Capital City Candy Co.

In the Matter of ROBEiiT L. JACKSON, SR., ROBERT L. JACKSON, JR., MRS. WILLAMAE YOUNG, AND MRS. BOBBIE DOLVIN, D/B/A CAPITAL CITY CANDY COMPANY 1 and BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, LOCAL 42 (A. F. L.) Case No. 10-C-1802.-Decided October 30, 1946 Mr. John C. McBee, for the Board. Mr. Alexander E. Wilson, Jr., of Atlanta, Ga., for the respondents. Mr. R. A. Elliott, of Atlanta, Ga., for the Union. Mr. George J. Hadjinoff, of counsel to the Board. DECISION AND ORDER On May 29, 1946, Trial Examiner Charles E. Persons 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 there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also recommended that the complaint be dismissed without prejudice as to three employees who were unable to testify at the hearing. There- after, the respondents and counsel for the Board filed exceptions to the Intermediate Report and supporting briefs. Oral argument was held before the Board in Washington, D. C., on August 13, 1946, in which the respondents participated. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, the contentions advanced at the oral argument, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except insofar as they are inconsistent with our findings and order hereinafter set forth. 1 The complaint and various pleadings erroneously referred to the trade name of the partnership as Capitol City Candy Company. 71 N. L It B., No 70. 447 717734-47-vol. 71-30 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Trial Examiner found that Foreman Stewart told employee Virginia Bronson, "If these girls don't keep their big mouth shut about the Union they are going right out of here," and that Stewart asked another employee if she knew who had started the Union. The record also shows, as the Trial Examiner found, that, in the midst of the Union's organizational campaign and shortly before an election, Plant Manager Jackson convened a, meeting of all the employees, at which he announced a general wage increase and suggested, among other things, that the employees set up an independent plan to represent diem and for the presentation of grievances. The following month, and several weeks after the Union had won the election, the respondents dis- criminatorily discharged 2 employees and laid off 10 other employees, all of whom the respondents thereafter discriminatorily refused to re- employ, as hereinafter appears. , The Trial Examiner found, and we agree, that by the foregoing and other conduct, as more fully detailed in the Intermediate Report, the respondents interfered with, restrained, and coerced their employees, m violation of Section 8 (1) of the Act. 2. The Trial Examiner found that the respondents discriminatorily • discharged and thereafter refused to reinstate the employees listed in the complaint and that the respondents thereby violated Section 8 (3) of the Act. While we agree with the Trial Examiner that the refusal to reinstate these employees was motivated by anti-union considera- tions, we are not persuaded, except as to Mamie Cameron and Johnnie Gaither, that the lay-offs were effected for siinilar reasons. The re- spondents contended, and offered evidence to show, that they closed down their sandwich department and curtailed production in the candy department because of shortages and the high cost of materials and that the August lay-offs were made for these economic reasons. The testimony of several Board witnesses also tends to support this con- tention. In reversing the, Trial Examiner's finding that the lay-offs were un- lawfully motivated, we are not unmindful of the evidence that the re- spondents had manifested their hostility toward the organizational efforts of the employees, that the lay-offs followed closely on the heels of the Union's victory at the polls, and that the employees in question were subsequently denied reinstatement for discriminatory reasons. However suggestive of discriminatory motivation these circumstances may be, we find, nevertheless, that they are insufficient to overcome the affirmative evidence adduced at the hearing that the lay-offs were due to the economic reasons asserted by the respondents. See Matter of Hays Corporation, 64 N L R B 406, 411, where we dismissed the cony plaint for lack of "sufficient affirmative evidence" that the employer "was motivated by an illegal purpose in closing" his foundry, although the circumstance that the closing of the foundry followed immediately a successful organizational campaign by a union was sug- gestive of discriminatory motivation. CAPITAL CITY CANDY COMPANY 449 The lay-offs of Cameron and Gaither requires separate treatment, however. Unaffected by the August lay-offs, these employees, to- gether with employee Minnie Willaford, continued to work in the candy department until October 12. Although the respondents al- leged that they laid off Cameron and Gaither on that date for the same reasons that made necessary the August lay-offs, we are convinced that as to these 2 employees these reasons were merely a pretext. Thus, the record shows that the respondents hired 10 new employees in the candy and potato chip departments only a few days before the lay-off of Cameron and Gaither and that only 2 of these 10 new employees had had any previous experience in this type of work, while Cameron and Gaither were both experienced and satisfactory workers. Moreover, with the lay-off of Cameron and Gaither and the refusal to reinstate the employees previously laid off, the respondents successfully dis- placed all the women employees in the sandwich and candy depart- ments and thereby effectuated their plan, as found by the Trial Ex- aminer, to eliminate the Union from the plant.3 We conclude, there- fore, as did the Trial Examiner, that by laying off Cameron and Gaither on October 12, 1945, the respondents discriminated in regard to their hire and tenure of employment and thereby discouraged mem- bership in the Union, in violation of Section 8 (3) of the Act. Although the record does not satisfy us that the lay-off of the em- ployees in August was discriminatory, it does furnish proof that the respondents refused to reemploy them for discriminatory reasons. By September 29, 1945, the economic situation cited by the respondents as an explanation for the lay-offs, had considerably improved, and during the rest of the calendar year and at the beginning of the next the respondents hired many new employees. Thus, on September 29 and 30, the respondents advertised in the Atlanta Journal for "girls for wrapping candy" at a starting pay of 50 cents an hour, or 5 cents more than the rate at which the respondents had paid their laid-off employees. By October 12, according to the credible testimony of employees Cameron and Gaither, the respondents had hired 10 new employees. The record further shows that additional employees were hired after October 12, that 3 of the new employees worked without interruption -during the entire remaining portion of the calendar year, and that at least 7 other new employees worked from 5 to 9 weeks during the same period. The evidence further establishes that in January and February, 1916, the number of new employees work- ing in the candy and potato chip departments rose to about 20. 8 As stated in the Intermediate Report. 19 employees out of 32 eligible voters cast ballots in the election held in July 1946. All 13 women employees in the candy and sandwich departments voted in the election, and of this nnmher the respondents discriminatorily ter- minated the employment of the 12 employees involved in the present proceeding. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no doubt that the laid-off employees were qualified for the jobs which were available in the candy' and potato chip depart- ments on September 29 and to which the newly hired women were assigned. Prior to the August lay-offs, the respondents customarily transferred employees, whenever needed, from job to job and from de- partment to department, and, inasmuch as the laid-off employees had been in the respondents' employ for some time, they had acquired' con- siderable experience in work other than that to which they were regularly assigned. Some of them, moreover, had received special training in several jobs. That the lack of qualification was not a reason for the denial of reinstatement appears also from the fact that only 2 of the 10 replacements had had any previous experience in the work for which they were hired. The respondents contend that they did not reemploy these employees solely because they failed to make proper application for reinstate- ment. There is no merit in this contention. Such application was unnecessary because each of the employees had been assured at the time of her lay-off that she would be notified when to return to work,. This promise was not kept by the respondents, although the employees' addresses were known to them. Moreover, following a June lay-off only a few months before, the respondents had sent individual letters to their employees notifying them of the resumption of operations- The contention, furthermore, is at variance with the facts. Thus, the record establishes not only that several of the employees personally made timely and proper applications for reinstatement, but also that the respondents rejected four of these applications, offering lack of work as the reason, on the very day on which the respondents offered jobs to, and hired, new employees. The record in this regard also