Ames Harris Neville Co.

In the Matter of AMES HARRIS NEVILLE COMPANY and INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN & HELPERS, LOCAL 386, A. F. L. Ca.ee No. 20-0-1302.-Decided April Ti, 1946 DECISION AND ORDER On November 1, 1945, the Trial Examiner issued his Intermediate Report, in the above-entitled proceeding , finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter , the respondent filed exceptions to the Intermediate Report and a supporting brief. None of the parties requested oral argument before the Board at Washington, D. C., and none was held. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report , the respondent's exceptions and brief , and the entire record in the case , and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner , with the modifications hereinafter set forth. T11E REMEDY We agree with the Trial Examiner, that the respondent discrimi- natorily discharged and refused to rehire Dossie Williams , William Atchley, and Helen Combs, and that these employees should be re- instated in the respondent's employ with back pay. We shall accord- ingly order, as recommended by the Trial Examiner , that the re- spondent offer to Williams and Combs immediate and full reinstate- ment to their former positions or to substantially equivalent positions. However, we shall not require the respondent to reinstate Atchley to his former position of foreman , as recommended by the Trial Ex- aminer, because the record shows that on the day before Atchley's discharge he had voluntarily requested a transfer to non-supervisory 67 N. L. R. B., No 57. 422 AMES HARRIS NEVILLE COMPANY 423 production work and that the respondent had then agreed to effect such a transfer as soon as other arrangements could be made . In these circumstances, we shall order the respondent to offer Atchley imme- diate and full reinstatement to the non -supervisory production posi- tion he normally would have been given in effectuating said transfer, or to a substantially equivalent position . We shall also order the respondent to make whole these employees for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to Williams and Combs , respectively, of a sum of money equal to the amount each normally would have earned as wages from the date of the discrimination against her to the date of the respondent 's offer of reinstatement ,' less her net earnings during said period, and by payment to Atchley of a sum of money equal to the amount he normally would have earned as wages , in the aforesaid production position , from the date of his discharge to the date of the respondent's offer of reinstatement , less his net earnings during said period. We shall further order the respondent to take the affirmative action recommended by the Trial Examiner. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the NationalLabor Relations Board hereby orders that the respondent, Ames Harris Neville Company, Merced, California, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, Local 386, A. F. L., or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers,'Local 386, A. F. L., or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activ- ities, for the purpose of collective bargaining, or other mutual aid or protection, as guaranteed in Section 7 of the Act. I Under the established interpretation of our restoration orders, Williams is not entitled to back pay for the period during which she was unable to work because of illness 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Dossie Williams, Helen Combs, and William Atchley immediate and full reinstatement, without prejudice to their seniority or other rights and privileges, in the manner set forth in our Decision herein ; (b) Make whole Dossie Williams, Helen Combs, and William Atchley for any loss of pay they may have suffered by reason of the respondent's discrimination against them, in the manner set forth in our Decision herein ; (c) Post at its plant at Merced, California, copies of the notice at- tached hereto, marked "Appendix A". Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the respondent's representatives, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Twentieth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. 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 in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers, Local 386, A. F. L., or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Dossie Williams Helen Combs AMES HARRIS NEVILLE COMPANY 425 We will offer to William Atchley immediate and full reinstate- ment to the production position he would normally have been given in complying with his voluntary request to be relieved of his duties as foreman, or to a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization. AMES HARRIS NEVILLE COMPANY, Employer. Dated ---------------- By ---------- ------ ------------------ (Representative ) ( Title) NoTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. . INTERMEDIATE REPORT Mr. John Paul Jennings, for the Board Fitzgerald , Abbott d Beardsley , by Edward B. Kelly, Esq, of Oakland , Calif., for the respondent. W. J. Kiser, Esq, of Modesto, Calif., for the Union. STATEMENT OF THE CASE On a charge duly filed on January 26, 1945, by International Brotherhood of teamsters, Chauffeurs, Warehousemen & Helpers, Local 386, A. F. L, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twentieth Region ( San Francisco, California), issued its complaint dated July 18, 1945, against Ames Harris Neville Company, herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Re- lations Act, 49 Stat. 449, herein called the Act Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices the complaint, as amended at the hearing, alleges in substance that (1) on December 8, 1944, the respondent dis- charged Dossie Williams and William Atchley, and on January 8, 1945, dis- charged Helen Combs, and has since refused to reinstate them because of their membership and activities in behalf of the Union , and because they engaged in 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid or protection, (2) that during ap- proximately May and June of 1944 the respondent by named supervisors dis- paraged representatives of the General Laborers' Union, AFL, which had been designated by a number of the respondent's employees and warned its employees that they had nothing to gain by joining said labor organization and (3) the respondent during approximately November and December of 1944 and continu- ously thereafter, through named supervisors and other representatives by desig- nated acts interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. On or about July 30, 1945, the respondent filed its answer in which it admits the facts alleged in the complaint as to its corporate organization and certain facts as to the nature of its business operations However, the respondent denies that it has engaged in any of the unfair labor practices alleged by the complaint. Pursuant to notice, a hearing was held in Merced, California, on August 1, 2, and 3, 1945, before the undersigned, Charles E. Persons, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by one of its officials Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the presentation of evidence, the Board moved to conform the pleadings to the proof adduced as to minor matters not affecting the substance of the allegations. This motion was granted without objection. After the presentation of evidence, the Board and the respondent participated in oral argument before the under- signed. The parties were duly advised that they had the privilege of presenting briefs for the consideration of the Trial Examiner. No briefs have been received. On the entire record in the case and from his observation of the witnesses the undersigned makes the following: FINDINGS OF Fxar I. THE BUSINESS OF THE RESPONDENT I The respondent, Ames Harris Neville Company, is a corporation established in 1906 under the laws of the State of California. Its principal office is located in San Francisco, California, and it has factories and warehouses in San Fran- cisco and Merced, California, and in Portland, Oregon. The respondent main- tains branch offices at Salt Lake City, Utah; Twin Falls, Idaho ; and Los Angeles, California It has branch warehouses at Twin Falls and Idaho Falls, Idaho, and at Los Angeles, California. The business of the respondent consists of the manufacture and sale of textile bags used to sack agricultural products, milled feeds and processed foods. For its plants at San Francisco and Merced, California, during the year 1944 the respondent purchased over $1,000,000 worth of raw materials consisting of burlap, cotton textiles and canvas. Practically all of these raw materials came from outside the State of California. In this year the value of the products manufactured in these two plants was over $1,000,000 and approximately 10 percent was shipped out of the State. This proceeding is primarily concerned with the Merced plant where about 155 workers are employed. Practically all its raw materials are purchased 1 These findings