respondent discriminatorily discharged certain named employees "because they (had) engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection," and that such discharge constituted 'interference with, restraint, and coercion of, the em- ployees in the exercise of the rights guaranteed to them by Section 7 of the Amended Act. The discharged employees named in the complaint are Ellis W. Pechon, Van Buren Bennett, Corydon L. Pechon, J. W. Bankston, Jesse J. Hayden, Leander Hayden, Carl E. Warren, Jesse Cutrer, and Irving Branch. On Sep- tember 28; 1948, the General Counsel filed an amendment to the complaint add- ing the name of another employee, Elmer Hayden, to the above list. Copies of the amended charge, the complaint, and the amendment to the complaint were duly served upon the Respondent and the Charging Party. The Respondent filed an answer on October 28, 1948, admitting that the em- ployees named in the complaint were no longer in its employ, but specifically denying the charges of unfair labor practice contained therein. 3 The National Labor Relations Board will be referred to as the Board in this report. 2 As used in this report the designation General Counsel includes the attorneys who appeared on his behalf at the hearing. 844340-50-vol. 83-2 .g DECISIONS OF NATIONAL LABOR .RELATIONS BOARD Pursuant to notice duly served upon the Respondent and the Charging Party, a hearing was held at Amite, Louisiana, on October 29, 1948, before the under- signed, Herman Marx, duly designated as Trial Examiner by the Chief Trial .Examiner. The General Counsel moved at the inception of the hearing to strike the answer and for "summary judgment" on the ground that the answer had not ,been served within the time limited by Section 203.20 of the Board's Rules and -Regulations.' The motion was denied. At the hearing, the Respondent moved that all witnesses, with the exception of the Charging Party and the Respondent's plant superintendent, be separated. The General Counsel did not oppose the motion but contended that the super- intendent should also be separated because he was not a corporate officer. Upon 'representation that the superintendent was a member of the Respondent's Board of Directors, had been designated by the Respondent to, represent. it at the hearing, and was essential to its defense, the undersigned granted the motion in its entirety, allowing the superintendent to remain The Respondent moved. for leave to file an amendment to its answer. The motion was granted. In substance, the amendment alleges that on May 10, -1948, the discharged employees, through a spokesman, requested a wage increase -from the Respondent ; that' its superintendent informed the spokesman that "it was not possible to grant a,wage increase since two unions were at the time -petitioning for an election, each claiming to represent all employees in the plant" ; that on May 13, the superintendent was requested to meet, and did meet, -with the employees in question in the plant and was informed that "they were -not satisfied with his previous statement . . . and (that) they wanted a wage increase" ; that he reiterated the Respondent's position, asserting that to grant the increase, "would be a -violation of the law," and directed the men "to -',return to their jobs or to leave the plant" ; and that "as the men continued to -sit around and do nothing and indicated an unwillingness to return to their jobs, he then informed them they were discharged and would proceed to replace them." The amendment concludes with an averment that the men were discharged for "insubordination in refusing to work and for an illegal strike for an illegal -objective." Under cross-examination during the hearing, several of the employes named in the complaint were questioned in substance and effect whether they had sought 'employment or had been employed, since their discharge. The General Counsel objected to this line of questioning. The Trial Examiner overruled the objection. -Prior to the close of the hearing, the General Counsel moved to strike the testi- mony adduced over his objection, and -the undersigned reserved decision on the --motion. The Trial Examiner has reached the conclusion that it was not improper -to admit,the evidence in question and that the motion should be denied s The complaint -was served on September 17, 1948, and the amendment to the complaint on September 29, 1948. The answer was filed on October 28, 1948, the day before the 'hearing. 4 The admission of such evidence is not improper . Cf. ,cabin v. N. L. R. B., 112 F. (2d) -326 (C. A. 3); N. L. R. B. v. Condenser Corp. 128 F. 2d 67 (C. A. 3). However, to the extent that it may have a bearing on any claim that the extent of a back pay award ,should be mitigated, it would be more appropriate to resolve that question either by admin- istrative adjustment or such other procedure as the Board may properly provide, after the 'Trial Examiner submits his report, particularly as it is unknown until after such submis- sion whether he will recommend reinstatement. As to the power of the Board, ' after the -Examiner submits his report , to make an appropriate order or receive evidence bearing on ''the question^of mitigation , see Phelps -Dodge Corp . v. N. L. R. B., 313 U. S. 177. GULLETT GIN COMPANY, INC. 7 All parties were represented by counsel at the hearing, participated therein, and were afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence bearing on the issues, submit oral argument and file briefs., The General Counsel and the Respondent submitted oral argument at the close of the case and have filed briefs which the undersigned has read and considered. Upon the entire record and from his observations of the witnesses, the Trial -Examiner makes the following : FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Gnllett Gin Company, Inc is a Louisiana corporation engaged in the manu- facture of cotton gins at its manufacturing establishment in Amite, Louisiana. During the course of the year 1948, the Company received' from points in other States raw materials valued.at a sum in excess,of $100,000 and manufactured and distributed to customers in other States finished products valued at more than $10,000.° II. TIPIE ALLEGED UNFAIR LABOR PRACTICES A. The background of the idischarge The Respondent employs approximately 200 production and maintenance em- ployees at its plant in Amite, Louisiana. Among the departments in the fac- tory is a tin shop which, at the time of the alleged discharges in May 1948, em- ployed 10 sheet metal workers, in addition to a foreman. Upon petition of the United Steelworkers of America, CIO, and after a hear- ing thereon, the Board, on March 12, 1947, decided that all production and main- tenance employees (with certain exceptions not relevant here), including those employed in the tin shop, constituted an appropriate collective bargaining unit, and directed an election to determine the question of representation e Pursuant to the terms of the Board's decision, an election was held on March 20, 1947, under the supervision of the Regional Director for the Fifteenth Region, with the result that a majority of the employees signified their wish to be represented by the petitioning union,' which was thereupon certified by the Board as the employees' collective bargaining representative. Subsequent to the election, the Union and the Respondent entered into a collective bargaining agreement cover- ing the employees in the unit, including those named in the complaint. That contract expired on May 9, 1948. During the period of the concerted activities alleged in the complaint (May 10 to May 13, 1948, inclusive), none of the employees named therein were mem- bers of the United Steelworkers. With the exception of Ellis W. Pechon (who, during the period in question, was a member of United Cotton Gin- Workers Association of Amite, Louisiana) the employees involved were members of the Industrial Union of Marine and Shipbuilding Workers of America, CIO, and 5 The findings with respect to the nature of the Respondent's business and the extent of its interstate operations are based on the admission in the Respondent's answer-of the allegations contained in Paragraphs II and III of the complaint. I See Joint Ex. "A" introduced `in "evidence at the hearing by all parties as the Decision and Direction of Election in Matter of, Gullett Gin Company, 72 N. L. It. B. 1101. United Steelworkers of America, CIO, was the only labor organization listed on the ballot. The question on the ballot was whether the employees wished "to be represented by the United Steel Workers of America, CIO." 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had at some unspecified time prior to May 10, 1948, transferred their member- ship to that organization from the United Steelworkers' On March 8, 1948, the United Steelworkers wrote the Respondent, in substance, that it wished a meeting for the purpose of modifying the agreement then in effect. On April 6, '1948, the Respondent; through its counsel, wrote, in: sub- stance, to the United Steelworkers that it had received a "demand" from the United Cotton Gin Workers Association of Amite, Louisiana, "claiming to repre- sent a majority of the employees," that the Company had advised that organi- zation that the United Steelworkers claimed "to represent the employees," that it would not meet with the United Cotton Gin Workers until it "had proof of representation," and that the Company would "require proof of representation from the union representing the majority of employees before we commence negotiation of a new contract." 0 On May 5, 1948, a few days prior to the expiration of the existing contract with the Steelworkers, United Cotton Gin Workers ; Association of Amite,. Loui- siana, filed a petition for certification with the Regional Director, claiming to represent the employees in the unit. On May 6, 1948, a similar petition was filed with the Regional Director by Industrial Union of Marine and Shipbuilding Workers of America, CIO. An agreement for a consent election was entered into on May 18, 1948, between the Respondent and the two petitioning unions, and an election was held on May 28, 1948. The United Steelworkers did not intervene or otherwise participate in these representation proceedings. The election resulted in the choice by the employees of the Industrial Union of Marine and Shipbuilding Workers of America, CIO, as their representative. That union was so certified on June 7, 1948, and entered into a collective bargaining agreement with the Respondent on August 2, 1948.10 B. The testimony relating to the discharge On Monday morning, May 10, 1948, the day after the expiration of the -Steel, workers' contract, the tin shop employees , 10 in number, agreed among themselves 8 This finding with respect to the transfer is based on Leander Hayden's uncontradicted testimony that the employees who had held membership in the United Steelworkers had transferred such membership to the Marine and Shipbuilding Workers. Respondent's counsel adduced this testimony on cross-examination of Hayden, intimating that the trans- fer occurred because the United Steelworkers "had not qualified before the Board" (by complying with the filing requirements of Section 9). From the context of the questions put to Hayden and his answers (although not entirely responsive ) It is inferable that Hayden intended his answer to mean that the transfer occurred because the United Steel- workers were not "qualified" to use the facilities of the Board. In any event, Respondent's counsel stated in the open hearing, in support of his offer of some correspondence between the Respondent and the United' Steelworkers,''that that union as of May 10, 1948, had not "qualified" (meaning by intendment that it had not complied with all filing requirements of Section 9), that the membership of the men in that union had previously been trans- ferred to the Marine and Shipbuilding Workers, and that the United Steelworkers could not "get the services of the Board" or, in other words, that it could not, at the time of the events in question apply again for certification. 