Flint River Mills, Inc.

472 DECISIONS OF NA1IUNAL LABOR RELATIONS BOARD East Moline, Illinois, plant." (If there is anybasisfor conclud- ing that feeding International Harvester's East Moline employees has a significantly greater impact on interstate commerce than feeding Kearney and Trecker's West Allis employees, it is not apparent to me.) The refusal to assert jurisdiction over this employer is thus contrary to the Board's jurisdictional plan and to a line of decisions following it issued as recently as a month ago. Even if we were to ignore the jurisdictional plan and prece- dents thereunder, approaching the case on an ad hoc basis (a practice which appears to be growing), I could not agree with my colleagues that the impact of the Employer' s operations on interstate commerce is so insubstantial that it would not effectuate the purposes of the Act to assert jurisdiction. Their cryptic conclusion to this effect- -completely unexplicated-- appears to me to ignore the realities of industrial life. The Employer provides food and cafeteria service, on a 24-hour basis to 1,700 employees who are engaged in producing goods valued in excess of $5,000,000 which are shipped in interstate commerce. In the production of goods the feeding of employees who operate the machines is just as important as the fueling of the boilers which run the machines, and it cannot be denied that the feeding of the employees conveniently and quickly and with- out their being required to leave the plant is an effective step in maintaining production. The fact that Kearney-Trecker pro- vide such cafeteria service is persuasive indication that this is true. The curtailment of the commissary operations resulting from a strike of the Employer's employees would have an impact on the production of goods for interstate commerce in the Kearney-Trecker plant. Accordingly, as the Employer furnishes in excess of $50,000 worth of services which are "necessary to the operations of" Kearney-Trecker, an enterprise which is engaged in the pro- duction of goods destined for interstate commerce of a value far in excess of $25,000, I would assert jurisdiction over the Employer on the basis of the Hollow Tree case which has not been overruled as the Board's official policy in this area. "Harding & Williams, 13-RC-3559, not reported in printedvolumes of Board Decisions. FLINT RIVER MILLS, INC. and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, CIO. Case No . 10-CA- 1580. December 22, 1953 DECISION AND ORDER On September 11, 1953, Trial Examiner Richard N. Ivins issued his Intermediate Report in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending 107 NLRB No. 112. FLINT RIVER MILLS, INC 473 that it 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 exceptions to the Intermediate Report and a supporting brief,', and the General Counsel filed an exception and memorandum. 2 The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, the General Counsel's exception and memorandum, and the entire record in this case, and hereby finds merit in the Respondent's exceptions and adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent that they are consistent with the findings and conclusions set forth below. The Trial Examiner found that the Respondent violated Section 8 (a) (1), (3), and (5) of the Act. We agree with the Examiner that the Respondent independently violated Section 8 (a) (1) but reverse his findings of violations of Section 8 (a) (3) and (5) of the Act for the following reasons. A. The discharge of James A. Miller, Jr.; the alleged 8 (a) (3) violation The Trial Examiner found that the Respondent discharged Miller because of his union activities, in violation of Section 8 (a) (3) of the Act. The Respondent excepts to this finding, and alleges, among other things, that the record establishes that Miller's discharge was caused by his unsatisfactory work. Miller denied the Respondent's allegations that his work was not satisfactory, and the Trial Examiner credited his denials. The Trial Examiner also credited all the other witnesses for the General Counsel. Upon the basis of Miller's admissions , however, and the testimony of other witnesses credited by the Trial Examiner, we are convinced that there is merit in the Respondent's exceptions to the Trial Examiner's 8 (a) (3) findings. Miller was discharged about 5 weeks after he began to operate a grain elevator. Miller admitted that he had caused grain to be mixed "on several occasions" during this 5-week period. He admitted further that just before his discharge he had mixed more than 100 sacks, totaling more than 10,000 pounds, of wheat and oats which because of size cannot be separated, as can some other grains if commingled. He also admitted that checking his operation about 3 minutes earlier 1 The Respondent's request for oral argument is hereby denied as the record, including the Respondent's exceptions and brief, in our opinion, adequately presents the issues and the positions of the parties. 2 The General Counsel excepted only to the Trial Examiner's apparently inadvertent failure to include an affirmative recommendation that the Respondent bargain collectively in accordance with the Trial Examiner's finding that the Respondent had unlawfully re- fused to bargain. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than he did would have avoided this mishap, which was caused by his forgetting to change the spout. Although this is the incident which the Respondent claims precipitated Miller's discharge, the only reference thereto in the Intermediate Report is in the summary of the testimony of Weathersby, an employee called as a witness by the Re- spondent. As stated in the report, Weathersby testified that "he remembers James Miller mixing around 100 bags of grain at the elevator, but that grain did get improperly mixed at the elevator on other occasions when Miller was not operating it." There is no question that grain had been mixed on occasions when Miller was not operating the elevator. Miller's pre- decessor on the elevator, Paul Howard, who operated it for 3 years, and whose testimony the Trial Examiner credits, testified that in those 3 years he mixed grain twice, about 12 to 15 bags each time. Although Miller claimed that when he was discharged, the 100-bag incident Was not even mentioned, Howard testified that on the two occasions on which he mixed far smaller quantities, the Respondent gave him "a mighty good talking to." The Respondent also alleged that Miller's conduct as well as his work was unsatisfactory. The Trial Examiner credits Miller's denials that he had ever been reprimanded by the Respondent for coming to work late or for taking too much time off to smoke in the restroom. Howard, who had directed Miller's work, testified in this connection that he had had to talk 'to Miller on occasion about neglecting his duties, that he had criticized him for going to the restroom more often than the other men, that he had reprimanded Miller for "hanging out on the platform smoking," that Miller was the only man he had ever reprimanded for such derelictions, and that he had reported these incidents to Superintendent Turknet.9 Harvey Brooks, who was also credited bythe Trial Examiner, testified that he had noticed Miller "smoking a right smart out there," and that Miller said he had been warned by the Respondent about his excessive smoking. Miller had admitted coming to work late on 2 occasions. Brooks testified that he had noticed Miller coming in late about 10 times. The conclusion that Miller was discharged because of poor work and misconduct rather than for discriminatory reasons is buttressed by the fact that the record does not establish the Respondent's knowledge of Miller's union activity at the time of his discharge. His organizing activities were con- ducted off the plant premises. Howard, who worked with 3 The Trial Examiner in the Intermediate Report refers to Howard's testimony that he "never heard any complaints about Miller's work," but does not refer to the complaints Howard himself made. The Trial Examiner also states that Howard testified that "Miller's work was satisfactory," whereas what Howard said was, "when he was on the job his work was all right." Finally, the Trial Examiner states that Howard said, "there was not a man on the job who did not go to the restroom and take a break now and then " Howard, however, went on to state that the other men did not do so as often as Miller did FLINT RIVER MILLS, INC. 475 Miller in obtaining union cards, testified, when asked by the Trial Examiner whether anyone representing management had indicated knowledge of his union activity, "No, sir, they didn't act like--I don't think they did know it." Turknet, who discharged Miller, claims not only that he did not know of Miller's union activity, but, on the contrary, that he under- stood Miller to be opposed to the Union. This is borne out by the fact that Miller testified that he had been careful to con- ceal from Turknet his interest in the Union, by the fact that Turknet requested that Miller try to change Brooks' prounion views, and by the fact that Miller told Turknet he would do so. The Trial Examiner made no finding as to Turknet's know- ledge of Miller's union activities, but found such knowledge by the Respondent on the basis that Smith, the Respondent's general manager , " admitted that he knew that James Miller was a member of the Union when he was fired." (Emphasis in original .) Smith's testimony on this matter is as follows: Q. Mr. Smith, at that time did you know that James Miller was either a Union member or interested in the Union? A. I did. Q. Had you any intimation or information to that effect? A. Not the first bit. Trial Examiner Ivins: Not when, I didn't get the last of that answer? The Witness: I said not the first bit of information. Read in context, the first answer would appear to contain a stenographic error ; in our view the testimony as a whole constitutes quite the reverse of an admission of knowledge. Accordingly, we find, upon a review of the entire record, that the General Counsel has failed to establish by a pre- ponderance of the evidence that the Respondent discharged Miller because of his union activities. We shall therefore dismiss the allegation in the complaint that the Respondent has thereby violated Section 8 (a) (3) and (1) of the Act. B. The alleged 8 (a) (5) violation; proof of the Union's representative status The Trial Examiner found that the Respondent refused to bargain with the Union in violation of Section 8 (a) (5) of the Act. The Respondent, in its exceptions , alleges, among other things, that the evidence does not support the finding that the Union was the duly designated majority representative. The Trial Examiner's 8 (a) (5) finding is based upon the Respondent's failure to reply to the Union's letter of August 14, 1952. One week after the Union sent this letter, it filed a pe- tition with the Board. An election was thereafter conducted by the Board in a production and maintenance unit which the 47 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties stipulated was appropriate. With 40 employees eligible to vote, the tally showed 12 votes for and 23 against the Union. Objections were filed by the Union but were later withdrawn, and the Regional Director issued a certificate that the Union was not the majority representative of the Respondent's employees. The Trial Examiner found on the basis of membership cards that the Union did represent a majority at the time the Re- spondent failed to reply to the Union's letter. The Interme- diate Report refers to testimony by Heard, Boyd, Whittaker, Breedlove, and Brooks identifying their signatures on union application cards, and to testimony by Miller identifying 12 cards, including his own, as having been signed in his pre- sence, and, without any further discussion of this question, concludes that "The record establishes that a majority of such employees duly signed union application for member- ship cards. . . ." Actually several cards not referred to by the Trial Examiner were identified at the hearing by their signers or by witnesses to their signing. The General Counsel introduced a total of 24 cards in evidence. All the cards introduced at the hearing are dated July 28, 1952, in the same handwriting. Miller