Montgomery Hardwood Flooring Co., Inc.

In the Mn tter of MONTGOMERY HARDWOOD FLOORING COl1PAN Y, INC. and INTERNATIONAL WOODWORKERS or, AMERICA, CIO Case No. 1.5-C-1120-Decided January 15, 1947 Messrs . Thomas S. Adair and C. Paul Barker, for the Board. Rushton,, Stakely and Johnston , by Messrs. Charles Stakely and W. C. Johnston, of Montgomery, Ala., for the respondent. M2% George J. Hadjino ff, of counsel to the Board. DECISION AND ORDER On August 7, 1946, 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 filed ex- ceptions to the Intermediate Report and a supporting brief. The Board has reviewed 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions and recommendations of the Trial Examiner. 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, Montgomery Hardwood Flooring Company, Inc., Montgomery, Alabama, and its officers, agents, successors, and assigns shall : ' Although we agree with the Trial Examiner's finding that the respondent failed to give employment to Bodie and Stovall on March 11, 1946 , for a non-discriminatory reason, it may be noted that, in view of the fact that these men were found to have been discrimina- torily denied employment earlier in January 1946 , the respondent was at all times there- after under a continuing duty- to remedy that unfair labor practice by giving employment to them without regard to the existence of the policy which was the basis of the refusal to give them employment on March 11, 1946. 72N L.R B,No 20. 113 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Discouraging membership in International Woodworkers of America, CIO, or any other labor organization of its employees, by refusing to hire any qualified person, or discriminating in any manner in regard to the hire of any qualified person, because of his membership in or activity on behalf of any labor organization; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self -organization,to form labor organizations, to join or assist International Woodworkers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 2 (a) Offer to Will Bodie, Jimmie Stovall, and Henry Walker immediate employment at. its plant at Montgomery, Alabama, con- sistent with their respective experiences and skills, with all rights of seniority and other privileges that would have accrued had they been offered and had they accepted employment from the respondent on January 4, 1946; (b) Make whole Will Bodie, David Byrd, Jr., Jimmie Stovall, Henry Walker and Willie C. Floyd for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination, January 4, 1946, to the date of the offer of employment or actual employment, less his net earnings during that period, with the following exceptions: (a) back pay for Willie C. Floyd shall not be computed beyond January 25, 1946, oli which day he began a neces- saryabsence from all work due to deaths in his family and his own subsequent illness, from which he did not recover sufficiently to engage in any employment until the date of his employment by the respon- dent on April 24, 1946; (b) back pay for David Byrd, Jr., shall be computed up to the date when he obtained his present employment, which-is more attractive to him financially than employment with the respondent; (c) back pay for Henry Walker shall not be computed for the period between January 10, 1946, and the date in the last week' in January on which he took employment with the A. A. C. Fertilizer Company in Montgomery, for the reason that during this period he 2 The Board expressly reserves the right to modify the back pay and reinstatement pro- visions if made necessary by a change of circumstances in the future, and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now appearing. MONTGOMERY HARDWOOD FLOORING COMPANY, INC. 115 made no effort to obtain employment and devoted himself to his personal affairs at home; 8 (c) Post at its plant in Montgomery, Alabama, and in its yard at the plant, copies of the notice attached to the Intermediate Report marked "Appendix A." 4 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 it immediately upon receipt thereof and maintained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said noti+res are not altered, defaced, or covered by any other material; (d) 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. INTERMEDIATE REPORT Thomas S. Adair, Esq, and C Paul Barker, Esq., of New Orleans, La., for the Board. Charles Stakely, Esq., and W. C. Johnston, Esq., of Rushton , Stakely, and Johnston, of Montgomery , Ala., for Respondent. STATEMENT OF THE CASE On a second amended charge filed June 10, 1946, by International Wood- workers of America, CIO, herein referred to as the Union, the National Labor Relations Board, herein called the Board, on June 18, 1946, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued its com- plaint and thereafter, on June 24, 1946, its amended complaint against Mont- gomery Hardwood Flooring Company, Inc, of Montgomery, Alabama, herein 3 Without citing the decision , the Trial Examiner undertook to recommend ( I R p. 128, par 2 ) that the doctrine of Matter of Ohio Public Service Company , 52 N. L. It. B. 725, 729, with respect to deductions from back pay for periods of idleness , should be applicable in computing back pay herein We see no reason at this time to depart from the doctrine of that case. Accordingly , at the compliance stage, the respondent may not only show that an employee discriminatorily denied employment on January 4, 1946, thereafter willfully incurred a loss of earning by unjustifiably refusing to accept , or unjustifiably giving up, desirable new employment , but may also show absence of reasonable efforts to obtain such employment Registration with a United States Employment Service Office shall be regarded as conclusive evidence that a reasonable search for employment has been made, and where such registration is shoen , the respondent will be restricted to showing that the employee, without just cause, rejected an offer of , or gave up , desirable new employment. If the respondent establishes a failure to register with the United States Employment Service, it may then proceed to prove that no other reasonable effort to obtain desirable new employment has been made . ' All the evidence , including circumstances which would explain the failure to make such effort, shall be considered in determining whether there has been such a reasonable effort. ( See also Matter of Laister-Kauffmann Aircraft Cor- poration, 63 N. L R. B 1367.) 4 Said notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order " In the event that this Order is enforced by decree of a Circuit Court of Appeals , there shall be inserted , before the words "A Deci- sion and Order ," the words : "A Decree of the United States Circuit Court of Appeals Enforcing 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called Respondent, alleging in the amended complaint that Respondent had en- gaged in and is engaging in unfair labor practices within the meaning of Section S (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 the amended com- plaint together with the copies of the second amended charge and a notice of hear- ing on the amended complaint were duly served upon the Union and Respondent. Concerning unfair labor practices, the amended complaint alleges that Re- spondent, on or about January 4, 1946, refused employment to five named persons, to wit: Will Bodie, David Byrd, Jr, Willie C. Floyd, Jimmie Stovall and Henry Walker, and each of them, solely by reason of their adherence to and activities on behalf of the Union, and at all times since that date has continued to refuse and fail to employ two of such persons, namely David Byrd, Jr, and Henry Walker; that this refusal to employ was applied to Willie C Floyd at all times between January 4, 1946 and April 24, 1946, and that on or about March 11, 1946, Respondent terminated the employment of Will Bodie and Jimmie Stovall be- cause of their adherence to and activities on behalf of the Union and