are based on a stipulation of the parties incorporated in the record, on allegations in the complaint admitted by the respondent in its answer, and on testimony which is uncontroverted. AMES HARRIS NEVILLE COMPANY 427 outside the State of California? Its sales in 1944 were over $200,000 in value, of which 5 to 8 percent was shipped outside the State. The undersigned finds that the respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers, Local 386, A. F. L., is a labor organization affiliated with the American Federation of Labor, and admits to membership employees of the respondent. III THE UNFAIR LABOR PRACTICES A Interference, restraint , and coercion About May 10, 1944, one Kelly, an organizer for the General Laborers' Union, AFL, held an open meeting opposite the Merced plant. On that occasion com- plainant Atchley, as he testified, overheard Nick Fadave, Manager of the Merced plant, talking to employees Aulce Calhoun and Buster Bullman in the plant. Atcbley's testimony in point reads : I heard him tell them that the Union would not do them any good, they wouldn't help their increase in the wages any at all, they would only be out union dues every month. On November 29, the Union held its first open meeting. Forelady Norma Dunn, who supervised all the women employed in the plant, attended. Com- plainant Williams gave testimony as to Dunn's statement at this meeting reading as follows : Well, she just said she didn't think it would do any good for the Union to go down there and that she thought they would all do all right down there if they were left alone and that she knew she was getting more than she would if the Union came in . . . and then she said that they would move the plant before they would let it go Union. Dunn denied that she had said the plant would move if the Union came in. Fadave also denied making the statements to Calhoun and Bullman ascribed to him by Atchley . Since the credibility of both Dunn and Fadave, as appears below, was seriously impaired by evidence presented by respondent's witnesses, while Williams and Atchley are shown by the record to be trustworthy witnesses, these denials are rejected. The record contains 10 signed copies of a form revoking an employee 's author- ization to the Union .' These are uniform in text and read : To the Teamsters , Chauffeurs , Warehousemen, and Helpers Union No. 386, A F. of L.: You will please be advised that I desire to cancel and rescind, and do hereby cancel , rescind and revoke, any authority heretofore given you by me 2 Respondent 's ansicer avers "that large and substantial proportions of the raw ma- terials used in its Merced plant have their origin outside the State of California , but that the same after reaching the State of California come to rest and are warehoused in San Francisco, and subsequently from time to time such quantities of raw materials as are required at respondent's Merced plant are shipped there from San Francisco." The undersigned accepts as true this qualification of the allegations in the complaint but finds that it does not affect the finding that the Merced plant is engaged in commerce within the meaning of the Act. ' The signers were • Laura Brizzi, Aulce Calhoun, Geraldine Glover, Rachel E. Kirk- wood , Ann Rautar , Nadine Schell , Moiris D. Schell , William Schell , Leora Turner and Audrey Wear. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to act for me as my representative, or otherwise, in collective bargaining with my employer, the Ames Harris Neville Company. Dated : Fadave testified that employee Leora Turner came to him and stated that she and several other employees "wanted to know how [they] could get out" of the Union. Fadave thereupon, as he testified, took the matter up with R A. Christman, respondent's general superintendent, by telephone and was referred in turn to Firm Member Harris and to Attorney Cornell, a Merced practitioner. Cornell sent copies of the above form to the respondent's office where the secretary and office girl, Mildred Noblet, made duplicates under Fadave's instruction, running it twice on her typewriter. Noblet, who was an exceptionally careful, precise and impressive witness, stated that the original from Cornell was received before Williams' employment terminated, i e., before December 7, 1944. Noblet stated that the revocations were available in the office and that she handed theiu to employees who came in for them. In one case, that of employee Rudiger, not included in the 10 signed revocations in evidence, Noblet volunteered to get the slip for her and took it to Rudiger out in the plant. Only three of those signing the revocation slips were called as witnesses. William Schell, assistant floor manager, witness for respondent, testified that he had had conversations with Williams about joining the Union "every night for a week" "most always at the machine where she was working." He further testi- fied that he had no conversation with Williams on the subject at home or on the street. It was Schell's testimony that he finally signed a union authorization one evening in the plant when he had been drinking "all day long" while on the job and was "pretty drunk." Schell stated that his signing the union authoriza- tion occurred "about four days" before Williams' termination. On reflection, after becoming sober, he told some of his fellow employees including Forelady Dunn, "I wished I hadn't joined the Union." When asked with reference to Dunn, "Then what did she say?" his recorded reply reads: Didn't say anything at the present. Later on she came to me then two or three days afterwards, there were several of us' wanted out, come to us and told us she had papers we could send in, there was papers there we could sign and send in our resignation. About the same time that Schell reported his dissatisfaction with his relations to the Union to Dunn, he also told Fadave, as he testified, "that I'd fooled around and joined, and I didn't want to stay in " Fadave made no suggestion at the time but "guyed [Schell] about doing things when" drunk. Schell testified, and the undersigned finds, that Dunn gave him a revocation slip to sign outside the office and that he signed and returned it to her. He testi- fied that tI is occurred 3 or 4 days after he had signed the union authorization "just about the date [Williams] left." He further testified that Dunn later told him she "gave it to Mrs Watkins' and another lady to take it to the [Unions office. She volunteered to take it." Laura Brizzi, a sewer, signed an authorization card after having been solicited several times by Williams However, Brizzi testified, as a respondent witness, Combs [one of the complainants] "finally convinced me to " Later Brizzi learned from employees in the plant that Dunn was "passing out papers for staying out" of the Union. She then asked Dunn if there were "some papers in the office we could sign to get out of the Union " Dunn replied affirmatively and that evening * The record reflects that Schell's son and daughter -in-law ; Norris D. Schell and Nadine Schell also revoked union authorizations. 6 Not identified in the record but seemingly an employee. AMES HARRIS NEVILLE COMPANY 429 as Bi izzi was checking out, gave her a revocation slip. Brizzi signed it and returned it to Dunn next morning at Dunn's desk in the plant Brizzi was asked whether Williams was still working in the plant when she signed the revocation slip and replied, "Yes, I am pretty sure she was." Leora Turner testified that Williams came to her home one evening after Williams' employment with the respondent had terminated and "persuaded" her to sign a union authorization slip. Next day, on inquiry at the plant she found that Williams had misrepresented the number of union adherents. As a conse- quence, Turner, as she testified, "started in then to find out how I could get out of it because I didn't want to join in the first place" Turner's further testimony reads Well, sortie of the girls there told me that they had some slips of paper that I could get one and sign it and withdraw out of the union. So I went into Norma [Dunn] and asked her about it, if she would get me one. She said, Nick [Fadave] wouldn't let them pass out papers, anything against the union there because he was union and if I wanted a paper I would have to go to the office and get it. So I went to the office and got a paper and filled it out. Manager Fadave, as appears from his testimony, was present in the office and gave Turner the revocation blank e Turner testified, and the undersigned finds, that she dated the revocation, December 15, 1945,1 and on that same day after work, took it together with eight or nine others, which were lying "all in a pile" in t'adave's office to the union headquarters where she turned them over to the office girl. She had been requested, as she told Fadave at the time, to do so by "Schell and his son and daughter-in-law." The date of delivery of the revocations to the union office was definitely established as December 15, 1944. W. J. Kiser, president of Local 386, gave credited testimony that they were discussed at the union meeting of that date and that he had protested to Fadave and to others of respondent's officials on the next day. Combs protested to Dunn during the period that the revocations were being signed, saying as she testified: "If the company isn't against the Union, why are they passing out these resignations . . ." 