testified that most of the cards were signed on July 26, but they were dated there- after by Miller's wife. The cards were delivered to Anders, a representative of the Union, with the space designated for the witness' s signature blank. He filled in the blanks on all but one card with his name although he had not witnessed the signing of these cards. Several cards were signed by the organizers for employees who could not read or write, some of whom were very vague in their testimony as to their understanding of the purpose of these cards.4 Furthermore, the Respondent contends that Howard, who was one of the leading participants in the organizing cam- paign, was a supervisor within the meaning of the Act. Howard testified that his duties included directing the work of a number of employees, and that he did not merely transmit but initiated directions to these men. Miller testified that he had worked under Howard's direction, and Turknet referred to Howard as Miller's foreman. None of this testimony was controverted. The only allusion to this matter in the Intermediate Report is the statement that Howard "further testified that the first he knew about his being a foreman or supervisor was the day before the union election . . ." Howard went on, however, to testify that he guessed he was told this "because I had all 4One such individual, Shelley Gardner, whose card is signed "Shellie Gorden" and is not signed by anyone as witness, testified that he did not know who signed the card for him. The Trial Examiner overruled the Respondent 's objection to the admission of this card in evidence, but stated that "I am quite aware of the infirmities that counsel pointed out in his objection, but for whatever it may be worth it will be received " There is nothing to indicate whether or not this card was counted in the Trial Examiner 's determination of the Union's representative interest. FLINT RIVER MILLS, INC. 477 these men under me out there, which I had had them a good while." Although he testified that he was not told that he had the authority to hire or discharge or change the status of employees, when asked whether he was ever told that he "had authority to direct the work of these men," he replied: "Yes, sir. Yes, sir. That was plain to me. I knew I was supposed to tell them what to do out there."' In view of the active role played by Howard, a supervisor, in obtaining signatures to the cards, and of the doubt cast upon the validity of the cards by the irregularities and discrepancies discussed above, we find that the cards do not, under all the circumstances, establish that the Union was the duly designated majority bargaining representative. The only other evidence in the record bearing upon the Union's representative status is the election, which the Union lost. As the General Counsel has failed to prove that the Union was designated as the majority representative of the em- ployees in the appropriate unit, we find that the Respondent's failure to reply to the Union's letter did not constitute an unlawful refusal to bargain. We shall, accordingly, dismiss the allegation of the complaint that the Respondent has thereby violated Section 8 (a) (5) and (1) of the Act.6 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 hereby orders that the Re- spondent, Flint River Mills, Inc., Bainbridge, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Stone and Allied Products Workers of America, CIO, or any 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, 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 em- ployment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: 5 Although the Trial Examiner lists the card signed by Howard as 1 of the 12 identified by Miller. Howard identified his own card. As in the case of Shelley Gardner's card, the Trial Examiner admitted Howard's card into evidence, despite the Respondent's objection on the ground that Howard was a supervisor, "for whatever it is worth." There is nothing to indicate what worth the Trial Examiner gave it in finding a majority. 6In view of the finding that the Union's proof of majority was inadequate, and the conse- quent dismissal of the 8 (a) (5) allegation of the complaint, we find it unnecessary to pass upon the other issues raised by the Respondent in regard to this allegation 337593 0 - 55 - 32 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its Bainbridge, Georgia, plant, copies of the notice attached hereto and marked "Appendix A."7 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respond- ent's representative , be posted by the Respondent immediately upon receipt thereof, and be maintained by it 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 notices are not altered, defaced, or covered by any other material. (b) 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 that the Respondent violated Section 8 ( a) (3) and (5) of the Act, be, and it hereby is, dismissed. 7In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an 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, as amended, 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 organizations, to join or assist United Stone and Allied Products Workers of America, CIO, or any 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, or to refrain from any or all such activi- ties except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment , as authorized by Section 8 (a) (3) of the Act. FLINT RIVER MILLS, INC., Employer. Dated ............... By......................................... .......... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. FLINT RIVER MILLS, INC. Intermediate Report and Recommended Order STATEMENT OF THE CASE 479 Upon an original charge and a first amended charge filed September 9, 1952, and April 15, 1953, respectively, by the United Stone and Allied Product Workers of America, CIO, here- inafter called the Union, the General Counsel of the National Labor Relations Board, i by the Regional Director for the Tenth Region, issued his complaint and notice of hearing dated April 15, 1953, against the Flint River Mills, Inc., hereinafter called the Respondent. The complaint alleges in substance that the Respondent engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the original and first amended charge were served upon the Respondent. Copies of the complaint and notice of hearing were served upon the Respondent and the Union. With respect to the unfair labor practices , the complaint alleges in substance that: (1) In violation of Section 8 (a) (1) of the Act, the Respondent (a) through Superintendent Lester Turknet, Executive Vice President J. O. Smith, Treasurer J. W. Hunt, and Foreman Clayton Walker, from August 18 to August 25, 1952, threatened its employees with discharge, re- duction in working, hours, and other reprisals because of their union membership and activi- ties; (b) Superintendent Lester Turknet, and Treasurer J. W Hunt, on August 18, and 21, 1952, respectively, interrogated employees concerning their union membership; (2) in violation of Section 8 (a) (3) of the Act the Respondent discharged employee James A. Miller, Jr., on or about August 21, 1952, and thereafter refused to reinstate him because of his membership in, and activities on behalf of, the Union, and because he engaged in other con- certed activities; (3) in violation of Section 8 (a) (5) of the Act, the Respondent on or about August 14, 1952, and at all times thereafter, refused the Union's request to bargain collec- tively in respect to rates of pay, wages, hours of employment, and other conditions of em- ployment. The Respondent's answer denies the commission of the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held at Bainbridge, Georgia, on July 14, 15, and 16, 1953, before Richard N. Ivins , the undersigned and duly designated Trial Examiner . All parties were represented at the hearing where they were afforded full opportunity to be heard, to examine and cross-examine witnesses , to argue the issues orally upon the record, and to file briefs and/or proposed findings of fact and conclusions of law. At the conclusion of the General Counsel's proof-in-chief, the Respondent moved the Trial Examiner to dismiss the complaint in its entirety, on the ground that the General Counsel had failed to make out a prima facie case in support of the material allegations of the complaint . After hearing extended argument by the parties on this motion , I denied the same . The parties waived oral argument at the conclusion of all the evidence. The Respondent has filed a brief which I have considered. Neither the General Counsel nor the Union filed briefs. Issues Presented The pleadings present the following determinative issues for decision by the Trial Ex- aminer: 1. Whether the Respondent (a) through Superintendent Lester Turknet, Executive Vice President J. O. Smith, Treasurer J. W. Hunt, and Foreman Clayton Walker, from August 18 to 25, 1952, threatened its employees with discharge, reduction in working hours, and other reprisals because of their union membership; (b) whether Superintendent Turknet and Treasurer Hunt, on August 18, and 21, 1952, respectively, interrogated employees concerning their union membership. 2. Whether the Respondent discharged employee James A. Miller, Jr., on or about August 21, 1952, and thereafter refused to reinstate him because of his membership in, and activi- ties on behalf of, the Union, and because he engaged in other concerted activities. IThe General Counsel of the National Labor Relations Board and his representative at the hearing are hereinafter referred to as the General Counsel, and the National Labor Relations Board is called the Board. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Whether the Respondent on or about August 13, 1952, and at all times thereafter, refused in good faith the Union's request to bargain collectively in respect to the rates of pay,wages, hours of employment, and other conditions of employment. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT' 1. BUSINESS OF THE RESPONDENT Flint River Mills, Inc., is now and has at all times material herein been a Florida cor- poration, with its principal office and place of business at Bainbridge, Decatur County, Georgia, with branch plants at Havana, Florida, and Tallahassee, Florida. It is engaged in the manufacture, sale, and distribution of poultry and livestock feeds. During the 12-month period immediately preceding the issuance of the complaint on April 15, 1953, which period is representative of all times material herein, it shipped products valued in excess of $ 600,000 from its Bainbridge, Georgia, plant to customers outside the State of Georgia. I find, as the Respondent concedes, that it is engaged in commerce within the meaning of the Act. 3 II. THE LABOR ORGANIZATION INwLVED I also find, as the Respondent concedes, that United Stone and Allied Products Workers of America, CIO, is a labor organization within the meaning of the Act. • III. THE UNFAIR LABOR PRACTICES James A. Miller, Jr., testified that he was employed by the Respondent in November 1951, being employed by J. 0. Smith. He started as a sheller operator and worked on that job 8 months. About the end of that period Superintendent Turknet contacted him on a Friday afternoon and asked him to take charge of the plant gram elevator, telling him that he would make lots of mistakes and would mix up grain improperly, but not to get excited over a little thing like that, that they had had other men in the plant mix up grain and that it would happen again. He told Miller that if he took over the elevator job and could not learn it he could have his old job back. On the following Monday morning Miller agreed to try the grain elevator operation under those conditions. Paul Howard had been on this job previously. He further testified that on a Saturday, about July 20, 1952, he ran into E. L. Anders, a representative of the Union, and had a long talk about the Union; that Anders asked him to talk to the men at the plant, and see what they thought about the Union. The following Monday morning he got a supply of union cards and began talking to the men about joining. He and Paul Howard worked together in securing signatures to the union cards. lWo union meetings were held and were attended by from 10 to 15 employees. On the morning of