John H. Maclin Peanut Co., Inc.

1 1. In the Matter of JOHN H. MACLIN `PEANUT CO., INCORPORATED and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, C. I. O. Case No. 10-CA-X52.=Decided June 20,'1919 DECISION ORDER On'December 30, 1948, Trial,Examiner George A., Downing is- sued his Intermediate Report' in the above-entitled proceeding, find- ing that the Respondent -had engaged in and' was engaging in cer- tain, unfair labor practices, in, violation of 'Section 8' (a) (1) of the Act, and recommending that it cease and desist therefrom and take certain affirmative'actiAn,' as set forth. in the, copy of the Interme- diate' Report- attached hereto. He'also found that the Respondent had ,not engaged ,in certain other unfair labor practices alleged in the complaint, as amended .at the' hearing, to be in violation of -Section 8 (a), (3) .and 8 ; (a) (4) of the 'Act, and recommended dis- missal-'of those allegations., ' Thereafter, the, General Counsel filed 'exceptions to so much' of the Intermediate Report as dismissed the .allegations relating to Section 8 (a) (3) and 8 (a) (4), and sub- mitted a supporting brief.' Tlie Respondent filed ' no exceptions or brief. '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.' Th:e Board has considered the, Interme- diate Report, the exceptions and ;brief, and the 'entire record in the 1 The respondent, on May 4, 1949, moved'to 'dismiss the exceptions and brief filed by the General Counsel on the ground that' copies thereof had not.been timely served upon it. Inasmuch' as it-appeared that the General Counsel's delay in effecting service upon the Respondent was due.solely to inadvertence and that the Respondent had not been preju- diced thereby, the Respondent's motion to dismiss was heretofore denied. Under the circumstances,-the Respondent was granted 10 days-within-which-to file a reply brief if it so desired. No reply brief'has been submitted. 2 Pursuant to the provisions of Section 3 (b) -of_ the Act, as amended, the Board, has delegated its powers in connection with this case to a three-member panel [Chairman Her• zog, and Members Houston and' Murdock`] 3 At the conclusion of''tlie Respondent's case, -the trial Examiner granted, the General Counsel's motion to amend the charge and complaint herein to allege a violation of Section 8 (a) (4), and of 8 (a) (1) derivatively. The Respondent was thereupon afforded addi- 84 N. L. R. B., No. 48. 384 JOHN H. b4ACLIN-PEANUT CO., INCOR'PORATED' - 385' case, and' hereby adopts those findings, conclusions, and recommenda- tions of the Trial Examiner that are' consistent with our Decision and Order herein. - '1: The amended complaint alleges certain independent violations of Section 8 (a) (1) of the Act. The Trial Examiner found such vio- lations in the following conduct of President Henry A. Maclin : (1) his interrogation of employee Kelson concerning the latter's union activities; (2) his solicitation of Kelson's assistance in ascertaining the extent of union organization and, in discouraging union activities of other employees; and (3) his threat to close the Respondent's plant if the union organizational efforts succeeded. No exception has been taken to these findings.' - We shall adopt the Trial Examiner's findings in these respects.4 2. The complaint, a's' amended, also alleges that the Respondent discriminatorily discharged- Riley' Kelson on April 30, 1948, in viola- tion of Section'8'(a) (3) of the Act, and that the Respondent there- after, on May 22, 1948,' violated Section 8- (a) (4) of the Act by re- fusing to reinstate or reemploy Kelson because he filed charges and gave testimony under the Act. The Trial Examiner dismissed these allegations. We join the Trial' Examiner in' his conclusion with respect to' the alleged violation of Section 8 (a) (3). While the matter is not-en- tirely free from doubt, we agree that the evidence -fails to' preponderate in favor of a finding that the separation 5 of Riley Kelson' on April 30, 1948, was disciiminutorify motivated. Accordingly, we shall dismiss the complaint insofar' as it alleges that such separation constituted a violation of Section 8 ('a) (3) of the Act. However, we disagree with tlie Trial Examiner's finding that the Respondent's failure'to reinstate 'or reemploy Kelson on May 22, 1948, was not violative of Section 8 '(a) (4) and 8 (a) (1) of the Act. Kelsoil, -at the'time of his separation on, April 30,'1948,8'had been employed by the Respondent for over 20 years. In addition to his tional time to meet these allegations and, in fact , submitted additional 'evidence thereon. Inasmuch as the matter was fully litigated and the Respondent has made no' showing of prejudice , we find that the Trial Examiner's ruling was proper. Cf. Matter of The Hide Brothers Company, 67 'N L. R B. 1249,'enfd. 161 F. (2d) 179 (C. A. 5), and Matter of Wire Rope Corporation ' of America, Inc., 62 N L. R• B 380. ' * While we also adopt the conclusion of the Trial Examiner, to which no exception was filed, that the Respondent 's conduct in requiring attendance of employees at a speech by Maclin on November 12, 1947, was not violative of the Act , we do not subscribe to the language of the Trial Examiner that such , conduct was not unlawful "since the meeting was held during working hours and the employees compensated for the 'time." 5 We do not adopt the Trial Examiner 's determination that Kelson's separation on April 30 constituted a discharge Rather, as will be discussed at length Infra, we find that this separation was In the nature of a temporary lay-off. e At one point In' the Intermediate Report, the Trial Examiner inadvertently , finds that Machn testified that Kelson was separated on April 28, 1948. I r r - - 386 DECISIONS OF NATIONAL LABOR" RELATIONS BOARD extended service, Kelson had, in 1940; lost his right arm in, the Re- spondent's employ. Principally as a result of these circumstances, Kelson was regarded by Maclin with considerable sympathy and, in general, occupied the position of a favored employee in the Respond- ent's.plant. When on. April •28, 1948, Maclin and Knight, the plant superin- tendent, determined that action should be taken with respect to Kelson, which action we have not found to be violative of 'the Act, Maclin himself prepared the brief notice of "dismissal." The notice read : "Riley : We will not need you after today." However, Maclin testi- fied that he purposely worded this notice in vague terms with the ex- pectation that Kelson would return during "the next day or two, or even that afternoon . . . to ask me the reason why he was fired." Maclin then hoped to call in Knight and, after discussing the matter openly with Knight and Kelson, to " reinstate him." As Maclin ad- mitted, it was his thought when the notice was placed in Kelson's pay envelope "to have him back on the job within a few days." It is thus apparent, ,and we find, that Kelson's separation on April 30, 1948, was not intended by the Respondent to be a permanent, discharge. Rather do we conclude that it was in the nature of a temporary lay-off which was intended to extend only until overtures were made by Kelson. Subsequently, on May 13, 1948, the original charges herein were filed, alleging, inter alia, that Kelson had been discharged because of his union activities. Shortly thereafter, on May 22, Kelson appeared at the Respondent's office and made the very overtures for his job which Maclin, before the filing of the charges, had intended to result in his immediate reinstatement or ,reemployment.. Maclin peremptorily re- jected, these, overtures, thus evincing a complete change o0 -attitude to- ward Kelson. The explanation therefor is clearly revealed in Marlin's contemporaneous;'remark to Kelson: ". ;.: you filed charges against me and it's now in the hands of, our attorney and we, intend to fight it." It is further disclosed in the following testimony of -Maclin at''the hearing: ,Q.,,,But'it'was your thought' when you put that notice in his pay envelope that you would have him back on the.job in a few days? A. Yes. Q. And then' after that, time you decided- not to? A. Oh, no, now, wait a minute. Charges were filed against me in the meainw.ohile. • [Emphasis supplied.] Under-all the circumstances, we are convinced'"and find that the filing of charges with the Board was the operative factor"in the Respond- r. JOHN. H. MACLIN PEANUT CO., INCORPORATED 387 ent's conversion of the temporary lay-off status of Kelson into one of outright discharge. But for such charges, the overtures by Kelson would have resulted in the resumption of work by him, or at least in consideration by the Respondent of whether he should be rein- stated. Section 8 (a) (4) of the Act expressly proscribes discrimination in any manner against an employee because he has filed charges or given testimony under the Act. The Respondent's conduct in refusing to reinstate or reemploy Kelson, or even to consider him for reinstate- ment, and; in effect, changing his status to that of a discharged em- ployee falls clearly within the interdiction of that section. The Board had occasion to pass upon a closely' analogous situation arising under the original Act in Matter of The Kramer Company, 29 N. L. R. B. 921. It was held in that case that an employer's failure to reinstate or reemploy a laid-off employee because of the filing of charges was violative of Section 8 (4),7 and added that the statute's prohibition against discrimination is effective regardless of whether the employer believed that the charges were false or whether the ultimate proof sustained their validity." Thus, although we have invalidated the charges relating to Kelson's separation on April 30, 1948, this does not relieve the Respondent of its responsibility for the subsequent change of his employment status on May 22, 1948. It is sufficient, under the Act, that the filing of the charges precipitated such change in status and prevented considera- tion of the reinstatement or reemployment of Kelson by the Respond- ent. Accordingly, we find, contrary to the determination of the Trial Examiner, that the Respondent on May 22, 1948, discriminated against Riley Kelsoii because of the charges filed on his behalf and thereby violated Section 8 (a) (4) of the Act.' We also find that the Re- spondent, by this conduct, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act.'° 7 The provisions of Section 8 (4) of the original Act are continued in Section 8 (a) (4) of the Act, as amended 8 See also flatter of Marlin-Rockwell Corporation, 39 N. L R' B. 501, 513, enfd. as mod. 133 F (2d) 258 (C A 2) ' 9 As already noted, the gravamen of the instant case is the Respondent' s change of Nelson's status from "temporarily laid off" to "discharged," because of the filing of charges The situation herein is therefore clearly distinguishable from that in Matter of American Linen Seri, ice,Company, 45 N L. R B. 902, and Matter of The Mead Corpo- ration, 52 N. L. R B 1361, which are relied upon by the Trial Examiner. In the Amer- scan Linen cage, we upheld an employer's refusal to enter into a ,settlement of charges. And in the Mead decision , we dismissed an allegation of 8 (4 ) on the ground that the employee concerned had neither requested , nor was he refused, reemployment after charges were filed . .. 