Southern Bleachery & Print Works, Inc.

SOUTHERN BLEACHERY & PRINT WORKS, INC. 299 and that therefore there is no neutral employer, (2) the sole object of the Respondents was the enforcement of a legal. and valid contract with Roy Construc-. tion, and (3) the means used-striking the Roy Construction Chicopee job-was a permissible primary activity and that the effect on Roy Lumber was only incidental. For the reason stated by the Board in Sand Door and Plywood Co.b the Trial Examiner finds no merit to the Respondents' defense that it was engaging in lawful conduct in that it was seeking the enforcement of-a legal and valid contract. This is not, however, the disposition which should be made with respect to the defense which raises the issue as to whether Roy Lumber and Roy Construction are neutrals as to each other or whether either may be considered to be another employer in its relationship with the other. The purpose of the Act's secondary boycott prohibition is to protect innocent neutral third parties from being injured in labor disputes which are not their own concern by preventing the extension of :the area of the controversy beyond the disputants. . . The facts presented by this case do not call for according the same recognition to Roy Lumber and Roy Construction as separate legal entities as may be accorded them in other branches of the laws The 5 Roy brothers, through ownership of all the shares of stock in equal amounts in 4 corporate entities, are actually engaged in a family partnership venture in various phases of the building supply and 'construction business. Roy Construction and Roy Lumber are in reality part of this larger partnership enterprise. By their own arrangement each of the brothers, in effect, shares equally from the profits and losses of these corporate entities. This sharing takes place regardless of the fortunes of a particular corporate entity and regardless of which entity or entities a particular brother or brothers may ,operate for the equal benefit of all. The brothers together constitute the member- ship of the board of directors of Roy Construction, and all except Leo Roy consti- tute the membership of the board of directors of Roy Lumber. Whether or not Edmond and Fred Roy, of Roy Lumber, interfere with or assist Joseph and George Roy as officers and agents of Roy Construction, or vice versa, as directors of both entities these brothers have the power to participate in management decisions including labor relations policy 7 of both, entities and thereby are in a position to resolve the dispute. Roy Lumber and Roy Construction, moreover, are engaged in related businesses, and Roy Lumber supplies all of Roy Construction's require- ments for millwork in the area, or as George Roy explained in his testimony, in purchasing such millwork for Roy Construction "we" are limited to "ourselves," that is Roy Lumber. As equal partners with management powers, the Roy brothers among themselves do not stand in the position of innocent third party neutrals unconcerned in the dispute. Not interfering with and permitting disputants so situated to resolve their own issues would not appear to extend the area of the dispute. Accordingly, and in view of the fact that the Respondents did not induce a strike as to employees other than. those of Roy Construction and that the Respondents did not object to purchases of goods by Roy Construction from employers other than Roy Lumber, it is concluded that the Respondents did not violate Section 8 (b) (4) (A) and .(B) of the Act as alleged, and it is recommended that the complaint be dismissed.$ [Recommendations omitted from publication.] 9113 NLRB 1210 (United Brotherhood of Carpenters). See, for example, Doud8 v. Metropolitan Federation of Architects, etc., 75 F. Supp. '672 (D. C., N. Y.), and N. L. R. B. v. Stowe Spinning Co., 336 U. S. 226. 9 See 2 Flectcher, Private Corporations § 505 (1954). 8 See Irwin-Lyons Lumber Company, 87 .NLRB 54 (National Union of Marine Cooks -and Stewards), and compare National Cement Products Co., 115 NLRB 1290 (Interna- tional Brotherhood of Teamsters). Southern Bleachery & Print Works, Inc. and Machine Printers Beneficial Association. Case No. 11-CA-960. June 24, 195' DECISION AND ORDER On November 5, 1956, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the 118 NLRB No. 33. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom, and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain unfair labor practices alleged in the complaint. Thereafter, the Respondent and the Union filed exceptions to the Intermediate Report, and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Leedom and Members Murdock and Rodgers]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report, the exceptions, the briefs, and entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner insofar as they are consistent with this decision.' The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (4) and (1) of the Act by discharging Charles F. Gantt, Arthur W. Hawkins, Donald B. Long, Ben E. Lynn, and Raymond C. Tedder, because they had testified in another Board proceeding involving the same parties. The Trial Examiner found it unnecessary to decide whether the Respondent had thereby violated Section 8 (a) (3) of the Act also. However, we are of the opinion that such a finding is warranted. It is clear that a discharge for testifying in behalf of a union in a Board proceeding operates to discourage mem- bership in the labor organization. To the same effect is the Board's decision in the Sandy Hill Iron & Brass Works case.' We therefore find that by the discharge of the above five employees for testifying in the representation case,' the Respondent violated Section 8 (a) (3) as well as Section 8 (a) (4) ' and (1) of the Act. ' At one point, the Trial Examiner inadvertently stated that witness Paul Bull was "Excused and then recalled . . ; at another, that the Respondent discharged the five discriminatees involved herein on August 19, 1956, whereas the record discloses that the discharges took place on or about August 19, 1955. As these statements are incorrect, we do not adopt them. However, these minor inaccuracies do not affect the correctness of the conclusions reached by the Trial Examiner, and :adopted in our decision. 