Reynolds & Manley Lumber Co, Inc.

188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD REYNOLDS & MANLEY LUMBER COMPANY , INC. and INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS. Case No. 1O-CA-1125. November 30, 1951 Decision and Order On March 21, 1951, Trial Examiner Peter F. Ward 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 in violation of Section 8 (a) (1), (3), and (5) of the National Labor Relations Act and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed its exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. 1. On November 18, 1949, the Smelter Workers filed a petition for certification as the bargaining representative of the employees at the Respondent's mill. Although the Smelter Workers was at that time, and is now, in compliance with the provisions of Section 9 (h) of the Act,' the CIO, the parent federation with which the Smelter Workers was then afliliated,2 did not come into compliance until December 22, 1949. In-its objections to the conduct of the election held pursuant to the Board's Decision and Direction of Election,3 the Respondent argued that the Board was without authority to conduct an investigation of the question concerning representation raised by the petition, because of the CIO's noncompliance with the provisions of Section 9 (h) when the Smelter Workers filed its petition. However, under its then cur- The relevant portion of Section 9 ( h) provides : No investigation shall be made by the Board of any question affecting commerce con- cerning the representation of employees , raised by a labor organization under subsec- tion ( c) of this section . . . , unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve -month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party or affiliated with such Party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches , the overthrow of the United States Government by force or by any illegal or unconstitutional methods. 2 The petition for certification did not show the affiliation of the Petitioner with the CIO However, such affiliation , which was unilaterally added to the petition by the Regional Office, was admitted at the representation case hearing 3 Reynolds t Manley Lumber Company, Inc , 88 NLRB 1300 ( March 20, 1950) 97 NLRB No. 44. 1 REYNOLDS & MANLEY LUMBER COMPANY, INC. 189 rent interpretation of the Act's provisions,' the Board did not require compliance by the parent federation of international unions. Accord- ingly, the Board overruled the Respondent's objections and certified the Smelter Workers as the collective bargaining agent of the Respond- ent's employees.' Following the certification, the Respondent refused to bargain upon the Smelter Workers' request, defending its refusal on the ground that the Board was without authority to conduct the representation investi- gation in view of the CIO's noncompliance. Accordingly, it now argues that the Board's certification of the Smelter Workers as the bar- gaining representative of its employees did not legally establish the Smelter Workers' majority status. The Trial Examiner, in finding a violation of Section 8 (a) (5), concluded that this defense was without, merit because, as the Board had already determined in the representa- tion case, the CIO did not have to comply with the provisions of Section 9 (h). Therefore, however, in the Highland Park case,6 the Supreme Court of the United States decided, adversely to the Board, that parent federations such as the CIO must comply with the provisions of Section 9 (h) of the Act. Section 9 (h) therefore required compliance by the CIO before the Board could make an investigation of the question concerning representation raised by the Smelter Workers' petition. It follows that the Board's reasoning in overruling the Respondent's objections to the election was erroneous, and that, as a result, the Trial Examiner's reliance on this reasoning as a ground for rejecting the Respondent's defense to the alleged refusal to bar- gain was not dispositive of that defense. The Trial Examiner, in his Intermediate Report, nevertheless pos- tulated that even assuming that the Board was in error in interpreting the Act's affidavit compliance provisions, the representation proceeding was valid because no investigation of the Smelter Workers' petition had, in fact, been made until after the CIO came into compliance. The Trial Examiner thus anticipated what is now the crucial issue in this case, but we believe he resolved that issue incorrectly. It has been well established since early in the administration of the amended Act that: - Every step in a proceeding initiated under Section 9 (c)-the preliminary administrative review of the facts, the hearing, the Board Decision and Direction, the election itself, and the pro- ceedings on Challenges and Objections-constitute "investigation" of the question within the meaning of Section 9 (f) and (h) .7 + Northern Virginia Broadcasters , Inc, 75 NLRB 11 (1947) s Reynolds & Manley Lumber Company, 90 NLRB 2112 ( August 22 , 1950). ON L. R. B v Highland Park Manufacturing Co., 341 U. S. 322 ; 71 S. Ct. 758. 7 7 Rite-Form Corset Company, Inc., 75 NLRB 174. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon receipt acid docketing of the Smelter Workers' petition on November 18, 1949, the Tenth Regional Office of the Board, following customary procedure, undertook to obtain information regarding the effect of the Respondent's operations on interstate commerce, rate of employee turnover at the Respondent's mill, number of affidavit cards supporting the Smelter Workers' petition, and other facts requisite to an issuance of a notice of representation hearing. The Board's field examiner filed his investigation report containing infor- mation on these matters on December 15, 1949. There can be little doubt but that these procedural steps were a "preliminary adminis- trative review of the facts," and that such action "constituted `inves- tigation' of the question within the meaning of Section 9 (f) and (h)." It is therefore clear that the Board's "investigation" was actually undertaken at a time before December 22, 1949, when the CIO was not yet in compliance." Because the Board was barred from making any investigation at that time, we are constrained to find that the entire representation proceeding, including the post-compliance elec- tion and certificate, was conducted without authority of law and invalid from the outset.9 Section 18,1° recently enacted as an amendment to the Act, provides in the proviso thereto that no liability can be imposed for "failure to honor" an election or certificate before October 22, 1951, the effective date of Section 18, where, as here, the election and certificate were invalid because of the CIO's failure to comply with Section 9 (h) before December 22, 1949. Under the circumstances of this case, we find that the Respondent has failed to honor the election and certificate within the meaning of Section 18, so that no liability can be imposed therefor. We shall accordingly dismiss the 8 (a) (5) allegation of the complaint 11 8 We must reject the Trial Examiner's conclusion that the Regional Director 's issuance of the notice of hearing in the representation case constituted in effect a refiling of the Smelter Workers' petition. 