10 Matter of Atlanta , Broadcasting Company, 79 N. L R B. 626. . , „ 388 DECISIONS -OF NATIONAL IjABOR ' RELATIONS BOARD THE' REXIEDY , • ' , • • ... In addition to the Trial .Examiner's finding that the Respondent has violated Section 8 •,(a) (1) of the Act, which we have adopted, we have found that the Respondent has also violated 'Section 8 (a) (4). of the Act by the discriminatory discharge of Riley Kelson on May 22, 1948. , We shall, therefore, order the Respondent to offer Kelson immediate and-full reinstatement to his former or a substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for, any loss'of 'pay he may have suffered by reason of the Respondent 's discrimination, by payment to him of a sum of money equal to the amount which he, ,would nor-, mally have earned as wages during the period;from May 22, , 1948, the date of the discrimination against him , to December 30, 1948, the date, of the Intermediate Report, herein, and during the period from the date of this Decision and Order to the date of the Respondent 's offer of reiristatement,•less his net earnings during,said periods."' The violations of the Act which the ,Respondent committed are, in our opinion, persuasively related to other unfair labor practices pro- scribed by the Act, and the danger of their commission in the future is to be anticipated from the Respondent 's conduct in the past. The preventive purposes of the Act will be thwarted unless our order is coextensive with the threat . In order, therefore, to make more effec- tive the interdependent guarantees of Section 7, to prevent a recur- rence of unfair labor, practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the poli- cies of the Act, we shall order the Respondent to cease and desist from infringing in any manner upon the rights , guaranteed in Section 7 of • the Act. 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, John H. Maclin Peanut Co., Incorporated, Albany, Georgia, and its officers, agents; successors, and assigns, shall: 1. Cease and desist from': (a) Discharging, refusing to ,reinstate or reemploy, or otherwise discriminating against any employee because he has ,filed charges or given testimony,ulider the Act, or in any other manner interfering 11 This abatement of back pay for the, period between the issuance of the Intermediate Report and our Decision and Order follows our usual practice where , as here, the Trial Examiner did not recommend-the reinstatement of this employee or the award of back pay to him. JOHN H. MACLIN PEANUT CO., INCORPORATED 389 with the right of employees to file and prosecute charges and to give testimony under the act; (b) Interrogating its employees concerning union membership or activities; seeking employee assistance in ascertaining the union mem- bership or activities of other employees; soliciting employee assistance in discouraging union membership or activities of other employees; and, threatening to close its plant if union organizational efforts succeeded; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations , to join or assist United Stone and Allied Products Workers of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in'Section 8 (a) (3) of the, Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer Riley Kelson immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Make whole Riley Kelson for any loss of pay suffered by reason of the Respondent's discrimination against him, in the manner set forth in the section of the Decision entitled "The Remedy." (c) Post at its plant in Albany, Georgia, copies of the notice at- tached hereto marked "Appendix A." 12 Copies of such notice, to be furnisheSl by, the Regional Director for the Tenth Region, shall, after being duly 'signed by the Respondent's representatives, be posted by the Respondent immediately-upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in coiispicuous,places, in- cluding all places whore, notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director,for the Tenth Region, in writing, within ten. (10) days from the date of this Order, what steps the Respondent 'leis taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Resj bnd"ent'violate'd Sectio'n'8 ('a')' (3) of the Act, be, and it hereby is, dismissed. 32 In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice before the words, "A DECISION AND ORDER,". the words, "A DECREE OF THE UNITED STATES - COURT -OF APPEALS -ENFORCING." 390 DECISIONS. OF NATIONAL LABOR, RELATIONS BOARD APPENDIX A. . NOTICE TO ALL EMPLOYEES Pursuant to a=Decision and Order of the National Labor Relations Board, and in order to effecutate the -policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT' discharge, refuse to reinstate or reemploy, or otherwise discriminate against any of our employees because he has filed charges or given testimony under the'Act; or in any other manner "interfere with the right of our employees to file and prosecute charges and to give 'testimony under the National Labor Relations Act ' ' • WE WILL NOT'' interrogate our employees concerning union mem- bership or activities ; seek employee assistance in ascertaining the union membership or activitiesI of other eiliployees solicit em- ployee assistance in discouraging union membership or' activities of other employees ; or threaten to close our plant if union organi- zational efforts succeed. WE WILL NOT in any other nlaiiner interfere with, restrain, or coerce our employees in the exercise of their right to self -organi- zation, to form labor organizations, 'to join ' or assist UNITED STONE AND ALLIED PRODUCTS WORI{ERS OF AMERICA,, C. I. 0., or any other labor organization, to bargain' collectively through representatives of their own choosing , and to engage in concerted activities for the plirpose ,of collective bal-gaiiiing or other mutual aid or protection or to 'refrain from' any and all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor. organization as a condition of employment as authorized by Section 8 (a) (3)' of the Act: WE WILL OFFER to the employee named below immediate and full reinstatement to his former or substantially equivalent position without prejudice ' to any seniority or other rights and privilege's previously enjoyed, and make liini'whole 'for any loss of pay suf- fered as a' `result of the discrimination. ' Riley Kelson All our - employees are free' to become or remain member's of the above-named union or any other labor organization. eTOHN,H. MACLIN PEANUT CO.,,INCORPORATED, Employer. By ----------------------------------------------- ' (Representative ) ( Title) ,Dated U: JOHN H. MACLIN PEANUT CO., INCORPORATED 391 This notice must remain posted for 60,consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. William M. Pate, and Mr. John C. Carey, Jr., for the General Counsel., Mr. Legare Davis, Miss Mildred McClelland, and Mr. Frank A. Constangy, of Atlanta, Ga., for the Respondent. Mr Marvin R. Blalock, of Dalton, Ga., for the Union. STATEMENT OF THE CASE Upon an amended charge' filed on August 18, 1948, by United Stone and Allied Products Workers of America, C. I. 0., herein called the Union, the General Counsel of the National Labor Relations Board' by the Regional Director for the Tenth Region (Atlanta, Georgia) issued a complaint dated August 20, 1948, against John H Maclin Peanut Co, Incorporated; of Albany, Georgia, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) 6f the Labor Management Relations Act,'1947, 61 Stat.'136, herein called the Act. Copies of the complaint, the amended charge, and the notice of hearing were'duly served on the Respondent and the Union on August 20, 1948. 1 ' With respect tb the unfair labor practices the complaint' alleged in substance : (1) that from about November 12, 1947, and since, the Respondent by its officers, agents, and employees, more particularly by Henry W. Maclin, president, and Essie Stevens, forewoman,' and in violation of Section 8 (a) (1) had interfered with, restrained, and coerced' its employees in the exercise of the rights guar- anteed in Section 7 of the Act: (a) by interrogating its employees concerning their union affiliations; (b) by threatening and warning its employees to refrain from assisting, becoming members of, or remaining members of, the Union ; and (e) by threatening to shut down its plant and replace its employees with machines before dealing with a union; and (2) that in violation of Section 8 (a) (1) and (3,) of the Act, the Respondent discharged Riley Kelson on or about April 30, 1948, and thereafter failed and refused to reinstate him because of his membership in and activities on behalf of the Union, thereby discriminating in regard to his hire and tenure of employment in order to discourage membership in the Union. On or about September, 1, 1948, the Respondent filed its answer in which it admitted certain allegations of the complaint,but denied the commission of any unfair labor practices.' Pursuant to notice, hearing was held on October 19, 20, 21, and 22, 1948, at Albany, Georgia, before the undersigned, George A. Downing, the Trial Examiner duly designated by the Acting Chief Trial Examiner. The General Counsel and the Respondent were represented by Counsel and the Union by a ,representative. Full opportunity to be heard, to examine, and cross-examine witnesses and to introduce evidence pertinent to the issues was offered all parties. 1 The General Counsel and his representatives are herein referred to as the General Counsel, and the National Labor Relations Board as the Board. 2 On the General Counsel's motion at the conclusion of the hearing the complaint was amended , without objection , to.strike the name of Essie Stevens. . 'Defendant's original answer contained a general denial that- It had discharged Riley Kelson because of 'his , union - membership or activities and continued with an affirmative averment that it had discharged Kelson for cause within the meaning of Section 10 (c) of the Act. By amendment prior -to the hearing the affirmative matter was eliminated, leaving only the general denial. 392 DECISIONS OF NATIONAL ' LABOR RELATIONS 'BOARD Various motions were made by the parties as the hearing progressed. Respond- ent's motion to'dismiss the complaint on the ground that the amended charge on which it was based did not comply in certain respects with Section 203.12 (f) of the Board's Rules and Regulations nor with Section 9 (f), (g), and (h) of the Act was denied' Respondent's motion for a more definite statement of certain allegations in the complaint was denied. Ruling was reserved on Respondent's motions to strike and to dismiss 'various portions of the complaint, and such motions are disposed of by the findings, conclusions, and recommendations herein made At the conclusion of Respondent's case' the General Counsel filed a second amended charge and moved an amendment to the complaint based thereon to allege a violation,of Section 8 (a) (4). The amendment was permitted over Respondent's objection ',on the General Counsel's, representation that it was based on evidence already in the record and that no new or additional evidence would be offered in support thereof.' Respondent then moved to dismiss the amend- ment on the ground that the evidence did. not support the allegations. A ruling was reserved.' The motion is disposed of by the findings, conclusions, and recom- mendations herein. At the conclusion of the case the General Counsel's motion to conform the pleadings to the proof in matters not of substance was granted over Respondent's objection. The parties, waived oral argument before the Trial Examiner, who did, however, request briefs from both parties. A brief has been received from the Respondent. Upon the entire record in the case and from his observation of the witnesses the undersigned makes the following: FINDING OF FACT L•THE BUSINESS OF•THE RESPONDENT John' H. Machn Peanut Co., Incorporated, is a Virginia'corporation with its principal office and place of business at'Albany, Georgia. • It owns and operates in that city a peanut shelling plant and is engaged in the business of buying, shelling, grading, and selling peanuts. 