at all times since that date has refused to reinstate either of them to his former or sub- stantially equivalent employment.' The complaint further alleges that Re- spondent by its officers, agents, and representatives, particularly J. A Beasley, J D Cullilei, and J. R. Stowers. committed, authorized, instigated. and acquiesced in statements and convers.itions discouraging activities on the part of its employees for purposes of collective bargaining and other mutual aid and protection, and discouraging membership and activities among its employees in the Union, beginning on or around January 4, 1946, and continuing to the (late of the issuance of the complaint, and that by the conduct above described, Re- spondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. The answer of Respondent duly filed heieni admits the allegations of the amended complaint pertaining to its corporate structure and the nature and extent of its business, but denies all the allegations of the amended complaint pertaining to the commission of any unfair labor practice. Pursuant to due notice, a hearing on the amended complaint was held in Montgomery, Alabama, on July 1, 2, and 3, 1946, and in Biloxi, Mississippi, oil July 5, 1946, before the undersigned, R N Denham, a Trial Examiner duly designated by the Chief Trial Examiner The Board and Respondent were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses and to present evidence pertinent to the issues 2 At the close of presentation of all evidence the parties waived argument before the Trial Examiner and also the privilege of filing briefs with the Trial Examiner. I The complaint does not indicate when, subsequent to January 4, 1940, these two men were employed by Respondent The proof, however, shows that they were hired on March 11, 1940, and teiminated on the same day The testimony of J. A. Beasley, was taken at his home in Biloxi, Mississippi, where he is confined by it critical and incapacitating illness Beasley's precarious condition led to a stipulation joined in by all counsel that direct examination and cross-examination of him as a witness produced by Respondent would be waived , that the Trial Examiner be requested to call on Beasley in company with the official reporter but with no other persons present representing any of the pai ties, and there, in the absence of counsel, after swearing the witness, conduct whatever examination be deemed appropriate, and that the record of such examination so conducted would be accepted by all parties as the testimony of Beasley in this matter. Pursuant to the foregoing request, the examination of Beasley was conducted by the Trial Examiner in Biloxi, Mississippi, on July 5, 1946, and recorded by the official reporter in the absence of any of the parties The testimony so taken was thereafter read by the reporter to counsel for all parties and a stipulation entered on the record accepting the testimony of the witness as previously agreed upon 1VIONTGOMERY HARDWOOD FLOORING COMPANY, INC. 117 Upon the basis of the foregoing and on the entire record, atter having heard and observed the witnesses and considered all the evidence offered and received, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent is, and since January 3, 1946, has been an Alabama corpora- tion having its principal office and place of business in the city of Montgomery, Alabama, where it is engaged in the manufacture of hardwood flooring. During the period from January 4, 1946 to May 31, 1046, Respondent purchased lumber valued in excess of $114,000, of which approximately 15 percent was transported in interstate conunerce to Respondent's mill in Montgomery, Alabama. During the same period, Respondent processed at its plant in Montgomery, hardwood flooring valued at more than $155,000, of which approximately 90 percent was sold, transported and distributed in interstate commerce to points outside the State of Alabama. Respondent concedes that it is engaged in comiueice within the meaning of the Act. II THE ORGANIZATI ON INVOLVED International Woodworkers of America, CIO, is a labor organization admitting to membership the employees of Respondent at its plant in Montgomery, Alabama. III THE ALLEGED UNFAIR LABOR PRACTICES Historical Background For a number of years, a partnership in which one E B Stowers was the active and principal partner, doing business under the name of Montgomery Oak Flooring Company, and hereinafter referred to as Oak Flooring, owned and operated a mill for the manufacture of hardwood flooring in Montgomery, Ala- bama, and latterly has also owned and op.,rated a mill at Evergreen, Alabama. In 1043 the manufacture of hardwood flooring at the Montgomery plant was suspended when the United States Government took over the property for use as a storage yard for lumber Up to that time J A Beasley had been the general superintendent at the Montgomery plant When operations were terminated and the activities consisted only of yard operations, receiving, stacking and shipping lumber, Beasley devoted only a part of his time to the Montgomery plant and a greater part of it to the operations at Evergreen J R Stowers, who had pre- viously been an inspector at the Montgomery plant, was placed in charge of all the yard operations while it was under government control and in that capacity was in general charge of all emplo> ees at that plant. In the middle of 1945, with approximately 60 persons on the yard pay roll, the Union began the organization of the employees Shortly thereafter, in July 1945, in an election held among the production and maintenance employees, the Union was successful by a vote of 60 to 3 This vote corresponds with the division of races among the eligible employees, there being 60 colored and 3 white. After the election, Oak Flooring entered into bargaining negotiations with the Union which resulted in a collective bargaining contract dated October 8, 1945. This was, in general, a typical labor union contract, the pertinent parts of which are: (1), a provision that all the officers of the Union were to enjoy "top seniority" and (2), a provision that in the event of a sale of the property to a third person all the provisions of the contract would be automatically terminated. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With the termination of hostilities in the Pacific, the Government ended its shipments of lumber to the yard for storage and entered upon a program of removing such lumber as was on hand. By the end of the year, all government lumber had been removed. This called for a progressive reduction of force until, by the latter part of December 1945, the only employees remaining, other than clerical and supervisory, consisted of 12 laborers, 5 of whom were the officers of the Union.' Several weeks prior to the first of 1946, negotiations for the sale of the plant to those who now own or control the Respondent corporation had progressed to the point where, pending a formal transfer, Oak Flooring, at the request of the prospective purchasers, recalled Beasley to active supervision at the plant and devoted its entire efforts to cleaning up the place, removing installations that had been required in the government operation, overhauling machinery and equipment, none of which had been used for over 3 years, installing new equip- ment and removing the two old boilers and installing two new ones All this work was done by the 12 remaining employees under the supervision and direction of Beasley and Stowers. The expense was reimbursed to Oak Flooring by Respondent. The actual formal transfer took place as at the close of business on January 3, 1946. By that time, the reconditioning work had not been completed. The old boilers had been taken out of place. The new boilers had been received and one had been put in place ready to be bricked in while the other had been removed from the railroad car and was ready for placing. The new machinery installa- tion had not been completed, nor had the other general work been