9 The fact that the impediment raised by the CIO's noncompliance was removed by the time the representation case certification and the complaint herein were issued cannot serve to validate the representation proceeding See N. L. R B. v. Clark Shoe Co, 189 F. 2d 731 (C. A. 1), decided June 19, 1951. Cf. Highland Park Manufacturing Co , supra. to Section 18 provides : "No petition entertained , no investigation made, no election held, and no certification issued by the National Labor Relations Board, under any of the provi- sions of section 9 of the National Labor Relations Act, as amended , shall be invalid by reason of the failure of the Congress of Industrial Organizations to have complied with the requirements of section 9 (f), (g), or ( h) of the aforesaid act prior to December 22, 1949, or by reason of the failure of the American Federation of Labor to have complied with the provisions of section 9 (f), (g), or ( h) of the aforesaid Act prior to November 7, 1947 ; Provided, That no liability shall be imposed under any provision of this Act upon any person for failure to honor any election or certificate referred to above prior to the effective date of this amendment : Provided, however, That this proviso shall not have the effect of setting aside or in any way affecting judgments or decrees heretofore entered under sec- tion 10 ( e) or (f) and which have become final " Public Law 189, 82nd Cong, Chapt. 534, 1st Sess , approved October 22, 1951. 12 Cf. Union Bus Terminal of Dallas, Inc., 97 NLRB 206. REYNOLDS & MANLEY LUMBER COMPANY, INC. 191 2. The Trial Examiner found that the Respondent discriminated in regard to the tenure of employment of Joe Brown on January 11, 1950, in violation of Section 8 (a) (3) and (1) of the Act. In cases where, as here, an employer discharges or refuses to reinstate em- ployees for engaging in a strike or other form of concerted activity which is not per se unlawful or beyond the protective scope of Section 7, and justifies his action on the ground that the employees forfeited the protection of the Act by engaging in particular misconduct, the burden is on the employer to establish, by a preponderance of the evi- dence, the actual fact of each employee's guilt."' We agree with the Trial Examiner that the Respondent did not sustain this burden with respect to its contentions that Brown either engaged in strike violence or was guilty of misconduct in leaving his post on the day of the strike. 3. We also agree with the Trial Examiner that the conduct of the Respondent's vice president, Shearhouse, in questioning Isaac Jack- son, Jr., violated Section 8 (a) (1) of the Act. However, unlike the Trial Examiner, we characterize such questioning as interrogation which interferes with, restrains, and coerces employees in the exercise of the rights guaranteed to employees in Section 7 of the Act.13 Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the Respondent, Reynolds & Manley Lumber Company, Inc., its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Union of Mine, Mill & Smelter Workers, or in any other labor organization of its em- ployees at its yard in Savannah, Georgia, by discriminatorily refusing to reinstate them, or by discriminating in any other manner in regard to their hire, tenure of employment, or any term or condition of employment. (b) Interrogating or in any other manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self-organ- ization, to form labor organizations, to join or assist International Union of Mine, Mill & Smelter Workers, or any other labor organiza- tion, to bargain collectively through representatives of their own 12 Stewart Die Casting Corp . V. N L R. B., 114 F. 2d 849 , 859 (C. A. 7), cert. denied 312 U. S 680; Home Beneficial Life Insurance Co. v. N. L R. B., 159 F. 2d 280, 284-285 (C. A. 4), cert. denied 332 U. S. 758 ; Mid-Continent Petroleum Corp., 54 NLRB 912, 933; Porto Rico Container Corporation, 89 NLRB 1570. See also, Aladdin Industries, Inc., 22 NLRB 1195, 1216-1217; Ohio Associated Telephone Company, 91 NLRB 932. Jefferson Standard Broad- casting Company, 94 NLRB 1416. 13 Standard-Coosa-Thatcher Company, 85 NLRB 1358. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (-a) (3 ) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (a) Offer to Joe Brown immediate and full employment in the same or substantially equivalent position for which he applied and which the Respondent refused him on or about January 11, 1950. (b) Make whole Joe Brown in the manner set forth in the Section of the Trial Examiner's Intermediate Report entitled "The Remedy." (c) Upon request make available to the Board or its agents for examination and copying all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due. (d) Post at its plant in Savannah, Georgia, copies of the notice attached hereto as Appendix A. Copies of such notice, to be fur- nished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by it for sixty (60) consecutive days thereafter in conspicuous places includ- ing all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material .14 (e) Notify the Regional Director for the Tenth Region in writing within ten (10) days from' the date of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges a refusal to bargain in violation of Section 8 (a) (5) of the Act, be, and it hereby is, dismissed. MEMBERS MURDOCK and STYLES 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 : 14 In the event this Order is enforced by a United States Court of Appeals , there shall be inserted before the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." REYNOLDS & MANLEY LUMBER COMPANY, INC. 193 WE WILL NOT discourage membership in INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, or discourage activity in support of that organization or any other labor organization, or discourage any employee from exercising the rights- secured to him under the National Labor Relations Act by means of dis- criminatorily refusing to reinstate or discriminating in any other manner in regard to the hire, or tenure of employment, or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self -organiza- tion, to form labor organizations, to join or assist INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. WE WILL offer to Joe Brown immediate and full reinstatement to his former position and make hire whole for any loss of pay suffered. REYNOLDS & MANLEY LUMBER COMPANY, INC., Employer. By ----------------------------------------------- (Representative) (Title) Dated-------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by International Union of Mine, Mill & Smelter Workers, herein called the Smelter Workers, the General Counsel of the National Labor Relations Board, herein respectively referred to as General Counsel and the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint dated December 14, 1950, against Reynolds & Manley Lumber Company, Inc., of Savannah, Georgia. herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act.' I Said complaint was, with consent of all parties, amended at the hearing and alleged that the Respondent had engaged in and was engaging in further and other unfair labor practices affecting commerce within the meaning of Section 8 (a) (3) and (1) and Section 2 (6) and (7) of the Act. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of the charges, the complaint, and notice of hearing were duly served upon the parties. With respect to the unfair labor practices the complaint; as amended at the hearing, alleges in substance and effect that: (1) On or about August 30 and 31 and divers dates during September 1950, Respondent refused to bargain col- lectively with the Smelter Workers as the exclusive representative of its em- ployees in an appropriate unit; (2) on or about September 8, 1950, the Respond- ent, Fred Shearhouse, its vice president, interrogated Isaac Jackson, Jr., an employee, concerning his intentions to vote in a strike poll to be conducted by the Smelter Workers and induced said Jackson, by promise of benefit, to interrogate its employees about their intention to vote in said poll, and to urge and persuade other employees not to participate in said poll ; (3) on or about January 11 and 12, 1951, Joe Brown, one of Respondent's striking employees, applied unconditionally for reinstatement to his former or substantially equiv- alent position with the result that the Respondent discriminatorily refused to reinstate said Brown and has continued to refuse to reinstate said Brown to his former or substantially equivalent position; and (4) by the acts above described Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by the Act. On or about January 8, 1951, the Respondent filed an answer wherein it ad- mitted certain affirmative allegations of the complaint but denied that it had committed the unfair labor practices alleged 2 Pursuant to notice, a hearing was held at Savannah, Georgia, on January 26, 1951, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel ; the Smelter Workers by an official. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing upon the issues. At the conclusion of the hearing, the General Counsel waived an opportunity to file briefs with the undersigned, but argued orally on the record. Counsel for the Respondent waived oral argument but filed a brief with the undersigned which has been duly, considered. At the close of the hearing General Counsel made a motion to conform the pleadings to the proof. The motion was granted without objection. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Reynolds & Manley Lumber Company, Inc., is a corporation organized under and existing by virtue of the laws of the State of Georgia. It maintains its principal office and only plant at Savannah, Georgia, where it is now, and has been continuously since in or about 1925, engaged in the manufacture, processing, sale, and distribution of lumber and related products. In the course and con- duct of its business operations at the Savannah plant during the year ending December 1, 1950, which period is representative of all times material herein, the Respondent made purchases of lumber and logs valued in excess of $700,000, approximately 40 percent of which, in value, was purchased outside the State 2 The Respondent's answer admits a refusal to bargain and affirmatively alleges certain facts and contentions had in connection with representation proceedings theretofore had before the Board; and certain other proceedings had by and before the Congress of Indus- trial Organizations, which the Respondent contends justified its refusal to bargain with the Smelter Workers. These contentions will be considered further below. REYNOLDS & MANLEY LUMBER COMPANY, 'INC. 195 of Georgia and shipped in interstate commerce to the Savannah plant. During the same period, the Respondent sold finished products consisting principally of pine, hardwood, and cypress lumber, valued in excess of $1,500,000, approxi- mately 70 percent of which, in value, was sold and shipped in interstate com- merce to customers outside of the State of Georgia .3 U. THE ORGANIZATION INVOLVED International Union of Mine, Mill & Smelter Workers is a labor organization within the meaning of Section 2 (5) of the Act, admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain; interference, restraint, and coercion 1. The appropriate unit The complaint alleges, in accordance with the Board's finding in its Decision and Direction of Election, dated March 20, 1950," and the Board's Supplemental Decision and Certification of Representatives.' that the following employees of the Respondent constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Respondent's sawmill,. planer mill, and yard at Savannah, Georgia, excluding office and clerical employees, watchmen, and supervisors as defined by the Act. In its answer, the Respondent admits such unit is appropriate within the meaning of Section 9 (b) of the Act, but affirmatively alleges and contends that the Board was without jurisdiction to hear and consider the petition for certifi- cation filed by the Smelter Workers under date of November 18, 1949, by reason of the fact that the Smelter Workers was affiliated with the Congress of Indus- trial Organizations, hereinafter called CIO, and that the latter organization was not on November 18, 1949, in compliance with the filing requirements of Section 9 of the Act. For reasons set forth in detail below, the undersigned finds that Respondent's contentions in this connection are without merit. The undersigned accordingly finds that the unit above described is appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act, and that said unit will assure to Respondent's employees the full benefit of their right to self-organization and collective bargaining and will otherwise effectuate the policies of the Act. 2. Majority representation by the Smelter, Workers The record herein discloses without dispute, that pursuant to the Decision and Direction of Election,' issued on March 20, 1950, an election was conducted April 14, 1950, under the direction and supervision of Acting Regional Director for the Tenth Region, among the employees in the unit therefore found appropriate by the Board. Tally of such election disclosed 93 valid ballots were cast for the Petitioner and 22 valid ballots were cast against the Petitioner, and that 4 ballots were challenged. The Respondent filed timely objections to the con- 6 The findings in this section are based upon the allegations contained in the complaint as admitted by Respondent's answer. 4 88 NLRB 1300. 