Jaques Power Saw Co.

In the Matter Of JAQUES POWER SAW COMPANY' and INTERNATIONAL ASSOCIATION OF MACHINISTS Cases Nos.16-C-1439 and 16-C-1497.-Decided July 09,1949 DECISION AND ORDER On September 10, 1948, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not discriminatorily discharged em- ployee Chrisman as alleged in the complaint.2 Thereafter, the Re- spondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is denied because we believe the record and the Respondent's brief adequately present the issues and positions of the parties. The Respondent excepts to the Trial Examiner's ruling denying its motion to dismiss on the grounds that (1) there is no showing of compliance by the Union with the filing requirements of Section 9 (f), (g), and (h) of the amended Act, and (2) the complaint was not validly issued under the proviso in Section 10 (b) of the amended Act.' With respect to the first ground urged, we have heretofore held, as we do now, that compliance is a matter for administrative de- termination and is not litigable by the parties.' Moreover, we are 1 The Intermediate Report inadvertently refers to the Respondent as the Jacques Power Saw Company. 2 No exceptions were filed to the Trial Examiner's findings with respect to these allega- tions. Accordingly, we shall dismiss the complaint as to Chrisman. The proviso in Section 10 (b) reads : Provided, That no complaint shall issue based upon any unfair labor practice oc- curring more than six months prior to the filing of the charge with the Board and the service of copy thereof upon the person against whom such charge is made. . . . " See, e . g., Matter of Pauls Valley Milling Company , 82 N. L. R. B. 1266. 85 N. L. R. B., No. 78. 440 JAQUES POWER SAW COMPANY 441 administratively advised that the Union has fully complied with the filing requirements of the amended Act. Respecting the second ground of this exception, the Respondent contends that the third and fourth amended charges, upon which the complaint is based, were filed more than 6 months after the occur- rence of the alleged unfair labor practices and that, in any event, the record contains no evidence that any charges were served upon the Respondent within the period required by Section 10 (b) of the amended Act. For reasons hereinafter stated we, like the Trial Examiner, find no merit to this contention. The Board has held that Section 10 (b) of the amended Act im- poses no limitation on the issuance of complaints in cases where the charges upon which the complaint is based were filed and served within 6 months after August 22, 1947, the effective date of the amended Act.5 We have also held, in effect, that Section 10 (b) does not prohibit the issuance of a complaint based on an amended charge filed and served after the running of the limitation period if, in fact, such amended charge alleges no new matter and is substantially a restatement of the original or previously amended charges which had been timely filed and served .r In the instant proceedings the third amended charge in Case No. 16-C-1439 (involving the Denison plant) and the fourth amended charge in Case No. 16-C-1497 (involving the Mineral Wells plant), although filed and served on May 15, 1948, after the running of the limitation period, substantially reiterate unfair labor practices alleged in earlier amended charges which had properly been filed within the limitation period. It is true that at the time this case was transferred to the Board, the record did not contain proof that the charges in question were served upon the Respondent within the limitation period of Section 10 (b). Subsequently, the Regional Director for the Sixteenth Re- gion submitted to the Board separate affidavits pertaining to each of the above-entitled cases executed by a Board employee in the office of the Regional Director wherein the affiant stated that she had caused copies of the original and all the amended charges that were filed in each case prior to June 26, 1947, to be served on the Respondent, by mailing copies thereof by registered mail to the Respondent on or about June 26, 1947. Attached to each of these affidavits was the United States Post Office return receipt duly signed on behalf of the Respondent showing receipt of a copy of these earlier charges. True copies of these affidavits and return postal receipts were attached to 6 See, e . g., Matter of Pauls Valley Milling Company, ibid ; Matter of Electric Auto- Lite Company, 80 N. L. R. B. 1601 ; Matter of Itasca Cotton Manufacturing Company, 79 N. L. R. B. 1442. c ,Matter of Erving Paper Mills, 82 N. L. R. B. 434. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board's notice to show cause of March 16, 1949, in which the parties were given notice that such proof of service would be made a part of the record herein unless sufficient cause to the contrary was shown in writing on or before March 28, 1949. Within the prescribed time the Respondent filed with the Board its Reply to notice to show cause. The Respondent, in its reply, does not dispute the truth or authenticity of the affidavits; nor does it deny actual receipt of copies of the charges and amended charges mailed to it on June 26, 1947. The Respondent contends (1) that the Board may not consider this evidence of service because it was not introduced before the record was closed and may not now be incorporated in the record; (2) that-the Board may not utilize the medium of a notice to show cause to establish that the charges were properly served; and (3) the use of such pro- cedure by the Board contravenes the Administrative Procedure Act. For reasons stated in our Ruling and Order in Matter of Old Colony Box Company ,° we find no merit to the Respondent's contention that the aforesaid proof of service may not now be made a part of the record. Our use of a show cause procedure was intended to afford the Respon- dent full opportunity to controvert the alleged fact that it was timely served with the charges herein. We believe that his procedure, in the circumstances of this case, was entirely proper and in conformity with the provisions of the Administrative Procedure Act." ' Accordingly, ' 81 N. L. R. B. 1025. 8 See Matter of Rome Specialty Co., Inc., 84 N. L. R. B. 55. Compare, for example, the following language of the Supreme Court in cases where an administrative agency con- sidered certain data dehors the record: . . . due process deals with matter of substance and is not to he trivialized by formal objections that have no substantial bearing upon the ultimate rights of the parties . . . Market Street Railway Company Y. Railroad Commisssion of the State of California, 324 U. S. 548 at 562. . . . the mere fact that the determining body has looked beyond the record proper does not invalidate its action unless substantial prejudice is shown by the result . . . [The Company] makes no showing that if a rehearing were held to introduced the evidence in question it would gain much by cross examination, rebuttal or impeach- ment . . . (Emphasis added.) U. S. v. Pierce Auto Freight Lines. 327 U. S. 515 at 530. See also N. L. it. B. v. Newport News Shipbuilding & Dry Dock Company, 308 U. S. 241, 248 ; Marrow v. United States, 101 F. 2d 654, certiorari denied 307 U. S. 628. Also compare, Administrative Procedure Act, section 7 (d), the applicable portion of which states : Where any agency decision rests on official notice of material fact not appearing in the evidence in the record, any party shall on timely request be afforded an oppor- tunity to show to the contrary. In construing this provision, see the Attorney General's Manual on the Administrative Procedure Act, pp. 79, 80, reading in part : . . . the recommendation of the Attorney General's Committee, which is thus ap- parently adopted was that "the permissible area of official notice be extended" as to avoid "laborious proof of what is obvious and notorious," subject to opportunity for rebuttal or explanation, as provided in Section 7 (d) . . . Agencies may take notice of JAQUES POWER SAW COMPANY 443 as no sufficient cause to the contrary has been shown, the aforesaid proof of service is hereby made a part of the record and upon the basis thereof and the entire record in the case, we find that the per- tinent charges and amended charges in the instant case were timely filed and served in accordance with the requirements of Section 10 (b) of the amended Act. The Respondent further contends in its exceptions and brief that the Trial Examiner, in ruling on its motion for separation of wit- nesses, erred in that he did not exclude from the hearing room those witnesses who were named in the complaint as the alleged discrim- inatees. We find no merit in this contention. These persons were not mere witnesses at the hearing. They were entitled to be present during the taking of the entire testimony because, in effect, they occupy the status of complainants.9 Moreover, the Respondent does not allege that their testimony was improperly influenced in any way by their unre- stricted presence in the hearing room, nor has the Respondent shown any substantial prejudice resulting therefrom.'° The Board 11 has reviewed the Trial Examiner's other rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the Respondent's exceptions. and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions, modifications, and additions set forth below, : 1. We agree with the Trial Examiner that the Respondent dis- charged employees Harris, Reynolds, Latona, Sirniins, and Nunn be- cause of their activities on behalf of the Union and not as contended by the Respondent, because they violated its no-solicitation rule. We are not, however, in complete agreement with the reasons given by the Trial Examiner to support his findings in this respect. In the case of Harris, the Trial Examiner found the Respondent's contention and the testimony of its own witnesses sharply in conflict. facts at any stage in the proceeding-even in the final decision-but the matters thus noticed should be specified and "any party shall on timely request be afforded oppor- tunity to show the contrary." The matters thus noticed become a part of the record and, unless successfully controverted, furnish the same basis for findings of fact as those "evidenced" in the usual sense. [Italics added.] See also, Senate Report 752, 79th Cong., 1st Sess., p. 23, and H. R. Report 1980, 79th Cong., 2nd Sess., pp. 37, 38. ° Cf., e. g., Matter of Biggs Antique Company, Inc., 80 N. L. R. B. 77. 10 Cf. N. L. R. B. v. Parke Machine Tool Co.. 133 F. 2d 618, 621 (C. A. 6) : N. L. R. B. v. Quality and Servieb Laundry, 131 F. 2d 182 (C. A. 4), certiorari denied 318 U. S. 775; Matter of National Lime and Stone Company, 62 N. L. R. B. 282. 11 Pursuant to the provisions of Section 3 (b) of National Labor Relations Act, the Board has delegated its powers in connection with this case to the undersigned three- member panel [Houston, Reynolds, and Murdock]. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He therefore rejected the Respondent's entire defense as to Harris and found rather that Harris was discharged for his legitimate activi- ties on behalf of the Union. While Melvin's testimony under cross- examination does conflict with the statement he signed at about the time of the discharge that he had discharged Harris "for unionizing" on company time, we do not believe, as the Trial Examiner does, that Melvin's testimony on this question, considered in its entire context, is of such clarity and force as to contradict the Respondent's alleged reason for Harris' discharge. In our opinion, Harris' case presents the same issues as do those of dischargees Reynolds, Latona, Simms, and Nunn. We believe the preponderance of evidence in the record supports the Respondent's contention that during the period covered by the com- plaint there was in existence at the Denison plant a rule against solici- tation of any kind during working hours.12 We have consistently recognized and upheld an employer's right to promulgate and enforce a plant rule against solicitation on working time. As was stated in Matter of Peyton Packing Company, 13 and reiterated in the later court and Board decisions: 14 The Act, of course, does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time. Working time is for work. It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours. Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose. There is no showing in this case that the Respondent's rule against solicitation was initially adopted for a discriminatory purpose. Therefore the validity of the rule is not in question. However, like the Trial Examiner, we are convinced and find that this rule forbidding solicitation was discriminatorily enforced by the Respondent against the above-named employees for the purpose of discouraging member- ship in the Union.'-' 22 Undisputed testimony shows, inter alia, that the rule against solicitation originated at the Denison plant after the Respondent received , in August 1944, its first war contract in which the Government required the enforcement of such a rule ; that thereafter the rule remained in existence ; that, in January 1946, a notice of the employees stating the rule was redrafted, duplicated, posted, and maintained about the plant; and that numerous witnesses saw such a notice posted in the plant . Whether or not this rule was adequately publicized so as to charge the alleged discriminatees with notice thereof, we, like the Trial Examiner , find it unnecessary to decide under the circumstances herein. 1349 N. L. R. B. 828, 843, enforced 142 F. 2d 1009 (C. A. 5), certiorari denied 323 U. S. 730. 14 See, e. g., Republic Aviation Corporation v. N. L. R. B., 324 U. S. 793, 804; Matter of McKinney Lumber Company, Inc., 82 N . L. R. B. 38. 15 See, for example, the following cases involving various aspects of discrimination in the enforcement of a valid no-solicitation rule : N. L. R. B . v. Continental Pipe Line JAQUES POWER SAW COMPANY 445 The record shows, as found by the Trial Examiner, that on Septem- ber 4, 1946, the Union formally notified the Respondent it represented a substantial majority of its employees and demanded recognition as their exclusive bargaining representative. On September 6, 1946, Harris was discharged allegedly for soliciting employees to sign union application cards. On September 10, 1946, following his appointment as personnel manager, Daugherty began an investigation designed to apprehend employees who were soliciting on behalf of the Union. Forms of affidavits were duplicated in advance, as follows : I, the undersigned-----------------an employee of the Jaques Power Saw Company, Denison, Texas, living at the address of ----------------, do hereby state that on the date of---------- ------ , Place---------------- Time ------ , while in the employ- ment of, and on the working hours of the Jaques Power Saw Company, that I was approached and solicited to participate in Union activities by one Mr.----------------, concerning the Jaques Power Saw Company. Signed -------------------- ------------------ Notary Public in and for Grayson County. On September 17, 1946, Reynolds, Latona, Simms; and Nunn were summoned by Daugherty and told that the Respondent had affidavits to the effect that they had been soliciting for the Union on company time.16 Although all four of these employees denied knowledge of the existence of the rule against solicitation and two of them 17 denied having solicited on company time, no further investigation was con- ducted by the Respondent, no preliminary warning was given, and no opportunity for defense was afforded any of them. Punishment for the alleged offense in each case was summary discharge from employ- ment. Each of these four employees was active on behalf of the Union; two were officers therein. The record shows that the rule in question was never enforced until after the Union notified the Respondent of its majority claim 18 Nor Company, 161 F. 2d 302, 303 ( C. A. 5) ; N. L. R. B . v. American Furnace Co ., 158 F. 2d 376, 379 (C. A. 7) ; N. L. R. B. v. Gallup American Coal Co., 131 F. 2d 656, 667 (C. A. 10) ; Matter of Macon Textile , Inc., 80 N. L. R . B. 1525; Matter of Hershey Metal Products Company, 76 N. L. R. B . 695, 696. 16 Eight affidavits in the form set out above were introduced in evidence by the Respond- ent. Two of these were executed by Daugherty himself ( who was a machinist before his appointment as personnel manager ) and two by Cason, who is found herein to be an agent of the Respondent . Only one of the affidavits was dated ( 9/7/46 ) ; the other seven were not dated either by the affiant or by the same notary public whose signature appears on each of the affidavits. 14 Latona and Nunn. 18 President Jaques' testimony that he had previously discharged one employee for vio- lating this rule was rendered nugatory upon cross-examination when Jaques admitted, in effect, that this employee had run up a large long distance telephone bill and that he had 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is there any evidence to indicate that before that time any employee was disciplined, let alone discharged, for breach of the rule, nothwith- standing the broad scope of the rule as it is stated in the Respondent's notice.19 In the enforcement of its plant rules, the practice and policy of the Respondent, as reflected in the record, has not been to punish violators with discharge or with other severe punishment. In enforcing the Board's order in the Peyton Packing case, supra, where under circumstances strikingly similar to those herein, the employer instituted an investigation to discover violations of its rule against solicitation following receipt of a request from the union for a collective bargaining conference, the court stated : This manner of inquiring into suspected breaches of the rule against solicitation was an unprecedented departure from the Respondent's customary procedure in enforcing its rules of con- duct. . . . The rule against solicitation, though reasonable and in lawful form, was administered not according to its tenor but in and arbitrary and discriminatory manner. Such conduct on the part of an antagonistic management and its representatives adroitly timed to cripple the strength of, the union during its formative period, clearly warranted the findings of the Board that . . . the disharges were discriminatory in that they resulted from union membership and activity. (Court citations omitted and emphasis added.) 20 In the present case, the conclusion is inescapable that the Respond- ent's sudden and initial invocation of its long dormant rule against solicitation stemmed not from any desire to maintain discipline or properly to enforce a reasonable plant rule-but to cripple the Union, which had just notified the Respondent of its majority claim. Wit- ness, for example, President Jaques' testimony that the rule was widely abused in January or February 1946, before the advent of the Union. However, Jaques indicated no attempt by the Respondent to apprehend the alleged violators or to take any disciplinary action"at that time. Similarly, 1 or 2 weeks prior to the Union's September 4, 1946, notice to the Respondent, Harris was observed by his foreman, Melvin, soliciting employees during working hours, but at that time Melvin merely told Harris "you can't have that on company time." On September 6, 1946, however, after the Union's notice to the Re- spondent, Melvin proceeded to discharge Harris allegedly, for violat- ing the rule, even though, as Melvin testified, Melvin had not again caught Harris in the act of soliciting. not been soliciting other employees but, rather , had been using the company 's telephone for conducting private business. '0 ". . . absolutely no soliciting of any nature on Company time." 20 142 F. 2d 1009, 1010 ( C. A. 5) ; certiorari denied 323 U. S. 730. JAQUES POWER SAW COMPANY 447 Moreover, as detailed above and in the Intermediate Report, Per- sonnel Manager Daugherty , following his promotion from the job of machinist, instituted a campaign to snare employees soliciting on the Union's behalf. The methods employed by Daugherty , including the drafting of the detailed affidavits set forth above for which he later procured signatures , the summary nature of the punishment , and the failure fairly to investigate the question of whether the alleged vio- lators in fact breached the rule, was highly arbitrary and prejudicial. Such drastic and punitive action on the part of the Respondent in discharging the alleged offenders , which finds no precedent in the plant history or justification in the Respondent's practice and policy, is pointedly significant." We are firmly convinced , in view of all the circumstances herein, that the reason assigned by the Respondent for the discharge of Harris, Reynolds, Latona, Simms, and Nunn, to wit, the breach of a plant rule, was merely a pretext 22 and that the Respondent 's real purpose was to defeat the Union , which had already made its claim as majority representative, by the most effective means in its power,23 i. e., by discharging the key figures in the union movement. Thus, the Respondent debased its existing rule against solicitation , valid in itself, to effectuate its unlawful objectives. This, we find, was a dis- criminatory enforcement of its plant rule in violation of Section 8 (a) (3) of the Act.24 2. Employees Verlielle , F. H. Malone, and J . C. Malone were laid off by the Respondent on September 10, 1946, as part of a group of eight or nine laborers . On September 13, 1946, they applied for re- instatement and were refused . The Trial Examiner found, contrary to the allegation in the complaint , that their lay-off on September 10, 1946, was not discriminatory and that the Respondent , on September 13, 1946, did not discriminatorily refuse them reinstatement. We agree. However, we do not agree with the Trial Examiner 's finding that they were constructively discharged on September 15, and on September 22, 1946, because the Respondent failed to recall them on 21 See Oklahoma Transportation Co. v. N. L. R. B., 140 F. 2d 509, 510 (C. A. 5) ; N. L. R. B. v. Poison Logging Co., 136 F. 2d 314, 315 (C. A. 7). Compare Matter of Underwood Machinery Company, 74 N. L. R. B. 641, 648 and Matter of Burnside Steel Foundry Company, 69 N. L. R. B. 128, 134, where the Board held one week's punishment for violating a rule against solicitation was not unreasonable. zz Cf. Matter of Burlington Mills Corp., 82 N. L. R. B. 751. 23 See N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C. A. 4). 