'During the-'calendar' year 1947, which was representative of the period involved in this p'ro'ceeding, Respondent purchased raw materials consisting of 'unshelled peanuts valued in excess of $500,000, a substantial portion of which was purchased outside the State of Georgia. Dur- ing the same period the Respondent processed and sold finished products con- s'is'ting principally of shelled peanuts valuedtin excess of $500,000 approximately 90 percent of which were 'sold and shipped' to customers outside' the State of Georgia. ' The Respondent does not'dspute that it is engaged in commerce within the meaning of the Act and the undersigned finds that it so 'engaged'.' J •• ' l , . ,. e , , • _ II., THE LABOR ORGANIZATION-INVOLVED,,-, United Stone and Allied' Products Workers `of America; affiliated with the Congress of Ilidustrial'Organizafions;-is-a labor organization admitting to mem- bership employees of Respondent. • a Cf Matter of Baldwin Loeoneotiue Works, 76 N. L R. B. 922, 3 ; Matter-of Leon-Oil Company, 76 N. L. R.'B 565; 566., ^ • I f . ' 1 , ' ' On Respondent's motion, however, the amendment was reduced to writing, and filed as an exhibit. - • 6 Respondent renews in its brief its objection to the allowance 'of the amendment The disposition herein{ of the alleged violation of Section 8 (a) (4), renders the point moot. y'= 7, Respondent also 'moved for a,continuance until' after ,January 1, 1949,; to enable it to plead and to, prepare Its defenses to the amendment. The motion ,was denied, the answer was deemed amended to deny the new matter; and, a recess, was 'granted to -enable the Respondent to produce evidence, if it wished, to meet the new charge. - Well, within the recess period Respondent produced a witness who testified in rebuttal of the new charge. JOHN H. IIACLIN PEANUT CO., INCORPORATED III. THE U NFAIR LABOR PRACTICES 393 A Intioduction and backgrovnld; the alleged agreement for lifetime employment The evidence adduced by the General Counsel in support of the charges of unfair labor practices revolves almost entirely around Riley Kelson, and the history of his employment by Respondent and of the relations between Kelson and Respondent's president, Henry W. Maclin, provides illuminating back- ground to the issues in the case. Kelson was employed by the Respondent from September 1927, until April 30, 194S. when he was discharged. For a number of years he was employed in load- ing and unloading peanuts and in a variety of miscellaneous duties. Begin- ning about 1937, he began running some of the shelling machines. In the month of April 1940, he lost his right arm in an accident at Respondent's plant, the arm being severed between the wrist and the elbow. The accident and the injury led to the first of a number of sharp conflicts in the evidence;.for though it is established that Kelson received an award and a settlement from the Georgia Industrial Board under the Georgia Workmen's Compensation Act,' he con- tended that Respondent's president, Henry W. Maclin, had the morning after the accident made an agreement with him to give him a lifetime job provided Kelson did not "sue for a settlement." The issue was litigated at considerable length but the undersigned does not consider it to be necessary to summarize in detail the mass of evidence relating to it because of the finding hereby made that no such agreement or contract was in fact made and the further finding that neither the contract, assuming aiguendo its existence,9 or its claimed breach has been connected by credible evidence with the issues surrounding the alleged unfair labor practices 10 These findings are made after a careful analysis of the testi- mony of Kelson, of his sister, Pearlie Mae Wingfield, who corroborated him, and of Maclin, who denied making the agreement; and they are based on Mae- fin's testimony as to the incident, which the undersigned credits" The testi- mony of Kelson is not credited save as it corroborates Maclin's visit to the hospital the night of the injury and the fact of a conversation at that time. The testimony of Pearlie Mae Wingfield is also not credited ; she recalled little clearly 9 The law provides a presumption that employer and employees have accepted its pro- visions unless "prior to any accident" prescribed notices are given Georgia Code 1933, Section 114-201 No evidence was offered that such notices were given. Furthermore, Kelson s acceptance of the award, the amount of which apparently accords with the stat- utory schedule [see Respondent's Exhibit 4; see ibid., Section 114-406 (m) ; and see U. S F and G Company v. Edmondson, 50 Ga App. 157], establishes that Kelson had in fact accepted the provisions of the statute. Respondent had affirmatively accepted the statute by maintaining the required insurance (ibid., Section 114-601, 2). The rights, remedies, and liabilities were, therefore, fixed by the Workmen's Compensation Law,and were exclusive of all other right8 and remedies ( ibid, Section 114-103). ° In view of the provisions of the Georgia Workmen's Compensation Act, set out In footnote 8, supra, it is doubtful that a valid or enforceable contract would have resulted in any event because of probable lack of consideration, besides which the alleged agreement «as probably within the statute of frauds. 1° Kelson at various points in his testimony made references to subsequent conversa- tions with Maclin in which the agreement was allegedly adverted to. Thus, he testified that it was adverted to during his conference with Maclin in October 1947, summarized iifia, pages Nos. 394-395 That portion of his testimony relating to the occasion is not -credited nor are his other refefences concerning it 11 It is found that as testified by Maclin the, crucial conversation occurred on the night of the injury and shortly after Kelson had been removed from the operating room at the hospital and placed in, the men's ward. Kelson admitted the fact of Maclin's visit at that time and the fact of a conversation, but, because of his condition and • because he had not recovered fully from the anaesthetic he obviously was then unable to understand or to evaluate the tenor oftthe conversation. In fact, he admitted, "I didn't know what he said that night. I didn't stay awake that long" 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD except the crucial words that Maclin allegedly promised Kelson "a lifetime job for as long as he ,lived," and her testimony as a whole is confused and,implausible. It is clear , however, that after his injury Kelson looked to Respondent for a living and that'he' felt that Respondent was somehow obligated to give him one. Though it is unnecessary under the finding ' made herein to seek the cause for that belief, it may have resulted from a conversation with Maclin at the inception of the slack 'season the year following his injury .' Kelson testified that he had then reproached Maclin for cutting him off when the slack season began stating' according to his testimony . "I look for my living here. I lose my arm here doing what you said and I look for my living here." Maclin replied accord- ing to Kelson that he needn't worry about that "I'll take care of that, I'll give you regular work."" ' The record establishes that Maclin thenceforth did give Kelson regular work. ' In'view of 'the finding above made the injury is'also a significance for the fol- lowing reason : It is ' clear from Maclin's testimony as'a' whole and from the rela- tions which existed' between him and Kelson that despite Maclin's awareness of freedom from legal obligation he nevertheless felt a sense of moral obligation to Nelson or at least a strong sense of pity or sympathy because of Kelson's injury which -bad been sustained in*Respondent's employ . This feeling led to a some- what 'paternalistic attitude toward Kelson , who became a favored employee and a trusted one and who fiequently sought and received advice and assistance on purely ' personal "Matteis. These considerations lead immediately to the incidents alleged'to ' constitute interference , 'restraint, and'coercion which subject is next "treated. ' ' ' ' ' ' ' ' . ' ' B. Interference , restraint , and coercion 1. The events a. The Maclin-Knight conference-October 1947 Union activities among Respondent's employees began, so far as is indicated by the evidence, in late September or early October 1947. Kelson testified that he joined the United Packinghouse `Yorkers' of America "'on October 15, 1947, and just after signing up he passed out about 25 cards at the plant where he was work- ing and got them signed. Although Respondent's knowledge of these activities is not directly established, it is significant that it became aware of the organizational activities contemporaneouslS with Kelson's participation in the membership drive.' Thus, Maclin,"president, testified that he first' heard about the Union around the middle of October when Essie Stevens, the forewoman in the picking room, reported to him'that a union was being formed in the plant and brought to him a blank membership card. Though professing not to be particularly con- cerned about the report, Maclin admitted that he "pi•obably''took some steps to find out something about it." Maclin's testimony as to the steps he took is con- flicting and contradictory in a number of details as set forth under Concluding Findings, tinfra, p. No. 9, et seq., but admittedly he called Riley Kelson to his 12 The slack 'season at Respondent's plant usually began about the,last of April or the middle ' of May and ran into September! Only a few 'employees were retained during such season''and Kelson had been one of them prior to his injury . However, at the beginning of the slack season next following his injury Kelson was not at first selected to remain His' testimony to that effect tends,' of-course, to support the finding that there had been no agreement for lifetime employment. ` " 23 The remaining portions of Kelson's testimony relating to the' occasion are not credited. 14 Respondent's employees ' first' joined the United Packinghouse Workers ' of America, CIO',''but oii 'br'about' March 22; 1948 , their membership was apparently transferred to United Stone and Allied Products Workers bf America, CIO ,' tlie charging party herein. 'JOHN''IT. - MACLIIV' PEANUT CO.',' INCORPORATED 395 office a day or two later 15 to seek verification of 'Stevens' .report' Only the two of them were present: Kelson{ testified that the following conversation occurred : He told me. "Come in, Riley, have a seat, and explain to me' about the Union." He said, "I learnt-that you were a committeeman, that you were'going and'sign- ing up hands in my plant " And"I explamed'to him, I said, "No, Sir, I'm not no committeeman." And lie' said, "You done started a union:" Actually Kelson was not a committeeman at the time, although he was elected to that post some time later. In' any event the conversation continued, according to Kelson : ' : - - And he said, "I'm not going to have no union in my plant. I'm not going to have it." He said, "Before I have a union in here, I'll shut this plant down as tight as a wedge," he said, "and I ain't gotta open it up, cause I got enough money to do me the rest of my life and I don't gotta operate this plant for a livings 18 Kelson''also• testified that Mackin told him to find out how many of the women had joined the Union and how many would and to discourage them against the Union. He replied, according to his testimony, "Well, this is none of my place how many join and how many are gonna I ain't want to know. I figured if he wants to know, why, that was his place to find out. Maclin's testimony can be summarized as follows : He asked Kelson if there was any union being formed in the plant but "quali- fied" the' inquiry by stating that Kelson didn't have to answer, that he could answer or not as he'wished Kelson replied lie knew of nothing, he knew of no union Maclin'also exhibited to Kelson the membership card which Stevens had turned in 'and inquired whether Kelson knew anything about- it. :When Belson disclaimed any knowledge of it, Maclin tore up the card and put it in the waste basket. Maclin denied that he asked Kelson whether or not he was a member of the Union and that he asked Kelson if any individual' was a mem- ber of the Union. He also "thinks"' he, told Kelson he had a right to participate in the Union as he wished or refrain 'from'it as he wished. b. The notice to employees and the 'alleged speech of November'12, 1947 On.November 12, 1947, Maclin assembled the employees in the picking room on the second floor of the plant and there read to them a notice which is set out in extenso in Appendix A hereto. The meeting was called at 10 minutes to 5 and lasted only approximately 10 minutes.' 