The Carey Salt Co.

In the Matter of THE CAREY SALT COMPANY and INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL No. 59, A. F. OF L. Case No. 15-C-1074.-Decided September 3, 1946 Mr. Lewis Moore, for the Board. Mr. W. T. McCain, of Colfax, La., Mr. Sam Domico, Jr., of Alex- andria, La., and Mr. Hoyt Harrington, of Winnfield, La., for the Union. Messrs. Wesley E. Brown and Lee Hornbaker, of Hutchinson, Kans., and Mr. Harry Fuller, of Winnfield, La., for the Respondent. Mrs. Catherine W. Goldman, of counsel to the Board. DECISION AND ORDER On April 15, 19,46, Trial Examiner R. N. Denham issued his Inter- mediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor' practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent and counsel for the Board filed exceptions to the Intermediate Report and supporting briefs. On July 23, 1946, the Board at Washington, D. C., heard oral argument in which the respondent and the Union participated.' The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, the contentions advanced at the oral argument before the Board, and the entire record in the case, and hereby rejects the Trial Examiner's findings and conclusions except insofar as they are consistent with the Decision and Order herein. On August 29, 1945, the Union and the respondent negotiated for a settlement of the strike and, as the Trial Examiner found, "an under- 'Although Board Member Houston was not present at the oral argument , he has read and considered the transcript thereof. The term of office of Board Member Reilly having expired prior to the issuance of this Decision and Order , he is unable to participate herein. 70 N. L. R. B, No. 02. 1099 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing was reached that if the Union would agree to end the strike and return to work the next morning, respondent would sign a stipu- lation of settlement of the various points or issues simultaneous with such return." That same day a memorandum-agreement was executed by the parties providing that "The Union agrees to call off its un- authorized work stoppage and return to work at 7 o'clock, Thursday morning, August 30, 1945. The Company agrees that immediately upon the resumption of operations it will join with the Union in sign- ing the stipulation which has already been agreed to." That is was clearly intended and understood by the parties parti- cipating in the settlement negotiations that all the striking employees "would be returned to work" is established by the uncontroverted testi- mony of Sam Domico, Jr., H. W. Harrington, and Billie Strange-all of whom were present at the negotiations.2 Moreover, on September 1, 1945, the parties executed a collective bargaining contract to which was attached a seniority list of the respondent's employees. Article IV of the contract specifically stated that this seniority list was "in effect at the time, of this agreement." The name "Shetley, Mike" appeared on this seniority list. The contract also provided that it would remain in effect until May 15, 1946, with automatic yearly re- newal periods thereafter. Thus, the parties carried out, in writing, z Domico testified : Q Was there an agreement reached in the morning that all the employees should return to work? A. The agreement was finally reached and it second stipulation or agreement was reached in the afternoon session whereby all employees would be returned to their jobs. Q. But you orally agreed that morning , did you not? A. Yes, sir. Q. And it was understood that all employees , if the stipulation was signed, all employees would return to their work? A. Yes, sir. Harrington testified : Q (Bv Mr Moore ) State what your understanding was of the memorandum and the stipulation? A. The understanding was that all employees would return to work the next morn- ing that could be notified , and would be notified and the Union 's statement was there to the management that they would not guarantee them to have a full crew , but all the employees that could be, would be contacted, and they would return to work Q There were no exceptions made of any employees? A. No, sir Q None expressed? A. No, sir. Strange testified Q. Can you recall what happened during the afternoon meeting on August 29? A. We drew up a memorandum that afternoon Mr MOORE . I would like to ask the witness to examine Board 's Exhibit No 8. Q. Is that the memorandum that was signed? A. Yes, sir. Q. Was it the understanding that all the employees would he returned to work? A. It was my understanding. Q And there were no exceptions to that? A. That is right - THE CAREY SALT COMPANY 1101 the terms of their preliminary agreement : the Union, to return to work; the respondent, to restore its employees to their jobs. Shetley, meanwhile, had become ill during the negotiations of August 29 and, with the respondent's knowledge, was confined to his home; for this reason lie did not resume work with the other employees on Thursday, August 30, as the parties had agreed. On August 31 and again on September 1 the respondent inquired of Shetley when he would return to work. Shetley returned to the plant the following Tuesday, September 4, and was discharged that same day, as set forth in the Intermediate Report. The respondent took this action in con- travention of its agreement to reemploy Shetley together with all the other employees, and after having agreed, in the contract of Septem- ber 1, 1945, that Shetley was'one of the employees returned to their jobs. The Trial Examiner found that Shetley was generally recognized as "the outstanding representative of organized labor in that vicinity," and we find upon the entire record herein that he was discharged be- cause of his leadership in the concerted activities of the respondent's employees, and not because of his participation in the illegal strike. It is noteworthy in this respect that the respondent, itself, did noc consider this conduct unpardonable, for it had no hesitancy in con- tinuing the employment of the more than 100 other striking employees. Moreover, the respondent, having agreed to reinstate Shetley and having in fact restored him to his employee status after settlement of the strike and resumption of operations, we believe that it could not, on these facts, later assert as a reason for discharge the wrongful aspect of his conduct while participating in concerted activities with r' his fellow employees. Stewart Die Casting Corp. v. N. L. R. B., 114 F. (2d) 849, 855-856 (C. C. A. 7), cert. denied, 312 U. S. 680; N. L. R. B. v. Aladdin Industries, Inc., 125 F. (2d) 377, 382 (C. C. A. 7), cert. denied 316 U. S. 706.3 On the entire record, we find that the respondent discharged Shetley because of his leadership in the concerted activities on behalf of the Union. The right to engage in such activity is guaranteed to em- ployees in Section 7 of the Act. We find that by discharging Shetley because of his leadership in such activities the respondent interfered with, restrained, and coerced its employees in the exercise of the rights 'guaranteed in Section 7 of the Act, and thereby violated Section 8 (1) 8 We do not believe that our decision herein is in conflict with the Supreme Court 's hold- ing in Southern Steamship Co. v. N . L. R B., 316 U S 31. The facts of that case. arising in the maritime industry , are not only clearly distinguishable from the facts presently before us, but the Court also stated , at pp 38-39 : Ever since men have gone to sea the relationship of master to seaman has been entirely different from that of employer to employee on land . . . . It is in this set- ting of fact and law [as to which the court had theretofore elaborated ] that we must test the validity of the Board 's order of reinstatement. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act. We also find that the respondent's conduct in thus dis- criminating in regard to the hire and tenure of Shetley's employment discouraged membership in the Union and thus also constituted a violation of Section 8 (3) of the Act. Whether the respondent's dis- criminatory conduct is viewed as a violation of Section 8 (1) or (3), we find that the effectuation of the policies of the Act requires the remedy set forth below. Having found that the respondent discharged Shetley in violation of the Act, we shall order the respondent, pursuant to our practice, not only to cease and desist from such discrimination, but also to offer reinstatement to Shetley. Like the Trial Examiner, however, we consider Shetley's original conduct to have been unfortunate. Therefore, we shall not award him with any back pay under the cir- cumstances of this case, acting pursuant to the express powers granted the Board in Section 10 (c) of the Act .4 Trial Counsel for the Board filed exceptions to the form of the back- pay order recommended by the Trial Examiner. In view of our de- cision herein, we find it unnecessary to pass upon this portion of the recommended order. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Carey Salt Company, Winn- field, Louisiana, and its officers, agents, successors,'and assigns shall: 1. Cease and desist from: (a) Discouraging membership in International Chemical Workers Union, Local No. 59, A. F. of L., or in any other labor organization of its employees, by discharging or refusing to reinstate any of its em- ployees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Chemical Workers Union, Local No. 59, A. F. of L., or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of col- lective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. I 4 Section 10 (c) authorizes the Board to order a respondent to take such affirmative action, Including the reinstatement of employees "with or without back pay, " as will effec- tuate the policies of the Act . See the opinion of Chairman Herzog in Matter of Thompson Products, 70 N. L R. B 13. THE CAREY SALT COMPANY 1103 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Maynard Shetley immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges ; (b) Post immediately at its plant office, in its mill, and at the entrance to its mine shaft in Winnfield, Louisiana, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including those above described and all other places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Fifteenth Region, in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. JOHN M. HOUSTON, concurring in part, dissenting in part : I agree that Shetley "was discharged because of his leadership in the concerted activities of the respondent's employees, and not because of his participation in the illegal strike," and consequently that he should be reinstated. But I perceive no valid reason why we should withhold the concomitant back pay award. Since the intendment and effect of our decision on the merits here is to find that Shetley was discriminatorily discharged for engaging in activities protected by the Act, the customary method of dissipating the results of the em- ployer's conduct should be utilized to effectuate the policy of the Statute. MR. JAMES J. REYNOLDS, JR., 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 OFFER to Maynard Shetley immediate and full reinstatement to his former or a substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed. WE WILL NOT discourage membership in International Chemical Workers Union, Local No. 59, A. F. of L., or any other 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization, by discharging or refusing to reinstate any of our employees or by discriminating in any other manner in re- gard to their hire or tenure of employment or any term or con- dition of their employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Chemical Workers Union, Local No. 59, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. THE CAREY SALT COMPANY, Employer. By------------------- ----------- (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Lewis Moore, Esq., of New Orleans, La ., for the Board. W. T. McCann, Esq., of Colfax, La.; Saw Rornico , Jr., International Representa- tive, 129 Kathryn Ave., Alexandria 4, La.; and hloyt Harrington , President. Local 59, Route 3 , Winnfield , La., for the Union. Wesley E Brown , Esq., and Lee Hornbaker, Esq., 601 Wolcott Bldg., Hutchin- son, Kans., and Harry Faller, Esq., of Winnfield , La., for the Respondent. STATEMENT OF THE CASE On an amended charge filed January 22, 1946, by International Chemical Workers Union, Local No 59, A F. of L., herein referred to as the Union, the National Labor Relations Board, herein called the Board, on February 1, 1946, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued its complaint against The Carey Salt Company' of Winnfield. Louisiana, herein called Respondent, alleging that Respondent had engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint together with copies of the amended charge and a notice of hearing were duly served upon the Union and Respondent. Concerning unfair labor practices the complaint alleges that on or about September 4, 1945, Respondent terminated the employment of one Maynard Shetley because of his membership in and activity on behalf of the Union and because he engaged in concerted activities with other employees of Respondent for the purpose of collective bargaining and other mutual aid and protection, and that Respondent has at all times since said date refused and failed to re- instate said Shetley, all in order to discourage membership in the Union. The ' Erroneously described in the complaint as Carey Salt Company. THE CAREY SALT COMPANY 1105 complaint further alleges that Respondent, since in and around August 1945, through the activities of one W. H. Cameron has expressed, authorized, instigated, and acquiesced in statements and conversations discouraging activity on the part of Respondent's employees for the purpose of collective bargaining and other mutual aid and protection, and discouraging membership and activity among said employees in the Union, and that by reason of the foregoing activities of Respondent, Respondent has engaged in and is now engaging in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. Respondent duly filed its answer admitting the allegations of the complaint pertaining to its corporate structure and the nature and extent of the business conducted by it; the fact that the Union is a labor organization within the meaning of Section 2 (5) of the Act; and that it is engaged in interstate com- merce within the meaning of the terms as defined by the National Labor Relations Act; and affirmatively alleging that it is engaged in an essential war industry in the production of articles which were and are required in the prosecution of the war and that as such producer it and its employees and the labor organizations representing them were and are subject to the provisions of the Act of June 25, 1943, chapter 144, 57th Statutes, 163-168, and 50 USCA, par. 1501-1511, and more especially par. 1508 thereof; that its employees, including Shetley, on or about August 23, 1945, engaged in a work stoppage without complying with the terms and provisions of the War Labor Disputes Act above referred to ; that Shetley was terminated on or about September 4, 1945, for the reason, amongst other reasons, that he failed, neglected and refused to return to work after the work stoppage above referred to ; that at the time of the work stoppage on August 23, 1945, there was in effect a collective bargaining agreement between Respond- ent and the Union which provided that there should be no strikes or lock-outs during the term of the agreement; that the strike of August 23, 1945, engaged in by Shelley with the other employees, was in violation of the provisions of the collective bargaining agreement; and that during the strike the employees of Respondent, including Shetley, unlawfully seized and held Respondent's property. The answer contains a general denial of all allegations pertaining to the com- mission of any unfair labor practice by Respondent. Pursuant to due notice a hearing on the complaint was held in Winnfield, Louisiana, March 11 to 14, inclusive, 1946, before the undersigned, R N Denham, the Trial Examiner duly designated by the Chief Trial Examiner The Board, Union and Respondent were represented by counsel. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to present evidence pertinent to the issues. At the close of the presentation of evidence by the Board, a motion by counsel for Respondent to dismiss that part of the complaint alleging that the Respondent has since in or around August 1945 , expressed, authorized, instigated and acquiesced in statements and conversations discouraging activity on the part of Respondent's employees for the purpose of collective bargaining and other mutual aid and protection, and discouraging membership in and activity among said employees on behalf of the Union, was granted, without objection, because of the failure of the Board to adduce any proof in support of such allegations The motion of counsel for Respondent to dismiss the complaint in its entirety was denied. At the close of the presentation of all evidence the motion of counsel for the Board to conform the complaint to the proof with respect to the correction of names, dates and other matters not going to the material allegations of the complaint was granted without objection and made applicable to all pleadings Argument before the Trial Examiner was waived by counsel for all parties All 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties requested and were granted the privilege of filing briefs with the Trial Examiner. A brief has been received from counsel for Respondent Upon the basis of the foregoing and on the entire record, after having heard and observed the witnesses and considered all the evidence offered and re. ceived, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Kansas corporation with its principal office and place of business at Hutchinson, Kansas. It is engaged in the general business of mining and milling salt with mines and mills located at Hutchinson, Kansas; Lyons, Kansas; and Winnfield, Louisiana Only the mine and mill located at Winnfield, Louisiana, herein called the plant, is involved in this proceeding. In the course and conduct of its business, Respondent causes and has con- tinuously caused over a long period of time, and at all times material herein, a substantial part of the materials, tools, supplies, machinery, and equipment used in the mining and milling of its products, to be purchased and transported in commerce from and through states of the United States other than the State of Louisiana to its plant at Winnfield Salt and salt products mined and produced by Respondent at its,Winnfield plant, valued in excess of $400,000 during the past 12 months, have been sold, shipped and transported in commerce from, its plant in Winnfield into and through states of the United States other than the State of Louisiana 'Respondent concedes it is engaged in commerce within the meaning of the Act. 0 II THE ORGANIZATION INVOLVED International Chemical Workers Union, Local No 59, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Respondent at its plant in Winnfield, Louisiana III THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent 's'History of Collective Bargaining Since at least 1937, the Union or its predecessor ,-Salt Workers' Federal Labor Union, # 21413, A. F. of L, has represented„as exclusive bargaining agent, all the employees of Respondent at the Winnfield plant, with the usual exceptions of supervisory and clerical personnel . What, if any, contractual relations existed prior to 1943 , are not shown. Except for a strike in 1937, the record reflects that during the entire period up to August 23, 1945, there had been no friction between Respondent and the Union or its predecessor and no antipathy by Respondent to collectively bargaining with its employees through the Union. The record in this case presents no material conflict in the testimony and contains no 'indication , direct or otherwise , of an anti-union attitude on the part of Re- spondent or an effort or desire to hinder or discourage its employees in becoming or remaining members of the Union. On June 28, 1943, Respondent and Salt Workers' Federal Labor Union #21413 entered into a comprehensive contract to iun to May 15, 1944, with the usual provisions for automatic renewal. It provided , among other things, for a full THE CAREY SALT COMPANY 1107 grievance procedrue to culminate in binding arbitration, seniority, vacations, wages, etc , and also, as Article 15: "Inasmuch as arbitration is provided in this agreement, the Union agrees there shall be no strike, and the Company agrees there shall be no lock-out during the term of this agreement." In 1944, the agreement was automatically renewed for another year, and in May, 1945, a second automatic renewal became effective. Shortly prior to July 19, 1945, the Union became the successor to Salt Workers Federal Labor Union, #21413, and entered into a supplemental agreement with Respondent, substituting itself for the Federal Union in the contract, assuming all the rights and responsibilities of the latter thereunder. Although the contract still had about 10 months to run, shortly after the Union came into the picture, nego- tiations were opened for some changes and amendments in it. In these negotia- tions, the Union was demanding adjustments in certain wage schedules and in vacation allowances, while Respondent was proposing an incentive bonus system and the creation of some "working foreman" job classifications. By August 23, 1945, Respondent and the Union were in substantial agreement as to the disposi- tion of these proposals. B. The strike of August 23, 1945 For several years, the job of Main Store Room Man, which was in the unit represented by the Union, had been held by one Horton. This job involved main- taining soi.ne rather complicated inventory records and required a fair degree of experience with the over-all mill operation for its effective coverage. There was no other person within the Union's jurisdiction equipped to fill the job. The re- sult was that whenever Horton was absent, at his request and at the instance of management, Plant Engineer Jesse Thornton, admittedly a supervisory em- ployee, undertook to oversee the operation of the Store Room and the maintenance of its records. There is evidence that, in 1944, when Horton was on vacation and Thornton was taking his place, some informal objection to a supervisory employee filling the job was made by the union committee, and that W H. Cameron, Plant Manager, agreed to train someone to take over in Horton's absence. Cameron denies having any recollection or record of such a protest or agreement. In any event, the matter was not processed as a grievance under the contract and no such substitute was trained 2 When Horton left for his vacation on August,20, 1945, Thornton, again at Horton's request and at the instance of Cameron, took over' the Main Store Room as he had done in the past. On the morning of August 23, while Cameron was walking through the mill, he was stopped by Mrs. Billie Strange, Chairman of the Grievance Committee, who complained about Thornton, a supervisor, sub- stituting for Horton. Some conversation ensued in which Cameron defended the situation as an emergency, but when Strange persisted and claimed that it was contrary to the contract, Cameron told her to present it in regular course as a grievance and it would be handled accordingly. 2 Although the contract provides for a formal grievance procedure that is initiated by presenting the grievance in writing, this formality appears to have been reserved for the more important grievances. The minor or more or less routine grievances were usually disposed of informally , either by Cameron on the spot, or during informal conferences between Cameron and the Committee in Cameron 's office If this had ever been considered as a grievance, it never received more than such informal treatment by either side and no record was made of it. 712344-47-vol. 70-71 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cameron's suggestion was not followed Instead, a meeting of all the em- ployees was called for noon of that day, and was held in the open, on plant property during the 30-minute lunch period. Practically all employees attended, including Maynard Shetley, the hoist operator, who had been in the employ of Respondent for over 13 years.' The meeting was addressed by Hoyt Harrington, President of the Union, who outlined, not only the Horton-Thornton matter, but also the various matters that had been the subjects of discussion in the then pending negotiations, but had not yet been incorporated in a formal written agreement. At Shetley's suggestion, the entire body of employees moved from their meet- ing place in the lower end of the yard, to the vicinity of the office, to wait while the Grievance Committee should call on Cameron, demand that all the matters involved, including those previously covered in the contract negotiations as well as the Horton-Thornton matter, be disposed of to the Union's satisfaction, and