8 Dunn reported the incident to Fadave and arranged that Combs be summoned to his office. Combs' credited testimony, as to what then occurred, reads: "he [Fadave] wanted to get a few things straight . . that he knew what he was doing . . . he had a lawyer . . . [and that] he had just as much right to pass out the resignations as [the em- ployees] did have to sign for the Union."' In her testimony Dunn denied : that she ever had a copy of the revocation in her possession during December 1944; that she had ever seen any of them at the plant; that any of the employees had asked her about these forms; that she 6 Fadave was asked , "Did any of the employees ever call at your office to get the slip?" He answered , "I gave one to Leora Turner who asked for it. I suppose in turn she prob- ably told the other girls . They came into the office for them." i Elsewhere Turner testified : "Seems like some of them had already signed [revoca- tions ]" and again , "I heard different ones-you know how talk gets around in a fac- tory-I heard different ones say they had slips some of them were signing." " Dunn's testimony in point here reads , " She [Combs ] Caine running to me and said, 'I bear you are trying to stop the Union in here' I said, `What do you meant She said, 'About those slips.' I said, 'I have nothing to do with those slips.' " "This agrees in substance with testimony by Kiser about a conference in the matter with Attorney Cornell Kiser's testimony reads as follows: He [Cornell] informed us that certainly if the union had a right to sign up people in the union that the employer had a right to ask them to resign from the union, that If the law was other than that he didn 't want to be a part of this country. Fadave testified that he did not remember discussing the revocations with Combs. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had ever told any of the employees where to find them ; and that she had ever read the form before the hearing. Although at one point she specifically denied knowledge of how Turner found out about the revocation forms, Dunn later admitted that Turner told her several of the employees had signed up with the Union and had later found out they had been told untruths about it. Dunn testified that she then told Turner, "Maybe you better talk to Nick [Fadave] about it." In view of the detailed testimony by Schell, Brizzi and Turner, set forth above, all of whom were called as witnesses by the respondent, Dunn's denials must be rejected. Under these circumstances the undersigned finds the evidentiary value of testimony by Dunn seriously impaired. Fadave gave circumstantial testimony to the effect that it was following complaints by Turner that Williams had misrepresented matters to her in persuading Turner to sign the union authorization that he had sought advice from Christman which resulted in the retaining of Cornell and the preparation of the revocation form. The testimony of Turner shows that she did not sign the Union's authorization until December 15. The revocation slips, however, had been prepared about December 4. Moreover, Turner testified that she had never asked either Dunn or Fadave to prepare the revocations Further Fadave testified that he had placed the date December 15, 1944, which appears on eight of the revocations on these forms "when I got these here forms that day " When his attention was called to discrepancies in handwriting, he acknowledged that he did not put the date on the revocations in evidence signed by employees Wear and Kirkwood. He insisted, however, that lie put the date on the six other copies bearing a date when he got the slips and when they were still unsigned. In view of the testimony of Schell, Brizzi, Turner and Noblet set forth above the undersigned finds this testimony incredible and rejects it. It is clear that the revocations were circulated and signed in the period from December 4 to December 15. Fadave's contrary testimony can only be explained as an effort to falsify the record. By the acts and utterances of Forelady Dunn and Manager Fadave and the entire course of conduct set forth above, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B Alleged acts of interference, restraint, and coercion On or about December 13, 1943, a notice prepared under the supervision of Edward B. Kelly, counsel of record for the respondent in this proceeding, was posted in the Merced plant. The notice reads as follows : To the employees of the company at Merced, California : It has recently been drawn to our attention that employees of the Company in Merced have been approached by representatives of one or more labor organizations to solicit their membership Since the organization of this plant at Merced, this Company and its employees have enjoyed a happy relationship of mutual confidence and understanding with each other and during this period there has not been any labor organization among you in any department, so far as the management is aware. Under these circumstances, we feel that our employees are entitled to know the Company's attitude with reference to this natter : The Company recognizes the right of every employee to join any union that he may wish to join and such membership will not affect his position with or relationship to the Company. AMES HARRIS NEVILLE COMPANY 431 On the other hand, we feel that it should be made equally clear to each employee that it is not at all necessary for him to join any labor organiza- tion in order to work for this Company. There is no law which requires that, and whether or not an employee joins a union is entirely optional with the employee and a matter of free choice with him If any of you, individually or as a group, at any time, have any matter which you wish to discuss with us, any officer or department head will be glad, as they always have been, to meet with you and discuss it frankly and fully. It is our earnest desire to straighten out in a friendly manner whatever questions you may have in your minds. It is reasonable to believe that our interests are mutual and can be promoted through mutual confidence and cooperation. Dated December 13, 1944. AMEs IIARRIS NEVILLE COMPANY. The Board contends that the notice "is a very carefully worded suggestion to the employees that they would be better off if they did not join the Union." After carefully considering this document, the undersigned concludes and finds that it does not constitute interference, restraint, or coercion as defined by the Act. On December 20, 1944, the respondent distributed a bonus to the employees at the Merced plant amounting to 5 per cent of each employee's earnings during the preceding calendar year. The Board contends that this bonus "was paid to the employees in Merced because respondent hoped thereby to influence the em- ployees not to be represented by the Union." It appears by uncontroverted testi- mony credited by the undersigned, that a similar bonus had been paid by the re- spondent to all its employees in four of the six preceding years. The bonus payment on December 20, 1944, was made in all the respondent's plants Under these circumstances, the undersigned finds no merit in this contention of the Board. On December 26, 1944, Kelly, accompanied by Allan Ames 10 and R. A. Christ- man, respondent's general superintendent, came to Merced. The employees were assembled and Kelly addressed those "who cared to stay and listen." The only testimony regarding this speech was given by Kelly. This testimony, being uncoil- troverted, is credited by the undersigned. Kelly stated that he had two purposes in view : "to tell the employees that the company had no position one way or the other for or against unions" ; and to correct a report that a 15 cent per hour differential existed in the wages in the Merced plant as compared to those paid in respondent's San Francisco plant. The differential in favor of San Francisco employees was 5 cents an hour. This Kelly explained "had been arrived at through the War Labor Board . . . such a differential between industries in the San Joaquin Valley . . . and the San Francisco Bay Area [existed] primarily on account of a different labor situation and higher living conditions in the Bay area " The undersigned finds nothing in derogation of the Act in these statements by respondent's Attorney Kelly. On January 20, 1945, the respondent applied to the National War Labor Board for permission to grant a wage increase of 5 cents an hour to its Merced employ- ees. This action was taken because the respondent's nearest competitor in the San Joaquin Valley had made a similar request. The War Labor Board granted the request in part on February 21, 1945 The Board contends that this repre- sented unilateral action by the respondent and that the Union was entitled to be 10 Ames' position with the respondent is not exactly defined in the record . It is clear, however, that he is a supervisory official. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consulted in the matter. The Union presented to respondent's officials its claim to majority membership among the respondent's employees in late December, 1944. But proof was not made which established the Union's right to be recog- nized as the statutory representative of the employees. Hence, the contention of the Board cannot be sustained. C. The discriminato7y discharges Dossw Williams and William Atchley were closely associated in the events with which this proceeding is concerned. Williams was hired on March 2, 1944. After working for 2 or 3 months as a sewer she was trained as an operator on the turning machine. This machine operates at a speed of about 60 revolutions a minute Each revolution accomplishes the turning of a bag if the operator can keep the pace of the machine. The respondent introduced testimony to show that 24,000 sacks per 8 hour day is the normal output of an experienced turner. However, data from the records of the Merced plant, referred to below, show a maximum of 20,000 bags for a day's operation of 8% hours during the period of Williams' employment The plant had chronic difficulty in training and retaining turning machine operators. As Fadave testified, "I always train them on the second machine at all times I couldn't get anybody to work steady on it . . . They were kind of nervous. They were afraid of the movement of the machine." n Fadave explained that an operator had been injured "carelessly". Her hand had been caught between the rollers of the machine. The plant contained but one experienced operator on the turning machine, Mary Ochoa. She had learned the operation in a San Francisco bag plant and had been hired at the Merced plant on March 9, 1944. She was on leave of absence during the fig picking season from September 7 to December 6, 1944. Fadave testified that Ochoa "was more productive than" Williams and stated that none of the other employees approached Williams in production. He credited Williams with being a "pretty good worker" "when she didn't have her temper." Dunn testified of Williams, "when she wanted to work she was a very good worker." She further testified that as a turner Williams "was all right for a while and then she started getting those tantrums again." Atchley was also hired on March 2, 1944, as a worker in the warehouse oper- ating the baler. After 3 to 31/ months he was made foreman supervising the male employees of whom there were 6 in the main building and 3 or 4 in the warehouse. Atchley also repaired the turning machines and, when regular operators were absent, turned bags. When production lagged in this operation lie turned bags at night. Fadave testified that Atchley was a "good turner" and a "good worker in the warehouse." He criticized his ability as a foreman and Atchley admitted that he had considerable difficulty in getting the men to take his orders. Atchley testified further that Fadave "had told them the same thing and they wouldn't do it either." Mutual dissatisfaction with his handling of the foreman's duties caused Atchley to tell Fadave on the morning of December 7, 1944, that he wished to relinquish these duties. Fadave, after consulting with Christman, requested Atchley to retain the position until he could make other arrangements. 11 Christman gave similar testimony reading : Turning, while Dossie was on our machine, was one of the biggest problems in the plant. Either that , or that machine broke down , and while Mary Ochoa was away every new girl we tried to break in on the machine seemed to get-discouraged. Dossie had to kind of teach them. She was the girl on the other machine. We seemed to have a great deal of difficulty getting new girls to stay on the machine. AMES HARRIS NEVILLE COMPANY 433 Union activities began in the plant late in April, 1944.. At that time, Williams on the advice of one Allen, an official with the local A. F. of L. organization, secured the signatures of employees desiring organization. Later, Allen sent an organizer from the General Laborers' Union, A. F. of L., who about May 10, 1944, held an open air meeting across the street from the Merced plant. Esti- mated attendance was from 25 to 35. Dunn attended and recognized the organ- izer as a man she had met at a dance of the Carpenters Union and its Ladies Auxiliary. She later told the employees that he had a criminal record. Williams testified that at the meeting Dunn asked the organizer "what good it [organiza- tion] would do the girls and what good it would do her [Dunn]." The organizer departed after the street meeting and organizational activity ceased. Dunn testified, and the undersigned finds, that she later told the employees, "If you girls are going to join a union it looked like you could get a better man than that to represent you." When asked the reason for this statment, she stated that the organizer had a criminal record of armed robbery. In November, when interest in organization revived, Williams and Atchley consulted organizer W. J. Flint at the union office. They arranged for a meet- ing on November 29, 1944 Williams and Atchley undertook to inform the em- ployees. Dunn and about a dozen other employees attended. Flint, W. J. Kiser, president of Local 386 and representative of record for the Union in this pro- ceeding, and Ted Gonsolves represented the Union. All the employees present except Dunn including the complainants, Williams, Atchley, and Combs, signed union authorizations that evening. They were given a supply of authorization forms and were thereafter active in securing signatures. Kiser testified that these three employees and Employee Doris Nolan were the Union's principal contacts at the plant. A second open meeting was held on December 8, 1944. Dunn was in attendance and remained while the Union signed up employees present who decided to join. Thereafter, she was asked to withdraw. A third meeting was held on December 15. It is clear that the respondent was well informed of the union activities of Williams and Atchley. Dunn's presence at the first two union meetings assures respondent's knowledge of their initial activities and of their membership. Soon after the meeting of November 29, Williams was notified by Dunn to go to Fadave's office. Williams' testimony as to what happened there, reads as follows: Well, he had one of the authorization papers and he asked me had I seen that and I told him "Yes," so he said, "Don't you like your job?" So I told him I did, and he said, "Well," he says, "this is tantalizing the girls." And he says, "If you don't stop this Union business," he says. "I am going to have to let you go." He says "You; work is fine, but I can't afford to let that stand in my way." Fadave testified that he had called Williams to his office and asked her if she passed authorizations around and that she denied it. His testimony was that he then told her, "You waste too much time on the machine. If you want to organize do it in your own time "'" " After considering this testimony and the demeanor of the witnesses against the background of the entire record, the undersigned finds that Williams' version of the incident was substantially correct. Dunn testified that certain employees had told her that Williams was trying to force them to sign papers designating the Union as bargaining agent. Dunn was asked, "Did you make any inquiry of Dossie Williams trying to find out what ' The office girl, Mildred Noblet, testified that Williams came to the office on Fadave's request "at least a week" before December 7, 1944, and was accused by hint' of "passing notes out among the employees" on company time Noblet testified that Williams, "em- phatically denied whatever it was that [Fadave] said that she was doing." 