The Raser Tanning Co.

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 1034 ; and Broderick Wood Products Company, 118 NLRB 38.8 Here, despite the absence of a checkoff arrangement , the broad language of the Brown- Olds decision appears to require that because of the assistance provided the Respondent in its dues collecting by the illegal referral agreement found herein, the latter must now be compelled to refund such dues as were collected from its members during their employment with the Mahon Company on the Ford project. Accordingly, I shall make that recommendation here. I shall also recommend that the Respondent cease and desist from maintaining and giving effect to the illegal hiring arrangement described above. 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. The Employer is engaged in commerce within the meaning of the Act. 2. The Respondent Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By causing the Company to refuse to hire J. P. Gasaway because he had not obtained a work referral from the Respondent , the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(2) and 8 (b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 8 At the same time, it should also be borne in mind that , on occasion the Board has refused to order reimbursement of union dues collected by an employer on behalf of an illegally assisted union. Cf. Bowman Transportation, Inc., 112 NLRB 387, 388, enfd. in part, sub nom . District 50, United Mine Workers of America v. N.L.R.B., 237 F. 2d 585 (C.A., D.C.), vacated and remanded as to another point, 355 U . S. 453. The Raser Tanning Company and Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO. Case No. 8-CA-1313. December 22, 1958 DECISION AND ORDER On May 27, 1958, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, a supporting brief, and a request for oral argument.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the I Because in our opinion the record, exceptions , and brief adequately set forth the issues and the positions of the parties , this request is hereby denied. 122 NLRB No. 80. THE BASER TANNING COMPANY 641 Intermediate Report, the exceptions,2 the brief, and the entire record in the case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modifications and additions noted herein 3 1. For reasons stated in the Intermediate Report, we find no merit in the Respondent's contention that employees Lemon Fields and John Miller were discharged for deficiencies in their work, and that employees Kenneth and Jack Barlow were not discharged but vol- untarily quit. We agree with the Trial Examiner that all these 2 In its exceptions, the Respondent contends, in substance, that the record made at the hearing is defective, in that it does not set forth certain alleged testimony by the Respondent's witnesses denying other testimony on the basis of which the Trial Examiner found that the Respondent violated Section 8(a)(1) and 8(a)(3) of the Act. Certain of these alleged denials do, in fact, appear in the record, and we shall not disturb the Trial Examiner's failure to credit them. As to such of these alleged denials as do not appear in the record, we shall not at this time attempt to determine whether such testimony was actually given, but shall instead not adopt the following findings of the Trial Examiner which are affected by such alleged denials that: (1) On the morning of the election herein the Respondent's vice president, Loren Swedenborg, asked employee Adell Metcalfe about the union meeting the night before and told him that if he was not going to vote for the Respondent, he would "rather" lie did not vote at all, and, finally, that if he did go to the polls, he would know that he had voted for the Union; (2) soon after union organization began, Secretary Smith and Vice President Swedenborg told employee Kenneth Barlow they did not want him to talk to any of the men in the plant, and that, when he asked "why," Smith replied, "You know why"; (3) the day after the first union meeting Superintendent Robert Swedenborg asked employee Lemon Fields about Reverend Williams and "this union junk" and also asked him if he had signed a card ; and (4) on the morning of the election Secretary Smith asked employee Junior Coleman if lie had attended the union meeting the night before and that Coleman admitted the fact and saw his name on a list carried by Smith. I We note an inadvertent error in the Intermediate Report, which, however, does not affect the validity of the Trial Examiner's findings and conclusions. In section III C of the Intermediate Report, the Trial Examiner stated that he did not credit Secretary Smith's denial of a threat to, and interrogation of, employee Kenneth Barlow. However, it is clear from the context that reference was intended to Superintendent Robert Sweden- borg rather than Smith. Furthermore, for reasons indicated below, we do not adopt the following findings of the Trial Examiner, and do not rely on them in finding that the Respondent violated the Act : (1) That the Respondent's vice president, Loren Sweden- borg, did not deny employee Payne's testimony that on or about April 19, 1957, Sweden- borg remarked to Payne, in substance, that he knew Payne had been late for a union meeting on the previous day; (2) that Foreman Stehura's testimony that he and Super- intendent Robert Swedenborg decided to lay off employee Lemon Fields for "insufficiency of work" is inconsistent with the claim in the answer that Fields was "discharged for incompetence and inability to do the work required"; (3) that the service of the first and second amended charges herein showed that employees Trent, Metcalfe, and Coleman were seeking reemployment ; and (4) that on or about April 15, 1957, a number of management officials gathered around employee Reed, that he was asked who had attended a union