Monday August 18 when Miller and the other employees got to work the mill door was closed and the night watchman said that the management wanted to talk to the employees in the mill office. Superintendent Turknet then talked to the employees. He started off by saying that the meeting was about the Union; that he had worked on jobs with the Union, and that people did not know what they were doing when they tried to organize a union. Turknet had a list of names he stated he had secured from the employment office of men who wanted jobs with the Company. He stated that there were plenty of people who would be glad to come there to work. He also said that "the mill did at times have to put in long hours, but if the union comes in, they could hire more men make everything go slow-not get in many hours." J. 0. Smith. Respondent's vice president and general manager, 2 This findings of fact is based upon a consideration of the entire record and from my observation of witnesses. To avoid unnecessarily burdening this report, all evidence on disputed points is not set forth, but all has been considered, and where necessary resolved. In determining credibility, I have considered, inter alia, demeanor and conduct of witnesses; their means and opportunity for knowledge of the things about which they testified; their apparent candor or lack thereof; fairness, bias, or prejudices ; their interest or lack thereof; and whether they have been contradicted or otherwise impeached. 3The Board heretofore decided this question in Case No. 10-RC-2039, on October 27, 1952, and in any event I would feel bound by that decision. FLINT RIVER MILLS, INC. 481 then addressed the employees . He said that he did not see how the mill could be operated under a union. He did not know what the cows , hogs , chickens , and mules would do in the event of a strike. Smith concluded by reminding the employees that they were then able to borrow money from the Company without paying interest , but that if the Union came into the plant the practice would be discontinued , and that they would have to go to the finance com- panies, and said, "You know what kind of interest they charge ." Turknet, at the conclusion of the speeches , said that all the men who wanted to go to work should go out the side door into the plant, and those who did not could go out the front door which led to the street.4 The same day Miller rode home to lunch with Turknet, and Turknet asked him "what did I think about the Union." Miller did not think that was any of Turknet's business , and answered that he had not thought much about it . When he started to get out of the car to go to his house, Turknet asked him to see Harvey Brooks, another employee , "and see if I couldn't turn him if he was for the Union , we didn't need a Union ." Three or four days after the last meeting Miller was sweeping the floor in the sheller room when Superintendent Turknet called' him out on the porch and said, "James , I hate to tell you, this , but ... we're going to have to let you go after tomorrow." Turknet told him there were 2 sacks of corn and oats which had been mixed at the elevator , and that the Company had lost 2 or 3 customers as a result . Miller continued , "I did ask him was they firing me , He said, 'No, we are not firing you . . . we are just laying you off....' I said , ' Well, now, Lester , you told me when I took this job I could get my old job back if I couldn't learn the elevator. He said 'Yeah, that is right.' I said, 'Well , if you don't give my old job back to me after I can't learn the elevators and can 't satisfy you all, what can you call it but being fired9 " Turknet hesitated, then said, "Yeah, James , that is what it is, it is just being fired." Miller testified further that he had never received any previous complaints about his work. He stated that he saw Turknet the following afternoon , told him that his wife was pregnant and he had a hospital bill to pay ; that he had no other way to make a living and asked Turknet to give .hmi his old job back. Turknet told him that he was sorry but that the Company did not need any one on his old job at the sheller. Turknet then said, "James , if I was you and wanted to belong to a union . . . I would go and get a job where the union is already organized . It is hard to organize the union in a place like this." Miller also testified that he had never smoked in the mill ; that at times when he would get caught up with his work he would go outside or in the restroom and smoke ; that he had been late to work on two occasions shortly after he started to work for the Respondent. He lived some distance from the plant. His car had broken down on both occasions , and that had delayed him reporting for work. He had never been reprimanded for being late to work, and no mention of his being late to work or smoking on the job had been made by Turknet when he told him that he was fired. 5 The General Counsel 's witnesses, James Heard and Robert Lamar Boyd, identified their signatures to application for union membership cards , General Counsel's Exhibits Nos. 6 and 7, respectively , and Boyd testified that he was present in the company office on the morning of Monday, August 18 , 1952, when Turknet and Smith talked to the employees , and sub- stantiated Miller 's testimony as to the substances of each of their remarks at that time. Paul Howard testified for the General Counsel. He operated the grain elevator for about 3 years before Miller took over the job and made some mistakes and improperly mixed the grain on oacasions during that period. He was present when Turknet and Smith talked to the employees on the morning of August 18, and remembers Turknet mentioning that the working hours might be cut if the Union came in, and that he had a list of people who wanted jobs in the plant. At the conclusion of the talks Turknet told them that all who wanted to go to work to go out the back door into the plant . Turknet and Smith both subsequently talked to him about the Union. He further testified that the first he knew about his being a foreman or supervisor was the day before the union election when Mr. Smith said so; that so far as he knew James Miller 's work was satisfactory, and that he never heard any complaints about Miller 's work or anyone say anything about discharging him until after the union activities started; that he never heard of anyone beside Miller being discharged or disciplined because they went to the restroom , although there was not a man on the job who did not go to the restroom and take a break now and then. 4It was established by Turknet and other witnesses that he made this statement. 