Wood Manufacturing Co.

WOOD MANUFACTURING COMPANY 633 yards, including laborers, checkers, truck drivers, and night watch- men,6 but excluding weighmasters, office and clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining with the meaning of Section 9 (b) of the Act. 5. The determination of representatives : The Employer employs two men as laborers who regularly work only on Saturdays and Sundays. The parties agree, and we find, that these individuals are regular part-time employees and are entitled to vote in the election directed herein. [Text of Direction of Election omitted from publication in this volume.] 6 As the record indicates that the employees classified as night watchmen do not spend more than 50 percent of their time performing guard duties , we shall, as agreed by the parties, include them in the unit . Wiley Mfg. Inc., 92 NLRB 40. J. B. WOOD, AN INDIVIDUAL, D/B/A WOOD MANUFACTURING COMPANY AND J. B. WOOD AND CONRAD WOOD, A PARTNERSHIP, D/B/A WOOD MANUFACTURING COMPANY and AMERICAN FEDERATION OF LABOR and LOCAL 396, INTERNATIONAL CHEMICAL WORKERS UNION, A. F. L. Case No. 15-CA-9209. July 27,1951 Decision and Order On September 13, 1950, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action as set forth in the copy of the In- termediate Report attached hereto. He also found that the Respond- ents had not been engaged in another unfair labor practice alleged in the complaint and recommended dismissal of that allegation. Thereafter, the Respondents filed exceptions to the Intermediate Re- port and a supporting brief and the General Counsel filed a brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Intermediate Report, the 3 The Respondents argue that the Trial Examiner arbitrarily credited the testimony of the union witnesses and discredited that of the witnesses for the Respondents It Is the Board's established principle that a Trial Examiner's credibility findings are entitled to great weight , because in resolving testimony he is in a position to observe the demeanor of the witnesses. Somerset Classics, Inc., and Modern Mfg. Co., Inc., 90 NLRB 1676; Inter-City Advertising Company of Greensboro, N. C., Inc, 89 NLRB 1103; Northeastern 95 NLRB No. 84. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications and additions- 2 1. The Trial Examiner found, and we agree, that by the following conduct, fully discussed below and in the Intermediate Report, the Respondents interfered with, restrained, and coerced their employees in violation of Section 8 (a) (1) of the Act: 3 (1) Illegal surveillance of the employees' union meeting of August 31, 1949; 4 (2) Conrad Wood's threat to Union Leader Fannye Murray that the Respondents would "close the plant up tighter than a doornail" bef ore. they would permit it to be unionized; (3) the unlawful lockout of the plant on September 1, 1949; (4) the Respondents' statement conditioning the return of certain employees on their "forgetting the union" ; (5) the unilateral wage increase instituted during the week ending September 22,1949.,' Indiana Broadcasting Co., Inc. (WKJG), 88 NLRB 1381. We find nothing in the record to indicate that.the Trial Examiner's credibility findings were either arbitrary or erroneous. The Respondents contend also that the findings of the Trial Examiner are not supported by the preponderance of the evidence. A careful analysis of the record persuades us that the Trial Examiner's findings in this case are, with the exceptions noted bel2w, supported by the preponderance of evidence. The Trial Examiner properly denied the Respondents' motion to strike all testimony relative to events which antedated the 6-month period of limitation contained in Section 10 (h) of the Act. That section prevents the issuance of a complaint based upon such r.-2tion. It does not foreclose the Board from accepting evidence of those events for the purpose of throwing light upon acts which happened within the 6-month period. Frederica Clausen, doing business as Lawrence Hide and Tallow Company, 89 NLRB 989, enforced 188 F. 2d 439 (C. A. 3) ; Axelson Manufacturing Company, 88 NLRB 761. 2 The Respondents contend that the entire proceeding should he quashedon grounds relating to the compliance status of the Local. The fact of compliance by a labor organiza- tion which is required to comply, is a matter for administrative determination and is not litigable by the parties. Moreover, the Board is administratively satisfied that the Local is in compliance. See Sunbeam Corporation, 94 NLRB 844; Swift & Company, 94 NLRB 917; cf. Highland Park Manufacturing Company, 340 U. S. 927. $ The Trial Examiner properly rejected the Respondents' contention that the unfair labor practice allegations pertaining to surveillance and the unilateral wage increase as well as testimony in connection therewith should be stricken from the complaint and the record, because neither the original charge nor the two amended charges contain any reference thereto. The function of the charge is to set in motion the Board's investigatory machinery to ascertain whether or not a complaint should issue. There is no requirement that the charge set forth each unfair labor practice to be litigated. Therefore, the scope of the complaint is not dependent upon the specific content of the charge and may properly be broader than the charge. Cathey Lumber Company, 86 NLRB 157, enforced 185 F. 2d 1021 (C. A. 5), recently set aside on other grounds; Kansas Milling Company, 86 NLRB 925, enforced 185 F. 2d 413 (C. A. 10). * The Respondents' assertion that a single disconnected incident does not warrant an order by the Board is without merit, as the surveillance herein was not an isolated act but constituted, as appears below; part of a general pattern of coercive and antiunion conduct. E. A. Laboratories, Inc., 88 NLRB 673. 5 The Trial Examiner found that the granting of the unilateral wage increase constituted an independent violation of Section 8 (a) (5) of, the Act. In view of our finding, infra, that the Respondents did not breach their statutory duty to bargain because they expressed their willingness to bargain and the Local did not make every reasonable and diligent effort to bargain, we find, contrary to the Trial Examiner, that, under the circumstances herein, the 'Respondents' unilateral action was not by itself a refusal to bargain within the meaning of Section 8 (a) (5) of the Act. We shall, therefore, dismiss this allegation of the complaint. - However, we find .that the wage increase was calculated to discourage membership In the Union and constituted a violation of Section 8 (a)' (1) of the Act. Kentucky Utilities WOOD MANUFACTURING COMPANY 635 As noted by the Trial Examiner, Plant Superintendent Whatley also requested employee Worth on August 31, 1949, to find out what the employees were talking about, received subsequent information from her that the employees were talking about the Union, and further asked her if she knew which employees were talking about the Union. We find that by such conduct the Respondents have engaged in unlaw- ful interrogation of an employee concerning the union membership and activities of other employees in violation of Section 8 (a.) (1) of the Act.,, 3. The Trial Examiner concluded, and we agree, that Fannye Murray was discriminatorily discharged on August 31, 1949, because of her activity and leadership on behalf of the Union. Like the Trial Examiner we find insufficient merit in the Respon- dents' contention that Murray was discharged because her talking interfered with production. Murray was an active leader of the Union in the Respondents' plant. On August 31, 1949, the day of her discharge, Whatley had interrogated employee Worth concerning the union activities of the Respondents' employees. The record discloses that Murray not only had made arrangements to hold an organiza- tional meeting on that very day, but had discussed the Union with her fellow employees and urged them to attend the meeting. Follow- ing his conversation with Worth, Whatley summarily discharged Murray and Dumas, another active union leader, on the afternoon of August 31,1949. The Trial Examiner credits the testimony of Murray that Whatley told her she was being discharged because of the union dispute in the plant. As indicated above, we find nothing in the record to suggest that this credibility finding of the Trial Examiner was either, arbitrary or erroneous. No substantial evidence supports the Respondents' contention that Murray was discharged for cause. Con- trary to Whatley's testimony that Murray's work was unsatisfactory, Earl Wheatley, Whatley's predecessor as plant superintendent, testi- fied that he had observed that Murray processed hooks for lures in a proper manner and that he did not have any complaint "to ,amount to anything" concerning her work. Wheatley had supervised Mur- ray's work for more than 2 years. Whatley, on the other hand, had been plant superintendent for approximately 2 weeks at the time of Murray's discharge. We are persuaded and find, as did the Trial Examiner, that Murray's union membership and leadership were known to the Respondents at Company, Inc., 83 NLRB 981 ; Scamprufe,, Incorporated, 82 NLRB 892; R. TV. Sturges, Sr., trading under the firm name and style of The Sturges Company, 74 NLRB 1546. The Trial Examiner inadvertently st-tes that the wage increase was effective as of September 22, 1949. ' Standard Dry Wall Products , Inc.. 91 N1,RB 544 ; Jasper National Mattress. Company, 89 NLRB 75. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the time of her discharge on August 31, 1949,' and that she was discharged because of her activity on behalf of the Union. We find that the Respondents thereby violated Section 8 (a) (3) and (a) (1) of the amended Act. " 4. The Trial Examiner found that Aline Dumas, the other union leader who was discharged on the same day as Murray, was a super- visor as defined in the Act and as such does not come within the protection of the Act. Consequently, he did not reach the question whether she, too, was discriminatorily discharged for her union activities. In arriving at his conclusion that Dumas was a supervisor within the meaning of the Act, the Trial Examiner cited that portion of Dumas' testimony which indicated that she trained new employees; worked on the assembly line assisting employees or filling vacant po- sitions; saw to it that the 12 employees of the assembly line "got out" the required amount of work and, at the direction of the plant super- intendent, spoke to employees about the necessity for improving their work and meeting their production quotas; referred disciplinary mat- ters to the plant superintendent; and persuaded him on one occasion to give an employee a wage increase. The record, however, discloses the following additional facts pertinent to her duties and, respon- sibilities : Conrad Wood had the responsibility of running the plant where approximately 27 employees were engaged in the manufacture of artificial fishing lures or bait. He was present most of the time and was often consulted, particularly by Raymond Whatley, who succeeded Earl Wheatley as plant superintendent about August 15, 1949. Also on hand was one Sam Erwin, who was expected by J. B. Wood, sole owner of the Company, to assist Whatley in his new position s Dumas, who had previously performed various operations on the assembly line, was made "supervisor" thereof in March 1949. There- after, she was given a salary, $130 a month, which represented an in- crease of about $10 over her previous earnings .9 Each morning Dumas received instructions from Wheatley as to the amount and type of bait required for the day. She in turn relayed these orders to the assembly line. The greater part of Dumas' day was spent working on the assembly line assisting employees or filling vacant positions. 4 The evidence cited above indicates that Whatley was aware of Murray's union activities. Moreover, the Board has held that an employer's knowledge of the union membership of a discharged employee may be inferred where, as here, the union's organizational activity occurs in a relatively small plant. Jackson Daily News, 90 NLRB 565 ; Citizens-News Company, Inc., 88 NLRB 1413. 