3 69 NLRB 355, enfd. 165 F. 2d 660, (C. A. 2). U The Respondent obviously cannot claim it discharged these 5 persons in reliance on the then current decision in that case (not published in printed volumes of the Board's Decisions and Orders), finding them to be supervisors, because the petitioning union filed a petition for reconsideration some 11 days before the discharges, on the basis of which the Board later, at 115 NLRB 787, found these individuals to be employees and vacated its prior decision. 4That the remedies for violations of Section 8 (a) (4) and (3) are substantially the same does not preclude a finding that both sections were violated. Underwood Machinery Company, 79 NLRB 1287, enfd. 179 F. 2d 1.18 (C. A. 1). As we find that the Respondent violated Section 8 (a) (3) for the reasons indicated, it is unnecessary to consider in what other respect the Respondent may have violated Section 8 (a) (3) and the Trial Examiner' s finding in connection therewith. SOUTHERN BLEACHERY & PRINT WORKS, INC. 301 ORDER Upon the entire record in this proceeding, pursuant to Section 10 (c). of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Southern Bleachery & Print Works, Inc., Taylors, South Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain- collectively with Machine Printers Bene- ficial Association as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment. (b) Discouraging membership in Machine Printers Beneficial Asso- ciation, or in any other labor organization of its employees, by dis- charging or refusing to reinstate any of its employees or by discrimi- nating in any other manner in regard to their hire or tenure of ,employment, or any term or condition of employment. (c) Discharging or otherwise discriminating against employees be- cause they have given testimony under the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization,-to form labor organizations, to join or assist Machine Printers Beneficial Asso- ciation or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employ- ment, 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) Upon request, bargain collectively with Machine Printers Beneficial Association as the exclusive representative of the employees in the appropriate unit, and embody in a signed agreement any under- standing reached. (b) Offer to Charles F. Gantt, Arthur W. Hawkins, Donald B. Long, Ben E. Lynn, and Raymond C. Tedder immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges,' in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Make said Charles F. Gantt, Arthur W. Hawkins, Donald B. Long, Ben E. Lynn, and Raymond C. Tedder whole for-any loss of pay they may have suffered by reason of their discharge, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. (e) Post at its plant in Taylors, South Carolina, copies of the notice attached hereto and marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to its employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Eleventh Region, in writ- ing, within ten (10) days from the date of this Decision and Order, what steps it has taken to comply herewith. MEMBER RODGERS, dissenting in part: For the reasons set forth in my dissenting opinion in the representa- tion case,' I would find the machine printers to be supervisors within the meaning of the Act. Accordingly, I would not find the Respond- ent's refusal to bargain to be violative of Section 8 (a) (5) of the Act nor its discharge of the five machine printers in question to be violative of Section 8 (a) (3). I agree, however, with my colleagues that the discharge of the five machine printers for testifying adversely to the Respondent in the representation case violated Section 8 (a) (1). Since the remedy, in any event, would be the same, I do not deem it necessary to decide whether the discharge also violated Section 8 (a) (4) of the Act. 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, this notice shall be amended by substituting 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." 6 Southern Bleachery and Print Works, Inc., 115 NLRB 787. APPENDIX 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 Labor Management Relations Act, we hereby notify our employees that : WE WILL bargain upon request with Machine Printers Belle- ficial Association as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of SOUTHERN BLEACHERY & PRINT WORKS, INC. 303'. pay, hours of employment, or other conditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is : All machine printers (designated unit supervisors by us), including journeymen and apprentices, employed at our Taylors, South Carolina, plant, excluding all other employees. WE WILL NOT discourage membership in Machine Printers. Beneficial Association or in any other labor organization of our employees, by discharging or refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT discharge or otherwise discriminate against em- ployees because they have given testimony under the Act. WE WILL NOT in any other manner interfere with, restrain,, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Machine Printers Beneficial Association or any other