report back to the assembled employees. On its first i isit at about 12: 30 p. in , the Committee was advised that Cameron had gone to lunch. It so reported to the employees who then determined to remain away from work until the Com- mittee should get the matter settled On Cameron's return shortly after 1: 00 p. m. he found the plant shut down and the employees gathered near the othce. He sent for the Committee, consisting of Harrington, Strange and four other employees. Shetley was not a member and did not then go with the Committee. On entering Cameron's office, Harrington announced that the mission of the Committee was to get settlement of the numerous pending matters and that the employees did not intend to return to work until their demands had been met Cameron called attention to the provision of the contract concerning strikes and urged Harrington to get-the men back on their jobs. He also told the Committee to put their demands in writing and.he would then discuss them. The Committee returned to the employees and reported what had taken place. Still the employees refused to return to their jobs. The Committee, having mean- time requested Shetley to assist them, then proceeded to put the issues into written form which all members of the Committee and Shetley signed, after which they returned to Cameron's office and presented the written demands. After reading the written statement Cameron advised the Committee that he had already agreed to practically all the items mentioned, and that he was prepared to and could and would agree to the other demands and settle the grievances along the lines that had been proposed, but that he would not make any commitment on the subject until the employees had gone back to work. Some colloquy fol- lowed in which Harrington again advised Cameron that the men would not go back to work until their demands had been met, while Cameron stated that he would not agree to the demands until work had been resumed. At about this stage, when the conversation about returning to work had become general, Cameron asked Shetley to use his influence to get the men back to work, where- upon, according to Cameron, Shetley turned to the other members of the Com- mittee and said "I will not recommend that we go back to work. Fellows this is up to you." During the same conference, when it became clear that the em- ployees would not return to work, Cameron asked Shetley whether they would 3 Shetley, sometimes known as Mike Shetley, was the oldest man, in point of service in the Mine Department. He also was Vice President for Winnfield District, of the Louisiana State Federation of Labor and was generally recognized in the Winnfield area as the outstanding represents-ive of organized labor in that vicinity. This status of Shetley plays an important part in the events that followed the beginning of the, strike on August 23. He was a member of the Union but held no office nor any regular committee assignment. Often, however, on request, he acted with committees who desired his advice amid assistance THE CAREY SALT COMPANY 1109 permit the watchmen to perform their usual functions to protect the property. His reply to this is quoted by Cameron as "We'll take it over." Shetley described his reply as follows : "I told him that the employees were going to protect the .company property and we expected to be there."' Following this, the Committee reported back to the assembled employees and advised them that while Cameron had stated that he could and probably would settle all the issues in conformity with the Union's wishes, he would not do so until they had returned to work. Two of the employees suggested a return to work. Shetley told them he thought that was "the sensible thing to do," but these suggestions were hooted down and the strike was in effect. This constitutes Shetley's sole effort to avoid the strike or to effect a return to work; in contrast to his active participation in it after it got under way. The strikers then shut down the pumps, took possession of the property and set up shifts of from 10 to 20 men each who stayed on the property in 12-hour turns Shetley stayed at the plant that night until after midnight and returned at 7 o'clock the next morning when he visited with the men and generally participated in their activities. On this next day, Shetley put the hoist in operation and let several men into the' mine to turn off the lights on a battery locomotive, in order to avoid needless exhaustion of the batteries Thereafter, he continued a generally active par- l icipation throughout the period of the strike C. The plant aei:uie On the morning of August 24, as Cameron, in company with one of the foremen approached the plant in his car he found the load barricaded He was stopped by one of the Committeemen and told he would not be permitted to enter the plant or the office. Almost immediately, however, another striker counter- manded this order and admitted Cameron but cautioned him that he was the only person who would be permitted to enter Cameron immediately ordered the supervisory and office staff to make no effort to enter the plant property, to avoid arguments with the strikers , and to remain away until they received contrary instructions from him. They did so until the strike was ended on the morning of August 30, 1945. On this basis, there was no violence; but by acceding to the threat of violence that was implicit in the rule of the pickets against per- mitting the office and supervisory personnel to enter, the plant, mine and office were effectively barred to Respondent by the strikers I am unable to find that Respondent's non-striking personnel was under an obligation to defy the threat and risk personal injury by attempting to force their way past the pickets. This is especially true in view of the fact that there is no denial of the seizure of the plant and office and the barring of all persons. except strikers and Cameron, from the property. On Sunday, August 26, Shetley was called upon by two representatives of the local railroads serving the plant, and requested to use his influence to have the strikers release some freight cars that were on a plant siding. He stated he would talk to the Committee about it and advise them.' According to his testi- inony, lie did mention the subject to one or two members of the Committee, but lie did not communicate with the railroad officials and when one of them went with the switching crew on the 28th, to take over the cars, he was turned back by the pickets who refused to permit the cars to be moved Shetley's testimony was generally unclear and indefinite on matters of conversations such as those referred to He denied having refused to recommend a return to work, but, from observing the witness and against the background of the entire record, it is found that some statement such as above set forth was made by him during this conference, much as in the case of the conversations concerning the watchmen The words may be different but the import remains the same 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Some further conferences-were held during the strike period between Cameron, the Committee and certain international officers of the Union, in which Shetley did not participate. Nothing pertinent to a determination of the issue here involved would be gained by a discussion of these. Meantime, however, Shetley had been a daily visitor with the strikers at the plant, participating in the strike activity to about the same extent as the others present. On August 29, 1945, with the appearance of a commissioner from the U. S. Conciliation Service, a conference with Cameron and other company representatives was held by the Conciliator, certain international representatives of the Union, the Committee and Shetley. During the morning, an understanding was reached that if the Union would agree to end the strike and return to work the next morning, Re- spondent would sign a stipulation of settlement of the various points or issues simultaneous with such return. This agreement, when reduced to writing, read as follows : August 29, 1945. The Union agrees to call off its unauthorized work stoppage and return to work at 7 o'clock, Thursday morning, August 30, 1945. The Company agrees that immediately upon the resumption of operations it will join with the Union in signing the stipulation which has