Etiwan Fertilizer Co.

ETIWAN FERTILIZER COMPANY 93 unit sought by the Petitioner, which tends to approach the optimum unit.' In these circumstances, we find, therefore, that the employees in the editorial, promotion, and art departments together constitute a single unit appropriate for the purposes of collective bargaining. The Petitioner would include, as an employee in the editorial de- partment, a cartoonist who the Employer contends is an independent contractor. This cartoonist supplies cartoons directly to the Em- ployer, similar to a syndicated feature. He is not on the Employer's payroll but has a contract according to the terms of which he sells three or more cartoons a week to the Employer on a fee-per-cartoon basis. In these circumstances, we find that the cartoonist is an in- dependent contractor and we exclude him from the unit. Accordingly, we find that all employees in the editorial, promotion, and art departments, at the Employer's Philadelphia, Pennsylvania, plant, but excluding all other employees, the editor, heads of the sports and photographic subdivisions, promotion manager or director, the art director, the cartoonist, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Acts [Text of Direction of Election omitted from publication.] 5 The Item Company, supra, at 1263. 9 Because the editor, the heads of the sports and photographic subdivisions of the editorial department , and the promotion manager or director have the authority to hire and fire employees , we find that they are supervisors and exclude them from the unit. Etiwan Fertilizer Company and International Union of Mine, Mill and Smelter Workers ( Independent), Charleston Ferti- lizer and Chemical Workers Local No, 863. Case No. 11-CA-738. July 11, 1955 DECISION AND ORDER On November 4, 1954, Trial Examiner Alba B. Martin issued his Intermediate Report in the above-entitled proceeding, finding that the Employer had engaged in and was engaging in certain unfair labor practices 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 Re- spondent filed exceptions to the Intermediate Report and a supporting brief. On February 8, 1955, the Respondent moved to dismiss the com- plaint in this proceeding because of the Board's February 1, 1955, de- termination that International Union of Mine, Mill and Smelter Workers, with which the Charging Union is affiliated, was not in com- 113 NLRB No. 11. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pliance with Section 9 (h) of the Act.' On February 25, 1955, the Court of Appeals for the District of Columbia issued an order pen- dente lite, staying the aforesaid determination as of February 1, 1955, and on April 18, 1955, denied a motion to vacate or modify the stay.' In these circumstances, the Respondent's motion to dismiss the com- plaint herein is denied. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following modifications, addi- tions, and exceptions. 1. The Respondent moved to dismiss the complaint, or in the alter- native, to remand the proceeding for additional evidence, on the ground that it is in the transportation business and that it does not meet the Board's jurisdictional standard announced in the Edelen case.' While we agree that the Respondent may be a part of the trans- portation industry, we find no merit in its motion for the following reasons: At Charleston, South Carolina, the Respondent operates, as a sin- gle integrated enterprise, a fertilizer manufacturing plant and a ship- ping terminal for the receipt and handling of imports and exports from foreign and out-of-State parts. At its shipping terminal, the Respondent is engaged in a general warehouse business. It furnishes warehouse services such as unloading, bagging, and storing materials received from outside the State of South Carolina, and, at the direc- tion of the owners, reships them. During the calendar year 1953, it handled $10,000,000 worth of out-of-State materials of which it re- shipped 30 percent outside the State. During the fiscal year ending June 30, 1954, the Respondent derived about $481,700 from its ship- ping terminal operations. Accordingly, as the Respondent's ship- ping terminal operations constitute a link in the chain of interstate commerce and as its annual income received therefrom totals in ex- cess of $100,000, we find, as did the Trial Examiner, that the Re- spondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein.' 'See Maurice E Tiavis, Secretary-Treasurer, International Union of Mine, Mill and Smelter Workers ( Ind) and Compliance Status of International Union of Mine. Mill and Smelter Workers (Ind ), 111 NLRB, 422 2 See International Union of Mine, Mill and Smelter Workers v. Farmer, et at , 35 LRR\T 2577 and 36 LRRM 2037 s Edelen Ti ansfer and Storage Company, Inc, 110 NLRB 1881 4 Edelen Transfer and Storage Company, Inc., supra; United Warehouse and Terminal Corporation, 112 NLRB 959. ETIWAN FERTILIZER COMPANY 95 2. The Trial Examiner concluded that the Respondent violated the Act by discriminatorily discharging the seven complainants involved herein. While we agree with the Trial Examiner's ultimate conclu- sion as to 3 of the complainants, Gadsden, Leathers, and Stewart, we do not necessarily rely upon all of his reasoning, nor can we accept his conclusion that the Respondent discriminatorily laid off the re- maining 4 complainants, Mack, Buncombe, Glenn, and Wise. The record shows that all seven complainants had previously worked for Naco Fertilizer Co., located a block away from the Respondent. Four of the complainants had participated in the strike at Naco, called by the Charging Union herein on August 17, 1953. Three other com- plainants had been on seasonal layoff before the strike. All the com- plainants except Wise had worked for the Respondent for periods of a few weeks to a few months prior to April 7, 1954. Wise had worked for the Respondent during the whole of 1953. On April 7, 1954, pursuant to a Decision and Direction of Election of this Board, the Regional Director for the Eleventh Region con- ducted an election by secret ballot among the Naco employees to deter- mine whether or not they desired to be represented by the Charging Union. Each of the seven complainants, by this time employed at the Respondent's plant, went to the polling place at Naco on his own time and cast his ballot.' On April 8, 1954, the day following the Naco election, 10 employees, including the 7 complainants, were laid off by Respondent for what was claimed to be a normal seasonal decline in business.' The Trial Examiner rejected the Respondent's explana- tion that the layoff was economically justified, but found, instead, that the seven complainants had been selected for layoff discriminatorily because of their participation in the Naco election. While we agree with the Trial Examiner's findings as to Geathers, Stewart, and Gadsden, we do so only because we believe that the Re- spondent, by its action, expected to discourage or prevent the advance of union sentiment and organization in its plant. The parties stipu- lated that the Respondent "has never been organized and never union- ized, and never had a contract with any union for any of its activities." The record shows, and we fmd, that it was the Respondent's desire to maintain this nonorganized and nonunionized status free of a col- lective-bargaining contract, and that it equated voting in the Board- conducted election at the Naco plant with bringing a union into the 6 Charleston Plant of Naco Fertilizer Co , Case No. 11-RM-25, not repot ted in painted volumes of Board Decisions and Orders 9 Contrary to the Trial Examiner , who assumed that the complainants voted without challenge, the record in the Naco representation proceeding, not judicially noted by the Trial Examiner , reveals, and we find, that none of the complainants were on the voting eligibility list, and that all were challenged by the Board agent, whose action was sus- tained by the Board on June 24, 1954 7 From April 2 to 8, Respondent laid off 34 employees , including the 7 complainants. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's own plant. Thus, the credited testimony shows that, shortly after complainant Geathers was hired by the Respondent, Superintendent Kelly inquired of another employee concerning Geather's union attitude and whether he would "try to bring the union into Etiwan." Subsequently, Kelly advised employee Geathers, "You got a steady job, but I don't want any union"; to which the latter re- plied, "No, sir, I ain't going to try to make no union at all." Several weeks following his layoff, Geathers was informed by Superintendent Kelly that he had been laid off because, "You told me a lie. You told me you was not going to bring in [the] union"; and "You went over and voted in that election and you told me a lie." From the context of the above statements, it is patent that Superintendent Kelly's con- cern was not with Geathers' voting per se or with his lying about it, but rather with the fact that voting in the Naco election indicated to Kelly the first step in the initiation of union organization and repre- sentation at the Respondent's plant.8 Whether voting did or did not foreshadow future activity at the Respondent's plant, we are convinced, and we find, that the Respondent believed such to be the case. In its belief that the voting in the Naco election threatened the maintenance of its nonunionized and non- organized status, the Respondent took affirmative action to preserve this status by preventing or forestalling what it believed to be the ad- vent of the Union into its plant. And with knowledge of their par- ticipation in the Naco election,' it discharged not only employee Geathers, but also employees Stewart and Gadsden. It is well established that violations of the Act may be found in conduct based upon a respondent's belief, true or false, as to the union activities of his employees.10 In these circumstances, we find, in agree- ment with the Trial Examiner, that the Respondent violated Section 8 (a) (3) and (1) of the Act by discriminatorily discharging Geathers, Stewart, and Gadsden in the belief that it would maintain a nonunion status at the plant, and would forestall any future union activity there. The Trial Examiner found that the Respondent had also discrimina- torily discharged the four remaining complainants, Glenn, Bun- 8 See St. Louis Car Co., 108 NLRB 1523 , at pp. 1525-6, where the Board found dis. criminatory a discharge of an employee who gave an untruthful answer to a question concerning union activities. 9 The credited testimony shows and supports this finding of knowledge as to Stewart and Gadsden. Thus, Superintendent Kelly told Stewart the day after his discharge that, "You went to vote at Naco the other day," and "that is the reason I laid you off " Ac- cording to Gadsden at the time of the layoff , Gadsden's supervisor , "The Reverend ," asked him whether he had voted in the Naco election, to which Gadsden responded in the affirma- tive. Thereupon, "The Reverend" stated that he had orders from Superintendent Kelly "not to work any man in the shop that took part in that election , to lay him off," thus indicating knowledge through the Company's supervisor , "The Reverend " 10 Serv -Air Aviation, Stallings Air Base, 111 NLRB 689 ; B. V. D. Company, Inc., 110 NLRB 1412 ; Colonial Fashions, Incorporated, 110 NLRB 119T ; New York Telephone Com- pany, 89 NLRB 383. ETIWAN FERTILIZER COMPANY 97 combe, Wise, and Mack, because they had participated in the Naco election. We do not agree. There is no direct evidence in the record to indicate that the Respond- ent knew that any of these four complainants had voted, thus confirm- ing the Trial Examiner's finding of an absence of direct proof that the voting was the reason for their layoff. The Trial Examiner con- cluded, nonetheless, that because Superintendent Kelly, "learned in his own way that Geathers and Stewart had voted-contrary to what Stewart had told him," "it is likely that he also learned who else had voted." [Emphasis supplied.] We do not believe that the Respond- ent's knowledge of Geather's, Stewart's, and Gadsden's participation in the Naco election justifies an inference that the Respondent was also aware of the fact that the other four complainants had likewise voted. Furthermore, the Trial Examiner improperly relied upon an admittedly hearsay statement attributed to Superintendent Kelly, to establish that Kelly, in fact, had given instructions for the discharge of employees who voted in the election." In addition to the foregoing, it is significant that the Respondent had been engaged in a seasonal economic layoff involving 34 employees, and had subsequently reemployed 3 of the complainants and offered employment to a fourth. Under these circumstances, therefore, and upon the entire record, although it may not be entirely free from doubt, we are not persuaded that the General Counsel has established by a preponderance of the evidence that the Respondent discrimina- torily discharged complainants Glenn, Buncombe, Wise, and Mack. Accordingly, we shall dismiss so much of the complaint as relates to their discharges. 3. Because the Respondent equated voting in a Board-conducted election at the Naco plant with possible future union activity at its own plant, we agree with the Trial Examiner that the Respondent violated Section 8 (a) (1) of the Act by inquiring of employees whether they had voted in a National Labor Relations Board election, by telling employees that they were laid off for voting in a Board elec- tion, and by telling an employee he would not be given a raise because he had "dragged" the other employees off to vote. ORDER Upon the basis of the above findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Rela- 11 See supra, footnote 9, with respect to Gadsden 's testimony in this respect. We may properly consider Gadsden's testimony to indicate knowledge on the part of Gadsden's supervisor ; but we cannot use it to establish such knowledge on the part of anyone else. 5 Wigmore on Evidence, Sec. 1361: N L. R B v I) ant & Russell, Ltd, 207 F. 2d 165 (C. A 9) ; N. L. R. B. v. Thomas Drayage & Rigging Co., use., 207 F. 2d 815 (C. A. 9). 