reveals that at each of the series of conferences beginning August 29, 1945, and lasting through January 1946, the Union made a request for reinstatement in behalf of all laid-off employees.4 It is clear, therefore, that jobs were available for the laid-off employees on Sep- tember 29, 1945, and that the respondents discriminatorily refused to rehire them on and after that date. 4. The complaint also alleged that the respondents discriminatorily discharged and thereafter refused to rehire Lucille Pickens, Grace Stephens, and Mary Lowe. These individuals were ill at the time of the hearing and were unable to testify. The record does not dis- close whether these employees were members of the Union and, in 4In November 1945, the respondents advised the Union that they would reinstate im- mediately one or two employees to be designated by the Union, and the others as Jobs became available The Trial Examiner found, and we agree, that this did not constitute a bona fide offer of reinstatement and that it did not, therefore, satisfy the respondents' obligation under the Act to reinstate the entire group of employees against whom the respondents had discriminated N. L. R. B. v. Poultrymen's Service Corp., 138 F. (2d) 204, 210 (C. C A. 3), enf'g 41 N. L. R. B. 444, 459-460, 462; cf. Matter of Wright-Hibbard Industrial Electric Truck Co , Inc., 67 N. L. R. B. 897. CAPITAL CITY CANDY COMPANY 451 the absence of such showing, the Trial Examiner did not consider the proof sufficient to sustain the allegation of discrimination. We do not agree. These 3 employees worked in the candy and sandwich departments, together with the 7 other employees whose discriminatory refusals to rehire we have already discussed; the entire group of 10 employees was laid off in August 1945. Like the other employees laid off at the time, these 3 employees were also informed by Foreman Stewart that the respondents would notify them when to return to work. So far as the record shows, the respondents failed to advise these em- ployees when operations were resumed and, as of the date of the hear- ing, none of them had been reinstated. The respondents offered no explanation for their failure to reemploy these 3 employees other than the reason alleged as to the rest of the group, namely, the pur- ported failure to make a pro.per application for reinstatement. Al- though the record does not indicate whether these employees made individual applications for reemployment, the Union at various times beginning on August 29 did make application for all the laid-off em- ployees, including these 3, as we have already mentioned. Under the circumstances, we perceive no valid reason for denying immediate relief from the discrimination against these three em- ployees, even though they were unable to testify concerning their union membership. The Trial Examiner found, and we agree, that the respondents terminated the employment of the group of employees here involved in order to eliminate the Union from the plant. In- asmuch as the respondents' objective was violative of the Act, it is immaterial that, in carrying it out, some of the victims of the re- spondents' discrimination may not have been union members. Dis- crimination in 'regard to the hire or tenure of employment of a group of employees, including non-union members of the group, tends to discourage union membership and activities no less than discrimina- tion directed against union members alone.' Non-union victims of discrimination are, in such case, entitled to the same relief under the Act as are the union members .5 Accordingly, we find that, by discriminating in regard to the hire or tenure of employment of Pickens, Stephens, and Lowe, the respond- ents violated Section 8 (3) of the Act. We also find that by engaging in such conduct the respondents interfered with, restrained, and co- The situation is similar to a lock-out of all employees because some joined the Union. In such a case, we require the employer to reinstate and make whole all the employees, union and non-union. See Matter of J. R. Todd, d/ b/a Central Mineral Company, 59 N. L. R. B. 757, 773. A similar situation exists where an employer deprives all employees in a bargaining unit of certain benefits and privileges because they designated the union as their bargaining representative. In such a case we also require the employer to restore the benefits and privileges to all employees in the bargaining unit regardless of their affil- iation or nonaffiliation with the Union. Matter of General Motors Corporation, 59 N. L. R. B. 1143, 1145-4146 , enf'd as mod. 150 F. ( 2d) 201 (C. C. A. 3),. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erced their employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act and thereby violated Section 8 (1) of the Act. 5. Having found that the respondents discriminatorily discharged and thereafter refused to reinstate Johnnie Gaither and Mamie Cam- eron and that the respondents discriminatorily refused to reinstate Lucille Pickens, Grace Stephens, Mary Lowe, Virginia Bronson, Ellen Moses, Zitta Bell Murray, Ruby Peters, Roberta Roberts, Leola Ware, and Eveline Winfrey, we shall order that the respondents offer these employees immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges and that the respondents make them whole for any loss of pay they may have suffered, by reason of the discrimination against them, during the period from the date of the discrimination to the date of the respondents' offer of reinstatement, less their net earnings during said period.E We shall order that the back pay of Gaither and Cameron be computed from October 12, 1945, the date on which they were discharged, as the Trial Examiner recom- mended. We shall also order that the back pay of the *other employees be computed from September 29, 1945, rather than August 29, when the Union first made application for their reinstatement. The re- spondents' failure to reinstate the employees on August 29 did not constitute a violation of the Act in the absence of proof that jobs were then available for these employees. Jobs were available by Sep- tember 29, however, for on that date, as mentioned above, the respond- ents advertised for, and thereafter engaged, new employees. 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, Robert L. Jackson, Sr., Robert L. Jackson, Jr., Mrs. Willamae Young, and Mrs. Bobbie Dolvin d/b/a Capital City Candy Company, Atlanta, Georgia, and their agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Bakery and Confectionery Work- ers International Union of America, Local 42 (A. F. L.), or any other labor organization, by discriminating in regard to the hire or tenure of employment or any terms and conditions of employment of their employees; 6 The Board will abate the running of back pay during the period between the issuance of an Intermediate Report and the Board's Decision and Order in cases where the Board reverses a dismissal by the Trial Examiner of allegations of discrimination on the merits. Matter of Bermite Powder Company, 66 N. L R B. 678; Matter of Wyman-Cordon, Com- pany, 62 N L R B 561. In the present case, however, the dismissal as to Pickens, Stephens, and Lowe was without prejudice. We find no reason , therefore, under the facts of this case, for not issuing our usual remedial order as to these three employees CAPITAL CITY CANDY COMPANY 453 (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Bakery and Confectionery Workers International Union of America, Local 42 (A. F. L.), or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Virginia Bronson, Mamie Cameron, Johnnie Gaither, Ellen Moses, Zitta Bell Murray, Ruby Peters, Roberta Roberts, Leola Ware, Eveline Winfrey, Lucille Pickens, Grace Stephens, and Mary Lowe immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole Virginia Bronson, Ellen Moses, Zitta Bell Mur- ray, Ruby Peters, Roberta Roberts, Leola Ware, Eveline Winfrey, Lucille Pickens, Grace Stephens, and Mary Lowe for any loss of pay they may have suffered by reason of the respondents' discrimina- tion against them by payment to each of them a sum of money equal to the amount which she normally would have earned as wages from September 29, 1945, the date of the discriminatory refusal to re- instate, to the date of the respondents' offer of reinstatement, less her net earnings during that period; (c) Make whole Mamie Cameron and Johnnie Gaither for any loss of pay they may have suffered by reason of the respondents' dis- crimination against them by payment to each of them of a sum of money equal to the amount he or she normally would have earned as wages from October 12, 1945, the date of the discriminatory dis- charge, to the date of the respondents' offer of reinstatement, less his or her net earnings during that period; (d) Post at their plant at Atlanta, Georgia, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after having been duly signed by the respondents' representative, be posted by the respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Tenth Region (Atlanta, Georgia), in writing, within ten (10) days from the date of the receipt of this Order, what steps the respondents have taken to comply herewith. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIR. 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 NOT discourage membership in Bakery and Confec- tionery Workers International Union of America, Local 42, (A. F. L.), or any other labor organization, by refusing to re- instate any of our employees, or by discriminating in any, other manner in regard to their hire and tenure of employment or any term or condition of employment. 