finished. The mill was not made ready for and did not get into production until about 6 weeks after the transfer to Respondent on January 4, 1946. The record indicates that so long as Oak Flooring operated the yard and up to and including January 3, 1946, the relations between Oak Flooring and the Union were normal and without friction. There is no evidence of any sugges- tion of unfair labor practices having existed prior to January 4, 1946. On January 3, 1946, Respondent, Montgomery Hardwood Lumber Company, Inc., was organized as an Alabama corporation, its incorporators being J. W. Wells, I Borman and H. S Shepherd. Wells and Shepherd are old-time lum- ber men in that vicinity and are interested in or operate other mills. Shepherd became the president of Respondent. There is no connection of any character be- tween Wells, Berman and Shepherd or any other person actively interested in Respondent, and Montgomery Oak Flooring Company which was a partnership largely made up from the Stowers family. January 3, 1946, was the last day of operation of the plant under the management of Oak Flooring. On the follow- ing morning, January 4, 1946, Respondent took control. Respondent had arranged with Beasley, although he was then ill but still able to attend to business, to remain on under the management of Respondent and take charge of the completion of the installation of the new equipment, continuing in his capacity of general superintendent and to have charge of the production operations in the mill. - A. J. Smithart, the machine maintenance man for Oak Flooring, was also retained to act as mill foreman. Stowers was not reemployed by the new company but remained at the yard for a period of about 2 weeks to superintend getting together some of the property of the old company which was to be moved to the Evergreen plant, to help Beasley when he could, and to generally assist in effecting the transfer. During this 2 weeks' period, 'Stowers was actually on the pay roll of Respondent for 4 days while performing some special work for the Respondent Some effort was made to 8 The Local Union involved was limited to employees of Oak Flooring. MONTGOMERY HARDWOOD FLOORING COMPANY, INC. 119 show that Stowers was employed by Respondent during the early days of Janu- ary as a supervisory employee. The proof reflects however, that whatever em- ployment he had from Respondent was incidental and that his presence on the yard was primarily in the interest of the old partnership in whose employ he continued and in whose employ he now is. At the close of business on January 3, 1946, all 12 of the laborers in the yard were paid off and advised by Beasley that the mill had changed hands and that beginning the next morning the new company would be operating the place. Beasley told these men that there would be some work to be done and that he did not then know exactly how many he could use, but that they were going to have some discussions that evening to decide what to do and that he wanted them back the next morning when he would tell them what to expect . The fol- lowing morning all 12 men reported in front of the office at the usual hour of 7 o'clock and stood around waiting to be put to work. Following a considerable period of disuse, the time clock at the office had been repaired and was again put into use this morning . Beasley had been supplied with or had prepared a list of the names of those to be returned to work , and with this in his hand came outside and began making his selections , sending the men in one at a time to be given clock numbers and to receive instructons as to the use of the clock. The testimony of the men who were assembled waiting to be put to work as to what, if anything , Beasley said to them that morning, is not clear. It is to be expected that he would have had some remarks to make , and although the testimony of the negio laborers is silent on the subject , that of Smithart is to the effect that as he came through the gate going toward the mill, he saw Beasley talking to a group of 10 or 12 negroes . His testimony on"this subject is: I heard Mr. Beasley tell the boys that he would use what he had jobs for, but there wasn't any more contract ; but [that] this was a new company and there wouldn't be any new contracts In other words, they would not be working under a contract, but he would give all jobs that he had jobs for. Beasley could not recall whether he had made such a statement , but the follow- ing from his testimony lends confirmation to Smithart's testimony : I knew there was a union there. I knowed the company we had when I worked for Stowers ( Oak Flooring ), there was a union, but I understood that when the other company come , there was no union at all, and I could just hire who I wanted. and again : Q Did you ever discuss labor unions with Mr. Shepherd? A. Well, No. The only time I think Mr. Shepherd or somebody, Mr. Wells, said sometimes just go ahead and hire what I want and just go in and not pay any attention to them. It is found that on the morning of January 4, 1946, Beasley made the statement that from then on, with the new company, they would not be working under a contract, obviously meaning to convey to the officers of the Union that they no longer were protected by "top" seu4ority. Following this statement, Beasley called out the seven men who were not officers, sent them in to the time clock one at a time, and ignored the five who were the officers. Concerning his method of selection, Beasley testified : Q. Da you remember how you picked out the men that you put to work? A. I just picked the big husky ones and the ones I know would work, the ones I seen work myself. * * * * * * 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and referring to Bodie: . . . lie is a good worker . I was going to put him to work on the ripsaw when I got to the stage that we was running . He is a ripsaw man. He is a little fellow , wears glasses , and when I hired the men I did, a half a dozen or a dozen or whatever it was, I just picked the biggest men because I had these boilers to move and some cleaning up to do Beasley protested several times during the course of his testimony , that he knew only Bodie and Byrd as officers of the Union, and that being officers did not have any bearing on his failure to hire any of the men here involved . His reasoning and his actions do not coincide. Beasley stated that he had every intention of hiring Bodie and Byrd for production jobs when the mill got into production; that he wanted all the old men on the pay roll , because one can do a better job of running a mill with experienced men ; that he hired only the huskiest men that first clay ; that he hired some others the following week but none of the five with whom we are here concerned , although they were hanging around the plant for a week or ten days after January 4, and that he had known Bodie and Byrd for many years as production employees in the mill before 1942 For several weeks prior to January 4, Beasley had had all five of these men working for him at common labor jobs, moving the boilers, unloading brick, digging, etc. He knew what they could do ; in fact, (luring that time , he had used Bodie, Byid and Floyd , from time to time , as gang leaders, and they, with Stovall and Walker, had fully carried their share of the heavy work There is no evidence that they were unsatisfactory in their performances , and from a physical stand- point, all have the apparent physical capacity to handle almost any common labor job, that being the only kind of work then being done . Bodie did not testify as to his weight and height, but he gives the appearance of being about 5 feet 9 inches, and what might be termed "solidly built" He is 49 years of age and has worked at this plant from the time it was built with no record of absence because of sickness Willie C. Floyd is an excellent physical specimen , 48 years of age, weighs 203 pounds and stands 6 feet 3 inches high. Except for an illness early