98 DECISIONS OF NATIONAL LABOR RELATIONS BOAR. tions Board hereby orders that the Respondent, Etiwan Fertilizer Company, Charleston, South Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Union of Mine, Mill and Smelter Workers (Independent), Charleston Fertilizer and Chemical Workers Local No. 863, or any other labor organization of their employees, by discriminating in regard to their hire and tenure of employment or any term or condition of their employment. (b) Interrogating their employees as to whether they had voted in an election conducted by the National Labor Relations Board, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (c) Telling employees that they were laid off for voting in an election conducted by the National Labor Relations Board. (d) Telling employees they would not be given a raise because they had urged other employees to vote in an election conducted by the National Labor Relations Board. (e) In any other 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 the above-named Union, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Robert Gadsden and James Geathers immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed. (b) Make whole Robert Gadsden, James Geathers, and Jacob Stew- art for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, in accordance with the recommendation set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post at the fertilizer plant, nitrate plant, and shipping terminal in Charleston, South Carolina, copies of the notice attached hereto and marked "Appendix A." 12 Copies of said notice, to be furnished 12 In the event that this Order is enforced by a decree of a United States Court of Appeals, these 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." ETIWAN FERTILIZER COMPANY 99 by the Regional Director for the Eleventh Region of the Board, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent and maintained by it for sixty (60) con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director 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 be, and it hereby is, dis- missed, insofar as it alleges that the Respondent violated the Act by laying off or discharging employees Ferdie Glenn, Paul Buncombe, Francis Wise, and Sam Mack. MEMBER MURDOCK, concurring in part and dissenting in part : I agree with my colleagues that the Respondent violated Section 8 (a) (1) by interference, restraint, and coercion. I also concur with their conclusions finding violations of Section 8 (a) (3) as to Geathers, Stewart, and Gadsden. However, I cannot agree with their reversal of the Trial Examiner's finding of a violation in the discriminatory lay- off of Glenn, Buncombe, Wise, and Mack. My colleagues have reversed the Trial Examiner with respect to these employees because, they say, there is no direct evidence that the Respondent had knowledge that those four dischargees had voted in the election at Naco. It has, of course, been long established that the absence of direct evidence of knowledge in discrimination cases does not preclude a finding by the Board that such knowledge existed and discrimination occurred. The Supreme Court of the United States long ago declared in N. L. R. B. v. Link-Belt Company, 311 U. S. 584, at 602 (January 6, 1941) : The Board was justified in relying on circumstantial evidence of discrimination and was not required to deny relief because there was no direct evidence that the employer knew these men had joined Amalgamated and was displeased or wanted to make an example of them. [Emphasis supplied.] The majority also states that the Trial Examiner improperly relied upon a "hearsay" statement by Supervisor Bowles to Gadsden to estab- lish that Superintendent Kelly had given instructions to discharge all employees who had voted in the Naco election, although they find that they may properly consider such testimony to indicate knowledge by the Respondent that Gadsden had voted. However, even if the testi- mony by Gadsden of Bowles' statement is considered as hearsay, it would still have probative value. My colleagues apparently and erroneously assume that there is some general prohibition against the 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD use of hearsay evidence by the Board . Yet under the circumstances here present judicial authority supports the right of the Board to utilize hearsay evidence. The Gadsden testimony was admitted with- out objection at the hearing. It was, moreover , uncontradicted ; Kelly, who was present and testified as a witness for the Respondent and could have denied it, did not deny giving this instruction to Bowles ; nor was Bowles called to testify. Under these circumstances the rule enunci- ated by the Court of Appeals for the Seventh Circuit in American Rubber Products Corp. v. N. L. R. B., 214 F. 2d 47, June 18 , 1954, would seem applicable. There the court, holding that hearsay evidence ad- mitted without objection "must be considered and given its natural pro- bative effect," quoted from the Supreme Court of the United States in Diaz v. U. S., 223 U. S. 442, as follows : . .. So, of the fact that it was hearsay, it suffices to observe that when evidence of that character is admitted without objec- tion, it is to be considered and given its natural probative effect as if it were in law admissible. In any event, this testimony of Gadsden as to the Respondent's manifested intent to rid itself of those employees who had, in its be- lief, threatened the continuation of its unorganized status is but part of the evidence upon which the Trial Examiner found , and I believe correctly, that the Respondent had discriminatorily discharged or laid off the seven employees . It is clear that the Respondent did in- terrogate employees as to whether they had voted , that the Respond- ent made statements evincing the belief that those who voted intended to organize its plant, that all those who voted were fired or laid off the same day-the day after the election-and that three employees who had voted were discharged for doing so and were told that was the reason for their discharges. In my opinion the reasonable view of this evidence warrants the inference that the Respondent discriminatorily discharged or laid off Glenn, Buncombe, Wise, and Mack, as well as the other three em- ployees, for having voted, in violation of 8 (a ) (3) and ( 1) of the Act, and I would adopt the Trial Examiner 's recommendation in this re- spect. 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 interrogate our employees as to whether they have voted in an election conducted by the National Labor Relations Board. ETIWAN FERTILIZER COMPANY 101 WE WILL NOT inform any of our employees that they have been laid off for voting in an election conducted by the Board. WE WILL NOT inform any of our employees that he will not be given a raise because he has urged other employees to vote in an election conducted by the Board. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist International Union of Mine, Mill and Smelter Workers (Independent), Charleston Fertilizer and Chemical Workers Local No. 863, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act. WE WILL NOT discourage membership in International Union of Mine, Mill and Smelter Workers (Independent), Charleston Fertilizer and Chemical Workers Local No. 863, or any other labor organization of our employees, by discriminating in any manner with regard to their hire and tenure of employment, or any term or condition of employment. WE WILL offer to Robert Gadsden and James Geathers im- mediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed. WE WILL make whole Robert Gadsden, James Leathers, and Jacob Stewart for any loss of pay suffered by them by reason of the discrimination practiced against them. All our employees are free to become, remain, or refrain from be- coming or remaining members of the above-named Union or any other labor organization except to the extent that this right may be af- fected by an agreement in conformity with Section 8 (a) (3) of the amended Act. ETIWAN FERTILIZER COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the Labor Management Rela- tions Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Charleston, 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD South Carolina, on August 17, 1954, pursuant to notice to all the parties. The com- plaint, issued on July 23, 1954, by the General Counsel of the National Labor Relations Board 1 and based on charges duly filed and served, alleged that the Re- spondent had engaged in unfair labor practices proscribed by Section 8 (a) (1) and (3) of the Act. The complaint alleged that Respondent interrogated and threatened its employees because of their union activities and discharged seven employees on April 8, 1954, because of their union and concerted activities. In its answer Re- spondent denied the commission of any unfair labor practices. All parties were represented at the hearing and were afforded opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. No party made oral argument or filed a brief. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Etiwan Fertilizer Company, a South Carolina corporation, is engaged at Charles- ton, South Carolina, in the operation of a shipping terminal for the receipt and handling of imports from and exports to foreign countries, and in the manufacture and sale of fertilizers. It runs both the shipping teiminal and the fertilizer business as one integrated enterprise under the same management. Both are under the same superintendent and the employees of both are carried on the same payroll. The employees are interchanged at the convenience of management. For its own con- venience Respondent tries to distinguish the shipping terminal under the name of Shipyard River Terminal, Division of Etiwan Fertilizer Company. Respondent's attorney stated that the shipping terminal business consists largely of unloading materials which come in from foreign and other out-of-State ports, putting them in storage warehouses, handling and bagging them, and generally doing a warehouse business for the owners of the material; and at their request shipping them out to their orders. The parties stipulated that during the calendar year 1953, in the operation of its shipping terminal, Respondent handled materials valued at about 10 million dollars, all of which came to the shipping terminal from foreign nations and other States than South Carolina, and that approximately 30 percent of this material was shipped to points outside of South Carolina. It was further stipulated that during its fiscal year ending June 30, 1954, Respond- ent made a gross income of approximately $1,217,300, which included approximately $735,556 from the sale of fertilizer and approximately $481,700 from the shipping terminal operations During the same period Respondent purchased materials valued at approximately $442,134, of which approximately two-thirds was shipped to Respondent directly from outside of South Carolina. From the above it appears that Respondent's enterprise is an instrumentality and channel of foreign and interstate commerce, and that it handles goods destined for out-of-State shipment which are valued at considerably over $50,000 a year. Re- spondent is therefore a company over which the Board has jurisdiction and over which, under its present standards, the Board will assert its jurisdiction. WBSR, Inc. 91 NLRB 630; Stanislaus Implement and Hardware Company, Limited, 91 NLRB 618, NLRB Press Release, July 1, 1954. I find that Respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Union of Mine, Mill and Smelter Workers (Independent), Charleston Fertilizer and Chemical Workers Local No. 863, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The seven employees specifically involved herein, Jacob Stewart, Robert Gadsden, Francis Wise, Sam Mack, Ferdie Glenn, Paul Buncombe, and James Geathers, had previously woiked for another company, National Agricultural and Chemical Com- pany (Naco), located 1 block away from Respondent. At least six of them had 'The General Counsel and the staff attorney appearing for him at the hearing are rofeiied to herein as the General Counsel and the National Labor Relations Board as the Boai d ETIWAN FERTILIZER COMPANY 103 worked there for a period of years. Four of them, Stewart, Geathers, Gadsden, and Glenn, participated with the other employees of Naco in a strike of its plant which began August 17, 1953, two others, Mack and Buncombe, had been laid off at Naco shortly before the strike At the time of a Board-conducted election at Naco on Apiil 7, 1954 (the exact nature of which was not disclosed), all seven had been working for Respondent for periods of a few weeks to a few months While employed by Respondent Etiwan, all seven of these employees, on their own time either before or after work hours, on April 7 went to the polling place at the Naco election and cast their ballots. The record is silent as to whether any of their votes were challenged. In the absence of any proof to the contrary it is fair to assume that their right to vote was not challenged. There is no direct evidence as to whether or not in fact they were entitled to cast ballots in this election. Respondent did not contend that they had no such right. From the entire record it is clear that all of the men thought they had such a right. As they voted, and as Respondent did not contend they had no right to vote, I hold that their participating in that election was proper and protected activity. The following day, April 8, 1954, these seven employees were laid off, discrimina- torily according to the General Counsel, merely because of a normal seasonal slump according to Respondent. The parties stipulated that Respondent "has never been organized and never unionized and never had a contract with