5 Miller also identified applications for union membership signed by Lee Alston, T. W. Blanchard, John Henry Bryant, Oliver Bush, Paul Howard, John Hicks, his own, Vester Lee Miller, Wallace Miller, Russel Moore, Gester Scott, and Elmer Weatherby, as having been signed in his presence. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel's next witness, Clayton J. Whittaker, identified his signature on General Counsel's Exhibit No. 26 , an application for membership in the Union. He testified that he was present when Turknet and Smith talked to the employees in the office on August 18, and substantiated Miller and other witnesses, as to Turknet's concluding statement about the doors. As he remembered it. Turknet said, "There's a door going out and there's a door going in. All that wants to go in, let's go to work. " Later the same morning Turknet told him that he had two lists of names of men he could hire any day at the plant. He pulled the lists out of his pocket. "I saw it.," Later Mr. Hunt, the company treasurer, asked him to go for a ride in Hunt's automobile. He stated that after he entered the automobile Hunt "hinted around about the Union"; told Whittaker he did not know what he was getting into, and asked him whether he knew the union members. Whittaker answered that he did not, but that he had signed a union card. Hunt stated that "I knew the Union didn't care any more for me than a rank stranger." He also told Whittaker that the hours in the plant would be cut down to 25 hours a week and run 2 shifts. Whittaker was a truckdriver for the Respondent and shortly thereafter his work hours were in fact reduced. The General Counsel's next witness, Floyd Breedlove, identified his signature on General Counsel's Exhibit No. 27, an application for union membership. He testified that he had been working for the Respondent about 10 years, and knew James Miller while Miller was working for the Company. He was receiving 75 cents an hour wages. There had been a union meeting at Breedlove's home. When some of the other employees' wages were raised to 80 cents per hour, and he asked Superintendent Turknet why he had also received a raise, he testified that Turknet said, "Maybe you didn't get a raise because we heard you had a Union at your house." It was stipulated that the Union's petition for a representation election was filed with the Board on August 21, 1952; that a preelection hearing was held in Bainbridge on September 24, 1952; the election was held on November 19, 1952, and the results were votes cast for the Union 12 out of 40 eligible votes, with 23 against and 1 challenged vote; that the objec- tions filed by the Union were subsequently withdrawn. Harvey L. Brooks, the General Counsel's next witness, identified his signature on an ap- plication for union-membership card identified as General Counsel's Exhibit No. 29. He testified in general agreement with the other witnesses as to the contents of the speeches which had been made by Turknet and Smith to the employees on Monday August 18. He said that they were working 40 to 50 hours a week then and receiving overtime for time over 40 hours; that Turknet said he had a list of names in his pocket of people who wanted jobs with the Company, that he could hire them anytime; that the Company could hire hands to smother the union boys out to where they would have such short working hours they would have to quit. He quoted Turknet as saying, "Now, if there is anyone in this bunch that is dissatisfied over the jobs . . . there is a door right there ... they can go anytime." He also testified that later the same day he was out in the yard cutting some weeks, when Turknet came out to where he was working, and said, "Well, Brooks ... you are thought pretty well of ... I believe if I were you . . . I would come out of that organization before they get too far with it . . . because if it goes too far, if it goes to a strike, then we can hire hands and go right on . . . only about two of you boys will be allowed here." He also testified that Turknet told him that in the event of a strike the Company would be "allowed to call the sheriff, patrol- men, or State troops. Brooks also described a conversation with Treasurer Hunt later the same week. He said that Hunt talked at length about how a union would injure the Company's business, and told him that "there are three ways to Miami ... you can take the easy road and smooth road or the rough road." He concluded by saying that he understood Hunt to mean by this statement that "us union people had to go, make it the best way we could." The Respondent's first witness Bennie Henry was employed by the Company in the summer of 1952, and worked near James Miller at the elevator. He remembers Miller having im- properly mixed grain on two occasions. Elmer Weatherby testified for the Respondent that he had been employed by the Respondent for 16 or 17 years; that he remembers James Miller mixing around 100 bags of grain at the elevator, but that grain did get improperly mixed at the elevator on other occasions when Miller was not operating it. Superintendent Lester Forest Turknet testified for the Respondent. He has been employed by the Company 9 years, and has held his present position for about a year. He stated that he received the letter from the Union late Friday afternoon, just before quitting time; that it was decided by management to call the employees in and talk directly to them rather than answering the letter; that he, Mr. Smith, Mr. Hunt, and Mr. Woodworth called them into the FLINT RIVER MILLS, INC. 483 plant office on the following Monday morning, when he and Smith both made talks. He ad- mitted