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. Virginia Bronson Mamie Cameron Johnnie Gaither Ellen Moses Zitta Bell Murray Mary Lowe Ruby Peters Roberta Roberts Leola Ware Eveline Winfrey Lucille Pickens Grace Stephens WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise,of their right to self-organization, to join or assist the above-named 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. All our employees are free to become or remain members of the above-named or any other labor organization. ROBERT L. JACKSON, Sr., ROBERT L. JACKSON, Jr., MRS. WILLAMAE YOUNG, MRS. BOBBIE DOLVIN, d/b/a CAPITAL CITY 'CANDY COMPANY, Employer. Dated------------------ By----------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. CAPITAL CITY CANDY COMPANY 455 INTERMEDIATE REPORT John C. MoRee , Esq., for the Board. Alexander E. Wilson, Jr., Esq., of Atlanta, Ga., for the Respondents. R. A. Elliott, Esq., of Atlanta, Ga., for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed on April 3, 1946,1 by the Bakery and Confectionery Workers International Union of America, Local 42, A. F. L., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated April 8, 1946, against Robert L Jackson, Sr., Robert L. Jackson, Jr., Mrs. Willamae Young, and Mrs. Bobbie Dolvin, d/b/a Capital City Candy Company, herein called the Respondents, alleging that the Respond- ents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notices of hearing thereon were duly served upon the Respondents and the Union. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleges in substance (1) that the Respondents discharged Virginia Bronson, Ellen Moses, Zitta Bell Murray, Ruby Peters, Lucille Pickens, Roberta Roberts, and Leola Ware on August 7, 1945, Eveline Winfrey on August 14, 1945, Grace J. Stephens on August 15, 1945, Mary Lowe on August 17, 1945, and Mamie Cameron and Johnnie Gaither on October 12, 1945, and thereafter refused to reinstate them, because they joined and assisted the Union and en- gaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection, and (2) that the Respondents through named officers and agents, from on or about June 1, 1945, to date, have vilified, disparaged, and expressed disapproval of the Union ; have interrogated their employees concerning their union aifliations ; have urged, persuaded, threatened, and warned their employees to refrain from assisting, becoming members of, or remaining members of the Union ; removed the work stools from the plant in an effort to discourage membership in the Union; and further that the Respond- ents did on or about July 5, 1945, offer, promise and grant a wage increase to their employees, and suggest and urge their employees to form an inside labor organization and not become affiliated with the Union ; by these acts interfering with, restraining and coercing their employees in the exercise of the rights guar- anteed in Section 7 of the Act and engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. On April 18, 1946, the Respondents filed their answer in which they admit the facts alleged in the complaint as to their organization, the character and extent of their business and that the complainants were "laid off on or about the dates" stated. The answer denies the commission of any unfair labor prac- tices and states affirmatively that none of the complainants have "since the date of her lay-off applied for reinstatement with Respondents." Pursuant to notice a hearing was held on April 22 and 23, 1946, at Atlanta, Georgia, before the undersigned, Charles E Persons, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the Respondents were represented by counsel and the Union by one of its officials. Full op- 1 At the request of the Respondents , the date of the filing of the original charge, October 10, 1945, and that of the amended charge, March 29, 1946, were incorporated in the record. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. At the close of the Board's presentation, in chief, its counsel moved to dismiss so much of the complaint as alleges the discriminatory acts affecting Alberta Finch and Sally Hudson This motion was granted without objection. At the conclusion of the presentation of testimony all parties waived oral argument before the un- dersigned. They were duly advised that they had the privilege of presenting briefs for the consideration of the Trial Examiner: The Board and the Re- spondents have duly submitted such briefs. Upon the entire record in the case and from his observations of the witnesses, the undersigned makes the following : FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENTS 2 Robert L. Jackson, Sr, Robert L Jackson, Jr., Mrs. Willamae Young, and Mrs. Bobbie Dolvin comprise a partnership, doing business as Capital City Candy Company. Their principal office and place of business, herein called the plant, is at 142 Jackson Street, Atlanta, Georgia, where they are engaged in the manu- facture and sale of peanut candy, potato chips and related products. During the calendar year of 1945, the Respondents purchased raw materials consisting of peanuts, sugar, syrups, oil, potatoes, and related products, valued at apps oximately $75,000 Approximately 20 percent in value of these raw materials was shipped to the plant from points outside the State of Georgia. During the same period the Respondents' sales were in excess of $75,000, and approximately 50 percent in value was shipped to customers in other States. The Respondents admit, for the purpose of this proceeding only, and the under- Signed finds, that they are engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Bakery and Confectionery Woikers International Union of America, Local 42, affiliated with the American Federation of Labor, is a labor organization admit- ting to its membership employees of the Respondents. III THE UNFAIR LABOR PRACTICES A Background In May 1945, the Union began an organizational campaign among the Respond- ents' employees. In June a union representative called Robert L. Jackson, Sr , manager of the plant, herein called Jackson, stating that a majority of the em- ployees had joined the Union and asking recognition as bargaining representative. Jackson's reply was noncommital. Shortly before June 21, 1945, the Union pe- titioned the Board for an investigation and certification of representatives. Thereafter through Respondents' counsel an agreement was reached for a con- sent election which was held on July, 26, 1945 Of 32 eligible voters, 19 cast valid votes of which 14 were for the Union and 5 against When representatives of the Union and the Respondents first met on or about August 29, 1945, in the office of Judge Cone, a Commissioner of Conciliation, the plant was almost com- pletely shut down, and the Respondents were uncertain what their future course would be. The Union consented to postpone negotiations. A second meeting was held in mid-November. Representatives of the Union and of the Respond- 2 These findings are based on a stipulation between the parties incorporated in the record ; upon data presented in the complaint which were admitted by the Respondents in their answer ; and on uncontradicted testimony in the record. CAPITAL CITY CANDY COMPANY 457 ents met subsequently in January 1946 and on February 8, and 20, 1946 At the meetings in 1946, a contract proposed by the Union was discussed and counter- proposals made by the Respondent. These discussions are, in general, not material to the issues in this proceeding. However, there was recurrent dis- cussion regarding the complainants and the possibility that they might be ieinstated The Respondents regularly took the position that they would ie- instate one or two.at once if the union representatives would designate them. They promised to rehire the others "as openings became available." It is clear that such-proposals were' items in the give and take of bargaining No unquali- ned promise was given to rehire the complainants. 0 B. Interference, restraint, and coercion On July 2. 