labor- organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities. for the purpose of collective bargaining or other mutual aid or- protection, or to refrain from any or all of 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. WE WILL offer to Charles F. Gantt, Arthur W. Hawkins,, Donald B. Long, Ben E. Lynn, and Raymond C. Tedder immedi- ate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of their discharge. SOUTHERN BLEACHERY & PRINT WORKS, 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_ INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein, as amended at the hearing, alleges that the Company has violated Section 8 (a) (1), (3), and (4) of the National Labor Relations Act, as amended, 61 Stat. 136, by discharging Charles F. Gantt, Arthur W. Hawkins, Donald B. Long, Ben E. Lynn, and Raymond C. Tedder on or about August 19, 1955, and failing and refusing to reinstate them, because of their union membership and con- certed activities and because they gave testimony on behalf of the Union in Case No. 11-RC-745, before the Board; and Section 8 (a) (5) of the Act by refusing to bargain 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collectively with the Union. The answer denies that the reasons for the discharges were as alleged in the complaint, and, alleging that it is a unit of supervisors, and therefore denying that the unit is an appropriate unit for bargaining, admits the refusal to bargain.. A hearing was held before me at Greenville, South Carolina, on September 18 and 19, 1956. On October 9, the Company moved "to correct record, grammar, and construction of offer of proof." Said motion is granted. The motion paper has been marked Trial Examiner's Exhibit No. 1. Pursuant to leave granted to all parties, briefs have been filed by the Company and the Union, the time to do so having been extended. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, a Delaware corporation with principal office and.place of business at Taylors, South Carolina, is engaged in the processing, printing, and finishing of textile products; that it annually performs services on goods valued at more than $1,000,000; and that most of such goods are shipped from the Taylors plant to points outside of the State of South Carolina. I find that the Company is engaged in commerce within the meaning of the Act. It was stipulated and I find that the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES The Company claims that the unit is one of supervisors, and it attacks the Board's certification. Such a complaint is addressed to the Board's procedures. At the instant hearing, no matters were offered for consideration which were not or could not have been presented to the Board as late as May 7, 1956, when the Company filed objections to the Regional Director's report on objections. I do not presume to pass on matters presented to the Board; my own authority is merely ancillary. Fur- ther, as I stated at the hearing, while findings and conclusions of violation of Section 8 (a) (1), (3), and (4) may depend on findings concerning supervisory status, it would be anomalous to accept the Board's decision with respect to the Section 8 (a) (5) aspect, and to take testimony and make independent findings with respect to Section 8 (a) (1), (3), and (4). The Board having decided the question of supervisory status, that question could not be presented to me unless the Board so directed.' I must reject Company Counsel's argument that his evidence should have been received "regardless of whatever the Board may have ruled in the representation case." Since there runs throughout this case the dispute concerning the status of the employees here involved as alleged discriminatees and as part of the appropriate unit found by the Board in its Supplemental Decision and Order of Election,2 counsel disagreed whether such employees should be referred to as machine printers or as unit supervisors, the latter title being employed by the Company since 1950. To avoid friction and any suggestion of waiver by counsel for the Company, it was agreed at the hearing to employ the title "unit supervisors" without agreement that they were in fact supervisors within the meaning of the Act. It has already been noted "that a mere title does not establish supervisory status." 3 The Board having found that those employees are not supervisors within the meaning of the Act, and having referred to them as machine printers, the latter title will be employed herein. A. The alleged violation of Section 8 (a) (5) In its Supplemental Decision, the Board has held that the following employees constitute a unit appropriate for the purposes of collective bargaining: All machine printers (designated unit supervisors by the Company) including journeymen and apprentices, employed at the Company's Taylors, South Carolina, plant, excluding all other employees. The Union's request, on or about June 19, 1956, to bargain, and the Company's 1 Poi.nsett Lumber and Manufacturing Company, 109 NLRB 1079, 1080; Esquire, Inc., 109 NLRB 530, 531. 115 NLRB 787. 