'Copies -of, the notice were distributed to 'a Maclin's testimony as to the time of the incident is not too definite, nor Is. Ielson's. 'Stevens was not questioned about the incident . Maclin first fixed, the middle of October as the time of receiving the report from Stevens and stated that he sought verification from Kelson within a day or two . Later he fixed the time of his conference with Kelson as within 2 or 3 weeks prior to November 12, which would place it during ; the third or fourth week of October., The latter estimate corresponds in a, general way with, Kelson's first statement that the conference occurred , about the last of October or, first of November (though Kelson's later testimony fixed it on the day of , the speech-November 12-and still later he testified that he didn 't remember whether it was on,the.sameiday as the speech or not). Accepting Kelson's definite testimony that he joined the Union on October 15, 1947, and Maclin's testimony that he first heard about the Union about the middle of October and that he called Kelson in 2 or 3 weeks prior to November 12, the under- signed finds. that the , conference occurred during the week beginning October 20, 1947. 10 Kelson ialso testified that Mackin stated : "Now you remember' the agreement we 'had in the hospital. I promise [ d] you a lifetime job, I promise [ d] to'take care of you ;as long as you lived and I meant it but now , if you join this union that would break our agreement, we're no more friends and I won ' t be obliged to work you any mote ."' Tbat!testimony is not credited. See supra, p No. 393 and footnote 10. ' 396 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD the employees prior to the reading." Witnesses both for the General Counsel and for the Respondent agree in the main that Maclin did read the notice, but there is a direct conflict between them, as to whether, either before or after the reading, he made certain coercive statements attributed to him by the General Counsel's witnesses. The General Counsel offered on his case-in-chief the testi- mony of three witnesses who testified to the incident, namely Riley Kelson, Gertrude Williams, and Sally Mae Garrett, Kelson's sister. Kelson, though able to read a few simple words from the notice such as it, has, been, and to, was ap- proximately illiterate, and his sister, Sally Mae Garrett, could not read at all. Yet these two witnesses endeavored to testify as to whether Maclin had read "what was on the paper.i 18 Both also testified, as did Gertrude Williams, that Maclin, in addition to reading the notice, made a series of statements which may be summarized as follows : That he wasn't going to have a union in the plant, and that if it should come in, he would install electric pickers and thereby dis- pense with women pickers. Gertrude Williams testified, as did Sally Mae Gar- rett, that Maclin's speech was before reading the notice; however, ,Williams, on cross-examination, was unable to remember whether the speech was made on the same day the notice was read or on a different day. In addition to the foregoing, the General Counsel offered the testimony of Charlie Kelson (Riley Kelson's brother), who had been called by the Respond- ent on other matters but who was made the General Counsel's witness on the instant question. Charlie Kelson recalled only that Maclin had read, among other things, that "the law is for you if you want to join [the union]" and that "there was -a law for anybody that wanted to join." He testified that Maclin "read off the paper" and didn't say anything before or after. He testified that he did not, on that occasion, hear Maclin say anything to the effect that he would not have a union in his plant, nor did Maclin say anything about electric pickers. Charlie Kelson's testimony supports the Respondent's version of the incident. Thus Maclin and Knight, his superintendent, both testified is, that, aside from calling the gathering to order and announcing he had something to read , Maclin made no prefatory remarks whatever., They also testified that he adhered to the letter of the notice, and when he finished reading it, he simply asked if there were any questions . There were none, it was 5 o'clock, the regular quitting time, and everyone went home. . c. The conversation on May 22, 1948 Belson also testified that on the occasion of, his application for reinstatement on May 22, 1948, Maclin had stated among other things': 20 "I'm not going to have no "Though there is some testimony that the distribution occurred after the reading, the clear weight of the evidence is that it occurred before, and the undersigned so finds. After the reading was completed , copies were also posted-at various places in the plant. is Their explanations as to how they were able to do this are unconvincing . Sally Mae Garrett's testimony is wholly unworthy of belief. After establishing her illiteracy, she endeavored to explain her appearance at the hearing as a• witness by querying "Didn't I saw it in the paper?" '10 A general corroboration of their itestimony is also afforded, by the testimony of Re- spondent's forelady, Essie Stevens. However, Stevens had not been supplied with a copy of the notice gat the time of the reading , and the Trial Examiner is unable to credit her testimony that standing behind Maclin , she was . yet able to , follow his reading word by word, over his shoulder . In spite of Maclin's attempt to corroborate the forewoman on the point, it would have been impossible for Stevens , who was shorter than Maclin, to follow the notice as , Maclin read it, holding it in the position he demonstrated at the hearing. Stevens' testimony has cumulative weight, however, on the point that Marlin made no speech either before or after reading the notice and that he did not make the alleged coercive statements attributed to him by the General Counsel 's witnesses 20 The events and the conversation on that occasion relate almost entirely to the alleged discriminatory failure to reinstate and are more fully summarized , infra, p No. 405, et seq. JOHN H. MACLIN PEANUT CO., INCORPORATED 397 union here." His testimony is rebutted by, Maclin and by the bookkeeper, Julius Grady Gerald, who testified that Maclin's statements on the occasion were limited to informing Kelson that he would not talk with him ; that Maclin had placed in the hands of his attorney the charges which Kelson had filed and that he intended to fight them. 2. Concluding findings as to interference, restraint, and coercion The above incidents will be treated in inverse order. As to the conversation of May 22, it is found that the evidence fails to support the General Counsel's position that Maclin made the coercive statements attributed to him. Kelson's testimony is outweighed by that of Maclin and Gerald. The undersigned credits the testimony of the latter and finds that the alleged coercive statements were not made." It is also found that the evidence fails to establish that on the occasion when Maclin read the notice to employees on November 12, 1947, he made additional statements of a coercive nature. The testimony of the two witnesses called by the General Counsel to corroborate Riley Kelson was uncertain and im- plausible," and the testimony of the third, Charlie Kelson, actually supported Respondent's witnesses that Maclin did not make the statements attributed to him. The undersigned credits the testimony of Respondent's witnesses and finds that the alleged coercive statements were not made. The notice itself requires only brief consideration. Its text is devoted chiefly to combating alleged reports that employees had been threatened with loss of their jobs unless they joined the Union. It contained in addition statements recognizing employees' rights to join or not to join the Union and it contained no threat of reprisal or force or promise of benefit. As the Board recently pointed out (Matter of Carpenters and Joiners, 80 N. L. R. B. 533) Section 8 (c) established in statutory form decisional law already in existence eliminating as an unfair labor practice statements of opinion or arguments in any form by an employer to his employees provided they contained no threats or promises. Cf. Virginia Electric and Power Company v. N. L. R. B., 314 U. S. 469; N. L. R. B. v. American Tube Bending Company, 134 F. (2d) 993. The notice falls safely within the boundaries marked out in recent Board decisions. Cf. Matter of Mylan-Sparta Company, Inc., 78 N. L. R. B. 1144; Matter of Cookeville Shirt Company, 79 N. L. R. B. 667; Tygart Sportswear Company, 77 N. L. R. B. 613; Matter of Wrought Iron Range Company, 77 N. L. R. B. 487. Nor was Re- spondent's conduct in requiring attendance violative of the Act since the meet- ing was held during working hours and the employees compensated for the time. Matter of Babcock and Wilcox Company, 77 N. L. R. B. 577; Matter of Fontaine Converting Works, Inc., 77 N. L. R. B. 1386; Matter of Merry Brothers Brick and Tile Company, 75 N. L. R. B. 136. This leaves for consideration the conversation between Maclin and Knight, which is found to have occurred during the week of October 20, 1947.' The 21 A more detailed treatment of the incident will be found infra under Section C, 2, (b). 22 The production by the General Counsel and reliance on uncertain , conflicting, and implausible testimony of the type offered to corroborate Kelson is somewhat puzzling when it is borne in mind that the meeting was attended by approximately 50 persons. The inference seems warranted that other witnesses if called would have testified ad- versely to the General Counsel's position. Cf. Interstate Circuit, Inc. v. United States, 306 U. S 208, 225-226: "The failure under the circumstances to call as witnesses those . . . who were in a position to know .'. . is itself persuasive that their testimony if given would have been unfavorable to appellants. The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse." 21 The unfair labor practices are charged in the complaint to have been committed "from about November 12; 1947 " The General, Counsel' s motion at the conclusion of the hear- 853396-50-vol. 84-29 398 DECISIONS ' OF NATIONAL LABOR ' RELATIONS,' BOARD undersigned is unable to credit Maclin's testimony as, to the content of his con- versation with Kelson. His 'testimony is inconsistent and in, conflict - on a, number of details. • His actions are not in keeping with his explanations and his 'explanations' are unconvincing. On direct examination, for example, he first volunteered in explanation of "The steps" which he took to find out about the Union that "I probably asked Essie,,[Stevens] again," but later went on to infer that his next step consisted of conferences with oiitsidei•s that is. with proprietors of two other local peanut shelling plants and with the secretary of the Southeastern Peanut, Association,*followirig which a telephone call was placed in his behalf to the attorney for the Association for information and advice. It was thereafter, he testified, that he called in Kelson, On cross'examination he testified that he never talked unth'Stevens again about the subject and he testified unequivocally that the only step he took to verify Stevens' report was to call in Belson and talk with him. His conference with the other manufacturers and with the secretary of the Association is not tigainmentioned; and the undersigned finds from the evidence as a whole that those conferences followed rather than preceded his conference with Kelson.24 Furthermore Maclin's ex-' planation of, the effect he accorded both to Stevens' report and to Kelson's is' entirely unconvincing., Although affecting unconcern about the Stevens report and the blank membership card she handed hini, he nevertheless sought vet ifica' tion,of her report by calling in his "ti•ustetl" employee; Riley Kelson, who had been, in his employ, for. 20 years ; and though subsequently testifying that Kel- son did not confirm Stevens' report and that he accepted Kelson's relioi as accurate, he admitted that after the talk with Kelson he 'still didn't know whether a union was being formed or not. Still later,' on questioning 'by the Trial Examiner, he claimed to have accepted Kelson's report and to have assumed therefrom that Stevens was in error ; that he sought no further verifica- tion of ,Stevens' report from his superintendent or from any other person within his plant ; and that he did not attempt 'a reconciliation of the conflicting reports. His later actions, of course, are entirely inconsistent with his ° claimed reli ance on Kelson's report. First if he ' had, accepted Kelson's report, there was'nd occasion for seeking information and advice from outside sources extending so far as the making of a telephone call on his behalf to the attorney of the Asso- ciation.. Obviously Maclin distrusted the information the received from Kel'son and did not accept,'or, rely on ' Kelson s dental of know'edge'of union activities fled to 2' Posi- ing to conform the pleadings'to the proof in, matters not of substance was'granted ' Such amendment would seem properly,'to bring-Abe incident found to have occurred during the week of October 20, 1947, within the issues -Furthermore the statements come swell within the scope of the complaint in point of substance and the Respondent ,took advantage of the opportunity to litigate the issue fully, which under the circunistances is 'regarded'.