making the statement regarding his own experience attributed to him by Miller and other witnesses for the General Counsel. He also admitted telling the employees that he had a long list of men who had come in seeking employment with the Company. He asserted that at the conclusion of the talks he told the men, "Now we are going to go back to work. Everyone of your jobs is out there and it is open for you and we expect everyone of you to go to work like nothing ever happened ... If anyone of you wants to quit you can walk out that door there we won't say a word about it, but I hope that you will go out that door there and go to work. It is work time let's go." He also admitted having a conversation with James Miller, but stated it occurred the day following the speeches. He claimed that Miller started the conversation through asking him what he thought about the Union. He told him he didn't know, it was something that had "hit me like a ton of bricks." He stated that Miller said that Brooks seemed to be very much for the Union, and that he said, "Well, James, you can talk to Brooks and show him anyway to where he should turn his self and be on the management side--I would appreciate it if you would do that." When he put Miller on the elevator job he stated that he told him that he had not been a satisfactory laborer, but that he was being put on the elevator job to see if Miller could do satisfactory work there. He denied that he had told Miller that if he could not learn the elevator job he would be given his old job back. He said that Miller was just as rotten on the elevator as he had been on his prior job. He admitted that in a subsequent conversation with Miller he had told him that "if it was me and I wanted under a union setup I would get me a job in a place that was already organized." He denied that he had made the statement which Breedlove attributed to him, to the effect that Breedlove had not received a raise in pay being because management had heard that Breedlove had had a union meeting at his home. He also denied the conversation with Brooks which Brooks had related. J. 0. Smith, vice president and general manager of the Respondent, testified that in his speech to the employees on August 18, he might have said something about their borrowing money from the Company, to the effect that they could no longer borrow from the Company directly if the plant was organized but would have to come through the Union to borrow it. He admitted that he knew that James Miller was a member of the Union when he was fired. Concluding Findings I was favorably impressed by the testimony of James A. Miller, Jr., and the General Counsel's other witnesses, their appearance, demeanor, and apparent willingness to fully and frankly answer the questions propounded to them, and I, therefore, accept and credit their testimony. I was not favorably impressed with the appearance and demeanor of the Respondent's witnesses, and their apparent reluctance to answer without equivocation fully and frankly the questions which were propounded to them on cross-examination, and I, accordingly, discredit and reject their testimony to the extent that it is in conflict there- with. 6 From the above findings of fact, and the entire record in the case. I find that the Respondent violated Section 8 (a) (1) of the Act, and intimidated, coerced, and interfered with the em- ployees' rights as guaranteed in Section 7 of the Act, through. (a) Superintendent Turknet's threatening employees in his speech of August 18, 1952, that he could hire all the men he wanted from the list he had in his pocket of men who had applied for jobs with the Respondent. (b) Superintendent Turknet's statement to the employees in such speech that if the Union came in they could hire more men so the employees would not get so many work hours. (c) Superintendent Turknet's statement to the employees that if anyone was dissatisfied with their jobs they could go out the door to the street, but that those who wanted to go to work should go out the door into the plant, thus making thinly veiled threat that the employees who were not satisfied with the then status quo in the plant, and wanted the Union, could then and there leave the plant and the employment of the Respondent. (d) Superintendent Turknet's inquiry to employee James A. Miller, Jr., as to what he thought about the Union. (e) Superintendent Turknet's request to employee James A. Miller, Jr., to "see if he couldn't turn employee Harvey L. Brooks, if he was for the Union." 6 "Total rejection of an opposed view cannot of itself impugn the integrity of competence of a trier of fact." N L R. B. v Pittsburgh Steamship Company, 337 U. S 656. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Vice President and General Superintendent J. O. Smith's statement in his speech to the employees on August 18, 1952, that if the Union came into the plant, they would no longer be able to secure interest - free loans from the Company, 7 (g) Treasurer J. W. Hunt's inquiry to employee Clayton J. Whittaker whether Whittaker knew the union members.8 (h) Treasurer Hunt's statement to Whittaker that the hours of the plant would be cut down to 25 working hours a week. (i) Superintendent Turknet's statement to employee Floyd Breedlove that "Maybe you didn't get a raise because we heard you had a Union at your house." I likewise conclude and find that the Respondent admittedly knew that employee James A. Miller, Jr., was actively engaged in the union organization campaign at the time of his discharge; that his work had been satisfactorily performed, and that no complaints had been made to him regarding his taking time off from his post of duty to smoke, or his being late reporting to work in the mornings , prior to his discharge. I also find and conclude that other employees who had operated the grain elevator before Miller took over this job had through error on occasions improperly mixed grain passing through the elevator without censure or discharge. The conclusion seems inescapable that Miller would not have been discharged by the Respondent but for his union activity. I, accordingly, find and conclude, that this