9 There is no evidence that the Steelworkers at any time after the Respondent's let- ter of April 6, 1948, ever attempted to negotiate either a modification of its existing contract or its renewal. 10 At the hearing the parties stipulated the facts. with respect to both the 1947 and 1948 ,elections, the certifications described above, and the agreements which followed the respec- tive elections, and the Trial Examiner finds the facts embodied in the stipulation to be true. GULLETT GIN COMPANY, INC. 9 to ask the Respondent for a wage increase. They designated their leaderman, Elmer Hayden, as a spokesman to place their request before J. J. Wallace, the plant superintendent. Later that morning, Hayden spoke to Wallace about the matter in the tin shop. In substance, Wallace told him that because of the pending petitions for certificatiog and the impending election, the Respondent could not grant an increase for fear that it would be accused of an unfair labor practice." Wallace testified that "they talked on about a good many other things, how much work they had been doing, how much wheat he (Hayden) had been growing, and I expect we spent about 30 minutes. Some of the talk was irrelevant and some of it was not." Hayden reported the results of his meeting with Wallace to the men at noon. During the next 2 days, principally during the noon lunch periods, there was some discussion among them, although no formal meetings were held. They were dis- satisfied with the results of Hayden's approach to Wallace, and it is also evident that they were not wholly satisfied with the effectiveness of their spokesman 12 As one of them, Irving Branch, summed it up in his testimony : ". . . we don't know what he (Wallace) said. We don't know what he told Elmer." During the lunch period on Wednesday, May 12, there was some talk among them about having Wallace "come in the shop,"" and on the following morning, before the commencement of the day's work, some of them, at least, decided to "get Mr. Wallace back down here and, hear what he's got to say." 14 Sometime before 9 o'clock on Thursday morning, the men delegated Leander Hayden, one of the employees and Elmer's uncle, to request Peter J. Dieterich, foreman of the tin shop, to inform Superintendent Wallace to come to the shop, because "the men wanted to talk to him as a group." 15 Dieterich went to see Wallace and returned with him to the shop shortly after 9 o'clock.16 Testimony concerning the events of the meeting was given at the hearing by Ellis Pechon, Elmer and Leander Hayden, Irving Branch, and Van Buren Bennett, 11 Hayden's account of the conversation differs somewhat from that given by Wallace, but the Trial Examiner regards the variance as insubstantial . According to Hayden, Wallace's response was that "he wouldn 't give any raise, he might be violating the labor law and he wouldn't do anything about it." Wallace testified that he told Hayden : "Well, I am in a position where I can't give you a raise nor either do I want to discuss rate increases with you now. We have a petition by two different unions who are now claiming -that they represent the men-a majority of the men, and until that Is decided, I am not going to give any rate increases to anyone because if I do, I may be accused of attempting to sway the election one way or the other . Or even I may be accused of un- fair labor practices. I am not going to be able to do that and you are going to have to tell the boys that we can't do that and they will have to wait until the election and deter- mine who will be the bargaining agent to represent the men . At that time we will - be able to straighten out this unequal pay you are talking about." 17 Elmer Hayden testified that after he reported back to the men he "... couldn't make satisfaction with them." Another witness, Ellis Pechon , quoted Hayden as saying that he "couldn't explain to the men . . . was afraid he wasn 't a very good talker." On the witness stand Elmer Hayden manifested considerable difficulty in articulation. There were long pauses between questions put to him by counsel and his answers , and between some of his sentences . There was obvious strain in his efforts to find words to express his ideas. 18 See testimony of Van Buren Bennett. 14 See testimony of Irving Branch. 15 See testimony of Dieterich , Pechon, and Leander Hayden. 19 The facts set out above, from the initial designation of Elmer Hayden as the em- ployees' spokesman to the appearance of Wallace in the shop to meet with the men, are based upon a synthesis of uncontradictqd applicable portions of testimony given by Pechon, the two Haydens, Branch, Bennett, Dieterich , and Wallace. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who were called by the General Counsel ," and by Foreman Dieterich and Superin- tendent Wallace, who were called by the Respondent. All of the tin shop employees, including Foreman Dieterich, attended the meeting with the superin- tendent. One of the men, Jesse Cutrer, was not present during part of the meeting. Cutrer was present at•its beginning , but left for the lavatory at some unspecified point during its course, and did not return until after the close of the meeting and the discharge in question had occurred 18 The testimony of the discharged employees, with respect to the main features of the meeting may be summarized as follows : The discussion lasted approxi- mately 15 minutes.19 Elmer Hayden placed the question of the requested increase before Wallace and asked the superintendent to explain to the men what he had previously told him.20 Wallace responded, in,substance, that the Company could not grant the increase because an election by the Board would soon be held to determine which of two unions would represent the men, that an increase at that time might be construed as an attempt to influence the men's votes in the election and, therefore, might constitute a violation of the law, and that the Company would be willing to bargain about the matter after the election 21 Then there 17 At the close of his case and before he rested, the General Counsel announced that the other tin shop employees, Corydon Pechon, Jesse Hayden, Jesse Cutrer, Carl Warren, and J W. Bankston were present at the hearing and available for testimony, but that unless the Trial Examiner desired , he would not call them as witneses as their testi- mony would be cumulative . Respondent's counsel stated that he had no personal knowl- edge of their presence, but that if the General Counsel said they were present and ready to testify, "it is a fact." The General Counsel and Respondent's counsel also stipulated that these employees , as well as those who testified , were discharged at the same time. IS The finding with respect to Cutrer 's absence is based upon the uncontradicted state- ment to that effect by Ellis Pechon in his testimony . Respondent's counsel did not touch upon the matter in his cross-examination of Pechon. 11 Pechon and Leander Hayden estimated the duration of the meeting as 15 minutes ; Branch and Elmer Hayden as "15 or 20 minutes," and Bennett as "five or six or ten minutes, something like that." 21 Pechon and Elmer Hayden testified , that Elmer requested both the increase and the explanation . Elmer testified : "Well, I told him ( Wallace ) we wanted more money and if he couldn 't give more money to tell the boys because I couldn't make satisfaction with them." Branch's recital of Elmer's ' opening statement does not mention wages, quoting him as saying : ' Mr. Wallace , the Boys `want to hear what you got to say." Bennett quotes . Elmer as saying : "Mr. Wallace we have come to see you about our wages " Wallace's account is that Elmer said "Mr: Wallace, the • men don't seem to believe • what I told them and they want you to talk to them. They feel that they should have the same rate that the top machinists get." From a synthesis of the testimony , the Trial Examiner finds that the import of Elmer's statement was,to place the men's request for an increase before Wallace, and , if it could not be granted , to explain the reason for the refusal because he•had not been-able to do so satisfactorily. 21 The Trial Examiner finds that , this was 'the substance of Wallace 's response which is set forth in substantial detail in the testimony of all of the witnesses called by both the' General Counsel and the Respondent ,' with . the exception of Bennett and Leander ,Hayden. While their testimony adequately reflects much of the summary of the super- intendent's response given ' abote, they do not describe it in as great detail as the other witnesses . Bennett testified : "Mr. Wallace said : 'Boys, I can't do any more. I can't do any more on account of the Labor Board has got me-I just can't do any more.'