24 As described aboge, the Trial Examiner found that J. C. Jaques' speech of Septem- ber 10, 1946, constituted "solicitation" against the Union, and also that the Respondent had permitted certain solicitations for charitable contributions, which its rule precluded. We place no reliance upon these findings of the Trial Examiner in establishing that the Respondent discriminatorily enforced its rule against solicitation in violation of the Act. 448 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD these dates, when work was available and others with less seniority were hired. As the Trial Examiner himself observed, none of the three men in question was notably active in the union organizational drive. Never- theless, the Trial Examiner attributes knowledge of their union afl- iation to the Respondent substantially upon the bases of J. C. Malone's statement to employee Carey strongly indicating his sympathy for the Union, and Personnel Manager Daugherty's investigation in the plant concerning the Union. In the absence of other specific evidence in the record sufficient to establish an agency relationship, we cannot agree with the Trial Examiner that it is reasonable to infer that Daugherty learned of J. C. Malone's union affiliation through Carey, whom the Trial Examiner finds was an "old hand," but not proved in the record to be a supervisor. While we believe, as discussed above, that Daugherty's undercover investigation after his appointment as personnel manager sought as its objective the entrapment of key union protagonists in the plant, we are unable to find, as does the Trial Examiner, that these inquiries made by Daugherty afford a reasonable basis for attributing to the Respondent knowledge of the union affil- iation of such unobtrusive adherents as Verhelle and the Malones. Nor, as the Trial Examiner found, does the record reveal that the Re- spondent knew of the union or nonunion status of the remaining five or six laborers laid off. Unlike the Trial Examiner, we find that the preponderance of all the evidence does not support the conclusion that Verhelle, F. H. and J. C. Malone were discriminated against in viola- tion of Section 8 (a) (3) of the Act. 3. We agree with the Trial Examiner that employee Armour was discharged because of his union activities. The record shows, as found by the Trial Examiner, that Armour was not discharged on November 11, 1946, as the Respondent alleged, but was laid off on November 17, 1946, together with other welders, because of a shortage of materials. These men were told at the time of their lay-off that they would be recalled when materials became available. On Novem- ber 24, 1946, when. other laid-off welders had already been reemployed, and Armour also applied, he was then told that he was discharged. We can give no credence to the Respondent's contention that Armour was discharged because .he reported to work with a "hangover" and for the further reason that he failed to report for work without notifying the Respondent.25 Both grounds of alleged miscondWt on the part of Armour, even if they were not asserted by the Respondent as an after- 25 Although it was advanced in the Respondent's answer and at the hearing, the Trial Examiner does not specifically consider the latter of these two grounds in his Intermediate Report. JAQUES POWER SAW COMPANY 449 thought, were clearly condoned when the Respondent failed to dis- charge Armour upon the occurrence of each instance of alleged mis- conduct and certainly when the Respondent later included Armour in its economic lay-off.- Armour credibly testified that prior to his lay-off he had been warned by his foreman, Tracey, that "if [he] didn't stay away from those union meetings, [Tracey] was going to have to let [him] go." The record contains further testimony by Armour, which we credit, that when he questioned Tracey on November 24 concerning his discharge, Tracey.stated that Armour "knew the reason." This evidence we view as final proof of the Respondent's discriminatory motive as to Armour. 4. We agree with the Trial Examiner that Bullock and Hochkraut were discriminatorily discharged. In Bullock's case, we find particularly significant J. C. Jaques' state- ment to Bullock in February 1947 that he would not rehire him if he had not withdrawn from the Union.26 The Respondent contends that there was no work for Bullock until February 1947, and that the other laid-off welders rehired on November 24, 1946, were placed in different departments to work on different equipment. We can see no merit in this contention in the absence of any showing that such other welders hired on and after November 24, 1964, were required to employ different skills in welding than Bullock was capable of performing. Hoclakraut's case rests upon the Trial Examiner's acceptance of Hochkraut's version of his altercation with Daugherty on November 16, 1946. We find nothing in the record to warrant overruling the Trial Examiner in crediting Hochkraut 27 5. The Trial Examiner found that the discharges of Williamson and Harrah at the Respondent's Mineral Wells plant were in viola- tion of Section 8 (a) (3). We agree. Williamson, the union president, was included in an economic lay- off on January 20, 1947, and told that he would be notified when to return. Other laid-off employees junior to Williamson were rehired on January 2'7. However; Williamson, a journeyman molder, received no notice, to return to work during the 3-month period he remained in town, unemployed, waiting to be called by the Respondent. Al- though l Personnel Manager Corbin testified that it was not the Re- spondent's general practice, Willialnson's name had been removed from the Mineral Wells pay roll as of the date of January 27, 1947. 26 See Matter of D. D. Bean and Sons Co., 79 N. L. K. B. 724. a Our policy is not to disturb the Trial Examiner's credibility findings unless clearly erroneous. . . 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have considered the latter fact in conjunction with those found by the Trial Examiner in concluding that Williamson's discharge was discriminatory. Harrah was warned by Plant Superintendent Anthony, upon com- plaints of employees Strickland and Burton, not to solicit for the Union on company time,28 or to threaten employees with violence in doing so. Harrah denied engaging in such conduct. The Respond- dent asserts that because he received a further complaint from Burton, "practically the same as the first," Anthony discharged Harrah.29 In support of its contention that Harrah engaged in prohibited solici- tation, the Respondent introduced in evidence the unsworn statements of Strickland and Burton, bearing the date of January 29, 1947.30 Neither Strickland nor Burton appeared as a witness for the Respond- ent; nor was any other evidence adduced to prove that Harrah had in fact solicited, as alleged. Like the Trial Examiner, we find that Burton's statement, which is the Respondent's alleged basis for Harrah's discharge, is entirely innocuous. In any event, the record contains no support for the Respondent's contention that Harrah, having received a warning, had again violated its no-solicitation rule. Even assuming that Plant Superintendent Anthony, in discharging Harrah, thought that Harrah had again solicited on company time-his failure fairly to investigate to determine whether the alleged offense was actually committed, his ready acceptance of Burton's innocuous statenment, and the summary and extreme punishment he meted out to Harrah, dis- counts any theory that Anthony acted in good faith. We believe, like the Trial Examiner, that Harrah's legitimate activity on behalf of the Union was the real reason for his discharge. 6. We find the following conduct of the Respondent violative of Section 8 (a) (1), in addition to the specific findings described in the Intermediate Report : 31 (a) Cason's interrogation of employee Holland as to how he stood in the forthcoming election and his warning to Holland that the plant would shut down "if the election carries." Like the Trial, 21 The no-solicitation rule in effect at the Respondent 's Mineral wells' plant was apparently the same as the one described with respect to the Denison plant in paragraph numbered 1, supra. 29 As this further complaint on the part of Burton was Anthony' s alleged ground for dismissing Harrah, we deem it unnecessary to determine , as the Trial Examiner did, whether Strickland' s statement, assuming that it has evidentiary value, describes a threat of violence by Harrah , or by Strickland , or by both. 31 These statements are set forth in the Intermediate Report. 81 The Respondent 's purported neutrality statements described in its letters to the employees at the Denison and Mineral wells plants do not relieve the Respondent of its responsibility for its agents ' coercive remarks not referred to in its letters nor otherwise specifically repudiated . Matter of Columbia Carbon Company, 79 N. L. R. B. 62. JAQUES POWER SAW COMPANY 451 Examiner, we find that Cason was a responsible agent of the Respondent.32 (b) President Jaques' statement to Hochkraut while the latter was at work, "you're a bunch of damned fools to join the union. If I can help it, I won't let you have one here." (c) President Jaques' statement to employee Cruson, "I'm going to fight it [the Union] until the last drop. I'm not going to have it [the Union] if I have to close the doors and quit." THE REMEDY We have found that the Respondent has discriminatorily discharged 10 of its employees and that it has engaged in certain other unfair labor practices, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. We shall order the Respondent to cease and desist from engaging in such conduct. The Respondent's unlawful conduct, in our opinion, discloses a fixed purpose to defeat self-organization and its objectives. Because of the Respondent's unlawful conduct and its underlying purpose, we are convinced that the unfair labor prac- tices found are persuasively related to the other unfair labor practices proscribed by the Act and that a danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past. The preventive purpose of the Act will be thwarted unless our order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and to minimize strife which burdens and obstructs commerce, and thus to effectuate the policies of the amended Act, we will order that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the amended Act. We have found that the Respondent discriminatorily enforced its rule against solicitation for the purpose of interfering and discourag- ing membership in the Union, and shall enjoin the Respondent from so enforcing its rule against solicitation, or any other plant rule. Our order, however, is not to be construed to preclude the Respondent from prohibiting solicitation among its employees for union purposes dur- ing working hours, provided that the Respondent does not apply its rule in an unfair and discriminatory manner. se We note that Cason , whose uncontradicted testimony the Trial Examiner relied upon, in part, in finding Cason an agent of the Respondent , was an adverse witness for the General Counsel . See Rule 43 ( b), Rules of Civil Procedure for the District Courts of the United States . We find no merit in the Respondent 's contention , as detailed in its Excep- tion IV, that all testimony pertaining to the acts and statements of Cason is inadmissible. Such evidence is admissible subject to the establishment of an agency relationship. Cason was a competent witness to establish his own agency. Shama v. U. S., 94 F. 2d 1 (C. A. 8) (1938 ) ; Freeborn v. Davis, Tex. Civ. App., 122 S. W. 2d 645 . 647; Wlgmore on Evi- dence, § 1078. 857829-50--vol. 85-30 452 DECISIONS O.F.NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent , Jaques Power Saw Com- pany, Denison and Mineral Wells, Texas, and its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists , or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees , or by dis- criminating in any other manner with regard to their hire or tenure of employment or any term or condition of employment; (b) Applying or enforcing its rule . against solicitation, or any other plant rule, in a manner so as to discriminate against its em- ployees because of their union affiliation , activities, or sympathies; (c) Interrogating its employees in any manner concerning their union affiliation, activities, or sympathies , or threatening them with discharge or other economic reprisal because of their union affiliation, activities , or sympathies ; (d) Threatening its employees that it would close its plant or take other economic reprisals against them if they form or join any labor organization, or if a majority of them selects a labor organization to represent them in collective bargaining; (e) In any other manner interfering with, restraining or coercing its employees in the exercise of the right to self -organization, to form labor organizations , to join or assist International Association of Ma- chinists , or any other labor organization , to bargain collectively through representatives of their own choosing and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to C. E. Harris, Walter J. Reynolds , Gordon W. Simms, Philip J. Latona, H. C. Nunn, T. J. Armour, Frank E. Hochkraut, T. L. Williamson , and Roland E. Harrah immediate and full rein- statement to their former or substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges; (b) Make whole C. E. Harris , Walter J. Reynolds, Gordon W. Simms, Philip J. Latona, H. C. Nunn, T. J. Armour, Frank L. Hoch- kraut, T. L. Williamson , Roland E. Harrah, and Leroy Bullock for JAQUES POWER SAW COMPANY 453 any loss of pay each may have suffered by reason of the Respondent's discrimination against him in the manner provided in the section of the Intermediate Report entitled "The remedy," as modified herein; 33 (c) Post at its plant in Denison and Mineral Wells, Texas, copies of the notice attached hereto marked "Appendix A." 34 Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representa- tive, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or cov- ered by any other material ; (d) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminatorily discharged W. R. Chrisman, J. C. Malone, F. H. Malone, and Gerard Verhelle. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in INTERNATIONAL AS- SOCIATION OF MACHINISTS, or any other labor organization of our employees, by discharging or refusing to reinstate any of our employees, or by discriminating in any other manner with regard to their hire and tenure of employment, or any term or condition of employment. WE WILL NOT apply or enforce our rule against solicitation, or any other plant rule, in a manner so as to discriminate against our employees because of their union affiliation, activities, or sym- pathies. 33 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere, which would not have been incurred but for his unlawful discrimination and the consequent necessity of his seeking work elsewhere. Matter of Crossett Lumber Com- pany, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief shall be considered as earnings. Republic Steel Corporation v. N. L. R. B. 311 U. S. 7. 34 In the event that this Order is enforced by a decree of a United States Court of Ap- peals, there shall be inserted before the words, "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate our employees in any manner con- cerning their union affiliation, activities, or sympathies, or threaten them with discharge or other economic reprisal because of their union affiliation, activities, or sympathies. WE WILL NOT threaten employees that we will close our plant or take. other. economic reprisals against our employees if they join INTERNATIONAL ASSOCIATION OF MACHINISTS, or any other labor organization, or if a majority of our employees select a labor organization to represent them in collective bargaining. WE WILL NOT in any other manner 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 INTERNA- TIONAL ASSOCIATION OF MACHINISTS, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining, or other mutual aid or protection or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination : C. E. Harris T. J. Armour Walter J. Reynolds Frankie E. Hochkraut Gordon W. Simms T. L. Williamson Philip J. Latona Roland E. Harrah H. C. Nunn WE WILL MAKE WHOLE the employees named below for any loss of pay suffered as a result of the discrimination against them : C. E. Harris T. J. Armour Walter J. Reynolds Frank E. Hochkraut Gordon W. Simms T. L. Williamson Philip J. Latona Roland E. Harrah H. C. Nunn Leroy Bullock All our employees are free to become or remain members of the afore-mentioned union, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term JAQUES POWER SAW COMPANY 455 or condition of employment against any employees because of mem- bership in or activity on behalf of any such labor organization. JAQUES POWER SAW COMPANY, By --------------------------------- (Representative) ( Title) Dated-------------------- 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. Joseph Alton Jenkins, for the General Counsel. Messrs. Everett L. Looney and Donald Thomas (Looney and Clark), of Austin, Tex., for the Respondent, Messrs. Bliss Daffan and L. M. Fagan, of Houston and Fort Worth, Tex., re- spectively, for the Union, STATEMENT OF THE CASE Upon a third amended charge in Case No. 16-C-1439, and a fourth amended charge in Case No. 1G-C-1497, both filed on May 15, 1948, by International Asso- ciation of Machinists, herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued an Order Consolidating Cases, and a Complaint dated May 21, 1948, against Jacques Power Saw Company, Denison, Texas, 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 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, herein called the Act, and Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act as amended June 23, 1947. With respect to the unfair labor practices, the complaint as amended at the hearing2 alleges, in substance, that Respondent: (1) at its Denison plant dis- charged the following employees, on or about dates set opposite their names, be- cause they joined or assisted the Union : C. E. Harris-----------------------------------------September 6, 1946 J. C. Malone----------------------------------------September 10, 1946 F. H. Malone---------------------------------------- September 10, 1946 G. Verhelle------------------------ ---- -------------- September 10, 1946 W. L. Reynolds--------------------------------------September 17, 1946 Gordon W. Sims--------------------------------------September 17, 1946 Philip J. Latona------------------------------------- September 17, 1946 H. C. Nunn ------------------------------------------- September 17, 1946 T. J. Armour ---- ------------- ---------------------- November 11, 1946 LeRoy Bullock---------------------------------------November 15, 1946 F. E. Hochkraut--------------------------------------November 16, 1946 W. It. Chrisman----------- -------------------------- November 16, 1946 i The representative of the General Counsel is herein referred to as General Counsel, and the National Labor Relations Board as the Board. 2 Upon motion by General Counsel the names of three employees , alleged in the original complaint to have been discriminatorily discharged , were stricken. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and required his withdrawal from the Union as a condition for the reinstate- ment of LeRoy Bullock in February 1947; (2) at its Mineral Wells plant discharged, because they joined and assisted the Union, T. L. Williamson on January 27, 1947 and Roland E. Harrah on January 31, 1947; and (3) at each of its plants-vilified the Union, interrogated employees concerning their union affiliations, utilized the-services of spies and informers to keep itself advised as to union activities, and otherwise warned its employees to refrain from as- sisting or becoming members of the Union. Copies of the charges and the complaint, accompanied by a notice of hearing, were duly served upon the Respondent and the Union. In its answer, dated May 29, 1948, .the Respondent denied having engaged in the unfair labor practices alleged, although admitting that it had "strongly urged its employees not to designate" the Union as their representative, and set out certain affirmative allegations as to the separate discharges which will be discussed fully below. Pursuant to notice, a hearing was held at Denison and Mineral Wells, Texas,, from June 29 to July 10, 1948, inclusive, before the undersigned Trial Examiner, designated by the Chief Trial Examiner. All parties were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. At the opening of the hearing a motion made by the Re- spondent to dismiss the complaint was denied.' At the close of the hearing a motion was granted to conform the pleadings to the proof in minor matters such as spelling of names, dates, etc. After the receipt of evidence, General Counsel argued orally before the Trial Examiner, said argument appearing in the official transcript of the proceedings. Leave was granted to all parties to file proposed findings of fact and conclusions of law and briefs with the Trial Examiner. A brief has been received from the Respondent. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following : FINDINGS or FACT 1. THE BUSINESS OF THE RESPONDENT In 1946 the Respondent operated as a partnership consisting of J. C. Jacques and his two sons. In 1947 the partnership became a Texas corporation. Its principal office and place of business is in Denison, Texas. The Respondent is engaged in the manufacture of power saws, earth boring machines, winches, tractors and related products. It operates two plants ; one in Denison, the other in Mineral Wells, Texas ; both plants are involved in these proceedings. At each of the two plants the Respondent annually purchases raw materials valued at more than $50,000, 25 percent of which comes from sources outside the State of Texas. And at each of the same plants products valued at more than $50,000 are manufactured, 25 percent of which are sold and transported outside the State of Texas. The Respondent concedes that it is engaged in commerce within the meaning of the Act. 3 The motion was based upon the claim that the complaint had not been issued in con- formity with Section 10 (b) and Section 9 (f) and (g) of the amended Act. JAQUES POWER SAW COMPANY 457 II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists is a labor organization admitting, to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and issues The major events at issue occurred in the fall and winter of 1946-1947, during and shortly after the Union's unsuccessful efforts to organize the Respondent's employees at Denison and Mineral Wells. Union organization began at the Denison plant in July 1946, and at the Mineral Wells plant in the following September. Board elections were held at each plant ; at Denison on October 3, 1946, and at Mineral Wells on January 30, 1948. At both plants the Union lost the election. At Denison, during the period described above, 12 discharges occurred which are in issue ; two at Mineral Wells. The Respondent admits, in effect, that it dis- charged certain of its employees because of their union activities, but alleges that-sdch activities consisted of violating a rule against soliciting on company time. Also involved as issues are the conduct and remarks of various supervisors.. B. The discharges and other material events at Denison 1. Forming of the Union local ; its demand for recognition During August and early September 1946, organizational meetings were held at a local union hall. At this period Henry J. Murphy, a Grand Lodge Repre- sentative, was in charge of the organizing campaign. On September 4 Murphy advised the Respondent, by letter, of the Union's claim that it represented a "substantial majority" of the Denison plant employees, and requested a negoti- ating conference. This letter, stamped as received on September 4, 1946, was placed in evidence by the Respondent. The Trial Examiner finds that by September 4 the Respondent had knowledge of the Union' s claim, and was aware of organizational activities among its employees. 2. The discharges of C. E. Harris, Walter L. Reynolds, Gordon W. Sims, Philip. J. Latona, and H. C. Nunn a. Events and evidence bearing upon the discharges Although differing in some details, the discharges of these five employees fall naturally into a single group. All occurred within a few days after the Respond- ent received formal notice of the union claim. All five employees had been active in the organizational campaign. Sims, Latona, and Reynolds were offi- cers of the local. As to each discharge the Respondent claims that it was imposed because the employee had violated a company rule by "soliciting" for the Union on company time. Harris, a stockroom employee, was the first to be discharged. His work, in. delivering supplies, took him to various parts of the plant. As a witness he admitted having handed cards to employees on "company time." On September 6, according to his credible testimony, he was discharged by his foreman, 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leonard Melvin, and was told by Melvin that it was "because of this union deal."' On September 10, J. C. Jacques, president of the Respondent, called all em- ployees at the Denison plant together, on company time, and told them, in substance, that while it was their privilege to "belong to the union," he did not "want any contract with" it. He appealed "for better cooperation," and asked "the Lord to protect" the employees so that they "could continue being one big, happy family."' At the same meeting of his employees, Jacques announced that he was appointing Joe Daugherty, then a nonsupervisory machinist, as personnel manager, a position which theretofore had not existed at the plant. Except for J. C. Jacques, Daugherty was given final authority for the discharge of any employees. Jacques testified that, because he knew there was union activity in the plant, he promoted Daugherty to this high position.