1945. when the employees were recalled after a 3-week lay-off in June, Employee Virginia Bronson spoke to Foreman Henry P Stewart' about the reinstatement of Employee Ruby Peters which had been authorized by Jackson At the time Stewart said, as Bronson's uncontroverted and credited testimony reads, "If these girls don't keep their big mouth shut about the union they are going right out of here. If they don't keep their big mouth shut, all of them are going to get out of here." Shortly before the election when Employees Leola Ware and Zitta B. Murray were reading the election notice, Stewart accosted them and asked Ware if she knew who started the Union. She replied that she did not After the election Ware asked Stewait in the presence of Bronson whether the result, which was favorable to the Union, meant that every employee would become a member of the Union. Stewart replied, as Bronson's credited testi- mony leads. "Well, it is not going to mean anything" The employees were recalled on July 2, 1945, after the June lay-off. On July 5, 1945, the employees were assembled on working tune shortly before noon and addressed by Jackson. The content of his speech is not seriously in dispute Several employees gave quite full and mutually corrobol ative accounts in their testimony." Their statements were not specifically controverted by Jai k- ' At the time of the heating Stewart had left the Respondents ' employ. He did not appear as a witness Ware so testified and her uncontroverted testimony is credited by the undersigned i See the testimony of Bronson, Peters and Ware. Less complete statements occur in the testimony of Gaither , Roberts, Winfrey, and Murray. For comparative purposes Jackson's testimony regarding the speech is quoted in full I told them that I couldn 't make them a speech ; if I could have, I wouldn't be in the candy business; I would be a politician . But the thing I wanted : They had asked me for a raise , and I saw it possible to give them all a five -cent raise on the hour I felt like it was conning to them. I was not giving them anything , it belonged to them. Most of them worked hard, and so forth and so on ; that I would continue to raise them any time I could, anything I could see my way clear to, and that I didn't know if somebody might tell them that I was figuring on putting in a lot of machinery or hiring white help to replace them, but I hadn't thought anything about that If they worked and did their work right and were loyal to the job, they would be employees right on. And we had a good chance here in the South now that the war had brought down some money : we had a chance to develop it As I understood it, there was only about 5 to 7 percent of the candy made in the South that was eaten in the South; that I wanted to expand the business and produce as much as we could after the war when it got where we could, so I could pay out the wages to the people, and we could keep the money here in the South, if we worked together. Q Did you say anything about the union? A. Yes, I told them that I had heard something said about the union and if they wanted to join the anion it was plumb all right ; I had nothing against the union It was their money, they worked for it and could spend it the way they wanted to ; or if they wanted to pick out someone among them, they could come to me at any time and we would iron it out the best we could. . 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son. He first announced that he would give a general raise of 5 cents an hour effective on the current week's pay, saying as Bronson's testimony reads, "he know that times are hard and he know that meat and everything are high, that we have to pay the same thing for our pork chops that he pays for his, and that he had been satisfied with our work and everything." Jackson referred to the union activity in the plant and stated that the employees should feel free to join or abstain from joining. However he suggested, as Bronson testi- fied, "that he had thought it would be best if those girls would pick somebody out among themselves and let them represent them, and if they have any troubles or anything, let this person come and tell him, and then he and this person would talk it over and then he would tell this person what to come back and tell them " Of similar purport is the testimony of Peters reading, "He said, It is all right with me if you want to join this union, but I would rather have you to organize one between yourselves. Pick out some responsible girl and tell her all your troubles and let her bring it to [me]." 6 Jackson assured the employees that current rumors that colored men and women would be replaced by white employees after the war' were baseless. He further stated that the service of the currently employed colored workers was satisfactory. There was a palpable attempt by Jackson to deter the employees from joining the Union in an appeal to sectional prejudice. He called the employees' attention to the fact that of the dues paid to the Union a portion would be sent to its northern headquarters. As Bronson's testimony is recorded, Jackson said, "there has always been plenty of money up North and he didn't see why the people from the South had to take their money and send it up [there]." As to Jackson's speech it is clear that he granted a unilateral and substantial wage increase immediately effective, with a promise of further raises, and an- nounced it on July 5, 1945. Such action shortly before the Board election and after the Board's administrative processes preliminary to the election had been set in motion, must be held, under controlling Board's precedents, to constitute an attempt to persuade the Respondents' employees that wage increases could be obtained without collective bargaining and thus to influence them to vote against the Union.' Moreover Jackson's speech on July 5, 1945, was distinctly anti-Union. He made a definite proposal for the setting up of an alternative plan for the handling of grievances and appealed to sectional prejudice against the transfer of union dues to its northern headquarters. When viewed in the light of the discriminatory discharges, and refusals to rehire set forth below, which followed promptly upon union success in the Board election, and in the setting of the totality of the Respondents' actions, the speech cannot be justified on the grounds of Respondents' right to freedom of speech. It must be found to constitute interference with the employees "full freedom of association, self-organization and designation of representatives of their own choosing" which it is the de- "Murray 's testimony in point here reads, "He said if anything come up on employment, we could select a girl there In the building and get together and come down to him ; we could get together on It." T See Matter of American Oil Co., 41 N. L . R. B. 1105, 1117, and Matter of Bear Brand Hosiery Co ., 40 N. L. R. B. 323, 334, enf'd 131 F (2d) 731 (C C. A. 7 ). The Board said: The time and circumstances of the publication of the various notices described above, considered in conjunction with what the respondent otherwise said and did, and the implications contained therein that the employees would gain nothing by joining a labor organization , made them intimidatory , coercive , and violative of the Act. Cf Matter of Shreve and Co., 57 N. L. R. B. 1483 , and Matter of Continental Oil Co , 56 N. L. It. B. 169, wherein the Board set aside elections because of similar actions of employers. 0 CAPITAL CITY CANDY COMPANY 459 Glared policy of the Act to maintain and which the Board is in duty bound to sustain. The undersigned finds that by the acts and utterances of Stewart; by the uni- lateral Wage increase granted on July 5, 1945; by the attempt of Jackson to induce the employees to set up an independent organization as a substitute for union action ; by the anti-union speech of Jackson on July 5. when viewed in the light of these acts and utterances, the respondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act .8 C. The discriminatory discharges Virginia Bronson, Ellen Moses, Zitta Bell Murray, Ruby Peters, Roberta Roberts, and Leola Ware were informed on August 7, 1945, by Stewart that they would be temporarily laid off because of a shortage of raw material. Each was told that she would be informed when work was available. However, none was so notified and the so-called lay-off was in effect a discharge. Bronson and Ware were hired on March 20, 1944. They were assigned to the job of sealing candy boxes and continued in that work until laid off on August 7. These op- erators wrap the boxes, in which the candy bars separately wrapped have been assembled, in wax paper and seal the folded ends by the application of a hot iron. On the date on which Bronson, Ware and Ruby Peters were hired, March 20, 1944, the white employees, who staffed the plant, walked out. The only white woman who remained was the forelady, Nina Burnham. She instructed the newly hired colored employees in their work. When Burnham left the plant in June 1944, Bronson took over her duties and was given an increase of 5 cents an hour. Bronson's uncontroverted and credited testimony describes this assignment as follows : Those duties were to train the new girls as they came in, and [Jackson] said if there was any girl I wasn't satisfied with there, well, I could tell him about it and he would let them go, and to keep check on the eandyl, because it was piece work on the candy and piece work on the crackers, and somebody had to help check on that. Bronson's duties in keeping account of the boxes of candy and of cracker sandwiches packed pertained to the bonus payments paid for work in excess of quotas set up. The candy wrappers' quota was 30 boxes an hour. For out- put in excess of that they received 11/2 cents a box in addition to their hourly wage of 40 cents or, after July 2, 1945, 45 cents an hour. The corresponding quota on boxes of cracker sandwiches was 10; the bonus for additional output was 4 cents a box. It is the Respondents' contention that this quota and bonus system, together with the enhancement in production resulting from constant work at one task, dictated a policy of confining each employee to a single op- eration. However the employees testified that they were frequently transferred and in the course of their employment acquired familiarity and efficiency in various tasks. Bronson's testimony is entitled to especial consideration in this controversy because of her supervisory duties and her obligation to instruct new employees. She stated, 6 The Board contends that the removal of stools from the plant constituted a further act violative of Section 8 (1) of the Act. It appears that stools had been furnished for the use of the employees who prepared and packed the cracker sandwiches. These stools were removed in order that they might be cleaned and were not replaced. This happened just after the Board election on July 26, 1945 Since this department was closed on August 7, 1945 and had not thereafter been reopened, there was no need for this equipment. Under these circumstances the undersigned finds that this allegation of the Board has not been sustained. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Well, we transferred them [the employees] whet ever we needed them every day If we were short of a girl over here on wrapping candy, anti could take a girl from some other place and put her over to wrap candy. If the crackers gave out, you would also use them to wrap candy, or probably put them in the potato chips Anyway they used them all over the place. The Respondents voiced no criticism of the service of either Bronson or Ware. A statement of earnings in the quarter ending September 30, 1945. furnished by the Respondents indicates that Bronson worked steadily from July 2 to August 7, 19458 Her earnings were in excess of that accruing at 50 cents an hour. Ware fell considerably below full-time earnings at 45 cents an hour10 Bronson and Ware were notified by Stewart on August 7 that they-were being laid off. Bronson testified that Stewart, "didn't tell us that he had laid us off. He said, be oft' tomorrow and we will let you know when to come back." Similarly it was Ware's testimony that Stewart said, "Leola, you and Virginia 'Bronson are going to be off for a couple of days," and promised to call them back "Just as soon as I get some more [material] " 11 These undenied statements are credited by the undersigned. Stewart's promise to recall them was never fulfilled. Ellen Moses was hired on July 12,12 1944. She worked for a time at sacking potato chips but her regular assignment was the wrapping of cracker sandwiches. However, the Respondents sent her a "Notice of Separation" through the mail on August 13, 1945, on whichi her work is designated as "candy wrapper " The statement of earnings furnished by the Respondents shows that Moses worked pr ieticaliy full time from July 2 to August 7, 1945 Ruby Peters was hired on March 20, 1944. Although she wrapped cracker sandwiches as her regular assignment she testified without contradiction, and the undersigned finds, to the following effect : I continued on that job [wrapping cracker sandwiches] until I was laid off, but during the time I was working on that job, I was moved all around the place, wrapping candy, picking up candy, making boxes, sacking potato chips, sacking peanuts. In fact I did everything . except cooking the potato chips and cooking the candy. Cooking the potato chips and candy were men's assignments in the plant It was Moses' credited testimony that she was accustomed to exceed the quota assigned for wrapping cracker sandwich boxes and that she made the candy wrapping quota "sometimes " 13 Her reported earnings for the period July 2 to August 7, 1941, show that she considerably exceeded full-time hourly earnings at the rate of 45 cents an hour Peters had been "fired" by Jackson "about a month" earlier than the general June lay-off together with Employee Clara Munson 1l "for breaking up some sand- wiches and throwing them on the floor " Peters made application to Jackson for ieinstatemcnt claiming that Munson, not she, was responsible for the mishandling of the cracker sandwiches. She was rehired and the Respondents do not contend O The record does not contain a detailed statement of employee earnings prior to the third quartet of 1945 10 She tai ned $80 60 while full-time earnings would amount to $97 20 It Bronson testified further that employee Minnie Willaford, who had fist been hired in June 1944, and thus had some 3 months' less seniority than she, was retained after August 7 and took over the work of sealing candy boxes She had previously sealed the cracker sandwich bores and shared with Bronson and ware the responsibility for sealing the salted peanuts The earnings record indicates that W'illaford had practically full-time earnings from July 2 to October 12, 1945 12 On Moses' Notice of Separation this date is given as July 7. 1944 12 On Peters' Notice of Separation mailed to her on August 13. 1945, she is classified as a "candy wrapper " 11 Jackson was in error in stating that Roberta Roberts was discharged at this time. CAPITAL CITY CANDY COMPANY 461 that this incident had any bearing on the subsequent termination of her employ- ment. Zitta Bell Murrain was hired late in September 1944, and assigned to work as a. cracker sandwich wrapper However she became experienced in other jobs. Her undenied and credited testimony pertinent here reads: "I wrapped candy, made boxes and sacked . . . salted peanuts and sacked potato chips I worked-all over the plant." Murray fuither testified that she worked regularly on wrapping cracker sandwiches until Christmas 1944 and after the following February or March "started to transfer one place and then another. . . . A half day, two or three days, [or] a week " It was her uncontroverted and credited testimony that her work on these transfer-assignments was never criticized and that she made the quota both when wrapping candy and cracker sandwiches The statement of her earnings bears out this statement, since she made more than full-time hourly earnings from July 2 to August 7, 1944 Roberta Roberts was hired in October 1944 and worked in turn wrapping candy, wrapping cracker sandwiches, sacking potato chips and again in wrapping cracker sandwiches. Prior to her termination of employment on August 7, 1945, she had worked steadily wrapping cracker sandwiches for 7 weeks. She testified that she made the established quota as a candy wrapper When asked whether her work had ever been criticized on any of the jobs assigned her, she answered, "Not a bit." The undersigned ciedits this uncontrovei ted testimony by Roberts Her earnings for the period July 2 to August 7, 1945, aie practically equivalent to full-time earnings at 45 cents an hour. Moses, Peters, Murray, and Roberts were notified by Stewart on August 7 that they would be laid off temporarily due to the failuie of the supply of crackers. Murray, who was instructed by Stewart to inform the other cracker sandwich wrappers, gave the following testimony as to Stewart's instruction, He told us that the cracker girls would be laid off and he didn't know how long they would be laid off because they didn't have any more crackers ; so, just as soon as they get some more crackers, lie would let us knouu, but he didn't know when it would be It is clearly reflected by the record that this promise of Stewart was never ful- filled. Evelyn 1Vinfiey was hired in July 1944 and her employment terminated on August 14, 1945 She began work as a candy wrapper but woiked at various assignments. Her credited testimony pertinent to the point reads, That is what I was hired for, but I wrapped candy and wrapped peanut candy and then I wrapped stick candy, and then I went from there to the potato chip room, and I sacked potato chips, salted peanuts, and then picked up candy On the Respondents' Notice of Separation Winfrey is classified as a "candy wrapper." Winfrey earned but $81.29 in the period from July 2 to August 15, 194.5 This is considerably below full-time wages for this period However Respondents' withholding receipt for the full period of her employment in 1945 shows earnings of $457 which indicates 71/2 months work of fairly iegular attendance and eff- cient attention to her work. Winfrey was notified of a lay-off by Stewart who said, as her credited testimony reads, "Well, lie told its that lie was short of sugar and when he got some sugar, he would send back for us" 1llantie Cameron was hired on October 4, 1944, and Johnny Gaither on July 19, 1944. Both were candy wrappers and both were continued in Respondents' em- ployment until October 12, 1945. Cameron gave credited testimony to the effect 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she was occupied in bagging peanuts for a little over a week shortly before her employment terminated. But she had returned to her regular job when she was laid off. She testified that she "always got [her] production quota and quite a bit over" as a candy wrapper. At times she was able to run her production tip to over 40 boxes an hour. It will be remembered that the quota was set at 30 boxes. The earnings data furnished by the Respondents show that both Cameron and Gaither made more than full-time wages for the period July 2 to October 12, 1945. This indicates regularity in attendance and consistent production of out- put. Cameron gave uncontroverted and credited testimony, that her work per- formance had never been criticized. She served as union observer at the Board election. Gaither gave credited testimony reading, I did practically some of everything that was there to be done, such as pick- ing up candy for them and sacking peanuts, and other various things that would be done, I did. Gaither estimated that her transfers from her regular assignment wrapping candy amounted to 1 day a month. She gave undenied testimony, credited by the undersigned, that her work was never criticized on any of her assignments. Gaither was informed by Stewart on October 12, 1945, that the plant was out of sugar and therefore he didn't have anything for her to do. Stewart's statement to Cameron, as she testified, was that the supply of corn syrup was exhausted and that he could not tell how long the lay-off would continue. He advised that she call in from