." At another point in his testimony Bennett quoted Wallace as saying , "I'd get myself in a jam and I just can't do any more." Leander quoted Wallace on this point as saying "he couldn't give a raise" and , under cross-examination , stated that Wallace "said he couldn't give any raise until after the election " and that "he had to wait until that was done." The Trial Examiner does not accord any significance to the variances between the descrip- tion of Wallace's explanation contained in Bennett's and Leander Hayden 's testimony and that given by Pechon,iElmer Hayden, and Branch: The differences are those of emphasis, personal articulation and individualized use of colloquial expressions . The meaning of the testimony Is plain when considered within the context of the case as a whole. GULLETT GIN COMPANY, INC. 1- 1-ensued a discussion between Wallace and individual members of the group, relating: mainly to the claim of the employees that their wages should be raised to a level with those paid to a group of machinists employed in another department. Finally,-Wallace put it to the men in purport and effect whether they were going: to go to work or "what they were going to do," and before they had any time to respond, he said in substance or effect that he was not paying them to "set" or "stand around," 2' and discharged the entire group, except Dieterich. The employees either expressly or by clear implication deny that they refused to return to work or that Wallace gave them an opportunity to do so. Pechon. stated that the discharge came (after Wallace's inquiry as to what the men were going to do) "before anybody could open their mouth," that Wallace's concluding remarks were "almost one sentence," and that "he (Wallace) gave the question and answer." Elmer Hayden testified that "they didn't have time" to indicate a willingness to return to work. Branch asserted that he "couldn't say" how long a time lapse occurred after Wallace's inquiry, but that "it wasn't very long," that lie would have had time, "if I would have had it right on my lips," and that "r thought he would want to separate those that wanted to work and those that did not, but it didn't go that far." Bennett testified that nobody started back to work because they "didn't have time." Leander Hayden stated that nobody answered Wallace's inquiry because "they didn't have time to answer." Immediately after the discharge, Wallace left the shop, and the men collected their tools, punched the time clock, and left the plant. In describing the meeting, Wallace and Dieterich substantially agree with, much of the testimony of the discharged employees. They agree that Wallace- was requested to explain his reasons for refusing to grant the increase and that there was some discussion of the wages paid employees in another department as compared with those paid the tin shop group. There is also no substantial difference between the versions given by Wallace and Dieterich of the superin-- tendent's explanation and those given by the employees. Finally, the Respond- ent's witnesses agree that Wallace concluded the meeting by discharging the- entire tin shop staff, except Dieterich. The only significant divergence in the accounts given by Wallace and Dieterich from those given by the men is testimony by both Wallace and Dieterich that at some point during the meeting one or two of the men made a move to return to work, but that Leander Hayden dissuaded them with a certain remark ; that the superintendent on two occasions-once during the middle of the meeting and the other toward its close-requested the men to return to work; that in each instance, he gave them, and waited, an estimated 5 minutes to do so ; and'that when they did not accede to his request at the end of the second period, he- concluded the meeting by discharging them. The following is a narrative account of the meeting taken from Wallace's testimony : He (Leander Hayden) reiterated approximated ( sic) the same thing that Elmer did and I told him the same thing. I said, "Boys we can't do a thing about it. I am not going to stick my neck out by changing your rate now. I am going to do this thing like I think it ought to be done and that 22 Branch and Bennett made no reference in their testimony to any statement by Wal- lace in words or substance that he was not paying the men to "sit" or "stand around." Pechon and Elmer and Leander Hayden attribute a remark of that tenor to Wallace, and both Wallace and Dieterich assert that the superintendent made a statement to that effect in his concluding remarks discharging the men. The Trial Examiner finds that such a statement was made. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD won't be a change of rate. What I would like for you men to do is to go back to work and see if you can't get satisfied like you were until this election is over and then we will try to determine and settle some of these things that you now complain of." Well, they hesitated and didn't say anything. I didn't say anything more about (the) thing. In this time which I would say was somewhat in the neighborhood of 30 minutes there were a lot of words said that did not apply particularly to this rate question. It was talk in general, but that was the definite statement that I made. The general talk was that I think that I am as good as this fellow and I believe I ought to have (the) rate and this one is as good as somebody else and that was the general talk that I could hear. To my back there was two men I wouldn't be able to name them, but one of them I think was Buren Bennett the other one I don't know. They didn't say anything about that so it didn't look like we were getting anywhere so I reiterated the same thing. I said, "Boys, I can't do anything for you in this case now." Then I still talked some more about the reason why. That I was not going to be able to do it and I didn't want to influence-I didn't want to be in a position of being accused of trying to bribe the boys in their voting one way or the other. I wasn't going to do it and I told them so. These two men said, "that sounds fair enough." TRIAL EXAMINER MAR,x : Indicating which two? The WITNESS : Buren Bennett I am almost certain and I don't know who the other one was, he was behind me. When I turned around-before I turned around Mr. Leander Hayden said "Are you boys going to quit now?" With that these two men who were behind me walked over on this side (indicating to the left). No, we are going to stick together. I was still at this end of the table (indicating to the right) so I said, "boys I would like for you to stay on, but there is one of two things you can do. You can quit and if you quit you are going to lose your seniority and you won't be able to vote in this election. The other one is you can take this job and go on with it and wait until the outcome of the election. Now what are you going to do?" They waited a while and they didn't (sic) what to do. There was not a murmur out of anyone. I said, "well boys I am not sure that we can have you sitting around on tables and not having you do anything. I am afraid I will have to make up your minds for you. I am going to fire you and all of you consider yourself fired as-of,this date." At subsequent points in his evidence, both under direct and cross-examination, Wallace testified that he "gave" the men approximately 5 minutes to return to work after each of his claimed requests and that after the second 5-minute period he discharged them" He testified as follows in his direct examination : " ffi In Wallace's cross-examination, the General Counsel , without objection , conducted a time test to determine Wallace's conception of 5 minutes. According to the Trial Exam- iner's watch, Wallace estimated a 3-minute period as taking 5 minutes. Respondent's counsel stated that "approximately three minutes" had elapsed. a+ Although in his • cross-examination, Wallace did not state, in precise terms, that he gave the employees 5 minutes after the second request to decide their course, there are points in his evidence in which that was the definite implication and import . For example : Q. You were not upset during the first 5-minute -period? A. No or the second one either. GULLETT GIN COMPANY, INC. 13 . . . I gave them ample time which'I would consider was about five minutes to make up (their ) minds. Nobody said anything during that five minute period.26 I started talking again ' because I didn't get any answer and I reiterated that statement and requested them to go back to work. Then I gave them another five minutes and then I told them that "if you can't work I can't have you.on my payroll and I am going to have to let you go, you are going to be fired." Toward the end of his testimony in response to some questions put to him by the Trial Examiner, Wallace gave a different version of the time factors involved. In effect, he divided his discussion with the men Into two parts (as he had also done during his preceding testimony ) ; the first consisting of a discussion fol- lowed by a waiting period for the men to return to work, and the second of a renewal of the discussion, followed by another waiting period, and ending in the discharge of the men. He testified that "it took up ten minutes before we got around to that end of the talk" (his first request that they return to work), with some Interchange between him and the men, and he affirmed that he con- sumed the major part of that period with his talk and that the employees. were "primarily" listening to him. Then Wallace testified that "we stopped about five minutes and talked about ten minutes about the same set up," in which period, he affirmed, there was not much interrogation by the men, which con- sisted of "why I couldn't do it or why I shouldn't do it." At. this point in his testimony, in describing the time lapse between his asserted second request and the discharge, although he had previously estimated it as "another five min- utes," Wallace measured the "hesitation" of the men as follows : . . . They hesitated a little while and I said "now gentlemen, I am going to make up your minds for you. I am going to let you go." Q. How long would you say they hesitated? A. I don't know-long enough to say yes or no. Q. Will you try to give me the best recollection you have, as well as you can remember? A. A minute-maybe two. Wallace asserted in his testimony that during the first period of - hesitation, the men did not say anything to him and that during the second, "there was not a murmur. out of anyone." 20 With respect to the asserted waiting periods, Dieterich testified: "I think he (Wallace) gave them about five minutes each time and the second time after they made no move to go back to work, then he told them he would have to let them go." And, at a later point in his testimony, Dieterich stated that he thought "about five minutes" elapsed between the second request and the discharge. With respect to the question of what the men were doing during the claimed 5-minute waiting periods, Dieterich testified that during the first "a little mum- bling" went on among them, but that he could not make out what they were saying, and that during the second period, he did not think) that the men talked among themselves, although he did not "remember exactly." According w Under cross-examination , Wallace testified that after his first request that the men return to work "they did some discussion among themselves, but what they were dis- cussing about then, I don't know," and in response to a question whether he "gave them five minutes" then, he replied , "I think every bit of it." m At other points in his testimony , Wallace indicated that there .was some discussion among the men during one or both periods of hesitation (see footnote 37, post). 