any union for any of its activities." Jacob Stewart testified that the day after the election (Paul Buncombe, who over- heard the conversation, placed it on the day of the election) Superintendent J. H. Kelly (who was in charge of Respondent's operation) came over to him and asked him if he had voted in the election. Stewart replied that he had not. That afternoon Kelly told Stewart that at the end of the day's work he should stop by the office. When he did so, Spencer Means, secretary of Respondent, paid him off, told him that would be all for him, and asked him to turn in his badge. It is clear on the entire record that when an employee was asked to turn in his badge he was being severed, whether temporarily or permanently. On April 9, 1954, the day after his layoff, according to the testimony of Jacob Stewart, he went back to the plant and talked with Kelly about why he had been laid off. Kelly said, "You went to vote at Naco the other day." When Stewart acknowledged that he had, Kelly replied, "Well, that is the reason I laid you off " On April 19, Stewart was hired back on a special job Respondent was doing, tearing down the old union station in Charleston which Respondent had bought and was going to use some part of. At about that time, according to Stewart, Superintendent Kelly told him that Stewart was crazier than he thought I was, he had already done give me a raise 2 and planning on giving me another raise and my dragging all of his men off to vote, and 11 he said, "Well, you don't get no raise. .. . Some 2 weeks later Stewart was hospitalized for a few days, and after his release went to the plant and asked Mr. Kelly about some money, and he said he could not let me have no money I had done enough to him already and done drag all the men off to go vote and then come in and want to borrow money to pay my debts, and he said he would not let me have any. The testimony of both Kelly and Stewart indicated that it was customary for Stewart to borrow money from Kelly, and according to Stewart, Kelly had never before refused him a loan. James Geathers testified that he worked for Etiwan for 2 or 3 months prior to his layoff on April 8, 1954. Thus his employment began in January or February 1954. A couple of days after Geathers was hired by Superintendent Kelly, the latter had a conversation about Geathers with Jacob Stewart, according to the testimony of Stewart. Kelly asked Stewart "about" Geathers. . .. he asked me and I told him he was all right, he could drive a tractor and sew bags and also he could hang bags, and he said he was not speaking of that, he said it was concerning the union, what kind of a man, would he try to bring the union in at Etiwan, and I told him no, I did not think he would be a fellow of that kind to try to bring the union in to Etiwan. 0 9 About a month after going to work for Respondent, Steward had been given a raise of 15 cents pei hour 379288-56-vol 113-8 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Geathers testified that several weeks after he was hired Superintendent Kelly said to him, "You got a steady job but I don't want any union." Geathers replied, "No, Sir, I ain't going to try to make no union here at all." The day after the Naco election William L. Smith, his foreman, told Geathers that "Mr. Kelly said I must report to the office and knock off." When he did so Means asked him to hand in his badge, returned the employee's deposit for the badge, and gave him the wages due him. Sometime during the next several weeks Geathers talked with Superintendent Kelly at the union station job. After a few words on the progress of the work there, in substance Kelly told Geathers, according to the latter, that he was laid off because he lied to Kelly when he told him he was not going to try to bring the Union into Etiwan. "You went over and voted in that election and you told me a lie." Geathers replied, "Well, I did not know that had anything to do with your plant " On this occasion Kelly also told Geathers that he could return in a week or two and Kelly would give him a job. On Friday, April 9,3 1954, the second day after the election at Naco, "The Rev- erend," who hired and laid off Robert Gadsden, and gave him orders, asked Gads- den, according to the latter, "was I took part in that election at Naco Fertilizer a couple of days ago and I told him yes." Then "The Reverend" told Gadsden that he had orders from Kelly "not to work any man in the shop that took a part in that election, to lay him off." Then "The Reverend" told Gadsden he could work until noon , at which time he was paid off. The parties stipulated that "we feel fairly sure that this reverend is one named Nathaniel Bowles, he was in charge of the machine shop and is no longer with [Respondent]." As "The Reverend" hired and laid off, gave orders on behalf of Respondent, was felt by Respondent's counsel (who formulated the stipulation after consulting with his client off the record) to have been Nathaniel Bowles who was in charge of the machine shop, I hold that "The Reverend" was Nathaniel Bowles and that Nathaniel Bowles was a supervisor within the meaning of the Act. Superintendent Kelly did not make convincing denial of the above interrogations and statements attributed to him. He testified that for several years he has known that an employer cannot legally attempt to coerce or frighten employees in labor union matters, but did not refer to interrogations. Asked if Stewart's statements concerning his conversations with Kelly "about his union activities and participat- ing in the Naco election" were correct or not, Kelly replied, If I made any reference to the union to Jake Stewart or any other members that have been up here today, whoever said that I did, I don't have any mem- ory of making a statement. Asked by Respondent's counsel, "And you believe their statements there to the ef- fect that you did speak to them and question them regarding their labor union activity with particular reference to this election, those statements that you heard them make are incorrect so far as you know?" Kelly replied, "Yes." If, as he testified, Kelly had no remembrance of the conversations, his belief concerning them can have no weight. Asked if he ever told an employee that he was going to give him a permanent job, Kelly replied, "I don't consider I have one myself." Pressed more closely as to whether Geathers (and Stewart) were correct in stating that Kelly said he would give them permanent jobs, Kelly replied, "No." Nathaniel Bowles was not called to testify, and no claim was made that he was unavailable to testify. Conclusions By their demeanor on the witness stand Jacob Stewart, Paul Buncombe, James Geathers, and Robert Gadsden appeared to me to be credible witnesses honestly re- lating as nearly as they could remember conversations they had participated in or overheard. In view of this, the fact that Kelly did not convincingly and unquali- fiedly deny the interrogations and statements attributed to him, and the fact