this year , he too has a record of no time lost on account of illness and, as a lumber stacker. with Jinimie Stovall , handled the heaviest types of timbers; Stovall is 30 years of age, weighs 197 and stands 5 feet 10 inches . He, too, has a record of no absence from illness . David Byrd, Jr., an old Oak Flooring employee, is 30 years of age , weighs 180 pounds and stands 6 feet 2 inches, with an excellent work record ; he, too, was one of those Bealsey had scheduled to return to work when production started, because he was a good worker ; Henry Walker is about the size of Bodie, 42 years of age and weighs 141 pounds . All his work at \he plant has been heavy common labor. Against these, in t situation where the physical ability of the man to do heavy work was said to be the measure of those hired, the record reflects the capacity of only lour of those hired . Jimmie Dee, or "Puerto Rico ," as he was called, according to Beasley , "was a little fellow, but he was the darndest worker you ever seen . In the warehouse so far as cleaning up, you could put him to cleaning up, and he would out work a dozen other men." Dee was not present on January 4, but was hired from among a group which included the five officers, sometime during the following week. Tom Johnson, hired January 4, and something of a favorite with Beasley, was 66 years of age. Concerning him Beasley said: "He worked around, did a little carpenter work for me, and could do most anything-say I wanted some sawing and hammering-piddled around in the mill, so I just left him on because I had a lot of that to do." Curley Sankey, hired January 4, was a cripple incapable of heavy work, who had been employed as a stacker, with Jimmie Dupree as his team mate . Neither MONTGOMERY HARDWOOD FLOORING COMPANY, INC. 121 of these men handled heavy timbers, but stopped their stacking when the lighter boards were not available. Dupree suffered from a back ailment that kept him from heavy work. The selection on January 4 of three men out of the seven, who obviously were incapable of performing the heavy work required to be done, at the same time leaving five clenily qualified men, two of whom were employes of many years' standing and well known to Beasley, does not square with Beasley's statement that he "just picked the big husky ones." H F. Shepherd, the president of Respondent, testified that he did not give Beas- ley any instructions as to whom he should or should not hire at the beginning of business on January 4, but simply told him to hire whoever was best suited to do the job at hand He stated that no consideration was given to the union uienibeiahip or affiliations of any of the employees and that the matter of union membership was never discussed by him with his subordinates nor were any insti actions given to them with reference to their conduct toward the employees conceunng union affiliations or activities While this may be technically correct, it is not controverted that on the morning of January 4, when it became obvious to the Union's officers that they were being intentionally ignored, Byrd communicated that fact to Ingalls, the Union's busi- ness representative. Ingalls visited the plant immediately, remained a few min- utes and then informed the men that he would have to see Shepherd before he could do anything Later in the clay. Ingalls advised the men at the union hall that lie had seen Shepherd but that nothing could be done about a contract until Shepherd had talked with Wells 4 It is further to be noted that Charlie Johnson, the night watchman, in testify- ing concerning a conversation with Beasley on January 7, quoted Beasley as say- ing that "it may come a vote again but the, first one that voted for it would be the first one cut off." Beasley also tended to confirm conversations of this sort with Shepherd and/or Wells on the same subject when he stated : "They was going to hold an election ; that was sometime in the first part of January, and see if the men wanted to belong to it. I looked for the election every day while I was there, but it never did come. The union men was out there, but he says he is going to let them decide for themselves " All these elements lead to the conclusion that the contract and its provisions, especially as pertained to the top seniority of the officers were well known to Beasley on the morning of January 4 when he made his selections and that he was under instructions to give no consideration to the status of the five men here involved, as officers of the Union. The professed ignorance of Beasley, Smithart and Stowers as to the provisions of the contract and the identity of the union officers taxes one's credulity. These men, with the possible exception of Smithart, were responsible for all employment at the time when lay-offs were taking place It is as difficult to believe that Bodie, Byrd, Floyd, Stovall and Walker were retained through all the lay-offs by mere coincidence, as it is to believe that out of the 12 amen available on the morning of January 4, these 5 men were the only ones denied employment, through nothing more than coincidence Bodie and Byrd admittedly were known to Beasley as union officers ; Floyd had been made the subject of banter by Beasley over his position as president of the union; Bodie and Stovall had signed the contract, and a notice explaining scone of its provisions, signed by them, had been on the bulletin born d Walker had been recalled from a lay-off because he was Financial Secre- tary and entitled to top seniority. From these factual elements, together with the 4 Ingalls was not available to testify . This hearsay testimony was offered and received e ithout objection and is accepted as credible evidence. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD others already recited, it is therefore found that Beasley, on January 4, was well advised as to the identity of all the union officers and the contractual provision giving them "top seniority," and that these 5 men constituted that group. The provisions of the contract admittedly had terminated with the transfer of the property following the close of business on January 3, and Respondent was under no obligation to furnish employment to these five men merely because they were officers of the Union, nor was Respondent obligated to hire any men for whom it did not have employment available. But it has now been firmly estab- lished that when an employer has employment available for which he intends to hire persons, he may not refuse employment to an otherwise qualified applicant merely because such applicant is identified with or has been enggaed in activities on behalf of a labor organization.5 That is the charge of this complaint Here, there was employment available ; the Respondent did, in fact, fill that employment by hi ring other persons in addition to the seven selected on January 4, notwithstanding that each of these here involved was fully qualified for such jobs The employment records disclose no men hired on Saturday, the 5th ; on Monday, the 7th there were three laborers hired; on Tuesday, the 8th, employment was given to two brick masons and one laborer ; on Wednesday, the 9th, there were no hires; and on Thursday, the 10th, five more laborers were employed. On each of these days, the members of this group were present e and in the customary manner of presenting themselves at the plant waiting to be called, were applying for the available jobs. They were not strangers to Beasley and their qualifications were known to him In short, no reason has been disclosed why they or at least some of them should not have been selected on January 4 and on the succeeding days when they were present and employment was available With all the elements to induce employment of these former employees of the predecessor company present, Respondent has made no showing nor given any persuasive reason for their non-employment other than that they just were not hired. The background picture and the fact that the officers