° Daugherty himself, on September 10, was well aware that his fellow employees were organizing.' On September 17, a week after his appointment as personnel manager, Daugh- erty discharged his former fellow-employees Reynolds, Latona, Sims, and Nunn, informing each of them that his action was taken because they had "solicited" for the Union on company time. b. Conclusions as to the discharges The Respondent alleges in its answer that Harris, like the other four employees named above, was discharged "for persistent violation of a company rule against employees' soliciting on company time during working hours. ." A written statement, bearing the date of September 9, 1946, and the signature of Foreman Melvin, Paymaster Weicher, and George Sides, a stockroom fellow- employee of Harris, was placed in evidence and reads as follows : We, the undersigned, Leonard Melvin, C. M. Weicher, and George Sides, do hereby state and affirm that C. E. Harris, an employee of the Jacques Power Saw Company did "sign up" two men for unionizing, (sic) while on Company's time. For this reason Mr. C. E.. Harris was discharged, September 6, 1946. The testimony of Melvin, a witness for the Respondent, is in serious conflict not only with the Respondent's answer but also with his own written statement, purportedly made shortly after he discharged Harris. Melvin flatly denied that 4 Melvin denied having given this explanation to Harris for this discharge. As noted more fully in the next section, Melvin's testimony at the hearing is sharply contradicted not only by the Respondent's answer, but also by a statement he signed for the Respondent on September 9, 1946, within a few days after the discharge of Harris. Under these cir- cumstances, small reliance can be placed upon Melvin's testimony. 5 The quotations are from Jacques' own testimony, or from that of Souter, a former foreman. ° The finding rests upon the following excerpt from Jacques' testimony : Q. At the time you made up your mind to' put him in that position, you knew there was union activity in the plant, didn't you? A. That is why I put him in that position. The Trial Examiner credits this portion of Jacques' testimony, uttered with impulsive candor, despite Jacques' later efforts to change his testimony on this point. ° The finding is based upon Daugherty's own testimony. Although while on direct examination, as a witness for the Respondent, Daugherty said he heard only "rumors around," by September 10, of union activity, he later testified that while still working as a machinist, employees Nunn and Latona had asked him to join the Union "several times a day.,, JAQUES POWER SAW COMPANY 459 he discharged the employee because he solicited for the Union! According to his testimony, he observed Harris give "cards" to the other three employees in the stockroom on only one occasion, a week or two before September 6. Also according to Melvin, this was the only -occasion when he heard Harris say anything about the Union. After telling Harris that he "couldn't have that on company time," the employee did not thereafter violate his instructions. The testimony of both Paymaster Weicher and employee Sides further de- tracts from the validity of the Respondent's contention. It is clear that, what- ever Weicher and Sides may have observed as to Harris, they made no report of the' events until after Harris had been discharged by Melvin. Weicher testified that before the discharge he had seen the employee hand a "small card," which he could not otherwise identify, to another employee near the toilet, but that he had told no one about it until asked by Daugherty to "sign a statement," later on. Daugherty, it has been noted,, was not made personnel manager until September 10, the day after the above-quoted statement was purportedly made at his request. Sides testified that he asked Harris for a union card in the stockroom, but had no discussion with him about it. The only testimony of Sides regarding his report of this or any other union incident. to management is to the effect that Danghtery asked him to sign a statement on September 9 or "afterwards." Contrary to the Respondent's contention, Melvin claimed that he discharged Harris because "he would be out of the stockroom on errands in the plant, deliveries, where it should take maybe ten minutes, where it would take him half an hour." No specific evidence supporting this claim was offered. In view of the sharp conflict between the Respondent's claim and the testimony of its own witnesses, as to the reason for the discharge of Harris, the Trial Examiner concludes and finds that there is no merit either in the contention of the Answer or in the unsupported claim of Melvin at the hearing. On the contrary, it is found that Harris was discriminatorily discharged because of his legitimate activities on behalf of the Union. As to the other four employees, all discharged on September 17 by Daugherty, the major questions raised by the evidence are: (1) whether or not at that time the Respondent actually had a rule against "solicitation" in the plant, and (2) if such a rule existed, whether or not it was discriminatorily invoked against, these four. A vast amount of contradictory and confusing testimony was elicited from many witnesses as to the existence of a posted rule against solicitation, reading: NOTICE It is the policy of this Company that there shall be absolutely no soliciting of any nature on Company time Witnesses called by the Respondent testified variously that the above or a similar notice was first posted from s&rnetime in 1944, to the early part of 1946, and that from 2 or 3 to 15 or 20 copies of said notice were posted. at the Denison plant. Witnesses called by the General Counsel testified, in general, 8 Q. . . . Well, did you discharge him actually for soliciting for the Union , or for some other reason? A. The Union had nothing to do with it. Q. The Union, the fact that he solicited for the Union, had nothing whatsoever to do with the discharge, is that right? A. Yes,'sir, that's' right. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD o that no such notice was posted until about the time of the Board election, held on October 3, 1946. Jacques testified that it was not until January or February, 1946, that he ordered such notices posted. Daugherty testified that although be had seen similar notices posted in February 1946, after lie became personnel manager he had a "new bunch" of such signs run off from a "blue print" .already in the files. In view of Daugherty's testimony , which contains no reasonable explanation of why he had a "new bunch " run off if such notices .already had been posted a few months before that ,. and.the inconsistent testi- mony of other witnesses for the Respondent as to when such notices were first posted, the Trial Examiner has serious doubt that, whatever may have been the facts as to previous years, any such rule was generally posted or published during the Union's organizing campaign until after Daugherty became personnel manager. However, other circumstances make it unnecessary to resolve the conflicting testimony , and to determine the exact date when any such rule was made known to employees. . Many witnesses including those called by the Respondent , testified as to several instances of general solicitation among the employees , in the plant and on company time, for other organizations and for contributions to different causes. The testimony of all management witnesses is in agreement that, even if such a rule was in effect , it was never invoked except against employees active on behalf of the Union. The Trial Examiner finds that Jacques' speech of Sep- tember 10, during working hours , must be reasonably construed as "solicitation", on his part, against the Union, since according. to his. own testimony he told them he "didn't want any contract with the Union ." ° As the Board and the Courts have previously found," where discriminatorily enforced , such a rule against solicitation is invalid. No credible evidence was offered to show that any of the four employees neglected his work to any appreciable extent in "soliciting" for the union, nor was any such claim advanced by the Respondent. The Trial Examiner concludes and finds that the no-solicitation rule at the Denison plant, even if it existed, was discriminatorily enforced against the four employees and that the Respondent 's defense is therefore invalid. The Trial Examiner further finds, as in the case of Harris , that the Respond- ent's real reason for the discharge of Reynolds , Sims, Latona, and Nunn was to discourage membership in the Union and because of their activities on behalf of the Union. 3. The discharges of Gerard Verhelle , J. C. Malone, and F. H. Malone a. Events and evidence bearing upon the.discharges On September 10, 1946, the day Daugherty was promoted to personnel man- ager, the above-named three employees were carried on the pay roll as assigned to the "labor gang," the foreman of which was Buster Britton, Jacques' brother- in-law. According to Britton's testimony , he asked Daugherty on September 10 to lay off a number of men on his gang with the least seniority, having been ° At this point the Trial Examiner desires to point out that, in view of Section 8 (c) of the amended Act, and of the Board ' s recent rulings as to an employer' s rights to voice his opinions regarding union organization , he does not find that Jacques' speech was an unfair labor practice , violating any section of the Act, nor does he consider the incident, or its possible implications , in determining management 's real motive for the .discharge of any employee. 10 See American Furnace, 158 F. 2d 376 (C. A. 7). JAQUES POWER SAW COMPANY 461 instructed by Jacques to curtail his force. On the same day Daugherty selected eight or nine employees for lay-off, among them Verhelle and the two Malone brothers. On or about September 13 the three employees returned to the plant, seeking reemployment. Reinstatement was refused by Daugherty. In oral argument, General Counsel contended that the three employees were "refused reemployment when they appeared for reinstatement on September 13th after having been discharged on September 10th because they were active in the union." The complaint alleges that the discrimination occurred on Septem- ber 10, the day of the lay-off. The Trial Examiner finds insufficient evidence to support this allegation of the complaint. There is no convincing evidence that the lay-off of the eight or nine men was not for economic reasons, as management representatives stated at the hearing. Although the two Malone brothers and Verhelle had, before September 10, signed union cards, the Union or non-Union status of the remaining five or six employees, laid off at the same time, is not fully revealed. Nor, in fact, did the charge filed by the Union on September 24, 1946, allege that any discrimination was visited upon the three men on September 10, but only that reemployment was discriminatorily refused on September 13 and thereafter. As to Daugherty's refusal to reemploy them on September 13 and thereafter, .however, the evidence is clear and the Trial Examiner finds that reinstatement was in fact denied to them while others in the general lay-off were rehired and new workers employed. The question remains as to whether or not such refusal was because of their union affiliation. b. Conclusions as to the discharges Serious doubt upon the validity of the Respondent 's denial of discrimination in rehiring is cast by the conflicting and confused contentions made by its rep- resentatives before, during , and after the hearing . In its answer the Respondent alleged : These men had never been employed on a permanent basis, but rather, had been employed in construction work that was completed at the. time of their discharge. Respondent says that . the work being completed, it had no use or need for the services of these men and consequently did not employ them. During the hearing, counsel for the Respondent stated, as to Verhelle: My position is, Mr. Examiner , we have maintained since this thing was first filed a year and a half ago, made our position known to the Board at that time. Our position with respect , to this man was that he had been laid off and that the company didn 't have his address , and that he hadn't been back out there to report to work. Work was available for him. In its brief, the Respondent contends : From the evidence it clearly appears that the.persons who were rehired were available when they were needed, and there is not the slightest thing to indicate that the Malones and Verhelle would not have been rehired if they had applied for work at a time when there were vacancies. As to the claims of the Answer, credible evidence establishes that neither Verhelle nor J. C. Malone were employed in construction work "at the time of the lay-off." Although attached to the "labor gang" for pay-roll purposes, both 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men were then working under an foreman, Verhelle running a grinder, and J. C. Malone operating a saw. The claim that after September 10 their work was no longer needed is flatly contradicted, at least as far as Verbelle is concerned, by counsel's statement during the hearing that "work was available" but the "company didn 't have his address." Daugherty, a witness for the Respondent, testified that he had the addresses of the three men, but "never made any attempt" to communicate with them. Furthermore, according to a letter to all his Denison employees, Jacques quoted a talk purportedly given by him on September 25 to "you here in the plant," in which he refers to charges having been filed with the Board by the Union regarding the discharges of "certain employees because of union acti- vities." The original charge, naming only H. C. Harris, was filed with the Board on September 10; an amended charge, first naming Verhelle and the two Malones, was filed on September 24. It is plain, and the Trial Examiner finds, that Jacques has been aware, at least since September 25, 1946, that these three men were seeking reinstatement. During the hearing, and after each of the three men had testified, the Respond- ent offered them unconditional reemployment. No offer of back pay was made. Apart from the conflicting position taken by the Respondent, a summary of the pay-roll records, placed in evidence, shows that two of the men laid off on September 10 with less seniority than Verhelle or the Malone brothers were rehired on September 15 and September 22. Other credible evidence establishes that at least one new employee was hired on the labor gang on September 15. The Trial Examiner concludes and finds that the same seniority principles, which Daugherty and Britton claimed were used in the lay-offs, should equitably have been invoked in rehiring, and that the two Malone brothers should have been reemployed on September 15 and Verhelle on September 22, 1946. By refusing and failing to reemploy these three men, upon the above dates, the Respondent constructively discharged them. It does not appear that any of the three men thus discriminated against were notably active in the union organization. All three, however, had signed union cards. Verhelle I ad solicited other employees to attend a union meeting, and was on the picket-line during a strike of the employees, whch began on September 17. A few days before the lay-off of September 10, Verhelle and F. H. Malone were among the group of laborers called together by Foreman Britton and told by him, in effect, that the company did not want a union there, and if the plant went Union that their wages would be cut and no overtime allowed" As to J. C. Malone, he was asked by 3'. C. Carey, before the layoff, what he thought of the Union, and when he replied that he was "pretty strong . . . for it," was warned that "somebody was going to get into trouble." The exact supervisory status of Carey is not established by the record. It is clear from all evidence bearing upon the point, however, including his own testimony, that he frequently served as a strawboss, or leader, in handling special groups of u The finding as to 'Britton 's remarks is based upon the credible testimony of em- ployees Verhelle , F. H. Malone , and Andrew Muylle. Muylle is no longer employed by the Respondent, is not seeking reinstatement , and, so far as the record reveals , has no per- sonal interest in the outcome of this proceeding . Britton denied making the specific threats referred to above, but admitted the occasion of having called the labor gang together. According to Britton, he called the gang together in order to tell them that they would not be discriminated against if they. joined the Union .: Having, observed the wit- nesses on this disputed point, the Trial' Examiner is unable to accept Britton 's denial as true. JAQUES POWER SAW COMPANY 463 the labor gang. As Carey expressed it, he was an "old man, hand, knew all about the plant; but I had no authority." It is undisputed that it was Carey who was selected to inform Verhelle and Malone on September 10 of their lay-off and to give them their pay checks. Although the evidence is insufficient to establish clear supervisory power on Carey's part, thus attaching to the Re- spondent responsibility for his coercive remarks about the Union, it is reasonable to infer that through. him Daugherty learned of J. C. Malone's union affiliation. In any event, testimony of employees Martin and Sides, as well as of Paymaster Welcher, establishes that immediately after becoming personnel manager, Daugherty began making inquiry throughout the plant regarding the Union and those active on its behalf. It is. concluded and found that Daugherty knew, on September 13, 1946, of the union affiliation of Verhelle and the two Malone brothers. The Trial Examiner is convinced, and finds, that Daugherty's refusal to rehire the two Malone brothers on September 15, and Verhelle on September 22, at a time when, as found above, work was available and others of less seniority were hired, constituted discrimination because of their union adherence. It is further found that by thus discriminating against them, and by the coercive remarks of Foreman Britton, the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. 4. The discharge of T. J. Armour and LeRoy Bullock a. Events,and evidence bearing upon the discharges Both Armour and Bullock were working as welders under Foreman Buster Tracey in November 1946. On or about November 17, the two employees, to- gether with three or four other welders, were laid off, due to lack of materials. When others were recalled, a week later, Armour and Bullock were not rehired. others were recalled, a week later, Armour and Bullock were not rehired. Upon learning that others were returning to work, Armour reported at the plant, but was told by Daugherty that he was discharged. When Bullock sim- ilarly reported he was informed by Daugherty that his work and "attitude toward the company" was unsatisfactory, and he was not then rehired.12 Bullock was later rehired in February 1947,, under circumstances described below. It is the General Counsel's position that Armour and Bullock were discrimina- torily refused reemployment at the end of the general lay-off in November 1946. In its answer, the Respondent contends that Armour was discharged on November 11 because he had previously reported for work with a "hangover," and that Bullock, in effect, was not reemployed until February 1947, because his services were not needed before then. Responsible representatives of management were plainly aware of the union activity of both Armour and Bullock. Foreman Tracey admitted as a witness that he knew Armour had "talked to all the boys" about the Union, and that he knew Bullock was a union member. Furthermore, a few days before the lay-off Earl Watson, who had been vice president of the Union and among the group of its early organizers, had been promoted by Jacques to welder-foreman. Bul- lock at the time was also an elected officer of the Union. As to the Respondent's contention with respect to Armour, that he was dis- charged on November 11 because of previous "hangovers," credible evidence "Daugherty denied saying anything to Bullock on this occasion about his "attitude." As previously noted, Daugherty was an unreliable witness, and the finding rests upon Bullock's credible testimony. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD establishes that he was not discharged on that date, but was laid off along with other welders because of shortage of material several days thereafter. Although Armour readily admitted having once taken a drink while on the job, his testi- mony is undisputed that this occurred long before the start of any union activity at the plant. He denied and there is no evidence that he had a "hangover" on ,the clay of the lay-off. It is reasonable to believe that if Armour had actually been discharged for "hangovers," such disciplinary action would have been taken on some occasion v hen he was incapacitated for work. Furthermore, persuasive evidence that "hangovers" were not considered as serious derelictions by the Respondent is the undisputed testimony of former General Foreman Jack Richardson that the night before the Board election, on October 3, he was given $100 by "Johnny" Jacques, a member of the firm, to purchase liquor for all the employees at a "party." When Richardson demurred about buying so much' liquor, because some of the "boys" might not "show up" the next day, Jacques declared that he "didn't give a damn." Finally, since his discharge by the Re- spondent, Armour has been a welder foreman with another company for a year and a half, earning nearly twice as much as he received at Jacques' plant, facts which cast doubt upon Tracey's unsupported claim that Armour was a "poor" welder, and undependable. The Trial Examiner is convinced by the preponderance of evidence, and the demeanor of the witnesses while testifying as to Armour, that the Respondent's contentions with respect to his discharge are without merit. As to Bullock, the Respondent's claim that there was no work for him until February 1947, is refuted by testimony of its own paymaster, who stated, after examination of his records, that three new welders, not previously employed by the Respondent, were hired between November 15 and February 1947. Bullock again sought reemployment in February 1947. He was reinstated by Jacques, after the employee told him that he had obtained a withdrawal card from the Union, and Jacques had stated that otherwise lie would not rehire hi m.'3 b. Conclusions as to the discharges The Trial Examiner is convinced that their known union activities was the real reason for the Respondent's refusal to reinstate Armour and Bullock in November 1946. Armour was warned by Tracey that if he did not keep away from union meetings he would be fired.14 As noted, when Bullock was finally rehired, it was only upon his assurance that he had withdrawn from the Union. The Trial Examiner concludes and finds that Armour and Bullock were discriminatorily refused reemployment, and therefore constructively discharged, on or about November 24, 1946, because of their union activities. It is further found that by thus discriminating against the two employees, and by the above-quoted warning by Tracey and Jacques' statement to Bullock in Feb- ruary 1947, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. 13 Although contradicted by Jacques, the finding rests upon Bullock's credible testimony and the Trial Examiner's observation of both witnesses. 