8 J. B. Wood testified that he depended on Erwin a great deal and told him to help Whatley in any way possible. We agree with the Trial Examiner's finding that Erwin is a supervisor. a The compensation of the head painter , Berdle Greer, whose employee status is not disputed, amounted to $120 as computed on a monthly basis. WOOD MANUFACTURING COMPANY 637 As Wheatley was himself in the assembly room most of. the time, there were only one or two occasions when, Dumas reported to him on whether work was being properly done. In the main, reliance was placed on time cards which Wheatley and Dumas studied each day. It was the plant superintendent's practice to then direct Dumas to speak to or "bawl out" slow employees about meeting their pro- duction quotas. In one such case, after Dumas transmitted three warnings to an employee who failed to meet her daily quota, it was Wheatley who effected the discharge. In this connection, Dumas credibly testified that Wheatley never told her that she was empowered to hire or discharge employees 10 Although Dumas did no hiring, she as well as others whose employee status is not disputed suggested certain names when they were asked by Wheatley to do so. Trans- fers from one position to another came within the jurisdiction of the plant superintendent. While Dumas ' did on one occasion "talk [Wheatley] into" giving an outstanding employee a "nickel raise," it is clear from Dumas' uncontradicted testimony that ordinarily she "couldn't get anybody a raise." Usually, employees who wished to take sick leave or time off spoke directly to the plant superintendent." It appears from the above that Dumas was without authority to hire, discharge, or discipline employees, or effectively to recommend such action. We do not regard the isolated instance of her successful effort on behalf of a particular employee as a sufficient criterion of her supervisory status. Effective supervision over the 27 employees in the Respondents' small plant was exercised by Conrad Wood, Whatley, and Sam Erwin.- We find, contrary to the Trial Exam- iner, that Dumas' powers of direction were too limited to warrant the conclusion that she was a, supervisor within the meaning of the amended Act 13 Having found that Dumas is an employee rather than a supervisor as defined in the Act, we turn now to the question whether she was unlawfully discharged because of her union activities. 10 Whatley testified that Dumas had the authority to recommend such action but never exercised it. We attach no weight to this evidence, as it was not made clear how effective her recommendations were supposed to be. 1 Although there is some evidence that Whatley spent somewhat less time in the assembly room than Wheatley, it does not appear from the record that Dumas' duties changed substantially when Whatley became plant superintendent. 13 As already noted, he served in a supervisory capacity in aiding Whatley. After the reopening of the plant Erwin was in charge of hiring employees. 1' Overhead Door Company of Pennsylvania, Inc., 86 NLRB 65; Aeroil Products Company, Inc., 86oNLRB 639; Tyre Brothers Glass & Paint Co., 85 NLRB 910; Southern Paperboard Corporation, 84 NLRB 822; Beatrice Foods Company, 84 NLRB 512; John F. Jelke Company, 83 NLRB 442. It is significant that Read Painter Greer was not regarded as a supervisor by the Respondents, although she was in charge of the paint department. Q 638 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD The Respondents contend that Dumas was discharged on August 31, 1949, because she was not performing her duties efficiently. In support of this position, they assert that she failed in her responsi- bility to prevent defective bait, known as culls; violated rules against smoking; instructed employees to violate Whatley's orders; and inter- fered with the work of assembly line employees by excessive talking. Wheatley, who was plant superintendent until August 15, 1949, and was thoroughly familiar with Dumas' work, testified credibly, how- ever, that she was an efficient worker, applied herself, and was anxious to do a day's work for the Company. In this connection, Wheatley stated that when he left in mid August 1949, he had a good crew and that during his tenure there was a normal amount of culls, 31/2 to 5 percent. That Dumas continued to do her job satisfactorily in the remaining 2 weeks of August during which time Whatley was plant superintendent is borne out by Conrad Wood's admission that Dumas' work was "all right" and that he never talked to her about it being unsatisfactory. Nor did he, in concluding that Dumas could not get along with Whatley, speak to her to ascertain further facts or caution her -as to any misbehavior on her part. It is significant also, that on one occasion, a week or 10 days before Dumas' dismissal, when What- ley reprimanded the employees for laughing and being away from their customary work stations, Dumas directly thereafter sought out What- ley in his office and was told that he was not singling her out for criti- cism, but was "talking to everybody." 14 Finally, we find it significant that at the time of Dumas' discharge and on the day following she was not told the reason therefor. The Respondents assert that at no time before Dumas' dismissal were they aware of her union activities. For the reasons stated in the discussion above concerning Murray, we are of the opinion, however, and find that the union membership and activity of Dumas was known to management representatives at the time of her termination on August 31, 1949. The Respondents' union animus is demonstrated by the unlawful labor practices described above and in the Trial Examiner's Report. In view of the Respondents' failure to advance a valid reason for the discharge of Dumas and in light of all the evidence, including the Respondents' knowledge of Dumas' prominent union activity and their opposition-to the Union, we conclude that Dumas' discharge was in fact motivated by her union activity and leadership. We find, therefore, that Dumas' discharge was violative of Section 8 (a) (1) and(a) (3) of the Act. We shall accordingly order her reinstated with back pay. However, in accordance with our usual practice where a Trial Examiner dismisses an 8 (a) (3) charge, in computing 14 Whatley so testified. WOOD MANUFACTURING COMPANY 639 back pay and net earnings, the period between the Intermediate Re- port and the Decision and Order shall be excluded.'-' 5. We agree with the Trial Examiner's conclusion that the shutdown of the plant on September 1, 1949, was an unlawful lockout motivated by the-Respondents' opposition to their employees' union activities.- The Respondents argue that they were solely motivated by economic considerations in closing down the plant. They contend that the shutdown was under contemplation for at least 2 months before September 1, 1949. Nevertheless, the plant was shut down on Sep- tember 1, 1949, with no previous notice or warning to the employees. Although the notice on the plant door posted at the time of the shut- down stated that the plant was closed for inventory, repairs, and al- terations, neither Conrad Wood nor Whatley, when questioned by the employees, would discuss this statement; nor did either of them offer any information concerning the Respondents' sudden and otherwise unexplained action in closing the plant on the very day following the Union's first organizational meeting. That meeting had been kept under surveillance by Supervisors Whatley and Erwin. Murray and Dumas, the two union leaders, were discriminatorily discharged the day before the shutdown. When Murray approached Conrad Wood with regard to her discharge in the afternoon of August 31, 1949, he told her that he and J. B. Wood would close down the plant before they would permit it to be unionized. The evidence indicates that the Respondents, in fact, carried out Conrad Wood's threat the very next morning 17 Moreover, additional evidence in the record supports the conclusion that the Respondents, in any event, pursued a rehiring policy designed 16Rub-R Engraving Company, 89 NLRB 475 ; B. L. Bruce Company, 75 NLRB 522. 1E B & Z Hosiery Products Co., 85 NLRB 633 ; Sifers Candy Company, 75 NLRB 296, enforced 171 F. 2d 63 ( C. A. 10 ) ; Pepsi-Cola Bottling Company of Montgomery, '72 NLRB 601. As the layoffs pursuant to the lockout constituted discriminatory discharges and the discriminatees were not required to request reinstatement, we need not at this point concern ourselves with evidence of particular discriminations in the failure to reinstate certain discharged employees . Somerset Classics, Inc. and Modern Mfg. Co., Inc ., supra; Sifers Candy Company, supra . However, see discussion infra as to certain layoffs or discharges. 11 The Trial Examiner found on the basis of the record, and we agree, that in the month preceding the shutdown , the employees did not make culls In excess of the normal rate. The Respondents contend that there was an excess of culls as early as July 1949. And, as Indicated supra, they contend also that they contemplated the shutdown for at least 2 months before September 1, 1949 . Yet, the Respondents gave their employees a vacation during the first week of August when the dull or slack season was already In progress. We are of the opinion that the granting of a vacation in the beginning of August 1949 clearly Indicates that a shutdown was not impending at that time and that the plant was operating smoothly without any special difficulties which might necessitate a shutdown. The Respondents also fail to explain why they did not take advantage of the suspension of operations during the vacation period to carry out their long -standing plan to move from the front building to the buck building. Nor do they furnish any reason why, after Conrad Wood's acceptance of J. B . Wood's offer of partnership of August 31, 1949, nothing was done for an entire week about moving , disassembling culls, and taking Inventory. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to eliminate or coerce such of their employees who were or might become union members. As the Trial Examiner found, Supervisor Erwin told employees Greer and Britt to inform other employees that they could come back to work at 75 cents an hour and "forget the union." Fike, an employee, also testified that she was told she could come back to work if she would forget about the Union. The Respondents' rehiring pattern, detailed in the Intermediate Report, further demonstrates their discrimination against union members. Thus, 4 of the 17 employees working at the end of October 1949 had not been on the Respondents' payroll on August 31, 1949. And by December 1949, 15 18 of the 33 persons then working had not been employed on August 31, 1949. Yet, 1019 union members had not been rehired by that time. In their brief the Respondents deny that they pursued an unlawful hiring policy and point to the circumstance that they recalled some employees who were union members. However, the fact that some union members were recalled does not necessarily indicate an absence of discriminatory motivation in the Respondents' failure to recall other union members. Indeed, one employee, F. E. Justice, who was recalled, testified that she did not consider herself a union member despite her payment of the charter fee. And employees Louise Armer and Worth testified that they as well as employees Loraine Herring and Greer, all.of whom were recalled, at first pretended to the manage- ment that they were against the union and soon thereafter gave up their membership in the Union: ° 18 One of this number, Helen L. Avery, voluntarily left the Respondents' employ in June 1949, and is for that reason here considered a newly hired employee . There was testimony that another employee in this group , Margaret Mary Page, had also previously been in the Respondent's employ. Despite this circumstance , we also regard her as a newly hired employee . However, we do not regard as a new employee Anne Helen Fitzgerald, who quit work in May 1949 and returned in November 1949, after a leave of absence. As we do not consider Fitzgerald a new employee, our total for that group is one less than that given by the Trial Examiner. 18 Fannye Murray, Allie Beach, Opal Beach, Lois Overstreet, Jodie Smith , Sally Smith, Doyce Smith, Jnell Orr, Aline Dumas, and Natalie Daniels Crittenden . The last-named employee is also referred to in the Intermediate Report by her maiden name, Natalie Daniels. ( See the discussion infra as to the employee status of Opal Beach.) 