that Bowles was not called to testify and was not claimed to be unavailable, I credit the above testimony of Stewart, Buncombe, Geathers, and Gadsden It is held, as tes- tified in substance by these employees, that: (1) In January or February 1954, Su- perintendent Kelly inquired of Stewart whether Geathers was the kind of a man who would try to bring the Union into Respondent's plant-presumably referring to the Union which had been active at Respondent's neighbor a block away, Naco, since 1947; (2) in early 1954 Kelly told Geathers he didn't want any union at Re- 9 The correct date of this conversation was April 8, the day when, according to Respond- ent's payroll records, all seven of the employees were laid off ETIWAN FERTILIZER COMPANY 105 spondent's plant; (3) shortly after the election at Naco Kelly asked Stewart and Bowles asked Gadsden if they voted in the election; (4) shortly after the election at Naco Kelly told Stewart he was laid off because he had voted at the election and Bowles told Gadsden, in laying him off, that Kelly told Bowles not to work and to lay off any man who took part in the election; (5) after his layoff Kelly told Geath- ers he was laid off because he voted at the election, which indicated he had previ- ously lied to him in telling him he was not going to try to bring the Union into Re- spondent; (6) on about April 19, 1954, Kelly told Stewart he would not give him the raise he had been planning to give him because Stewart had "dragged" his men off to vote; and (7) about the end of April Kelly told Stewart he would not loan him any more money because he had "dragged" the men off to vote. The question remains as to whether any of these interrogations and statements were violations of Section 8 (a) (1) of the Act. As to (4) and (5), it is clear that in speaking to the employees concerned as they did, Kelly and Bowles were acting in their capacities as superintendent and fore- man (or supervisor) and were making it plain that the employees were being laid off or had been laid off because they had exercised what they thought was their protected right under the Act to vote in the Naco election. Regardless of the rea- son for the layoff, in the absence of any contention by Respondent that the employees did not have the right to vote in that election I hold that telling them they were laid off for voting was interference with, restraint, and coercion of the rights guaranteed in Section 7 of the Act, Respondent thereby violating Section 8 (a) (1) of the Act. As to (2), Kelly's statement carried with it no express or implied threat or promise and was therefore a protected expression of Kelly's view within the meaning of Section 8 (c) of the Act. As to (3), on the entire record considered as a whole I hold that the inquiries were made not out of idle curiosity and not in isolation, but to gather information to be used in an impending layoff, Respondent thereby interfering with, restraining, and coercing employees in the rights guaranteed in Section 7, thereby violating Section 8 (a) (1) of the Act. As to (1), Kelly's inquiry did not relate to any present union activity at Respond- ent's plant, and it contained no suggestion of a threat or promise; I find that it was not a violation of Section 8 (a) (1). As to (6), in assigning Stewart's "dragging" the men off to vote as the reason for his not getting a raise, Respondent, through Kelly, interfered with, restrained, and coerced employees in the rights guaranteed in Section 7, Respondent thereby violating Section 8 (a) (1). As to (7), the charge in this case was filed April 20, 1954, and Kelly's statement was made thereafter. Even if Kelly's statement was a violation of the Act, under Section 10 (b) no unfair labor practice can be found. Knickerbocker Manufacturing Company, Inc., 109 NLRB 1195. B. The layoffs Kelly's inquiry in January or February 1954 concerning Geathers' union attitude, together with his statement to Geathers that he didn't want any union at Respondent's plant, indicate that Respondent through its superintendent was interested in preserving its status of being never organized, never "unionized," and never under any con- tract with any union. The record shows that Respondent had a fluctuating number of employees and a pattern of frequent, though sometimes short, layoffs. Kelly testified when a layoff was called for he did not himself select the employees who were to be laid off, but simply told the foremen how many to lay off from each gang and let the foremen do the selecting. Although in his conversation with James Geathers at the union station job, Kelly referred to Geathers' having previously lied to him, he made it clear that he considered this to be so because Geathers had voted at the Naco election, which Kelly interpreted as an act by Geathers towards bringing the Union into Respondent's plant contrary to his earlier indication of intention not to. It is clear under all the circumstances that the real cause of the layoff of Geathers was the fact that Geathers had voted in the election. Although the testimony to the effect that Kelly told Nathaniel Bowles not to work and to lay off any man who took part in the Naco election was hearsay, under all the circumstances of this case I credit it as the truth. It was stated to Gadsden by Bowles at the time the latter was telling Gadsden his services were no longer needed. Kelly was on the witness stand and did not deny giving any such instruc- tions to Bowles. Bowles was not called to testify. As found above, Kelly himself 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told at least two employees, in substance, that they were laid off because they had voted at the election. Under all the circumstances, I find that Kelly instructed Bowles to lay off any employee in the machine shop who voted in the election. The record discloses no reason why Kelly should have so informed at least two employees and so instructed Bowles if he didn't mean just what he said. The record does not disclose why Kelly should have wanted to lay off the employees who voted in the election, unless it be that he thought the employees' interest in the Union to the extent that they would go over and vote might be sufficient interest to lead them to try to organize the employees at Respondent's plant which he did not wish to happen. On the record considered as a whole, and despite Kelly's denial that he knew about the election at the time of the layoff, which I do not credit, I find that Kelly intended to include in the layoff of April 8, 1954, all his employees who voted in the Naco election. Jacob Stewart testified that the seven employees named in the complaint were Respondent's only employees who voted in the election. In the absence of any evidence to the contrary, I so find Respondent pointed out that the layoff of these 7 men fell during a between- season layoff for business reasons, that 34 were laid off between April 2 and 8, 1954, and that 10 were laid off on April 8, which included the 7 in