was the real reason for his discharge , and that the Respondent , therefore, committed a violation of Section 8 (a) (3) of the Act, in discharging Miller, on or about August 21, 1952. I take official notice that the Board on October 27, 1952, in Case No. 10-RC-2039, found and determined that all production and maintenance employees at the Respondent 's Bain- bridge , Georgia , plant , including truckdrivers and seasonal employees , but excluding office clerical employees , salesmen , guards , watchmen , professional employees, and supervisors as defined in the Act , constituted an appropriate bargaining unit . The record establishes that a majority of such employees duly signed union application for membership cards, and thereby designated the Union as their authorized bargaining agent. It is further established by the record that the Union addressed a registered letter to the Respondent on August 14, 1952, which was received on the same date, informing the Respondent that it represented a majority of its employees for collective -bargaining purposes , and expressed the hope that it would hear from the Respondent "at your earliest convenience so we can work out a satisfactory agreement." The Respondent admitted that it received but ignored and did not answer this letter. The Respondent contended at the hearing that it did not know whether the Union represented a majority of its employees or not. In the absence of other unfair labor practices such a position might be legally tenable. In any event, if the Respondent did entertain any real doubts or uncertainty that the Union did in fact represent a majority of the employees in the appropriate bargaining unit, the Respondent could have called upon the Union to establish its authority to represent a majority of such employees in an agreed- upon appropriate unit , or could have suggested to the Union that it avail itself of the Board's process for a representation election. Instead of doing this the Respondent entered into the campaign of unfair labor practices which I have discussed above . As the Board stated in International Broadcasting Corporation , 99 NLRB 130, 133: Whether or not the Respondent was entitled to question the appropriateness of the unit proposed by the Union on March 23 and seek a resolution of that question by the Board, it clearly was not privileged to utilize the delay necessarily incident to a Board pro- ceeding to engage in coercive conduct, such as threats of reprisals and interrogation calculated to deter its nonunion announcers from joining the Union , and its union announcers from remaining members thereof. It was the duty of the Respondent to refrain from disturbing the status quo by coercive conduct pending the resolution of the representation question , and permit the Union to have a free opportunity to in- crease and retain its membership by legitimate organizational activity ... (Emphasis supplied.) The rule announced in the International Broadcasting case has been followed by the Board and the courts in many other reported decisions. See D. H. Holmes Company v. N. L. R. B., 179 F 2d 876 (C.A.5); Franks Brothers Company v. N. L. R. B., 321 U. S. 702, 704; Stow Manufacturing Company, 103 NLRB 1280. 7 See Western Cotton Oil Company, 95 NLRB 1433. 8Syracuse Color Press, Inc , 103 NLRB 377, and cases therein cited. FLINT RIVER MILLS, INC. 485 I find and conclude that Respondent's violations of Section 8 (a)(1) and (3) of the Act, as set forth above, show in whole context that the actions of the Respondent were in derogation of the Union's right to act as bargaining agent and was a refusal to bargain in violation of Section 8 (a) (5) of the Act.9 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 certain unfair labor practices, I will recommend that the Respondent cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. I have found that beginning on or about August 21, 1952, the Respondent discriminated against James A. Miller, Jr., and therefore recom- mend that the Respondent be ordered to offer James A, Miller, Jr., immediate reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay suffered by him as a result of the discrimination by payment to him ofa sum of money equal to the amount which he would normally have earned as wages, from August 21, 1952, the date of the discrimination, until such time as he is offered reinstatement , less his net earnings during that period. w The back pay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. In addition, I will recommend, in accordance with the Woolworth decision , that Respondent make available to the Board , upon request, payroll and other records to facilitate the checking of the amount due. The Respondent has interfered with , restrained , and coerced its employees in the exercise of their rights under the Act, and has also committed acts of discrimination with regard to the tenure of employment of its employees. The latter is a form of unfair labor practice which has been held to "go to the heart of the Act." I am convinced that there is a danger of re- petition by the Respondent of the unfair labor practices directed against its employees. 'Therefore, to make effective the interdependent guarantees of Section 7 of the Act , prevent a recurrence of unfair labor practices, and thereby effectuate the policies of the Act, I will recommend that Respondent be ordered to cease and desist from infringing in any manner upon rights guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Stone and Allied Products Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its 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. 3. By discriminating in regard to the tenure of employment of James A. Miller, thereby discouraging membership in the United Stone and Allied Products Workers of America, CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By its refusal to bargain with United Stone and Allied Products Workers of America, CIO, as well as other conduct found above, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 9 Louisville Container Corporation, 99 NLRB 81. ioCrossett Lumber Company, 8 NLRB 44; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.