20 While the Respondents concede that they failed to recall the other employees listed in footnote 19, supra, they contend in their brief thaat Jnell Orr was asked and refused to return to work . However, Wheatley, who returned as plant superintendent in November 1949, testified that she was not asked to return to work. The record contains no evidence contrary to Wheatley's testimony, which is credited. The Respondents further contend in their brief that Doyce Smith was not refused employment and has secured a job else- where. In this connection, Wheatley testified that he did not comnrunicate directly with Smith but sent for him through an acquaintance of Smith's who informed Wheatley that Smith was working elsewhere and was well satisfied with his job. We do not, however, construe Wheatley's action as a proper and adequate offer of reinstatement nor the information relayed to him through an intermediary as a rejection by Smith of such an offer. The Respondents argue that, in any event, Smith is not entitled to reinstatement because on September 1, 1949, he accosted Whatley and tried to jump on and fight him. Whatley testified that Smith did not jump on him, but that Smith's remarks showed a desire to fight. Not only is such conduct insufficient reason for the Respondents' refusal WOOD MANUFACTURING COMPANY 641 We find that the Respondents closed their plant and locked out their employees on September 1, 1949, for the purpose of breaking the Union's organizational drive and discouraging union activity. By such conduct the Respondents have violated Section 8 (a) (1) and (a) (3) of the Act. 6. The Trial Examiner did not list among the employees to be reinstated Virgil Lee Colvin, a nonunion employee who was locked out along with the union members. Although the complaint in this case does not specifically allege that this employee was discriminated against by the Respondent's failure to offer her reinstatement, the complaint does state, and the Trial Examiner found, that the Re- spondents locked out all their employees, thereby violating Section 8 (a) (1) and 8 (a) (3) of the Act. Nonunion victims of an unlawful shutdown are entitled to the same relief as union members.Z" We shall therefore order the Respondents to offer Colvin reinstatement. and to make this employee whole, except for the period between the date of the Intermediate Report and the date of our Order herein. 7. The Respondents contend in their brief that at the time of the shutdown on September 1, 1949, Opal Beach was no longer in their employ, because she called during her vacation, which started about the latter part of July 1949, to say she was not coming back to work. We agree with the Trial Examiner's finding that Opal Beach, who was given a leave of absence by Wheatley during the month of August 1949, was an employee of the Respondents on September 1, 1949. How- ever, we do not find it necessary to adopt the Trial Examiner's resolu- tion of the conflict between the testimony of Wheatley, whom the Trial Examiner otherwise regards as a credible witness, and Beach as to whether she telephoned him while on leave that she was quitting her job. Regardless of her -status as of August 15, 1949, the date of Wheat- ley's departure as plant superintendent, it is clear from Beach's uncon- tradicted testimony that about 5 days later she returned to work for a day and a half in response to an urgent call from Whatley, the new plant superintendent, and that it was understood between them that she could then resume her leave of absence. We conclude therefore that whatever Beach's intention may have been concerning termina- tion of her employment during Wheatley's tenure, she was considered by Whatley as an employee. Moreover, it is significant that she along with other employees made a number of requests for reinstatement to reinstate Smith, but the Respondents ' contention concerning Smith's behavior is incon- sistent with Wheatley's statement that he attempted to offer Smith reinstatement through an intermediary . D. D. Thomas and A. E. Thomas doing business under the name and style of Thomas Brothers Wholesale Produce, 79 NLRB 982. Accordingly, we agree with the Trial Examiner's conclusion that the Respondents unlawfully failed and refused to rein- state, among others, Jnell Orr and Doyce Smith. See footnote 36, infra. zi Somerset Classics, Inc., and Modern Mfg. Co., Inc., supra; Capital City Candy Company, 71 NLRB 447. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on and after September 1, 1949, and was at no time told that she had lost her status as an employee of the Respondents. 8. The Trial Examiner included in the list of employees to be made whole for any loss of pay to the date of reinstatement (Appendix A) a number 22 who requested the removal of their names from the complaint and stated that they- are not seeking back pay, We agree with the Trial Examiner that the order of reimbursement should cover these employees despite their desires to the contrary. While the Board may in its discretion permit withdrawal. of unfair labor practice charges, it cannot be required to do so particularly where, as here, the request is made not by the charging party, the Union, but by individual members.23 The Act is designed to vindicate a public policy, not private rights. Therefore, the desires of individuals can- not be allowed to block the public purpose behind the Board's require- ment that they be made whole 24 9. The Trial Examiner found that the Respondents refused to bargain on and after September 8, 1949, with the Union, and on and after October 15, 1949, with the Local. We disagree for the following reasons: As already noted, the plant was closed on September 1, 1949. The next day the Union sent the Respondents a letter requesting a meet- ing for the purpose of discussing recognition and other questions. In their reply, dated September 8, 1949, the Respondents refused to meet with the Union before it proved its majority in a Board-conducted election. The next communication came on December 13, 1949, from the international vice president of the Chemical Workers Union who noted the pendency of the charges and the absence of further nego- tiations, and offered to meet the Respondents to resolve the controversy, in the event any existed. The Respondents wrote on December 20, 1949, that no controversy existed. Two months later, on or about February 16, 1950, R. B.. Beaird, a. representative of the Local, had his first meeting with Stein, Re- spondents' counsel. Beaird testified that he had come to the conclu- sion "that perhaps there would be an opportunity to settle the unfair labor practice charges." He therefore indicated at the outset that he wanted to "settle the whole thing." There followed a discussion about settlement of the charges and bargaining procedure in the event of the settlement. Stein stated that if the Union was a bargaining agent there would be no trouble in getting a contract. Beaird testified that Stein attached a further condition to bargaining, namely, a waiver or bypassing of the charges. • However, when pressed on recross exam- 22 Louise Armer, Annie Britt, F. E. Justice, J. W. Ogden, and Maude Wood. 23 C. Pappas Company, Inc., 82 NLRB 765. 21 The Hearst Consolidated Publications, Inc., et ai., 93 NLRB 237. WOOD MANUFACTURING COMPANY 643 ination, Beaird declared that Stein did not specifically put forward this condition but merely "intimated" as much. During the course of their conversation, Stein agreed to arrange a meeting with J. B.. Wood, who was out of town at the time, for the purpose of discussing: the charges. . The next week, on February 22, 1950, Beaird wrote to Stein that he understood that J. B. Wood had returned to town and that "I am pre- pared to meet with him for the purpose of attempting to. settle the differences arising from our organization of the . . . plant." Beaird added that he would be in the area February 28, 1950, and could meet J. B. Wood any day thereafter. Stein replied on February 24, 1950, that he and J. B. Wood would be "glad" to meet Beaird any day after: February 28, except March 9 and 10, when Stein would be otherwise occupied. Beaird did not put in an appearance during that time. The Board issued the complaint on April 4, 1950, and between April 5 and 8 Stein telegraphed 25 Beaird asking him to call Stein on the tele- phone. Beaird called Stein who declared that he and J. B. Wood wished to have a conference' "on this business" and that they "would agree on the bargaining." Beaird consented to meet them on ap- proximately April 10, which he failed to do then or thereafter .26 The Trial Examiner credited Beaird's testimony that the Respon- dents "intimated" on February 16, 1950, that they would bargain. only if the Union or Local would waive its charges. Accordingly, he found that this conditional offer to bargain did not "relieve or miti- gate" the earlier refusal to bargain. Whatever the bargaining situa- tion was before mid-February 1949, the record discloses that as of that time both the Local and-the Respondents were at least willing: to meet with each other. Notwithstanding the Respondents' con- ditional offer to bargain on or about February 16, 1950, arrangements. were made for future meetings of the parties. In particular, Beaird's letter of February 22, 1950, expressing a desire to meet with Respon- dents to resolve their differences does not reflect a belief on the part of the Local that an impasse in bargaining had been reached 27 Nor does it appear from the Respondents' reply on February 24, 1950,. that they would be "glad" to meet with Beaird during a specified period that they were merely going through the motions of bargain- ing 28 Although the Respondents' numerous unfair labor practices. raise the question of its good faith, by their letter and telegram the Respondents displayed a willingness to bargain that cannot be re- garded as a mere pretense at bargaining without an actual intention to sc It is not indicated whether Stein received the complaint before he sent the telegram- 's The hedring in the instant 'case started April 18, 1950. 2' Dixie Culvert Manufacturing Company, 87 NLRB 554. 2s J. W. Woodruff, Sr., doing business as Atlanta Broadcasting Company, 90 NLRB 808 Tower Hosiery Mills, Inc., 81 NLRB 658; Union Manufacturing Company, 76 NLRB 322 961974-52-vol. 95-42 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reach an agreement 29 The Respondents did agree to meet and were not putting off the bargaining conferences.3° Indeed, the Respondents, rather than playing a quiescent and negative role, took the initiative when Beaird failed to appear in late February or March 1950. That the Respondents may have sent their telegram after the issuance of the complaint does not detract from their willingness to meet Beaird, as the issuance of a complaint does not relieve an employer of the duty to bargain 81 The record reveals that the Local was not diligent and reasonable in its attempts to meet with and reach an agreement with the Re- spondents.32 The fact that Beaird after February 16, 1950, arranged for and consented to meetings with the Respondents indicates that the Local believed further efforts to reach agreement with the Respondents would prove fruitful rather than futile. Therefore, its dilatory con- duct in twice failing to appear after arranging to do so places on the Local the responsibility for the unsuccessful bargaining relationship. Although it is possible that had such meetings taken place the Re- spondents might have repeated their doubt concerning the majority status and identity of the bargaining agent and reiterated their con- ditional offer to bargain, it is equally possible that the Respondents at this point were prepared to meet their statutory collective bargain- ing obligation. But, as a result of the Local's lack of diligence and failure to appear for, meetings, the Respondents were not afforded. an opportunity to present a possible collective bargaining agreement for the-Local's consideration. As there must be at least two parties to a bargain and to any negotiations for bargaining,33 it follows that there was no breach of the statutory duty to' bargain by the Respondents. Accordingly, we shall dismiss these allegations of the complaint 84 9. The complaint in certain sections of paragraphs 14 and 19 respec- tively charged the. Respondents with violating Section 8 (a) (2) of " Deena Artware, Incorporated, 86 NLRB 732. 80 J. H. Rutter-Rex Manufacturing Co., Inc., 86 NLRB 470. ° Kelco Corporation , 79 NLRB 759. 12 The Toledo Desk & Fixture Co., 75 NLRB 744. 13 N. L. R . B. v. Columbian Enameling and Stamping Company, Inc., 306 U. S. 292. Cf. Motor Valve and Manufacturing Company v . N. L. R. B., 149 F. 2d 247 ( C. A. 6). 