Pacific Mills

In the Matter Of PACIFIC MILLS and TEXTILE WORKERS UNION OF AMERICA, CIO Case No. 34-CA-46-Decided August 30, 1950 DECISION AND ORDER On March 29, 1950, Trial Examiner W. Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the Act, 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. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed.2 The rulings are hereby affirmed .3 The Board has considered the Intermediate Re- port, the Respondent's exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions and modi- fications.4 ' Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel [Members Houston, Reynolds, and Murdock]. 2 During the hearing the General Counsel made a motion that all names and dates in the bill , of particulars be changed to conform to the testimony. The Respondent objected con- tending that because of Section 10 (b) of the Act, time was of the essence in this case. The Trial Examiner denied the motion. No exception was filed and we find it unnecessary to pass upon this ruling. In determining the 6-month period specified under Section 10 (b), the Trial Examiner appeared to construe the date of mailing of the charge as the date of service. Since it is not material here, to decide whether the mailing of the charge or the receipt thereof by the Respondent constitutes service, we do not pass upon the apparent resolution of this ques- tion by the Trial Examiner. See Frederica Clausen d /b/a Luzerene Hide and Tallow Company, 89 NLRB 989. 3 On June 26, 1950, the Board received from the Respondent a motion to reopen the record on the basis of N. L. R. B. v. Poster Cotton Mills, Inc., 181 F. 2d 919 (C. A. 5). For reasons stated in our order of May 19, 1950, in Bethlehem Steel Company, Shipbuilding Division, and Bethlehem-Sparrows Point Shipyard, Inc., 89 NLRB 1476, the Respondent's motion to reopen the record on the foregoing ground is hereby denied. See also, our order of June 7 , 1950, in J. H. Rutter-Rex Mfg. Co., 90 NLRB 130. ' The Respondent's request for oral argument is denied inasmuch as we believe the issues and positions of the parties were adequately presented in the record and the briefs. 91 NLRB No. 3. 60 PACIFIC MILLS 61 1. We agree with the Trial Examiner that the Respondent spe- cifically violated Section 8 (a.) (1) of the Act by surveillance of union organizational meetings; by threats and promises made by Supervisor Weaver at the union meeting of May 22, 1948; by soliciting signatures of employees in opposition to the Union; by interrogating employee Pruitt as to his loyality to the Respondent and withholding from Pruitt the benefit of occupying a company house until the Respondent was satisfied he was not a union advocate; and by attempting to with- draw from employee Hamby the right to occupy a company house. In its brief the Respondent excepts to the Trial Examiner's 8 (a) (1) findings concerning Pruitt on the ground that they are at variance with the allegations of the complaint and the bill of -particulars sub- mitted in this proceeding. However, the findings are covered gen- erally by the complaint and the Respondent suffered no surprise at the hearing and had full opportunity to litigate the issues involving Pruitt. We find, therefore, that it suffered no prejudice. Accord- ingly, we find the aforesaid exception without merit.,, 2. We find, as did the Trial Examiner, that the Respondent dis- criminated against Rufus B. Hamby and Ray Cline in violation of Section 8 (a) (1) and (3) of the Act. In finding that Ray Cline was discriminatorily discharged, the Trial Examiner sets forth, inter alia, the failure of the Respondent to make a showing as to "who replaced Storey if it was not Cline, or whether that job was kept vacant." The -Respondent excepts to this finding as "an attempt to shift the burden of proof from the General Counsel to the Respondent." We disagree. We recognize that the burden of proof never shifts," but the burden of going forward with evidence after the prima facie case of discriminatory character of discharge has been established necessarily falls upon the Respondent.' Here, by credibility findings," the Trial Examiner found, and we agree, that Cline was hired on a permanent basis to replace a discharged employee, Ralph Storey. The Respondent failed to contradict or even explain Storey's discharge and his job replacement. Employee Lunsford, who testified as a witness for the Respondent, testified that Storey was a 3 See Fulton Bag. and Cotton Hills, 75 NLRB 883; Weaver Wintark, 87 NLRB 351. Cf. Marshall and Bruce Company, 75 NLRB 90, footnote 10 and cases cited therein. 9 See W. C. Nabors Company, 89 NLRB 538. 7 Jasper National Mattress Company, 89 NLRB 75. 'The Respondent excepts to the Trial Examiner' s finding that Cline was not absent without permission on May 7, 1948, as shown by an entry on his personnel card. The Respondent maintains that Cline "specifically swore he was at work" on this date. It is noted that Cline testified on cross-examination that he was not absent during this period "as far as I know." Clearly, Cline's statements in this connection were not as dogmatic as the Respondent contends , nor as suggested by the finding of the Trial Examiner. We accept, however, the Trial Examiner' s general credibility findings as to Cline's testimony. we do not adopt his apparent finding that the burden was upon the Respondent to pro- duce further evidence to support the entry on Cline's personnel card. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loom blower on the same shift as the one he was working on and that Storey had been discharged , supporting Cline's testimony as to this point. In fact, Lunsford, although he testified that he "had been told" by the "boss man" that Cline had been hired to take his job tem- porarily while he worked a different shift, admitted that he had worked with Cline for "a few nights" after returning to his old shift. Upon the complete record, we are satisfied that the Respondent dis- charged Cline because of his union activity. 3. As noted in paragraph 1, above, the Trial Examiner found, and we agree, that the Respondent's attempt to withdraw Hamby's right to occupy a company-owned house, under all the circumstances present herein, constituted interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act. Since the issuance of the Intermediate Report, the General Counsel and the Respondent have stipulated in a motion to reopen the record that Rufus B. Hamby was , on or about February 15, 1950, evicted from his dwelling, a company-owned house in the town of Rhodhiss, North Carolina, by the sheriff or his agent of the county in which the dwelling is situated, acting pursuant to a judgment obtained by the Respondent in eviction proceedings against Hamby in the courts of the State of North Carolina . The motion is hereby granted and the evidence hereby made a part of the record in this case. From the stipulated facts above it appears that the Respondent has :succeeded in the actual eviction of Hamby from the company house. Accordingly, we shall order the Respondent to offer Hamby immedi- ate occupancy of his former or substantially equivalent living quar- ters in a company-owned house on the same terms accorded other em- ployees. We shall further order the Respondents to make Hamby whole for any loss he may have suffered by reason of his discriminatory eviction by payment to him of a sum of money equal to that which he has had to pay as rental for other living quarters from the date of the eviction to the date he is offered reinstatement and occupancy in the manner set forth above, plus such additional expenses as he may have incurred during said period as a direct result of his eviction , but less the amount he would normally have paid as rent for his company- owned home during said period.' 