meeting, and that he divulged the names of certain employees. We do not adopt (1) be- cause it is not supported by the record, and we do not adopt (2) and (3) because, in our opinion, they represent conclusions or inferences which are not warranted by the evidence. As to (4), we do not rely on this alleged interrogation because, in making this finding, the Trial Examiner predicated it, at least in part, on an alleged admission by Reed which does not appear in the record . In this connection , the Respondent contends in substance that at the hearing the Trial Examiner improperly denied its request for the production of an alleged pretrial statement by Reed to a Board agent (cf. Jencks v. United states, 353 U.S. 657). However, as Reed was the Respondent's own witness and as the Re- spondent was not seeking the alleged statement for use in cross-examining Reed. we do not deem the principle of the Jencks case applicable here. Ra-Rich Mann lecturing Corporation, 121 NLRB 700. Moreover, as already stated, we are not finding any viola- tion of the Act on the basis of the alleged interrogation of Reed. 505395-59-vol. 12 2-4 2 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees were discharged for union activity, in violation of Sec- tion 8(a) (3) and (1) of the Act. 2. The Trial Examiner also found that the Respondent discharged employees James Trent, Adell Metcalfe, and Junior Coleman because of their union activity, in violation of Section 8 (a) (3) and (1) of the Act. Trent and Metcalfe were discharged on May 2, 1957, the day after the election herein, and Coleman on May 10. These dis- charges occurred only a few weeks after the discharge of Fields4 and Miller and about the same time as the discharges of the Barlows. The Respondent has asserted a special defense with respect to these three employees, contending that they were not discharged for union activity but were laid off in order of seniority for economic reasons. In support of this contention, the Respondent cites evidence tending to show a progressive decline in its production and work force from about January 1 to about June 1, 1957. However, the record indicates that there was during that period a high rate of voluntary quits among the Respondent's employees, and there is no substantial evidence that any employees were laid off or other- wise involuntarily terminated during this period other than the dischargees involved there.5 All three were experienced employees, having served the Respondent from about 3 to 5.years. With the possible exception of Metcalfe, none of them was told that he was being laid off for economic reasons. Moreover, it is clear that the Respondent was aware of their union activity. Metcalfe, as found by the Trial Examiner, a few days after the first union meeting on April 11, was interrogated by Secretary Smith as to his union activity, and, when Metcalfe admitted signing a card for the Union, Smith declared : "I am through with you." As is further found by the Trial Examiner, on the morning of the election Superin- tendent Robert Swedenborg interrogated Metcalfe about his voting intentions, and after threats of reprisal if the employees voted for the Union, warned Metcalfe that if he appeared at the polls Swedenborg would know how he voted. Metcalfe, nevertheless, appeared at the polls and did vote. Coleman was one of the original organizers of the Union, and active in its affairs, and he was one of its official observers at the election. When, on May 10, Secretary Smith told Coleman that he had been laid off, Coleman asked the reason for his termination. Smith answered only : "You know why. I'm sorry." Trent was a prominent proponent of the Union and one of its observers at the election. On May 1, 1957, Superintendent Robert Swedenborg told employee Kenneth Barlow that he had a list of names of the employees who had attended the union meeting 6 Fields and Miller were discharged on April 12 and the Barlows on May 9. 5 There is some equivocal evidence that another employee , Jonathan Sturgill, was laid off shortly after Trent's discharge . However, we deem this evidence insufficient to estab- lish the date on which, or the circumstances under which , Sturgill's employment ceased. THE BASER TANNING COMPANY 643 the night before and that Barlow's and Trent's names were on the top of the list. In these circumstances, we find no merit in the Respondent's con- tention that these three employees were laid off for economic reasons and find that they were discharged because of union activity, in violation of Section 8(a) (3) and (1) of the Acts ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, The Raser Tanning Company, Ashtabula, Ohio, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or in any other labor organization of its employees, by discharging or refusing to reinstate employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Engaging in surveillance of union meeting places, threatening employees with reprisals or promising benefits to discourage union membership and activity, and interrogating employees as to their union membership in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. e The charges alleged that the Respondent had violated Section 8(a)(3) and (1) of the Act in that the Respondent discriminatorily discharged certain employees and in that by these and "other acts and conduct " the Respondent had coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act . At the hearing, the Respondent moved to dismiss paragraph 6 of the complaint ( which alleges surveillance , interrogation, and threats in violation of Section 8(a) (1) of the Act) on the ground, in substance, that it is not supported by the charges . In its exceptions and brief to the Board, the Respondent contends that the Trial Examiner failed to rule on this motion in his Inter- mediate Report. However, the record discloses that the Trial Examiner denied the motion at the hearing. We concur in this denial . National Labor Relations Board v. Kohler Company, 220 P. 2d 3 ( C.A. 7) at 5, 6, and 7. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Lemon Fields, John Miller, James Trent, Adell Metcalfe, Kenneth Barlow, Jack Barlow, and Junior Coleman, to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) 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. (c) Post at its Ashtabula, Ohio, plant copies of the notice attached hereto and marked "Appendix."7 Copies of said notice, to be fur- nished by the Regional Director for the Eighth Region shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof in con- spicuous places, including all places where notices to employees are customarily posted, and maintained by it for a period of sixty (60) .consecutive days. 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 for the Eighth Region in writ- ing, within ten (10) days from the date of this Order, as to the steps the Respondent has taken to comply herewith. 7In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX 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 discourage membership in Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or in any other labor organization of our employees, by discharging, refusing to reinstate, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. THE BASER TANNING COMPANY 645 WE WILL NOT engage in surveillance of union meeting places, threaten our employees with reprisals or make them promises of benefit in order to discourage membership in the above-named or any other labor organization, or interrogate them as to their union membership in a manner constituting interference, re- straint, and coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through repre- sentatives 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 such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a) (3) of the Act. WE WILL offer the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of our discrimination against them. Lemon Fields John Miller James Trent Adell Metcalfe Kenneth Barlow Jack Barlow Junior Coleman THE RASER TANNING 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 Charges having been duly filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent Company, a hearing involving allegations of unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), was held in Ashtabula, Ohio, on April 8, 9, and 10, 1958, before the duly designated Trial Examiner. All parties were represented at the hearing, participated therein, and were afforded full opportunity to present and meet evidence, to engage in oral argument, and to file briefs. Briefs have been received from General Counsel and counsel for the Respondent. At the conclusion of the hearing, ruling was reserved upon certain motions to dismiss, made by the Respondent. Disposition of said motions is made in the following findings, conclusions, and recommendations. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From his observations of the witnesses, and upon the entire record in the case, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Raser Tanning Company is an Ohio corporation, with its principal office and plant in Ashtabula, Ohio, where it is engaged in the processing and sale of hides. In the course and conduct of its business, the Respondent annually causes its finished products, in value of more than $50,000, to be sold, delivered, and trans- ported to and through States of the United States other than Ohio. The Respondent concedes that it is engaged in commerce within the meaning of the Act, and it is so found. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters & Butcher Workmen of North America , AFL-CIO,, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and issues All events alleged herein as violations of the Act occurred within a period of about a month following the beginning, in April 1957, of a self-organizational campaign by the Respondent's employees. As found in more detail below, man- agement officials not only became promptly aware of this activity but became so, concerned about it, according to their own testimony, that they compiled and retained a list of all employees whom they discovered or believed to be for the Union and "against" the Company. The complaint alleges that this admitted "concern" extended to such illegal lengths as discriminatory discharges of a number of employees, surveillance of union meeting places, and the utterance of threats of economic reprisals. Since the alleged conduct other than actual discharges may throw light upon: motives precipitating the dismissals, it will be considered first. At the outset, however, it may aid appraisal of the full picture to identify by dates certain events of major relevance, especially the terminations of employment in issue. In his articulate and carefully prepared brief, General Counsel has included a. chronology of this nature, and the Trial Examiner adopts it: About April 4, 1957. Initial activities of organizing committee among Re- spondent's employees. April 11. Numerous employees signed union cards at the People's Baptist Church. April 12. Lemon Fields and John Miller discharged. April 25. Respondent and Union executed a stipulation for consent election,. providing for the National Labor Relations Board to conduct an election on May 1, 1957. April 30. Union meeting at Steelworkers' Hall. May 1. Election held, and Union fails to receive a majority. May 2. James Trent and Adell Metcalfe terminated. May 9. Kenneth Barlow and Jack Barlow terminated. May 10. Junior Coleman terminated. B. Surveillance Credible and for the most part uncontradicted testimony of employees supports: a finding that while they were attending the second union meeting, at the same church