3Id., footnote 3. SOUTHERN BLEACHERY & PRINT WORKS, INC. 305 refusal, on or about June 28, are admitted. By letter dated April 7, 1956, the Com- pany had earlier declared that even if a majority of unit supervisors should vote "Yes" in the then prospective election, it would refuse to recognize or bargain with the Union. No violation need be considered . in this connection, none having been alleged. Accepting the Board's certification, and the refusal on June 28 being admitted, I find that at all times since June 28, 1956, the Company has refused to bargain with the Union as the exclusive collective-bargaining representative of the employees in the unit described above; and that such refusal has been in violation of the Act. B. The alleged violation of section 8 (a) (1), (3), and (4) Considerable testimony was received, pro and con, concerning company-sponsored meetings at which admittedly supervisory officials addressed the machine printers. Such meetings were held about the end of April 1955, shortly before the hearing in the representation proceeding on May 5 and 6, and late in July or early in August, after the Board's original Decision and Order of July 26, 1955, in which it found that machine printers were supervisors within the meaning of the Act. The latter meeting was more definitely fixed at approximately 1 week after receipt of the Board's Decision and Order. The original charge herein having been served on February 8, 1956, it appears that no finding of violation can be based on what occurred at these meetings; nor is such violation alleged. The General Counsel, however, cites what was allegedly said to indicate company animus in connection with the subsequent discharges. We can accept as fact that it was the Company's position, as set forth in a manu- script prepared for the April meeting, and as described by Dan H. Bull, former print room overseer or shift foreman, who was discharged and who testified for the General Counsel, that a system of supervisory authority in, and responsibility of, the.machine printers constituted "company policy"; and that the Company regarded any opposition to such system by the printers as "hostile" to it. At the meeting in the beginning of August, the Company informed the printers that the Board had found that they were supervisors, and the necessity of their carrying out their supervisory authority was stressed. The printers were further admonished that if they did not agree with the Company on that, they should seek employment elsewhere. Similar statements that the Company could not have the Union tell it how to run the plant referred to the conflicting views on the question which was then being argued whether or not printers were supervisors. It is clear that the suggestion that the employees go elsewhere if they could not go along with the Company's setup related to that issue of status, not to general organizational activities. I do not rely on any contrary impression to the extent that any printer had such an impression at the time of his discharge. Other antiunion remarks are not alleged as violations; they have not been overlooked on the issue of company animus, but as noted infra, we need not rely on them for findings herein. If Waldrop, superintendent of the print works, who spoke to the print room em- ployees, and Paul S. Bull, superintendent of the bleachery division, who addressed the shirting room printers, were not threatening machine printers against engaging in union activities, but were only reminding them to carry out their supervisory authority, it might be argued that the Company's alleged policy concerning such authority was, in the union counsel's term, "phony"; that it had been instituted to keep the Union out of the plant, and that insistence on it in 1955 indicated the Company's animus and explained the discharges. However, not only does the Board's Supplemental Decision, further considered infra, remove the issue of super- visory duties from our consideration, but we are not dependent on these "background" remarks for explanation of the Company's continuing attitude and for any inference of unlawful intent and discrimination in connection with the discharges; there is other evidence which points to the findings and conclusions to be made. It is clear that, aside from the exercise of alleged supervisory duties, Gantt, Hawkins, Long, Lynn, and Tedder were satisfactory employees. Their physical participation in the operating process and incidental direction of less skilled subor- dinates, in the words of the Board's Supplemental Decision, neither warranted nor prompted their discharge, and there is no real issue in this connection. The record contains credible praise of each of the five as a. machine printer or apprentice. They were discharged allegedly because of their failure to perform supervisory functions, as we have seen and shall again, the Company's position being that such functions were incompatible with the giving of testimony at a Board hearing as these employees had, although it was testified for the Company that discharges were not effected because testimony had been given. 450553-58- -vol. 11S-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As further justification or explanation of the discharges, the Company showed that prior to the discharges it had adopted a plan for structural and operational changes. It is sufficient to note, without detailed reference to the testimony on this point, that there is no basis for holding that adoption of that plan was itself dis- criminatory. But we are concerned with the method by which it was put into operation; more specifically, with the decision to discharge some employees and the selection of those to be discharged. Four higher ranking employees, section foremen, were demoted and made machine printers. Their replacement of printers would not itself be discriminatory on the record before us -were it necessary to keep constant the number of machine printers. In fact it was testified that the Company had decided, because of business conditions, to eliminate seven printers' jobs. But despite such testimony, the necessity for any discharges has hot been shown, as will soon become clear. The Company had earlier ordered, and now received, two new machines. These replaced one machine which was scrapped, and another which was assigned to strike- off operations. Thus, at