4. As recommended by the Trial Examiner, we shall order the Re- spondent to offer Rufus B. Hamby and Ray Cline reinstatement with back pay from the date of their discharges. Since the issuance of the Trial Examiner 's Intermediate Report, however, the Board has 0 Abbott Worsted Mills, Inc., 36 NLRB 545, 557 ; Industrial Cotton Mills Company, Inc., 50 NLRB 855 ; Indianapolis Wire-Bound Company, d/b/a Cleveland Veneer Company, 89 NLRB 617. PACIFIC MILLS 63 adopted a method of computing back pay different from that pre- scribed by the Trial Examiner.10 Consistent with that new policy we shall order that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from, the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called "quar- ters," shall begin with the first day of January, April, July, and. October. Loss of pay shall be determined by deducting from a sum, equal to that which these employees would normally have earned for each quarter or portion thereof, their net earnings,1' if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.. We shall also order the Respondent to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due'. 12 ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Pacific Mills,,. Rhodhiss, North Carolina, its officers, agents, successors, and assigns,. shall : 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer ica, CIO, or in any other labor organization of its employees, by dis- criminatorily discharging employees or by discriminating in ally other manner in regard to their hire or tenure of employment or any term or condition of employment ; (b) 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 Textile Workers Union of Amer- ica, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in any other concerted activities for the purpose 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 1° F. W. Woolworth Company, 90 NLRB 289. 11 By "net earnings" is meant earnings less expenses , such as for transportation , room;. and board, incurred by an employee in connection with obtaining work and working else- where, which would. not have been incurred but for this unlawful discrimination, and the consequent necessity of his seeking employment elsewhere. Crossett Lumber Company, S NLRB 440. Monies received for work performed upon Federal, State, county, municipal- or other work-relief projects shall be considered as earnings . Republic Steel Corporation. v. N. L. R. R., 311 U. S. 7. 12 F. W. Woolworth Company, supra. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the folowing affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Rufus B. Hamby and Ray Cline immediate and full reinstatement to their former positions or to substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole Rufus B. Hamby and Ray Cline in the manner set forth in paragraph 4, above, for any loss of pay they may have suf- fered by reason of the Respondent's discrimination against them; (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order; (d) Offer Rufus B. Hamby immediate occupancy of his former or substantially equivalent living quarters in a company-owned house; (e) Make whole Rufus B. Hamby for any loss he may have suf- fered by reason of the Respondent's discriminatory eviction of Hamby from his living quarters in the manner set forth in paragraph 3, above ; (f) Post at its plant in Rhodhiss, North Carolina, copies of the notice attached hereto and marked Appendix A 13 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and main- tained by it for 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; and (g) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. APPENDIX A "NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : za In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted in the notice , before the words, "Decision and Order," the words, "Decree of the United States Court of Appeals Enforcing." PACIFIC MILLS 65 WE WILL NOT discourage membership in TEXTILE WORKERS UNION OF AMERICA, CIO, or in any other labor organization, by discriminatorily discharging employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist the above- named union or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL offer Rufus B. Hamby and Ray Cline immediate and full reinstatement to their former positions or to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make those employees whole for any loss of pay suffered as a result of the discrimination against them. WE WILL upon. request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel. records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. WE WILL offer Rufus B. Hamby immediate occupancy of his former or substantially equivalent living quarters in a company- owned house, and make him whole for any loss suffered as a result of his discriminatory eviction. All our employees are free to become or remain members of the above-mentioned union or any other labor organization. PACIFIC MILLS, Employer. Dated -------------------- By ------------------------------ (Representative ) (Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER Miles J. McCormick, Esq., for the General Counsel. Frank A. Constangy and Legare Davis, Esgs., 1404 Candler Building, Atlanta, Ga., for the Respondent. Bruce E. Davis, Esq., 5061/ East 4th Street, Charlotte, N. C., for the Union. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon a second amended charge filed on August 30, 1949, by Textile Workers Union of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board, called herein respectively the General Counsel and the Board, by the Regional Director of the Fifth Region (Baltimore, Mary- land), on November 21, 1949, issued a complaint against Pacific Mills, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Manage- ment Relations Act, 1947, herein referred to as the Act. Copies of the com- plaint, the charge, the first amended charge, and the second amended charge upon which it was based together with notice of hearing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance: (1) That since on or about May 4, 1948, to the date of the complaint the Respond- ent in violation of Section 8 (a) (1) of the Act, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by (a) urging, persuading, and warning its employees by threats of reprisal or force or promise of benefit to refrain from assisting, becoming, or remaining members of the Union or engaging or continuing to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; (b) questioning its employees concerning their membership in and activities on behalf of the Union; (c) threatening its employees with loss of employment should they join the Union or otherwise assist the Union in its efforts to organize Respondent's employees; (d) keeping under surveillance the organizational activities of its employees and of the Union ; and (2) that in violation of Section 8 (a) (1) and (3) of the Act, the Respondent discharged Ray