and only the officers fell into this group, give a basis for a premilinary assumption that their treat- ment stemmed from their status as officers. Willie C Floyd, President of the Union, who impressed the undersigned as a sincere and straightforward witness striving to relate his experiences to the best of his ability, testified that, on the morning of January 4, as the others were being called out of the group, he went over, stood by the clock not far from Beasley and watched the others punch in ; that Beasley had a list from which he called off the names and that : ... I went in and seed what happened. I went in and stood right at the clock and seed how he showed them how to punch the clock, and he showed them all how to punch the clock and I was standing up there, and I asked him about myself, and he says, "No, I can't put you to work. They held a- meet, ing last night, and I have a list of the mans what they give me to pick to work." That is what he told me. Beasley was not questioned as to this specific incident, but in view of his other testimony concerning the absence of any instructions from Shepherd or Wells as to who should be hired, and his consistent denials of all other conversations attributed to him, it is assumed he would have denied this, also. However, it is found that the incident took place substantially as related by Floyd. Charlie Johnson, the night watchman, testified that Beasley frequently came to the plant at 6: 30 a. m. and as Johnson was preparing to leave, often talked s N. L R B. v. Waumbec Mills, Inc., 114 F. (2d) 226 (C.C. A. 1). e Except Walker who did not return to the plant after January 9. MONTGOMERY HARDWOOD FLOORING COMPANY, INC. 123 to him on various subjects On January 7, according to Johnson, Beasley, during the course of such a conversation. remarked that they had "cut off" all the union officers. Although Beasley denied this, Johnson's testimony is credited On the same day. in a similar conversation with Toni Johnson, hereinbefore referred to, Beasley, according to Johnson, remarked that he would like to take back all the old men but would not take back the union officers, specifically naming Bodie and Byrd, because they would make trouble for him. This statement, too, was, denied by Beasley, but is credited nevertheless. In my opinion, the foregoing facts alone justify a finding that the failure to. hire these men on January 4 and subsequent days, was intentional and grew out of their official positions in the Union. However, it is the testimony of Bodie, Byid, and Floyd that on January It. Bodie, becoming impatient, announced to the others that lie intended to ask Beasley why they were being ignored ; that Bodie, Byrd, and Stovall approached Beasley and that Bodie, acting as spokes- man made his inquiry. Byrd describes the incident as follows : Will says, "Mr. Beasley, how come you have us keeping coming back out here and don't put us to work?" Mr. Beasley said, "Well, Will, I am going to tell you. You all are union officers, and they don't want the Union in here, and if we get rid of the Union officers, we can break up the Union." According to all the witnesses to this incident, Beasley was called away by Smithart almost as soon as this statement was made, and they had no oppor- tunity to talk ,to him about it further, but having received this information, they decided to quit reporting to the plant and to do something about seeking employ- inent elsewhere Floyd testified that he had left the group for a few moments when this incident occurred, but that on his retuin, the others related it to him. Beasley denies marking any such satyment or having any conversation with Bodie at any time during this period, beyond greeting him and the other men at the beginning of the days. It is a bold and unusual statement to come from one who is familiar with the limitations imposed on employers by the Act, but the corroboration is so complete and convincing from generally credible witnesses, that Beasley's denial is not accepted and it is found that such statement was made substantially as recited by Byrd. On the basis of the foregoing it is found that on January 4, 1946, when Re- spondent had employment available or in immediate prospect for more than seven laborers, Bodie, Byrd, Floyd, Stovall and Walker were present applying for such employment,' that they and each of them were fully qualified for and capable of performing the work required in the employment then available and were known to be so by Beasley, acting for Respondent ; that on that date and at all times thereafter except as hereinafter noted, they and each of them were ' Contrary to the usual conception of applying for jobs, the Board witnesses testified and it is found that in ciicmnstances such as these , where a crew is being put together , negroes desiring the ordinary laborer jobs do not personally approach the boss and ask for jobs, but genei ally join or form a group near the office , and there make themselves available for selection by the foreman It is a procedure not unlike the shape-up that is familiar in certain heavy industries in the eastern metropolitan areas. In this case, the 12 employees released by Oak Flooring on January 3 were at hand in such a group on January 4, at the request of Beasley. The rejected officers, receiving no contrary instruction or advice, coin tinned the practice until January 11 Since it has been found that the discrimination began on January 4, they were entitled to continue to hold themselves available to Respondent for a reasonable time thereafter , notwithstanding the probability that all of then might have been able to find employ rent elsewhere almost immediately. While they did not spe- cifically and individually apply for jobs with Respondent during the period immediately following January 4, their presence in front of the office each morning was, of itself, an appheation and was regarded by Respondent as such hA DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied and refused such employment by Respondent for the sole reason that they, as a group, constituted the officers of the Union, for the purpose of dis- couraging membership in the Union e_ The discharges of Bodie and Stovall on 'March 11, 1946 On January 26, Beasley was hospitalized and since that time has been in- capacitated. Actual production operations did not get under way until several weeks later. On January 28, 1946, J. D. Cullifer was employed as yard foreman and lumber inspector. As yard foreman, Cullifer had charge of hiring and discharging all yard employees. On February 11, 1946, Harry C Bowman was employed to take Beasley's place as general superintendent During this period and until some elate in April, Smithart continued in a supervisory capacity in the mill. For a number of years, there has been an unwritten rule among the mill operators located in the vicinity of Respondent's plant, to respect each others employment and discourage shifting of employees from mill to mill without formally terminating their employment in one mill before going to another, by refusing employment to men who are still on the active pay roll of one of their neighbors unless it is shown that such an applicant has been released or that the termination of his employment is not objectionable to the mill in which he has been working. Such a determination may be made either from a written release, on a telephone call or may be based entirely on the knowledge of the person to whom the application is made. This is not an inflexible rule and on occasions may be overlooked or forgotten and is not applied where the applicant comes from some industry other than the near-by lumber mills, but is nevertheless a precept in the industry which is more generally observed than otherwise. Following Bodie's conversation with Beasley on January 11, which fell on Friday, Bodie, Byrd and Stovall did not thereafter continue to go to the plant in the mornings waiting to be put to work Walker had abandoned this practice on January 9, but Willie Floyd continued to go out intermittently until Jiu'uary 22.