the time of the operational change and the discharges, the Company had 14 production machines, as before, and 2 strike-off machines instead of 1. Certainly the equipment setup did not indicate the need to discharge printers. From equipment, let us turn to the number of jobs maintained and the number of employees. On August 19, the date of these discharges,. there were 40 jobs or places filled by machine printers or machine printer trainees. Reflecting the discharge of the 5 before us and 2 others on August 19, and the demotion of the 4 section foremen into the unit, there were 37 such jobs on August 29. Included among those filling the jobs on the latter date was a new man, who had not worked on a print machine on -August 19. By October 19, 43 such jobs were being filled, and there were 8 men in them who had not so served until after August 19. On November 16, the respective figures were 44 and 9.4 The testimony in the representation proceeding, which is before us, indicates the intensive training and high qualifications needed for such work, and instances in the industry of retention of such employees on the payroll even by guarantees of a full year's work. Passing over any inference which might be drawn from the failure to recall these experienced dischargees when additional men were needed and new ones added, it does not appear from the figures noted that the discharge of these employees, followed as it soon was by an increase in jobs, followed the normal practice or was dictated by business requirements. But we need not rely on this hindsight analysis even if it be valid. in the light of practice in the industry. For the record shows that, despite the testimony that the Company planned on August 19 to operate fewer machines (in the face of its acquisition of new ones, as noted) because business wasn't "too good," operations continued on three shifts, and even on Saturdays. There is no evidence of unforeseen events lead- ing to any unexpected increase. Actual operations indicated no need to discharge on, and immediately after, August 19. Some 32 of the 40 employees in the unit being union members, the selection of the 5 who had testified at the representation hearing remains unexplained; we would be led to the inference that they were discharged discriminatorily because of their union activities. Where important union activity on the part of an employee is proved, there may be 5 a prima facie showing of discrimination; for while an employer may refuse employment on account of the commonly referred to aversion to the color of an individual's tie or hair or for any other reason if not discriminatory as described in the Act, the General Counsel manifestly cannot disprove the existence of -all such possible "other reasons." Furthermore, the General Counsel must raise a "reasonable inference" 6 of discrimination; and evidence of discrimination is necessarily circumstantial.? The question is whether and to what extent union activity led to the decision to discharge.8 Evidence of apparently satisfactory employment (we are still considering the citation of opera- tional changes as a reason for the discharges), followed by known union activity 4 While some men were spares, and their identity changed from time to time, there is no evidence of any change in their number, and it was agreed that there is no issue with respect to their number. 5 Here one may consider the extent of such activity, the number so engaged, the number discharged, etc., although it is not necessary to a finding of discrimination that all be refused reinstatement. 6 N. L. R. B. v. Whitin Machine Works, 204 F. 2d 883, 885 (C. A. 1). 4 Hartsell Mills Co. v. N. L. R. B., 111 F. 2d 291, 293 (C. A. 4) ; N. L. R. B.. v: Lun4, 103 F. 2d 815 , 819 (C. A. 8). 8 N. L. R: B. v. 'Whitin Machine Works, supra. SOUTHERN BLEACHERY & PRINT WORKS, INC. 307 and then discharge constitutes a prima facie case. Before reasons assigned for discharge of an employee are shown to be in fact the reasons for the discharge, there is thus an "inference of discrimination." 9 It remains, then, after a prima facie case has been made out, for the Company to go forward with evidence of the reasons for its act. Whether there was in fact unlawful discrimination can then be determined. .But one essential element is lacking. Aside from the variations in the extent of their union activities, it does not appear generally that these five were known by the Company to have engaged in such activities. True, their immediate super- visors may have had such knowledge. For example, Foreman Sloan, who had himself joined the Union, knew that the three who had worked under him were members. But if, as the General Counsel claims and as appears, those supervisors were not consulted concerning the discharges, their own knowledge is not imputable to their superiors who determined on the discharges-and company knowledge is not otherwise indicated. Dan Bull, on behalf of the General Counsel, testified only that he knew of one printer who was a member of the Union, and that he had heard rumors that others were members. In this connection, it should be noted that the Union's organizational activities were renewed in 1954; and except for the testimony at the election hearing, we have very little information. concerning which employees were active and the extent of their activity. If reliance be placed on the fact that they testified at the representation hearing, that is no more than arguing that violation of Section 8 (a) (3) is to be based on the proof, which will next be considered, that Section 8 (a) (4) was violated. But that is quite unneces- sary, especially since the remedy for the additional violation would not be