already been agreed to.' At the noon adjournment, the above agreement had been reached but not re- duced to writing. At noon, Shetley, who was feeling ill, asked to be excused and went home. After the agreement had been signed, Harrington and Cameron made numerous telephone calls from the latter's office to notify the men to return to work next morning. Among these was a call by Cameron to Richmond, who habitually substituted for Shetley, to instruct him to take over Shetley's duties on the hoist Next morning, August 30, 1945, all employees except a few who could not be notified, reported for work at 7 a. in Richmond filled Shetley's job. By this time, Shetley was under a doctor's care, suffering from influenza. On August 31, 1945, H. W. Stinson, who handles the personnel and pay-roll records for Respondent, called Sletley's home on instructions from Cameron, to inquire when he would return. He talked with Mrs. Shetley who advised him Shetley was still confined to bed but undoubtedly would be back as soon as he was able. This inquiry was prompted by the fact that Richmond had arranged to take his vacation beginning with the' Labor Day week-end, and Respondent was attempting to insure the hoist operating job being filled at the beginning of operations the following Tuesday, September 4. This conversation was reported by Stinson to Cameron. On Saturday; September 1, Stinson again called Shetley's home. This time he talked to Shetley and explained to him the problem as to Richmond and his vacation. Stinson's testimony as to this call, which does not differ in substance from that of Shetley, and which is fully credited is as follows : Q. Did you call again the next day, Saturday, at instructions from Mr. Cameron? A That is right. Q. Tell what the conversation was that day? A. Well, Mrs. Shetley answered the telephone that day as she did the day before, and I asked her about the same questions, and she said. "wait a minute and I will let you talk to Mike." Mike came to the phone and he 6 The "Stipulation" made no mention of the strike or the conditions on which the employees returned to work. It embodied only the disposition of the questions that had been under discussion. THE CAREY SALT COMPANY wanted to know what I wanted. I tried to explain *to him that I (was) calling him to see whether or not he knew what date he would return to work for the purpose of our knowing, so that Mr Richmond, the extra hoist man, who was scheduled to take his vacation the next week, would know what to do. Q. And what did Mr. Shetley say to you? A. He said, "I am in constant touch with Richmond and we will take care of the situation." * x a * a Q I would like for you to think carefully about this question. You called Shetley on September 1st because you thought Richmond was going on his vacation? A. That was the report that he was supposed to go on his vacation, begin- ning Monday, Labor Day, and Mr Cameron requested me to check with him to see for sure if he would be there On Saturday, September 1st, the final negotiations for the new union contract having been concluded, the formal contract was executed, effective as of that date and to continue to May 15, 1946. This contract contained a seniority provision and, as an attachment, a list showing the seniority of the various employees. Shetley's name headed the seniority list of employees in the Mine Department. ' D. The discharge of Maynard Shetley On the morning of Tuesday, September 4. Shetley reported at the usual hour to begin work. He was stopped by Cameron, taken into the office and told that he was being discharged. At the same time, Cameron handed him a previously prepared termination slip to which was attached a separate sheet setting forth the reapas for the discharge as follows : MAYNARD SHETLEY REASONS FOR SEPERATION [sic] 1. Aiding and abetting an unlawful work stoppage in violation of contract and War Labor Disputes Act 2. Aiding in unlawful seizure of Company property. 3. Aiding and abetting in preventing the return of Company property to Company hands. 4. Engaging in unlawful work stoppage in violation of contract. 5 Failing to report to work without notice to Company upon resumption of operation after work stoppage. 6. Failure to use authority as Vice President, Winnfield District, Louisiana State Federation of Labor to prevent work stoppage or to induce men to return to work after work stoppage. This ended Shetley's employment with respondent. Later in the day, Cameron called the union committee into his office and explained to them that he had discharged Shet]ey for the reasons above set forth and at the same time provided the union committee with a copy of the reasons above quoted. Concerning his decision to discharge Shetley, Cameron testified that up to the 29th, he had not considered disciplining anyone in connection with the strike and that he did not reach a decision on Shetley's discharge until the Labor Day week-end. His testimony on this subject is: Trial Examiner DENHAM. Mr. Harrington was the Chairman of the com- mittee, and was apparently the active leader in the proceedings. Did you take action against him? 4112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The WrrNESS. No, sir. Trial Examiner DENHAM. And no action was taken against any official member of the committee? The WITNESS. No, sir. Trial Examiner DENHAM. Why was this one man selected after the strike and seizure, if there was a seizure, was three or four days settled, and then you made up your mind over the week-end to fire him? Why was he selected to the exclusion of everybody else? The WITNESS. Because lie seemed more active in what was going on and we felt that he was more responsible than the others, and we considered it carefully. Trial Examiner Di:NHAM. Was that based in any sense upon the fact that he was an official of the State Federation of Labor? The WITNESS. No, sir Trial Examiner DENHAM One of the elements in there indicates that the discharge was due to a fail are of what you conceive to be his duty as an officer of that Federation? The WITNESS. In that capacity, he should be one of the first in the whole Union to recognize the contractual obligations and one of the first to get out and fight them into line with their agreed contract. He should be a leader in bringing about their return Trial Examiner DN NH.\M. Your negotiations were with Byars, Moffitt, Dom- ico, the committee, and Mr Shetley, which took place on August 29th? Is that correct? The WITNESS. I believe that is right. Trial Examiner DENHAM Up to that time, had you reached a determination as to what you were going to do about Mr Shetley? The WITNESS. Not entirely Trial Examiner DENHAM Were you considering the discharge of any of the people? The WITNESS. I don't recall exactly. It was starting about as well as I can recollect, about the 29th, from there on. Q. You made your decision, over the week-end ; that is the week end of September 1st and 2nd, in regard to Mr. Slietley? The WITNESS. Yes, sir Trial Examiner DENHAM. Have you anything that you want to add, or any further reasons or justification of this discharge, whether they are included here or not. I am asking about the termination slip, or whether there is any- thing that has been suggested by any questions asked you on that subject? The WITNESS. No, Sir. I feel that those are the real reasons and the true ones, and the reasons for which we acted, and I feel that we are justified Actually, Cameron had prepared a written memorandum of the reasons for Shet- ley's discharge by Labor Day, September 3 It was on that clay he advised A. F. Tracey, the Plant Superintendent, of his intention to discharge Shetley, showed him a memorandum of the reasons, similar to the sheet attached to Shetley's termination notice above set out, and mentioned they would have to arrange for a hoist man in the morning. Next morning, H. A. Cogley, the second substitute hoist man, was put on the job temporarily until Richmond could be recalled. Richmond reported about 8: 30 a m THE CAREY SALT COMPANY D. Conclusions 1113 The record is bare-of evidence that suggests an anti-union bias on the part of Respondent or any of its executive or supervisory officials. It indicates no desire by Respondent to discourage its employees from maintaining their mem- bership in the Union or in any manner engaging in appropriate concerted activity for purposes