° The Bradley Lumber Company, which is next door neighbor of Respondent, 8It is the uncontradicted testimony of Flood and others that the Union has ceased to exist at the plant because of the non-employment of its officers and because of fear of dis- charge if union activities should be resumed None of the former members now pay dues and no meetings have been held since January 4, 1946 9 Except that considerable attention was paid to it in the hearing, the following incident loses importance in view of the fact that the only supporting evidence which might lend materiality to it is discredited. On January 22, 1946, Floyd and Stovall went to the plant (luring the morning. At that time, Stowers, with the aid of a group of laborers, was attempting to dismantle a heavy piece of equipment referred to as the "re-saw", preparatory to moving it to the plant at Evergieen, Alabama. Floyd and Stovall approached this group and stood around watching the work, occasionally talking with some of the laborers who were there Shortly after they made their appearance, Beasley came up to assist in directing the work. He spoke to Floyd and Stovall by way of greeting and no more. Stovall and Floyd remained on hand for several hours and then getting tired of standing around , walked away toward the Bradley Lumber Company mill. After they had gone some distance, one of them looked around and observed Beasley waving his hand in their direction, at the same time laughing, in which Stowers joined. Hezikah Rives, one of the original 12 who constituted the laborer gang at the close of the business of January 3 and who was re-employed on January 4, testified that he was present on January 22, in the gang working on the re-saw, and that when Floyd and Stovall walked away Beasley said, "Boys, see what the Union has done to those boys. The Union has got them NA alknig on the streets," whereupon Beasley and Stovall burst out in laughter and were joined by Carley Sankey, one of the physically incapacitated laborers employed by Beasley on the morning of January 4. Both Stowers and Beasley denied having participated in this incident Rives' testimony, in general, is so at variance with the weight of the testimony given by other witnesses produced by the Board, in its pertinent detail as to the over-all MONTGOMERY HARDWOOD FLOORING COMPANY, INC. 125 does not operate on Saturday. The following Tuesday, January 15, Bodie went to work for Biadley Lumber Company, and continued there until a short time before the hearing, with a single break which occurred on March 11, 1946. On Januaiy 22, 1946, Floyd and Stovall visited the plant and after standing around for several hours watching a gang move some heavy machinery, without being put to work, went to Bradley Lumber Company where they were immediately hired as lumber stackers Floyd worked only until January 25, when he was called away by a series of deaths in his immediate family and before he could return to work, became ill and was incapacitated by influenza until the middle of April. At the end of his convalescense, although his job was still available to him at Bradley Lumber Company, his nephew who was then employed by Respond- ent, arranged to get him a job at Respondent's plant. On April 24, 1946, he went to work for Respondent and is still employed there. On Saturday, March 9, 1946, Bodie and Stovall, who were then in the active employ of Bradley Lumber Company, went to Respondent's mill which, unlike Bradley, operated on Saturday, and there saw Cullifer, the yard foreman Culli- fer had not, before his employment on January 28, been identified with the mill under any of its previous ownerships and was not acquainted with any of the former employees Bodie and Stovall asked Cullifer for jobs and told him they were lumber stackers and former employees of Oak Flooring According to their testimony, Cullifer asked them if they belonged to the Union Their reply was that they had belonged to the Union when they were with Oak Flooring but that they understood the Union had gone out of existence with the transfer to the new owners, whereupon, according to them, Cullifer replied "That is right up my alley." He then told them to report the following Monday morning for work, but neglected to ask where they had been last employed On Monday morning when they re- ported, Cullifer turned them over to Hezikiah Rives and told him to take them back to the yard and show then what to do. Rives, who had been one of their co-workers with Oak Flooring, knew they were experienced and showed them it place to work whereupon they started in at the lumber stacking job. A few minutes later Cullifer returned, got their names and social security numbers from them and left. There is considerable testimony that after they had been on the job about half an hour, Cullifer and Snuthart passed the stack where Bodie and Stovall were working; that Smrthart glanced in their direction ; that the two men continued on for some little distance, then stopped, and that Smithart was seen to take a book out of his pocket and consult it with Cullifer, after which he and Cullifer returned and again passed the stack on their way toward the nnill. It was apparently intended by this testimony to infer that Snnthart, knowing that Bodie and Stovall had been active members of the Union with Oak Flooring, had consulted some sort of a memorandum book on the subject and advised Cullifer that these men were union members and officers and should be discharged. Cullifer testified that he remembered the incident and that the topic of con- versation had nothing to do with the employees but rather with some lumber which Smitbart thought was not up to specifications and should be rejected, but which Cullifer, in his role as lumber inspector, was called upon to accept under the rules of the Lumber Association. He explained that the book they had con- sulted was not one which Smithart had but one which he himself carried with him and contained the inspection rules of the Lumber Association. At the hear- ing Cullifer displayed the book in question in connection with his testimony. picture and so out of line with any other testimony offered, that it is not felt a finding of a material fact of this nature, uncorroborated and denied by the persons involved. can he justified For this reason. Rives' testnnony is disregarded here and no finding in connection v ith this incident has been made. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He further stated that, although the two employees were not then discussed, on _ the way back to the mill, Smithart mentioned, "I see you have got two of the old men out there," and on further inquiry from Cullifer, identified than as Jimmie Stovall and Will Bodie, but no further Smithart, however, denied having made any such remark and was unable to identify the occasion, saying that he, took many such walks with Cullifer when he had complaints to make about the lumber being furnished him for processing into flooring. Nothing in the testimony of either Bodie or Stovall tends to establish the nature of the conversation between Cullifer and Smithart, and in view of Cullifer's testi- mony which is accepted as credible, there is no evidence of probative value tend- ing to establish any element of an unfair labor practice in this incident According to Cullifer, when he left Smithart he went into the mill where he reported to Bowman that he just acquired two likely looking, experienced lumber stackers. Bowman asked him where they had previously been employed, where- upon Cullifer told him that he had neglected to inquire. Bowman instructed him to make inquiry and if these men were employees of some of the neighboring mills, to let them go 10 Thereupon, Cullifer returned to Bodie and Stovall and asked them where they had been working When they told him they were from Bradley Lumber Company, Cullifer advised them he could not employ them