question and 3 more. Although Respondent had the right, of course, to make layoffs for economic reasons, it did not have the right, in doing so, to make a discriminatory selection of the men to be laid off, as it did here. Here there is evidence that the seven men were selected for layoff because they had participated in the election. In answer Respondent offered no explanation for the selection of these 7 men rather than 7 other men then on its payroll, which included about 135 employees just prior to the layoff of April 8. In substance Respondent points out that the layoffs were merely tem- porary-although the employees were not so informed-and that several of these seven employees were taken back a few days or a few weeks later. The answer to this is that a discriminatory layoff is a discriminatory layoff even though it is temporary, and is a violation of the Act. Conclusions As has been seen above, sometime on April 8, apparently during the morning, when asked by Kelly, Stewart told Kelly he had not voted in the election The next day Kelly told Stewart he had voted in the election. Thus somehow Kelly had learned that Stewart had voted in the election even though Stewart had not told him. Further, although the record does not disclose how he learned it, it is clear that Kelly knew that Geathers had voted at the election. If Kelly learned in his own way that Geathers and Stewart had voted-contrary to what Stewart had told him-it is likely that he also learned who else had voted. As has been seen above, it was Foreman William L. Smith who sent Geathers to the office, where he was paid off, and in doing so Smith told him that the order to do so came from Kelly. On the same day, April 8, Smith also told Sam Mack and Paul Buncombe to go to the office, where Spencer Means paid them off and retrieved their badges. On the same day it was Kelly himself who told Francis Wise to stop at the office, where Means paid him off. The same day Charles Tansburg, nitrate of soda foreman, sent Ferdie Glenn to the office, where Means paid him off and retrieved his badge. Although there is no direct proof that Mack, Buncombe, Wise, and Glenn were laid off because they voted in the election, the fact that Kelly gave out instructions to lay off all who voted in the election and the fact that these 4, as well as Stewart, Geathers, and Gadsden, voted in the election and were the only 7 who did, lend strong credence to the conclusion that all 7 were selected for layoff because they had voted. In sum, the timing of these 7 layoffs immediately after the election, the fact that of Respondent's 135 employees only these 7 voted in the election, considered with the interrogations and statements found above to have been unfair labor practices and Kelly's intention to include in the April 8 layoff all employees who had voted in the election, is weighty proof that these particular 7 employees were selected for lay- off by Kelly and the foremen because they had voted in the election. If there was any other reason for their selection it was not given in evidence. Nor was any ex- planation made as to why these 7 were not included in the 19 employees laid off on April 6, 1 day before the election, instead of I day after. Section 7 of the Act gives employees, including these seven, the right to "assist" a union and the right "to refrain" from doing so. When they went over and cast a ballot, by the nature of their vote they were either assisting the Union or reframin; ETIWAN FERTILIZER COMPANY 107 from doing so, and in either case were engaging in protected activity under Sec- tion 7. On the record considered as a whole I find that on April 8, 1954, Respondent laid off Jacob Stewart, Robert Gadsden, Francis Wise, Sam Mack, Ferdie Glenn, Paul Buncombe, and James Geathers because of their protected union and concerted activi- ties and for the purpose of discouraging union membership and activity among the employees of Respondent's plant, Respondent thereby violating Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with Respondent's operations 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 Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. Respondent having laid off Robert Gadsden, Ferdie Glenn, and Paul Buncombe because of their union and concerted activities, and not having offered them rein- statement, I recommend that Respondent offer to each of them immediate and full reinstatement to his former or a substantially equivalent position 4 without prejudice to his seniority and other rights and privileges and make each whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from April 8, 1954, the date of the discrimination against them, to the date when, pursuant to the recommendations herein contained, Respondent shall offer them reinstatement, less the net earnings of each during said period 5 Loss of pay shall be determined by deducting from a sum equal to that which these em- ployees would normally have earned for each quarter or portion thereof, their net earnings, 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 quarter. The quarterly periods described herein shall begin with the first day of January, April, July, and October.6 Respondent having laid off Francis Wise on April 8, 1954, because of his union and concerted activities and not having offered him reinstatement until April 19, 1954, I recommend that Respondent make him whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his layoff, April 8, 1954, until the date of his reinstatement, April 19, 1954, less his net earnings during said period. Respondent having discriminatorily laid off Sam Mack on April 8, 1954, because of his union and concerted activities, having reinstated him May 7, 1954, and having nondiscriminatorily laid him off June 10, 1954, I recommend that Respondent make him whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discriminatory layoff, April 8, 1954, until the date of his reinstatement, May 7, 1954, less his net earnings during said period James Geathers was discriminatorily laid off April 8, 1954. Some time while Respondent was tearing down the old union station, which was between about April 14 and May 12, 1954, Superintendent Kelly told Geathers that if he would return in a week or two Kelly would give him a job. For the last 2 or 3 months of his employment by Respondent, which was most of his employment by Respondent, Geathers had "sewed," which presumably meant that he operated a sewing machine and sewed fertilizer bags. It does not appear that when, at the union station, Kelly told him he would give him a job he was offering him reinstatement as a sewer or substantially equivalent work. Accordingly I recommend that Respondent offer to James Geathers immediate and full reinstatement to his former or a substantially 4 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 s Crossett Lumber Company, 8 NLRB 440 , 497-8 , Republic Steel Corporation v. N L.R.B, 311U S.7 0 F. TV. Woolworth Company, 90 NLRB 289 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equivalent