of collective bargaining or other mutual aid or protection. There had been no breach of the contract by Respondent. It was the Horton-Thornton incident that gave rise to the strike This was no more than a minor grievance to be disposed of under the normal grievance procedure of the contract. Nor is there a charge or implication that Respondent had engaged in or was-engaging in any unfair labor practice, or that it was threatening so to do. In such circum- stances, the strike stands as an unwarranted and unprovoked breach of the "no strike" provision of the contract, which took the participants away from the protective provisions of the Act. Respondent injects the proposition that the strike was illegal and that Shetley is not protected by the Act because of non-con- formance with the provisions of the War Labor Disputes Act. This contention may be set aside as without merit under the doctrine announced in In re Republic Steel Corporation, 62 N. L. R B 1008. In any event, it would not be determinative of the issues here involved. The strikers n ho participated in the plant seizure and barred the officers, super- visors and clerical force from the plant and buildings also took themselves from the protection of the Act on a second count. As to each of them, "Respondent stood absolved . . . from any duty to reemploy them but was nevertheless free to consider the exigencies of its business and to offer reemployment if it chose. In doing so it was simply exercising its normal right to select its em- ployees." N. L. R. B. v. Fansteel Metallurgical Corp., 306 U. S. 240, 259. That employees may not, with impunity, engage in strikes, especially when no unfair labor practice is involved, in violation of a contractual commitment not to do so, has been well established in N. L.'R. B v. The Sands Manufacturing Company, 306 U. S. 332; Hazel-Atlas Glass Co. v. N L. R. B, 127 F. (2d) 104 (C C. A. 4) ; United Biscuit Co. of America v. N. L. R. B., 128 F. (2d) 771 (C. C. A. 7) ; and has been recently affirmed by the Board in-In re Scullin Steel Com- pany, 65 N. L. R B. 1294. The vulnerability of such strikers is too well defined to permit of argument. as is the right of the employer, after they have engaged in such conduct, to rehire or not, as many of the offenders as he chooses. His right of selection is not limited Here, Shetley, by. participating in the strike, set himself up as a target for discharge, and by participating in the seizure of the plant, mine and buildings and barring Respondent from them, made himself doubly susceptible. In the Fansteel case, the Supreme Court took the position that : But in its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of the employing company, or the seizure and conversion of its goods, or the despoiling of its property or other unlawful acts in order to force compliance with demands. To justify such conduct because of the existence of a labor dispute or of an unfair labor practice would be to put a premium on resort to force instead of legal i emedies and to subvert the principles of law and order which lie at the foundations of society. The salutary and fundamental doctrines, first applied to cases of this nature by the Supreme Court in the Fansteel and Sands cases impose a positive duty on employees to observe their contractual obligations and the property rights of their employers. Obviously that duty becomes progressively more pronounced 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the 'individual assumes increased responsibilities of leadership, and, as he reaches into the upper levels of the hierarchy of organized labor, more and more does he become liable to be made the object of discipline if he fails in this duty. So it was with Shetley. He failed in both of these obligations. There is no basis for finding otherwise. That being so, Respondent was vested with an unquestionable right to refuse to permit him to return to work at its plant and to specially select him for such discipline out of the 100 or more employees who stayed away from their jobs, even though others may have taken a greater part in precipitating- the strike or were more aggressive in barring Respondent from its property. It needed no other reason for effecting his discharge, and the record fails to indicate that there were any beyond those enumerated on his termination notice. Concerning these, the first, which refers to the War Labor Disputes Act, has been disposed of. The fifth, based upon his failure to return to work upon the resumption of operations, is without merit for Respondent had notice that he was incapacitated by illness.' The last, based upon his failure, as Vice President of the Louisiana State Federation of Labor, to prevent the work stoppage or to induce the workers to return to their jobs, is not a justification of the discharge, but a reason for his selection from among those eligible for discharge The others, however, are valid reasons and, unless there should be some intervening cir- cumstances that cancelled out Respondent's freedom of action deriving from the application of the Fanstcel and Sands rules, it must be found that Shetley's discharge was a matter wholly within the discretion of Respondent. It is maintained by counsel for the Board and for the Union that such a circumstance did intervene by reason of the fact that, after the others had re- turned to their jobs on the 30th, Respondent forgave Shetley for his conduct and on both Friday, August 31st and Saturday, September 1st, impliedly reestablished him in good standing as an employee by telephoning him and inquiring when he expected to be able to return to work, thereby waiving his misconduct and estopping itself from asserting its right to discipline him for his participation in the Union's breach of its contract or his assistance in the plant seizure. It is conceded by Cameron that at the time these calls were made, he had arrived at no decision to discipline Shetley and that he did not reach his decision until the Sunday or Monday immediately preceding the Tuesday, September 4, when Shetley reported for work and was discharged. There appears to be some merit to the contention that these intervening telephone calls effected a change in Shetley's status and in Respondent's position. Had Shetley returned to work with the others on August 30, and then, on September 4, been discharged on the same stated grounds that are set out in his termination notice, there would be strong ground for an inference that the motive for the discharge lay beyond those given, and, as noted by Respondent in its brief, "leaves it up to the employer to give an adequate `explanation of the discharge' even though the burden of proof remains on the Board, since it is obvious that the reasons of the discharge `lay exclusively within its own knowl- edge.'" N. L. R. B. v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2). 'The decision there would clearly have been an afterthought, following by too long a lapse of time, the commitment to retain him as an employee that is implicit in permitting him to return to work in the first instance. It stands in the same category as the employment of a person whose application for employment clearly shows certain facts that might have justified his rejection at the time e At the time, Respondent questioned the incapacitating extent of Shetley's illness and dwells on this in its brief. However it knew Shetley was claiming to be too ill to work and the certificate of his doctor, which is a part of the record confirms this. THE CAREY SALT COMPANY 1115 of employment , and then, at some later date, discharging him because of those same facts . Respondent must expect, in such circumstances , to have his action closely scrutinized . He will have assumed the burden of establishing his right to act and the propriety of his motive. This situation has at least some of the characteristics of the illustration above cited , mixed, however, with mitigating circumstances that should not be ignored. The telephone calls carried an implied notice that S]netley was not in bad standing with Respondent and would be expected to return to his work upon his recovery ; but clearly they were prompted by the exigencies of the business . Richmond was the only fully qualified hoist operator available in Sbetley's absence, notwith- standing there was a sort of "last resort" second substitute