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Dieterich, however, there "might have been one or two" who said they would return to work, but that they 'did not "make any move" to do so, because Leander Hayden said, "You all are not going to back down now, are you?" 27 C. Evaluation of the testimony and concluding findings Upon the basis of the entire record and his observation of the demeanor and characteristics of the witnesses, the Trial Examiner has reached' the, conclusion that the employees were not afforded an adequate opportunity to return' to work, that they did not refuse to do so, that they were not insubordinate, and that the real reason for their discharge was their concerted activity to secure a wage in- crease and Wallace's belief that the men would strike after his rejection of their request. It is usually of little or no consequence that a witness estimates a given event to have lasted a particular number of minutes rather than another. The falli- bility of human recollection and perception is such that it is expected that a wit- ness can usually give only a rough approximation of the time according to his best recollection unless he actually measures it when the event under his obser- vation occurs. In the instant case, however, time factors have an important bearing on the claim of insubordination. If the accounts of Wallace and Dieterich with respect to the claimed waiting periods are to be credited, they were, at least in part, a standard by which Wallace measured his asserted con- clusion that the ,men were insubordinate. The periods themselves became a timing instrument, and it is reasonable to expect that, if they occurred, they would become fixed in the recollection of the participants in the meeting. Thus, the undersigned regards the estimate by all the witnesses of the time lapse be-, tween Wallace's inquiry as to the men's intentions and his words of discharge as of more than ordinary importance. As the evidence developed at the hearing, it became manifest that the question whether Wallace afforded the men a reasonable opportunity to return to work -would assume some importance. On this point, the testimony of the discharged employees, who were, with the exception of Pechon, excluded from the hearing room before testifying, was substantially consistent, despite some variances in their respective accounts. The reaction of the undersigned, while listening to them, was that their versions were not the product of concerted formulation, but that each individual was giving his best recollection .23 While they did not state "It is difficult to determine from Dieterich's testimony the point in the meeting at which he attributes this remark to Leander. He implies that it was made during one of the 5-minute periods of hesitation, but it is not clear in which one It is also not clear whether it came during a period when Dieterich claims the men were "mumbling" among themselves Inferentially, the incident appears to be the one referred to by Wallace. 'There is also some confusion in Wallace's testimony as to the point at which he claims it occurred. At one point in his testimony, he indicated that the incident occurred after the first request that the men return to work, and at another after the second request. O Variances in the testimony of the employees relate in the main to the paraphrasing and interpretation of the remarks attributed to Wallace and to the movement and com- menta among a group of 10 men spread, out around a table from 15 to 2G feet in length In a meeting of substantial, if not critical, economic importance to them. The differences in their recollection of what Wallace said and the reaction of the men to his remarks -derive from the variables of articulation among people and the infirmities of the memory ,with respect to details of events such as those in question which involved 12 people (includ- ing Wallace and Dieterich) and extended over a period of time. The important criteria are whether discrepancies or faulty recollection are of such a nature as to make the witnesses unworthy of belief. From his observation of the employees who testified, the Trial Examiner has concluded that discrepancies in their testimony did not proceed from a purpose to evade or disregard the truth. Whatever faulty recollection they had related to details and not significant facts. GULLETT ' GIN COMPANY, INC. 15 it in terms, the consistent thread that ran through, their accounts was one of surprise at the time of the meeting that it had taken a sudden turn culminating in their discharge. On the other hand, there are significant disparities in the accounts of Wallace and Dieterich with respect to the, claimed waiting periods, which taken, with their demeanor while testifying and the entire context of events, lead to the con- clusion that their claim that the men were insubordinate, including their testi- mony with respect to the waiting periods, should not be credited. There was firm assertion by both Wallace, who was not excluded from the hearing room and heard the employees testify, and Dieterich, on their direct and cross-examination, that Wallace twice waited for a period of about 5 minutes after two purported requests that the men return to work. However, at the very end of his testimony, at a moment which the undersigned observed to be unguarded, a basic disparity appeared in Wallace's testimony concerning the second 5-minute waiting period. After relating again the substance of his second request, he testified that the men "hesitated a little while" before he discharged them. Asked how long they "hesitated," Wallace responded, "I don't know-long enough to say yes or no." Then in answer to a request that he give his best recollection of the time lapse, he replied, "A minute-maybe two." 9 Wholly aside from the fact that "hesitation," the term applied twice by Wallace" to characterize the attitude of the men during the two claimed wait- ing periods, does not quite accord with the Respondent's claim of refusal and insubordination, there is a manifest incomputability between the last-quoted testimony and the second 5-minute waiting period which Wallace consistently asserted in the rest of his testimony, as did Dieterich in his. Another substantial inconsistency relating to the second 5-minute waiting period emerged during Dieterich's testimony. Like Wallace, Dieterich testified that the'entire meeting lasted "a half hour or something Uke that and it must have been five or ten minutes between each time he asked them" (to return to work). He described the conversation preceding the claimed first request much as Wallace did in his testimony. The import of his testimony is that in the "five or ten minutes between" the first and second request Wallace again ex- plained the Company's position " The General Counsel introduced an affidavit dated June 25, 1948 (about 6 weeks after the discharge), which Dieterichi had given to a Field Examiner employed in the office of the Fifteenth Region of the Board. The witness testi- fied that the Field Examiner "told me to tell him, in my own words, what happened" and that "I did." Dieterich also affirmed that the affidavit con- tained to the best of his recollection "at that time" (when he made the affidavit) what he "recalled of the occurrence." J2 In the sworn statement Dieterich set forth substantially the same version, as in his testimony, of the conversation between Wallace and the men preceding the first request that they return to work. After reciting that part of the con- versation, the affidavit states : 20 It is interesting to note that a full "minute-maybe two" are far longer than the time required "to say yes or no." 80 See Wallace's narrative account , under direct examination , of his first request that the men return to work. 83 Dieterich's testimony concerning the substance of Wallace's conversation between the two requests is very scant. About all he said concerning it was : "He explained to them he couldn 't raise the wages and wasn't going to." 82 Dieterich affirmed that when the Field Examiner took his affidavit, he was not asked "questions specifically about this that and the other thing." 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Then Mr. Wallace asked if they were willing to go back to work under those circumstances. He waited a few minutes and nobody made a move to go back to work. No one talked out although there was some mumbling. amongst themselves. Mr. Wallace waited a few minutes and asked them the same thing again. No one moved or said anything so Mr. Wallace (said), "I have you on my payroll, and can't pay you for sitting on the benches. So I just fire the whole bunch of you at one time." It is to be observed that Wallace testified that there were two distinct periods of an estimated 10 minutes' duration," both, before and after the first request, in each of which he explained the Respondent's position and exchanged some re- marks with the men. The general import of Dieterich's testimony is to the same effect,"" and that after the second request, Wallace waited about 5 minutes be- fore firing the men. Yet, the statement which was given a relatively short time after the discharge makes no mention of a second 5-minute waiting period, although it specifically states that Wallace "waited a few minutes" after the first request and then repeated it. There is also no mention of a second 10- minute explanation by Wallace and of a colloquy between him and the men, as be, testified. Nor is there any reference to the, fact that two employees made a move to return to work, but that Leander Hayden dissuaded them. Dieterich's affidavit tends to refute his own testimony, and that of Wallace, that there were two explanatory statements made by Wallace at the meeting, lasting about 10 minutes each, one before and one after a request that the men return to work, and that there were two 5-minute waiting periods after each request. Significantly, it contains no mention of the circumstance that Leander Hayden dissuaded two employees from returning to work during the meeting, a matter which the Respondent appeared to stress in its evidence as demonstrating the insubordinate design of the group. In omitting these circumstances, the affidavit gives substantially less factual support to the claimed insubordination than does the testimony of both Wallace and Dieterich at the hearing. Another circumstance, tending to cast doubt on Wallace's claim that the em- ployees were insubordinate, appeared toward the close of Wallace's testimony. In his cross-examination , responding to a question by counsel whether any of the men "affirmatively" said "they were not going back to work," he replied, "No, I don't know that they did." Neither Wallace nor Dieterich, either under direct ea See the concluding portion of Wallace's testimony in response to some questions from the Trial Examiner. There is also confusion in his estimate of the duration of his explanatory remarks to the men . In his direct testimony , he estimated that "five minutes or so" elapsed between the two requests that the men return to work, which is not consistent with the claim that there was a 5-minute waiting period after the first request followed by a second 10-minute period of explanation before the second request (a total of 15 minutes between both requests). Further confusion is manifest in his direct examination immediately after his statement that "five minutes or so" elapsed between both requests . Respondents's counsel asked him how much time elapsed between the first request and his departure from the shop, and Wallace responded , "I suppose I talked with then about 20 minutes," indicating that 20 minutes elapsed between the first request and his departure. However, in the very next question counsel in effect asked him whether the 20 minutes referred to elapsed "in between the two requests that they return to work," and Wallace answered, "Yes," thus successively indicating first that "five min- utes or so" elapsed between the two requests, and then that the period was 20 minutes. While these inconsistencies, standing alone, are not decisive , nor even particularly signifi- cant, they tend, in conjunction with other disparities, to diminish the value and reliability of evidence offered by the Respondent of the waiting period as indicia of insubordination. 