different. Counsel for the proponents argue only that "They made their sympathies with the union well-known by their testimony in behalf of the union at the May 1955, Labor Board hearing." This, as stated, relates to the alleged Section 8 (a) (4) violation. Quite different is the situation with respect to the alleged violation of Section 8 (a) (4). There is no question of knowledge of the testimony given by the em- ployees at the representation hearing. Reference has been made supra to the manuscript which described company policy concerning alleged supervisory authority. As that manuscript declared and as Paul Bull testified, opposition to such policy was and has been regarded as "hostile." The picture is quite clear without further explanation, but Bull declared in addition that testifying at a Board hearing constituted fighting company policy, and he would consider it hostile to the Company and its policy. It was evident to me that as he testified Bull clearly understood the questions put to him and was fully aware of what he was saying in reply. Excused and then recalled, he testified that he would not regard the giving of testimony under subpena at a Board hearing as ground for discharge. I reject the latter statement, and I find that the five who had testified were discharged because they had done so. I do not credit the attempts to put asunder what the Company in its manuscript had joined together: the Board hearing, company policy, participation in the effort to tear down that policy as the Union was "apparently trying again" to do at the hearing scheduled for May 5, 1955, and the warning that printers who opposed that policy would be regarded as hostile. In this connection, as when he testified that business wasn't good although normal operations were maintained, and that a written recommendation had been made to eliminate eight men when in fact no such recommendation was made, I- found Waldrop to be an unreliable witness aside from his indicated uncertain recollection. Nor do I credit his explanation for preferring trainees to the experienced printers who were discharged. Because the question of employer reliance on a Board decision may be raised, we must note that this is not a case where the employer applied a rule in reliance on the Board's declaration of its validity, only to be faced with a subsequent reversal by the Board and removal of the ground on which the employer's acts had been based. The employer allegedly maintained the rule long before the Board's Decision and Order of July 26, 1955. Further, as noted at the hearing, the Board has found that the rule announced in 1950 was not in fact in effect in 1955 , and also that the alleged change in duties was both unlikely and impractical. In other words, we are not considering the validity or propriety of such a rule so that the Company might be found to have acted in good faith, if unwisely; the Board has said that, 5 years after its promulgation, no such rule existed. Following the Board 's Decision, we do not have here . a nondiscriminatory, if mistaken, intent; rather, the Board has found that supervisory functions had not in fact been imposed 1J. S. Abercrombie Company, 83 NLRB 524. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on these employees, and the Company had not expected them to perform such functions. The basis for inference, noted above, has thus been established, and the inference is clearly to be made that giving testimony at a Board hearing was regarded as hostility; and that hostility to company policy, as described, was cause for discharge and was the cause here. Of course, if these employees were supervisors, failed to perform their assigned supervisory functions as they were expected to perform them, and were discharged for that reason, there would be no violation. But they were not supervisors and had not for 5 years been expected to function as supervisors. (We need not rely on such testimony as Dan Bull's that before the so-called 10 points of responsibility were adopted in 1950, the president of the Company, now deceased, said that it was a plan to keep the Union out; the Board's Decision, as noted, has determined that and is the law of the case. Nor on Bull's testimony, contradicted by company witness, that at the meeting early in August it was proposed to discharge 7 and then 5 more. As for Waldrop's alleged statement thereafter that the Company was serious about discharging all of the men with union cards, events have not demonstrated any such intent; and the statement by one supervisor to another would not constitute unlawful interference, whatever it might indicate.) We have already noted, from analysis of the explanation of the consolidation, reduc- tion in force (concentrated at this focal point), and falling off in work, that the figures submitted do not support a claim that the Company dischargedthese employ- ees because it believed that there were too many; and that the selection of these five for discharge was discriminatory and could be correlated only with the fact that they had testified at the earlier hearing. The weakness of the explanation concerning the need to lay off any printers supports the inference that the giving of testimony was re- sented by the Company and prompted the discharge of all who had earlier testified.io As much can be said of Waldrop's testimony that some of the discriminatees were discharged (after so many years of employment) because they lacked the initiative to get the job done or otherwise fell short. We have seen further that they were not expected to perform supervisory functions and were not discharged for failure to perform such functions; nor on the other hand were they discharged