also available. Respondent was faced with the problem of having its hoist competently operated by the only man available in Richmond 's absence , or breaking its vacation commit- ment to Richmond . In making the calls, Respondent was seeking assurance in this dilemma . However, before Shetley had actually returned , Respondent, having had no contact with Shetley since the end of the strike other than the telephone inquiries, crystallized its feeling about him and his status , and reached a determination to carry on without him , even at the expense of recalling Richmond from his vacation . But, according to the apparent theory of Board counsel, Respondent, by that time, had condoned any misconduct of which Shetley had, been guilty and had reestablished him as an employee in good standing. There is merit in this. While the right to refuse reemployment under the circumstances present in this case is absolute , it should not be a continuing one. It should be exercised promptly when it occurs. Failure to do so should make it unavailable as a matter of right. Respondent's action would have been timely had it discharged Shetley during the strike ; or when the agreement terminating the strike was made ; pr even when lie returned for the first time on September 4, had there been none of the telephone calls' The sole question , therefore, goes to the exculpating effect of the invitation to return to work that was implicit in the telephone calls, and whether Respondent had a right to withdraw the invitation before Shelley had actually returned. Shetley's discharge , whether timely or otherwise , was bottomed on union activities not accorded protection under the Act and it has been found that Respondent had no other considerations in mind beyond those set out in the termination notice. Ile was selected for discharge because of -his outstanding position in the field of organized labor in that part of Louisiana , to discourage the promotion or the encouragement by responsible labor leaders, of proscribed union activities. It was not aimed at the principle of organization for pur- poses of collective bargaining and mutual aid and protection, exercised within the recognized legal limits It is true that the Board and the courts have fre- quently held that the discharge of a leader in the Union , because of his union activity, automatically acts to discourage membership in the Union , but such discouragement may not logically be charged to the employer where the activ- ities are proscribed and not protected by the Act.' 7 Cf Stewart Die Casting Corp . v N. L It. B., 114 F. ( 2d) 849 ( C. C. A. 7). 8 To this extent , therefore , there is merit in Respondent 's contentions that it was not attempting to discourage union activities by Shetley ' s discharge The record supports the lack of such intention . However, the Act is not administered on the basis of obvious intent Its greatest force is in giving effect to the principle that the employer must have intended to accomplish the result that normally flows from his acts , and when such acts are not protected and produce results proscribed by the Act , either within the conscious intent of the employer or otherwise , he must assume the responsibility for them. 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That Respondent, by its telephone calls to Shetley, may have set up a technical estoppel against the absolutism of its right to discharge him, does not transmute Shetley's conduct from that which was illegal and unprotected, to union activities now shielded by the Act. They still are beyond the pale for con- donation and none the less inexcusable. The most that may be said is that, with this justification not available to it, Respondent may be called upon to defend the discharge on other grounds which may not afford the same full protection. In my opinion, Respondent has set up a technical estoppel against itself. It apparently was unintentional and rests on narrow ground, for there is no indication of bad faith. Here Respondent merely delayed its final judgment too long by allowing its anxiety to meet what seemed to be its business require- ments, to intervene. Shetley was not materially prejudiced by Respondent's telephone calls inviting him to return and did not change his position because of them, but the nature of crises of this sort is such that a fair and reasonable dividing line must be laid down, beyond which the unlimited right-of Respond- ent to discharge his employees should not extend Shetley stood in the position of an "employee" as defined in the Act, up to the moment of his discharge, and if his discharge cannot be justified, as contemplated by the Act, he still is an "employee." When the telephone calls were made, that was his position-an employee eligible for either discharge or retention at Respondent's election. When the other employees returned to work on the morning of August 30, Re- spondent's duty to make this election as to Shetley at the first reasonable opportunity, matured. Normally such opportunity would have been when he returned to go to work, but here, Respondent anticipated his return and, in effect, made its election, probably unwittingly but with no less force, when it invited him to return to the job and relieve Richmond as soon as his health would permit. Having so committed itself and thus restored Shetley to the standing of a reinstated employee temporarily incapacitated by illness, Re- spondent may no more later reverse its position, in the absence of other intervening acts by Shetley, and visit belated punishment on him for his -strike activity than it could have done had he reported for work on August 30 and then been given notice of discharge for the reasons here involved, on September 4. Being estopped to use Shetley's personal misconduct in the strike as a justi- fication, or having waived its right to use it, such estoppel and waiver, while technical and tenuous, is real and may not be ignored It leaves Respondent with only one of its grounds for discharge upon which to rely, i. e., Shetley's failure or refusal to prevent the strike or to effect a return to work by using his influence as Vice-President of the Louisiana State Federation of Labor Obviously, Re- spondent has no power or authority to police the Union's officers in the exercise of their respective authorities and duties as such officers, and a discharge based upon Respondent's disapproval of the manner in which he performed his functions as a union officer, standing alone, cannot be justified. On this narrow ground, therefore, it is accordingly found that Respondent had estopped itself to assert its right to discharge Shetley because of his par- in the strike and plant seizure, and in discharging him, discriminated ticipation against him because of his official position in the Louisiana State Federation of Labor and his concurrent membership in the Union, thereby discouraging mem- bership in the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, occurring in connection with the operations described in Section I, above, have a close, in. THE CARES SALT COMPANY 1117 tunate, and substantial relation to trade, traffic. and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY It has been found that while Shetley had committed acts not protected by the Act, which would have justified his discharge, Respondent has waived this and estopped itself to discharge him for such conduct, and by such estoppel, has effected a discharge of Shetley for reasons not available to it. There is no evidence of animosity by Respondent toward the Union as such, nor toward the proposition of the employees acting collectively through a union of their own choosing, which has represented them in harmonious relations with Re- spondent for about 8 years Nor is there evidence of personal animosity toward Shetley. On the contrary the relations appear wholly cordial, the action of Respondent being,directed to him as an official of the State Federation of Labor and not as an individual. Because Respondent has erroneously discharged Shetley as above outlined, and in a manner which creates a discrimination not permitted under the Act, it will be recommended that Respondent cease and desist from such discrimina- tion and offer to Shetley full and immediate reinstatement to his former posi- tion as hoist operator, without loss of seniority or any other rights or