692148-46-vol. 67-29 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was she was trying to get the girls to sign?" and answered, "No, I just went and told her I wished she wouldn't bother the girls so much in working hours." Williams testified that after these warnings she ceased to pass out authoriza- tions on company property. However, when on an occasion 4 to 6 days before her termination an employee came to her while the girls were "resting" and asked about the propriety of talking about the Union during spare time, Williams repeated to her the statement made at the union meeting. "that they could not fire us for just talking about the Union during our spare time." Williams' further testimony is recorded as follows : In just a very short time [Fadave] came up to the turner where I was and he told me, he shook his finger at me and told me he would fire me, my mother and my father, and even [Atchley] if I said any more about the Union. Williams further testified that Fadave made his warning applicable to "any place on the property . . at any time." Fadave denied this incident but after consideration of the record the undersigned rejects his denial. Fadave admitted he knew that Williams was active in signing up employees for the Union ; that she was the "spearhead of the Union organization in the plant" and "that she was very active in the Union." It was Christman's testimony that Fadave had told him Williams was quite active in the Union. It was Atchley's credited testimony that Fadave called him to the office on the morning after the union meeting of November 29 Atchley's testimony reads : A. He asked me if I was working for myself or working for the company? Q. What did you tell him? A. I said both. Q. What did he say? A. He said, "you'd be better off to work for the company." Fadave denied this conversation, although lie admitted that Atchley, when hired, had told him of his membership in the Warehousemen's Union. He further denied knowledge of Atchley's union activities. In view of Atchley's close asso- ciation with Williams, Dunn's observation both of their activities at the union meeting on November 29 and of Atchley's attendance at the December 8 meeting, as well as the detailed and persuasive testimony, set forth above, these denials are rejected The termination of the employment of Williams and Atchley, which occurred on December 8, 1944, resulted from the same incidents. Fadave assumed full responsibility for the discharges It is agreed that Williams had contracted a severe cold and was quite hoarse during the Week preceding her discharge. Wil- liams' mother, Employee Myrtle Farmer, testified that Williams "was feeling bad a week" before her termination About December 4, she was transferred to another job where she escaped the draft created by the turning machines. On December 5, turning machine No 1, which Williams was operating, suffered a major breakdown and was under repairs until late in the morning of December 7. Williams operated machine No. 2 on beginning work that day. Ochoa, who had returned on the 6th, was directed to turn at the No. 1 machine when it resumed operation. Williams was told of this assignment and protested to Dunn and to Fadave saying that she was entitled, on the score of her longer service, to operate the No. 1 machine. The testimony is in agreement that Fadave instructed her to continue on No. 2 for the balance of the day and assured her that she would be given No. 1 on the next day Williams testified that this adjustment was satisfactory to her. AMES HARRIS NEVILLE COMPANY 435 However, about 10 o'clock in the forenoon, she felt ill and applied to Dunn for permission to go home. Dunn referred her to Fadave who refused permission. Williams then continued working until the lunch hour at 12. She testified that she was unable to eat any lunch. She talked with her mother, Myrtle Farmer, who advised that she finish out the day if possible. In the afternoon, feeling worse she again applied to Dunn and Fadave in turn for permission to leave. It was Williams' testimony that Fadave said: "I think you are just mad." When she assured him that she was not mad, he said, "You can't go home on account you just won't have a job when you come back " Fadave's testimony is in close agreement with Williams' at this point. He explained that the factory was "stacked with bags all over the place" and that he told Williams, who "said she was sick, wanted to go home", "if she left the factory when I needed her the most she needn't come back." Atchley came to Williams' machine shortly thereafter and observing her dis- tress proposed to take her to the doctor. Both checked out about 1: 50 p. in and Atchley drove her to the office of Dr E R Fountain. Both Williams and Atchley agreed in testifying that Fadave was notified of the reason for checking out. Williams' testimony reads that Atchley "told him he wanted to take the afternoon off, he was going to take me to the doctor." Atchley testified, "1 told him I was taking Birs. Williams to the doctor and I was checking out for the rest of the afternoon." Fadave testified as to Williams, "In the afternoon she left her machine without informing me." And as to Atchley. "in the afternoon he walked out with Dossie Williams, didn't tell me anything about it. I met him outside and asked him what was the trouble. He said lie was checking out, that is all." After consideration of the demeanor of the witnesses and the entire record the undersigned accepts the mutually corroborative testimony of Williams and Atchley and rejects that of Fadave Under Dr Fountain's advice, Williams went home and remained in bed most of the time for the next 4 or 5 days Fountain gave her a handwritten certificate, stating that she was ill and unable to work. This was lost and Fountain gave her an undated signed duplicate reading, "This woman was sick on December 7 and is still unable to work." Williams' statement that she was ill was further corroborated by the testimony of her mother, living right next door, who did her house work and cared for her two sons while she was confined to the house, and by Atchley who saw her every day. Farmer observed that Fadave removed Williams' card from the rack during the afternoon of December 7. She reported this to Williams that evening. Next morning, December 8, Williams and Atchley came to the office and interviewed b`adave. Williams showed Fadave the original note given her by Dr. Fountain and testified that Fadave said, "Well, I don't have anything against you if that is the case. but I will have to call up and see what [Christman] says about putting you back on"" On inquiry by Williams as to how she would be informed, Fadave promised to send word to Williams by her mother. Farmer testified, and the undersigned finds, that Dunn told her that day that Williams "wasn't to work." " Atchley testified that on arriving the morning of December 8, he found his card was not in the rack and on inquiring the reason he was told by Fadave "You walked off the job I sent your card in." Atchley protested that he did not walk off the job but had taken Williams to the doctor. Despite the' 13 Williams so testified and her uncontroverted testimony is accepted by the undersigned. 14 Fadave's testimony essentially agrees with this statement, It reads , "I told them I turned their cards in I would check with San Francisco about them walking out. I told them it was the policy of Ames Harris Neville that person who does walk off a job, we do not replace. " He agrees that he promised to send word to Williams by Farmer. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence afforded by Dr. Fountain's statement Fadave persisted in his position. On the following day, Saturday, December 9, both Williams and Atchley were given envelopes containing their checks and releases. Each took the cheek from the enevelope and left the release on Fadave's desk. When sufficiently recovered to be able to return to work, "just before Christ- mas," Williams went to the plant and asked Fadave if she could go back to work. She was assured by him that she could on the first opening. On February 13, 1945, Williams procured a note from Dr. Fountain reading: To whom it may concern: Mrs. Dossie Williams has been sick and under my care. She is now able to return to work. Her illness began December 7, 1944. Respectfully, (Signed) E. It. FOUNTAIN, M. D. Accompanied by Ashley, Williams took this note to Fadave at once and was told by him that there was no opening for her but that she would be notified through her mother and would be recalled at the first opportunity. She had, however, received no such notification at the time of the hearing. Respondent's contentions for the discharges of and refusals to rehire Williams and Atchley Both Dunn and Fadave testified that Williams had an uncontrolled temper and was difficult to work with on that account. Fadave's testimony was, "I couldn't get anybody to work with her. I was constantly hiring people there on that machine." These general criticisms of Dunn and Fadave were not sup- ported by the presentation of definite instances of transgression by Williams. Moreover, numerous employees called as witnesses by the respondent were asked whether Williams displayed a troublesome temper in the plant. The only specific testimony supporting this contention of the respondent was given by Ochoa." She testified that on an occasion when she was placing bags for Williams to turn, Williams said, "This is too hard, too hard." "My arm hurts" and became angry and threw all the bags on the floor. Williams explained in her testimony that due to an injury to her arm, she was unable to reach high for the bags and had arranged with Fadave that no more than 3 bundles, 75 bags at a time should be placed for her use. Ochoa, however, "put up about 250 bags " Whereupon, as Williams testified, "[she] went around and laid them off back on the pile." Ochoa did not report the incident at the time and there is no contention by the respondent that it affected the decision to discharge Williams. The undersigned finds no substantial evidence in the record that supports these criticisms of Williams