Cline on or about May 28, 1948, and Rufus B. Hamby on or about August 13, 1948, and has since refused and failed to reinstate them, thereby discriminating in regard to their hire and tenure of employment in order to discourage membership in the Union. In its answer filed December 19, 1949, the Respondent admitted certain alle- gations of the complaint but denied the commission of any unfair labor practices. Prior to the hearing in this case, the Respondent demanded, Trial Examiner Reeves R. Hilton ordered, and the General Counsel furnished to the Respondent a bill of particulars concerning certain allegations of the complaint. Pursuant to notice a hearing was held in Lenoir, North Carolina, from Janu- ary 4 to 6, 1950, inclusive, before W. Gerard Ryan, the undersigned Trial Ex- aminer, duly designated by the Chief Trial Examiner. The General Counsel, the Union, and the Respondent participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing, and renewed at the conclusion of the testimony, the Respondent moved to strike from paragraph 4 of the complaint as amended by the bill of particulars the allegations of 8 (a) (1) violations which are barred by Section 10 (b) of the Act. Decision was reserved and the motion is now denied for the reasons hereinafter appearing. At the close of the General Counsel's case-in-chief, the General Counsel moved to strike from the bill of particulars the name under paragraph 4-a of Ted Kemp, August 15, 1048; under 4-b, Flowers Austin, August 15, 1948-1 and under 4-d, Luther Elmore, May 15, 1948. That motion is granted. At the same time the General Counsel moved that all names and dates in the bill of particulars be changed to conform PACIFIC MILLS 67* to 'the testimony. The Respondent objected on the ground that while such a motion is usually pro forma, in the present instance, time is of the essence. Decision was reserved. I now deny the motion. The unfair labor practices as found hereinafter occurred on or after May 5, 1948.' Testimony to events prior to May 5 was used for background purposes as shown infra. Decision was reserved on the motion by Respondent to dismiss the complaint at the close of the. General Counsel's case-in-chief and at the conclusion of the testimony. I now deny those motions.. The parties were afforded opportunity for oral argument at the conclusion, of the evidence and also an opportunity to file briefs, proposed findings of fact,. and conclusions of law. Briefs were filed by the General Counsel and the Respondent? On the entire record in the case, and from my observation of,the witnesses,. I make the following : FINDINGS OF PACT 3 1. THE BUSINESS OF THE RESPONDENT . The Respondent is a Massachusetts corporation and at all times material herein has continuously engaged in the manufacture of rayon piece goods, including the carding, spinning, and weaving of rayon wool and rayon acetate fabrics, at its plant at Rhodhiss, North Carolina. The Respondent concedes and I find that at all times material herein it has been and still is engaged in interstate com- merce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Textile Workers Union of America, CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Introduction The town of Rhodhiss is a municipality in the State of North Carolina in- corporated by an Act of the State legislature in 1903 setting the corporate limits and specifying jurisdiction of the municipality and its authority. The jurisdic- tion of its police officers who have power to make arrests, preserve order, and otherwise carry out their duties within the town extends to within a distance of one-fourth mile beyond the corporate limits. The Respondent operates two mill buildings at Rhodhiss, which are exactly opposite each other on opposite banks of the Catawba River, about 300 yards. apart, and they are connected by a bridge across the river. Mill offices, a gen- eral administrative building, and a common warehouse for the two mills comprise the other buildings. Surrounding the plant is a mill village in the immediate area which consists. of company-owned houses on both sides of the river. These houses are leased to its employees for a nominal rental per month. All the real property in the town belongs to the Respondent, excepting public roads, schoolhouse, and a church. The Respondent conveyed the land to the county and the church upon 1 Since the charge was filed on November 3, 1948 , and served on November 4, 1948, the 6 month statutory cutoff begins May 5, 1948. 3 Time for the filing of briefs was duly extended to February 6, 1950. 3In making the findings herein , I have considered and weighed the entire evidence. It would needlessly burden this Report to set up all the testimony on disputed points. Such, testimony or other evidence as is in conflict with the findings herein is not credited. 917572-51-vol. 91-6 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which are built the school and the church. Between five and six hundred in- habitants live in the town whose citizens elect a town council. The mayor, town clerk and treasurer, chief of police, and all members of the council are employed by the Respondent. The chief of police, appointed by the council, receives a salary from the town for his police work and also a salary from the Respondent, who employs him as a plant guard. It was stipulated that the Respondent has labor contracts with Textile Workers Union in its several plants in Columbia, South Carolina, the A. F. L. union in Lawrence, Massachusetts, and Machine Printers Beneficial Association at its Lyman, South Carolina, plant. The supervisory personnel consisted of Joseph Cobb, general superintendent and manager ; James Culclasure, personnel manager ; Luther Elmore, night super- intendent at Mill No. 1; Frank Webb, overseer of the carding department in Mill No. 2; Wallace Splawn, overseer of the spinning department in Mill No. 2; Les Weaver, yard foreman ; and all second hands. It was further stipulated that fixers are production employees and not supervisors. In the summer of.1947, the Union began its efforts to organize the Respondent's employees at Rhodhiss. Little progress was made and in the spring of 1948, the Union renewed its campaign, which continued actively through the summer and fall of 1948. B. The applicability of Section 10 (b) As has been indicated previously, the Respondent asserts that Section 10 (b) of the Act bars any reference to any incident which by the evidence is shown to have occurred more than 6 months prior to service of the charge. The charge was filed on November 3, 1948, and a copy served on the. Respondent on the following day, November 4. Section 10 (b) provides as follows: . . . no complaint shall issue based upon any unfair labor practice occur- ring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge.* The General Counsel concedes that Section 10 (b) prevents the finding of violation of the Act in any conduct of the Respondent which occurred prior to May 4, 1948. He contends, however, that the section does not prohibit the intro- duction of evidence of conduct antedating the 6 months' period, and the use of such evidence for background purposes.. The Board has recently held that Sec- tion 10 (b) does not preclude the use of evidence as to events which antedated the 6-month period of limitation for background purposes.' I therefore find that Section 10 (b) does not preclude the consideration of evidence relevant to the determination as to whether the Act was violated during the 6-month period antedating the filing and service of the charge, even though such evidence may relate to action occurring prior to the 6-month period. C. Interference, restraint, and coercion 1. Surveillance of union meetings On Saturday May 22, 1948, the Union scheduled and held a meeting outdoors on the river bank within one-quarter mile of the town limits. The date of that 4 Axelson Manufacturing Company, 88 NLRB 761. PACIFIG MILLS 69 meeting is established by the testimony of Cline, Baxter, and Prestwood. Cline was discharged on May 28, 1948, and he testified that the meeting was held on the Saturday preceding his discharge. Baxter was discharged Friday night and testified that the following day he attended the meeting on the river bank. The company records show that he was terminated May 22, 1948. Prestwood fixes the date by testifying that the meeting was held on the Saturday in May which preceded the filing of the petition for certification by the Union which as appears infra was. filed on May 27, 1948. Approximately 50 people attended the meeting. During the course of the meeting, Les Weaver, Respondent's fore- man, heckled the union speakers, created a disturbance, and disrupted the meeting to the point where he had to be quieted by Chief of Police Randall. At the meeting, Weaver delivered himself of antiunion statements that there had been a union at Granite and as a result the people there were thrown out of their -houses and the young ones were starving; that if they joined the Union the mill was going to raise the rent on their houses ; that the company was going to put in baths in the houses but it would not cost any more if they did not join the Union. In addition to being employed by the Respondent during the week as outside foreman, Weaver is employed on week ends as deputy policeman under the supervision of the chief of police, and his salary for police work is paid by the town. Weaver was present at the meeting, not in uniform, but in his usual garb of overalls, nor was he armed. It is clear from the record, and nowhere is there any denial of Weaver's conduct at the meeting, that Weaver was not there in his capacity of deputy policeman, notwithstanding Randall's testimony that it was Weaver's duty to attend. His conduct shows that he was not there to keep the peace but to do whatever he could to dis- courage union membership and to disrupt the meeting to the point where Chief of Police Randall was requested to quiet him, otherwise a warrant would be obtained for his arrest. Not only did Weaver attend the meeting of May 22, 1948, but he attended from 2 or 3 other meetings held on the river bank. There is no evidence- here that the Respondent instigated police activities, whether those activities be legitimate or not. There is sufficient evidence in this record to hold the Respondent engaged in surveillance of the union meetings through the presence of its foreman, Weaver, without the necessity of deciding whether or not the Respondent is responsible for, surveillance by the police department. Randall, the chief of police, was present in uniform, and accounts 'for his presence by stating that it was his duty to investigate all gatherings within the town limits. The proof is lacking that he was there in his official capacity as a result of design on the part of the Respondent. In any event, since Randall was not a supervisory employee of the Respondent, his presence at the meetings would not be binding on the Respondent unless there is proof that he,was in- structed .by some responsible official of the Respondent to engage in surveil- lance.6 Neither is there any proof that Randall reported any facts to the Respondent. Accordingly I find that the activities of Randall can not properly be charged to the Respondent. In the case of Weaver, the situation is far different. The Respondent is chargeable with the presence of its supervisor at union meetings, and his conduct at one of them attempting to disrupt it which required the action of the chief of police to quiet him and prevent further dis- turbance. The fact that Weaver was a deputy policeman is no defense to the Respondent. The acts complained of were not acts performed in the furtherance of his police duties, rather they were in derogation of his police capacity. Even - 5 American Thread Company, 84 NLRB 593. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if they were the expression of his own personal antiunion animus, since he was; a supervisor, the Respondent could not escape its responsibility for his acts. In a recent case,` the Board said : When a supervisor engages in surveillance of union activities, the fact that he does so to gratify his own anti-union feelings rather than to serve his employer does not preclude a finding that such surveillance is unlawful. I therefore find that the Respondent maintained illegal surveillance over the union organizational meetings, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Soliciting employee signatures re the Union D. W. Childers, an employee in the card room in Mill No. 2, testified that during the month of June 1948, Frank Webb, the overseer of the card room, requested him to obtain employees' signatures to a book entitled in substance "We, the people of Pacific Mills do not want a union." Childers fixes the date as in June 1948 because he remembers that this took place in the month follow- ing his joining the Union which was May 15, 1948. It took Childers about 10• .minutes to take the book to the 20 employees in the card room. Only one em- ployee signed the book. Childers did not sign it. The testimony of Childers was corroborated by Jordan, another employee in the card room, to the extent that Childers had brought him a book to sign if he was against the Union.. Jordan was unable to remember the date. In trying to fix the date, he remem- bered that the weather was cool ; that he joined the Union in the fall of 1947 and the book incident was a couple of months after that ; but then he was un- certain whether it was around the first of May 1948. Baxter, another witness, testified that he had seen such a book as Childers described in the desk drawer in an office used by foremen and second hands prior to May 22, 1948, but never saw the book circulated. Though Webb denied ordering Childers to circulate the book he does not deny knowledge of such book nor does he deny that it was circulated. In view of Childers' testimony which I credit I find that the book was taken around by Childers to the employees for their signatures at Webb's orders during June 1948. The attempt to find out who were not in favor of the Union and, by the process of exclusion, those in favor of the Union was an invasion of the employees rights under Section 7 of the Act. In Standard-Coosa-Thatcher Company z the Board stated : Inherent in the very nature of the rights protected by Section 7 is the con- comitant right of privacy in their enjoyment-"full freedom" from employer intermeddling, intrusion, or even knowledge . . . Whenever an employer directly or indirectly attempts to secure information concerning the manner in which or the extent to which his employees have chosen to engage in union organization or other concerted activity, he invades an area guaranteed to be exclusively the business and concern of his employees. I accordingly find that the Respondent in directing the circulation of a book to record the signatures of those employees opposed to the Union violated the provisions of Section 8 (a) (1) of the Act. , Beatrice Foods Company, 84 NLRB 493. 85 NLRB 1358. PACIFIC MILLS 71 3. The Respondent's questioning of Pruitt before letting him a company house Clarence Everett Pruitt testified that he began his employment with the Re- spondent on November 10, 1947; about 1 month later obtained a leave of absence and was then rehired in February 1948 when he was given a job hauling laps. It further appears from the testimony of Webb, as shown infra, that Pruitt on June 5, 1948, was given Hamby's job when Hamby was transferred to the third shift. Pruitt's job hauling laps was discontinued and he did Hamby's work after June 5, until his discharge in June 1949. Approximately 2 weeks before first .going to work, Pruitt asked the Respondent for a company house in which to live, and was told that it would be necessary for him to work there some time to see whether it would be necessary to give him a houses Pruitt testified that -employee Parsons spoke to him saying that Webb had sent him to find out from Pruitt if Pruitt was going to be loyal to the company and that Parsons wanted to know the truth so that he could inform Webb. Pruitt stated that he would The loyal to the company. Shortly thereafter, Pruitt asked Webb to help get him a house and Webb replied that he would help get him a house but first he had to know whether Pruitt was going to be "loyal" to the Company and that meant having nothing to do with the Union. The next day following the -conversation with Webb, Pruitt saw Culclasure, the personnel manager, who .asked him the same question. Pruitt replied that he would and Culclasure replied that if he was going to be loyal to the Company he would give him a house. Pruitt was then given the company house on August 14, 1948.° Pruitt had joined the Union in the summer of 1948, prior to getting the house. .At the time of the hearing, Pruitt and his wife were still occupying the company house, although at that time neither was working for the Company, and they had not been asked to vacate the house. Upon all the evidence, I find that by interrogating Pruitt to find out if he was .going to be loyal to the Company and by the Respondent withholding the bene- fit of occupying the house until the Respondent was satisfied that he would have nothing to do with the Union was interference, restraint, and coercion and con- stituted a violation of Section 8 (a) (1) of the Act. 4. The Respondent's attempt to evict Hamby I have found infra that Hamby was discriminatorily discharged by the Re- spondent. The General Counsel contends that the eviction proceedings insti- tuted by the Respondent against Hamby to remove him from the company house in which he is living was interference, restraint, and coercion violative of Sec- tion 8 (a) (1) of the Act1° The Respondent contends that eviction proceedings were instituted when Hamby was actually at work for another company" and had ceased to pay rent to the Respondent. Since Hamby had been discrimina- torily discharged he still was an employee of the Respondent within the mean- ing of the Act. Whether or not he had failed to pay his rent is a matter of some doubt. When he was discharged the Respondent refused to pay him his wages, claiming it would hold his pay to be applied as future rent until Hamby vacated 8 At the time Pruitt applied for work, his wife was employed in the Respondent's office. ° Note the lease to Pruitt was dated August 14 and the conversations between Pruitt, Webb, and Culclasure were at the time that Hamby was discriminatorily discharged as ap- pears infra. °° At the time of the hearing , the eviction proceedings were still pending in the State court. n The record does not show the date on which eviction proceedings were commenced. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the premises. Sometime thereafter on a date not specified the Respondent noti- fied Hamby to call for his pay check. Hamby decided to leave his check with the Respondent and posted bond as security for the rent. The discharge of Hamby and the attempt to evict him cannot be disassociated for it is evident they were both integral parts of Respondent's plan to be rid of Hamby. That it was is apparent because on the same day that he was discharged, the Respond- ent demanded that he vacate. I believe the Respondent's plan to rid itself of Hamby included not only his separation from the payroll but separation from the right to occupy the company house. Not only was it calculated to impress on Hamby but also to impress on all others employed by the Respondent and living in company-owned houses the disastrous effects of engaging in union activities. I accordingly find that the Respondent's attempt to withdraw Hamby's right to occupy a company-owned house, under all the circumstances present herein, constituted interference, restraint, and coercion. and violative of Section 8 (a) (1) of the Act. D. The discriminatory discharges 1. The discharge of Rufus B. Hamby Hamby's employment with Respondent began on March 14, 1947, and terminated on August 13, 1948. Prior to 1940, Hamby was a farmer, but since then has. worked in cotton mills at various jobs including "running slubbers," " running drawing," "running cards," "running lapping machines," grinding waste, and as a sweeper and cleaner.12 According to the testimony of Overseer Webb and Baxter, who was a foreman at the time of Hamby's employment, Hamby was a utilities man or spare hand for anything that might come up. At the time he applied for work the then superintendent Elmore asked him if he needed a com- pany house's Upon Hamby's affirmative reply, the superintendent informed him that he would be notified when one was available. About a week later Hamby was so notified, moved into the house the following morning, and 2 days later reported for work. Hamby was employed to run slubbers but did not run slubbers very long and was assigned to sweeping strippers. He first went to work on the third shift in Mill No. 1 where he worked for 3 or 4 months and when that shift was shut down, Hamby was transferred to the second shift in Mill No. 2.14 There he worked for 4 or 5 weeks and then was transferred to the third shift in the same mill where he stayed for 2 or 3 months until he was retransferred to the first shift in Mill No. 2. Hamby continued to work there on the first shift for 8 or 10 months until June 5, 1948, when he was assigned to the third shift still in Mill No. 2, where he continued to work until his termination on August 13, 1948.' His base pay throughout his employment was 87 cents per hour, plus 5 cents addi- tional per hour for time on the third shift. In the summer of 1947, Hamby was first visited at his home by a repre- sentative of the Union who sought to interest him in organizing the Respondent's employees. Hamby agreed to help the effort by taking a book to sign up members for the Union. The campaign made little progress and Hamby pro- 13 Slubbers are machines which reduce cotton from a flat form to a thread-for every inch of cotton fed into the machine, 8 inches of thread are obtained. 13 The Respondent let houses to its employees. Hamby's rental was 50 cents per week. These houses in which employes live are known as the village. 14 The first shift was from 6 a. in. to 2 p. in. ;.second shift was 2 p. m.-10 p. m. ; third shift, 10 p. m.-6 a. in. 15 During the 8 to 10 months on the first shift, Hamby spent most of his time sweeping the floor and taking excess lint off the card cloth. PACIFIC MILLS 73 cured only one signature. In the early spring of 1948, during March or April the union efforts were renewed. Hamby took an active part in the organiza- tional campaign, became a member of the union committee and secured about 50 employees for membership. He went through the village where the employees lived in company houses, distributed union leaflets at the mill gate, talked with employees throughout the town, and attended union meetings. The Respondent admitted that it knew of the union organizational activities through 1947 and 1948; and in particular admitted that it knew that Hamby and 11 other employees were committeemen for the Union by reason of letters from the Union to the Respondent so informing it 19 Frank Webb was the overseer of the card room in Mill No. 2 for all 3 shifts from March 1946 to June 30, 1949. On May 22, 1948, Webb discharged Howard K. Baxter who was then employed in a supervisory capacity as second hand or foreman and informed Baxter that he was firing him because he was fooling around with the Union. Two or three weeks before Baxter's discharge, Webb remarked to him that Baxter had been going to Hamby's house "a right smart" and further stated "I'm in for Hamby, stay away from him" ; that 3 weeks before Baxter was discharged, Webb told Baxter that he was going to fire Church and Hamby. On May 27, 1948, the union campaign had progressed to the point where, it filed a petition with the Board requesting certification as the bargaining representative in Mill No. 2.1i During the spring and summer of 1948, both mills were in full operation on the first and second shifts and Mill No. 2, in addition, was working a third shift on a skeleton operation only 19 On June 5, 1948, after Webb told Hamby that he wanted him to help him out for a week or two on the third shift and then he would transfer him back to the first or second shift, Hamby was transferred by Webb from the first shift in Mill No. 2 to the third shift in the same mill. Webb testified that at the time Hamby was transferred to the third shift, another utility man, Everett Pruitt, with less seniority than Hamby, was working on the second shift. Pruitt's job, hanging laps, was dis- continued and Webb gave him Hamby's job on the first shift. Webb testified that he needed a utilities man on the third shift to run slubbers part of the time. Four slubbers were operated on the third shift but situated so that two slubbers were on one part of the aisle and two further removed at another part of the aisle, an arrangement which Baxter testified would make it impossible for an operator to operate slubbers and "make production." Webb contra- dicted Baxter's testimony in this respect and said that an efficient operator could ,make production. The testimony of Hamby was uncontradicted that in his entire period of employment he was never absent and late on only one occasion. But after his transfer to the third shift, Hamby worked only 1 full week of 40 hours.18 Hamby worked at several jobs on the third shift dividing the hours nightly as required and as directed, viz: sweeper and overhead cleaner, drawing hand, slubber hand, converter operator, and three other jobs coded as 200, 125, 11 In his brief the General Counsel refers to May 12, 1948, as the date of the union letter to the Respondent. Nowhere in the record does the date thereof appear. 17 Board Number 34-RC-70. The petition was dismissed on the ground that Mill No. 1 and Mill No . 2 constituted a single unit appropriate for the purposes of collective bargaining. is Thirty were employed on the first shift and 30 on the second shift. The third shift during 1948 did not have more than 5 employees. 19 His time cards disclosed that for the week ending June 12, 1948, he worked 40 hours and earned $2.17 over his minimum: week ending June 19, 301/2 hours ; June 25, 32 hours; July 3, 32 hours ; (July 1-14, vacation) ; July 24, 32 hours; July 31, 32 hours ; August 7, 28 hours ; August 14, 281/2 hours. .74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 175 which are not translated in the record 20 Work running slubbers was Incentive work which means that an operator has an opportunity to make ad- -ditional pay if he produces more than is required to meet the minimum pro- ,duction standard. Hamby was put on and taken off incentive jobs as he was needed. The record shows that he was given incentive pay jobs when others in his job category were not. On August 13, 1948, as Hamby was finishing work, Webb informed him that he would have to "let him off." It is undisputed that Webb had orders from the general superintendent, Cobb, to lay off three men. While it was Cobb who for economic reasons decided to lay off three men on the third shift, Cobb left the decision as to which ones were to be laid off to Webb. When he in- formed Hamby that he would be laid off, Webb also told him that the thirds .shift was going to shut down, the second shift was going to be stopped, and the first shift would not be running half the time within 30 clays. Hamby there- bupon proceeded to the office of the personnel manager, Culclasure, for his check. Culclasure told Hamby that he would put him on in Mill No. 1, but neither mill was going to runt over a day or possibly a few hours each week. Hamby .asked Culclasure to keep him in mind if he needed him and Culclasure agreed so to do. Instead of giving Hamby his pay, Culclasure informed Hamby that the would keep his check until Hamby vacated the house in which he was living.' At no time was Hamby in arrears for rent for the house. Up to the time of the "hearing, Hamby had not vacated the house, and litigation was still pending in the State court on whether Hamby should be evicted by the Respondent. Within 4 or 5 weeks following August 13, 1948, Hamby asked the Respondent three times for work, but has never been reemployed. On August 23, Hamby secured employment at a mill in Whitnall, 17 miles from Rhodhiss, and worked , %there until October 15, 1948. Sometime prior to November 1, 1948, the chief of police, Randall, left a notice to vacate the house with Hamby's wife. Thereafter, the sheriff served Hamby with a summons returnable on November 1, before a justice of the peace and a hearing was held on the question of whether Hamby must vacate the house. sFerdinand Sylvia testified that he represented Hamby in the proceedings before. the justice of the peace and at that hearing Culclasure, on behalf of the company, testified that Hamby had been a good worker, that no complaint had been found with his work, and admitted that he had promised to reemploy Hamby if and when another job became available. When asked by Sylvia at the hearing, "Are you going to hire Mr. Hamby back when there is an opportunity for work?", Cul- ,clasure replied, "Positively, no" and gave as his reason "We just don't want Mr. Hamby back on the job." a. The Respondent's defense to Ham.bp's term nation The Respondent contends that Hamby was separated as a result of curtail- ment of operations on the third shift of its No. 2 Mill (card room) in accordance with its regular seniority policy and for no other reason. It is not disputed that on August 13, 1948, 3 employees including Hamby were discontinued ; and that later, 2 others were separated. Neither is it disputed that curtailment of the number of employees was occasioned by economic reasons. In Mill No. 2, 20 Time cards in evidence show in detail the amount of time worked on each operation from June 5 to August 13, 1948. 21 Hamby's son was still working in the mill and living at home with Hamby. The despondent evicts only those employees who have been discharged or quit. PACIFIC MILLS 75 card room, the third shift was entirely discontinued in August 1948, and the mill operated the first and second shifts. No new employees were employed in 1948 in the card room in Mill No. 2 with the exception of Clarence Settlemeyer who was hired in October as a "drawing hand" on the third shift. When the third shift was shut down Settlemeyer was transferred to the first shift as stock and box clerk which entailed keeping figures and making out reports.22 The Respondent's evidence is also uncontradicted that of the 10 men besides Hamby, whom the Union notified the Respondent were active in the union organi- zational campaign, 9 were still working at the date of the hearing and the tenth had been discharged for cause. The number of employees in the card room,. Mill No. 1, decreased for economic reasons as follows : August 1948, 53 employed; September, 50; October, 51; November, 49; December, 48; January 1949, 46 The Respondent has a written policy on the subject of "promotions and layoffs," which provides : "If qualifications are equal, length of service within a department will govern the layoffs of an employee within his or her department." In sup- port of its defense that Hamby was laid off in accordance with its written policy, Webb testified that he obtained the seniority list from the personnel office and applied the rule in selecting Hamby and the others for layoff. Webb admitted,'however, that he did keep others younger in service on other shifts than Hamby but maintained that they were more efficient people.24 Webb admitted also that he probably had 3 or 4 working there who had less seniority than Hamby and who did the same work as Hamby performed. Webb further testified that lie laid Hamby off because he was slow and inefficient. Webb testified that he transferred Hamby from the first shift to the third shift because he needed a utility man on the third shift and Hamby was, the only utility man on the first shift and that Everett Pruitt, a utility man on the second shift,. had worked there longer than Hamby. Webb admitted later in his testimony that Pruitt was employed about the first of the year 194S ' Webb testified that Pruitt's job was hanging laps which was a heavy job and needed a stout young man and that Hamby was stripping and sweeping. But Webb admitted, Pruitt's job was abolished when Hamby was transferred to the third shift and he was put on Hamby's job, b. Conclusions as to Hamby's discharge The resolution of the problem whether Hamby was discriminatorily selected for layoff or discharge by Webb depends on whether Webb took advantage of the opportunity which presented itself, because of the necessity to lay off' employees to rid himself of Hamby because of Hamby's union activities, under pretense of observing the company policy regarding layoffs. Webb made no secret of his union animosity either then or at the hearing; he admitted that he- "laid it on them" every chance he got but claims he restricted his activities to the year 1947 and changed his tactics after Superintendent Cobb informed the super- visory personnel that they were not to discuss the Union with employees. Webb promised Hamby on June 5, 1948, to return him to the first or second shift after a couple of weeks. But it should be noted, Webb lost no time in eliminating 22 Hamby could only read "a little." 23 The number of employees in both mills gradually decreased monthly from 573 im February 1948 to 467 in January 1949. 24 Webb testified that the policy on layoffs would apply to all three shifts in a single room. There was no seniority policy on calling employes back to work. 25 Pruitt testified that he was employed first in November 1947 and after working a few weeks obtained a leave of absence and returned in January or February 1948 from which, time he worked steadily. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pruitt's job as lap hanger on the second shift and placing him on Hamby's job on the first shift. Thus did Webb insure that there would be no place for Hamby to return to on the first shift; nor on the second shift, because Webb eliminated Pruitt's job. There is no evidence in the record to compare Hamby's qualifica- tions with those doing similar work who were retained on the first and second shifts. The evidence in the record comparing Hamby's earnings as contained in the allowance reports show that the basis used for comparison is for job number 221 (drawing hand). Of the several job classifications in which Hamby worked the Respondent sets forth in the allowance report Hamby's work as a drawing hand and compares his record with others working not only as drawing hands but in other classifications as well. Examination of Hamby's time cards from the week ending June 5 to August 13, 1948, diclose that he worked at sev- eral other jobs besides being a drawing hand. I do not believe Webb's testi- mony that he included Hamby for layoff after deciding that his qualifications were not equal to those younger in service than Hamby was. I believe and find that in view of Webb's proven hostility to the Union he selected Hamby for eventual discharge, pursuant to Webb's own voiced purpose to be "shed" of him ; paved the way for that accomplishment by transferring him to the third shift on June 5; and then discharging him on August 13, under the pretext that the application of the seniority policy required his dismissal. Accordingly I find that, upon all the evidence, the Respondent by discharging Hamby and refusing him reinstatement discriminated with respect to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The discharge of Ray Cline The complaint alleges that the Respondent violated Section 8 (a) (3) of the Act by discriminatorily discharging Cline because of his union membership and activities. The Respondent defends on the ground that Cline was hired as a temporary employee to do another employee's job and when that employee was returned to his own job, Cline's services were discontinued as no longer needed. Cline testified that upon hearing from his brother-in-law who also worked for the Respondent, that an employee Ralph Storey had been discharged at the mill, Cline applied to Leonard Sanders, who was in charge of the weaving room, for the job. Cline testified that Sanders told him he wanted a man who would work regularly and Cline promised that he would ; and that nothing was said that the job would be temporary. Sanders then sent Cline to Culclasure, the personnel manager, to fill out the necessary application forms. Cline testified that Cul- clasure at that time asked. Cline if he needed a company house to which Cline replied that he did not, because he lived with his father-in-law, Rufus Hamby. That same night, May 3, 1948, Cline reported for work on the third shift in the weaving room, blowing off looms and sweeping. His work was never criticized and he worked regularly until his termination on May 28, 1948.6 On the night of May 28, when Cline reported for work at his usual hour 10 p. in., Eppley, the second hand under whom Cline worked, notified him that he would not need him any longer and to report to Culclasure to get his pay. Cline inquired if his 11 Cline denied that he was absent without permission on May 7, as shown by an entry on his personnel card. The Respondent having failed to produce further evidence to support the notation on his personnel card, Cline 's testimony is accepted. PACIFIC MILLS 77 work was satisfactory and Eppley informed him that it was "OK." The Re- spondent did not offer any evidence to contradict Cline's testimony that he was hired after promising Sanders that he would work regularly ; or that Culclasure asked Cline if he needed a company house 27 Such uncontradicted testimony is practically conclusive that Cline was hired on a permanent basis to replace Storey, otherwise why would Culclasure be interested in providing Cline with a company house if his job was to be temporary for a matter of 3 or 4 weeks? The Respondent failed to show who replaced Storey if it was not Cline or whether that job was kept vacant. If Cline actually did replace Storey then the evidence relating to transfers and retransfers of Lunsford and Page are irrelevant. As noted above, at the time he. was hired, Cline informed Culclasure that he was Rufus Hamby's son-in-law and lived with Hamby. Cline joined the Union during the first week of his employment in May and took an active part in union activities. He attended union meetings and was discharged within a week from the time he spoke at the meeting of, May 22, 1948. At that meeting, the Respondent's supervisor, Weaver, heckled the speakers and attempted to disrupt the meeting, on the basis of his antiunion statements. Cline testified that within Weaver's hearing he stated if there were any more such interrup- tions he would throw them in the river 29 Cline accompanied his father-in-law, Hamby, throughout the houses in the company village in the campaign to secure union members; Cline and his wife made posters advertising union meetings and hung them on the mill gate and fence ; Cline passed put leaflets to employees at the mill gate and used his automobile to transport employees to the union meetings. Baxter testified that during the same conversation had with Webb before Baxter's discharge in which Webb had remarked that he was going to "get shed of Hamby," Webb had also said that he knew that Hamby's son-in-law was also going around signing up employees in the Union. Cline also testified that following his discharge, others with no experience were hired to do the same kind of job he had been doing. Following the death of Curtis 20 in a week following Cline's discharge, the Respondent hired a new employee to replace Curtis, although Culclasure according to Cline's uncontradicted testimony had told Cline when he was paid off that he would put him back to work if there was anything open. Cline applied to the Respondent for work in September 1949 at which time Culclasure told him that he had nothing for him. Upon consideration of all the evidence, I find that Cline was hired to replace Storey and was not temporarily hired to do Lunsford's work. Upon all the evidence, I conclude that because of Cline's known union mem- bership and activities the reasons assigned by the Respondent were a pretext. for discharging him on May 28, 1948, and therefore find that in violation of Section 8 (a) (1) of the Act, the Respondent by discharging Cline and refusing him reinstatement to a loom blower and sweeper's job on May 28, 1948, dis- criminated with respect to his hire and tenure of employment, thereby dis- couraging membership in the Union and interfering with, restraining, and coercing, its employees in the exercise of the rights guaranteed in Section 7 of the Act. 27 Neither Sanders nor Culelasure testified at the hearing. ' Cline's testimony on this point is uncontradicted. Weaver did not testify at the hearing. ° Curtis did the same work as Cline, blowing looms and sweeping. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE .UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic , and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated Section 8 (a) (1) and (3) of the Act, I shall recommend that it, cease and desist therefrom, and that it take affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated against Rufus B. Hamby in regard to his hire and tenure of employment, thereby discouraging membership in the Union , by discharging him on or about August 13, 1948, -I shall recommend that the Respondent offer to Rufus B. Hamby immediate and full reinstatement to his former job as a utility man in the card room or a substantially equivalent position ,80 without prejudice to his seniority or other rights and privileges ; and that the Respondent also make the said Rufus B. Hamby whole for any loss of earnings suffered by him by reason of the Respondent 's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages as a utility man from the date of the discrimination against him, August 13, 1948, to the date of the offer of reinstatement , less his net earn- ings during that period si, Having found that the Respondent discriminated against Ray Cline in regard to his hire and tenure of employment , thereby discouraging membership in the Union, by discharging him on or about May 28, 1948 , I shall recommend that the Respondent offer to Ray Cline immediate and full reinstatement to his former job as loom blower and sweeper or a substantially equivalent position ,n without prejudice to his seniority or other rights and privileges ; and that the Respondent also make the said Ray Cline whole for any loss of earnings suffered by him by reason of the Respondent 's discrimination against him , by payment to him of a sum of money equal to that which he normally would have earned as wages as a loom blower and sweeper from the date of the discrimination against him, May 28, 1948, to the date of the offer of reinstatement, less his net earnings during that period sa I believe that the unfair labor practices committed by the Respondent po- tentially relate to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the Respondent's past conduct. The preventive purpose of the Act will be thwarted unless my recommendations are coextensive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act I shall recommend that the Respondent cease and desist from in any manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following : ao See The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 837 . Also, Macon Textiles, Inc., 80 NLRB 1525. Crossett Lumber Co., 8 NLRB 440, 497-498. as See footnote 30. as See footnote 31. PACIFIC MILLS CONCLUSIONS OF LAW 79 1. Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section. 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Rufus B. Hamby and Ray Cline, and thereby discouraging membership in Textile Workers Union of America, CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.]