84Dieterich ,• in his direct testimony, estimated that "five or ten minutes " elapsed between, both requests. GULLETT GIN COMPANY, INC. 17 or cross-examination, quoted any of the men as saying, in terms, that they would not return to work unless the increase was granted. The whole import and tenor of their testimony, both on direct and cross-examination, was that their assumption that the employees refused to work was based on the conduct of the men in not returning to work and the claimed colloquy between Leander and two of the men, and not on an explicit statement by any of them that they would not return unless their request was granted' However, toward the end of his testimony, after he had fully described the meeting, under direct and cross- examination, Wallace, for the first time, in responding to a question from the Trial Examiner whether there was "anything said by anyone that would indi- cate" to him that the employees "would not work," testified as follows : A. Yes, they said if they didn't get the rate we are not going to be able to work. Q Did somebody say that? A. Yes. Q. Who said that? A. I think Mr. Hayden said that. Q. He said that if they didn't get the rate change they would not work? A. Yes. Q. Was that Elmer or Leander Hayden? A. Elmer. Q At what point was that? A. That was in the second session when we were talking about why we couldn't do it. Q. With respect to that statement made by Leander, or was it Elmer? A. It was Leander. If true, such testimony is important. If untrue, it serves to throw suspicion on other aspects of Wallace's testimony. Aside from Wallace's manifest con- fusion and uncertainty in first attributing the remark to Elmer and then to Leander, it is strange that Wallace made no reference to it in his direct and cross-examination, although ample opportunity to do so responsively was avail- able, and equally strange that Dieterich made no mention of a remark in those terms in his testimony. Moreover, it is plainly inconsistent with Wallace's statement on cross-examination that none of the men had said "affirmatively" that they would not return to work. Based upon Wallace's demeanor when he gave the testimony quoted above, its inconsistency with his previous testimony, Dieterich's failure to mention, either in his testimony or his affidavit, a refusal couched in those terms by either Elmer or Leander, and the point at which it 35 In his direct testimony Dieterich stated that there "might have been one or two" who said (in response to Wallace's request) that they would return to work." Then in response to counsel's question whether anything was said to them, he asserted that "Leander spoke up and said, `You all are not going to back down now, are you?' " Ques- tioned as to the response of the "one or two" to Leander's remarks, Dieterich replied that "they" said, "No, they refused to go back to work." At this point counsel inquired, "They said they were not going to back down and they refused to go back to work," and Dieterich responded, "They never made any move to go to work." Based upon the uncer- tainty manifest in the foregoing, the fact that Dieterich in his affidavit imputes no such stated refusal to any of the men, but, in fact implies the contrary, and the fact that Dleterich, under cross-examination and after some prodding, admitted that it. "seemed" that the men "agreed not to go back to work," basing his assumption on Leander's state- ment, the Trial Examiner concludes that Dieterich did not intend to testify on direct examination that he actually heard the "one or two" men refuse explicitly to resume work, and that if he did so intend, then his testimony to that effect is unreliable and not to be credited. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appears in Wallace's testimony, the Trial Examiner believes that it was an afterthought, and he does not credit Wallace' s assertion that such a stated refusal to return to work was made, whether by Elmer or Leander. There is considerable reference in the testimony adduced by the Respondent to two purported "requests" that the men return to work, and the Respondent advances the thesis, at least by strong implication, that the employees insubordi- nately refused to comply with the first as well as the second. It supports its position by testimony that the claimed first request was followed by 5 minutes of silence by Wallace and that he "gave" them that time to return to work, but that they evidenced refusal by their conduct. The first request merits separate analysis. According to Wallace, the purported first request was made after his initial explanation and was couched in the following terms : What I would like for you men to do is to go back to work and see if you can't get satisfied like you were until this election is over and then we will try to determine and settle some of these things you now complain of. The discharged men made no reference to this statement in their testimony. They testified, in substance, to one definitive inquiry by Wallace, at the close of the meeting, whether they would return to work and that their discharge came almost immediately thereafter. However, that does not inevitable involve a conflict between their testimony and that of Wallace quoted above. Wallace's statement is consistent with the employees' assertion that they had no oppor- tunity to return to work in response to any instruction that they do so, provided that the statement was not followed, as Wallace claims, by a measurable waiting period. The purported request assumed significance only if it was followed by some indication that he expected the men to comply with it at that point, and obviously the only asserted circumstance relied upon by the Respondent to give the statement the stature of an instruction is the claimed waiting period. In its absence, it was reasonable for the men to construe Wallace's quoted re- marks as part of his general explanation, and not as a direction that they return to work. If the period did not occur, the emphasis in the statement is not in any suggestion that the men resume their work, but in the proposal that the question under consideration be deferred until a later date. The text of the language employed is not of the type normally used to convey a definitive direction or command. It is completely lacking in any disciplinary connotation 96 which would usually characterize language preceding an interval designed as a meaningful opportunity for employees to carry out an instruction to work. Considered as a sequence of events, the waiting period is not an event that evolves naturally and easily from the language immediately preceding it, and, in that light, the testimony concerning the claimed interval assumes a mechanical complexion. Insubordination implies defiance, and it is reasonable to assume that at least one or more of the employees would have regarded the waiting period, if it occurred, as a challenge to their intentions and would have signified a defiant attitude at least in some fashion. However, the Respondent's evidence is to the effect that none of the men made any response to Wallace during the first waiting period (nor, for that matter, during the second as well). Bearing in mind the varied ages and temperaments of the employees, it is difficult to believe g° That the words used had no disciplinary meaning is given added emphasis by Wallace's assertion in his cross-examination that the meeting . preceding his second request was "a friendly discussion of what was going on." GULLETT GIN COMPANY, INC. 19 that every one of the employees would permit the interval to pass without making a statement of some sort to Wallace " Moreover, in other connections, Wallace testified under cross-examination, that the meeting was "a friendly discussion," that the employees did not look angry, and that they were respectful in their attitude. Within the whole framework of the evidence, it is difficult to reconcile the picture of the men's conduct, as it emerges from the Respondent's testimony, with the claim that Wallace gave them a 5 minute period to return to work, during which they manifested an insubordinate refusal to do so. Finally, as has been observed above, the estimates of time by both Wallace and Dieterich, in situations where such estimates have significance, have an unreliable quality. For the reasons indicated, and based upon his observation of the demeanor of Wallace and Dieterich when they testified to the purported first request and the waiting interval succeeding it, the undersigned regards the portions of their testimony bearing on that period as unreliable and not to be credited. Con- sidered in that light, the Examiner finds that Wallace's statement quoted above has no particular significance as a request that the men return to work ; that the import of the language used was that Wallace wished the question of the wage increase to be deferred until after the election ; and that the men had a right within the general context of events to regard it as part of Wallace's explanation and of the concerted negotiations in which they believed they were then engaged. Much.of what has been said of the first claimed waiting interval applies with substantially equal force to the Respondent's evidence concerning the second period. While the language of the later request, whether in the various versions given by the employees or those of Wallace and Dieterich, is at least an un- mistakable inquiry as to the men's intentions and has disciplinary implications, here, too, there is vagueness, confusion, and contradiction in the Respondent's evidence of what the men did during the interval. Here, also, it is difficult to credit the fact that no response would be made to Wallace during an interval of the claimed duration if such a period actually occurred. In the setting of the second waiting period, even more decidedly than in that of the first, it is difficult to reconcile Wallace's testimony at other places in the record that they did not 84 The Respondent's evidence as to what the men did during this period is confused and contradictory. , In his narrative statement, Wallace somewhat vaguely (in the context of his testimony at that point) stated that the men "hesitated and didn't say anything " In another portion of his direct testimony, he asserted that "nobody said anything during that five-minute period " Apparently still referring to this period, he said a third time that "nobody said anything" after he "asked them if they would go back to work." However, under cross-examination and toward the close of his testimony, he stated that there was some discussion among the men during the interval. Also, during his cross-examination , he agreed that it was when he made his first request that Bennett and another unidentified person said, "That sounds like a fair proposition " and Leander dissuaded them with some remark Later in his cross-examination he intimated that this incident occurred after the second request, although he indicated toward the close of his testimony that the colloquy between Leander and the two other employees occurred after the first request Dieterich evidenced considerable vagueness as to what, if anything, the men said at any point during the meeting after Wallace's first request. Although standing only "six or eight feet" from the men, he repeatedly stated either that he could not hear what they were saying or that they were "mumbling." The only concrete infor- mation with respect to what the men said or did that he appeared either willing or able to give was that "it seemed as if they agreed not to go back to work if they didn't get what they were after;" apparently basing his assumption on his claim that the men did not respond by returning to work, that "one or two" men (unidentified) "might have" said they were willing to return, and that Leander dissuaded them with the remark, "You all are not going to back down , are you?" 