position without prejudice to his seniority and other rights and privileges and make each whole for any loss of pay he may have suffered by reason of Re- spondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from April 8, 1954, the date of the discrimination against him, to the date when, pursuant to the recommenda- tions herein contained, Respondent shall offer him reinstatement , less his net earnings during said period. Loss of pay shall be determined as provided in F. W. Woolworth Company, 90 NLRB 289. On April 8, 1954, Jacob Stewart was discriminatorily laid off by Respondent from his job of sewing bags on a sewing machine at the fertilizer plant. Beginning April 19, 1954, Kelly employed him at the union station job. He worked there a week, and then worked a week at the fertilizer plant. Then he underwent some dental sur- gery which kept him away from work for about 2 weeks, 4 days of which were spent in a hospital-during which 2 weeks he kept the plant informed of his incapacity to work. It was just after this hospitalization that he sought and was refused a loan by Kelly, considered above in this report. Then he returned to work, worked 3'/2 days, reported to the hospital for a checkup on Thursday, and reported for work on Friday morning. That Friday morning, May 28, 1954, the assistant superintendent, John Freeman, told Stewart there was nothing for him to do that morning, to come back Monday morning. (Stewart testified there was plenty of work to be done.) Friday being payday, that afternoon Stewart returned to the plant and went to Secretary Spencer Means for his pay. While paying him, Means told him to turn in his badge, that that was all for him, and gave him his $1 deposit for the badge. When Stewart pro- tested that Freeman had told him to come back Monday, Means replied no, that that was all. Stewart then carried his protest to Superintendent Kelly. Stewart reminded Kelly that Kelly knew he had just come out of the hospital, that he had back debts to pay, and the hospital to pay, and that he needed a job Kelly re- plied for him to take the matter up with Mr. Freeman. When Stewart replied that there was no use to take it up with Freeman, Kelly replied "that is all for you to do." Stewart has not worked for Respondent since that day, May 28, 1954 It appears from the above that after his discriminatory layoff Stewart returned to work at the fertilizer plant on April 26, 1954, where he continued to work (except for his own, though involuntary, absences) until May 28, 1954. Although the record does not reveal whether during this period he sewed on the sewing machine or did substantially equivalent work, in the absence of any protest by him as to his assignment it is a fair presumption that he did. As the work at the union station the previous week was on a special and necessarily temporary job, I do not hold that it was substantially equivalent. Respondent having reinstated Stewart to his former or substantially equivalent employment on April 26, 1954, it appears that he was laid off May 28 either because of his absences for illness or for other economic reasons, both regrettable reasons but not illegal. To be noted in this connection is that after Kelly refused him the loan and again referred to Stewart's having dragged the men off to vote, Stewart returned to work and worked 31/2 days, a fact which negatives the earlier voting as a cause of the second layoff. Also, on May 28, in applying for unemployment compensation, Stewart signed a form which included the state- ment, "I was laid off for lack of work." On the record considered as a whole I hold that the layoff of Stewart on May 28 was not discriminatory. On the basis of the above I recommend that Respondent make Jacob Stewart whole for any loss of pay he may have suffered by reason of Respondent's discrimi- nation of April 8, 1954, against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from April 8, 1954, the date of the discrimination against him, to April 26, 1954, the date of his re- instatement to his previous or substantially equivalent employment, less his net earnings during said period. It is recommended further that Respondent make available to the Board upon request payroll and other records, in order to facilitate the checking of the amount of back pay due? Because of the Respondent's unlawful conduct and its underlying purpose and tendency, I find that the unfair labor practices found are persuasively related to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past.8 v F. W Woolworth Company. swpra 8 N L. R B. v. Express Publishing Co , 312 U S 426. SOUTH FLORIDA LIQUOR DISTRIBUTORS, INC. OF TAMPA 109 The preventative purpose of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantee of Section 7, to prevent a recurrence of unfair labor practices, and thereby to mini- mize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I will recommend that Respondent cease and desists from in any manner infringing upon the rights guaranteed in 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. Etiwan Fertilizer Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. - 2. International Union of Mine, Mill and Smelter Workers (Independent), Charleston Fertilizer and Chemical Workers Local No. 863, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 3. During the first several months of 1954, by inquiring of employees whether they had voted in a National Labor Relations Board election, with the-purpose of using the information in an impending layoff; by telling employees they were laid off for voting in a Board election; by telling an employee he would not be given a raise because he had "dragged" the other employees off to vote; Respondent in- terfered with, restrained, and coerced its employees in the exercise of rights guaran- teed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Jacob Stewart, Robert Gadsden, Francis Wise, Sam Mack, Ferdie Glenn, Paul Buncombe, and James Geathers; thereby discouraging membership in the Union named in para- graph numbered 2, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) 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.] South Florida Liquor Distributors, Inc. of Tampa I and Inter- national Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America , CIO, Petitioner. Case No. 10-RC-3042. July 11,1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Allen Sinsheimer, Jr., hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is a Florida corporation engaged in business in Tampa, Florida, as a wholesale liquor distributor. The Employer makes no sales outside the State of Florida. In 1954 the Employer paid a total of approximately $1,500,000 for bottled liquors shipped directly to it from out of the State by various distilleries. Of this sum, approximately $1,002,000 represents Federal excise taxes paid by the distillers. The $498,000 balance represents the basic price, or tax 1 The name of the Employer appears as amended at the hearing. 113 NLRB No. 1.