14 Tracey denied thus warning Armour . Tracey was an unreliable witness. Not only was his testimony regarding rehirings after the lay-off refuted by Paymaster Weicher, as noted above, but his own testimony is self-contradictory. At one point in his testi- mony he stated he "cautioned" Armour and Bullock about passing out union cards-at another he denied they were passing out cards. JAQUES POWER SAW COMPANY 5. The discharge of Frank E. Hochkraut a. Events and evidence bearing upon the discharge 465, Frank E. Hochkraut, a machinist and recording secretary of the Union," was. discharged by Daugherty on November 16. Together with Earl Watson, vice president of the Union, Hochkraut had served as an official observer for the Union at the Board election on October 3. He was on the picketline during a 3-day strike, called by the Union in protest against the discriminatory dis- charges in mid-September. Daugherty admitted that he was aware of Hoch- kraut's union affiliation. The events surrounding the discharge are in sharp dispute between Hochkraut and Daugherty. Hochkraut testified, in substance, (1) that he was summoned to Daugherty's office; (2) that upon arriving Daugherty stated that he had some complaint about him as to his activities outside the plant and warned him to "watch his step"; (3) that after inquiring about the time and while Hochkraut was looking at his watch Daugherty struck him, knocked him down, and kicked him; and (4) that Daugherty thereupon fired him for fighting. Daugherty, on the contrary, testified in substance that he had called Hochkraut to the office to caution him about his- poor workmanship upon complaint of General Foreman Richardson; (2) that as he "murmured" something to Hochkraut while closing the door, Hochkraut struck him; and (3) that after consulting Jacques he had fired Hochkraut for fighting. Daugherty also testified that before the discharge not only had Richardson complained about Hochkraut's workmanship, but also that Jacques and Fore- man Carl Bolton had registered similar complaints. Daugherty's testimony as to Jacques' complaint is wholly refuted by Jacques himself who testified that he "had never" discussed Hochkraut with Daugherty until after the fight occurred. Bolton was not called as a witness. General Foreman Richardson, under whom Hochkraut worked, testified only that he had neither discharged nor issued instructions to discharge the employee. And Superintendent Clyde Faulks testi- fied that he knew of no complaint about Hochkraut's workmanship. In view of this testimony of Richardson, Jacques, and Faulks, the Trial Exam- iner can place no reliance upon Daugherty's version of his altercation with Hochkraut. Support for Hochkraut's testimony on this point was provided by the undis- puted fact that Hochkraut received $300 compensation for his injuries, inflicted by Daugherty, from an insurance company after a ruling by the Texas Com- pensation Board. The Trial Examiner finds that Hochkraut's version of the incident is the more credible, and that Daugherty in fact precipitated the fight. b. Conclusions as to the discharge The Trial Examiner concludes and finds that Daugherty seized upon an incident, instigated by himself, and used it as a pretext for ridding the plant of one of its most active union leaders. It is further found that the real reason for the discharge was Hochkraut's union activity. 16 Hochkraut became secretary after the discriminatory discharge of Reynolds , described above. . 466 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD 6. The discharge of W: R. Chrisman a. Events and evidence bearing upon the discharge. Chrisman, a mechanic, first employed by the Respondent in June 1946, was discharged on November 16, 1946. The testimony concerning the actual discharge is sharply conflicting. Accord- ing to the employee, lie was suddenly and without warning discharged by Superintendent Faulks, a few minutes after°he had seen Faulks and J. C. Jacques talking together behind him. When he sought the reason from his foreman, Carl Bolton, the latter said he knew of none, and that he had no complaint about his work. Bolton was not called as a witness. Faulks testi- fied that he could not "place" Chrisman, had no reason to discharge the employee, and was "reasonably sure" he had had nothing to do with the discharge. The substance of Jacques' confused testimony on the point is to the effect that he fired Chrisman because a "lot of bolts and nuts" had been found in an earth- boring machine, which had been shipped out. According to Jacques, it was "purely sabotage, or just negligence, somebody put them in there," and the re- sponsibility was Chrisman's, since he was "supposed to tend to it, and closed it up." On cross-examination Jacques testified that Foreman Robbins was also responsible. When it was pointed out that Robbins had been fired about 2 months before this occurrence, Jacques declared, "that wasn't what I fired him [Robbins] for . . . That would be enough to fire him, you betcha your life . . . I had a thousand other things to fire him [for], besides that." In contradis- tinction to his previous testimony he said, "You can't connect the two men no way, and claimed that he fired Chrisman "because I checked on his work and found out he wasn't any mechanic." The undisputed testimony of Chrisman is to the effect that he received an increase in pay, to the "top rate" for mechanic, in September, a fact which casts doubt upon Jacques' unsupported comment upon the employee's workmanship. b. Conclusions as to the discharge The testimony of Jacques, the only management representative to cover the point, lacks coherence and fails to carry conviction. The Trial Examiner is unable to find that Chrisman was discharged for the reasons advanced by Jacques. On the other hand, the circumstances surrounding the discharge as described by Chrisman himself fail to support a reasonable inference that the real reason for the discharge was his union membership. He was not an officer in the Union, as was Hochkraut, discharged the same day. According to his own testimony, he was not an active organizer of the local, and only attended meetings occasionally. He said, "I didn't do too much on the union . . . I knew what I believed . . . and let the other fellow alone." Apparently his only outstanding activity on behalf of the Union was to take part in the brief strike, as did many others, which occurred nearly 2 months before his discharge. Furthermore, Chrisman's discharge is alien to the pattern of discriminatory discharges, all made by Daugherty after his appointment as personnel manager. Although the case is not free from doubt, the Trial Examiner concludes and finds that the preponderance of evidence fails to sustain the allegations of the complaint as to Chrisman. JAQUES POWER SAW COMPANY 467 c. The discharges and other material events at Mineral Wells 1. Forming of the Union local, demand for recognition At Mineral Wells the Union began holding organizational meetings in Septem- ber 1946. On September 26, Jacques distributed to all employees a printed letter, informing them that he knew of the Union's attempt to organize at the plant and advising them, among other things, to "consider carefully whether you want to sign such a (union) card." 18 Early in October the Union filed a petition with the Board for certification of representatives. An election was held on January 30, 1947. 2. The anti-Union activities of Ernest Cason at Mineral Wells Ernest Cason was a welder at the Denison operations during the period of the Union's attempt to organize that plant. He attended open union meetings, but did not join. At the same time Cason served as an informer against his fellow employees. Documents placed in evidence by the Respondent establish that Cason informed Personnel Manager Daugherty that employees Sims and Reynolds, whose discharges have been discussed above, had asked him to "par- ticipate in Union activities." Upon the basis of such information, in part, Daugherty claimed that he had discharged the two employees. On January 20, 1947, Cason suddenly appeared on the Mineral Wells pay roll, under circumstances which are not reasonably explained. According to his testimony, he "walked out of" his job at Denison one night after working hours, without notifying anyone, drove to Mineral Wells, and was hired the next day by Plant Manager Byron McCroskey at the' Mineral Wells plant, as a welder and castings inspector. McCroskey, however, denied that he had hired Cason, but said he thought that Personnel Manager George Corbin had received Cason's application and had hired him. Corbin was not questioned about Cason. In any event, it appears that Cason remained on the Mineral Wells pay roll from January 20 to March 1947, without interruption of his employment, although on the same day of his hiring, Corbin laid off 6 employees, and on the following day between 75 and 80 employees, upon Jacques' orders and claim, made to Corbin on January 20, that the plant was suffering a "terrific loss." The Re- spondent offered no reasonable explanation for this inconsistency in the hiring of Cason and the lay-off of most of the other regular employees. Although Manager McCroskey disputed Cason's testimony that he had been an assistant superintendent while at Mineral Wells, uncontradicted evidence establishes that while at this plant Cason effectively recommended the discharge of one employee, and that he supervised, instructed, and directed an undeter- mined number of men in their work. It is likewise undisputed that within 4 or 5 days after coming to Mineral Wells he was instructed by the plant man- ager to "break up" any union activity he observed in the plant during work- ing hours. From the preponderance of evidence, the Trial Examiner concludes and finds that Cason served as a responsible agent, within the meaning of the Act, for the Respondent while at Mineral Wells, and that any unfair labor practices engaged in by him are attributable to the Respondent. "The Trial Examiner makes no finding that this letter, or others similarly distributed by Jacques, constituted a violation of the Act. Their contents and distribution, however, clearly establish that the Respondent was aware of the union activities among its em- ployees at Mineral Wells. 857829-50-vol. 85-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The general lay-off ended 3 days before the Board election. Upon his re- turn to work, employee George Thorp was asked by Cason how he intended to vote, and was warned that if the shop "went" union, Jacques would move the plant and everybody would be out of work. Cason also queried employees Davis, Harrah, and Boatman as to their voting intentions, and similarly warned them about a possible shut-down 17 Cason's conduct, as described above, clearly interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act 18 3. The discriminatory discharges a. The discharge of T. L. Williamson (1) Events and evidence relevant to the discharge Williamson, a journeyman molder, was a member of the Union when he began to work for the Respondent in June 1946. In September, a number of dis- satisfied fellow employees asked him to invite a union representative to Mineral Wells. Williamson did so, and within a few days the first organizational meet- ing was held at his home. Superintendent Smith inquired about the meeting, before it was held, and Williamson told him he was welcome to attend. Soon after the meeting Jacques came to him and asked him to identify the union representatives who were present at his home. Jacques further told Williamson that none of his plants were "Union" and did not intend that they should be. One afternoon, somewhat later, Smith called Williamson into his office and advised the employee to keep "all this [union] stuff quiet," commenting that Jacques could be talked into anything, but driven into nothing. The Trial Ex- aminer concludes and finds that by January 20 management was well aware that Williamson was the chief leader of the union activities among the employees at Mineral Wells. He was, in fact, president of the local. On January 20, Williamson and 5 other employees were laid off. The per- sonnel manager gave Williamson and the others their pay in full, and at that time told Williamson that he would be notified when he was to return to work. Although others laid off the sane and the following day were later notified to resume work on January 27, Williamson was not similarly instructed, and. there- fore slid not return to work on that date. Three days later Williamson served as a union observer at the Board election. His own vote was challenged. The Respondent's counsel, present on that 'occasion, remarked that Williamson had been offered his job back. Williamson flatly denied it. Someone nearby sug- gested to the attorney, "There lie is. Ask him does he want his job back." Coun- sel, however, made no offer to Williamson.*" 17 Cason was not questioned concerning these specific remarks. 18 The Trial Examiner , in making this finding, does not ignore the fact that in his letter to all employees on September 26 Jacques declared that whether or not employees joined the Union . there would be no discrimination against them, and that his supervisors had been instructed not to influence them against the Union. The coercive effect of actual interference may be mitigated under some circumstances by such disavowal by manage- ment. Here, however, as found above, two Union leaders were discriminatorily discharged. The employees reasonably could place no more reliance upon other statements in his letter. Finally, Cason did not appear at the mineral Wells plant until January 20, shortly before the election. 19 Counsel for the Respondent conceded, at the hearing, that Williamson's version of this incident, upon which the finding is based, was accurate. JAQUES POWER SAW COMPANY 469 Williamson has never been notified to return to work. Personnel Manager Corbin testified that work was available for him, had he been recalled to work on January 27. Superintendent Smith testified that it was the practice to notify, or to send for, laid-off employees when work became available. (2) Conclusions as to Williamson The preponderance of evidence leads to the conclusion and it is found that Williamson was constructively discharged on January 27, 1947, and thereafter denied reinstatement, because of his leadership in the Union, and that thereby the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. b. The discharge of Roland E. Harrah (1) Events and evidence relevant to the discharge Roland E . Harrah , a laborer , was a member of the Union before coming to work for the Respondent in November 1946 . He thereafter became an active employee organizer during his lunch periods and before work . On January 80, the day of the Board election , Plant Superintendent R. C. Anthony called Hurrah to his ofHcc , declared that he had been informed that he was "talking union" around the shop, and warned that he would be fired if similar information again reached him. The next morning , January 31, Anthony again summoned him to the office, gave him his pay check , stated that he "had heard it again," and discharged him. (2) Conclusions as to the discharge Anthony claimed, as a witness, that he discharged Harrah because the employee. had not heeded a warning previously given. The warning was based, he said, upon complaints received by him from two employees that Harrah had "ap- proached them and talked union to them, and even threatened violence if they didn't join . . The day after the warning, according to Anthony, one of the. employees again registered a complaint, "practically the same as the first." In support of Anthony's claim, the Respondent introduced into evidence two, documents, which counsel for the Respondent said he typed from oral statements made to him by the employees, but neither of which bears either the signature or seal of a notary. Those documents read as follows : I, Lee Strickland; being first duly-sworn, on oath, say : Somewhere around' eleven o'clock a. in. yesterday, January 28, 1947, I was working on a grinder and next to me was Roland Harrah on another grinder. He said to me "You are a new man a'int (sic) you" and I said "Well, yes sir, I been here three days." He said "Are you going to vote for the union. I said "No, I am not going to vote for the union." He says "Dont't (sic) you know if you don't vote for the union we will throw a picket line out here and stop you from work." I said "Well, don't you know somebody is liable to get hurt." He hum-hawed it little bit, then, and said "I don't know whether we will nor not. We might beat you to it," or something like that- I said "Well I am gonna come to work and the first one gets in front of me I am going to knock hell out of, and if its (sic) you, it will just be you, cause ( sic) I am going to vote no union." 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That ended the conversation as i (sic) finished my work and walked off. (S) LEE STRICKLAND. Sworn to and subscribed before me, by the said Lee Strickland, this 29th day of January, 1947. Notary Public, Palo Pinto County, Texas. I, Paul Edward Burton, being first duly sworn, on oath, says: About 9: 30 o'clock, a. in., while I was on the job on company premises Roland Harrah had this conversation with me : "Roland Harrah-You are a new man around here, aren't you. "Paul Edward Burton-No, I have been around here for a month or month and a half. "Roland Harrah-Well you must have been attending our meetings. "Paul Edward Burton-Is that Union. "Roland Harrah-Yes. "Paul Edward Burton-Hell, no. I'm not a Union man." Mr. Harrah then walked off. (S) PAUL E. BURTON Sworn to and subscribed before me, by the said Paul Edward Burton, this 29th day of January, 1947. Notary Public, Palo Pinto County, Texas. Neither employee was called as a witness. Assuming that the documents accurately set forth the events as described, it is clear that in neither case did Harrah "threaten violence," as claimed by Anthony. Violence was, in fact, threatened by Strickland, if his statement is to be believed, and Strickland was not discharged. Furthermore, it was upon Burton's second report, according to Anthony's testimony-"practically the same as the first," that he decided to dis- charge Harrah. Burton's statement reveals neither threat nor even "solicitation" that Burton join the Union. It clearly was no more than a casual and innocuous exchange of remarks between two employees, admittedly not prohibited by the Respondent. The Trial Examiner finds no merit in the Respondent's contentions as to Harrah, but concludes and finds that the employee was discharged because of his union activity and to discourage union membership, and that thereby the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. JAQUES POWER SAW COMPANY 471 The Trial Examiner has found that the Respondent has discriminated against the following named employees by discharging them ; on dates set opposite their names : C. E. Harris------------------------------------- September 6, 1946 Walter L. Reynolds------------------------------ September 17, 1946 Gordon W. Sims---------------------------------- September 17, 1946 Philip J. Latona--------------------------------- September 17, 1946 H. C. Nunn-------------------------------------- September 17, 1946 Gerard Verhelle---------------------------------- September 22, 1946 J. C. Malone------------------------------------- September 15, 1946 F. H. Malone------------------------------------- September 15, 1946 T. J. Armour------------------------------------- November 24, 1946 LeRoy Bullock---------------------------------- November 24, 1946 Frank E. Hochkraut-------------- ---------------- November 16,1946 T. L. Williamson--------------------------------- January 27, 1947 Roland E. Harrah-------------------------------- January 31, 1947 It will therefore be recommended that the Respondent offer to all the, above- named employees (except Gerard Verhelle, J. C. Malone, F. H. Malone, and LeRoy Bullock, who have been offered reemployment or have been reemployed) immedi- ate and full reinstatement to their former or substantially equivalent positions 2' without prejudice to their seniority or other rights or privileges, and make them whole for any loss of pay they may have suffered by reason of the Respondent's discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during said period. Upon the basis of-the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. The operations of Jacques Power Saw Company constitute trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) of the Act. 2. International Association of Machinists is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of C. E. Harris, Walter L. Reynolds, Gordon W. Sims, Philip J. Latona, H. C. Nunn, Gerard Verhelle, J. C. Malone, F. H. Malone, T. J. Armour, LeRoy Bullock, Frank E. Hochkraut, T. L. Williamson, and Roland E. Harrah, thereby discouraging membership in International Association of Machinists, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act, and Section 8 (a) (3) of the amended Act. 21111 accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position " is intended to mean "former position wherever possible and if such position is no longer in existence then to a substantially equivalent position." See Matter of The Chase National Bank of the City of New York, Sam, Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the amended Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. By discharging W. R. Chrisman the Respondent has not violated Section 8 (3) of the Act or Section 8 (a) (3) of the amended Act. RECOMMENDATIONS Upon the above findings of fact and conclusions of law, upon the entire record in the case, and pursuant to Section 1.0 (c) of the amended Act , the Trial Examiner recommends that Jacques Power Saw Company , Denison, Texas, its officers, agents , successors , and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, or in any other labor organization of their employees , by discriminatorily discharg- ing, refusing to reinstate , or by discriminating in regard to their hire or tenure of employment or any term or condition of employment ; (b) Interrogating its employees concerning their union affiliations , activities, or sympathies , or in any other manner interfering with, restraining , or coercing its employees in the exercise of the rights to self-organization , to form labor organizations, to join or assist International Association of Machinists, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collec- tive bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act. 2. Take the following affirmative action , which the Trial Examiner finds will effectuate the policies of the Act: ( a) Offer to C. E. Harris , Walter L. Reynolds , Gordon W. Sims , Philip J. Latona, H. C. Nunn, T. J. Armour. Frank E. Hochkraut , T. L. Williamson, and Roland E . Harrah immediate and full reinstatement to their former or substan- tially equivalent positions , without prejudice to their seniority or other rights and privileges ; and make whole the above -named employees, in addition to J. C. and F. H. Malone, Gerard Verhelle , and LeRoy Bullock, in the manner set forth in Section V above, entitled "The Remedy" ; (b) Post at its plants in Denison and Mineral Wells , Texas, copies of the notice attached hereto and marled "Appendix ." Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, after being signed by representatives of the Respondent , shall be posted by the Respondent imme- diately 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; (c) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith. It is further recommended that the complaint be dismissed as to W. R. Chrisman. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty ( 20) days from the date of service of the order transferring JAQUES POWER SAW COMPANY 473 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 lie 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. Immedi- ately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy the upon each of the other parties. State- ments of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 10th day of September 1948. C. W. WHITTEMORE, Trial Examiner. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Association of Machinists or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without preju- dice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. C. E. Harris Walter L. Reynolds Gordon W. Sims Philip J. Latona H. C. Nunn Gerard Verhelle J. C. Malone F. H. Malone T. J. Armour LeRoy Bullock Frank E. Hochkraut T. L. Williamson Roland E. Harrah 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor. organization. JACQUES POWER SAW COMPANY, Employer. By ----------------------------------- (Representative ) ( Title) Dated -------------------- NOTE: Any of the above -named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material.