privileges lie would have enjoyed had there been no break in his active employment. How- ever, since the whole basis of this controversy stems from Shetley's conduct which falls into a category condemned by the law, it is not believed the policies of the Act will be served by any other or-further affirmative relief to Shetley. Accordingly, it will not be recommended, in the first instance, that Shetley be made whole for any loss of earnings he may have heretofore suffered by reason of the foregoing interruption in his productive employment with Respondent. On the other hand, however, it will be recommended that, should Respondent fail or refuse to offer such reinstatement to Shetley within 10 days from the receipt of this Intermediate Report, the foregoing with reference to withholding reimbursement for loss of wages be superseded by a recommendation that Re- spondent make Shetley whole for any loss of wages he may have suffered be- tween the date of his discharge and such offer of reinstatement as may there- after be made, less his net earnings a during such period. The record reveals that, in effecting the discharge of Shetley, Respondent was not inspired by any purpose or intent to interfere w ith, restrain, or coerce its em- ployees in the legitimate exercise of any of the rights guaranteed them in Sec- tion 7 of the Act. There is no indication of a threat on the part of Respondent willingly or intentionally to engage in any course of conduct proscribed by the Act as unfair labor practices. That it may have coincidentally discouraged membership in the Union by its belated but otherwise justified discharge of Shetley under circumstances which, it has been found, bring the discharge within the orbit of unfair labor practices, does not, in my opinion, indicate that any re- straining order beyond one that is applicable to the circumstances herein, is called for in order to effectuate the policies of the Act. It will therefore be 913y "net earnings" is meant earnings leeF, expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the Respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N. L. R B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L.,R. B., 311 U. S. 7. 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommended that Respondent cease and desist from discriminating against Tiny of its employees because of their respective official positions in the Union or any organization with which the Union may be associated, or because of their conduct in carrying out the duties of such offices, in the absence of other circum- stances, which, under the established law, would permit selective disciplinary action to be taken against theml° It will be further, recommended that Respondent post an appropriate notice at its plant, and maintain the same for 60 days, in conformity with the form of notice hereto attached as "Appendix A." Upon the basis of the foregoing findings of fact and upon the entire record, the undersigned makes the following. CONCLUSIONS OF LAW 1 International Chemical Workers Union, Local No 59, A. F of L, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Maynard Shetley, thereby discouraging membership in International Chemical Workers Union, Local No. 59, A. F. of L, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (3) of the Act. 3. By the discriminatory discharge of Maynard Shetley, Respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and tlicreb.N has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that Respondent, The Carey Salt Company, its officers, agents, representatives, successors, and assigns shall: 1. Cease and desist from discouraging membership in International Chemical Workers Union, Local No. 59, A. •F. of L, or any other labor organization by discriminating against any of its employees because of their respective official positions in the Union or any organization with which the Union may be asso- ciated, or because of their conduct in carrying out the duties of such offices, in the absence of other circumstances, which, under the established law, authorize and justify selective disciplinary action to be taken against them. 2. Take the following affirmative action which will effectuate the policies of the Act : (a) Offer to Maynard Shetley, within ten (10) days after the receipt of this Intermediate Report, immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, including adjustments in pay, vacations, or other privileges which would have accrued to him had there been no interruption in his active employment; (b) In the event Respondent shall fail to offer such reinstatement to the said Maynard Shetley within ten (10) days after receipt of this Intermediate Report, 10 The description of this recommendation is intended to preserve to Respondent the authority to exercise its right to select for discipline , any employee or employees regard- less of their official positions, where such right has heretofore existed under the doctrines set out in the Fansteel and Sands cases and those other later cases that have followed them. THE CAREY SALT COMPANY 1119 then and in that event, make whole the said Maynard Shetley for any loss of pay he may have suffered by reason of the discrimination against him , by pay- ment to him of a sum of money equal to the amount he normally would have earned as wages in the employ of Respondent from the date of his discharge to the date of Respondent's offer of reinstatement, less his net earnings during said period 3. Post at its plant office, in its mill and at the entrance to its mine shaft in Winnfield, Louisiana, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon the receipt thereof and maintained by it for sixty (00) consecutive days thereafter, in conspicuous places, including those above described together with all other places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material ; 4. Notify the Regional Director for the Fifteenth Region in writing, within ten (10) days from the date of receipt of this Intermediate Report and these recommendations, what steps Respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the i eceipt of this Intermediate Report, Respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules aid Regulations of the National Labor Relations Board. Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D C. in original and four copies of a statement in writing, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all mo- tions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shalt serve a copy thereof upon each of the otlier parties and shall file a copy with the, Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. R. N. DENHAM, Trial Examiner. Dated April 15, 1940. APPENDIX A NOTici: To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in the INTERNATIONAL CHEM- ICAL WORKERS UNION, LOCAL NO. 59, A. F. of L, or any other labor organization of our employees by discriminating against,any of our em- ployees with respect to their hire or tenure of employment or otherwise. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of their respective official positions in said union or any organiza- tion with which such union may be associated, or because of their conduct in carrying out the duties of their respective offices, in the absence of other circumstances, which, under the established law, authorize and justify selective disciplinary action to be taken against them. WE WILL OFFER to Maynard Shetley immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed by him, including adjustments of pay, vacations or other privileges which would have accrued to him had there been no interruption in his employment, and in the event of our failure to offer him such reinstatement within ten (10) days from the date hereon shown, we will make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain members or officers of any labor organization of their own choosing and we will not discriminate in regard to hire or tenure of employment or any term or condition of employ- ment against any employee because of membership in or activity on behalf of any such labor organization not prohibited by law or special contract agreement. Dated -------------- THE CAREY SALT COMPANY, . Employer. By ----------------------------- (Representative Title) This notice must remain posted for sixty, days from the date hereof and must not be altered, defaced, or covered by any other material