time to time and inquire if the corn syrup had come in. The record thus clearly establishes that these nine complainants had been satisfactory employees from the dates of their respective hirings until that of the termination of their employment. Except in the case of Peters the record is barren of suggestion that either their attendance or efficiency had not been entirely satisfactory. The fault ascribed to Peters was explained and the matter closed with her reinstatement on July 2, 1945. Subsequent to that date, on July 5, Jackson assured the assembled employees that their work was satisfactory and that they might expect to continue their employment. These assurances he sup- ported with the potent substantiation of a general raise. The Respondents contend that the terminations of complainants were justi- fied by legitimate business reasons and that the lengthening of the lay-offs into discharges was due to the permanent cessation of cracker sandwich productions. The record does not contain data which permit of an exact analysis of the em- ployment situation in Respondents' plant from August 7 to the close of 1945. However, the earning data, presented by the Respondents, indicates that at least three white female employees'" worked substantially all of the 3 final months of that year. Seven other white female employees earned $100 to $190 each. This, at full-time earnings, means from 5 to 9 weeks employment. It will be noted that the Union won the Board election on July 26, 1945, and that the first lay-off of these union employees occurred, less than 2 weeks later, on August 7. In the closing days of September the Respondents advertised for white female help. At that time they refused applications from the complainants for rein- statement and, as just indicated, began the process of replacing colored union members with newly hired white women. While the cracker sandwich department was permanently closed for legiti- mate business reasons, only Moses, Peters, Murray, and Roberts, as set forth above, were employed in that work. Bronson, Ware, Winfrey, Cameron, and Gaither were all regularly occupied in work which had been resumed and was 35 Nina Burnham replaced Bronson and earned in that period $350 , Evia M. Bassett received $241 50 and Louise Wallace $231.13. CAPITAL CITY CANDY COMPANY 463 in operation at the time of the hearing Moreover, as the evidence recounted establishes, and the undersigned finds, Moses, Peters, Murray, and Roberts had such experience and proved capacity at the operations which were continued as better fitted them for this work than such admittedly inexperienced employ- ees as replaced them This purported explanation of the Respondents for the discharges is obviously insincere when judged in the light of the events at the close of September 1945. It is manifestly false if applied to the discharges of Cameron and Gaither on October 12, 1945, when 10 white female employees were in the plant. The Respondents failed to supply records of employment covering the crucial period following August 7, 1945. It is therefore a fair inference, drawn by the undersigned, that" such data would not support their contention After consideration of the record, and the demeanor of the wit- nesses, the undersigned is convinced and finds that these nine complainants were laid off in pursuance of a definite plan to discharge union adherents and replace theiu with newly hired employees. Accordingly, he finds no merit in the contention of the Respondents that business considerations dictated these dis- charges iz The Respondents further contend that the complainants failed of reinstate- ment because they did not make proper application Jackson stated that it was his established policy to fill vacancies each day from applicants at the plant gate. He further made a point of the alleged fact that hiring was his responsi- bility and that none of the employ ces had applied to him personally. These nine complainants were not new applicants They were employees of consid- erable service, each of whom had been assured when laid off that she would be notified when Respondents again had need of her services The record shows that Respondents had readily available means for such notification After the June lay-off each employee was notified to return by letter through the United States mails under date of June 28, 1945 This letter was in the following form: Is To all Employees : This is to advise that we are planning to start operating our plant Monday Morning July 2,1945, with the same hours as heietofore, as follows: Female Workers from 8 a. ni to 4. 30 p in. Male Workers from 7: 30 a. in to 4: 30 p in If for any reason you cannot arrange to report for work at the above stated hours, we would appreciate your advising us in order -that we may know what to expect. Yours truly, CAPITAL CITY CANDY COMPANY, By R L JACKSON, SR,i° Managcr. Interstate Cil cuit, Inc. v U S, 306 U S 208, 226 The Court said : The production of weak evidence when strong is available can only lead to the conclu- sion that strong would have been adverse. Silence then becomes evidence of the most convincing character. lr In reaching this conclusion the undersigned has borne in mind the business considera- tions which justify a lay-off on August 7 and 14, 1945 Winfrey testified as to the later date, "He [Stewart] laid off a lot of us . . just a gang of as " Further, due weight has been given to the postponement of negotiations on August 29, 1945, when, as Wilson testified , "there were some eight or ten employees " The conclusion reached is that the purported lay-offs were in fact discharges . When the period of justified lay-off ended the Respondents not only did not fulfill their promises to recall these complainants but invariably Fef ised their requests for reemployment. 'g Bronson, Gaither, Roberts, Cameron, Moses, Winfrey, Murray, and Ware testified as to the receipt of such letters. The Respondents admit that the letter was sent to all employees 19 At the hearing the Respondents pointed out that these letters were not signed by Jackson in person However, it was admitted that signing and mailing the letter was with due authorization. 717734-47-vol. 71-31 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further, the Respondents sent notices of separation under date of August 13, 1945,20 accompanied by letters constituting releases to the employees laid off on August 7, 1945. On January 22, 1940, they notified a considerable number of employees by letter that, through error, they had been underpaid in 1945 These employees were requested to call for further sums due them 2' The Respondents admittedly made no effort to communicate with the complainants laid off before filling their positions although, as the record demonstrates, well accustomed avenues of communication were available Moreover, the record reflects that repeated timely applications were made by the complainants.22 The group who had been notified of a lay-oft on August 7, 1945, including Bronson, Ware, Roberts, Murray, Moses, and Peters, returned to the plant on the following Friday, August 10, to collect their pay. While there they inquired of Stewart and Cashier C W Garrison,20 when they might return to work Bronson testified that she first asked Garrison if the paper used in sealing boxes had been received and was told that it had not. The group then applied to Stewart. Bronson's further testimony reads: And he [Stewart] stood there and smiled for about five minutes. He said, we cut out that department over there. [The reference is to sealing the boxes.] And so he said, "We also cut out the sandwich department." I said, "I wished you had told me because I would have gotten a job." So he just stood there and smiled. Leola [Ware] said, "You mean to say you aren't going to seal anymore?" He said, "No, we are just going to put them in like this." Peters testified that Bronson and Ware talked to Stewart on this occasion. Roberts testified that on August 10, 1945, she had asked Garrison what the lay- off was all about, and why they had not called those laid off back to work Garrison replied to both inquiries that he did not know. After the Respondents advertised on September 29 and 30, 1945, for white female employees, Bronson, Peters, Murray, Ware and Roberts, acting under the advice of union officials, again applied for work. Bronson's testimony as to their interview with Stewart reads, He [Stewart] came down and he asked what did we want. We told him, we asked him did he have any jobs, asked him had the material come back. He said no. We said, "You don't have any work for us to do?" He said, no. Peters' testimony regarding this interview substantially corroborates that of Bronson. It is recorded as follows : Well, when we went in, I told him we came back to get our job, and asked him did he need anybody. And I told him I saw an ad in the paper. 10 Such notices of separation sent to Bronson , Peters, Winfrey and Moses were incorpo- rated in the record, as were the accompanying releases sent to Bronson , Peters , Roberts and Moses Murray, Ware and Winfrey , as Board witnesses , gave credited testimony that notices of separation had been received by them Winfrey also testified that she had re- ceived a release, while Murray and Ware mentioned the notice of separation only. 21 Bronson , Gaither, Peters, Winfrey, Murray , and Ware are positively shown to have received such letters. zz Findings in this section are based on the testimony of Board witnesses named, which is uncontroverted unless otherwise stated. 