-6 renuiring decision by'the Trial-Examiner' and' as'affording a basis fora finding and' for remedying arviolation of, the Act. Matter of -Reeves-Ely Laboratories, Inc, 76, NL R B. 728, 733, 734 Cf. Matter of Biggs Antique Company, Inc, 80 N L. R B. 345. 24 Certainly, there was noroccasion to, seek outside. information and advice on labor rela- tions in advance of obtaining a verification of Stevens', report that a ,union was being formed, since Maclin stated he did not accept the report but proposed. to, verify it. And, though he,iultimately testified that he accepted Kelson's report,, his, subsequent actions establish that he did-not do so and that it was his,distrust or disbelief, of,Kelson's,report that led to'his,seeking assistance and advice from outside sources. i •i i 25 Reference has, previously, been made to the fact that immediately. after becoming, a member , of the Union on October 15, 1947; .Kelson participated actively, in passing out membership cards. in the plant and in, obtaining signatures thereon., The undersigned concludes that knowledge or'suspicion of such activities reached. Essie Stevens and was by her communicated to Maclin, since according to Kelson's testimony, which is credited, Maclin stated that he had learned ' that Kelson,was signing up hands in his plant' and accused Kelson of starting the Union. In view of the earlier report from Stevens, Maclin JOHN H. MACLIN PEANUT CO., INCORPORATED 399 Live evidence of his disbelief is supplied by the fact that he prepared and read to his employees on November 12, at the meeting called for that purpose a notice which reflected his complete awareness of union activities and which contained a lengthy statement of his attitude and his policy toward the organizational activities. Obviously he could not have based that notice on what he claimed to have learned from Kelson.' The history of the relations between the two men as previously recited also supports the above findings First, it will be recalled, union activities had just started. Maclin had just learned of them Up until then at least Maclin had considered Kelson to be a reliable and a trusted employee, one whom he favored and one for whom lie had done favors. Their personal relations were close, Maclin's attitude bordering on the paternalistic. He obviously assumed Kelson's loyalty to him and assumed he could talk safely with Kelson about the Union. At that time also, he previously found, Mackin had not sought outside information nor advice. He was apparently unfamiliar with the subject of employee rights under the Taft-Hartley Act and unaware of employer obligations thereunder. In this setting and against this background it seemed only natural to call in the employee whom he trusted and to endeavor through him to ascertain the extent of union activities and to endeavor to counteract them. On the entire evidence, therefore, the undersigned finds that the conversations on the occasion in question were substantially as testified to by Kelson 26 and that Maclui's following acts and statements constituted interference, restraint, and, coercion within the meaning of Section 8 (a) (1),' namely: his accusation that Kelson had started a union, his inquiry whether Kelson was signing up members for the Union in the plant and whether he was a committeeman, his statement that he wasn't going to have a union in the plant, that he would shut the plant down before he would have a union in the plant, his solicitation of Kelson's assistance in ascertaining the extent of union membership and in discouraging union membership and activity. Matter of Huntington (Adel) Precision Products Corp., 65 N. L. R. B. 1439; Matter of South Texas Produce Co, 66 N. L. R. B. 1442; Matter of Douglas Salk Products Co., 63 N L. It. B. 1280; Matter of American Book-Stratford Press, Inc., SO N. L. R. B. 914; N. L. R. B. v. Hoppes Mfg. Co, 170 F (2d) 962 (C. A 6), decided Nov. 29, 1948. Similar attempts to procure employee assistance at espionage have been held violative of the Act though un- successful. See Matter of Dixie Shirt Company, 79 N. L. R. B. 105, where the attempt was made to enlist the aid of an assistant forelady who, like Kelson, refused to assist. did not believe Kelson's denial of knowledge of and participation in union activities, par- ticularly when Belson refused his request to furnish him information about the Union and refused to discourage union membership I ' ' 26 However, Kelson's testimony that Mackin on that occasion again referred to the alleged agreement for lifetime employment is not credited See footnote 16, and see p. No 395, supra. s7 Maclin's more limited admissions are sufficient in themselves to establish a' violation of Section 8 (a) (1). Thus his admitted interrogation of Kelson as to Kelsori's knowledge of the existence of the Union and as to what he knew about the membership card consti- tuted unlawful interference with the free exercise of the right to self-organization, Matter of Reeves-Ely Laboratories, Inc, 76 N L' R B 728, 729; Matter of Biggs Antique Company, Inc, 80 N L R° B 345; Matter of Sewell Manufacturing Companif, 72 N 'L R B. 85, 87, and cases cited in footnote 5 , Sewell Hats, Inc'v N L R B , 143 F (2) 450 (C A 5), despite ),,s statement that Kelson was fiee to answer or not as lie chose, 'Matter of L ocomotive Finished Material 'Company, 56 N''L. R B 840, 845' Such'questioning was not privileged under Section 8• (c) of the Act, assuming arguendo its applicability, Matter of Ames Spot Welder Company; Inc; 75 N L R B 352, 355, footnote 6, since it was not an expression of "any views, argument, or opinion, or the dissemination thereof" within the meaning of said section Ibid. ' '• 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The alleged discrimination 1. The events a. The alleged discriminatory discharge of Riley Kelson Riley Kelson was discharged by Respondent on April 30, 1948, by the expedient of placing in his pay envelope a typewritten dismissal slip reading simply : Riley : We will not need you after to-day. John H. Maclin Peanut Co., Henry W. Maclin. He received no warning and no notice of his impending discharge, the notice assigned no reason for the discharge nor was Kelson later informed of the alleged cause." At the hearing, however, the Respondent introduced evidence to establish that from about the middle of December 1947, down to April 28, 1948, Kelson was involved in a series of incidents which led cumulatively to Maclin's decision that Kelson would have to go.°° That evidence is here summarized. (1) The machine break-downs These incidents were testified to by Maclin, Superintendent Knight, and Charlie Kelson for the Respondent and by Riley Kelson for the General Counsel. The following summary is based on the testimony of Maclin and Knight, who were corroborated on many details by Charlie Kelson. Their testimony is credited. Riley Kelson's testimony as to the break-downs was particularly evasive. About the middle of December 1947, one of the shellers on the fourth floor ° broke down because in some inexplicable manner two pieces of metal had gotten into the machine and broken the grates. The machine was torn down and the foreign metal found and extracted by Charlie Kelson in Riley Kelson's presence and in Knight's presence. There was some comment or rather "wonderment" at the time as to how the metal could have escaped the various safety devices earlier in the productive chain and have reached the shellers Two or three days later, a similar break-down occurred among the same set of shellers on the fourth floor. Again the machine was torn down and that time a still heavier and larger piece of metal was extracted, again by Charlie Kelson and in the presence of Riley Kelson and Knight. Although the two pieces of metal which caused the first break-down might at least, theoretically, have reached the Sheller through the normal productive processes, the evidence establishes beyond ques- tion that the third piece could not have reached the machine unless it was deliber- ately placed in it or in the elevator which led to it. In any event, Maclin and Knight suspected sabotage; and since the Kelson brothers had more opportunity 2° Respondent's evidence does establish, as will be adverted to later, that Kelson had received a warning in connection with the machine break-downs around December 1(i-18, 1947, and that in January and in March 1948, he received warnings to stay out of the picking room. ' 2D Kelson did not seek an explanation of his discharge until May 22, 1948 , after the Union had filed charges in his behalf ; and he was then informed that Maclin had placed in the hands of his attorney for handling the charges filed against the Respondent and that he was therefore unable to discuss the matter. '° Actually the decision was reached by joint agreement of Maclin and Knight, the plant superintendent , the latter of whom apparently did not share entirely Mkclin 's feelings toward Kelson nor his reluctance to let Kelson go. Thus, though Belson was at one point characterized by Respondent 's counsel as a "pet," he was not so considered by Knight who testified , "Not for my part, he wasn't what you'd call a pet." It also appeared from Maclin's testimony that before he would have reinstated Kelson, he would have sought Knight's agreement, since otherwise "it would have been a question of reinstating Riley and losing the superintendent." ai Charlie Kelson was ordinarily the only employee on the fourth floor, though in the event of break-downs, Riley was customarily called on to assist there and elsewhere in the plant. JOHN H. MACLIN PEANUT CO., INCORPORATED 401 to commit the act, they suspected that one of them was guilty. Subsequently, Maclin decided from a conversation with the two brothers that Riley was proba- bly the guilty one, basing his opinion on the responses made by the two men and on Riley's facial expressions,12 During the same conversation he warned them that he would hold them both responsible for the continued operation of the machines and that if a similar break-down happened again, he would have to let them both go. No other similar break-downs had occurred up to the time of the discharge. (2) Kelson's activities in the picking room Kelson's main job after the loss of his arm in 1940 was to operate the Sutton machine on the third floor." Testimony in large volume appears in the record on the subject of Kelson's duties in general, his repeated absences from his post of duty on the third floor, his extended visits to the picking room on the second floor, and his