6 90 NLRB 2112 6 See footnote 4, supra 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duct of the election and to the conduct affecting the results of the election. Thereafter and on June 22, 1950, the Regional Director, pursuant to the Board's Rules and Regulations, issued and served on the parties his report on the elec- tion and objections to the election and recommendations to the Board. The Regional Director found that certain objections raised no substantial issues and should therefore be dismissed, and referred certain other objections to the Board for its decision. July 10, 1950, Respondent filed exceptions to the Regional Di- rector's report and recommendation and a supporting brief. As set forth in the Board's Supplemental Decision and Certification of Rep- resentatives,7 the Board duly considered Respondent's objections, and on August 22, 1950, issued its Supplemental Decision and Certification of Representatives, wherein and whereby it certified International Union of Mine, Mill & Smelter Workers as the bargaining representative for the employees referred to in the above-described unit. The undersigned accordingly finds that at all times since April 14, 1950, the Smelter Workers has been the representative for the purposes of collective bargaining of a majority of the employees in said unit, and by virtue of Section 9 (a) of the Act, has been, and now is, the exclusive representative of all the employees in such unit, for the purposes of collective bargaining in respect to rates of pay,. wages, hours of employment, and other conditions of employment. 3. The refusal to bargain The complaint alleges that on or about August 30 and 31, and at sundry and divers dates during September 1950 the Smelter Workers requested Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other conditions of employment, with it as the exclusive representative of the employees in the unit hereinbefore described; and that on or about August 30, 1950, and all times thereafter, the Respondent refused to bargain collectively with the Smelter Workers as representative of the employees in said unit. Respondent in its answer admitted it did refuse to so bargain, and in its answer and at the hearing herein sought to justify such refusal on the theory that the Board was without jurisdiction to entertain the Smelter Workers' petition for certification by reason of the fact that on the date such petition was filed, the CIO, with which it was then affiliated, was not in compliance with the filing requirements of Section 9 of the Act. Respondent further contends that it was justified in its refusal to bargain with the Smelter Workers by reason of the fact that on February 15, 1950, the CIO withdrew its certificate of affiliation from the Smelter WTorkers, and in effect expelled it as,an affiliate of the CIO. Respondent's exceptions to the Regional Director's report and recommen- dations on Respondent's objections to the conduct of the election and to conduct affecting results of the election, hereinbefore referred to, raised the identical contentions before the Board it now contends for herein. The Board found in part: The Petitioner's name as stated in the petition herein is "International Union of Mine, Mill & Smelter Workers." Its name as stated in the notice of representation hearing, issued on the petition, is "International Union of Mine, Mill and Smelter Workers, CIO." At the hearing, a represent- ative of the Petitioner referred to himself as representing "International 7 See footnote 5, supra. REYNOLDS & MANLEY LUMBER COMPANY, INC. 197 Union of Mine, Mill and Smelter Workers, CIO." After the hearing, the CIO revoked the Petitioner's certificate of affiliation and expelled the Petitioner from the CIO. The Board's Decision and Direction of Election named the Petitioner as "International Union of Mine, Mill and Smelter Workers," without the designation CIO, and it so appeared on the ballot in the election. In said Supplemental Decision and Certification of Representatives s the Board found that International Union of Mine, Mill & Smelter Workers had at all times during the proceedings been in compliance with the filing requirements of Section 9 of the Act. The CIO, not in compliance at the time of the filing of the petition herein, came into compliance on December 22, 1949, before the issuance of the notice of representation hearing on January 20, 195() .' From the foregoing and upon the entire record it is clear and the undersigned finds that, other than the fact that it received and filed the Smelter Workers' petition dated November 18, 1949, on that date, all action taken by the Board in connection with the Smelter Workers' petition for certification, the holding of the representation election, the filing of the charge, and issuance of the complaint herein, were taken at a time when the Smelter Workers was in full compliance as an international union and as a CIO affiliate with the filing requirements of Section 9 of the Act. In other words, no formal acts were taken by the Board toward an, investi- gation in the representation proceedings until after the CIO had complied with the filing requirements of Section 9 of the Act on December 22, 1949; and since the Smelter Workers was, on January 22, 1950, still an affiliate of the CIO, the Regional Director unilaterally decided to and did add the letters "CIA" to the name of the Smelter Workers, before the issuance of the notice of representation hearing on January 20, 1950. It is clear from the record that at the time of the hearing on the representation case on February 3, 1950, both the Smelter Workers and the CIO were in full compliance with the requirements to Section 9; and that after the CIO revoked the Smelter Workers' certificate of affiliation and expelled it from the CIO on or'about February 15, 1950, the Board issued its Decision and Direction of Election 10 wherein it referred to the Smelter Workers without the letters "CIO" appearing in the title of such decision. The notice of election giving notice that it would be held on April 14, 1950, setting forth the hours during which the election would be held and the place thereof, also set forth the form of ballot which referred to the Smelter Workers as "International Union of Mine Mill and Smelter Workers" as the union for which the employees could vote for or against with no reference to the CIO as a part of the Smelter Workers' name ; and in the Board's Supplemental Decision and Certification of Representatives, the Smelter Workers' name appeared without any reference to the "CIO." From the foregoing and the record, it is clear that at the time the hearing was held on the representation case, the Smelter Workers and the CIO were in compliance with the requirements of Section 9 of the Act; at the time of the election on April 14, 1950, the Smelter Workers was in full compliance with the filing requirements, as well as the CIO, and at this time the Smelter Workers was not in affiliation with the CIO. From all of which appears, and the undersigned finds, that other than the receipt and filing of the Smelter Workers' See footnote 5, supra. The hearing for which this notice was given was held on February 3, 1950. 10 See footnote 4, supra. 