23 Garrison signed three of the form Notices of, Separation which are in evidence using this title . Jackson described his duties as that of bookkeeper . Garrison did not exercise supervisory functions. He served as Company observer at the Board election. CAPITAL CITY CANDY COMPANY 465 He said , "Well, we aren't even cooking potato chips . . . because we don t hardly have enough work for the three34 doing that that we kept here " Murray also testified as to this interview Her statement is similar in essentials to that of Peters Ware testified that she telephoned to the Respondents secretary , Minnie R. Clegg , shortly before October 12 , 1945, and asked vrhether the needed raw ma- terials had been received Clegg informed Ware that they had not. Cameron made repeated inquiries of the same nature of Clegg by telephone, and in person , on October 19, about November 2 and finally about 10 days later. Clegg on each of the first two occasions informed Cameron that needed materials had not been received . On the final inquiry she advised, as an excerpt from Cameron's testimony reads, She told me that they still didn 't have it [corn syrup] and she just dichi't know what they were going to do. She told me she thought I had better get another job , she didn't think that one was going to be any more good. Gaither testified that a month and a half or two months after her employment terminated, sometime in December 1945 she talked with Jackson about the possi- bility of being recalled. Her testimony in part reads, I called down there one day because I needed work to do and, of course, I hadn ' t been called back. And so I called down there and the secretary allowed me to speak to Mr. Jackson , and lie told me-in the meantime I asked him had the sugar come in or did he have something for us to do. And he said he didn 't have anything for us to do yet I told him-I asked him, because I would have to find some work to do because I had to work. And of course , he agreed that was a good idea. 2' The undersigned notes that Jackson testified positively that none of the employees had applied to him personally for reinstatement . Gaither was in every respect an impressive and credible witness Her detailed statement is persuasive. Jackson's testimony was marked by frequent lapses of memory . After consider- ing the full record and the demeanor of these witnesses , the undersigned credits Gaither's testimony regarding this incident. In appraising the record of applications by these employees for reinstatement the undersigned has given consideration to testimony by Winfrey . She was asked why, living just across the street from the plant , she had never applied to Jackson and replied, "after he laid off all the colored, why , there was no use. Mr. Stewart said when he laid its off, he would send back for us when he got some more sugar." The undersigned finds that in view of like definite promises given to other com- plainants they might fairly have understood that the initiative in rehiring would be taken by the Respondents . The general recall after the June lay-off by letter dated June 28, 1945, was a weighty precedent going far to justify such an expec- tation. The undersigned notes further that Respondents refused to rehire the group applying on October 1, 1945 , although at the time advertisements had been published for employees to do the very work these applicants had given full evi- dence of ability to perform . At the same time the Respondents were hiring inex- perienced workers for the positions these employees had filled . Further, Cameron, 24 This reference evidently is to Cameron, Gaither and Willaford 21 Elsewhere Gaither testified, "I told him I needed work and I wanted to know, because I woud rather have gone back to work there because I liked the work. And I called him and he said the sugar hadn't come in." 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who was proven by the record to be a very efficient employee, was advised by Respondents' representative to seek other employment at a time when her accus- tomed work was being done by newly lured employees. Jackson refused Gaither s application in December 1945, under similar conditions. As noted above, the Union, acting as the statutory representative of its mem- bers who had been laid off, requested of the Respondents in each bargaining con- ference that they be reinstated. The Respondents' answer was uniformly that they would reinstate one or two, to be designated by the Union, at once and others as need for their services-arose. After consideration of the full record the undersigned finds that none of the complainants was at any time given an unqualified offer of reinstatement by the Respondents Jackson stated that the terminations of these nine complainants were but temporary lay-offs and that he was, and had been continually, willing to rein- state them. This contention is effectively disproved by the repeated refusals to rehire them set forth in this Intermediate Report. The contention that the lay- offs were temporary is palpably inconsistent with the fact that several of the complainants were definitely released under date of August 13, 1945 20 The form letter sent them reads: To WHOM IT MAY CONCERN : This is to certify that ------------ is Rio lougei employed by us and anyone needing her services may employ her without any interference from us. [Italics added.] Yours very truly, R L JACK SON,27 CAPITOL [SIC] CITY CANDY COMPANY. Furthermore, the Respondents' action in progressively replacing these colored complainants by white female employees is inconsistent with this contention Winfrey lived just across the street from the plant She testified that on the date of the termination of her employment, August 14, 1945, no white female production workers were in the plant. On September 29 and 30, 1945, the Re- spondents advertised in a local newspaper under the caption, "Help Wanted Female." The advertisement read : "Girls for wrapping candy, starting pay 50 cents, with automatic increases." These advertisements were for white help Cameron testified that at the time she was laid off on October 12, 1945, about five white female workers were employed on the second floor whei e she worked and about the same number on the floor below. Gaither corroborated Cameron as to the number of white employees on the second floor. At this time but three colored female employees were at work ; Cameron, Gaither and Willaford All were laid off at this time and the female production workers were thenceforth white. The Board called Employee Silas Mattox as a witness, who gave un- controverted testimony, credited by the undersigned. that he counted-the white female employees as they checked in at the time clock in each of the 4 weeks preceding the middle of February 1946 and found that about 20 or 22 were em- ployed. Among the white employees hired were Nina Burnham and Evia M Bassett, both of whom had had previous experience in the plant. Others were inexperienced in a candy factory, as Jackson admitted' in his testimony, though, as he testified, "Some of them had probably worked in a bakery or something of that sort." Since these inexperienced workers were replacing well experienced and efficient workers and receiving 5 cents an hour higher pay as an entianee wage, these displacements have no economic justification nor do the Respondents 20 Bronson, Peters, Roberts and Moses n As before the Respondents admit that this was an authouzed signature although Jackson did not in fact affix his name CAPITAL CITY CANDY COMPANY 467 attempt such an explanation. With their advent the displacement of union mem- bers=was complete The Union which became the statutory representative of the employees on July 26, 1945, had no members in the plant after October 12, 1945. After consideration of the record, the anti-union bias evidenced by- the Re- spondents and the inadequacy of the reasons ascribed by them for their failure to reinstate the complainants, the undersigned is convinced and finds that the controlling motivation of the Respondents for the discharge, and subsequent iefusal to reinstate, of Viigiiiia Bronson, Ellen Moses, Zitta B. Murray, Ruby Peters. Roberta Roberts, Leola Ware, on August 7, 1945, of Eveline Winfrey on August 14, 1945, and of Mamie Cameron and Johnnie Gaither on October 12, 1945, was their union membership and activity and Respondents' desire to drive the Union from their plant. The Respondents, by discharging and subsequently refusing to reinstate Vir- ginia Bronson, Mamie Cameron. Johnnie Gaither, Ellen Moses, Zitta B. Murray, Ruby Peters, Roberta Roberts, Leola Ware, and Eveline Winfrey, have discrim- niared in regard to their hire and tenure of employment and the terms and conditions of their employment ; have discouraged membership in a labor union and have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act. D. Alleged discriminatory discharges The complaint alleges that Lucille Pickens was discriminatorily discharged on August 7. 1945 Grace Stephens on August 15, 1945, and Mai i/ Lowe on August 17. 