by Dunn and Fadave The respondent contended that Williams' production as a turner was inferior and that her output was diminished by frequent breakdowns of her machine ascribable to her carelessness in operation. At the request of the undersigned, the production records for 27 days between August 11, 1944, and December 7, 1944, were spread on the record. On December 7 Williams did not work a full day. On 23 of the other 26 days she turned more bags than any other turner. On August 21, Ochoa turned 20,000 bags and Williams 18,000; on August 23 the relative numbers were 18,000 and 14,000 and on August 30, 14,000 and 12,500. On August 17, however, Williams turned 17,500 and Ochoa 17,000. On September 's The record suggests that some rivalry on their ability as turners existed between Ochoa and Williams . As Ochoa testified, "Every time I beat her to turn , and she wants to beat me." AMES HARRIS NEVILLE COMPANY 437 1 the comparative figures were 17,500 and 12,500 and on August 31, 17,000 and 15,500. It should be added that on all these six dates Ochoa had the advantage of operating machine No 1, which was somewhat faster than Williams No. 2 machine. In these records of 27 days output the highest day of production at- tained was 20,000 bags turned. Williams made this figure on 3 days. The undersigned concludes and finds that the actual production records refute the respondent's contention that Williams was inefficient as a turning machine operator and that excessive breakdown due to her carelessness reduced her output.'e The respondent further alleged that Williams was responsible for complaints by important customers that bales, which should contain 500 bags, were short in count and contained broken or otherwise damaged bags. It appears that counting is done by a meter attached to the machine which registers each bag turned. Operators are responsible for correcting the record in case a bag is torn in the process of turning. They rely on the meter for the enumeration of 500 bags which are then removed to the baler. The record shows that the meters on both No. 1 and No. 2 machine had been defective during Williams' employment, necessitating repairs and replacement. The respondent enumerated three orders as having been improperly filled : 1. American Potash and Chemical Corporation-75,000 bags 2. Farmers Bag and Supply Company-100,000 bags 3. Grange Company-30,000 bags When asked to produce the records which fixed responsibility on Williams for the errors made, the respondent withdrew the allegation as to the Farmers Bag and Supply Company, explaining through its witness Allan Ames, that "it was impossible to trace that back because it covered bags that they had purchased over a period of time . . . sort of an inventory of them, it was impossible to find out the date on which those bags were turned." As to the American Potash and Chemical Corporation order of 75,000 bags, Ames testified that the bags were turned on dates from August 12 through August 17, 1944. He presented the data which is incorporated in the following table : Date Ochoa Williams Jeffrey Turned by hand Aug 12----------------------------------------------- 11,500 ------------ 7,000 5,500 14---------------------------------------------- ----------- 15,000 11,500 10,000 15--------------------------------------------- ----------- 12,500 11,500 5,500 16----------------------------------------------- ------------ 16,000 11,000 ------------ 17------------------------------------------------ 17,000 17,500 ----------- - 1 8,000 Ames further explained that only the No. 1 machine could turn the 40-inch burlap bags which this order called for. His analysis proceeded on the assump- tion that Ochoa when turning, operated this machine and that Willians oper- ated it on the days when Ochoa was engaged on other duties. He admitted that the records used did not indicate on which machine any of the employees were working on the days in question. On the final day only 1,500 bags were turned for this customer. These were assumed to have been supplied from the 11 It was Fadave 's testimony that when Williams' turning machine broke down she was not transferred to another machine, Instead , "she stayed and waited until the machine was repaired " 17 However, Ochoa testified that prior to September 2, there were only two machines and three turners . She further testified , "sometimes we had turns," and again that she at times allowed the third turner, Jeffrey, to operate her machine. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 17,000 bags turned on that day by Ochoa. Adding the 11,500 turned on No. 1 machine on August 12 this accounts for 13,000 bags turned by Ochoa or 17 3 per- cent of the order. The respondent assumes that all the bags turned by Williams on August 14, 15 and 16 went to this customer This made a total of 43,500 or 57.3 percent of the total's The balance of the total order, some 25 percent, cannot be allocated, on the basis of Ames' testimony, to any of the production shown in these data. The hand turned bags were described by Ames as 12 ounce burlap which turns to better advantage by hand than on the machines, while none of Jeffrey's production can be so allocated since the No 1 machine which alone could handle the 40-inch bags was used on each of the 5 days involved either by Ochoa or by Williams. Williams' share in the total production at most was under 58 percent and there is no proof whatever that the bales contauuug defective bags fell in this percentage. The evidence as to the Grange Company order is also inconclusive. Ames first stated that these 40-inch burlap bags, 30 ,000 in number were turned on September 18, 19 and 20, 1944. After figures for these days had been submitted he testified, "I would like to make a correction, I think that went through to September 21." Ames further stated that on this date only 9,500 of the total were turned. Data presented by Ames make up the following showing : Sept 1s Sept 19 Sept 20 Sept 21 Williams --------------- -------------------------------- 7,000 14,500 13,500 15,500 Reed----- -------------------------------------------- 7,000 ----------- ----------- ------------ Dunn---------------- ---------------------------. 2,000 ----------- --------- ---------- "No 2 machine"--------------------------------------- ------------ 3,500 ------------ ----------- Fadave ------------------ ------------------------ ------------ ----------- ----------- 7,000 Spnngston ------------------------------------------- ----------- ----------- 3,000 ----------- Atchley----------------------------------------------- ----------- ---------- 15,500 Ames stated that the bags credited to Atchley and to Fadave were turned on the second shift. He did not know on what machine He assumed that all bags turned by Williams were handled by machine No. 1, which was adjusted to the 40-inch bag. However, Fadave testified as to the production of this order, as follows : At the time of [the shipment's return] we had on and off turners there. There were three turners and two machines so every other day one would change . .. Like Dossie would be turning No. 1, Mary Ochoa No. 2, the next day Mary would be on No. 1. I worked for a while like that. It will be noted that on September 18 Williams and Reed together turned 14,000 bags, which might well have been done on the No. 1 machine Similarly, Spring- ston's 3,000 turned on the 20th might have filled out Williams' short day of 13,500. On the hypothesis that Reed and Springston worked on No. 1 machine and that Atchley and Fadave also used No. 1 and remembering that only 9,500 were turned for this order on the 21st we have 19,500 bags or about two-thirds of the -number required to fill the entire order which cannot on the evidence in the record be excluded from responsibility for the defects involved. Fadave testified that after checking the respondent's records in order to fix responsibility for the bales containing defective bags in this shipment, he had cautioned Wil- liams to be more careful about including broken bags. It was his further testi- mony that Williams replied, "Well, she would do her best." 18 This computation is based on the total of 75,000 bags given in the respondent's first statement , by its witness Christman , general superintendent. Ames later gave the total 60,000 bags. AMES HARRIS NEVILLE COMPANY 439 The undersigned cannot find in this evidence any justification for Williams' discharge or for the failure to rehire her. Fadave gave testimony which, if accepted, would have weight in determining the obligation of the respondent to rehire Atchley. Fadave testified that on the evening of December 8, 1944, between 8: 00 and 8: 30, he met Williams and Atchley in a car at the corner of 20th and "L" Streets in Merced "just a half a block away" from the factory. Fadave's testimony read as follows : [Atchley] wanted to know why he was let go. I told him he walked off the job. He said he was checking out, that he quit first thing in the morning, he was getting boisterous and grabbed my coat and wanted to strike me . . . I