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD look angry and were respectful, even at the point of discharge, with an interval of the type involved and its evident import for them o As pointed out above, the instant case is one in which time estimates are of substantial importance, and one in which the circumstances are such that a man in Wallace's position may be reasonably expected to give some reasonable esti- mate of a period by which he measured what he claims was an insubordinate refusal to work. To find ft t a second interval of any measurable duration occurred, one would have to reconcile Wallace's initial estimate of 5 minutes ; his concluding estimate of a period "long enough to say yes or no"; his next succeeding statement, "a minute-maybe two" ; his characterization of the men's attitude during the interval as one of "hesitation" which is more consistent with a period of short duration than one of 5 minutes, or even 1 or 2 minutes; Dieterich's estimate of 5 minutes; and, finally, Dieterich's failure to mention in his affidavit any time lapse following the purported second request,, although he specifically refers in it to a lapse of "a few minutes" after a first request. The difficulties of reconciliation are manifest. For that reason and the others stated above, the Examiner regards the testimony of Wallace and Dieterich concerning a second waiting period for the men to return to work as unreliable, and he does not credit such testimony. The undersigned credits the testimony of the employees that they did not refuse to return to work, and finds that they were not afforded a reasonable opportunity to do so and that they were not insubordinate. The conclusion that the employees were discharged for concerted activities protected by the statute does not turn alone upon a determination that they were not insubordinate. The Respondent intimates in its brief that if the men were not discharged for insubordination, then one must conclude, that they were discharged merely for asking for an increase, and that that is an unreason- able conclusion. Such a conception takes inadequate account of the whole con- text of events and of Wallace's state of mind. In assaying Wallace's motives, the sequence of events, either expressly de- veloped by the proof or reasonably inferable from it, should be borne in mind. When Elmer Hayden initially broached the subject of the increase to Wallace. the Respondent was already confronted with petitions, then pending with the Board, by two organizations claiming to represent a majority of the plant personnel. Then came the request of the tin shop employees voiced by Elmer Hayden as spokesman. Wallace gave Hayden what he undoubtedly assumed to be a reasonable and conclusive explanation of the basis for refusing to grant the increase. The request by the men in one department for a wage adjustment coming on top of pending petitions for recognition by two organizations, one of which would in all probability seek to bargain for all the men with the company after the election, presented a problem to Wallace. As he phrased it, "I was not in shape to bargain with all of them at the time. . . ." He unquestion- ably assumed that his reply to Elmer was the end of the matter. As he put it, "I thought that the boys were going to take that as a final answer and it was my final answer" (emphasis supplied). 38 Toward the close of his testimony Wallace voiced the conclusion that during his second explanation he had "found that they (the men ) were very determined . They had made up their minds because they so indicated that they wouldn't work." This is the type of attitude, progressing in emphasis according to Wallace, which would normally result, in some expressed viewpoint by at least one or more of the men during a waiting period plainly being used by an employer to put an end to the "determination" described by Wallace. GULLETT GIN COMPANY, INC. 21 Then, according to Wallace himself, several events occurred which demon- strate that he had formed a preconception of the employees' attitude. Shortly after his conversation with Elmer Hayden, according to his testimony under cross-examination, he "had a report from one of the boys in the shop" (un- identified in the record), who told him that the employees "look like they are fixing to go out there." Wallace asserts that "he did not pay any attention to it" at that point, because he "figured I hear a lot of things." Then, "during the next day I got it from another source (still unidentified) that said I had better do something about it, the boys are fixing to strike." Although characterizing the second report as "still unauthorized-it was shop gossip," Wallace's asserted attitude toward the first report admittedly underwent a change. He testified, "So when I went down there on Thursday (to the meeting) I figured the boys must be ready to pull off this thing they have been talking about." "Pull off what, Mr. Wallace?" he was asked, and he replied, "Pull off a strike. This was just grapevine gossip but that is why I said we got an inkling of what was going to take place." Then, in response to a question whether his "inkling was that perhaps the men . . . were going to strike," Wallace stated that he "was under that impression." 89 It is clear, and the undersigned so finds, that when Wallace began his meeting with the men in the shop he was at least under the "impression" that a strike was imminent unless he could dissuade them, and that his purpose in coming to the meeting was not so much to repeat the explanation he had given Elmer Hayden but to head off what he thought might be an imminent strike. This is manifest from his statement : "The attitude I had when I approached the men was that I wanted to soften the men and keep them together because at that particular time we needed men" (emphasis supplied). It is worthy of note that there is no evidence (aside from Wallace's reference to two sources of information which he did not identify) that prior to the meeting the tin shop employees had indicated by word or conduct that they planned to quit or strike. Each of them (of those called as witnesses) testified that they did not plan to do so.40 Dieterich, who was their foreman and worked in the shop with them, in response to a question by the undersigned, affirmed that between Elmer's initial talk with Wallace on Monday and the meeting on the following Thursday, he did not hear any of the employees say "that they would quit or go on strike if the increase was not granted." He also agreed that he had not reported any "unrest" in the shop to Wallace.41 The reports that Wallace asserts he received from sources he did not identify cannot be regarded as credible evidence that the men did, in fact, plan to strike (although the claimed reports and the "impression" he formed from them testify to his state of mind when he met with the men). Significantly, Dieterich heard of no such plans from the men and did not report any "unrest" to Wallace. On the basis of the 39 Although at a later point in his testimony Wallace stated, "Well, I didn't believe it (that a strike was imminent ), It Is evident that he was referring to his initial reaction, because he then proceeded to say, "Just like a rumor and then you see something like this so you begin to think there was something to it. So that was the attitude in my mind that maybe there was something to it." 90 Elmer Hayden testified : "In our discussions (among the men) it was mentioned that we would not go out whether we got a raise or not." Bennett testified to the same effect. 41 During his testimony, Dieterich referred to some "unrest" in the shop and that "it got out of my control," but it was brought out in his testimony that what he actually meant by "unrest" and what "got out of control" was the desire of the men to have Wallace meet with them and Leander Hayden's statement that if Dieterich would not fetch the super- intendent, they would send for him themselves. 844340-50-voI 83-3 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credible evidence, the undersigned finds that the employees did not plan to strike if their request for a wage increase was refused. Turning to the events of the meeting, it is evident that the employees, on the one hand, and Wallace, on the other, approached it with different attitudes and purposes. The men wanted to hear Wallace's explanation from his own lips and to discuss the requested increase with him. Wallace's purpose was "to soften the men and keep them together" or, in other words, to head off what he thought might be an imminent strike. He made an explanation to the men which they either could not understand or credit, whether because of its tech- nical nature or because they had received an increase the previous year while a petition by the United Steelworkers of America, CIO, for certification was pending and in advance of an election," or because of a combination of reasons. Notwithstanding Wallace's explanations, the employees continued to discuss their desire for a wage adjustment, comparing their wages and respective worth with the men employed in other departments. There is internal evidence in Wallace's own testimony that, as the meeting progressed, his apprehension that there might be a strike increased with it. His assumptions concerning the inflexibility of the men "about what they wanted" became increasingly fixed in his mind. "When I first went down there," he testified, "I thought the attitude of the men would be slightly ruffled and that they were not determined. After talking to them the first time, I found that they were a little more determined about what they wanted than I first thought. In my second talk, I found that they were very determined. They had made up their minds because they so indicated that they wouldn't work" (emphasis supplied) 43 - Wallace's reference to his discovery that the men were "determined" "about what they wanted" is revealing. It indicates a developing sense of frustration" of his original design of dissuading the men from pressing the wage question at that time and demonstrates an assumption by him that the employees were not responsive to his position. Bearing in mind that he had entered the meeting with an "impression" that a strike was imminent, the plain inference to be drawn is that his conclusion that the men were "very determined" 42 in pressing the 42 Branch testified that during the meeting one of the men raised the question of the increase the previous year "before the election " and according to Branch , Wallace said that "there wasn't a union pending then, to which a reply was made, "Yes, there was," which in turn drew the response from Wallace, "Well I don't think there was-or I-couldn't be sure about it" 43 It was at this point that Wallace, attributed