34 Our dissenting colleague directs his attention to those events which occurred from September 1949 to February 1950, and would on the basis thereof find that the Respondents refused to bargain , at least during that period . We believe , however, that the sounder approach requires the Board to examine the whole history of collective bargaining. Although there may have been a refusal to bargain by the Respondents at the outset of their negotiations with the Union or Local, we cannot isolate the events of the first 5 months from subsequent developments . Viewing the bargaining history as a whole, Ave cannot conclude, under the circumstances of this case, that the Respondents were solely responsible for the failure of the parties to engage in collective bargaining . Accordingly, we have found that the Respondents did not violate Section 8 ( a) (5) of the Act , as they expressed a willingness to meet with the Local for the purposes of collective bargaining and the Local was not diligent in so meeting with the Respondents at a time when collective bargaining might have resulted. WOOD MANUFACTURING COMPANY 645 the Act which proscribes employer domination , interference, or sup- port of any labor organization. The record shows no evidence of such actions within the period of limitations specified in Section 10 (b) of the Act and the Trial Examiner made no findings in regard thereto. We find, therefore, that the Respondents did not violate the Act as charged in the afore-mentioned sections of paragraphs 14 and 19 and we will dismiss these parts of the complaint. The Remedy ,The Respondents' illegal activities go to the very heart of the Act and indicate a purpose to defeat self-organization of their employees. We are convinced that the unfair labor practices committed by the Respondents are potentially related to other unfair labor practices proscribed by the Act, and that the danger of their commission in the future is to be anticipated from the Respondents' conduct in the past. The preventive purposes of the Act will be thwarted unless our order is coextensive with the threat. Accordingly, in order to make effec- tive the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, we shall order the Respondents to cease and desist from in any manner infringing upon the rights of employees guar- anteed by the Act 35 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, J. B. Wood, an individual, d/b/a Wood Manufacturing Company, and J. B. Wood and Conrad Wood, a partnership, d/b/a Wood Manufacturing Company, El Dorado, Arkansas, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in American Federation of Labor and Local 396, International Chemical Workers Union, A. F. L., or any other labor organization of their employees, by discriminatorily discharging or refusing to reinstate any of their employees or by dis- criminating in regard to their hire or tenure of employment or any term or condition of:,employment. (b) Interrogating its employees concerning the union affiliations, activities, or sympathies of their coworkers. (c) Unilaterally instituting changes in wages. (d) Conditioning reinstatement of discharged or laid-off employees upon withdrawal from the Union'or the Local (e) Engaging in surveillance of union meetings. 35 Standard Dry Wall Products, Inc., supra; May Department Stores v . N. L. R. B., 326 U. S. 376; Premier Worsted Mills, 85 NLRB 985. i 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, (f) Closing or threatening to close the plant if employees continue, to seek union representation. (g) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form, join, or assist American Federation of Labor and Local 396, In- ternational Chemical Workers Union, A. F. L., or any other labor or ganization, 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, or to refrain- from any or all of such activities except to the extent that such right. may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (2) Offer to Fannye Murray, Allie Beach, Opal Beach, Natalie Daniels Crittenden,. Lois Overstreet, Jodie Smith, Sally Smith, Doyce' Smith, Jnell Orr, Aline Dumas, and Virgil Lee Colvin, immediate and_ full reinstatement to their former or substantially-equivalent positions,, without prejudice to their seniority or other rights and privileges." (b) Make whole said employees for any loss of pay they may have. suffered by reason of the Respondents' discrimination against them,- by payment to Fannye Murray, Allie Beach, Opal Beach, Natalie. Daniels Crittenden, Lois Overstreet, Jodie Smith, Sally Smith, Doyce^ Smith, and Jnell Orr of a sum of money equal to the amount which each would have normally earned as wages from the date of the , dis-- crimination to the date of an offer of reinstatement, less his or her net earnings during such period; 87 and by payment to Aline Dumas and' Virgil Lee Colvin of a sum of money equal to the amount which. each would have normally earned as wages during the period from the date of the Respondents' discrimination against them to the date of the, Intermediate Report herein, and during the period from the date of the Decision and Order herein to the date of the Respondents' offer of reinstatement, less net earnings during such periods. (c) Make whole the employees listed in Appendix A of the Inter- mediate Report for any loss of pay they may have suffered by reason, of the Respondents' discrimination against them by payment of a sumi as The Respondents in their brief declare that all these employees except Dumas, Murray,. and Colvin were reinstated subsequent to the hearing. However, their reinstatement is not established in the record itself. We are therefore ordering that they be reinstated with. back pay. Such order cannot result in prejudice , if they have, In - fact, been properly- reinstated. 37 Said loss of pay shall be computed in the manner set forth . in Section V of the. Intermediate Report. 38 See footnote 37, supra. WOOD MANUFACTURING COMPANY 647 of money equal to that which each would have earned as wages from the date of the discrimination to the date of reinstatement given in Appendix A,30 less his or her net earnings during said period 40 (d)' Upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (e) Post at their plant at El Dorado, Arkansas, copies of the notice attached hereto and marked "Appendix A." 41 Copies of such notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondents immediately upon re- ceipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material.. (f) Notify the Regional Director for the Fifteenth Region, in writ- ing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply therewith. IT Is FURTHER ORDERED that the complaint insofar as it alleges that the Respondents violated Section 8 (a) (2) and 8 (a) (5) of the Act, be, and it hereby is, dismissed. MEMBER HOUSTON, dissenting in part: I cannot agree with that portion of my colleagues' decision which dismisses the 8 (a) (5) allegations of the complaint. It is difficult for me to brush aside a clear-cut violation of the Act in September of 1949, as do my colleagues, on the basis of incidents occurring in Feb- ruary and March of 1950, 5 and 6 months later, which have no ret- rospective bearing on that violation. It is patent that the Union represented a majority of the employees when it made its bargaining demands in September 1949. It is also clear that the majority issue was raised by the Respondents on Sep- tember 8, 1949, in a context of extensive illegal antiunion activities aimed at causing wholesale defections from the Union. Thus we have found that on August 31 the Respondents engaged in illegal surveil- lance of the employees' union meetings, interrogated employees about the Union, threatened to "close the plant up tighter than a door nail" before they would permit it to be unionized, and discharged two em- ployees because of their union activity and leadership; and that on It appears from the record that Annie Britt was reinstated on September 15, 1949, rather than September 12, 1949, as stated by the Trial Examiner. 4 See footnote 37, supra. u In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted in the notice before the words , "A Decision and Order" the words, "A Decree of the United States Court of Appeals Enforcing" 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 1, the Respondents locked out,their employees unlawfully. We have found further that, shortly after September 8, the Respond- ents unlawfully conditioned the return to work of certain employees on their "forgetting the Union," and failed and refused to reinstate, certain employees because of their union. membership and 'activities;: and that during the week ending- September 22, they unilaterally granted a wage increase to their employees. One would have to look long and hard to find a more positive indication that, in raising the. majority issue, the Respondents were seeking to gain time within: which to undermine the Union. 42 Yet my colleagues are now willing- to wipe the slate clean with respect to the 8 (a) (5) aspects of this case,. because of events 5 months subsequent, which demonstrate at best that the Respondents, after the charges and complaint in this case, had a change of heart and were then amenable to entering into further dis- cussions with the Union 43 My colleagues direct no action to dissi- pate the unwholesome effects of this violation of the Act, although the normal remedy for a refusal-to-bargain violation is a bargaining order.- By so doing they are affording to this employer "a chance to profit from a stubborn refusal to abide by the law.45 Even viewing the events of February and March 1950 most favor ably to the Respondents, I fail to see how we can do less than re- quire them to cease and desist from. refusing to bargain with the Union, particularly because the unfair labor practices engaged in by the Respondents suggest the danger that they might again refuse to bargain with the Union 46 Further, I perceive nothing in the record which warrants depriving the Union of the benefit of the Board's affirmation of its bargaining status47 Indeed, the conduct of the Union in February and March 1950 found vulnerable by my col- leagues may well be. attributed to the refusal of the Respondents to bargain with the Union in September and to accord it thereby the status of a going collective bargaining agency. Accordingly, as nothing in the events of February and March 1950, renders moot the question of whether or not the Respondents pre- viously violated Section 8 (a) (t) of the Act by refusing to bargain with the Union.48 I would therefore find, at the least, that the Re- 42 Everett Van Kleeck & Company, Inc., 88 NLRB 785, 189 F. 2d 516 (C. A. 2). 43 I note that at no time did the Respondents affirmatively recede from their position that the Union lacked majority status . Indeed, for all that appears, as my colleagues suggest, had the Union met with the Respondents, the latter might have repeated their doubt concerning the majority status and identity of the bargaining agent and reiterated their conditional offer to bargain. 44 Metropolitan Life Insurance Company , 91 NLRB 473. 45 Franks Bros. Co., Inc. v. N. L. R. B., 321 U. S. 702. " See e. g., Salant & Salant, Inc., 66 NLRB 24 , where the Board entered a similar order, although subsequent to the refusal to bargain in violation of the Act a contract had been executed. Cf. Na-Mac Products Corporation, 70 NLRB 298 47-Cf. Marshall and-Bruce Company, - 75 NLRB 90, where-the Board viewed a bargaining order as tantamout to a certification of the Union as bargaining representative. 18Allis-Chalmers Manufacturing Co., 72 NLRB 855. WOOD MANUFACTURING COMPANY 649- spondents, on September 8, September 22, and at all times until the events of February and March 1950, refused to bargain with the Union. I would dissipate the unwholesome effects of this violation by an order that the Respondents cease and desist from refusing to bargain upon request with the Union. MEMBER STILES took, no part in the consideration of the above Decision and Order. 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 condition reinstatement of laid-off or discharged° employees upon withdrawal from the union or the local. WE WILL NOT engage in surveillance of our employees in their self-organizational activities on behalf of the AMERICAN FEDERA- TION OF LABOR; LOCAL 396, INTERNATIONAL CHEMICAL WORKERS UNION, A. F. L.; or any other labor organization. WE WILL NOT threaten employees that we will suspend opera- tions if they continue as members of any labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist AMERICAN FEDERATION OF LABOR and LOCAL 396, INTERNATIONAL CHEMICAL WORKERS UNION, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the amended Act. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination : Fannye Murray Allie Beach Opal Beach Natalie Daniels Crittenden Lois Overstreet Jodie Smith Sally Smith Doyce Smith Jnell Orr Aline Dumas Virgil Lee Colvin 650 .DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole the following employees for any loss of pay suffered as a result of the,discrimination : Louise Armer Frances Arnold Annie Britt Ruby Daniels Helen Braswell Eudy Marian Fike Bobbie Goodwin Berdie Greer Loraine Herring. LaVance Jeter F. E. Justice J. W. Ogden Sue Sinclair Benny Joe Peace Pauline Carelock Worth Maude Wood All our employees are free to become or remain members of the -above-named unions or any other labor organizations except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. We will not discrimi- nate in regard to hire or tenure of employment or any term or con- -dition of employment against any employee because of membership in or activity on behalf of any such labor organization. J. B. WOOD, AN INDIVIDUAL, D/B/A WOOD MANUFACTURING COMPANY, AND J. B. WOOD AND CONRAD WOOD, A PART- NERSHIP, D/B/A WOOD MANUFACTURING COMPANY, Employer. By ------------------------------------------------------- (Representative ) ( Title) Dated---------------------- This notice must remain posted for 60 days from the date Thereof, .and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon an amended charge duly filed by American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board, respectively called herein the General Counsel and the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint dated April 4, 1950, against J. B. Wood, an individual doing business gas Wood anufacturing Company, and J. B. and Conrad Wood, a partnership doing business as Wood Manufacturing Company, herein called the Respondents, alleging that the Respondents have engaged in, and are engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices, the complaint alleges that: (1) On or, about August 31, 1949, a majority of the Respondents' employees in an .appropriate unit designated and selected the Union as their representative for the purposes of collective bargaining ; (2) that on or about October 15, 1949, there was established within the framewoi k of the Union, Local 396, Inter- national Chemical Workers Union, A. F. L., hereinafter referred to as the Local, for the purpose of representing the employees in the appropriate unit for the WOOD MANUFACTURING COMPANY 651 'purpose of collective bargaining; (3) that from on or about October 15, 1949, said designation and selection of the Union has run also to, the Local; (4) that the Union at all times since on or about August. 31, 1949, and the Local at all times since on or about October 15, 1949, have been the representative for the purpose of collective bargaining of a majority of the employees in the appro- priate unit; (5) that the Respondents on or about September 8, 1949, and at all times thereafter have failed and refused to recognize the Union as the exclusive representative of their employees in the said unit, and to bargain. collectively with the Union as the duly authorized representative of its said employees; (6) that the Respondenis*on or about August 31, 1949, discharged Aline Dumas and Fannye Murray and thereafter failed and refused to re- instate them ; (7) that the Respondents closed their plant on or about September 1, 1949; and locked out their employees; (8) the Respondents after resuming operations at the plant, have failed and refused to reinstate employees Allie- Beach, Opal Beach, Natalie Daniels, Lois Overstreet, Jackie Smith, Sally Smith, Doyce Smith, and Jnell Orr, and failed and refused to reinstate the employees named in Appendix A until the date set forth opposite their respective names; (9) that the Respondents discharged, locked out, and failed and refused to reinstate the employees named above because of their membership in and activi- ties on behalf of the Union and because they engaged in concerted activities, with other employees for the purpose of collective bargaining and other mutual aid and protection ; and (10) that the Respondents from on or about March 8, 1949, through their officers, agents, employees, and representatives, engaged in certain acts which interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act. The Respondents filed an answer in which they denied the commission of any unfair labor practices. - Pursuant to notice, a hearing was held at El Dorado, Arkansas, from April. 18 to April 26, 1950, inclusive, before the undersigned Trial Examiner. The General Counsel and the Respondents were represented by counsel, and the Unions by their representatives. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was. afforded all parties. At the close of the case, the General Counsel moved to conform the pleadings to the proof, as to names, dates, and other minor vari- ances. The motion was granted without objection. - Counsel for the Respondents moved to dismiss the complaint for lack of proof. Ruling on the motion was reserved. The motion to dismiss is disposed of as hereinafter indicated. Although all parties were afforded an opportunity to present, oral argument at the conclusion of the case, counsel did not avail themselves of this oppor- tunity. However, counsel for the General Counsel and the Respondents have filed briefs with the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS During the times material herein before October 1, 1949, J. B. Wood did business as an individual under the name and style of Wood Manufacturing- Company, and was engaged in the manufacture of artificial fishing lines in El Dorado, Arkansas. On October 1, 1949, J. B. Wood and Conrad Wood entered into a partnership agreement for the purpose of engaging in the same business. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In El Dorado, Arkansas. They also did business under the name and style of Wood Manufacturing Company. On December 31, 1949, they dissolved their partnership. Thereafter, J. B. Wood operated as an individual, doing business as Wood Manufacturing Company in the same manner as before October 1, 1949. From September 1, 1948, through August 31, 1949, the Respondent J. B. Wood purchased materials and supplies in the amount of $53,467.27, approximately 84-'percent of which amount was purchased. outside the State of Arkansas. During the same period of time, said Respondent manufactured in excess of 300,000 lures, having an appropriate retail value of $375,000. In excess of 50 percent of said lures was shipped and sold outside the State of Arkansas. The Respondents admitted at the hearing that they are engaged in com- merce within the meaning of the Act. As of August 31, 1949, there were approximately 26 persons employed in the Respondents' plant. II. THE ORGANIZATIONS INVOLVED American Federation of Labor and Local-396, International Chemical Workers Union, A.F.L. are labor organizations which admit to membership employees of the Respondents. III. THE UNFAIR LABOR PRACTICES A. Background; sequence of events J. B. Wood and Conrad Wood, as partners, started to manufacture fishing lures sometime in 1945. They dissolved the partnership in July 1946, and J. B. Wood bought out Conrad Wood's interest in the business. Thereafter and until about August 1948, Conrad Wood, bolder of the patents on the lures, man- aged the plant and was paid on a production basis. After August 1948, Conrad Wood did not actively manage the plant, and was paid a straight royalty. Earl Wheatley was plant superintendent from this date until August 1949. How- ever, since J. B. Wood concerned himself mainly with sales and was rarely at the plant, it was agreed under the royalty arrangement that Conrad Wood would assist at the plant in an advisory capacity and would supervise its operation to some extent in order to insure that the lures were produced in a proper fashion. ' Wheatley resigned from his position as plant superintendent on or about August 15, 1949. He was succeeded by Raymond Whatley. It appears that a number of the employees resented Whatley's appointment as plant superintend- ent. Shortly after he took over the job, some of the employees discussed the ad- visability of a "walkout" or going on a "picnic" as a protest against him. At about this time Whatley told.the employees that they would not be paid the new minimum wage of 75 cents per hour. Because of their resentment of What- ley and his statement concerning the minimum wage, the employees decided to attempt the organization of a union in the plant. Employees Fannye Murray and Aline Dumas, supervisor of the assembly line, were leaders in the union activities. The employees discussed the Union during working hours, and such discus- sion reached a peak on August 31. Shortly after 3 p. m. on that day, Whatley, after consulting Conrad Wood, discharged Dumas and Murray. That night an organizational meeting of the Union was held at its ball in El Dorado. At about 7 p. m. Whatley and Sam Erwin, a supervisory employee,' parked their automo- 1 Erwin did not. appear at the hearing as a witness . His supervisory status will be discussed in more detail hereinafter. . WOOD MANUFACTURING COMPANY 653 bile in a vacant lot across the street from the union hall and kept the meeting under surveillance until representatives of the Union protested their action. When the employees reported for work the following morning, they found the plant closed. A notice posted on the plant door stated, "This plant is closed -for inventory, repairs .and alterations." B. The discharge of Aline Dumas and Fannye Murray Dumas first became an employee of the Respondents in November 1947. She -quit her job in December 1948, and was rehired in February 1949. During March 1949, Wheatley promoted her to the position of "supervisor" of the assembly .line. She held this position until her discharge. Murray began her employment with the Respondents in February 1947. At the time of her discharge she worked on the assembly line, attaching books to the lures. Shortly after she first was employed, Conrad Wood warned her that her "talking" was disturbing the other employees. Sometime during February 1949, Murray was called into the office by Conrad Wood. In substance he told her that her talking was disturbing the other employees ; that he understood the talk was about unions ; that he did not like unions ; that if she was in favor .of unions, she should go to Lion Chemical Company as "They were union out there" ; and that he had discharged one girl because she had talked about unions to the other employees' Dumas and Murray were the leaders in the union activities during August 1949. Dumas solicited the employees to join the Union; and Murray made the .arrangements for the organizational meeting. Murray also informed the em- ployees of the time and place of the meeting. During the morning of August 31, Whatley requested employee Pauline Care- lock Worth to find out the subject of the employees' talking. She told him later, and after she was solicited by Dumas to join the Union, that the employees were talking about the Union.' Shortly thereafter, and between 3 and 3: 30 p. m. on August 31, Whatley discharged both Dumas and Murray. Whatley did not give Dumas any reason for her discharge either at the time of discharge or when she returned to the plant the following day. When Murray was discharged, she -asked Whatley for a reason. He told her, "Well, over this dispute of the Union here in the plant". Before leaving the plant on August 31, Murray talked to Conrad Wood. She asked him the reason for her discharge. He told her that he did not know anything about it. When Murray stated that she had been -discharged because the employees were trying to organize the Union, Wood stated that he and J. B. Wood would "close the plant up tighter than a doornail" be- fore they would permit it'•to be unionized. It is found that this remark of Con- rad Wood constitutes interference, restraint, and coercion. The Respondents contend that Dumas was a supervisory employee within the meaning of the Act. The General Counsel contends otherwise. Dumas, as ' Murray testified credibly to the above. Wood testified that Murray brought up the subject of unions during their conversation. In his testimony he, in effect, denies the statements attributed to him by Murray. Wood did not Impress me as a reliable witness, and his testimony in this respect is not credited. 8 Worth testified credibly to above conversations with Whatley. La Vance Jeter testified credibly that he overheard part of a conversation between Worth and Whatley, and that Whatley asked her if she knew which employees were talking about the Union. Jeter testified that the conversation took place "maybe a couple of days" before August 31. 'Since he was not certain about the date, I believe and find that this remark of Whatley was part of the conversation related above. * Murray testified credibly that Whatley made the above statement. While Whatley did not deny specifically the remark attributed to him by Murray, his testimony, as a whole, constitutes. a denial . Whatley did not impress the undersigned as a reliable or credible witness, and his denial is not credited. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisor of the assembly -line, had charge of approximately 12- employees. Ong at least one occasion she recommended and secured a wage raise for one of the employees under her supervision. Concerning her•.duties she was questioned and testified as follows : Trial Examiner EADIE. What did Mi. Wheatley tell you? The WITNESS. He told me that I would see that the girls on the line did- their jobs and that they got the work out that was supposed to be gotten out, to see that they worked, in other words. Trial Examiner EADIE. Well, did he tell you that you were supposed to- watch them while they were working and see to it? The WITNESS. He said if there was any places that wasn't filled that I would fill them, that I would take care of positions that. weren't filled and. help the ones that were behind, and when they hired new ones in there I would instruct them how to do the work. - Trial Examiner EADIE. Did he tell you tivhat you were supposed to do, if anything, if you saw that some girls were not doing their job or not getting out their production? Did he mention anything about that? The WITNESS. Ile would tell me in the afternoon, after the day's work was done, he would tell me if I was supposed to get onto them the next day, if I was to tell them they would have to do better. He would tell me- on the afternoon before the next morning that they would have to do better and for me to tell them they had to. Trial Examiner EADIE. What did you do if you saw that somebody was taking life easy and not getting out their work? What, if anything, did' you do when you saw that condition? The WITNESs. Well, I asked them-I'd tell them that they had to get- out so many bait a day, that it was required for them to keep their job,. and if they didn't do the work right, well, 3 told them about that and corrected them on it. Trial Examiner EADIE. Now, when you warned somebody like that and. they still didn't pay any attention to you, did you ever do anything about it? The WITNES. I couldn't. Trial. Examiner EADIE.' Were you supposed to do anything? The WITNESS. All that I could do would be to tell Mr. Wheatley and he- in turn could do- Trial Examiner EADIE. That is what I am getting at. Did you actually tell Mr. Wheatley ever that you can recall- The WITNESS. Yes, Sir, I have. . Trial Examiner EADIE. That somebody wasn't doing their work? The WITNESS. Yes, Sir. I believe and find that Dumas was a supervisory employee within the meaning of the Act. Accordingly, I do not find it necessary to resolve the other issues concerning Dumas' discharge ; and it will be recommended that the complaint be dismissed as to her. With respect to Murray, I find that she was discharged on August 31, 1949, because of her activities on behalf of the Union. Whatley testified that Murray was discharged for talking up and down the assembly. line all the time," and for interfering with proper production. 'Whatley further testified in substance, that some few days before he discharged her he warned her about her talking ; that he also warned her about dropping hooks on the floor ; that on one occasion when he told her to pick up some hooks which were on the floor , she refused, WOOD MANUFACTURING COMPANY 655 -telling him to pick them up himself ; that at one time he took her off the assembly line and had her make display boards ; and that the display boards were returned to him for the reason that she did not do the work correctly.' Murray .admitted that she was warned about her talking and neglecting her work during the early part of her employment. She denied that she talked excessively thereafter, that she was warned by Whatley about talking, or that she refused to pick hooks up from the floor when requested by him to do so. However, she testified that he requested her to take as much care as possible not to drop hooks on the floor.6 I credit her testimony by this connection. The evidence conclusively shows that the Respondents had no rule against talking and that it was the custom of employees to talk while performing their work. There is some evidence that employees were Warned about talking if it interfered with their work or that of others. It appears that the Respondents mainly were concerned about the talking of employees when the subject of their talk was unions. The conversation between Murray and Conrad Wood in Febru- ary 1049 has been related above. Whatley testified that he heard Murray talking about the Union. This testimony is noteworthy. Whereas Whatley testified to the effect that Murray was one of the worst employees under his supervision, Wheatley testified that he did not have any complaints "to amount to anything" concerning Murray's work. In addition to Murray, another assembly line employee attached hooks to the bait. However, Whatley testified that he assumed that Murray was responsible for dropping books on the floor and for attaching "black" or "spotted" books' to the bait because she "was doing the talking." As related above, Whatley heard Murray talking about the Union. From his conversations with Worth he no doubt learned that Murray was one of the leaders in the union campaign. This is con- firmed by his statement to her at the time of her discharge. For all of the above reasons I conclude and find that Whatley discriminatorily discharged Murray. C. Surveillance of the union meeting of August 31, 1949 The organizational meeting of the Union was held at about 7 p. m. on August 31 at the Union's hall in El Dorado. Shortly before the meeting began, and at about 6: 30 p. m., Sam Erwin drove by the union hall in his automobile. About 15 minutes later Erwin and Whatley returned and parked their car in an empty lot, directly across the street from the union hall. The car was parked at an angle so that it faced the entrance to the hall. From their car they kept the meeting under surveillance until C. W. Mowery, an organizer of the Union, protested their action. 5 Wheatley testified that shortly before he resigned Murray was making display hoards ; that the boards were returned by the shipping department ; that he had "orders to make a change" ; that after another employee learned how to make the boards, Murray was put back on the assembly line ; and that she was attaching hooks to the lines when he resigned. J. B. Wood testified that he had received complaints about the display boards ; and that he sent them back to the plant with instructions to Wheatley to put a different employee on the work. Murray testified that at times hooks fell to the floor when she shook or beat matted hooks in order to loosen them. ' Spotted hooks caused defective bait . or "culls." The Respondents' contentions concern- ing defective bait will be discussed more fully hereinafter . Employee Louise Armer testified that her sister, Pauline Worth , was an inspector during August 1949; that Worth brought culls to Murray and asked her to change the hooks ; and that Murray refused to change the hooks. This testimony was denied by Murray and I credit her denial. In my opinion Arnrer was not a credible witness. , 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the incident, Mowery testified credibly as follows : A. I asked him if they had any particular reason for parking there so• close°to the meeting place of the employees, and Mr. Whatley remarked that it was a public parking lot, they could park there if they wanted to, which I replied that it was perfectly all right, but in my opinion they were putting their company on a-in a-on the spot for spying on the union, and I asked them if they knew what spying on a union might mean, and that if they didn't I suggested that they talk with their attorney, and they immediately left the scene then of the meeting. Whatley admitted that he and Erwin parked near the union hall. Concerning the reason for their action, Whatley testified : I was headed out to Mr. Conrad's house with Mr. Erwin ; and Joe Peace was turning his car around there in the street. I noticed him and I looked over there and there were some more cars that I recognized of people that worked down there ; so Mr. Erwin says, "Let's stop and see what they are doing" ; so, we stopped to see what was going on. I do not credit this testimony of Whatley, and am convinced and find that he and Erwin parked their automobile near the union hall in order to keep the meeting under surveillance. As related above, Whatley knew that the employees were, discussing the Union during working hours on August 31; and taking into consideration his conversations with employee Worth, it is a reasonable con- clusion that he knew the time and place of the meeting. Moreover, his reasons for stopping at the union hall are not plausible. He testified that he and Erwin were driving (north) on one of El Dorado's main avenues on the way to Conrad Wood's home. The union hall is not on this avenue, but on a side street which intersects the avenue on its westerly side. Further, the union hall is on the southerly side of the street, and there is at least one other building between it and the corner. Accordingly, I find that the above actions of Whatley and Erwin constitute interference, restraint, and coercion. D. The closing of the plant on September 1, 1949 Without any notice or warning, the plant was closed on September 1. When the employees reported for work that morning, they found a notice,, dated August 31, 1949, posted on the door of the plant. The notice stated that the plant was closed for "inventory, repairs and alterations." The employees ques- tioned Whatley and Conrad Wood concerning the reason for the closing. Wood referred them to the notice. When asked how long the plant would be closed and if it would be reopened , Wood was evasive and stated that he did not know anything about it. Whatley gave the employees the same answers. During the course of the day the employees received pay envelopes containing their wages. The envelopes contained the notation, "Final payment." Four men were employed in the plant at the time of its closing . On about September 8 these four employees were recalled to work in order to help make some physical changes in the plant setup which the Respondents previously had considered necessary. Machinery and equipment were moved from the "old" to the "new" building, where they were installed .' It appears that this work was 8 The old building was demolished before the date of the hearing herein. The new building was on the rear of the Respondents ' property . Before the closing of the plant; both buildings had been used in the manufacture of bait. WOOD MANUFACTURING COMPANY 657 completed for the most part within 1 or 2 weeks." During the week ending September 15, employees Armer, Britt, Worth, Greer, and Wood were recalled to work. Arabelle Etheridge, who was not an employee when the plant closed, also was hired during this week. During the next 2 weeks employees Herring, Justice, Arnold, and Sinclair were recalled. It appears that during September bait was produced to a limited extent, and that the above employees mainly "wrecked" culls by salvaging the hooks and spoons. An inventory of stock also was taken during this time. During October a total of 17 employees were work- ing, including 4 who were not employed on August 31. By December Respondents' employed 33 persons, 16 of whom were not employed on August 31. When the plant was reopened in September, Sam Erwin had charge of hiring the employees. Sometime during September and after she was rehired, em ployee Greer told Erwin that she needed some help in her painting work. She suggested that employee Marian Fike be rehired for this work. Erwin said that she should go to Fike and tell her that she could come back to work "at 75 cents an hour out of the unions 10 Erwin also asked Greer and employee Britt to make the same offer to some other employees." The record discloses that Greer and Britt made the offer to Fike, Helen Braswell Eudy, and Ruby Daniels. The undersigned finds that the above actions and statements of Erwin constitute interference, restraint, and, coercion. After the closing of the plant on September 1, employees Crittenden, Jodie Smith, Murray, Opal Beach, and Lois Overstreet at various times requested Erwin, Conrad Wood, and Wheatley1l that they be rehired. They each were told that there was no work for them or that they were not needed. Conclusions The Respondents contend that the plant was closed on September 1 for three. reasons, namely, (1) an impending partnership between J. B. Wood and Conrad Wood, (2) alterations to the plant, and (3) an excessive amount of defective bait. J. B. Wood, Conrad Wood, and Whatley testified to the facts leading up to the decision to close the plant on the night of August 31. Whatley testified that Conrad Wood requested him to come to his home after work on August 31; that ° Employee Greer testified credibly that she was rehired on September 12, and that the work of installing the assembly line in the new building was completed at the time. 10 Greer testified credibly and without contradiction to the above conversation. As stated above, Erwin did not appear as a witness at the hearing . Fike testified that Greer, Britt, and Herring came to her home on about September 23 and told her that she could' come back to work at the 75-cent rate if she would "forget about the union." Fike testified that she later had the following conversation with Erwin : Sam Erwin : He asked me how I was getting along, and I told him I was doing all. right other than financially. He says, "You are not broke, are you?" I told him no, I wasn't broke, and I was kind of bent. He said , "Well, why didn 't you come back to work when I sent for you?" I said, "Did you send for me?" He said that he did, and I said, "Do you mean Annie and Loraine and Birdie coming out to my house?" He said, "Yes, that is what I mean." I told him that that didn't sound like he sent for me because they come in my house saying that no one had sent for me especially him. Employee Natalie (Daniels) Crittenden testified credibly that she had a similar conversa- tion with Erwin concerning her mother , Ruby Daniels. 