986209-52-vol. 97-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition for certification on November 18, 1949, all formal acts taken by the Board were had at times when the Smelter Workers was in full compliance with the filing requirements and the CIO was in full compliance with such requirements from and after December 22, 1949, to date of the hearing herein. It would appear that since the Board withheld action on the Smelter Workers' petition of November 18, 1949, until the CIO was in compliance with the requirements of Section 9 of the Act, the Board's notice of hearing on the representation proceedings under date of January 20, 1950, in effect constituted a refiling of the Smelter Workers' petition for certification and thereafter both the Smelter Workers and the CIO were, at all times material, in compliance with the requirements of Section 9 of the Act ; and that the holding in the Postex Cotton Mills case, cited below, is inapplicable herein. In its objection to election and recommendations to the Board's Decision and Direction of Election" the Respondent relied upon the decision of the Court of Appeals for the. Fifth Circuit in N. L R. B. v. Postex Cotton Mills, 111C., 12 and in the instant hearing Respondent continues to rely upon the Postex Cotton Mills case together with Highland Park Mfg. Co.'a This latter Court expressly follows the decision of the Fifth Circuit in the Postex Cotton Mills case. The Board, in its Supplemental Decision and Certification of Representatives," in evidence, in part states : The Employer further contends that the Board has no authority to in- vestigate a question of representation in this proceeding because, at the time of the filing of the petition, the CIO, of which the Smelter Workers was then an affiliate, was not in compliance with the filing requirements of Section 9 of the Act. In support of this contention, the Employer cites the decision in the Postex Cotton Mills case,a in which an order of the Board directing the respondent in that case to bargain with a labor organization affiliated with the CIO was denied enforcement by the court solely because, when the complaint was issued, the CIO was not in compliance with the filing requirements of"Section 9. The court in the Postex case rejected the result reached by the Board in Northern Virginia Broadcasters, Inc.,4 in which the Board concluded that Congress did not intend that complying labor organizations affiliated with federations such as the American Federation of Labor and the Congress of Industrial Organizations should be denied the processes of the Board be- cause of the failure of such federations to comply with Section 9. AS we have stated,' we are constrained, with due respect for the opinion of the Court of Appeals for the Fifth Circuit, to adhere to our interpretation of the requirements of Section 9, until the Supreme Court of the United States has had an opportunity to pass upon the questions ° National Labor Relations Boa, d v Poster Cotton Mills, Inc, decided May 5, 1950 (C A 5) 4 75 NLRB 11. 6 See Bethlehem Steel Company, Shipbuilding Division, and Bethlehem-Sparrows Point Shipyard, Inc., 89 NLRB 341; J. H. Rutter-Rex Manufacturing Company, Inc, 90 NLRB 130. ° We note the recent decision of the United States Court of Appeals for the District of Columbia Circuit in West Texas Utslataes Company, Inc. v. N. L. R. B , decided July 10, 1950, upholding our interpretation of the requirements of Section 9. The undersigned is bound by, and in complete agreement with, the Board's interpretation of the filing requirements of Section 9 of the Act, referred to See footnote 4, supra. 12181 P` 2d 919 (C. A. 5). 184 F. 2d 98 (C A. 4). 14 See footnote 5, supra. REYNOLDS & MANLEY LUMBER COMPANY, INC. 199 above; and is of the opinion and therefore finds that such interpretation is particularly applicable under the circumstances shown to exist in the instant case." The Respondent's admitted refusal to bargain with the Smelter Workers after certification by the Board, on grounds advanced before and heretofore over- ruled by the Board, constitutes a refusal to bargain within the meaning of the Act." The undersigned therefore finds, on the basis of the entire record, including the representation proceedings, that, since August 30, 1950, and at all times thereafter, the Respondent has refused to bargain collectively with Interna- tional Union of Mine, Mill & Smelter Workers as the exclusive representative of the employees of the Respondent in the appropriate unit, with respect to rates of pay, wages, hours of employment, and other conditions of employment, in violation of Section 8 (a) (5) of the Act, that, by such, refusals has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1) thereof. B. The discriminatory refusal to reinstate Joe Brown; interference, restraint, and coercion 1 Incidents antedating the discrimination Following the Board's certification of the Smelter Workers as bargaining agent on August 22, 1950, the Respondent admittedly refused to bargain col- lectively with the Smelter Workers ; thereafter, pursuant to its constitution the Smelter Workers, on August 30, 1950, took a vote at the union hall to de- termine whether a formal strike vote should be authorized. The vote so taken authorized the taking of a formal strike vote. The fact that a formal strike vote had been authorized and was to be taken became generally known throughout Respondent's plant. Fred Shearhouse, executive vice president of Respondent, learned of the plans for such a vote and discussed it with employee Isaac Jackson, Jr 17 Shearhouse asked Jackson, "What do you think about the strike?" When the latter replied that he "didn't know," Shearhouse said, "Don't I [you] think it would be foolish for the men to vote for a strike like that," Jackson said he still "didn't know." Shearhouse then suggested that Jackson contact the other employees and tell them he (Shearhouse) thought it would be foolish for the employees to vote for the strike when the matter was submitted to them for decision. Jackson said, "All right" and then talked to his foreman, Henry J. Smith, and informed him of his plan to "walk awhile and talk to the men and see how they feel (sic) about the strike." Jackson then visited other employees at their places of work and asked how they felt about the strike. He had a further talk with Shearhouse, in the latter's office, at which time Shearhouse asked him how he was doing. Jackson testified : "I told him I was doing all right," and continued to talk with other employees. According to Jackson, he spent about 2 hours "talking to other boys about the strike vote that day." Jackson testified without dispute that he received full pay for the day that he talked to other employees concerning the strike vote. ae For example , all material and major acts required to be taken by the Board were had or taken at a time when both the Smelter Workers and the CIO were in compliance with the requirements of Section 9. 