because the Respondent did not engage in taking away their neighbors' employ- ees. He ordered them to quit work, took them to the office, and had the office manager pay them for 1 hour of work, whereupon they were dismissed. It is Cullifer's testimony that he told the men that if they would get releases from Bradley he would put them back to work. It is the testimony of the men them- selves that nothing was said about releases and that they immediately went back to Bradley, resumed their old employment and kept it until some subsequent time when they left Bradley for reasons not pertinent to this controversy. Whether they were told that they could return to work if they got releases from Bradley is not deemed material here, although, when they were paid off after 1 hour of work and dismissed, each was handed an identical memorandum as follows: 3/11/46. Will Bodie (Jimmie Stovall) came to us for a job, we did not know he was an employee of Bradley Lbr. Company . When we learned of this fact we paid him off and told him we did not want any of Bradley Lbr. Co. employees as it would cause hard feelings between the two companies. (S'gned) MocrGW u;Rl Hnwn FLG. Co, W M Mozart , Off Mgr. Both men testified they were sure they could have obtained releases if they had asked for them, but they did nothing about it and the record is silent as to whether they ever advised Bradley of their experience or passed on the memo- randa to (heir foreman at Bradley . In all the circumstances surrounding this incident , admitting that Cullifer, to whom they were strangers , inquired whether they were members of the Union , there still is no substantial evidence of a dis- crimination. They told him before they were hired that they had been members of the Union in Oak Flooring . He hired them nevertheless There is no evi- dence to support even an inference that Cullifer was influenced to discharge them by something Smithart said, and no suggestion that Bowman prompted the discharge for any reason other than the mutual understanding concerning to There is no evidence of anti -union bias on the part of Bowman , but on the contrary, the indication is that Bowman would not tolerate interference by any of the supervisors in the union activities of the employ ecs. MONTGOMERY HARDWOOD FLOORING COMPANY, INC. 127 raids on neighbors' employees It is found, however that while the so -called discharge of these men on March 11 , 1946, was solely because they were then on the active pay-roll of Bradley Lumber Company, as a result of which they were immediately released after such fact was discovered , in keeping with the custom among the mills , they never were , in fact, hired or offered employment on this occasion , and the incident carries no legal significance in arriving at a determination of their present status. General Comment The record reflects numerous conflicts in the testimony, most of which hereto- fore have been dealt with. There are numerous minoi conflicts, or conflicts on non-material factors which have not been disposed of since the matters involved would not affect the findings herein made. They have not been ignored but do not warrant extended treatment The complaint charges Respondent with committing, authorizing, instigating and acquiescing in statements and activites, through Beasley, Stowers and Cul- lifer, chscouraginE activities on the part of its employees for the purposes of collective bargaining The proof reflects that Stowers at no time represented Respondent to the extent that it can be held to account for his actions, nor does it reflect substantial conduct of that character on his part Concerning Cullifer, the most that can be found in the record pertaining to his conduct is that on occasion lie has asked applicants for employment whether they belonged to a union. In accordance with established Board rulings, this is found to be coercive in nature. The conduct of Beasley has already been reviewed and found to have interfered with, restrained and coerced the employees in the exercise of the rights guaranteed them in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, which have been found to interfere with, restrain, and coerce employees of Respondent in the exercise of the rights guaranteed them in Section 7 of the Act, occurring in connection with its operations as 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 burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that respondent has engaged in certain unfair labor practices within the meaning of the Act, it will be recommended that it cease and desist therefrom and take the affirmative action hereinafter set out, which will effectuate the purposes of the Act. It will be recommended that (1) Respondent offer to Will Bodie, Jimmie Stovall and Henry Walker, immediate employment in its plant at Montgomery, Alabama, consistent with their respective experiences and skills as demonstrated by their previous employment with the Montgomery Oak Flooring Company, the predecessor of Respondent, with all rights of seniority and other privileges that would have accrued had they been offered and had they accepted employment from Respondent on January 4, 1946; (2) that Respondent make whole said Will Bodie, David Byrd, Jr., Willie C. Floyd. Jimmie Stovall, and Henry Walker, for any loss of wages they may have suffered between January .4, 1946, and the dates of the respective offers of employment to be made to them by Respondent 733 242-47-vol 72-10 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or, in the case of Willie C. Floyd, to April 24, 1946, less their net earnings," if any, during such period, with the following exceptions: (a) back pay for Willie C Floyd shall not be computed beyond January 25, 1946, on which day he began a necessary absence from all work due to deaths in his family, and his own subsequent illness from which he did not recover sufficiently to engage in any employment until the date of his employment by Respondent on April 24, 1946; (b) back pay for David Byrd, Jr, shall be computed up to the date when be obtained his present employment which he stated on testifying, is more attractive to him financially than employment with Respondent, and; (c) back pay for Henry Walker will not be computed between January 10, 1946, and the date in the last week in January xi hen he took employment with the A. A C Fertilizer Company in Montgomery for the reason that clueing this period lie made no effort to obtain employment, withdrew himself from the labor market of Res- pondent. and devoted himself to his personal affairs at home. Pei iods of idleness experienced by the above-named peisons between January 4 and the date when the offer of reinstatement shall be made, shall not be considered for the purpose of computing back pay where the person to whom such payment is to be made shall have failed, after a reasonable time, to make reasonable efforts to obtain employment elsewhere, to have kept current with the local office of the United States Employment Service, a proper registration, or, having taken other employment, has thereafter voluntarily terminated it to seek em- ployment elsewhere or for any other reason ; but full credit shall be given for time lost by therm by reason of involuntary lay-offs froii other employment which they had taken during the period above referred to, provided they promptly re- newed their USES registration following such lay-offs or otherwise made prompt efforts to secure other employment. In this connection, however, it is found that the period between January 4, 1946, and January 11, 1946, shall not be excluded from such computation except as to Henry Walker, to whom the applicable date shall be January 9, 1946, since that period was directed to their efforts to obtain reemployment from Respondent It will also be recommended that Respondent post appiopriate notices in conspicuous places in its plant in conformity with the form of notice attached hereto as "Appendix A" and made it part of this