interference there with the operations of the women pickers who work under the supervision of Forewoman Essie Stevens. For the Respondent, Maclin, Knight, and Stevens testified at considerable length on this aspect of the case, and Charlie Kelson to a slight extent. Riley Kelson testified for the General Counsel. The Respondent's testimony clearly preponderates over that of Kelson and to the extent that there are conflicts, the undersigned accepts testimony of Respondent's witnesses and has resolved the conflicts in favor of the Respondent. Some review of Kelson's duties and of the operations of the plant is necessary. Shortly after Kelson's return to the job after the loss of his arm in 1940, Maclin remodeled or rigged up the Sutton machine on the third floor so that Kelson could operate it efficiently and thereupon assigned the operation of the machine to Kelson.94 Kelson remained on that job until his discharge. Although the Sutton machine was Kelson's regular and chief assignment, his duties also included periodic but short visits to the picking room on the second floor for the purpose of unstopping clogged elevators and fixing broken belts, and he was also called upon to assist in the repair of machine break-downs whenever they occurred throughout the plant 36 Whenever his absence from his regular post was to exceed a few minutes, the Sutton machine was to be shut down because it required con- stant attention and if left unattended for any extensive period, it would result in an excessive number of nubs and other foreign matter being transmitted to the picking tables, resulting in turn, in the inability of the women pickers to remove the required proportion of nubs and other foreign matter. The Respond- ent's evidence also establishes, contrary to Kelson's testimony, that it was not a part of his duty to regulate the flow of peanuts onto the picking tables, that the 31 It is immaterial, of course, whether either of the Kelsons were actually guilty of sabotage and whether, if so, Respondent rightfully suspected that Riley Kelson was the guilty party. What is material is whether Maclin believed or suspected that he ii as and whether that reason was one of the factors considered in later reaching the decision to discharge him. Matter of Atlanta Broadcasting Company, 79 N. L. R. B 626. Although Kelson testified that for a period of approximately a year and a half be performed, under Maclin's supervision and instructions , some sort of "grading" operation in the picking room on the second floor, he is corroborated by none of the witnesses for the General Counsel, and his testimony is denied by Maclin and by Stevens, whose testimony is credited. 84 The function of the Sutton machine is to separate the shelled peanuts from those which have escaped shelling in the shelling machines . The shelled peanuts fall into spouts and are carried into the picking bin on the second floor, from whence they are carried by moving belts , operated by rollers , over and across the picking tables and before the women pickers seated there who remove the remaining nubs ( unshelled peanuts) and any other foreign materials which have escaped the Sutton machine. 15 There were also times at the end of the day , after working hours, when Kelson would assist Stevens , on her request, in weighing the shelled peanuts. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD oiling of the rollers under the belts on the picking tables was Charlie Kelson's job, not Riley's, and that Riley had no duties concerning the rollers during the regular season3° Respondent's evidence also establishes that over a considerable period 'of time down to April 30, 1948, Belson frequently left his post of duty at the Sutton machine and went down to the picking tables on the second floor where, either with or without pretending to have duties, he spent varying periods of time estimated to be as long as an hour or more, among the women pickers. Besides neglecting his own duties, Kelson's presence distracted the pickers and sometimes resulted in actual disturbances. Furthermore, -Stevens' supervision over the pickers was sometimes directly challenged and interfered with. Though it is clear that Kelson's actions had gone on over a long period of time and though Stevens had made earlier complaints about Kelson;' it was not until January 1948, that her complaints resulted in definite action. Sometime during that month Stevens reported to Maclin that the situation was getting so serious that she was losing control of the pickers and that something had to be done about it38 Maclin promised he would take some steps ; he called in Knight, informed him that the matter had become pretty serious, and instructed him "to take some action immediately." Knight testified that Maclin specifically instructed him to tell Kelson he must stay on the job and stay out of the picking room, and he added that he did so. The warning was ineffective. During the month of March 1948, Stevens complained direct to Knight that Kelson was spending foo much time • in the picking room. Knight, in turn, reported the complaint to Maclin and then informed Maclin "that he had already notified Kelson again to stay out of the picking room and let the women alone." Maclin told him to handle it and to clear it up. There is no evidence of similar acts or complaints down to April 30. (3) The noon-hour incident and the decision to discharge Two or three days prior to Kelson's discharge on'April 30, an occasion arose when it was necessary to direct the operation of the plant machinery during the noon hour. This was because the bin which supplied the picking tables had become empty and it was the intention and desire to fill the bin while the women pickers'were at lunch, so that'they would have something to do when the noon hour was ended. Knight instructed both Charlie Kelson and Riley Kelson to remain on the job and operate the machinery during the noon hour 39 Charlie Kelson remained on the job as instructed but Riley did not.40 Maclin testified 56 If rollers should have become flat or otherwise defective, they would have been removed or repaired during the slack season and Kelson might then well have worked on them a' Stevens was an aged employee and at the hearing she stated she had a cold and felt sick . Her testimony is rather' confused as to dates and periods of time and is of no assistance in fixing the time of her earlier complaints about Kelson On the whole, how- ever, it is clear from her testimony that Kelson's activities in the picking room had gone on over a rather extended period of time and that she had made complaints about him prior to January 1948. Maclin testified that the reports first came to him approximately a year before the discharge and that he then simply told Stevens that she had charge of the picking room and that she should keep Kelson out. 3' There is no evidence that Kelson's presence in the picking room was connected with union activities . Stevens on cross-examination denied a suggestion to that effect, and Kelson's testimony indicates that his active participation in such activities in the plant had occurred around the middle of October 1947 59 Both of the Kelsons testified that frequent occasions had arisen in the past when they had been called on to work during the noon hour. Machu's and Knight' s testimony indi- cated that such occasions were infrequent . However, the point is immaterial. 40 Maclin , Knight, and Charlie Kelson testified for the Respondent on this incident, and Riley Kelson for the General Counsel Riley Kelson professed not to recall the particular incident but denied that on an occasion 2 or 3 days before his discharge or on any other occasion he had disobeyed the instructions of Knight or Maclin to work during the noon hour: The undersigned finds that the incident occurred , that the orders were given, and that Riley Kelson disobeyed them. , JOHN` H. MACLIN PEANUT, CO., INCORPOIIATED 403 that as customary when the plant operated during the noon hour, he had taken over the supervision of the plant while Knight, the superintendent, had gone to lunch. He went to the third floor a few minutes after 12 and found that all of the machinery was running except the Sutton machine and that Riley Kelson was missing. He inquired of Charlie Kelson, who was on the job, where Riley was and Charlie replied that he didn't know. Maclin testified that he thereupon started the Sutton machine up, operated it himself for possibly 10 minutes, and then turned it over to Charlie for a few minutes while he went to look for Riley. Not finding him, he returned to the third floor and continued to operate the Sutton machine until time for Knight's return from lunch around 1 o'clock. He then checked with Knight the fact that Knight had actually issued instructions to Riley to stay and work. Machn's version of the incident is accepted as approximately accurate. It is corroborated in material respects by the testimony of Knight and of Charlie Kelson." That night Maclin called Knight into conference in his office to .discuss the subject of Riley Kelson's disobedience of orders and his conduct in general as reflected in the series of incidents which had,begun with the machine break- downs in December 1947. Though they had no further information, they were still of the opinion that Kelson had been guilty of the sabotage in December, and that was one of the incidents they discussed and one of the factors to which they gave consideration in arriving at their decision. The factor that mainly contributed to reaching the decision was Kelson's repeated absences from his post of duty and of course, the precipitating factor and the proximate cause was Nelson's disobedience that day to the specific order to work during the noon hour. After discussion of these various matters, Maclin and Knight agreed that they wouldn't permit such an insubordination to go on, since it had gotten to the point that Knight Himself was unable to control the mill with Kelson in it. They decided, therefore, that Kelson would be obliged to go. Knight had at first wanted to discharge Kelson immediately, that is, the net morning, but' it was finally agreed that since Kelson was an old employee whose period of employ- ment exceeded Knight's by many years, that Maclin himself should'actually make the discharge. Thereupon, Maclin prepared the dismissal slip and placed it in Kelson's pay envelope on April 30, as previously recounted. The method employed by Respondent to effect Kelson's discharge would indi- cate, in the absence of explanation, that Respondent adopted a most singular method of terminating the employment of an old and trusted employee. How- ever. Respondent did proffer an explanation as follows : Maclin testified that in spite of the series of incidents above referred to he was most reluctant to discharge Kelson because he had been in Respondent's employ for many years, had lost an arm at Respondent's plant, and was physically handicapped for doing ordinary manual labor. He therefore endeavored to word the notice in some- what vague and indefinite terms, avoiding any statement of reason for the dis- charge, in the hope''And expectation that Kelson would immediately seek him out for an explanation. Thereupon, Maclin states that he intended also to call in "' Charlie Icelson, though at first stating that Riley had remained on-the job with him, later admitted that Riley had gone as far as the second floor but he didn 't know how long Riley had stayed there He also admitted that Maclin had come to the third floor "right at noon ," that Riley was absent, that Maclin had found the Sutton machine shut down , and had started it up , himself Charlie also testified that Maclin inquired of him where Riley was, that he reported that Riley had gone down on the other floor, but still later Charlie testified ' that Riley returned in a few minutes ( 5 or more ) after Mr. Maclin had started the Sutton machine, that Maclin was still there, but he doesn't know whether Mr Maclin asked Riley where he had been , but he does know that Riley did not tell Maclin where he had been. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Knight, the plant superintendent, discuss with Kelson the charges against him, obtain from Kelson a promise to mend his ways, and he thereupon hoped to persuade Knight to agree that Kelson might be taken back. Maclin's explanation appears to be logical and credible and is accepted by the undersigned b. The alleged discriminatory failure to reinstate On May 22, 1948,' Kelson testified he returned to the plant for the first time after his discharge and inquired why he had been discharged and asked for his job back. He went into the main or front office into which Maclin's private office opens. Maclin and Julius Grady Gerald, Respondent's bookkeeper (re- ferred to in Kelson's testimony as Mr. Jewell), were present A railing sets apart a portion of the front office as an anteroom, and Kelson did not go beyond the railing on which Maclin was sitting. Kelson's version of the conversation. all of which occurred within Gerald's hearing, is as follows : Yes, sir, I asked for my job back. I went back down, well, the 22nd of May and asked for my job. I said, Mr. Maclin-he said, I ain't your boss, he says, Union man is your boss. There ain't anything I can say. You reported me to two places in the National Labor Relations Board and I'm going to fight the National Labor Board 'til hell freezes over, he says. I mean it. That's what he said, I mean it. He says, I'm not going to have no union here. He says, I'm boss here. He says, you are not boss here or no where else. I says, well-He said, is there anything I can do for you? I said, well, my discharge you give me ' Why did you fire me for? He said, well I disremember, Riley, whether I put it on there or not. I said, well you didn't put it on there. He said, well, I disremember that. He says, I run this place here, he says, I'm boss here. I said, I wasn't trying to boss no place. Maclin denied that on the occasion in question that KeTon applied for his job back. He testified that Kelson inquired only as to reasons why he had been discharged. Since Maclin's exact language is important, particularly on the General Counsel's amendment to the complaint to charge a Section 8 (a) (4) violation, his reply is also quoted : I replied to Riley. I said, Riley, if you'd come back to me just after you received that notice, I would have talked to you and just as I have always talked to you, but you didn't see fit to do that. You filed charges against me and it's now in the hands of our attorney and we intend to fight it. Maclin' had previously testified, in relation to his reasons for phrasing the dismissal slip as he had, that he personally would have been willing to rein- state Kelson but would not have done so without Knight's approval. This was adverted to on cross-examination : Q. But it was your thought when you put that notice in his pay envelope that you would have him back on the job within a few days? A. Yes. Q. And then after that time you decided not to? - A. Oh, no, now, wait a minute. Charges were filed against me in the meanwhile. 42 Kelson definitely fixed the date of his application for reinstatement as having occurred on May 22, 1948 Maclin testified that it was from 30 to 60 days after the discharge on April 28, and Julius Grady Gerald, another witness for the Respondent, admitting that he was "not sure of the date," testified that it was approximately 2 months after the dis- charge and that he was sure it was over 2 weeks. In view of Kelson's certainty as to the date and the uncertainty on the part of Respondent 's witnesses, the Trial Examiner finds that the incident occurred on May 22, 1948. 1 JOHN H. MACLIN PEANUT CO., INCORPORATED 405 Q. And then when he did come in you did not take him back? A. I did not, he did not ask for his job. Q. And you declined to talk to him about it? A. Yes, it had been turned over to Mr. Davis, my attorney at that time. It was out of my hands. On redirect examination, Maclin explained that he had not felt free to discuss the subject with Kelson "after papers had been filed" ; that he had, in the mean- time, consulted his attorney and placed the matter with him for handling and had received advice that he was not to discuss the charge of the illegal discharge of Riley Kelson with the representative of the Union or with Kelson or with anyone else. He added that he followed that advice in the interest of safe- guarding his rights and consequently, had refused to make a statement to Kelson as to why he had been discharged. Gerald corroborated Maclin's testimony that Belson did not ask for his job back. He testified that the conversation was a short one, that Kelson asked Maclin why he was fired and that Maclin "told him there was nothing he could say to him, it was all in the hands of his lawyer." Gerald could not recall that Maclin had made any reference to the fact that charges had been filed against him, but added that Maclin did say "that he would fight the case." 2. Concluding findings as to alleged discrimination a. The discharge The General Counsel offered no evidence that between November 12; 1947, and April 30, 1948, the date of Kelson's discharge the Respondent committed any acts which would constitute coercion or discrimination or which would otherwise be violative of the Act. In fact except for the evidence offered by the Respondent as to the incidents relied upon by it as justifying Kelson's discharge, the record is almost devoid of evidence as to events which occurred during the hiatus of 51/2 months. It does appear that "the day after Thanksgiving" (November 28, 1947),48 all of Respondent's employees except one reported for work wearing C. I. O. buttons," and Respondent thereby became aware (1) of the extent of union activity generally; and (2) of Riley Kelson's membership in particular. No evidence was offered that other union activity continued during the period or that Kelson participated therein.46 However, a stipulation was entered into at the conclusion of the General Counsel's case that on April 23, 1948, a representation hearing was held at Albany in the Matter of John H. Maclin Peanut Company, the Respondent, as a result of which the Board determined that an election should be held. Kelson's explanations are of no assistance in the necessary bridging in the gap. Of, first significance is his testimony that he did not recall the specific incident that led to the discharge. If that statement be accepted, then it is clear that Kelson would not have had any intimation that he might be discharged or for what cause. The notice, coming suddenly and without warning, stated no grounds whatever. What is more natural, then, that Kelson should have reacted as Maclin expected, by coming in and demanding an explanation? He did not do so. First he testified that though finding the slip in his envelope and knowing that the first word was "Riley" and that it was intended for him, and though 11 There had also been a union meeting, apparently an organizational meeting, the night before Thanksgiving Day and Kelson was then elected as temporary committeeman, but there is no suggestion that Respondent had any knowledge of these facts. " It also appears that the union buttons were more or less commonly worn thereafter. 41 Kelson's testimony does indicate that he participated actively in soliciting union mem. bership among Respondent's employees, but that this occurred shortly after he joined the Union on October 15, 1947. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knowing "it was for something or other" and "something unusual," he did not take it to the office or show it to anyone '41 or make any attempt to find out what it was until the next morning when his little niece.read.it'to him Then, under- standing that it meant lie was discharged, lie delayed until May 22nd making any attempt to seek an explanation He admitted that he wanted his job back throughout the period, but denied that he delayed applying for it because he knew why he'was discharged. In the meantime, a few days after his discharge, he informed a local representative of the Union of the discharge and on May 13, the original charge was filed in his behalf, charging that Kelson had been discharged because of his "membership in and activities on behalf of [the Union]." Kelson's testimony affords no assistance in fathoming his reaction to the notice of discharge, nor does his attempt to supply a reason for his discharge prove of aid. Thus, both on direct examination and on cross, he endeavored to relate the discharge back to Maclin's conversation with him in October 1947, previously referred to herein Referring to his previous testimony that Maclin then "had warned him about joining the Union" and that if Kelson joined the Union "he would not be about to work me any more, we wouldn't be any more friends," he testified that these statements furnished the only basis lie knew of or suspected for his discharge. In spite of the vacuum in the record of any evidence of coercive statements and acts by the Respondent, certainly from November 12, 1947, to April 30, 1948, the General Counsel, nevertheless, 'attempts to sustain the theory that the discharge was in fact for the reason assigned by Icelson In order to establish the existence of a discriminatory motive, it is necessary of course that substantial affirmative evidence be adduced' from which a discrim- inatory motive can reasonably be inferred Matter of Texas Company, 80 N L. R. B. 862, and see National Lime and Stone Co74pany, 70 N. L R 131637 The under- signed finds that the evidence is insufficient'to establish such a motive. Neither does the evidence offered by the General Counsel'disprove the Respondent's con- tention that the discharge was for the causes assigned. Cf. Batter of Texas Com- pany, supra. Kelson's testimony is outweighed by Respondent's evidence on each of the incidents claimed-by, it to'liave led 'cumulatively to the decision to dis- charge. First, as to' the' machine break-downs Kelson's testimony was particu- larly evasive and he professed inability to identify the pieces of metal removed from "the machine in his presence Next, as to his activities in the, picking room. no witness was offered to corroborate his testimony that he, had substantial duties there, and -his' testimony is insufficient -6 rebut the testimony of Respondent's witnesses to the contrary. He also professed inability to recall the noon hour in- cident'of April 28, when Respondent's evidence establishes that he disobeyed express instructions to 'work' Finally, his failure to seek an immediate explana' tion in the light of the rather cryptic note of dismissal indicates that he knew dr had good reason to suspect why lie was being discharged ; and his subsequent attempt to relate the discharge back to a conversation 6 months earlier is unper- suasive in view' of the vacuum in the evidence of any anti 'union acts or statements by the Respondent during the interim.' The undersigned finds that the evidence as a whole fails to support, the allega- tions of the complaint that Kelson was discharged for discriminatory reasons, and Snds'to the contrary, that he was discharged for the causes assigned by the Respondent He denied that after receiving his pay envelope on April 30, he exhibited the discharge slip to a group of employees on the platform , as testified to by Marlin { JOHN H. MACLIN PEANUT CO., INCORPORATED 407 b. The failure to reinstate (1) As a possible Section 8 (a) (3) violation The testimony concerning Kelson's alleged application for reinstatement on May 22, 1948, is directly in conflict. If Nelson's testimony be accepted, he asked why he had been discharged and asked for his job,back," and Maclin in refusing to entertain his application stated that he intended to fight the charges which had been filed in Nelson's behalf 4s with the Board because, among other things, he was not going to permit a union in the plant.45 If such statement were in fact made it would of