said, "Be careful, Willie, don't be like that. You are well liked in the fac- tory. [Christman] likes you quite a bit, you want to control yourself." He went on and started talking quite a bit of different persons in the factory. Q Did he say anything about any releases? A. Later on I said, "I can give you your job back, but not as a foreman " I said, "I have to rehire you." He said, "I wouldn't work for you if you were the last person on earth. I want a release " I said, "Come in Saturday and I will give you a release." Fadave further testified that he reported this incident to either Allen Ames or Christman by telephone next day. Christman was recalled as the respond- ent's last witness and stated that Fadave reported this incident to him by tele- phone on the day following its occurrence. Christman gave no details beyond assenting to a question that Fadave's report was "With reference to [a] threat- ened assault by Willie Atchley." Atchley, when recalled during the Board's rebuttal, testified that on the eve- ning of December 8 he was at Williams' home until he left for the union meeting at 8 p. in on that date and that lie returned to Williams' house immediately after the meeting closed. This testimony was fully corroborated by Williams. Atchley and Williams further specifically denied every significant statement advanced in Fadave's testimony as to this incident. The undersigned notes that Fadave's testimony is implausible on two counts. He stated that both Williams and Atchley desired their releases in his account of his conversation with them on the evening of December 8. Yet the record shows that on the following morning each of them took their releases from their pay envelopes and left them on Fadave's desk. Again, Fadave testified that he offered Atchley reemployment as a warehouse worker on December 8, in the evening although he had refused to allow Atchley to continue in his employment about 7:30 in the morning of the same day Moreover, as Fadave testified, lie had hired a man to take over Atchley's work in the forenoon of December 8. When asked what had happened during the day, which caused him to change his mind, Fadave answered , "I wouldn't know now." Under this state of the record, the undersigned rejects the testimony of Fadave and Christman regarding this matter and accepts that of Atchley and Williams as substantially correct. The undersigned concludes and finds that the discharges of Dossie Williauus and of William Atchley effective on December 8, 1944, were discriminatory and were based on their Union membership and activity. Helen Combs was hired by the respondent in March 1944. After picking up bags for 2 or 3 weeks she was made an inspector. In September, Combs had a leave of absence and worked in a cannery almost a month . On returning November 3, 1944, she was reinstated in her job as inspector. Combs testified without contradiction and the undersigned finds that in addition to her duties 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as inspector she assisted in various other operations when employees were absent. It is admitted that Combs was a satisfactory employee in the period before December 15, 1944. It was Dunn's testimony that "she was a good worker, she did her work good but would throw bags at the girls and they were always complaining about her." Fadave similarly testified of Combs, "To a certain extent she was satisfactory, but other times she wasn't." Fadave also testi- fied that Combs on November 3 had aroused resentment among the sewers by the manner in which she rejected bags as an inspector. Dunn testified that she had changed Combs' station at the time and instructed her "when they had bad bags to lay them on the table in a mannerly sort of way." Dunn further testi- fied that Combs thereafter showed improvement. Combs positively denied that she ever "threw any bad bags back at anybody" and further testified that she had never been reprimanded for such conduct. No witness other than Dunn and Fadave was produced to testify to any dereliction by Combs in deportment or efficiency. No other specific instance of wrongdoing by Combs was advanced by either Dunn or Fadave Under these circumstances the undersigned finds that the incident of November 3 was closed by the action taken by Dunn at that time. As appears below, the matter did not figure in Combs' termination over 2 months later. Combs' credited testimony shows that she was an active union protagonist. She had been a member of a cannery workers' union at the time she was hired. She attended each of the three meetings held by the Union. At the first meet- ing on November 29, she signed a union card under the observation of Dunn. She received a supply of union authorization slips and as she testified "When- ever I didn't have anything to do I talked about the [Union]." As set forth above, she protested to Dunn about December 15, 1944, concerning the respond- ent's activities in securing signatures to the revocation forms. On that oc- casion she was summoned to Fadave's office for the purpose "of getting certain things straight." She then told Fadave that she "had signed for the Union." And, as her credited testimony reads, "He said he would rather I wouldn't talk about it, but he didn't tell me not to." It is clear that the respondent was fully apprised of Combs' union membership and activities. On or about December 15, 1944, Combs was hurt while engaged in her duties in the plant. She strained her side while lifting bags. On December 18, she visited her family physician, Dr. Moyle, who taped her side and administered heat treatments. He advised that she would be incapacitated for about a week. She reported to Dunn and to Fadave immediately after visiting the doctor. Fadave told her that Moyle was not the respondent's doctor, but suggested that he "could work it out all right." Thereafter Combs had four or five further treatments from Dr. Moyle. On each occasion she visited the plant and, as she testified and Dunn agreed, on each occasion she saw Dunn and told her she did not know how soon she would be able to return to work. Dunn testified that she reported to Fadave that Combs had been in the plant and had stated that she did not know when she would be able to return. Fadave admitted knowledge that Combs received workmen's compensation for her injury. However, when Combs finished her treatments on January 8, 1945, and went to the house of her close neighbor Fadave, to report herself fit for duty, she was surprised to be told that she "did not have a job any more." Fadave then said, as Combs testified, that "he took it for granted that I had quit." '9 39 The quotations are from Combs' credited testimony. Fadave testified that he told Combs : "Well, I replaced you. You have been away for two weeks and didn't notify the office at all. It is our policy when we do not receive word from the workers to take them off the pay roll." AMES HARRIS NEVILLE COMPANY 441 Combs thereupon procured from Dr. Moyle a statement, dated January 9, 1945, which reads as follows: To whom it may concern : In the case of Helen Combs, it was reported originally no disability. This was an error on the part of our secretary . Mrs. Combs is now reported as able to return to work on January 8, 1945. Sincerely yours, [Sgd ] CHESTER A. MovLE, M. D. A copy of this statement was sent to the California Indemnity Company and Combs presented a copy to Fadave who thereupon showed Combs a "little pink paper" which stated that she wasn 't injured." Fadave's testimony agrees with that of Combs in stating that she had no previous knowledge of this document. Combs' testimony as to Fadave 's final answer reads : Well, he said he sent my card in now and he said they didn't have a job for me becaule they were all filled up and the first opening, why I could have it. Fadave's testimony corroborates this version . He contended , however, that his promise to recall Combs was restricted to the first opening for an inspector. Combs had not been recalled at the time of the hearing in this proceeding. Although not working on December 20, 1944, combs participated in the 5 per- cent bonus payment made on that date. Her mother who was employed by the respondent that day received her bonus check and delivered it to her. It will be noted that Combs' inquiry and absence from work coincides in date with the delivery of the revocations to the union office on December 15, 1944. About that date, she had aroused the ire of Fadave by protesting this action by the respond- ent. Fadave, who assumed full responsibility for Combs' discharge, was admit- tedly informed as to the cause of her absence. The respondent further was currently informed through Combs ' periodic reports to Dunn of her continued incapacity. Under these circumstances , the undersigned concludes and finds, after consideration of the full record, that Fadave seized on the opportunity afforded by Combs' enforced absence to discharge her for her union membership and activity. This discharge became effective on January 8, 1945. Concluding findings The discharges