report. Because the over-all attitude of Respondent as reflected by the record is such as to indicate that there is danger that Respondent may at some later date undertake other means pro- scribed by the Act to interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act, the notice herein re- ferred to has been so drafted as to include a commitment by Respondent that it will not in any manner interfere with, restrain, or coerce its employees in the exercise of such rights. The fact has not been ignored that on January 4, 1946, there were 12 applicants for employment and only 7 Wien hired, and that there is a possibility that even without discrimination, under the basis of selection described by Beasley in his testimony, some of these officers might not have been given employment on that day; however, the discrimination took place against them as a group and not as individuals, and it is not felt that it is the function of this Trial Ex- aminer or of the Board to attempt to determine which, if any, of these officers "By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, 8 N L R B 440 Monies received for work performed upon Federal, county, municipal, or other work-relief projects shall he considered as earnings. See Republic Steel Coi pomatioir v N L R B, 311 U S 7 MONTGOMERY HARDWOOD FLOORING COMPANY, INC. 129 would have been denied employment in any event had there been no discrimina- tion. It is therefore found that the disciimmation was practiced against all of them and must be considered without reference to such speculative possibili- ties since all appear to be and are found to have been equally capable of perform- ing the labor required of the employees hired on that morning. The uncertainties, if any such exist, are of Respondent's creating. It, not the Board, must accept the responsibilities created by them. On the basis of the foregoing findings of fact and upon the entire record here- in, the undersigned reaches the following : CONCLUSIONS OF LAW 1. International Woodworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act 2. Respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire of Will Bodie, David Byrd, Jr, Willie C Floyd, Jimmie Stovall, and Henry Walker, thereby discouraging mem- bership in the International Woodworkers of Ameiica. CIO, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commeice 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 the Respondent, Montgomery Hardwood Flooring Company, of Montgomety, Alabama, its officers, agents, representatives, suc- cessors, and assigns shall : 1. Cease and desist from (a) Discouraging membership in International Woodworkers of America, CIO, or any other labor organization, by refusing to hire any qualified person or dis- criminating in any manner in regard to the hire of any qualified person, because of his niembeiship in or activity on behalf of any labor organization; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join or assist Inter- national Woodworkers of America, CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act ; (a) Offer to Will Bodie, Jimmie Stovall, and Henry Walker, immediate em- ployment at its plant at Montgomery, Alabama, consistent with their respective experiences and skills, with all rights of seniority and other privileges that would have accrued had they been offered and had they accepted employment from Respondent on January 4, 1946. (b) Make whole the said Will Bodie, David Byrd, Jr, Jimmie Stovall, and Henry Walker, together with Willie C Floyd, for any loss of pay they and each of them may have suffered by reason of the discriminations against them, by the payment to each of them of such sums of money as would equal that which 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they respectively would have earned in the normal course of employment in the operations of Respondent from the date of the discrimination . to wit: January 4. 1946 , to the date of the offer of reinstatement or actual reinstatement , less their respective net earnings during that period , all to be computed in accordance with the In ovisions set forth in Section V of the foregoing Intermediate Report entitled "The remedy." (c) Post at its plant in Montgomery, Alabama . and in its yard at the plant, in places where notices of interest to employees usually are posted , copies of the notice attached hereto marked "Appendix A." Copies of said notice , to be fur- nished by the Regional Director for the Fifteenth Region, shall, after being duly - signed by Respondent, be posted by it immediately upon receipt thereof and maintained for sixty ( 60) consecutive days thereafter . Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material ; (d) Notify the Regional Director for the Fifteenth Region in writing, within ten (10 ) clays from the date of the receipt of this Intermediate Report, what steps Respondent has taken to comply with the foregoing recommendations. It is further recommended that unless on or before ten (10 ) days from the date of the receipt of this Intermediate Report, Respondent has notified said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. As provided in Section 33 of Ai title II of the Rules and Regulations of the National Labor Relations Board , Series 3. as amended , effective November 27, 1045, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring this case to the Board , pursuant ti> Section 32 of Article 11 of said Rules and Regulations file with the Board. Rochanibe :iu Building, Washington 25, D. C, an original and four copies of a statement in writing , setting forth such exceptions to this Intermediate Report or to any other part of the record or proceeding (including rulings upon all motiolis 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 state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board , request therefor must be male 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 Boaid an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director- s N. DEN HAM, Trial Examiner Dated August 7, 1946. APPENDIX A NoTTCE 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 rights to self-organization, to form labor organiza- MONTGOMERY HARDWOOD FLOORING COMPANY, INC. 131 tions, to join or assist INTERNATIONAL WOODWORKERS OF AMERICA, affiliated with the C. I. 0., or other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to Will Bodie, Jimmie Stovall, and Henry Walker, immediate employment consistent with their respective experiences and skills at our plant in Montgomei y, Alabama, with all rights of seniority and other privi- leges which would have accrued to them had they been offered and had they accepted employment from us on January 4, 1946. We will make whole Will Bodie, David Byrd, Jr, Willie C. Floyd, Jimmie Stovall and Henry Walker, for any loss of pay they may have suffered by i eason of our discriminatory refusal to provide them with employment on January 4, 1946, between said elate and the date of our offer of reinstatement, or in the case of Willie C. Floyd until his reemployment by us on April 24, 1946, less their net earnings during that period as defined by the Trial Exam- iner in his Intermediate Report issued herein; such loss of pay will be com- puted in accordance with the formula laid down by the Trial Examiner in his Intermediate Report above referred to, in the Section thereof entitled "The remedy," a copy of which Intermediate Report is on file in our office and open to inspection by any. interested party during reasonable business hours. All our employees are free to become or remain members of the above- named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employ- nlent against any employee because of membership in or activity on behalf of any such labor organization. MONTGOMERY HARDWOOD FLOORING Co, By ----------------------- -------------- (Representative) (Title) Date ------------------------ This notice must remain posted for sixty days from the date hereof and must not be altered, defaced, or covered by any other material.