course constitute a violation of Section S (a) (3). However, the undersigned does not credit Kelson's version of the incident but finds instead that Machn's testimony, which is corroborated in important details by Gerald, more nearly accords with what actually occurred Maclin's remarks contain no suggestion of a discrimination within the meaning of Section S (a) (3), i e, that his motive in failing to reemploy Kelson was to discourage membership in a labor organization. They relate only to his refusal to discuss with Kelson the causes for his discharge because Maclin had placed in the hands of his attorney the charges filed against the Respondent and because be intended to contest those charges. The undersigned therefore concludes that the evidence does not estab- lish that Respondent's failure to reemploy Kelson was violative of Section 8 (a) (3) of the Act. (2) As a possible Section 8 (a) (4) violation A closer question is presented on the contention that Maclin's statements establish that he failed to reemploy Kelson because of the charges filed against the Respondent50 Some color is lent to the Section 8 (a) (4) charge by some of Maclin's answers on cross-examination when considered separately and out of context with other portions of his testimony. But in its entirety it is clear that what Maclin told Nelson was that he was unable to discuss the matter at all since charges had been filed, since he had placed the matter in the hands of his attorney, and since he intended to fight it. In other words Maclin's testimony as a whole can fairly be regarded as a refusal to discuss the matter with Nelson and to entertain any application for reemployment or settlement of the charges and as an indication that he would insist upon a determination by the Board of the question whether Respondent's discharge of Kelson was discriminatory and in violation of the Act. In the opinion of the undersigned such a position is in no way violative of the Act The Respondent having discharged Kelson for cause, was within its legal rights in informing Kelson that it would not discuss the mat- 4' Although Kelson doubtless intended to apply for reinstatement, the undersigned finds that he never got beyond making inquiry why he had been discharged Thereupon Maclin cut in and informed Kelson that he couldn't discuss the matter with him because Maclin had turned over to his attorney for handling the charges which had been filed in Kelson's behalf. Maclin's statement precluded Kelson 's attempted application for reinstatement which under the circumstances would have been futile. However , the point is immaterial in the light of the subsequent findings herein. 98 It is immaterial , of course, that the charges were not filed by Kelson himself but by the Union in his behalf Matter of Burnside Steel Foundry Company, 69 N L. R B 128 And see Matter of Briggs Manufacturing Co, 75 N L R B 569, 572 99 This alleged statement , construed as possible interference , restraint , and coercion, is disposed of, supra, p. No. 397 w Section 8 (a) (4) would not be rendered inappropriate because of the fact that Kel- son, having been properly discharged . was no longer an employee of the Respondent Mat- ter of Briggs Manufacturing Co., 75 N. L. R B 569 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ter with him and in indicating that it would insist upon a legal determination of the charges. Matter of Amercan Linen Service Company, 45 N. L. R. B. 902, 913; Matter of The Mead Corporation, 52 N. L. R B. 1361, 1367, 1368; Cf. Matter of Weyerhaeuser Timber Company, 39 N. L. R. B. 258; Matter of Richmond Home Telephone Company, 70 N. L. R. B. 452. Portions of Maclin's testimony on cross-examination standing alone also sug- gest that subsequent to the discharge Maclin stood ready to reemploy Kelson on application " but failed to do so because Kelson had caused charges to be filed. Considered in its entirety, however, his testimony reveals that Maclin's explana- tion was that he was unable to discuss the charges with Kelson or the causes of his discharge or to consider reemploying Kelson since he had decided to seek a legal determination of the issue that Kelson's discharge was in violation of the Act and because he had been advised by his attorney not to discuss the matter with anyone, including Kelson. On the evidence as a whole the undersigned therefore concludes that Respond- ent's failure to reemploy Kelson was not violative of Section 8 (a) (4) of the Act IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set out in Section III, above, occurring in con- nection with the operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that the Respondent, John H. Maclin Peanut Co., Incorporated, has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act (61 Stat. 136), the undersigned will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policy of the Act. In the present case it has been found that the only unfair labor practices were committed in October 1947. The single instance of interference, restraint, and coercion found is not sufficiently significant in the opinion of the undersigned to indicate a settled purpose on the part of the Respondent to defeat the rights guaranteed by Section 7 of the Act. Under such circumstances and in view of the absence of any evidence that danger exists or is to be anticipated in regard to other unfair labor practices, it will not be recommended that the Respondent be enjoined from the commission of any and all unfair labor practices, proscribed by the Act (cf. Matter of Westinghouse Electric Corporation, 80 N. L. R. B. 945; Matter of Geraldine Novelty Company, Inc., 74 N. L. R. B. 1503, 1542) ; but it will be recommended instead that the Respondent be ordered to cease and desist from the unfair labor practices found and from any like or related act or conduct which would tend to interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed by Section 7. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: ai It was clear, however, that Maclin was stating his personal attitude toward Kelson's possible application for reemployment, since he plainly testified that he intended to procure Knight's consent first and would not have rehired Kelson without it. His testimony shows also that he intended to condition consideration of Kelson 's application, if made, on ob- taining a definite commitment from Kelson to mend his ways. JOHN H: MACLIN PEANUT CO., INCORPORATED 409 CONCLUSIONS OF LAW 1. The operations of the Respondent, John H. Maclin Peanut Co., Incorporated, a Virginia Corporation, with its principal office and place of business at Albany, Georgia, constitute commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Stone and Allied Products Workers of America, C. I. O. is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices by discharging Riley Kelson or by refusing to reinstate him. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law the under- signed hereby recommends that the Respondent, its successors, and assigns shall : 1. Cease and desist from : a. Interrogating employees concerning union membership or activities ; threat- ening to close its plant because of its employees union membership or activities ; seeking employee assistance to determine union membership and activities of other employees ; and seeking employee assistance to discourage union member- ship or activities of other employees. b. Engaging in any like or related act or conduct which interferes with, re- strains, or coerces its employees in the exercise of the rights guaranteed by Sec- tion 7. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act : a. Post at its plant in Albany, Georgia, copies of the notice attached hereto marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; b. Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply with the foregoing recommendations. It is further recommended that unless the Respondent shall within ten (10) days from the receipt of this Intermediate Report notify the Regional Director for the Tenth Region in 'writing that it will comply with the foregoing recom- mendations the National Labor Relations Board issue an order requiting the Respondent to take the action aforesaid. It is also recommended that the complaint and the amendment thereto insofar a.^ they allege that the Respondent discriminatorily discharged and failed to reinstate Riley Kelson in violation of Section 8 (a) (1), (3) and (4), of the Act be dismissed. As provided in Section 203 46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may. 410 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD within twenty ( 20) days from the date of service of the order transferring the case to the Board , pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building , Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding ( including rulings upon all motions or objections ) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs , the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed 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) clays 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 30th day of December 1948. GEORGE A. DOWNING, Trial Examiner. APPENDIX A NOTICE '10 ALL EMPLOYEES It has been reported to us that some employees have been told that unless they join a union they may lose, their jobs here. . - Any such statement which has been , made to you, or may be made to you in the future is a lie. You have never in the past either had to join a union, or to stay out of a union in order to hold your job here , and you never will have to do either in the future. - There will never be a "closed shop" in this plant under any circumstances. The law of the United States gives you the right to join a union if you want to do so. The same law gives you the right to refuse to join if you want to. The same law makes a "closed shop" ( in which we would have to employ only union members ) illegal, and a separate law of the State of Georgia does the same thing. This Company will respect all your rights , either to join or not to join a union, and wd will not interfere with them in any way, and all our supervisory employees have been so instructed. Furthermore we will not knowingly tolerate or let anyone else interfere, by threats , or,by trying to frighten you with loss of your job or in any other manner, with your ,right to stay out of a union or to join one if you wish. This is final notice that any employee of this Company who threatens any other employee or otherwise tries to force any other employee to join a union or not to do so, will be discharged immediately. Any union organizer or repre- sentative who does so will have legal charges filed against him, or her and the union by our attorneys just as soon as we have proper proof. JOHN H. MACLIN PEANUT CO., INCORPORATED 411 And employee who has been, or may be told that he or she must join the union to hold a job here, or stay out of a union to hold a job here, should report the matter to me immediately. If you do not fully understand this notice, I will be glad to explain it to you if you will ask me. JOHN H. MACLIN PEANUT CO., INC., By HENRY W. MACLIN, President. NOt-EDfRER'12,'1947. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policy of the Labor Management Relations Act, 1947, we hereby notify our employees that: WE WILL NOT interrogate employees concerning union membership or activities; threaten to close our plant because of our employees union membership or activities ; seek employed assistance to determine union membership and' activities of other employees ; or 'seek employee assistance to discourage union membership or activities of other employees. WE WILL NOT engage in any like or related act or conduct which interferes with, restrains, or coerces our employees in' the exercise of their rights guaranteed by Section 7.' JOHN H. MACLIN PEANUT CO., INC., Employer. Dated -------------------- ' By -------------------------'=------------ (Representative ) (Title) This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material.