11 Green testified , credibly to the above. Britt, whose testimony the undersigned does. not credit in this connection , admitted that she went to the employees in question. However, she testified that she and Greer did this "on our own hook"; that she told the, employees that they were "out of the union " ; that she urged the employees to see Erwin and come back to work "on our side" ; and that she was not instructed to do this by Erwin. 11 Wheatley returned as plant superintendent in November 1949. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after parking near the union hall, he and Erwin went to Wood 's home ; that as they got there and before they were able to speak , Wood's phone rang and he' engaged in a long conversation ; that after this conversation Wood told them that "things were going to be changed" ; that Wood did not make any explana-. tion of this statement or inform them that the plant would be closed ; that he and Erwin then told Wood about the union meeting ; and that he did not know about the closing of the plant until he arrived there the following morning." Both J. B. and Conrad Wood testified to the effect that J. B. Wood was in Louisiana on August 31; that he phoned Conrad Wood that night ; that Conrad Wood informed him that he had decided to enter into a partnership agreement. with him; that Conrad Wood also told him that a large amount of defective bait had been returned to the plant that day ; that J. B. Wood ordered the plant to be closed down in order to take inventory and to get the plant reorganized ; and that the union activities of the employees was not mentioned during the conversation. Conrad Wood further testified that he did not know of the union activities at the time of his conversation with J. B. Wood, and that the notice of closing was prepared and posted on the plant door at his direction. In my opinion the above testimony in this connection is not plausible. What-' ley testified that he had heard the employees talking about the Union. In addition , on August 31 he first requested employee Worth to find out the subject matter of the employees' discussions, and later asked her which employees were the leaders in the union activities. Before discharging Dumas and Murray he consulted with Conrad Wood; and it has been found that Whatley discharged Murray because of her activities on behalf of the Union. That night Whatley , and Erwin engaged in surveillance of the union meeting. While the Respondents admit to some extent that Whatley had knowledge of the union activities of the employees , they attempt to isolate that knowledge from the decision to close the plant. For example, Whatley and Erwin allegedly did not inform Conrad Wood about the union meeting until after he had coin- pleted his telephone conversation with J. B. Wood. However, since the record reveals that Conrad Wood during the time in question supervised the plant to some extent and acted as the advisor of Whatley, it is difficult to believe that. Whatley did not inform him of the union activities when they consulted in con - nection with the discharge of Dumas and Murray. Especially is this so since J. B. Wood was in Louisiana and not available to Whatley at the time for consultation, and since Whatley was inexperienced at the job, having been plant superintendent for only a few weeks . Moreover, it is undisputed that (luring working hours on August 31 Conrad Wood himself made an investigation into the activities of the employees. At about 2 p. in. he called employee Britt into the office and asked her "what the trouble was" in the plant" . The Respondents' reasons for closing the plant are rejected. The partnership agreement was not executed formally until October 1, 1949.'6 Therefore, it .13A sworn statement of Whatley which he gave to a field examiner of the Board and which was received in evidence states, "Sammy Erwin and I went out to see some of the employees to tell them the plant was going to be closed. We saw some of them in front of the (union) hall." This statement concerns the reason for his appearance at the union hall during the night of August 31. 14 Britt was called as a witness by the Respondents. Concerning the above conversation, she testified that in answer to Conrad Wood's question she told him that Dumas "was in there trying to get us to go fishing and picnicking and mess up the bait. I do not credit this testimony of Britt. The evidence c;nclusively shows that the employees were dis- cussing the Union on August 31 and not the "picnic," and that the picnic incident took place in the middle of August, or shortly after Whatley became plant superintendent. .16 In this connection it is noteworthy that the partnership was dissolved on December 31, 1949. WOOD MANUFACTURING COMPANY 659 appears that the Respondents had approximately 1 month to complete any inventory which may have been necessary for partnership purposes. I am un- able to believe that it was necessary to close the plant for this reason. The Respondents contend that the plant was closed because of insufficient production and because of a large amount of "culls" which had been returned to the plant by August 31, allegedly 657 dozen. Respondents' witnesses testified to the effect that production dropped sharply during August ; that the culls were made for the most part during August ; that the employees,. especially Dumas and Murray, were responsible for the culls, either through carelessness or "sabotage." Concerning production, J. B. Wood testified that for the week ending July 14 the plant produced 938 dozen lures; and that production grad- ually decreased until only 260 dozen were produced during the week of August 25. However, the evidence shows that sales dropped sharply during the summer of 1949, and that there was a large stock of manufactured bait on hand when the plant closed. Sales amounted to $46,147 for May, $22,445.14 for June, $11,953.72 for July, and $5,430.79 for August" It is undisputed that the dull or slack period in Respondents' business occurred during the late summer months. Fur- ther there were 33 employees on July 14 and only 25 on August 25. Although most of the Respondents' witnesses testified to the effect that the culls were made during the latter part of August, J. B. Wood testified that he noticed a large amount of culls during July and called the situation to Wheatley's attention." However, Wheatley testified that while he was plant superintendent he did not know of any abnormal amount of culls being made and that the work "seemed very satisfactory." The Respondents adduced considerable evidence concerning culls. Much of the testimony on the subject is contradictory, such as that related above. From all of this evidence, I am convinced and find that during August the employees did not engage in "sabotage" or make culls in ex- cess of the rate normal in the manufacturing process ; and that the alleged 657 dozen culls which were "wrecked" after September 1 either were an accumulation over a considerable period of time, or were obsolete or were caused by defective materials. In this connection there is testimony that the hooks at times became spotted or rusted after the lures were tested.18 Such lures were classified as culls. Also, the evidence discloses that the Respondents had difficulty with the paint on lures made of wood.19 The evidence conclusively shows that the Respondents before September 1 were contemplating the removal of all machinery and equipment to the new building and the razing of the old building. However, from the entire record the necessity for closing the plant completely for this reason is doubtful. Some of Respondents' witnesses testified that Whatley told them before August 31 that the plant would be closed. Whatley testified that he told some employees that the machinery would be moved to the new building, but denied that he told them that the plant would be closed. The plastic machine was installed and operating in the new building on August 31; and the testimony indicates that the assembly line machinery was small and easily movable." 10 The plant was closed during the first week of August and the employees were given a vacation at that time. 11 J. B. Wood testified that during July it "looked like everything turned out to be culls" and that after complaining to Wheatley, he found "a terrible lot of culls." "The lures were tested in a water tank. Whatley testified that "if you hang them (lures ) up wet, dust and air will get on them and make black spots on them " ; and that lie installed a blower in the plant during August in order to correct this condition. 19 It appears that the Respondents made some wood lures until August 1949. Thereafter all lures were plastic. 20 As found above, the work of moving the assembly line was completed by September 12. 961974-52-vol. 95-43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel , in my opinion , made . out a prima, facie case that the employees were locked out of the_ plant because of their activities on behalf of the Union . The Respondents had the burden of proving their defense by reli- able and substantial evidence . This they failed to do. As pointed out above, there are serious conflicts in the . testimony of their witnesses. Moreover, it is significant that the moving of the machinery and equipment apparently was not begun until September 8, or _1 week after the plant closed. This delay is not explained in the record . It is also noteworthy that Conrad Wood told Murray shortly after .her discharge on August 31 that he and J. B. Wood would close the plant before they would allow the Union in it. Accordingly , I find that the employees were locked out of the plant on Septem- ber 1949 because of their activities on behalf of the Union. I also find that Opal Beach was an employee of Respondent J. B. Wood on September 1, 1949. She testified credibly that she did not work during August except for a few days ; and that Wheatley granted her a leave of absence of 1 month, with the understanding that she would report back for work on Sep- tember 1. Wheatley admitted that he granted Beach a leave of absence, but testified that during her leave she called him on the telephone and told him that she would not be back as she was quitting her job. Beach denied that she called Wheatley or that she made the statement attributed to her by him. Her denial is credited. E. The refusal to bargain 1. The appropriate unit and representation of a majority therein The complaint alleges that all employees of Respondents at their operation in E1 Dorado, Arkansas, excluding supervisory employees, watchmen, and guards, as defined in the Act, and all office and clerical employees constitute a unit appro- priate for the purposes of collective bargaining. Concerning this allegation of the complaint, the Respondents' answer states they "are not informed . . . and have no knowledge concerning the same, and for the purposes of putting petitioners on proof, deny the same." No evidence was adduced at the bear- ing which would conflict with the unit alleged to be appropriate in the complaint. Accordingly, the undersigned finds that all employees of Respondents at their operation in El Dorado, Arkansas, excluding supervisory employees, watchmen, and guards, as defined in the Act, and excluding all office and clerical employ- ees, have at all times material herein constituted and do now constitute an appropriate unit within the meaning of the Act; he finds that said unit will insure to the employees of the.Respondents the full benefit of their rights to self-organization and collective bargaining, and otherwise effectuate the pur- poses of the Act. The record discloses that as of August 31, 1949, there were 27 employees in the above-described unit. The Union was designated as their collective bargain- ing agent by 15 21 employees in said unit at the meeting of the Union on August 31. The Union was designated by 9 more employees in said unit on September 1. Within the framework of the Union, the Local was organized about October 15, 1949. Accordingly, I find that the Union on and after August 31, 1949, represented a majority of the employees in the unit described above for the purposes of col- 21 This figure does not include Aline Dumas, whom the undersigned has found above ,*to' be a supervisory employee within the meaning of the Act. It does include Opal Beach, whom the undersigned has found above to be an employee who was on a leave of absence on August 31. WOOD MANUFACTURING COMPANY 661 lective bargaining ; I find that since on or about October 15, 1949, and at all times thereafter, said designation and selection of the Union by a majority of the employees in said unit has also run to the Local. There is evidence in the case of defections from the Union after the reopening of the plant on September 8, 1949. I find that said defections were caused by the unfair' labor practices of the Respondents, found above. 