on account of their general union activities, company knowledge of such activities not having been shown. The inference further arising from the otherwise unexplained action taken against them, and which may therefore be properly drawn, as explained supra with the authorities cited, is that they were discharged because they testified at the representation hearing. I have so found. The fact that 3 months elapsed between the representation hearing and the dis- charges presents no great problem. Considering the highly skilled work performed, such a delay would be understandable. But we must not overlook the further fact that the discharges followed by less than 1 month the Board's first decision that these employees were supervisors; and it was allegedly because of failure to per- form supervisory duties that they were selected for discharge. We need not dwell on the inconsistencies in the testimony concerning which super- visor first identified those to be discharged. But it is significant that, despite the claim as noted supra that they were allegedly selected because of their failure to per- form supervisory duties, their immediate supervisors were not consulted and had no prior knowledge of their discharges. The finding stands that the reason for the discharges was not that these employees were required to and then failed to exercise supervisory duties. Discharge because of the giving of testimony constitutes viola- tion of Section 8 (a) (1) and (4) of the Act, and would be a violation of at least Section 8 (a) (1) even if the employees involved were in fact supervisors.ii While the point has not been raised before me, mention should be made of Hawkins' resentment when he was discharged. His reaction was not so vindictive, opprobrious, or vicious as to warrant modification of the normal remedy. 101F. C. Nabors Company, 89 NLRB 538, 543. This case , at page 542 , also refutes the argument that another discharge , not alleged to be discriminatory , somehow tends to - prove that the five were not illegally selected for discharge. "Better Monkey Grip Company , 115 NLRB 1170; Eugen Pedersen v. N. L. P. B., 234 F. 2d 417 , 420 (C . A. 2), in which the court cited Section 8 (a) (4), a supervisor being: involved ; Talladega Cotton Factory, Inc., 106 NLRB 295, enfd . 213 F . 2d 209 (C: A. 5), in which Section 8 (a) (4) was not in issue. Even were it determined that the repre- sentation hearing directly involved supervisors only, the violation must be found :. Section 8 (a) (4) includes all Board hearings , and the interference would likewise be manifest. SOUTHERN BLEACHERY & PRINT WORKS, INC. 309 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section II, above, occurring in connec- tion with the operations described in section 1, above, have a close, intimate, and sub- stantial 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. IV. THE REMEDY Having found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist there- from and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company refused to bargain collectively with the Union thereby interfering with, restraining, and coercing its employees. I shall therefore recommend that the Company cease and desist therefrom and also, upon request, bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment, and embody in a signed contract any understanding reached. It has been further found that the Company discharged Gantt, Hawkins, Long, Lynn, and Tedder because they gave testimony in the representation proceeding. I shall therefore further recommend that the Company make said employees whole for any loss of pay they may have suffered since August 19, 1955, by reason of the discriminatory action aforementioned by payment to each of them of a sum of money equal to that which he could normally have earned less his net earnings 12 which sum shall be computed 13 on a quarterly basis. I shall further recommend that the Board order the Company to preserve and make available to the Board upon re- quest payroll and other records to facilitate the checking of the amount of back pay due. 14 Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Machine Printers Beneficial Association is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of the Company's machine printers (designated unit supervisors by the Company) including journeymen and apprentices, employed at the Company's Taylors, South Carolina, plant, excluding all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Machine Printers Beneficial Association was on June 28, 1956, and at all times since has been the exclusive representative within the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the purposes of collective bargaining. 4. By refusing on June 28, 1956, to bargain collectively with Machine Printers Beneficial Association as the exclusive bargaining representative of the employees in the appropriate unit, Southern Bleachery & Print Works, Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discharging Charles F. Gantt, Arthur W. Hawkins, Donald B. Long, Ben F. Lynn, and Raymond C. Tedder, on August 19, 1956, because they had given testi- mony under the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (4) of the Act. 6. By such refusal to bargain and discharges, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid labor practices are unfair labor practices affecting commerce, with- in the meaning of Section 2 (6) and (7) of the Act. 8. The Company has not engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. [Recommendations omitted from publication.] "Crossett Lumber Company, 8 NLRB 440. See also Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 13 P. TV. Woolworth Conipanty, 90 NLRB 289, 291-294. 14Id. at 294.