'ON L R B v. Condon Bros . Mfg Co., 187 F. 2d 329 (C. A. 7). " Not to be confused with Lehman Jackson , foreman. `ZOO DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shearhouse in this connection testified : Q. (By Mr. Hitch) There has been a little discussion about your talk with Jackson. What did you tell Jackson? A. You mean that morning? Q. I am talking about Jackson and the strike. A. Jackson-Isaac Jackson? Q. Yes, sir. A. I told Isaac that I thought it was going to be a mistake for them to strike out there, that the matter was up before the National Labor Relations Board to get a decision , and that that would be time enough to think about do- ing something like that and if the men strike out there I thought they would be making a mistake , and that I thought it would be well for him to talk to some of the boys and tell them that I said that I thought it was a mistake for them to strike. Q. You feel you have got a right to do that? A. I thought I had a right to do that. On recross examination , Shearhouse testified , "I knew that they were going to take a strike vote, in a day or so, yes." Shearhouse further testified that when he made reference to the National Labor Relations Board in his talk with Jackson, he thought there was an unfair labor practice case pending then or that he "expected it to be s 18 On September 8, 1950, the strike vote proper was taken outside the gate at Respondent's plant. Ballots were distributed to the employees as they arrived for work. After marking their ballots, the employees deposited them in a ballot box located in the car of J P . Mooney, the Smelter Workers ' representative. The ballots were taken to the union hall and counted by a committee The result of the tally of ballots was 117 for the strike and 2 against the strike. 2. The strike ; Joe Brown's activities therein The record discloses , according to Brown's undisputed and credited testimony, that between on or about December 1929 and October 5, 1950, he was employed by Respondent for a total of approximately 13 years and 4 months, as follows : (1) December 1929 to on or about July 1, 1932 ----------------- 21/2 years. Off the payroll 11/2 years or until about January 1, 1934 ( 2) January 1, 1934, to about July 1, 1940, as head fireman ----- _ 6% years. Off payroll 1 year and 8 months or to about March 1, 1942. (3) March 1, 1942 , to about November 1, 1945-- --------------. 3% years. Off payroll about 2 years or to November 1, 1947. (4) November 1, 1947, to December 1, 1947-------------------- 1 month. Off payroll from about December 1, 1947, to about January 1, 1950 ( 5) January 1, 1950, to October 5, 195018-------- -------------- 9 months. Total------------------------------------ 13 years 4 months. Brown joined the Smelter Workers during February 1950 .20 While he knew that a strike was to be called as a result of the September 8 vote, he did not know 18 There was no case of any kind then pending before the Board in which the Respondent and the Smelter workers were involved 18 with the exception of his first employment period, when he worked as a boiler room helper, Brown was employed as a head fireman. 20 The boiler room shifts were divided into four shifts of 6 hours each Brown's shift, during his last employment, was from 1 a. in to 7 a. in. Since he had to get up before midnight in order to be at work by 1 a m , he did not attend many union meetings REYNOLDS & MANLEY LUMBER COMPANY, INC. 201 in advance just when it would be called. The strike was called for the morning of October 5, 1950. Brown learned of such fact as a result of a call made to the vicinity of the boiler room by two members of the Smelter Workers' committee, namely Little and Green, at about 6: 15 a. in., who called him to the boiler room yard, informed him that the strike was on, and asked Brown if he was going to join them in the strike. Brown replied that he was going to join the strike, but would not do so until "after my work hours.-I am going to stay on the shift and carry out my orders of working time." Immediately thereafter, Brown, with the assistance of his helper, Addis Kitties, began to "cool-down" his five boilers and furnace fires ; the hot water in the boilers was replaced by cold water; such ashes as were in the furnaces were pulled and deposited in the ash pit and wet down ; he cut off the flow of fuel at about 6: 50 a. in.; let the fires burn down normally ; sprinkled such places as might harbor charred bits of shavings or other pieces of different types of fuel used in the mill ; and particularly a hole in front of boiler No. 1 which had begun and grown as the cement chipped off as a result of excessive heat and the application of water used in sprinkling Shortly before 7 a. in., Brown sent -Kitties to the front gate to see if he could locate Foreman Lehman Jackson, Brown's immediate supervisor, and have the latter "send me a release man." Kitties reported after 10 or 15 minutes that he could not locate Foreman Jackson" Brown also asked the night watchman to inform Foreman Jackson that he wished Jackson to send a relief man for Brown. The night watchman agreed to do so if he saw Jackson. The record does not disclose whether the night watchman contacted Jackson " As Brown left the boiler room for the "punch [out] office" he saw Millwright ii Nix and told him he was going to the punch office, and said, "Will you sort of look around the boiler room till I get somebody down here a little later on?" Nix replied, "I will be here for a while." Brown then left the boiler room and went to the punch room and checked out, and went out the plant gate and joined the picket line. En route to the picket line, according to the testimony of Shearhouse, Brown met the former "a few minutes after 7:00 and, told him he had `cooled the boilers down"'; and that there was no further conversation between him and Brown at that time. Shearhouse further testified : Q. When did it first become apparent to you that there wasn't anybody down the boiler house? A. He came to me, Joe Brown, and told me that he had cooled the boilers down and had left them down. * * * * * * Q. What did you do then? ' A. Well, presently I saw Mr. Jackson. [Brown's foreman.] Of course there was lots of confusion around. I told him that he'd better send somebody down and see about the boilers. Q About what time was this? A. A little after seven o'clock. Q. A little after seven o'clock? A. Yes, sir. 21 Kitties, although still an employee, was not called as a witness. 22 The night watchman did not testify. 23 Of whom , more hereafter. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lehman Jackson, foreman, who had direct supervision over the boiler room, testified in substance that he arrived at the plant on the morning of October 5, about 20 minutes of 7; as to when he first saw Brown, he said, "I'd say it was approximately ten minutes after seven, whenever he walked in the picket- line"; that after he saw Brown, he went to Frank Kelton 24 and asked him if he wanted to go to work ; and Kelton said he did not know, and "that he was. afraid." Jackson and Kelton started into the plant gate-"and some of them [strikers] said something to Frank," who stopped and did not enter the gate at that time. Jackson then contacted Millwright Nix. Jackson testified : So I sent Nix down. I told him to go down and see about the boiler room, so Nix went down to the boiler room and told me the boilers had water in them and the fires was pulled. . . _' Jackson testified that after Nix had gone to the boiler room he succeeded in, getting Kelton to go to the boiler room about 30 minutes after Nix had gone there. By the time Kelton arrived, Nix 29 had made his inspection and left. Kelton testified that when he got to the boiler room he found a fire on a "pile of stud" that had been run up in front of boiler No. I to be used to "get up steam with." Foreman Jackson testified that when he got to the boiler room following Kelton, the latter had the hose on the fire, "he didn't have it completely out when I got down there." On January 4, 1951, the Smelter Workers discussed the matter of calling off the- strike; on January 8, 1951, the strikers voted to call the strike off as of January 9. Under date January 9, 1951, the Smelter Workers wrote Respondent as follows : JANUARY 9, 1951. GENTLEMEN : As representatives of your employees you are advised that the strike of said employees is being called off effective at the end of the above date, and said strikers are reporting for work unconditionally, Very truly, INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS, (S) J. P. Mooney, J. P. MOONEY, International Representatzve. 3. The refusal to reinstate Brown All of the strikers returned to the plant for reinstatement on January 10 or 11,27 1951, and all were reinstated except Brown. Brown first contacted Shear- house, who said, "Well, Joe, I don't know as we are going to use any but I will tell you what you can do.-You talk to Mr. Manley [Respondent's president]-," which Brown did, at about 8 a. in. Manley asked Brown if he then had a job. The latter replied that he had a temporary one. Manley then said, "Well, Joe, I don't know, you don't have a steady job-we probably will find something around here for you to do-we are putting back practically all the men that went out on strike to work-you can go today, (which was Thursday)-You come 24 Kelton was Brown's replacement and should have relieved Brown at 7 a in. that day. ss Nix's visit to the boiler room and his subsequent report to Jackson is discussed in fur- ther detail below, 20 Nix was not called as a witness. 27 The record is not entirely clear as to whether the strikers returned on January 10 or January 11 . From Brown's testimony it would appear that the 11th was the date of return. REYNOLDS & MANLEY LUMBER COMPANY, INC. 203 back out here in the morning, and I will get in touch with Mr. Jackson and see can't (sic) we figure out some way for you to get down on your shift." Brown returned to the plant the next morning at 7 o'clock and waited about until he could see Manley. When he did, Manley said he would get hold of Jackson pretty soon and see how he "could figure out down there for you." Manley told Brown to wait outside until he could get hold of Jackson. An hour or so later Brown was called into Manley's office. Both Shearhouse and Jackson were also present. During this session, Shearhouse asked Jackson to tell Manley how Brown left the boilers on the morning of the strike. Jackson said, "Joe Brown left the boilers in fairly well (sic) condition. He left a full gage of (cold) water and everything in perfect shape except down in front of No. I boiler," he said, "there was a fire sprung up there." Slearhouse for his part contended on this occasion that Brown sh'uld have remained in the boiler- house until relieved. Brown stated that lie had remained until a little after his hours with the boilers cooled down-"because I wasn't going to stay down there and everybody on the outside." After further discussion, Brown was told to step outside. He did so and was called back about an hour and a half later. In substance Manley told Brown that he did not think it would be a good idea to reinstate Brown. The boiler room had a crew. And during the strike some shooting had taken place and a fireman had been hit; and since Brown worked as fireman at night, was the only fireman to join the strike, the employees might suspect that he (Brown) knew something of the shooting. Manley then stated for "that" reason he would not put Brown back in the boiler room. Manley suggested to Brown that he come back to the plant from time to time, about every 2 or 3 months; when everything would quiet down, he would put Brown back to work. He added, however, "But I won't put you back to work now." 26 Contentions ; Issues ; Conclusions The Respondent contends in substance and effect that (1) its refusal to rein- state Brown was justified by reason of the fact that during the strike certain violence had taken place and that Brown's reinstatement might cause a re- currence of violence; and (2) Brown had no right to cool down the boilers in any event without orders from his foreman ; and the fact that he left the boiler, room before a relief fireman appeared. As to contention (1) Shearhouse testified in response to a leading question that on October 10, 195550, a fireman named Burke 29 had been shot during the strike ; and that a truck with 18 men in it was ambushed on or about October 13, 1950, with the result that 2' men lost the sight of an eye and several were in the hospital for a time. Other than Shearhouse's statements above, no testi- mony concerning violence was offered ; and no attempt to connect Brown or any other person with the acts of violence was made on the record herein. At the close of the direct examination of Shearhouse, the undersigned asked the following questions : Trial Examiner WARD. May the Examiner inquire into the purpose of this type of testimony about the shooting? Mr. HITCH. I would be very happy to state it. The purpose of it is this : That it has come out in the testimony that Mr. Manley was fearful that 28 The foregoing findings with reference to Brown's efforts are made on Brown's undisputed and credited testimony Manley was not called as a witness and the record does not show that he was unavailable. From the record it would appear that Shoarhouse was the one who insisted on Brown's termination, otherwise Manley would not have had Brown return the second day as set forth above. 11 The record does not indicate that Burke was killed. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if Brown was put back, they might have a recurrence of violence , and that that was one of several reasons that he did not.." That is the testimony. Trial Examiner WARD. Is the purpose of it to show that complainant Brown is responsible for the shooting? Mr. HITCH. From his testimony , to my way of thinking-Mr. Manley is the president of the plant-and he could have that as one of the reasons in his mind why he didn't wish to reinstate this man: If he had a reasonable suspicion it was implication he did not want any more violence in his plant and that is the reason that we offer it. Under the facts as shown by the record herein neither a reasonable suspicion or a good-faith belief that Brown had participated in any wa1 with the violence claimed herein will justify Respondent 's refusal to reinstate him. Since the discharge or iefusal to reinstate an employee who has engaged in a strike caused by an unfair labor practice, as is the fact in the instant case , is in itself viola- tion of the Act unless such violence is affirmatively proved, not that the Respond- ent-Employer in good faith believed that the striker ( Brown ) engaged in misconduct , but had in fact done so .n Since there is not a scintilla , an iota, or a shred of evidence upon which to base a finding that Brown engaged in any violence during the strike referred to herein above, the undersigned concludes and finds contention ( 1) to be without merit. As to contention (2) wherein Respondent contends that Brown should not have cooled down the boilers in any event or left the boiler room until relieved. By such contention Respondent would deny Brown the right guaranteed to him by the Act to join in the strike. The facts found above disclose that Brown took every reasonable precaution to leave the boilers, furnaces , and boiler room in a safe condition ; that he did not leave his post until after the expiration of his shift hours ; ' and had made several attempts , as found above, to get word to his foreman to send relief. The record discloses that after both Shearhouse and Foreman Jackson learned that he left the boiler room, it was some 30 to 50 minutes before they sent anyone to look after the boiler room. The significant fact in this connection is that management in effect contends that ,Brown was required to use greater care and diligence than other employees assigned to the boiler room. As found above, Foreman Jackson sent Millwright Nix to check the boiler room some 30 to 40 minutes after Brown had left it. Nix checked the boiler room and found nothing amiss , and then, instead of waiting for relief, left the boiler room After which Kelton , who should have relieved Brown, finally arrived to find that the shavings , etc , left to start a fire with had become ignited. On the foregoing and the entire record the undersigned concludes and finds that Brown used reasonable care and diligence in putting the boilerhouse,in 30 It should be noted that Manley did not testify . The only testimony that Manley might have feared recurrence of violence was given by Brown in his relation of Manley 's state- ments to him 31 Porto Rico Container Corporation , 89 NLRB 1570 ; Standard Oil of California, 91 NLRB 783; Mid-Continent Petroleum Corp , 54 NLRB 912 , 933-934. The Respondent does not contend that it discharged Brown because of a good-faith, although mistaken , belief that they had engaged in misconduct 22 Brown impressed the undersigned as a witness who desired to testify truthfully and did so. His testimony covering 69 pages of the record was consistent . The only incon- sistent statement that the undersigned noted, as did counsel for Respondent ( who in his brief contends that Brown was "wholly discredited" on one point ), was testimony to the effect that he left the boileihouse at about 7 : 35 a in., in one instance , and "pretty close to 8 o'clock" in another instance, whereas his time card showed that he checked or "punched"' out at 7 , 12 a in. REYNOLDS & MANLEY LUMBER COMPANY, INC. 205 proper shape to leave it; and that he had every right to leave and join in the strike. Contention (2) is without merit. In view of the foregoing and the record which discloses that Respondent refused to reinstate Joe Brown on January 11, 1951, because he engaged in con- certed strike activity, it is hereby found that by such conduct the Respondent discriminated in regard to his hire and tenure of employment to discourage membership in the Swelter Workers, in violation of Section 8 (a) (3) of the Act, thereby interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. It is further found that by the conduct of Fred Shearhouse, the Respondent's executive vice president, by inducing employee Isaac Jackson, Jr., during working hours, to call on other employees in an attempt to induce such other employees to vote against the calling of a strike theretofore authorized to be voted upon, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent 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 of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has failed and refused to bargain with the Smelter Workers as the exclusive representative of its employees in the appro- priate unit, it will be recommended that upon request the Respondent bargain collectively with the Smelter Workers. It has been found that the Respondent discriminated in regard to the hire and tenure of employment of Joe Brown. It will be recommended that the Respondent offer to him immediate and full reinstatement to his former or sub- stantially equivalent position,33 and make him whole for any loss of pay he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from January 11, 1951, to the date of offer of reinstatement. Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which he would normally have earned for each such quarter or portion thereof, his net earnings,S4 if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other ' The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65 NLRB 827. 14 Crossett Lumber Company, 8 NLRB 440 , 497-8. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quarter 35 In accordance with the Woolworth decision, it will be recommended that the Respondent, upon reasonable request, make available to The Board and its agents all records pertinent to analysis of the amount due as back pay. The unfair labor practices found reveal on the part of the Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be anticipated. The preventive purposes of the Act may be frustrated unless the Respondent is required to take some affirmative action to dispel the threat. It will be recom- mended, therefore, that Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Union of Mine, Mill & Smelter Workers is a labor organization `within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees at the Respondent's sawmill, planer mill, and yard at Savannah, Georgia, excluding office and clerical employees, watchmen, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Union of Mine, Mill & Smelter Workers was on April 14, 1950, and at all times since then has been the exclusive representative of all employees in said unit for the purposes of collective bargaining within the meaning of Sec- tion 9 (a) of the Act. 4. By failing and refusing to bargain collectively with the Smelter Workers as the exclusive representative of its employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Joe Brown, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By such discrimination and by interfering'with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. The aforesaid unfair labor practices" are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] 15 F W Woolaoorth Companny, 90 NLRB 289. UNION Bus TERMINAL OF DALLAS, INC. and TRANSPORT WORT ERS UNION OF AMERICA,- CIO. Case No. 16-CA--28. November 30, 1951 Decision and Order On February 21, 1951, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding.finding that 97 NLRB No. 47.