2. The negotiations Under date of September 2, 1949, the Union sent the Respondents the follow- ing letter : 22 This is to advise that the American Federation of Labor represents a majority of your employees as representative for collective bargaining. I request that you set a date for a meeting at a time convenient for you, within the near future, at which time we can discuss the question of recogni- tion and other questions of interest to' both the company and its employes. The Respondents by their attorney sent an answer dated September 8 to the Union as follows : Your letter of September 2, 1949, to the Wood Mfg. Co., of this city, has; been turned over to me for answering. The Plant of the Wood Mfg. Co., of El Dorado, was closed on August 311, 1949, for inventory and repairs . All employees were paid and released. This action has been in contemplation for the last sixty (60) days, and this being a slack season of their business , and it was necessary for them to make certain repairs and experiments to attempt to better their product and. to, produce it with the least possible expense. It has not yet been decided whether the 'Plant will reopen here or whether it will be consolidated with another Plant in another State-these negotia- tions are now in effect, and: it is not yet known what the decision will be,. as all employees have been released to seek other employment. However, the Wood Mfg. Co., might , and possibly will, employ a few of them to assist in the experimental work and the repairs that are to be! made. If a majority of the employees vote for some Organization to be their collective bargaining agent, under election held by the National Labor Rela- tions Board , we will, of course, be glad to discuss the matter with whoever the bargaining agent is. However, it will be some time in the distant future before this plant can get back into production . If there is any further information that you desire about this matter , I will be glad to give same upon request. On December 13, 1949, a representative of the Local sent the Respondents the, following letter : I note by our files that a charter was issued by our International Union-. to your employees sometime ago, but does not contain any record of: negotiations or evidence of any agreement, but instead there is documentary,; evidence of there having been filed , charges of unfair labor practices,. al- though there is some missing links in this procedure. 22 There is testimony to the effect that Mowery, a representative of the Union, had'a. con- Versation on September 1 with Floyd Stein, Respondents ' attorney. This conversation. is; not set forth as it mainly concerned the closing of the plant. '662 DECISIONS OF-NATIONAL LABOR' RELATIONS BOARD From our records, I am. unable to determine the status of the case, and I am- wondering that if in the "event there is a controversy existing,. if same could - be resolved ' in a reasonable manner. I would be most happy: to discuss the matter with you, or< if you are represented by an attorney, I would be p1as^d -to- take the matter.upwith him. By letter dated December 20 the Respondents answered the Local 's letter-as follows : This is to 'acknowledge receipt of your letter of December 13. As far 'aswe know, there is no controversy existing among our employees. We hope this is the information you desire. On or about February 16, 1950,; Robert B. Beaird, a representative of the Local, conferred with stein. They discusseii- settlement of the unfair labor practice charges, and bargaining procedure in the event that the charges could- be settled satisfactorily. ' J. B. Wood was not in El Dorado at the time, and Stein stated that he would arrange for a meeting as soon as Wood returned. Beaird wrote a letter, dated February 22, to Stein in which he stated that he had heard..that Wood had returned to El Dorado and that "I am prepared to meet with him for the purpose of attempting to settle the differences arising from our organiza- tion of the above-mentioned plant." By letter dated February 24, Stein replied to Beaird's letter, stating, in substance, that the Respondents would be "glad" to meet with Beaird when he arrived in El Dorado. Beaird did not answer the Respondents' letter, or thereafter meet with the Respondents until the hearing herein. I find that the Respondents refused to bargain on and after September 8, 1949, with the union, and on and after October 15, 1949, with the Local. It is well settled that an employer may question the alleged majority of the union claiming bargaining rights, to the extent that it desires an election conducted by the Board. However, I find that the Iespondents (lid not ques- tion the majority in good faith. The unfair labor practices found above are evidence of the Respondents ' bad faith in the matter. With respect to the negotiations with the representative of the Local during and after February , it conclusively appears that the Respondents were con- cerned with the settlement'of the unfair labor practice charges. The Respond- ents expressed willingness to bargain collectively with the Local as the agent of the employees, provided that a satisfactory settlement of the charges could be made. The Respondents' conditional offer in this connection does not relieve or mitigate the refusal to bargain found above. 3. The unilateral wage increase 'The Respondents granted a wage increase to all employees on September 22, 1949. The Union was not consulted on the increase, although the Union. on September 2 had notified the Respondents that it represented a majority of the employees and requested recognition. The Respondents' witnesses testified, in substance , that the wages of em- ployees were raised to 75 cents per hour in order to correct the adverse effect of Whatley's statement that employees would not receive the new minimum wage. The 75-cent minimum wage under the Fair Labor Standards Act was not effective on September 22. Therefore, the Respondents were under a duty to bargain with the Union in this connection. Accordingly, I find that the uni- lateral 'wage increase constitutes a separate and distinct refusal to bargain. IV. THE EFFECT OF THE . UNFAIR LABOR PRACTICES UPON COMMERCE The acti.vi.ties of the Respondents set forth in Section III, above, occurring in connection with the operations of the Respondents described in Section 1, WOOD, MANUFACTURING :COMPANY ' 663- above, have a• close, intimate, - and - ubsta iitial -relation to trade , traffic, and commerce. ainbng_the several States, and .tend to lead to-labor -disputes burden- ing aiid obstructing commerce and the free flow of commerce. V. THE REMEDY - Having•found that the,-Respondents ,have engaged in unfair -labor; practices,, the, Trial :Examiner,wi11; recommend: that, they cease, and, desist.,therefrom; and take certain affirmative action to effectuate the policies of the Act. 3tchas,,been.,found_that'the Respondents,•dischargedFannye-Murray on August,-31,'1 1949; and: locked-. out all employees on. September 1,;19,49, because.of .. their-,activities :on;'behalf .of the Union.; •The,Respondents-have failed-and,ye-, - fused to reinstate llurray,* Allie Beach, Opal Beach, Natalie ,Daniels, Lois Oyet•.; street-,;Jodie Smith; Sally Smith; Doyce Smith;-and Jnell Orr.: The,Respondents a lso;failed,and.refused^to:reinstate the.16-eniployees named inApppndix->AqLlntoil. the -date *set forth -opposite -their; respective names.. It will be, recommended tha-t the, Respondents offer each: of the employees, named, above who;-have- not, been reinstated immediate and full reinstatement to their former or substan-, tially, equivalent tpositions•without•prejudice •-to their seniority -,or lother,,rights and,'priv-ileges.- It will be further. reconimended.'that -the Respondents make whole each of the. above-employees, including-those in,Appendix,-A,,.for.any loss, of•:pay:he, or she: may, have 'suffered .-by reason, of Respondents'. discrimination. by payment of a sum of money equal to that which -each-would.have earned,,as, wages -fron, the date. of, the discrimination to the, date. of an offer of ,reinstate; ment, or{to the,date of, reinstatement in the case. of.the,l6remployees,,named.'in Appendix;A; less;his,or herinet earnings during said,period., Said loss;of:pay shall be computed on the basis of eachr•.separate, calendar, quarter, or. portion; thereof,. during' the period i from ; Respondents' discriminatory,., action to they date of a proper; offer! of .'reinstatement.- The quarterly, periods,; herein called;. "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be'determined by- deducting•-froma -sum .equal. AoAhat, which the employees would normally have_earnedufor each such quarter or portion thereof, their respective net- earnings, if any, in other employment during that period., Earnings ' i ntone'.particular quarter; shall -have -no • effectiupon ,the .back- pay liability for, any other quarter. Inorder:to,ensure,compliance,writh, the fore- going back pay and reinstatement provisions, it is recommended that Respond- ents be required upon reasonable request to make all.pertinent records available to the Board and its agents ." Since the-record -diseloses that Conrad Wood_ did' not_,become: a• partner of J. B. .Wood until October 1, 1949; Conrad Wood is only, responsible for the unfair labor practices-which occurred .on- and'after.that'date. It further -has,been. found 'that ;the ,Respondents;by:their: course of,,conduct ;on, and after.September 8,J949, refused-to;bargain;colle.etively,with,-,the,Union.and/or. the-Local-asthe.exclusive representative of,their employees, in a,unit.appropniate for,the purposes of collective bargaining. Accordingly, it will be.recommended; that the Respondents bargain collectively, upon request, with the Union and/or the Local as the exclusive representative, of their- employees--in the-aforesaid appropriate unit, and that they embody any understandingreached_in,the;course, of ; such- collective bargaining-,upon request, in, a written, agreement, signed- by the-parties, affected, thereby..-- 'Upon. the, basis of the foregoing findings, of fact, and upon the entire record ;in -the case,, . make-the -following 'IF. W. Woolworth' Company, 90 NLRB 289. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. American Federation of Labor and Local 396, International Chemical Workers Union, A. F. L., are labor organizations within the meaning of Section 2-(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of the employees named. above, the Respondents have 'engaged and are engaging -in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 3: Byiinterfering with,'restraining,>and''coercing their employees in the exer-` cise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1), of the Act. - 4: All employees of the Respondents at their operation in El Dorado, Arkansas,' excluding supervisory employees, watchmen, and guards, as defined in the Act; and excluding all office and clerical employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. American Federation of Labor on and after August 21,, 1949, and Local 396, International Chemical Workers Union, A. F. L., at all times on and after October 15, 1949, have been the exclusive bargaining representative-within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. .6. By refusing to• bargain collectiively. with Aiiierican Federation of Labor 'and/or Local 396, International Chemical Workers Union, A. F. L., the Re- spondents have engaged in and are engaging in unfair labor practices within" the meaning of Section 8(a) (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] CELANESE CORPORATION OF AMERICA and O [L WORKERS INTERNATIONAL UNION, CIO." Case No. 16-CA-95..- July e7,1951 . Decision ' and Order On December 28, 1950, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged! 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 attached hereto. Thereafter the Union, `Oil Workers International Union, CIO, filed exceptions to the Intermediate Report. and a supporting brief, and the Respondent filed a reply brief. 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 Inter- 95 NLRB No. 83.