1945 These complainants did not appear as witnesses. It was stated by the Board's counsel that they were seriously ill and unable to attend the hearing. Under these circumstances evidence as to their work records is scanty. Earnings data. previously referred to, show that Pickens' earnings in the period July 2 to August 7 were exceeded among the complainants only by those of Bronson who. it will be remembered, received a wage rate 5 cents an hour higher than the other female production workers Stephens had earnings nearly equal to the full-time wages for her period of employment. Lowe's earnings were about two-thirds of full-time pay at time rates. It is in evidence that Stephens was laid off at the same time as Winfrey and had been working as a candy wrapper. There is no positive showing in the record that Pickens, Stephens, or Lowe had joined the Union In this state of the record the undersigned concludes and finds that the Board has not sustained the burden of proof and affirmatively shown that Pickens, Stephens, and Lowe were discriminatorily discharged Ac- cordingly it will be recommended that so much of the complaint as alleges their discriminatory discharge be dismissed without prejudice. IV. THE EFFECT OF THE UNFAni LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, above, occurring in connection with the operations of the Respondents' business described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V THE REMEDY IL'iving found that the Respondents have engaged,in certain unfair labor prac- tices. the undersigned will recommend that they cease and desist therefrom and take certain affirmative action found necessary in order to effectuate the policies of the Act. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has been found that the Respondents discharged Ellen Moses, Zitta Bell Murray, Ruby Peters, Roberta Roberts, Leola Ware, and Virginia Bronson on August 7, 1945,, Eveline Winfrey on August 14, 1945; and Mamie Cameron and Johnnie Gaither on October 12, 1945, and thereafter refused to reinstate them, thus unlawfully discriminating in regard to their hire and tenure of employment and the tei ms and conditions of their employment It will accoi J- ingly be recommended that the Respondents be ordered to offer these employees immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority or other rights and privileges they may have, dismissing, if necesasry, any employee hired since the date of the discriminatorily discharges to perform work which the complainants are qualified to perform. It will be further recommended that the Respondents make them whole for any loss of pay they may have sullered by reason of the Respondents' discriminatory action, by payment to them of a sum of money equal to the amount they would normally have earned as wages from the dates of their respective discriminatory discharges to the date of the Respondents' offer of reinstatement, less their net earnings 28 during said period. Since as set forth above the Respondents have engaged in a persistent and studied course of action designed to defeat the development of an organization in their plant fitted to engage in the collective bargaining which it is the central and declared purpose of the Act to promote. the undersigned finds that the Respondents have manifested a fixed determination to hinder and defeat the processes which are necessary precedents to collective bargaining. The mass discharge of all union adherents after the Union's success in a Board election, was a manifest attempt to destroy the basis for collective bargaining The under- signed notes that Cameron and Gaither were discharged after the Respondents had met with the Union' in their first bargaining conference. It would be difficult to conceive more effective action than that taken by these Respondents to defeat collective bargaining or one more flagrantly violative of the Act 21 Under these conditions it will be recommended that the Board's order require the Respondents to cease and desist from all acts and utterances which oppose the central purpose of the Act which is to promote collective bargaining. The deter- rent purpose of the Act will be defeated unless the Board's order is as comprehen- sive as the probability of the commission of the unfair labor practices indicated by the proven offenses of the Respondents. It will therefore be recommended that the Capital City Candy Company be ordered to cease and desist from in any manner infringing upon the rights guaranteed their employees by Section 7 of the Act. On the basis of the above findings of fact and upon the entire record in this case, the undersigned makes the following: CONCLUSIONS of LAw 1. Bakery and Confectionery Workers International Union of America, Local 42, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the Respondents, 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. 21 See N. L. R. B. v. Automotive Maintenance Machinery Company, 315 U. S. 282. - CAPITAL CITY CANDY COMPANY 469 2, By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of Virginia Bronson, Mamie Cameron, Johnnie Gaither, Ellen Moses, Zitta Bell Murray, Ruby Peters, Roberta Roberts, Leola Ware, and Eveline Winfiey, thereby discouraging membership in a labor organization, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3 By interfering with, restraining, and coercing their employees in the ex- ercise of the sights 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 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5 . The Respondents have not been proven to have discriminatorily discharged, nor refused to rehire, Lucille Pickens, Grace Stephens, and Mary Lowe, within the meaning of Section 8 (3) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondents, Robert L. Jackson, Sr., Robert L. Jackson, Jr., Mrs. Willamae Young, and Mrs Bobbie Dolvin, d/b/a Capital City Candy Company, and their officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in the Bakery and Confectionery Workers In- ternational Union of America, Local 42, A. F. L., or any other labor organization by discriminating in regard to the hire and tenure of employment or any terms and conditions of employment of their employees ; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join or assist Bakery and Confectionery Workers International Union of America, Local 42, A. F. 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 as guar- anteed in Section 7 of the Act. Take the following affirmative action which the undersigned finds will ef- fectuate the policies of the Act: (a) Offer to Virginia Bronson, Mamie Cameron, Johnnie Gaither, Ellen Moses, Zitta Bell Murray, Ruby Peters, Roberta Roberts, Leola Ware, and Eveline Winfrey immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority or other rights and privileges : (b) Make whole Virginia Bronson, Mamie Cameron, Johnnie Gaither, Ellen Moses, Zita Bell Murray, Ruby Peters, Roberta Roberts, Leola Ware, and Eveline Winfrey for any loss of pay they may have suffered by reason of the Respondents' discriminatory action against them ; (c) Post at their plant at Atlanta, Georgia, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after having been signed by the Respondents' representative, shall be posted by the Respondents immediately upon the receipt thereof, and maintained by them for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material ; 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director for the Tenth Region (Atlanta, Georgia) in writing, within ten (10) days from the (late of the receipt of this Inter- mediate Report, what steps the Respondents have taken to comply therewith It is further recommended that the complaint herein be dismissed insofar as it alleges that Lucille Pickens, Grace J. Stephens and Mary Lowe were discriminatorily dischai god It is further recommended that unless on or before ten (10) clays from the receipt of this Intermediate Report, the Respondents notify said Regional Director in writing that they will comply with the foregoing recommendations, the National Laboi Relations Board issue an order requiring the Respondents to take the action aforesaid. As provided in Section 33 of Article 11 of the Rules and 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) clays 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, an original and four copies of a statement in writing, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Inuiiediately upon the filing of Such state- ment of exceptions and/or brief, the party or counsel for the Board filing the swine shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) clays from the date of the order transferring the case to the Board Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date of-the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director. CHARLES E PERSONS, Trial Eiiaiivmner. Dated May 29. 1946 APPENDIX A NOTICE 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 in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist Bakery and Confectionery Workers International Union of America, Local 42, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, -and to engage in concerted activities for the purpose of collective bargaining or-other mutual aid'or'protection WE wiLL ovria to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice CAPITAL CITY CANDY COMPANY 471 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. Virginia Bronson Ruby Peters Mamie Cameron Roberta Roberts Johnnie Gaither Leola Ware Ellen Moses Eveline Winfrey Zitta Bell Murray All our employees are tree to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization ROBERT L. JACKSON, SR., ROBERT L JACKSON, JR, MRS. W'ILLAMAE YOUNG, MRS. BOBBIE DOLVIN, d/b/a CAPITAL CITY CANDY COMPANY, Employer. Dated---- ---------- By---------------------------------------------------- (Representative ) (Title) NoTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material.