a statement of that purport to Elmer or Leander Hayden under such circumstances, in such a confused manner, and at such a point in the proceeding, that the Trial Examiner does not credit it 44 There is also evidence in his testimony that toward the end of the meeting he lost patience with the men. He testified that when he made what he asserted was his second re- quest for them to resume work he had "got to the end of my row." 45 From his observation of the witnesses and his interpretation of the credible evidence adduced, the-Examiner finds that Wallace's claimed assumption concerning the men's persistence was considerably magnified beyond the actual facts which was that the em- ployees simply assumed that they were in a state of negotiation, and had come to the meeting for the purpose of seeking an, increase and, failing that, to secure an explanation of Wallace's reasons. The fact that Wallace and Dieterich testified that the meeting lasted 30 minutes is accorded no significance as a measure of the men's "determination " The Examiner finds that the meeting lasted closer to 15 minutes than 30, basing his conc.usions not merely on the testimony of the employees, but on finding that the claimed waiting periods did not occur, the extent of the subjects discussed as reflected in the testi- mony, and the conflict between Dieterich 's affidavit ( in which he gave an estimate of 20 minutes) and his testimony and that of Wallace. Moreover , the undersigned does not credit the claim that Leander dissuaded two men or "one or two" of them from returning to work. The Respondent appeared to emphasize it in its evidence, yet, Dieterich does GULLETT GIN COMPANY, INC. 23 question of the increase must have fortified his preexisting belief in the possibility of a walk-out. It is evident, and the Examiner so finds, that Wallace's interpre- tation of the attitude of the men fed his preconception concerning their intention to strike until it became a belief that a strike was imminent or, at the least, very probable 4° Whether Wallace's belief was founded in fact, or even reasonable, is of no moment. The important point is that he had such a belief, and the Examiner finds that he had it immediately prior to his inquiry concerning the men's intentions. The undersigned finds that, having reached that point,. Wallace decided to bring the wage discussions to a definitive conclusion by pointing out to the men the alternative before them and the consequences if they "quit" (strike). The Examiner finds that he did pause momentarily after he asked the men what they "were going to do," but that the pause was not of any measurable duration." It is also found that they did not have a sufficient opportunity to act upon Wal- lace's inquiry. They had set themselves upon a course of negotiations and had no reason to believe that Wallace had formed a conception that they were going to strike. Having reached the point of Wallace's inquiry, their position and plans were uncrystallized and inchoate. It is clear that their collective mind had not yet begun to function in reaction to what plainly spelled the end of their hopes for a wage adjustment, at least for some indefinite period to come. Wallace, who impressed the Examiner as a man of considerable determination and who by that time had lost patience,' construed their uncrystallized attitude as intransigence and their failure to respond promptly as part of the plan to not mention it in his affidavit . Moreover, Dieterich was quite vague and evasive about the incident and the surroundin g circumstances relating to the conlersation and conduct of the men. Wallace's account of the remarks attributed to Leander differs from that of Dieterich, who gave two different versions of Leander 's purported statement, but the Examiner attaches no significance to the variances , as he does not expect witnesses to remember the exact text of such a statement . However, the nature of Dieterich 's testi- mony, coupled with some elements of vagueness in Wallace 's recollection of the incident, the fact that Wallace attempted to attribute another significant remark to Elmer or Leander which the undersigned does not credit , and his observation of the other witnesses, who expressly deny that any of them made a statement of such purport ( except Elmer who said "No, I don't remember," in response to a question about the matter ) leads the Exam- iner to the conclusion that the testimony of Wallace and Dieterich concerning Leander's purported statement is unreliable and not to be credited 96 In his narrative version of his remarks toward the close of the meeting, he quotes himself as saying, "Boys , I would like for you to stay on, but there is one of two things you can do You can quit . . . The other one is you can take this job and go on with it and wait until the outcome of the election . Now what are you going to do?" The use of the word "quit" and its context are significant. It is plainly used as a synonym for "strike " Yet, there is no evidence that a strike had been discussed at any time during the meeting. As already found , there is no credible evidence that the employees had given Wallace any indication that that was their intention Wallace refers to the preceding part of the meet- ing as "a friendly discussion " Clearly, what was operating in Wallace 's mind was the "impression" with which he had begun the meeting and its development with what Wallace believed to be the employees ' persistence , until it became a final conclusion that the men intended to strike unless their request for an increase was granted. 44 Toward the end of his testimony , Wallace characterized the pause as follows : "They hesitated a little while " This, despite his previous testimony and that of Dieterich that he gave them 5 minutes after his inquiry to make up their minds. 48 His impatience is demonstrated by his testimony that he had "got to the end of (his) row" after he "told the men to return to work" (which, incidentally , is not what he told them according to his narrative account of the meeting ). Wallace also testified that he was "upset" when he discharged the men, although he disclaimed being "upset " previously. It is quite unlikely that Wallace "got to the end of (his) row" or became "upset " suddenly. More probably , bearing in mind the mental state in which he entered the meeting and its development as it progressed , he was in a state of impatience well before he made his in- quiry of the men. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike which he had already imputed to them. To determine exactly how much time elapsed after Wallace's inquiry and his statement that he was "going to make up (their) minds" for the employees would involve an essay into the metaphysical. It is sufficient to say that from the whole context of events it was insufficient for the men to respond with that promptness which apparently Wallace at the moment required, and, acting on his belief that a strike was immi- nent, he discharged the men before the strike could in fact occur. The Examiner thus concludes that the real motive u for the discharge was Wallace's conclusion that the men were intransigent in their request for a wage increase and that they were about to strike if they did not receive it 60 Whether Wallace's belief was founded in fact is without significance. If he believed that the men were persistent in their demands and that they would strike if they met with no success, and if he discharged them for that reason, the discharge contravenes the statute." There is some intimation in the Respondent's brief that the discharged em- ployees are not entitled to the protection of Section 8 (a) (3) of the Amended Act because they were not a "labor organization" within the meaning of that section 62 This view overlooks the plain definitional language of Section 2 (5) which provides: The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which em- ployees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. The action of the tin shop group in combining to present a concerted request for a wage increase "constituted them a `labor organization' within the meaning of the Act" (Matter of Ever Ready Label Corp., 54 N. L. R. B. 551) n Nor is it of 49 Wallace referred , perhaps unguardedly to the claimed refusal of the men to work as "my main reason" for the discharge. His statement connotes the existence of other reasons. What the "main " reasons were are indicated above. 80 One revealing incident casting some light on Wallace's real motives may be found in the uncontradicted testimony of Pechon that one employee, Jesse Cutrer, was not even in the room (he had gone to the lavatory during the meeting) at the time Wallace asked the men if they were going to "quit " He did not return until after the discharge. If Wallace's real motive for the discharge was the men's asserted refusal to return to work, it is legitimate to inquire why Wallace made no distinction between Cutrer, who had no opportunity to respond to his inquiry, and the other men. On the other hand, if his motives were as outlined above, the reason for the failure to draw such a distinction becomes clear. The discharge of Cutrer is not wholly consistent with Wallace 's claim of insubordination but entirely consistent with the view that the men were discharged for protected concerted activities and Wallace 's belief that the men would press their request for an increase to the point of going on strike. 51 Matter of Red Arrow Freight Lines , Inc., 77 N L. R. B. 859 ; Matter of Phoenix Mutual Life Insurance Co., 73 N. L. R. B. 1463. 11 While the Respondent's brief does not expressly make the point, it implies that rein- statement with back pay can be directed only it a discharge of the type involved here violates Section 8 (a) (3) of the Amended Act. This is not so The Board can exercise its remedial power under Section 10 ( c), in order to effectuate the purposes of the statute, if such a discharge offends Section 8 (a) (1). Matter of Rockingham Poultry Marketing Cooperative, Inc., 59 N. L. R. B 486; Matter of Ever Ready Label Corporation, 54 N. L R. B 551: Matter of Sandy Hill Iron and Brass Works, 55 N. L. R. B 1 ; Matter of Texas Textile Mills, 58 N. L R. B. 352. 63 See, also Senate Rept . 573, 74 Cong., 1st Seas., p. 7; Lone Star Gas Co, 52 N. L. R B. 1058; Sandy Hill Iron and Brass Works, 55 N. L. R. B . 