and on or about April 18, three company officials : Vice president Loren Swedenborg, Superintendent Robert Swedenborg , and Secretary Charles E. Smith, were seen by employees to drive slowly back and forth in front of the church, which is situated more than a third of a mile from the plant . They were seen to make notes, apparently of license numbers, as they passed the many parked cars of their employees.. The next morning Loren Swedenborg remarked to employee Payne: "I see you were late for the union meeting."' ' Swedenborg did not deny Payne's testimony on this point. THE BASER TANNING COMPANY 647 The Union held a meeting of employees at the Steelworkers' Hall the night of April 30. The next morning-the day of the election-Superintendent Swedenborg asked employee Kenneth Barlow if he had been at this meeting. When Barlow denied it, Swedenborg said, showing the employee a list, "Well, we have a list of names here of the guys that were at the union meeting last night. Your name and Jim Trent's is on the top of the list." Barlow asked him how he found out and Swedenborg replied that "we had several of the boys up there."2 Secretary Smith admitted, as a witness, that he and his "associates" received information "as to who attended union meetings" and that he and the two Swedenborgs compiled a list, "immediately after the (union) activity started," of the employees they thought would vote "against" the Company. In view of other testimony by Smith that on one occasion he and the two other officials made three trips back and forth by the Baptist Church while a union meeting was in progress, the Trial Examiner is convinced and finds that these officials engaged in surveillance, and informed employees that they were keeping a list of union ad- herents, for the purpose of discouraging union membership and activity. Sur- veillance for this illegal purpose has long been held by the Board and the courts to constitute interference, restraint, and coercion of employees in the exercise of rights guaranteed by the Act.3 It is so found here. C. Illegal interrogation, threats and promises A few days after the first union meeting, Secretary Smith asked employee Adell Metcalfe if he was "messing" with this "union." Metcalfe admitted he had signed a card, and Smith declared, "I'm through with you."4 On the morning of the election, the same employee was approached by Loren Swedenborg and asked about the union meeting the night before, especially as to what one of the Barlow brothers had said. Swedenborg then told Metcalfe that if he was not going to vote for the Company, he would "rather" he did not vote at all. If he did go to the polls, Swedenborg finally said, he would know he had voted for the Union. (The employees' testimony on this matter is undisputed.) Later the same morning, and before the election hours, Metcalfe was sent by his foreman to Superintendent Robert Swedenborg. The latter told the employee that he understood he was not going to vote. Metcalfe said he had not decided. Swedenborg advised him to make up his mind-he didn't want him to get into trouble. The superintendent then asked him what he would do if the plant shut down and reminded him he was 47 years old and there were few other places where colored workers were hired. He permitted Metcalfe to leave after warning him, as had Loren Swedenborg earlier, that if he appeared at the polls they would know how he voted.5 It is undisputed that soon after union organization began, the three company officials began to watch and follow employee Kenneth Barlow as he moved about the plant at his work. Smith and Loren Swedenborg approached him at his sorting table and told him they did not want him "talking to any of the men in the plant."' When he asked "why," Smith replied, "You know why." (Loren Swedenborg did not deny this incident. Smith's denial is not credited, for reasons made clear in a footnote below.) There was no rule against talking in the tannery, and never before had he been instructed to talk to no one. About a week before the elec- tion, Superintendent Swedenborg asked Barlow why he thought the employees needed a union, and then told the employee that the Company would do all in its power to keep it out. He added that if the union did go in, employees who had had anything to do with it would be sorry. (Smith's denial of this threat and interrogation is not credited, for reasons previously stated.) Apparently finding such surveillance and threats unpleasant, a few days before the election Barlow told the superintendent that he "wanted some peace at his 2 Barlow's testimony, from which the quotations are taken, was undisputed as to this incident. 3 See tiValine, Inc., 11.9 NLRB 1698, and United Fireworks Mfg. Co., Inc., 11$ NLRB 883. 4 The finding rests upon Metcalfe's credible testimony. Smith's denial that the incident occurred is not credited. Smith, as noted heretofore, admitted keeping a list of union adherents, and of making repeated trips by a union meeting place. 5 Superintendent Swedenborg's denial of this incident is not credited. This official, as the record shows, while on the stand became so intent upon answering "no" to his counsel's paraphrasing of previously given testimony of employees that he interrupted counsel to voice a negative even before a question had been completed. '648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work," and was "finished with the union" and would have nothing more to do with it. The official asked him if he was sure of it. Barlow insisted that he was sure. A few minutes later the superintendent returned, in company with Loren Swedenborg, Smith, and Alvin Swedenborg, Loren's father and Robert's half- brother. Alvin Swedenborg told Barlow that any man was subject to a mistake, but he would forget about it if he was really through with the Union. