Alabama Fuel & Iron Co.

In the Matter of ALABAMA FUEL & IRON COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT 20 Case No. 10-C-1558.-Decided June 23,1945 DECISION AND ORDER On October 16, 1944, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, the Union and counsel for the Board filed exceptions to the Intermediate Report and supporting briefs Oral argument, in which the respondent and the Union participated, was held before the Board at Washington, D. C., on March 1, 1945. In accordance with permission granted by the Board at said oral argument, the Union filed a supplemental brief and the respondent a reply thereto. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs of the parties, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions, additions, and qualifications noted below. In June 1942 the Board, upon charges duly filed by the Union, issued against the respondent a complaint alleging violations of Section 8 (1), (2), and (3) of the Act In July 1942, the case was settled upon the execu- tion by all parties of a stipulation providing for a Board Order requiring the respondent, among other things, to cease recognizing, dominating, or interfering with, and to disestablish, seven named labor organizations; to cease and desist from engaging in surveillance of the Union, and from "knowingly permitting officers or agents of any labor organization, whether employees of the respondent or not, to engage in activities among the em- 62 N. L R. B., No. 99. 762 ALABAMA FUEL & IRON COMPANY 763 ployees of the respondent on behalf of such labor organization, among such employees while they are working on the job, or on the respondent's prop- erty, equipment, or facilities, unless such privileges are granted equally to all labor organizations of the said employees" ; and to cease and desist from in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act.' Shortly after the execution of the aforesaid stipulation, the respondent promulgated and posted a rule, providing inter aria, that "emplo) ees of the Company must not solicit membership in any labor organization or en- gage in or carry on organizational activities or any other activities of any labor organization on the Company's time or while on the job or on the Company's plant property." The record shows that the respondent has in- terpreted and enforced this rule so as to prohibit union solicitation or organ- izational activities of any kind on the plant property during the employees' non-working time. The Trial Examiner found that the "rule, insofar as it purports to be restrictive of union activities on the employees' own time transcends the legitimate scope of employer discretion as generally defined by the Board " He concluded, however, that the rule was promulgated within the terms of the Board's Order and the consent decree based on the stipulation of July 1942, and that "its impartial enforcement raises no issue of interference with the rights of its employees under the Act." Counsel for the Board excepted to this finding on the ground that the extension of the no-solicita- tion rule to the employees' non-working time is not justified by the stip ulated order of the Board, or the consent decree based thereon, and that the finding of the Trial Examiner is contrary to the established decisions df the Board and the courts. In its reply brief submitted after oral argument before the Board, the respondent consents to the entry of an order with respect to the scope of the no-solicitation rule \Ve do not agree with the Trial Examiner's ultimate finding. We believe that a reasonable interpretation of the stipulated order, and the decree based thereon, merely required the respondent to refrain from applying a no-solicitation rule in a discriminatory manner as between competing labor organizations ; it did not require the respondent to suppress all union activity on its plant property even during the employees' non-working time, Moreover, even assuming that the respondent in good faith was misled by the language of the stipulated order and consent decree, nevertheless the respondent was put on notice by the Board's complaint that its conduct with respect to the scope of the rule was being charged as a violation of I See Matter of Alabama Fuel & 1i on Company, 43 N L R B 166 In the stipulation the .1 espond cut also consented to the entry of a decree by the Fifth Cucuit Court of Appeals, in the terns of the Board 's Order A copy of said consent decree, dated September 1, 1942, is attached to the Intermediate Report 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act.' The respondent failed, however, to modify the rule in any respect. There is no showing that the prohibition against union activities at the plant during the employees' non-working time was necessary in order to maintain production or preserve plant discipline. Upon the entire record, we find that the rule, insofar as it prohibits union activities on the plant property during the employees' non-working time, constitutes an unreason- able impediment to self-organization, and interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth above, occurring in connection with the operations of the respondent described in Section I of the Inter- mediate Report annexed hereto, 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 practices affecting commerce, we shall order it to cease and desist therefrom and take certain affirmative action, which we find will effectuate the policies of the Act. Since there is already outstanding against the respondent a decree enjoining the respondent, among other things. to cease and desist from in any manner interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, we do not believe it necessary, in order to effectuate the policies of the Act, to include the same provision in our Order. We have found that the respondent's rule prohibiting union activities on the plant property, insofar as it applies to the employees' non-working time, interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall order the respondent to rescind the rule insofar as it prohibits union activities on plant property during the employees' non-working time. CONCLUSIONS OF LA\V 1: United Mine Workers of America, District 20, 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 2 The complaint alleges that the respondent violated the Act by, among other things , "advising, warning, and ordering its employees . not to engage in any union activity on any company property " 5 See Matte, of Republic Ac,atOou Co, pot at,ou, 51 N L. R B 1186, enf'd 65 S Ct 982 (16 L K R 300), decided Apid 23 1945 I ALABAMA FUEL & IRON COMPANY 765 exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practice, within the meaning of Section 8 (1) of the Act. 3 The aforesaid unfair labor practices are unfair labor practices affect- ing commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not discriminated with respect to the' lure and tenure of employment of its employees, within the meaning of Sections 8 (3) of the Act ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Ala- bama Fuel & Iron Company, Birmingham, Alabama, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Mine Workers of America, District 20, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, by prohibiting union activity on plant property during the employees' non-working time and by like or related acts or conduct. 2. Take the following affirmative action which the Board finds will effec- tuate the policies of the Act : (a) Rescind immediately the rule prohibiting union activity on plant property insofar as it applies to the employees' non-working time (b) Post in its mines in St. Clair County, Alabama, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be fur- nished by the Regional Director for the Tenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps ',hall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Tenth Region in writing, with- in ten (10) clays from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTI-IER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the respondent violated Section 8 (1) of the Act in the other respects specified in the complaint and Section 8 (3) of the 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act by discriminating in regard to the hire or tenure of employment of Finus Rodgers, J. W. Wise, John Ivey Warren , Louis Johnson, and Otis Johnson. APPENDIX "A" NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Mine Workers of America, District 20, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, by prohibiting union activity on plant property during the employees' non-working time and by like .or related acts or conduct. All our employees are free to become or remain members of this union, or any other labor organization. - We hereby rescind the rule prohibiting union activity on plant prop- erty, insofar as it applies to the employees' non-working time. ALABAMA FUEL & IRON COMPANY (Employer) By (Representative ) ( Title) Dated This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material MR. GERARD D. REILLY, concurring : I concur in the result reached by the opinion of my colleagues on the sole ground that, in its reply brief submitted after oral argument before the Board, respondent consented to the issuance of an order requiring rescission of its rule prohibiting solicitation for union membership on respondent's property during the employees' non-working time. I perceive no error in the conclusion of the Trial Examiner that respond- ent's promulgation and impartial enforcement of the rule, in view of the September 1942 consent decree, was not an unfair labor practice. Clearly the decree was ambiguous. Under familiar rules of statutory construction, the moving party, in this case the Board, is estopped from urging that the decree be interpreted so as to reach a result contrary to the reasonable construction given it by respondent. , ALABAMA FUEL & IRON COMPANY 767 INTERMEDIATE REPORT Mr. John H Garver, for the Board Benners, Burr, Stokely & McKainy, by Messrs. Borden Burr and Grady Patterson, of Birmingham, Ala., for the Respondent. Mr. William F Spencer, of Birmingham, Ala., and Mr Yelverton Cowherd, of Washington, D C, for the Union. STATEMENT OF THE CASE Upon a charge duly filed on April 26, 1944, by United Mine Workers of America, District 20,1 herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated May 16, 1944, against Alabama Fuel & Iron Company, herein called the respondent, alleging that the respondent had engaged and was en- gaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the alleged unfair labor practices, the complaint in substance states that the respondent' (1) discriminatorily discharged five named employees on or about the dates alleged2 and thereafter failed and refused to reinstate them, (2) in- terfered with, restrained and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act by the said discriminatory discharges and by certain described acts of its officers, agents, representatives and employees, and more par- ticularly of certain individuals named, from on or about August, 1942, to the date of said complaint a The respondent duly filed a motion for a bill of particulars and an answer admit- ting certain allegations of the complaint as to the nature and extent of its business and denying that it had engaged in the unfair labor practices alleged The answer further sets forth certain pleas in bar to the allegations as to discriminatory discharge based on lapse of time and on alleged prior adjudications by the Board; Pursuant to notice a hearing was held at Birmingham, Alabama, on June 1, 2, 5, 6, 7 and 8, 1944, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. At the outset of the hearing the i espondent presented its motion for a bill of par- ticulars but in order to expedite the hearing waived ruling on the merits and consent- ed to a denial of the motion reserving to the respondent the right to move at a later stage of the hearing for appropriate relief in the event of surprise At the conclusion of the testimony counsel for the Board and the respondent respectively moved to con- form the pleadings to the proof as to minor details The motions were granted At the close of the hearing all parties waived oral argument before the undersigned. Leave was granted to all parties to file briefs before the undersigned within a time 1 The charge was filed in the name of "United Mine Workers of Ameiica " The name of the charging union as stated was corrected by stipulation at the hearing 2 Viz, Finns Rodgers on September 25, 1942„J. W. Wise on February 24, 1943, John Ivey \\ ar- ren on January 18, 1944; Louis Johnson and Otis Johnson on January 20, 1944, The acts so alleged are hereinafter more fully set out in the Section entitled "lnteiference, rc straint, and coercion " I The respondent's pleas in hat are hereinafter discussed in the Section entitled "The disci mnn story discharges a 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - designated which was later extended to August 15 due to unavoidable delay in the completion of the official transcript of record. Briefs have been filed on behalf of the Union and the respondent 6 Subsequent to the close of the hearing, counsel for the Board, the respondent, and the Union, respectively, entered into and filed with the undersigned, a signed stipula- tion for'the correction of the transcript of record in the particulars therein set forth. The said stipulation was approved by the undersigned and is hereby incorporated as a part of the record of the hearing. On September 9, 1944, the undersigned issued all order directing that the transcript of the record be corrected in certain particulars including the matters set forth in said stipulation and other particulars in which cor- rections were made by the undersigned on his own motion. On the basis of the record thus made, and his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The respondent is a corporation duly, organized under and existing by virtue of the laws of the State of Alabama, with its principal office and place of business in the City of Birmingham in said State. The respondent owns and operates certain coal mines in St. Clair County in the State of Alabama, and incident to its mining operations purchases and causes to be shipped from points outside the State of Alabama to its mines in said State, machinery, parts, tools, equipment and supplies to a value in excess of $500,000 annually. It mines and produces more than 1,100,000 tons of coal annually, of which approximately 90 percent is shipped in interstate commerce, or sold to interstate railroads or to steamship lines. The respondent admits that its opera- tions are in commerce within the meaning of the Act II. THE ORGANIZATION INVOLVED United Mine Workers of America, District 20, is a labor organization admitting to membership employees of the respondent. III THE UNFAIR LABOR PRACTICES A. Preliminary findings The respondent operates two coal mining divisions in St Clair County, Alabama. known as "Margaret" and "Acmar" respectively. The two divisions are about 6 miles apart Each consists of a number of separate mines which are separately designated by the name of the division and an identifying numeral. All the testimony as to unfair labor practices alleged in the complaint relates to one or the other of these divisions. At the times material to the issues in this proceeding, F. R Bell has been general manager of both divisions and R. A. Sansing has been superintendent of "Margaret" T. B. Dryer was superintendent of "Acmar" until about the middle of September 1942. Thereafter Bell acted as superintendent until April 1, 1943, when R C McClain was appointed superintendent. 6The parties were originally granted leave to file biiefs until June 30 The intervening illness of the reporter delayed the completion of the transcripts and the time for filing beefs was extended to August 15 Counsel for the Union filed a brief which was mailed before the parties had been advised that the time was extended, and was accordingly given leave by the undersigned to file a supplemental brief within the extended time Through misunderstanding of the time limitation, the Union's supplemental brief was not nailed until August 18 The respondent on August 24 mailed a reply brief to the Union's supplemental brief. Both the Union's supplemental brief and the ic- spondent's reply have been received and considered as having been timely filed , ALABAMA FUEL & IRON COMPANY 769 Upon charges duly filed by the Union, the Board by its Regional Director for the Tenth Region heretofore issued its complaint dated June 24, 1942, against the respond- ent alleging that the respondent had engaged and was engaging in unfair labor prac- tices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. On July 21, in the course of a hearing duly ordered on said complaint, all parties thereto entered into a stipulation in settlement of the case, subject to the ap- proval or the Board. On July 28, the Board issued its order approving the stipulation and, on August 14, its decision and order based upon the stipulation and the entire record in the case.' Upon the petition of the Board, filed pursuant to the terms of the stipulation, the United States Circuit Court of Appeals for the Fifth Circuit issued its consent decree, dated September 1, 1942, enforcing the order of the Board." Shortly after the stipulation for settlement had been executed, counsel for the re- spondent prepared a form of notice purporting to comply with the notice provided for under the stipulation together with a supplementary notice reading as follows : NOTICE TO EMPLOYEES The following rule in connection with the operations of the Company will be enf of ced : Employees of the Company must not solicit membership in any labor organiza- tion or engage in or carry on organizational activities or any other activities of any labor organization on the company's time or while on the job or on the Company's plant property. Any person not an employee of the Company who enters upon or remains on the Company's plant property for the purpose of, or while there engaged in, soliciting membership of any employee in any labor organization or carrying on or engaging in any organization activities of any labor organization will be regarded and treated as a trespasser. On July 25, Prince De Bartleleben, president of the respondent, and Borden Burr, its attorney, attended separate meetings of the employees at the Margaret and Acmar mines.' Burr read the two notices referred to above at each of these meetings with an explanatory comment in amplification and interpretation of the terms of the notices. After the Board had approved the stipulation for settlement, the notices were posted throughout the mines„ The general notice was in the form of several typewritten sheets stapled together. At the request of the Board's Regional Attorney the respond- ent later procured and posted printed notices, on placards approximately 14" x 17" in size, in the specific terms of the Board's order. B. The alleged discriminatory discharges 1. The issues The complaint alleges that on or about the dates hereinafter set forth the respondent discriminatorily discharged certain of its employees, to-wit: Finns Rodgers on Sep- 6 In t}ie Matter of Alabama Fuel & Iron Company and United Mine Workers of America, Dis- tiict 20, and Overton White Welfare Society, Overton Colored Welfare Society, Margaret White tvelfaie Society, Maigaret Colored Welfare Society, Acmar White Welfare Society and Acmar Colored Welfaic Society, Parties to Agreement, Case No C-2274, 43 N L. R B 166 7N. L. R B. v. Alabama Fuel & Iron Company, Docket No. 10421 ( unreported). For purposes of convenient reference a copy of the provisions of the consent decree is hereto attached, marked "Appendix A " 8 July 25, 1942, being a Saturday, was-not a regular working day at the mines 9 As noted above, the Board approved the settlement on July 28, and issued a decision and order based thereon on August 14 It is not clear from the record whether the posting was immediately following the Board's approval of the settlement or the issuance of the Board's order The record suggests the greater probability of the earlier date. 77n DECISIONS OF, NATIONAL LABOR RELATIONS BOARD tember 25,1942; J. W. Wise on February 24, 1943 , John Ivey Warren on January 18, 1944; and Louis Johnson and Otis Johnson on January 20, 1944; and thereafter failed and refused to reinstate them, because of their membership and activities in the Union The answer admits that the respondent discharged the said employees at the approximate times alleged, but denies that it failed and refused to reinstate them and avers that none of said employees have requested reemployment or reinstatement 10 The answer further avers that each of the said employees was discharged for cause unrelated to and unmotivated by his union activities By way of special defense to the allegations of unfair labor practice relating to the discharge of Finus Rodgers and J W Wise, the answer alleges • that the Union had previously filed charges with reference thereto; that after investigation the Board and its agents refused to issue a complaint'; and that. any "alleged claims in reference to" said discharges are (1 ) "barred by the Statute of Limitations of one year," (2) "barred as provided for by the Act of the legislature of Alabama, General Acts of Alabama, Page 363," (3) "barred by the Statute of Repose," (4) "barred by ]aches," and (5) have already been "adjudicated by the previous decisions of the Board " In the interest of clarifying the issues , the undersigned on his own motion strikes the causes of defense set forth in subsections of the answer hereinabove numbered (1), (2), (3), and (4) as irrelevant and without merit in law. As to the cause of defense set forth in the subsection hereinabove numbered (5), the undersigned finds that there is no evidence in the record in support thereof u The sole question there- 110 At the close of the hearing counsel for the respondent without moving formally to amend the answer indicated that the averments as to the failure of the discharges to apply for reinstatement, and the refusal of the respondent to reinstate them, were inadvertencies in the pleadings, due to pressure circumstances under which the answer was prepared n The undersigned takes judicial notice that on October 20, 1943, the Union filed a charge with the Regional Director for the Tenth Region, in the Matter of Alabama Fuel & Iron Company and United Mine Workers of America, District 20, Case No 10-C-1246, alleging that the respondent had engaged and was engaging in unfair labor practices within the meaning of Section 8 ( 1), (2). and (3 ) of the Act, in that: " (1) The said company, by its officers, agents and supervisory employ- ees, did dominate and interfere with the formation and operation of the Margaret Welfare Society, the Acmar Welfare Society , the Alabama Fuel & Iron Company Employees Association, labor or- ganizations, and at all times since the date of formation of said organizations had dominated and interfered with the operation and administration of said organization and has contributed financial and other support thereto at all times since the formation thereof . (2) The said Company, by its officers, agents and supervisory employees , has required as a condition of employment by said com- pany, that persons applying for employment join and become a member of and/or be approved by the Margaret Welfare Society , Acmar Welfare Society, and/or the Alabama Fuel & Iron Company Employees Association . ( 3) The said company , by its officers , agents and supervisory employees, since the 21St day of July, 1942, did discharge , and/or have at all times since said date refused, and do now refuse to reemploy . . Finus Lafayette Rogers . . ( 4) By the acts set forth in the paragraphs above and by all other acts and conduct , the said company, by its officers, agents, and supervisory employees, has interfered with , restrained and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the National Labor Relations Act, and have by all of said acts violated the agreement made between the parties in the above entitled matter on July 14, 1942 and the decree of the United States Court of Appeals for the Fifth Circuit entered on Septem- ber 30, 1942 pursuant to the agreement between the parties heretofore mentioned " On November 16, 1943, the Regional Director advised the Union that the case had been "carefully investigated and considered ," that further proceedings did not seem warranted , and that he was refusing to issue a complaint in the matter Upon appeal by the Union to the Board, the latter on January 10, 1944, sustained the decision of the Regional Director It is clear that the Board's decision was only on the issue of whether the refusal of the Regional Director to issue a complaint was an abuse of administrative discretion and did not involve a disposition of the charge on the merits Consequently neither the decision of the Regional Director nor that of the Board would constitute a bar to the present proceeding Both the action of the Regional Director and that of the Board have, however , been considered by the undersigned as-factual elements established by the record in this proceeding to be accorded such weight as the record as a whole justifies. _ L \1;A^ML-\ FUEL & IRON COMPANY 771 fore in this proceeding with reference to the admitted discharges of the employees named is whether or riot they or any of them were discharged for reasons prescribed by the Act. 2. The discharge of Firms Rodgers Rodgers has been twice employed by the respondent The later period, during which he worked as a coal loader at Margaret No 8, started on March 18, 1941, and ended with his discharge on September 25, 1942. During this time he was an active member of the Union, attending its meetings, soliciting memberships, and during the latter part of the year 1942 making weekly distribution of union literature among the em- ployees of the Margaret division. On or about September 6, some of the employees at Margaret No. 8 complained to John Hogg, mine foreman, that Rodgers was talking to them on the job about signing up with the Union. Hogg reported the complaint to Sansing that evening and was told to send Rodgers to the office on the next morning. When Rodgers, on Hogg's instructions, reported to Sansing, Sansing told him that he had been reported for violation of the mine rule against soliciting. Rodgers denied the accusation Sansing told him to go on back to work but that if he did not stop talking about the Union while on the job, he would be discharged. On or about September 24, Hogg again received complaints from some of the employees that Rodgers was soliciting them on company time and property to join the Union He reported the complaints to Sansing and at Sansing's request gave him the names of the employees who had complained of Rodgers' activities. Sansing interviewed the complaining employees and then sent for Rodgers. Rodgers again denied the accusation, but Sansing told him that the information he had received was convincing to the contrary and there- upon discharged him, the reason as assigned on the separation notice being "Violated mine labor rule." On or about September 28, Sansing obtained as a matter of record signed statements from employees who had complained against Rodgers, confirming the oral statements made to Sansing before the discharge. 12 Rodgers reported his discharge to the Union, which filed a charge with the Board on his behalf, but after investigation no complaint was issued. On November 16, 1942, Rodgers obtained preferable employment elsewhere and has since been unwilling to return to work for the respondent" The Board contends that conceding, arguendo, that Rodgers continued after warn- ing to violate the rule against soliciting, a disparity between the respondent's treat- ment of him and that accorded to employees who solicited for the Associated Mine Workers, a rival labor organization, demonstrates that the cause assigned for the dis- charge of Rodgers was pretentious. The record indicates that there was some solicit- ing for the Associated Mine Workers on company time and property. In every such case, however, where the offenders were identified, they were given the same warning 1E One of these, Abe Payne, testified at the hearing The others were present and the respondent was prepared to put them on the stand The undersigned excluded their testimony on the ground that it was cumulative This ruling would have been premature if the issue had been whether the complaining employees were in fact solicited by Rodgers, as claimed . As Sansing acted on informa- tion received and not on the basis of personal observation, the issue was whether, in crediting the complaining witnesses , he acted in good faith. Rodgers admitted on the stand that he had dis- cussed the Union with one employee, Sam Crane, on company property after he had been warned by Sansing. The undersigned credits Payne's testimony that he also was solicited by Rodgers on company time and property. The undersigned further credits Hogg's testimony as to the complaints received by him and Sansing's testimony as to his interviews with the complaining witnesses and his belief in the truth of their statements. 11 The foregoing findings are a composite of the testimony of Rodgers, Hogg and Sansing which are not in conflict to the extent of these findings 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given to Rodgers and there is no evidence that the offense was in any instance re- peated. The undersigned finds and concludes that the respondent did not by discharging Rodgers discriminate in regard to his hire or tenure of employment." 3. The discharge of James W. Wise Wise was employed by the respondent on or about January 7, 1942, on the tipple crew at Acmar No 8, under D M. ("Doc") Goforth, mine foreman In the latter part of December, production at No. 8 was interrupted by flood water and for several weeks thereafter Wise and other members of the crew worked at Acmar No 6 He resumed his employment at No. 8 on February 18, working a double shift that ended at 7 o'clock on the morning of February 19, and thereafter working a single shift beginning midnight of the 19th and ending 7 o'clock on the morning of the 20th When he reported for work on the night of the 22nd he was discharged The evidence relating to his discharge is hereinabove reviewed in the light of the follow- ing preliminary findings. As found above, Wise was employed as a member of the tipple crew at Acmar No 8 In describing his duties Wise testified: "I was working on the top house ..." Q. You called it the top house because it was on top of the entrance to the mine? A That is right . . "I done practically all kind of work that was to be done down there. My main job was to operate the machinery down there, the switchboard, starting and stopping motors and running the different belts and shakers, and such as that." The tipple was constructed out from the pit-mouth of the mine, and cars loaded inside the mine were hauled by cable to tracks on the upper level where they were weighed, dumped, and switched back into the mine for reloading. The coal, after pass- ing through a series of screens or "shakers" for the purpose of separating the various sizes, was finally run through a chute into railroad cars on the ground level for shipment. All operations at the tipple were under the direction of the weighman, known also as the "tipple boss," whose work station was on the upper level of the tipple just below was a small galvanized iron shelter known as the "shaker" room, about 6 feet square, framed with 2" x 4"'s and tied overhead at a height of 6 to 8 feet into the heavy sills supporting the tipple. The switches that controlled operations on the tipple were located in this shelter, which had a cement floor and was furnished with a Congress stove about 4 feet in height with a door at the side and a lid opening on top. The stove was vented by a short length of pipe projecting through the overhead timbers The arrangement was a potential fire hazard and employees using the shelter were instructed generally to maintain a low fire level in the stove and to see that the fire was extinguished or well dampened when they came off shift On the early morning of February 20, James ("Woody") Chambers was working on the tipple as weighman and Wise, the only other employee on the tipple, was sta- tioned in the shelter operating the switchboard on Chambers' instructions given through a "teletalk," or loud speaker At times Wise would go up on the tipple to assist Chambers, and occasionally Chambers would come down to the ground level to help Wise in moving railroad cars At 7 am Wise left the shelter and joined Chambers on-the upper level and the two left the mine in Wise's car. About half,an 14 Certain phases of Rodgers ' testimony not hereinabove reviewed will be hereinafter discussed in the section entitled "Interference, coercion and restraint " - ALABAMA FUEL & IRON COMPANY 773 hour later Odell Fulmer, the day tipple boss,16 while walking from the pit-mouth on to the tipple noticed smoke coming from the shaker-room. Upon investigating he found that the stove in the shaker room was red hot and that the overhead sills were burning. With the aid of Thomas Taylor, mine engineer, and Ed Goodwin, an employee, Fulmer put out the fire. The extent of the damage was limited, as it hap- pened, to some charred sills, but if the fire had not been discovered before gaining more headway the tipple itself would have been endangered Examination of the stove showed that the fire level was so high that the door could be opened without spilling live coals. About 10 o'clock that morning Goforth, who had been working in the mine with a special crew, came outside and Fulmer showed him the fire damage Knowing that Wise and Chambers had worked on the last shift at the tipple, and that Chambers lived near the mine, Goforth went to see Chambers who told him that he had not been in the shaker-room since early that morning and at that time everything was all right. During the day Bell came to the mine and was told about the fire and shown the condtion of the shaker-room. As Wise lived some 15 miles away no effort was made to get in touch with him until the following Monday night when he reported for work.16 Wise testified as td'the events of Febuary 22: Mr. Goforth was up there. When I went up, I spoke to him, and he spoke; he said, "Well , Jim, I am done with you." I said, "Done with me" ^ He said "Yes". I said, "What is the matter "? He said, "Well , I am going to fire you'.' I said "What for"? He said, "For letting down a car without a helper and leaving fire in the heater Friday night and causing the top house to catch fire." I said, "I never done that ." He said, "Well I have been told that you did." I said, "You were told a lie." He said, "It don't make any difference, I am firing you." I said, "All right." So he went up to the engine room. Q. Did you have a chance to see the place he claimed you had set fire to? A. Yes, sir. Q. What did it look like had happened? A. It looked like there had been too much fire in the heater and got that pipe that went between these two pieces of plank-there was only two joints of pipes through the heater-it looked like that pipe had been red hot and had scorched them planks Q. Did you tell Mr. Goforth whether you had done that or not? A. I told him I didn 't do that. I said , "I never even put a chunk of coal in that heater all night." Q. In other words, on that previous Friday night you were working you were supposed to have over-heated the heater? A That is right. I came off at 7 o'clock in the morning, and they took it at 7, the day shift did. Q. You say you were accused of letting a car down without a helper? A. Yes, sir. Q. ,What process is that you are talking about? A. Well, it is them railroad cars, you know, it is down grade the way they come 16 The mine was not operated on Saturdays but Fulmer always came back to the mine anyway to turn in his records and attend to odd jobs. 16 The foregoing findings are based on a composite of the testimony of Wise, Chambers, Fulmer, Goforth and Bell, none of which is in material conflict to the extent of the above findings 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the chute where we shake the cars out and the slack coal runs in a rail- road car Q. That is not the same kind of car that goes down in a mine, is it? A. No, sir, this is a railroad car We have to let those cars come down and we have to take the brakes [off] and one man takes a pinch bar and pinches it off and it rolls on down Q Had you let a car down without a helper' A No, sir. Q. What did you tell Mr. Goforth? A. I told him I didn't let down no cars without a helper. I said, "Worley Cham- bers came down and pinched that car off from under the chute, and I let it roll down He pinched that one off and let it go under " Q. Did Worley Chambers then come around while you were talking to Doc Goforth about it' A. Yes, sir. - Q. What happened when he came up? A I went up to the top house where Chambers was and asked lam if he did tell him that ; he said "No, I didn't tell him " I said, -Well, I will see Mr Goforth." I said, "Worley tells me he didn't tell you that " He said, "It don't make any difference to me, you are fired " I said, "All right," and I got in the car TRIAL EXAMINER WILBUR Did Chambers go hack to Goforth's office with you? THE WITNESS. Yes, sir. They had a little old house there that had a heater in it, and we went back up there. Goforth testified as follows Q. Did you see the stove and the fire, the damage that was done? A I did. * * * * * Q. Did you try to find out who was responsible for it? A. Yes sir, I did. Q. What effort did you make along that line? A. I knew Mr. Chambers and Mr Wise was the only two men supposed to he working that night, and I went and asked Chambers He lived in the cafiip I asked Chambers what was wrong that they left the stove full of coal that morning. He said, "I don't know, Mr. Goforth I was not clown there after 4 o'clock." He said, "When I was down there everything was all right " Q. Did he tell you whether or not Wise was there? A. He did not tell us, but I knew that the two men was working. Q. Did you talk to Wise about it? A. I did. Q. What did he say? A. He said he left the stove all right as far as he knew; he said that he had been warned to leave it low, and he left it low. Q. Now, did you fire Mr Wise then or take it up with Mr. McClain? A. I wouldn't say I took it up with anyone I think Mr. Bell came by that day, and we went down there and showed him what had happened. Q. Did you tell him what you had learned about it? A. Yes, sir. Al..AGAMVMA FUEL & IRON COMPANY 775 Q. Did you tell him Wise was in charge of that stove [on] that shift? A. I did. Q. And he was the last man that left? A. That is right. Q. Did he tell you to discharge him? A. I wouldn't say whether he told me to discharge him or not. Q. Was he discharged that day or afterwards? A. Yes, sir. Not on Saturday. He lived off from there, and I didn't get to see him until Monday or Tuesday morning, probably in the evening Q. And after talking with him was that when he was discharged? A. That is right. Goforth further testified under cross-examination as follows : Q. When did you take it up with Mr. Bell? A. I couldn't tell you just what time, that day sometime. Q. When did you make your decision to discharge Wise? A. After I had talked to Mr. Chambers and asked him why he left the fire there and then talked to Mr. Wise when he came back. Q. You didn't make your decision to discharge Mr. Wise until after you spoke to him? A. I did not. Q. When you talked to Mr. Bell didn't you reach any decision then as to wheth- er or not you were going to discharge Mr. Wise? A. 1! wouldn't say. Probably he might have mentioned it and asked me what I was going to do. Q. As far as Mr. Bell was concerned it didn't matter to him whether you dis- charged him or not; did he leave it to your discretion? A. Sure; I had the mines in charge. Q. Mr Bell didn't give you any final instructions to discharge him? A. If he did, I don't remember ; I don't think he did. Q. In other words, the decision to discharge Wise was made by you the follow- ing Monday night? A. That is right. Q. And not until then? A. That is right, after I talked to him. Goforth was not questioned as to the conversation which Wise claimed to have had with him on the night of February 22, nor was Chambers questioned as to Goforth's purported conversation with himself or as to Wise's purported subsequent conversa- tion with Goforth at which Wise claimed that Chambers had been present. Fulmer testified that he had talked to Bell about the fire and the condition the stove was in when he found it but was uncertain whether this conversation had occurred on Saturday, the 20th, or during the following week. Goforth was similarly uncertain as to whether Bell had come to the mine on Saturday but both Fulmer and Goforth were under the impression that he had done so. Bell testified that he was at the mine "a few minutes after the fire was put out." Bell further testified : ... We instructed - - and I did personally, because I was superintendent there for about three or four months-I instructed the tipple men and the men that worked down there to be sure and not let a big fire get in that stove, to let it die down at the end of the shift, so when they left there would not be any fire in these and if there was much fire when they left and it looked dangerous to pour water in the stove and put it out .... and I got down soon afterwards and 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visited the place and I could tell from the damage it was a narrow escape from being burned up, because it was all closed up. Q. Would that have been a substantial loss if the tipple had burned up? A. It would have probably cost ten or fifteen thousand dollars and shut the mines down two or three months. Q. Go ahead. A. I asked Mr. Goforth what it meant that this fire was started there at the end or last part of a shift and the weather was mild; I was out there without an over- coat; it was not cold; it was not even a frost. He said, "Well, I don't know, but this stove-the stove was piled full of coal and the stove was red hot when we got down there." I said, "Well, what do you think about it"? He said, "It looks like somebody tried to set the tipple on fire." I said, "Who is responsible for it?" I didn't know just exactly who was down there, because it might have been somebody else. I knew Jim Wise worked on that shift. He said, "Well, Mr. Wise was here last night." I said, "Where was he when you discovered the fire?" He said he had just left. Well, I told Mr. Goforth I was just afraid to risk a man like that, and I just thought he set it on fire on purpose, either that or care- lessness, and, therefore, to discharge him, and I would take the responsibility. Immediately preceding the foregoing testimony, Bell testified as follows Q. Now, as to Mr. Wise, did you review his discharge after it had been made by Mr. Sansing? A. No, it was not made by Mr. Sansing Q. Who was it made by? A. McLean [McClain] ; I instructed Mr. McClain to discharge him. McClain was not questioned as to his connection with the discharge, On direct- examination Wise testified as follows : Q. I ask you to look at what has been marked for identification as Board's Ex- hibit No. 5 and tell us what it is? A. That is what Mr. Goforth gave me that night when he fired me. Q. Is this the blue slip he gave you? A. Yes, sir. That is for letting down a car without a helper, the way he wrote it. Q. Does it indicate the date on there? What is the date; what are those numbers you see there? A. There is the 2nd and 24th . . . 1943. Q. In other words you were discharged and given that blue slip on or about February 24? A. That is it exactly. Q. After you were given that blue slip what else did you do in your effort to retain your job? A. Well, on a Tuesday morning after they gave me that Monday night I got in my car and went down to Birmingham and went to Mr. Prince's [Prince _ DeBardeleben's] office. Q. When did you get the slip? A. I got it on the 24th. Q. What night of the week? A. Monday night. Q. When was it you went to see Mr. DeBardeleben again? A. Tuesday morning. Q. The very next day? A. The very next morning. ALABAMA FUEL & IRON COMPANY 777 Wise further testified that at this time he told DeBardeleben that Goforth had fired him the night before and that DeBardeleben said he would "see about it." His testimony continued as follows : Q. When was it you went down to get paid? A. I waited until the Saturday coming and went doA'n to get my pay slip, my pay, and I looked for Mr. Bell over there, and I didn't see him. I went back on Monday and asked Mr. McLean [McClain] was lie going to be there. He said he didn't know. He said, "Is there anything I can do for you?" I said, "I don't think so."): said, "I wanted to see Mr. Bell." He said, "What is your name?" I said, "Wise." He said, "Hold on, I think I have got orders to pay you off." Q. How long was it after you saw Mr. Prince? A. I saw Mr. Prince on Tuesday, and that was on Monday I was talking to Mr. McLean [McClain]. - Q. You mean a week later? A. Yes sir. I went to get my pay on Saturday and didn't see Mr. Bell and came back on Monday and that is when I talked to Mr. McLean [McClain]. / Q. And Mr. McLean [McClain] told you he had orders to pay you off? A. Yes, sir. Q. Were you paid off? A. Yes, sir, paid off in full. -DeBardeleben testified that he did not recall the conversation referred to in Wise's testimony but that "I wouldn't say it didn't happen, because I just don't know. I have a good many come in every day and I can't keep them all separate." The "blue slip" identified by Wise was introduced in evidence and reads as follows. Alabama Fuel & Iron Company Acmar, Ala., 2-24- 1943 Mr. McClain, Supt. I have found Jim Wise white employee, violating Safety Rules in the following manner: Droping (sic) R R Car Down with helper, Leaving Excitive (sic) Fire in Stove on Tipple causing Tipple To Catch on Fire (Signed) D. N. Goforth Foreman The testimony relating to the discharge of Wise has been hereinabove reviewed in extenso to indicate the difficulties involved in attempting to reconstruct the circum- stances. It is clear, and the undersigned finds, that the fire in the shaker-room occurred on the morning of February 20, and was discovered shortly after Wise had come off the shift. The undersigned further finds that Wise was the last employee known to have occupied the shaker-room that morning, and was responsible for seeing to it that the stove was then in safe condition." There is no evidence that any one entered the shaker-room after Wise left prior to the discovery of the fire, and no substantial basis for inference that anyone had done so. The testimony of Goforth and Bell is not mutually reconcilable as to where the responsibility rests for the decision to discharge Wise, or when it was reached. Bell's testimony is definite that Wise was discharged by McClain on his own instruc- rT The undersigned is unable to credit Wise's testimony that he left the shaker-room at the same time the morning shift took over, as the evidence is overwhelming that the mine was opci tUng on the basis of a 5-day week and that Saturday was an off day. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, and presumably on the information obtained on February 20 Goforth testified that he himself discharged Wise after talking with him on the night of the 22nd,-and claimed that Goforth discharged him. However, Wise claimed that at the time he was discharged Goforth gave him the "blue slip" identified as Board Exhibit No 5 This slip is dated February 24, a. possible but unlikely error in dating, and is further puzzl- ing in that it is not on its face a discharge slip but the original of a memorandum report from Goforth to McClain. As hereinabove noted, the answer of the respondent alleged that Wise's discharge had been the basis of a prior charge filed by the Union, on which the Board had re- fused after investigation to issue a complaint. There is no evidence in the record that such a charge had been previously filed. There is credible testimony that the circum- stances had been investigated by agents of the Board but such testimony cannot be definitely related to any prior charge. The charge filed by the Union on October 20, 1943, makes no reference to Wise. The record establishes that Wise was a member of the Union at the time that he was employed by the respondent; that he had been discharged and subsequently rein- stated with back pay under the terms of the settlement of July 21, 1942; and that he thereafter continued to be an active member of the Union and was well known' as such to the respondent'B Whatever inference the nature and extent of his activities on behalf of the Union would tend to support as to the respondent's prejudiced attitude toward Wise's conduct as an employee, the ultimate issue here is whether, -in the absence of direct evidence that his discharge was motivated by his union activities, the circumstances of his discharge warrant recourse to any hypothesis of ulterior mo- tivation therefor. The record leaves no room for doubt that the fire resulted from overloading the shaker-room stove with coal and leaving it unguarded, or that but for the adventitious discovery of the fire before it had gained headway, the tipple at Acmar No. 8 would very probably have been destroyed, with heavy financial loss to the respondent, or that the respondent was justified in placing the blame for the fire on Wise as the only employee whose work on the shift required him to use the shaker-room and the last person known to have used it. The record presents no comparable instance of employee misconduct invoking a lesser penalty than that imposed upon Wise. The ambiguities in the record herein- above discussed relate as much to the testimony of Wise as to that of the respondent's witnesses. All the testimony related to the details of events that had occurred 14 months prior to the filing of the charge in this proceeding as to which the recollections of the several witnesses might well vary. If a prior charge was in fact filed the Board (lid not issue a complaint thereon. It seems significant that Wise is not named in the intervening charge filed on October 20, 1943. On the basis of the foregoing findings and of the whole record herein, the under- signed concludes and so finds that the respondent discharged Wise at some date in the latter part of the month of February, 1943, for cause unrelated to his membership in and activities on behalf of the Union. 4. The discharges of John Warren, Louis Johnson and Otis Johnson a. Preliminary findings On the dates that they were respectively discharged, Warren and the two Johnsons were working as "coal-loaders" at "Margaret No. 8." While the general procedure 11 Other incidents in which Wise was concerned are hereinafter discussed in the section entitled, "Interference, restraint and coercion " C ALABAMA FUEL & IRON COMPANY 779 at all the respondent's mines of like type were the same, the following findings relate specifically to the conditions at this mine. Margaret No. 8 is a slope. A main shaft runs from the mine opening to the coal deposits. Lateral shafts branch off to right and left of the main shaft to locations where the coal is cut or dug or blasted out of the seams. The loaders do their own mining and load the coal on small cars of about 1% tons capacity. These are pulled out of the mine, in trains of about 10 cars each, to the tipple where each car is sep- arately weighed, its contents dumped into a collecting bin, and the car switched back to the mine for reloading. The loaders are paid an the basis of the tonnage determined by the weighman at the tipple. In general, each car is loaded by one miner and each load is identified by a metal tag hung on the outside of the car and stamped with the loader's number 1° When a train of cars reaches the tipple, the weighman collects these tags in sequence and lists them on a tally sheet. As the cars are weighed, the weighman enters the weight of each to the credit of the corresponding loader's number. As extracted in the mine the coal is mingled with rock distinguishable in color and varying in size from small particles to pieces large enough to be readily separated by hand. As above noted, the coal after being weighed is dumped into a collecting bin beneath the tipple. From there it is carried by a belt conveyor to the coal washer In the process of washing, the coal is floated from the rock and conveyed to a "washed coal" bin from which it is loaded on railroad cars for final shipment. The rock is disposed of as refuse. If the percentage of rock in the material fed to the washer is beyond the separating capacity of the washer, a certain amount of rock stays in the coal and its marketability is thereby adversely affected The loaders are required to load "clean" coal only, that is, coal free from rock An irreducible minimum of rock is unavoidable, however, and the scales are adjusted to discount this on a basis of approximately 10 percent of the total load.20 The rock is heavier than coal, having approximately double the specific gravity The more rock a given car-load contains the more it will weigh. Furthermore, the less careful the loader is about separating the rock from the coal, the more cars he will be able to load in a day. In order to insure that only "clean" coal is loaded, the respondent has for a number of years employed the system of "rock fines" where- under fines are imposed on the loader in amounts varying with the amount of rock detected in a car which he was responsible for loading Since there is iio practicable means of determining the content 'of rock in every car, the respondent has employed the method of spot-checking. At each mine a few em- ployees, designated as "slate pickers," are employed for this purpose, being usually men of advanced years or otherwise incapacitated for other work. The pickers are paid on a piece-work basis gauged on the amount of rock taken from the cars picked A day's work for a picker consists of- "picking" two cars at most. After the loaders' numbers have been removed, but before the cars are weighed, the picker examines them, either superficially or by scrabbling in the coal with a pronged tool, selects the one that seems i,o him to contain the most rock, and identifies it in some way to indi- cate that he wants it set aside for picking. Unless the weighman countermands his selection, the car after being weighed is placed on a siding. 19 When assigned to work at a given mine, each loader is given an exclusive work number that he retains so long as he works at that mine. Tags stamped with this number are furnished to him each day as he enters the mine 10 The record indicates that the average tare allowed for rock content is variable If the railroad weights for a given month show an excess over the amount of coal paid for, the tare is lowered, if they show a loss the tare is increased If the scale weight of a car at the tipple indicates that a given car contains an excessive amount of rock, the weighman makes a special tare charge against it 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- The rock removed is measured in "cans" holding approximately 30 to 40 pounds of rock, the picker being paid 18 cent a can. The weighman makes a record against each car picked of the number of cans of rock found in it. No fines are imposed for pick- ings of 6 cans or less from a car. Where the pickings are in excess of 6 cans, the loader is subject to a fine; when in excess of 12 cans, he is reported to the division superintendent for further discipline. The respondent maintains a bulletin board near the mouth of the mine on which is posted each day the number of cans of rock in the cars picked that day, and the amount of the fines imposed.- The rock picked from each car is kept in a separate pile and any loader questioning the quantity with which he is charged is entitled to have the pile remeasured in his presence. While the cars to be picked are as a rule left to the selection of the pickers,- they are occasionally designated by the weighman on the basis of his own observation or where it is desired to make a special check on a repetitive offender. The selection made by the picker is also overruled if the same loader has had another car picked the same day.21 b. The discharge of John Warren Warren was employed by the respondent in October 1938 and worked as a coal loader until he was discharged on January 19, 1944, at which time he was working at Margaret No. 8, under Hogg as mine foreman, in the same "heading" with Louis and Otis Johnson but in a different "room." -During the month of January 1944, the amount of rock in the coal loader from Margaret No. 8 increased to such an extent that at times the washer had to be shut down until the accumulation of waste could be taken out. Sansing and Bell repeatedly called Hogg's attention to the necessity of getting out cleaner coal. Hogg in turn talked to the individual coal loaders at their work places and warned them that they would have to quit loading too much rock. Between 2 and 3 o'clock in the afternoon of January 19, Sansing and Bell visited the mine and went out on the siding where the pickers were working. One of the pick- ers had just taken 16 cans of rock from a car. They obtained the loader's number and identified the loader by inquiry of the weighman who told them that the car was one of Warren's and that he had had 19 cans of rock in a car picked the day before. Warren was working inside the mine and Sansing sent him a message to come outside. Warren testified on direct- examination as follows : I got up on top of the top house where Mr. Raney was weighing the coal, and Mr. Sansing and Mr. Bell walked out where they were weighing the coal in the scale room. He [Sansing] said "Johnny come out here, I want to show you a pile of rock." I went out and looked and he showed me, and said "You loaded 19 cans yesterday and 16 today." I said, "Yes, sir, I came up here and looked, Mr. Sansing, I didn't believe it was 19 cans." He said, "Why so many?" .. . He told me "You loaded 19 yesterday and 16 today, what are you going to do about this rock?" I said, "I am not going to do anything about it . . . It is whatever you and Mr. Bell decide." He said, "We are not going to have it." I said, "all right." He said, "I will have your money ready for you and a separation sheet." 21 In the absence of collusion , there is no way for a picker to identify any car with a given loader. The weighman is in a position to make such identification, either when he removes the identifying tags or when the car gets to the scales ALABAMA FUEL & IRON COMPANY 781 Under cross-examination Warren testified as follows: Q. I will ask you if this isn't about what happened: They took you over and showed you the rock that you had been posted as having loaded that day? A. Yes, sir. Q. And told you you had some posted the day before? A. Yes, sir. Q.. 19 cans? A. Yes, sir. Q. And didn't Mr. Sansing say this to you, "Johnny, you 'see what you have loaded," and you said "Yes, sir," and Mr. Sansing said, "Don't you know we can't sell that stuff, that is rock, and we are paying you for coal and you will have to do better," isn't that what he said? A. Yes, sir. Q. Then he asked you this question, "Can't you do better?" Wasn't your reply to that, "No, I can't do any better?" A. No,* sir. Q. What did you reply to him? A. He said, "What are you going to do about this rock?" Q. Wait a minute; he asked you the question • "Can't you do better? What reply did you make to that? A. I told him that the rock was rotten. Q. You couldn't help but get it in there because the rock was rotten? A. I told him it was rotten. Q. So you say you didn't say to Mr. Bell and Mr. Sansing you could not do any better? A. No, sir. Q. But you did say what? Now I want you to give it just like you recall it A. I told him that the rock was rotten. He asked me what I was going to do about it. I told him I wasn't going to do anything about it, "It is what you and Mr. Bell decide to do." Q. What else was said? A. He said, "We are just not going to have it." Q What did you say to that? A. I told him all right. Q. Then what happened? A. He told me, "I will have your money ready'. .. Go down and get your tools and have Mr. Hogg measure the coal what you have got shot in there, and I will have your money and release ready for you." On further examination Warren testified as follows: Q. (By Mr. Garver) Could you have loaded your coal any better at that-time when you were discharged. A. No, sir. Q. Why? A. Because the rock was rotten. I was doing the best I could. Q. (By Mr. Burr) What do you mean by the rock being rotten? You mean you couldn't get it out of the coal? A. No sir, I couldn't get it all out. Q. You mean it was broke up in such small pieces you couldn't get it out? A. Yes, sir; some of them were small and some of them large . . He asked me how come it was rotten. I said when part of the pillar is being dug there is an outcrop and the rock and coal both will be rotten. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Trial Examiner Wilbur) Db you recall being asked by either Mr Sansing or Mr. Hogg if you could do better or if you were going to do do better, or some such question? A. He asked me was I going to try to do better. I told him I was doing the best I could. Upon being asked by counsel for the respondent to repeat the whole conversation, Warren testified in practically the identical language used in his first account of the incident, making no reference to the condition of the rock. To this extent it is in substantial agreement with the testimony of Sansing and Bell. Sansing testified as follows : We waited around a little while and Johnny came out. Mr Bell said, "You go and talk to him " I went over and said, "Johnny, come out and let me show you what you have done." He went with me and he looked at it and kind of dropped his head. I said, "Johnny, don't you know we can't stand for you loading Pock like that?" He didn't make any reply. I said, "Can't you do better than that, Johnny, can't you clean that coal better?" He thook his head. He said, "No, I can't do any better." I said, "Johnny, if you can't do better, you are going to load coal for somebody else " He said, "It is up to you all, what are you going to do,about it?" I said, "I have done told you you can't load for us if you are going to load rock like that." In the meantime Mr. Bell came up, and Mr. Bell told him about the same thing I did. Q. Did he tell Mr. Bell about the same thing? A. Yes, sir, he told him he could do no better. Bell testified as follows : I was there when Mr. Sansing sent for him to come out of the mines We waited there until he came out on the top house, and . . . I told Mr. Sansing "You go out and talk to him," and I stayed back there, and they talked there a while, about four or five minutes, and I decided I would walk out there and see if I could pour a little oil on the troubled waters, so I went out there and I ap- proached Johnny, also. I didn't hear the conversation with Mr. Sansing, but I asked Johnny if he could not do better than to load sixteen cans of rock, what- ever it was, in a car of coal, and I went over and examined the rock with him and picked it up; some pieces were bigger than your hand. He says, "Well, I can't do any better." Well I said-I tried to persuade him to tell me that he would go down there and try to do better, because I wanted to see him go back to work, and he just said that he couldn't promise to do any better. I said, "We can't work you any longer and let you stay here and load rock." On cross-examination Bell testified specifically that Warren was discharged be- cause of his loading rock and refusing to try to do any better. Warren was a member of the Union and active in soliciting memberships among the other employees. There is no evidence that the respondent interfered with these activities. On the basis of the testimony hereinabove reviewed and of the whole record herein, the undersigned concludes and so finds that Warren was discharged because his atti- tude in the course of the interview with Bell and 5ansing clearly indicated his inten- tion to continue to load excessive rock The undersigned is unable to credit Warren's testimony that the condition of the coal in the mine made it impossible to load clean ALABAMA FUEL & IRON COMPANY 783 coal, and finds that he made no such contention at the time of his discharge? There is no evidence that Warren's cars were discriminatorily selected for picking. Discharge for loading excessive rock was not unusual but Warren could have in fact escaped this penalty by showing an attitude of cooperation in respect to improving his work performance in a matter within his own control. The undersigned therefore finds that Warren was discharged by the respondent on January 19, 1944, for cause unrelated to his union membership and activities c. The discharge of Louis Johnson and Otis Johnson Louis and Otis Johnson are two of four brothers who have worked- from time to time for the respondent. Of the four, Inzer Johnson is still employed. Hamilton John- son quit voluntarily and is now working elsewhere. Louis and Otis were discharged on January 20, 1944. At the time of their discharge they were employed in the 10th heading at Margaret No. 8, under Hogg as mine foreman. _ When they came out of the mine on the afternoon of January 19, they saw that they were each posted on the bulletin board for a fine of $5, with 13 calls of rock charged against a car of Otis, and 15 cans charged against a car of Louis. After an un- successful effort to persuade Hogg to "split" the fines, they proceeded to the bath- house. Otis Johnson's account of what transpired is as follows: Q. What did you do? A. I walked on up to the top where John Adams was. Q. Who is John Adams? A. Clay [slate] picker. I asked him , "What do you want to lay on me, picking me for?" He said , "Bossman, they set your car out for me to pick." I said, "You know they all run some rock." He said , "I know it. "I said, "You know there wasn't that much rock there." He said , "No, sir, I didn't pick as much as they got on the board down there." Q. What did you say? A. I said, "John, I am a good mind to kill you for just laying on me all the time." He said, "Bossman, I can't help that; I am an old man and you are a young man ; you can get a job anywhere." * * * * Q. (By Mr. Burr) What was that negro's name? A. Well, I wouldn't be positive about his name, whether it was John Reed or John Adams or what. Q. There were two of them there at the time when you talked to him? A. There were three. Q. All right, who were the three there then, King, was he one of them? A. I wouldn't know their names. Q. James Taylor, was he one of them? A. It seems to me one of them was James Taylor. * * * * * * Q. That is when you had your belt in your hand? A. Yes, sir. I did. ° In its brief the respondent asks that the undersigned take judicial notice on the issue of credi bility of the contents of an affidavit purporting to have been made by Warren and filed with the Board in Case No. 10-R-750 . In the absence of evidence identifying the affidavit as having been made by the witness, the undersigned has given no consideration to its contents. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Your brother had his belt in his hand? A. Had it laying across his shoulder. Louis Johnson testified as to the same incident as follows : Q. What happened there, will you tell us? A. We got on the slate pickers about it, and they said they couldn 't do anything about it, the foreman told them to do it, and they couldn 't do anything about it. They was working just like we was. Q. Did you or your brother Otis strike the pickers in any way? A. You couldn't hit them with their hands up. * * * * Q. Did you tell them to put their hands up? A. No, I didn't tell them to put their hands up. I told one I would make him climb a tree, and if he didn't do it right I would make him climb down and climb it again. Q. (By Mr. Burr) Who were those negroes? A. I don't know. One of them was Dad [Taylor]. * * * * * Q. Was one King, Dave King? A. It might have been. Q. Dave King, was that the name of one of them. A. Yes, sir. * * * * * * Q. When you went to see those negroes, you had your belt in your hand? A. No, I had it on. Q. When did Otis take his off, when you got up there? A. Yes, sir . . . I wouldn't say positive that he took it off. Q. You know you took yours off ? A. Yes, sir. Q. And you had two negroes there with their hands up? A. I didn't tell them to. Q. As quick as you pulled your belt out, their hands went up? A. That is right. Q. What was it you told him? A. I asked him did he know a man couldn't make a living and him picking cars all day for $5. He said, "No sir." I said, "What do you want to pick my car every other day for?" . . : He said, "Boss, they told me to pick them." . . . I just told him I ought to make him climb that tree, and if he didn't do it right, make him come down and climb it again. Q. As a matter of fact you cussed him a good deal more than that? A. No, sir. Q. Your brother cussed them. A. He didn't call them a son-of-a-bitch. I was talking to one and he talked to the other. Q. What did he say to him? A. I wasn't paying so much attention to what he said. I was talking to the one. After identifying Dave King, John Adams, and James Taylor as the three slate pickers at the mine, Louis Johnson testified as follows : Q. Do you know whether the three of them were there at this instance when you came up there? ALABAMA FUEL & IRON COMPANY 785 A. Not all three of them wasn't, there was two. Q. Do you know who it was that picked you that day? A. Dad Adams. James ("Dad") Taylor, a 79-year old Negro, testified that on January 19 he and Dave King had been picking slate together, "he picked one bucket and I picked one." His testimony continues as follows: I was coming up from the boiler room up to the front of the bath house ... Me and Dave King . . . Both of them had their belts in their hands and said, "God damn your soul, you picked my car, did you?" I said, "Yes, sir." They said "I am going to whip hell out of you." They came down there and cussed and cussed me. And after a while they started off and looked back and said, "You see here, if you pick this number and don't Mr. Bell give it to you, I will whip hell out of you. I will whip you like I would whip a God damn hog" . . . I started to say something and they said, "I don't want to hear one word out of your jaw, God damn you, I will kill you" . . . I reported that to Mr. Hogg that [next] morning. I didn't report it that evening It looked like they were going to attack me any- how, and I got in the truck so if they did they would have to pull me out of the truck. Q. (By Mr. Garver) You mean to say they were talking to you? A. I had my eyes on them. Q. And you just let it go, you din't even answer them back? A. They didn't allow me to answer them back. Q. They just talked and then went away? A. They talked and turned back and told me - Q. Wait a minute ; they talked and then went away ; they didn't wait to do anything to you, but they just said their pieces and left, is that right? A. I am going to tell you what they done ; they started to talk to me and started back and told me if Mr. Bell gives you my car and you pick it, I will whip your God damn ass, and I will whip every damned one around the top house, Mr. Bell and all the rest. Q. You didn't say anything? A. They didn't allow me to say nothing. They went to cussing me. * * * * * * Q. Did Dave King say anything? A. Dave King ain't opened his mouth that I heard. Forney Hess, an employee in charge of the bath-house, corroborated Taylor's testimony that Otis and Louis did all the talking on this occasion. Hess testified, "I never heard the negroes open their mouths." On the basis of the testimony hereinabove reviewed and of the whole record herein, the undersigned concludes and so finds that the most credible account of the incident is that given by the witness Taylor, and that the statements attributed to the pickers in the testimony of Otis and Louis Johnson were not in fact made. The cars of coal involved were both selected by Taylor, without knowledge of the identity of the loader and solely because his inspection of the cars indicated that they contained enough rock to be worth picking„ The record furnishes no foundation for the claim that either Otis or Louis Johnson had been subjected to discriminatory selection for picking, or that Taylor and King had been identified as the pickers responsible. The one point of agreement in the testimony of the Johnsons is in seeking to justify their conduct toward the pickers on the ground of provocation by dis- criminatory treatment. Since the alleged ground of provocation lacks factual sup- 786. DECISIONS OF NATIONAL LABOR RELATIONS BOARD port, it is incredible that the Johnsons would have accused the pickers of some- thing they themselves knew to be unfounded, or that the pickers would have sought defense in a similarly fictitious disclaimer of responsibility. The most obvious ex- planation of the incident is further corroborative of the essential truth of Taylor's testimony., What the Johnson's resented was not discriminatory picking by the system of rock fines..Whenever their cars were selected for picking they not only lost their tonnage pay for the weight of the rock removed but the amount of the fine imposed as well. They accordingly resorted to an attempt so to terrorize the pickers that in the future their cars would not be selected for picking. On the same afternoon Forney Hess reported to Hogg that Louis and Otis had "cussed them old negroes out" and threatened to "beat hell out of them, and to whip the whole damn top house if they didn't like it." Hogg in turn relayed Hess's report to Sansing, and Sansing recommended that Hogg discharge the two Johnsons the next morning, which was done. In view of the reported threat against the "top house," Sansing arranged for a peace officer to be present at the time to put a stop to any disturbance. There was no occasion, however, for his services. Whatever connection Otis and Louis Johnson may have had with the Union it is difficult to see how their conduct toward the pickers could have been treated with any lesser penalty than discharge without risking general demoralization of plant discipline. As noted above, all the pickers are either old or physically handicapped men. Only Negroes are employed in this capacity. Apart from the protection in the discharge of their duties to which they are entitled as a matter of humane response to their inherent defenselessness, their value as pickers would be quickly dissipated if they were left to the hazard of personal retaliation for doing the work for which they are employed. However, the record raises a real doubt as to whether Otis and Louis Johnson were even members of the Union at the time they were discharged. The undersigned is persuaded to an affirmative finding on this issue primarily as an inference from the fact that the Union filed charges on their behalf. They were not conspicuously active on behalf of the Union. Hogg testified that he was surprised to learn after they had been discharged that they were union members; that he had never heard that they were and it had never occurred to him to identify them with the Union. Both Hamilton and Inzer Johnson testified that they did not know that Otis and Louis were members of the Union. Louis Johnson testified that he was a member of the Union in 1943, and that he was a member at the time he appeared as a witness in this proceeding. As of August 28, 1943, he signed a request to the respondent to pay monthly dues of fifty cents out of money earned by him to the Associated Mine Workers, "an organization of which I am a member." Otis Johnson testified that he was a member of the Union in June 1943, when he came to work for the respondent, and that he was a member as of the day he testified (June 2, 1944). Neither testified specifically that he was a member of the Union when discharged The undersigned finds that the respondent discharged Otis Johnson and Louis Johnson on January 20, 1944, for cause unrelated to their union membership or activities C. Interference, restraint, and coercion 1. The issues Paragraph VII of the complaint alleges: Respondent, by its officers, agents, representatives and employees and more par- ticularly by ,[12 individuals named]' . . . committed, authorized, instigated and 29 Fred Bell, "Red" Fulmer, "Doe" Goforth, Deputy Ginright, Bob Harrison , John Hogg, Farrel Hollis, Eugene Hutchings, Coye Martin, Roland Reed, Robert A. Sansing and Otto Smith. ALABAMA FUEL & IRON COMPANY 787 acquiesced in the following acts, beginning m or around August 1942 and continuing to the present, to wit (a) Statements and conversations discouraging activities on the part of its employees for the purposes of collective bargaining and other mutual aid and protection, and discouraging membership and activity among its em- ployees in the Union; (b) Advising, warning and ordering its employees under threat of discharge and discrimination, including "fines" and induction into the armed services, to refrain from joining the Union, to get out of the Union, to have nothing to do with the Union, not to distribute union literature, not to talk about of discuss the Union, not to solicit or secure membership, not to associate in any wise with union leaders and organizers, not to engage in any union activity on any company property ; (c) Threatening, intimidating and warning its employees that they would receive bodily harm and death if they continued to distribute union lit- eratttre ; (d) Questioning and inquiring of its employees about their union membership, solicitation of members, distribution of union literature, association with union leaders and organizers, discussion of union matters, and union busi- ness and activities, (c) Spying on, engaging in surveillance of its employees and conspir.ng by entrapment and trickery to apprehend their union activities, (f) Advising, suggesting, promising, and offering bribes of better treatment and higher wages to its employees if they would abandon the Union and its activities and would spy on and report any union activity of its employees, (g) Making disparaging, derogatory and profane remarks about the Union, its leaders, members and literature The answer denies all of the foregoing allegations. No evidence was offered in support of the allegations in subsection (e) of para- graph VII of the complaint The undersigned finds that the respondent did not by the conduct therein alleged interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed in the Act. 2. Miscellaneous findings a. Preliminary statement As hereinabove noted the Board, the Union, and the respondent entered, on July 21, 1942, into a stipulation for the settlement of a proceeding then pending against the respondent, the settlement agreement thereafter culminating in a consent decree of the U S C C A for the Fifth Circuit on September 1, 1942 The terms of the stipulation, the order of the Board issued pursuant thereto, and the mandate of the decree provided, inter alia, that the respondent cease and desist from Knowingly permitting officers or agents of any labor organization, whether employee of the respondent or not, to engage in activities among the employees of the respondent on behalf of such labor organizations, -among such employees while they are woiking on the job, or on the respondent's property, equipment, or facilities, unless such privileges are granted equally to all labor organizations of the said employees" 24 Other proAisions exclude roads and highways and housea occupied by employees, wether or not company-owned, from the coverage of the foregoing provision 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Undisputed testimony in the record indicates, and the undersigned finds, that the terminology of the above provision was adopted deliberately and with intent to leave it to the discretion of the respondent to determine whether and to what extent and under what conditions union activities would be permitted either on company time or on company property, provided that whatever rule was adopted would be applic- able to all labor organizations. The respondent, as found, prepared and posted a rule prohibiting organization activities on company time or property and a declaration that any non-employee entering or remaining upon the Company's property for the purpose of engaging or in fact engaging in the activities proscribed would be treated as a trespasser The rule, insofar as it purports to be restrictive of union activities on the employ- ees' own time transcends the legitimate scope of employer discretion as generally defined by the Board.' The Union soon became restive under what it felt to be an invasion of its legitimate prerogatives and has repeatedly sought to have the Board reconsider the propriety of the respondent's policy The record contains numerous instances of efforts of the respondent to make the rule effective by preventing dis- cussion of union matters, solicitation of memberships, distribution of union literature, or visitation by union representatives, within the, hounds of the rule. None of these activities of the respondent are alleged to have been discriminatorily directed against the Union while immunity from interferene was extended to rival organizations or to activities of employees opposed to the Union There is no credible testimony that the rule was not impartially enforced The undersigned finds to the contrary that the respondent impressed upon all its employees of supervisory status the importance of even-handed application of the rule under all circumstances and that its instruc- tions in this respect were followed The instances in the record relating to enforce- ment of the rule are not herein specifically reviewed. The undersigned finds that the rule was promulgated within the terms of the settlement, the order of the Board, and the mandate of the Court, and that its impartial enforcement raises no issue of interference with the rights of its employees under the Act. b. Events involving Francis L. Rodgers The record contains the testimony of various witnesses which relates to events preceding the settlement of 1942, most if not all of which was received over the objection of counsel for the respondent. At the time this testimony was offered it was difficult for the undersigned to determine the dates to which it related Subse- quent testimony clarified the issue as to dates and established conclusively that the incidents were extraneous to the issues of this proceeding. The undersigned makes no findings on the merits with respect thereto Rodgers testified as to two such incidents, one of which relates to his furnishing transportation to certain employees who attended an employees' organization meeting on June 2, 1942, the transportation having been arranged and paid for by Hogg, and the other relating to a conversation alleged to have been held with Gene Hutchins and Donley Brown, company "con- '6 The Board has in a number of cases held such complete prohibition of union activities on com- pany property to constitute statutory interference with the rights of its employees See: Matter of Le Tourneaa Company of Georgia, 54 N L R B 1253, enforcement denied in Le Toarnean Com- pany of Georgia v N L R B , 143 F (2d) 67 (C C A 5), cert granted Matter of Republic Avi- atson Corporation , Indiana Division , Si N L R B 1287, enforcement granted in Republic Aviation Corporation v N L R B , 142 F (2d) 193 (C C A 2), cert denied The undersigned does not understand , however, that the Board has thereby intended to promulgate an inflexible and univer- sally applicable doctrine of law and to estop itself fi om evaluating the reasonableness of any rule which may come under review in the light of the specific conditions to which it applies. Where any such iule is not j ustified by obvious exigencies , its discriminatory intent is presumed ALABAMA FUEL & IRON COMPANY 789 tractors,"' sometime during the spring of 1942. Rodgers also testified to a conversa- tion purporting to have been held with one Ginright, a peace officer, presumably occurring within the date limits of the complaint. It is clear from the testimony and the undersigned finds that Ginright 's activities were concerned with enforcing restrictions on the peddling of garden truck and had no relation to the Union c. Events involving James W. Wise Wise testified that in February or March, 1943, he was distributing union literature through the "camps" in which many of the respondent's employees lived and was stopped on the road by "Snake" Pennington, "Snooks" Brown, and two others, who told him to "stop that damn car." None of the individuals in the Pennington group were identified as having supervisory status. Wise was not an employee of the respondent at the time and there is no evidence that the incident was ever brought to its attention. The undersigned finds that the incident is without significance from the standpoint of this proceeding 27 Wise also testified to an occasion when Goforth objected to Wise's practice of leaving copies of the News Digest" at Goforth's residence. No significance with respect to the Act is attached to this incident. There is testimony as to an altercation in September 1942, between Wise and others who were in the car with him at the time, and certain employees including Pennington and Hamilton Johnson. The altercation occurred on one of the respond- ent's roadways. No supervisory personnel were involved A report of the incident reached DeBardeleben who instituted an immediate investigation and identified Pen- nington and his companions as the aggressors After reprimanding them and obtain- ing their assurances that there would be no repetition of their conduct, DeBardeleben wrote to Sansing instructing him to "call these men before you, suspend them from work for such time as you think will be proper, and warn them that if any similar occurrence takes place in the future they will be discharged" Sansing complied with these instructions except that Pennington was the only employee laid off, for the reason that he assumed full responsibility for the occurrence and requested that he be the only one penalized. The undersigned finds that the acts of the respondent in connection with this incident in no way trespassed on the statutory rights of its employees. d. Incidents involving Otis and Louis Johnson Otis Johnson and Louis Johnson testified to a number of statements alleged to have been made by employees of supervisory status by way of threat or warning and of incidents indicating respondent's hostility toward the Union. The undersigned attaches no probative value whatsoever to this testimony. Each of these witnesses totally discredited the testimony of the other as to the same incidents, the account of neither is otherwise corroborated, and their mutually discrepant versions are refuted by credible testimony, including that of Hamilton and Inzer Johnson The undersigned is of the opinion that no purpose will he served by a detailed review of the evidence that would amount to no more than an expose of clumsy, naive, and ze The term "contractors" as here employed relates to certain employees having supervisory au- thority but paid on a basis of quantity production rather than of salary or hourly wage rate E'' Testimony in this connection was received subject to connection which was not thereafter made It is not formally stricken from the record only for the reason that it is inter -related with a de- scription of the character of the literature that Wise was periodically distributing 2s The News Digest is a weekly paper published at Birmingham devoted to general labor news A special edition is printed for distribution among the respondent's employees carrying features of topical interest. 7tdO - DECISIONS OF NATIONAL LABOR RELATIONS BOARD uninhibited mendacity.2D It is no light responsibility to pronounce so sweeping a judgment upon the veracity of any witness, but where as here the testimony of key witnesses for the Board is so indicative of misconception of the function of a witness as well as so serious a reflection on the credulity of the Board, more than the conventional resolution of conflicting testimony seems called for. e Summary ; conclusion Viewing the record as a whole, it is apparent that the present relationship between the respondent and the Union is superimposed on and conditioned by turbulences in the past that culminated in the charges filed by the Union in 1942 and the ensuing settlement. Events occurring prior to the settlement have not been litigated in this proceeding and the terms of the stipulation for settlement do not include an admission that the respondent's conduct was in violation of the statutory rights of its employ- ees The statements of respondent's counsel, however, frankly reflect the vigorous resistance made by the respondent to the earlier attempts to organize its employees. It is the respondent's contention that the settlement marked its abandonment of pre- vious policies and that under new overhead management it had adhered to its obli- gations under the settlement and under the Act. There is no question but that this was the position taken by DeBardeleben and impressed by him upon the supervisory staff and on its face the record shows a determination to make`it effective. From the standpoint of the Union, the respondent's plant was still unorganized, the terms of the settlement hampered to some extent the Union's organizational efforts, and personal rancors rooted in past experience were still active. The respondent's sincerity in respect to its arfnounced policy was openly discounted. Even before the consent decree provided for in the settlement had been entered, the Union was complaining that the respondent was acting in violation of the terms,of the settlement and its campaign publicity followed the same general line. Agents of the Board were sent in repeatedly to investigate complaints as to the respondent's conduct. The present proceeding is the first since the settlement in which the Board has directed that a hearing be held. After full hearing and a careful study of the record the undersigned is convinced and so finds that there is no credible evidence to support the allegations of the complaint as to interference, restraint, and coercion subsequent to the settlement, taking the terms of the consent decree as defining the meaning and application of the Act to the specific situation in the respondent's plant The undersigned therefore finds that the respondent has not interfered with, coerced, or restrained its employees in the exercise of the rights guaranteed under Section 7 of the Act by the conduct alleged in paragraph 7, subsections (a) to (g), of the complaint Upon the basis of the foregoing findings of fact, the undersigned makes the fol- lowing : CONCLUSIONS DF LAW 1. United Mine Workers, District 20, is a labor organization within the meaning of Section 2 (5) of the Act ; 2 The respondent has not interfered with, restrained, or coerced its employees 131 Counsel for the Union , in a supplemental brief filed with the undersigned , apparently recog- nizes the difficulty of ciediting the testimony of Otis and Louis Johnson and states . "As in all cases hotly contended , involving witnesses of limited education and experience , discrepanices can be found in their testimony if we use a fine tooth comb in our search , and it is our desire to defend it on that basis " Minor discrepancies among the most scrupulous witnesses are of course inevitable and rather indicia of sincerity than otherwise Discrepanices that amount to total variance, in repeated instances, are the indicia not of faulty recollection but of fabrication. ALABAMA FUEL & IRON COMPANY 791 in the exercise of the rights guaranteed under Section 7 of the Act, within the meaning of Section 8 ( 1) of the Act; 3. The respondent has not discriminated against its employees in regard to hire and tenure of employment or any terms or conditions of employment , thereby discour- aging membership in a labor organization within the meaning of Section 8 (3) of the Act RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the under- signed recommends that the complaint herein be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 26, 1943, any party or counsel for the Board may within fifteen (15) days, from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Build- ing, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing within ten (10) days from the date of the order transferring the case to the Board. WALTER WILBUR - Trial Examiner Dated October 16, 1944 APPENDIX A Provisions of Consent Decree of the U.S. Circuit Court of Appeals for the Fifth Circuit in the case of National Labor Relations Board v. Alabama Fuel & Iron Company, Docket No. 10421, dated September 1, 1942. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Alabama Fuel & Iron Company, its officers, attorneys, and agents (and particularly including Overton White Welfare Society, Overton Colored Welfare Society, Margaret White Welfare Society, Mar- garet Colored Welfare Society, Acmar White Welfare Society, and Acmar Colored Welfare Society) all its contractors and successors and assigns shall I Cease and desist from : (a) Discouraging membership in United Mine Workers of America, District 20, or any other labor organization of its employees, by laying off, discharging, refusing to reinstate, or in any other manner discriminating in connection with any such labor organization ; (b) Dominating or interfering with the formation or administration of or con- tributing financial or other support to the Societies known as Overton White Welfare Society, Overton Colored Welfare Society, Margaret White Welfare Society, Margaret Colored Welfare Society, Acmar White Welfare Society, and Acmar Colored Welfare Society, in so far as such Societies are labor organizations, and Alabama Fuel & Iron Company Employees Association, or any other labor organiza- tion of its employees 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Giving effect to any and all contracts it has or may have entered into with Overton White Welfare Society, Overton Colored Welfare Society, Margaret White Welfare Society, Margaret Colored Welfare Society, Acmar White Welfare Society, and Acmar Colored Welfare Society, as the representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of work, and other conditions of employment ; (d) Maintaining surveillance of or employing other means of espionage for the purpose of ascertaining and investigating the activities of United Mine Workers of America, District 20, and the activities of its employees in connection with such organization or any other labor organization; (e) Urging, 'persuading, or warning in any way through officers, supervisory employees, contractors, welfare societies, or otherwise, in any manner influencing or attempting to influence, its employees to form, join, assist, or participate in, any labor organization, or in any manner or degree of such forming, joining, assisting, or participating in, any such labor organization; (f) Knowingly permitting officers or agents of any labor organization, whether employees of the respondent or not, to engage in activities among the employees of the respondent on behalf of such labor organizations, among such employees while they are working on the job, or on the respondent's property, equipment, or facili- ties, unless such privileges are granted equally to all labor organizations of the said employees ; (g) Entering into any closed shop or other contract with any labor organization, by virtue of which the employees of the respondent are required to join said labor organization as a condition of their employment, unless said labor organization represents a majority of said employees for the purposes of collective bargaining with the respondent, and has, subsequent to the date of this Decree, in no way been established, maintained, or assisted by the respondent or any person, firm, association, or corporation acting in the interest of the respondent, through any act defined in the National Labor Relations Act as an unfair labor practice; (h) Denying to its employees, who reside in houses owned by the respondent' the right to have any persons called at their homes for the purpose of consulting, conferring or advising with, talking to, meeting or assisting the Respondent's em- ployees, or any of them, in regard to the rights of said employees under the Act; (i) Interfering in any manner with the right of any agent, representative, officer, or organizer of the United Mine Workers of America, District 20, or any other labor organization, or with the right of any person, in his entry upon and traversing in paths, roads, streets, or other ways of ingress and egress, public or private, on the properties of the respondent located in Jefferson and St. Clair Counties, State of Alabama, customarily used by the respondent's employees there residing and engaging in lawful transactions with them, for the purpose of consulting, conferring, or advising with, talking to, or assisting the respondent's employees or any of them, in regard to the rights of said employees under the Act; (j) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights of its employees to self-organization, to form, join, or assist labor organizations, 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 as guaranteed in Section 7 of the National Labor Relations Act 2 Take the following affirmative action to effectuate the policies of the Act. (a) Offer to those persons listed in Appendix A hereof except Wheeler Padgett, deceased, immediate and full rein statement to their former positions, without preju-. ALABAMA FUEL & IRON COMPANY 793 dice to their seniority and other rights and privileges, displacing, if necessary, any employee since hired, transferred or otherwise assigned to work in said positions; (b) Make whole to persons named in Appendix A hereof for any loss of pay they or any of them may have suffered by reasons of their discharge, by payment to each of them respectively the sun appearing beside his name in Appendix A hereof. Payment due Wheeler Padgett, deceased, shall be made to Mrs. Wheeler Padgett. (c) Hereinafter refrain from recognizing the Societies known as Overton White Welfare Society, Overton Colored Welfare Society, Margaret White Welfare Society, Margaret Colored Welfare Society, Acmar White Welfare Society, and Acmar Colored Welfare Society and Alabama Fuel & Iron Company Employees Association, or their successors, as representatives of the respondent's employees or any of them, for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of work, or other conditions of work, or otherwise dealing with any of the aforementioned organizations or their successors, and completely disestablish all of the aforesaid organizations as such representatives, (d) Make reasonable effort and exercise due diligence through its officers, agents, supervisory employees, contractors and peace officers, to discourage and deter breaches of the peace or invasions of the civil rights of its employees, or members of their families, committed upon or directed against the said employees, or members of their families, on account of the Union affiliation or activity of the said employees and to make reasonable effort and exercise due diligence to protect the said employ- ees, while on the job, or on the respondent's plant property, from any acts or threats which interfere with the rights of the said employees to self-organization as guar- anteed in Section 7 of the National Labor Relations Act; provided, however, that the failure of the respondent to make the reasonable efforts and exercise the diligence in this paragraph referred to shall not impose upon the respondent any duty in reference to which there may or shall result any civil or other liability (said provision not to exclude any right of the Board to proceed hereunder) on the part of the respondent to any person whatsoever; (e) Require that its officers, agents, supervisory employees and contractors do not in any way urge, persuade, or warn its employees, or in any manner influence or attempt to influence the said employees to form, join, assist, or participate in any labor organization, or not to form, join, assist, or participate in any labor organiza- tion, or in any manner or degree of such forming, joining, assisting, or participating in a labor organization; (f) Take all reasonable steps and precautions to carry out and effect the provisions of paragraph 2 (e) above; (g) Post immediately in conspicuous places on its bulletin boards at all of its mines in Jefferson and St Clair Counties, State of Alabama, and maintain for a period of at least sixty (60) days from the date of posting, notices to its employees, stating that- (1) The respondent will refrain from the conduct from which it is ordered to cease and desist in Paragraph 1 (a) through (j) inclusive of this Decree; (2) the respondent will take the affirmative action set forth in Paragraph 2 (a) through (f) inclusive of this Decree; and (3) the respondent's employees are free to become or remain members of the United Mine Workers of America, District 20, or any other labor organization, and that the respondent will not discriminate against any employee because of membership or activity in any labor organization; (h) Notify the Regional Director for the Tenth Region, in writing within ten (10) days from the date of this Decree, what steps it has taken to comply herewith. 79,f I1IL'CLSIONS OF NATIONAL LABOR RELATIONS BOARD Name APPENDIX B Amount of Reim- bursement Coy Byers $200.00 Willard Byers $250.00 Richard Turner 225.00 Louis Ford 200.00 James Chester Shaw 335.00 Eary Bathwell 330.00 James Evans 130.00 James (Jim) Williams 150.00 Benjamin F. Bathwell 145.00 Beason Hammond 260.00 Wheeler Padgett 300.00 James Wesley Smith 280.00 Oliver P Jarrett 450.00 Emerson Buford 245.00