of Williams , Atchley, and Combs were each closely associated in dates with the respondent's campaign to secure the revocation of its employ- ees' union authorizations. Fadave admitted knowing that Williams was the most active of the union protagonists . He admittedly knew also that Atchley was a union member when hired and that he was very closely associated with Williams. Combs disclosed her union sympathies to Dunn and Fadave and aroused Fadave's anger when she protested against the respondent 's activities in securing signatures to its revocation slips. The respondent's compaign extended from about December 4 to December 15, 1944. Williams and Atchley were dis- charged on December 8, and Combs on January 8, 1945, although she was absent beginning December 18, 1944 The services of the three complainants were satisfactory to the respondent until they became actively engaged in the Union's organizational activities. Both Williams and Combs previously had been reinstated, without question, after extended leaves of absence. Atchley had been elevated to a position as foreman and given a wage increase after some 3 months' serviee. Williams and Atchley 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD left the plant on the afternoon of December 7 for a legitimate reason. Fadave admitted in his testimony that he had never refused any other employee's request to leave 'work for the purpose of visiting a doctor. Moreover, Fadave testified that if Atchley had told him he proposed to take Williams to a doctor, he would have excused their absence. Williams promptly furnished proof in the form of a statement by Dr. Fountain, that she had visited him on December 7 and was in fact Ill and unable to work She gave Fadave further evidence of the same character on February 13, when she applied for reinstatement. Nevertheless, Fadave persisted in his decision to discharge her and Atchley and in his refusal to rehire them. Similarly, Combs was known to both Dunn and Fadave to have been injured in the course of her employment. After each visit to her doctor Combs told Dunn of her continued incapacity for employment. Fadave admitted, albeit reluctantly, that he knew Combs received workmen's compensation for her injury. Under such conditions she was plainly entitled to be reinstated on Jan- uary 8, 1945, when she applied. But Fadave refused and was not moved to change his decision when Combs presented proof that an earlier report from her doctor's office that she had not incurred injury was issued through error, Other justifications alleged by the respondent as a basis for the discharges were not sustained by the evidence. It is clear that openings which each of the complainants might well have filled were available in the plant Fadave testified that he hired a man to take over Atchley's duties on December 8, 1944. He further testified that he had hired a woman worker on each of the dates December 22, and 27, January 19, 20, 22, and 29, while on January 23 four women were hired Fadave admitted that since December 8 he had filled practically every position in the plant. Both Williams and Combs were capable, as the record shows, of filling several posi- tions efficiently. Yet, despite Fadave's promise to recall them on the first open- ing they had been refused reinstatement up to the time of the hearing in this proceeding. Under these circumstances, the undersigned concludes and finds that the dis- charge of Williams, Atchley and Combs was a constituent part of the respond- ent's antiunion campaign. It admittedly secured ten revocations of union authorizations and cooperated in transmitting them to the Union's office. Dur- ing the same period of time it discharged the three most active and effective proponents of the Union among its employees These measures were successful in defeating the movement for union organization. As Farmer testified, since Williams left "they never did name that [the Union] to me in that plant, nobody, not to me." By the discharge of Dossie Williams and William Atchley on December 8, 1944, of Helen Combs on January 8, 1945, and by its subsequent refusal to rehire them the respondent had discriminated in the terms and conditions of their em- ployment and has discouraged membership in a labor organization. By such dis- charge and refusal to rehire Williams, Atchley and Combs and by the anti-union acts and utterances of Dunn and Fadave set forth in this section, the respondent has interfered with, restrained, and coerced it employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Sec- tion I above, have a close, intimate and substantial relation to trade, traffic AMES HARRIS NEVILLE COMPANY 443 and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor prac- tices the undersigned will recommend that it cease and desist therefrom and take certain affirmative action found necessary in order to effectuate the policies of the Act. It has been found that the respondent discharged Dossie Williams and William Atchley on December 8, 1944, and Helen Combs on January 8, 1945, and has there- after refused to reinstate them for the reason that they joined and assisted a labor organization and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection. It will be recommended that the respondent offer Williams, Atchley and Combs immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges they may have It will be further recom- mended that the respondent make Williams, Atchley and Combs whole for any loss of pay they may have suffered by reason of the respondent's discriminatory acts by payment to each of them of a sum of money equal to the amount he of she normally would have earned as wages from the date of the discriminatory dis- charge to the date of the respondent's offer of reinstatement, less his or her net earnings 20 during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case the undersigned makes the following : CONCLUSIONS OF LAW 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, Local 386, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Dossie Williams, William Atchley and Helen Combs, thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law the under- signed recommends that the respondent, Ames Harris Neville Company, and its officers, agents, successors and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, Local 386, A. F. of L., or any other labor 20 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N L R. B 440 Monies received for work performed upon Federal, State, county, municipal , or other work relief projects shall be considered as earnings. See Republic Steel Corporation v N. L. R. B., 311 U. S. 7. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization, by discriminating in regard to hire and tenure of employment, or any terms or conditions of employment of its employees; (b) In any other manner, interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers, Local 386, A. F. of L., or any other labor organization, to bargain collectively-through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Dossie Williams, William Atchley and Helen Combs immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges ; (b) Make whole Dossie Williams, William Atchley and Helen Combs for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to them of a sum of money equal to the amount which they normally would have earned n as wages from the date of their discrimi- natory discharge to the date of the respondent's offer of reinstatement, less their.net earnings during such period ; (c) Post immediately at its plant in Merced, California, copies of the notice attached hereto, marked "Appendix A " Copies of said notice, to be furnished by the Regional Director of the Twentieth 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) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) File with the Regional Director for the Twentieth Region on or before ten (10) days from the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondent has com- plied with the foregoing recommendations. It is further recommended that, unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Di- rector in writing that it will comply with the foregoing recommendations the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective July 12, 1944, 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, Rocbambeau Building, Washington 25, 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 objec- tions) 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 11 See footnote 20, supra. AMES HARRIS NEVILLE COMPANY 445 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. CHARLES E. PERSONS, Trial Examiner. Dated November 1, 1945. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers, Local 386, A. F. of L. or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Dossie Williams William Atchley Helen Combs- All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. AMES HARms NEVILLE COMPANY, Employer. Dated-------------------- By-------------------- -------------------- (Representative ) (Title) NorE.-Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.