1, enforced 145 F. (2d) 631 (C. A. 2) ; Worthington Creamery and Produce Co., 52 N. L R. B. 121, Tovrea Packing Co., 12 N. L. R. B 1063, enforced as modified on other grounds, 111 F. (2d) 626 (C A. 9), cert. den. 311 U. S. 668. GULLETT GIN COMPANY, INC. 25 any consequence, under the facts of this case, that they were a minority group in the plant or members of other labor organizations or that they did not seek to bargain through such organizations." It is unnecessary to examine the, inhi- bitions imposed upon minority groups who are bound by agreement or who are members of a certified bargaining representative actually engaged in bargaining negotiations (cf. N. L. R. B. v. Draper Corp., 145 F. (2d) 199 (C. A. 4) ), for it is well established that, at least under the circumstances here involved, minority groups are entitled to the rights guaranteed by Section 7 and to the protection, in the exercise of those guarantees, afforded by Sections 8 (a) (1) and (8) (a) (3) whether or not they assert those rights through organizations to which they belong." Even if it is assumed that the tin-shop group was misguided and uninformed in presenting its wage request when it did, and that Wallace's explanation was a wholly reasonable one, such an assumption does not detract in the least from the group's right to present their request, to engage in lawful concerted conduct to further it, and to be protected from discrimination for so doing.5° The General Counsel presents the alternative argument that if it is found that the employees refused to return to work such refusal constituted a strike, and as such, a protected activity under the statute. The'Respondent urges that there was no strike, but that if it is found that the men refused to return to work and that such refusal constituted a strike, then such a strike "was for an unlawful purpose," advancing the view, among others, that the employees' conduct "tech- nically" constituted a "sit-down" strike and an "unlawful refusal to leave the premises," 67 and that a strike in the face of the 1947 certification of the United Steelworkers and the pending petitions for certification was a "repudiation (by the employees) of the orderly processes of the Board" and, therefore, unlawful. The short answer to the alternative positions advanced by both the General Counsel and the-Respondent is that no strike or refusal to work occurred68 It 54 The Respondent devotes much of its brief to the citation of authority that the grant- ing of a request for an increase while a petition for certification is pending is a violation of the statute and that an employer is under no obligation to bargain collectively with a minority group of the type involved here, nor while a petition for certification is pending. Without entering into a discussion of the circumstances under which such an increase may offend the statute, or of an employer's obligation to bargain, it should be noted that the company's right to decline to bargain concerning the increase is not an issue in this case, nor is the Respondent charged with a failure to bargain. 65 N. L R. B v Schwartz, 146 F (2d) 773 (C A 5) ; N L. R. B. v. Brashear Freight Lanes, 119 F. (2d) 379 (C. A 8) ; N L. R B v. Draper Corp, 145 F. (2d) 199 (C. A. 4) ; Firth Carnet Co. v. N. L. R. B, 129 F (2d) 633 (C. A 2) ; Matter of Lone Star Gas Co, 52 N. L. R. B. 1058; Matter of Worthington Creamery and Produce Co, 52 N. L. R. B. 121. 6e In view of the finding that the employees were exercising rights guaranteed to them by Section 7, the Examiner does not deem it necessary to consider the rights conferred upon employees by the proviso of Section 9 (a). 61 The claim that the employees refused "to leave the premises" is wholly without founda- tion in the evidence. Wallace himself characterized the discussions as "friendly" and the men's attitude as "respectful." He expressly stated that he "never did order them to leave the property," and the fact is that they left the plant promptly and peacefully after the discharge took place. 59 The Respondent does not argue that the cessation of work to hold the meeting in and of itself constituted either a strike or an unlawful work stoppage. The fact is that the men stopped their work to attend a meeting which they reasonably anticipated would take place because Dieterich had gone at their request to call the superintendent to speak to them. He appeared almost immediately and did not rebuke them for suspending their work to meet with him, but, on the contrary, engaged in what he termed a "friendly" dis- cussion with them. Wallace participated in the meeting, and it is clear that he acquiesced in its being held, in fact, using it for his own purpose "to soften men and keep them together " 26 DECISIONS.'OF` NATIONAL LABOR RELATIONS BOARD is-thus unnecessary to speculate as to the effect of the United Steelworkers ' certi- fication in 1947 69 or of the petitions pending in May 1948 on the men's right to 'strike. Nor is it necessary to consider either the legality of Wallace 's request that the men return to work as an alternative to discharge or of the right of the -men to refuse to work while remaining in the plant , in the absence of a request by Wallace that they leave . To do so, would entail a legal discussion which is neither necessary nor germane to the findings made above. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section II, above, occurring in connection with its operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor'disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, and more particularly, that it has violated Section 8 (a) (1) and 8 (a) (3) of the Amended Act, the Examiner will recommend that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of -the Act. Having found that the Respondent discriminatorily discharged Ellis W. Pechon, Van Buren Bennett, Corydon L. Pechon, J. W. Bankston, Jesse J. Hayden, Leander Hayden, Elmer Hayden, Carl E. Warren, Irving Branch and Jesse Cutrer, whether .such discharges constitute a violation of Section 8 (a) (1) or Section 8 (a) (3) of the Amended Act, the undersigned will recommend that the Respondent offer ,the named employees immediate and full reinstatement to their former or sub- stantially equivalent positions 60 without prejudice to their seniority and other rights and privileges and to make them whole for any loss of pay they may have suffered, by reason of the Respondent's discrimination against them, by pay- ment to each of them of a sum of money equal to the respective amounts which they would normally have earned as wages from May 13, 1948, to the date of the offer of reinstatement, less their respective net earnings during such period 81 Having found that the Respondent discharged the named employees because they exercised the rights guaranteed to them by Section 7 of the Amended Act, the Examiner will recommend that the Respondent be directed, in any like or 69 It is interesting, even if not necessary, to note that in its letter of April 6, 1948, to the United Steelworkers, the Respondent in effect questioned the claim of that Union that it represented the employees covered by the 1947 certification and refused to negotiate a new contract with it unless it presented proof that it represented "the majority of em- ployees." As already noted, the Steelworkers' contract had expired before the tin shop group presented its request to Wallace and met with him, they were all members of other organizations, and the Steelworkers had not up to that point (nor at any time later) par- ticipated in the pending representation proceedings. Neither the Steelworkers nor the other two organizations were engaged in collective bargaining negotiations with the Re- spondent at the time the concerted activities in question occurred. 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 equivalent position." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L R. B. 827. m Matter of Crossett Lumber Co., 8 N. L. R. B. 440 , 497-498. GULLETT* GIN COMPANY, INC. 27 •similar manner,62 to cease and desist from interfering with, restraining, or coerc- ing its employees in the exercise of the right of self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, to the extent provided b§ law. Upon the basis of the foregoing findings of fact and of the entire record in this proceeding, the undersigned makes the following: CONCLUSIONS OF LAW 1. Ellis W. Pechon, Van Buren Bennett, Corydon L. Pechon, J. W. Bankston, Leander Hayden, Elmer Hayden, Jesse J. Hayden, Carl E. Warren, Irving Branch, and Jesse Cutrer, in the exercise of their concerted activities, constituted a labor organization within the meaning of the Amended Act. 2. By, discriminating in regard to the tenure of employment of Ellis W. Pechon, Van Buren Bennett, Corydon L. Pechon, J. W. Bankston, Leander Hayden, Elmer Hayden,_ Jesse J. Hayden, Carl E. Warren, Irving Branch, and Jesse Cutrer, the Respondent discouraged membership in a labor organization, as defined in the Amended Act, in violation of Section 8 (a) (3) of the said Act, and has inter- fered with, restrained, and coerced the said employees in the exercise of rights guaranteed to them by said Section 7, in violation of Section 8 (a) (1) of the said Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 •(6) and (7) of the Amended Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and of the entire record of this proceeding, the undersigned recommends that Gullett Gin Company, Inc., of Amite, Louisiana, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) tDiscouraging membership in any labor organization of its employees, by discharging or refusing to reinstate or in any other manner discriminating against them in regard to their tenure of employment or any term or condition of employment ; (b) In any like or similar manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Amended Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer to Ellis W. Pechon, Van Buren Bennett, Corydon L. Pechon, J. W. Bankston, Leander Hayden, Elmer Hayden, Jesse J. Hayden, Carl E. Warren, R There was no proof that the Respondent had'engaged in any other acts of interference, restraint, or coercion than these outlined above, and the Respondent has since negotiated a collective bargaining agreement with a union certified by the Board as a result of 'the -election held on May 28, 1948. Hence the Examiner recommends that the direction to cease and desist from interference, restraint, or coercion contain the limitation, " in any like or similar manner" indicated above. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Irving Branch, and Jesse Cutrer immediate and full reinstatement to their former or substantially equivalent positions and to make them whole in the manner set forth in Section IV above, entitled "The remedy" ; (b) Post at its plant in Amite, Louisiana, copies of'the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, after being duly signed by representatives of the Respondent shall be posted by Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other material ; and (c) Notify the Regional Director for the Fifteenth Region (New Orleans, Louisiana), in writing within ten (10) days from the receipt of this Intermediate Report and Recommended Order what steps Respondent has taken to comply herewith. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended, August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 14th day of January 1949. HERMAN MARX, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : GULLETT GIN COMPANY, INC. 29 WE WILL NOT discourage membership in any labor organization of our employees, by discharging or refusing to reinstate or in any other manner discriminating against them in regard to their tenure of employment or any term or condition of employment. WE WILL NOT in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid and protection as guaran- teed in Section 7 of the National Labor Relations Act. 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. Ellis W. Pechon Elmer Hayden Van Buren Bennett Jesse J. Hayden Corydon L. Pechon Carl E. Warren J. W. Bankston Irving Branch Leander Hayden Jesse Cutrer GULLETT GIN COMPANY, INC., 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.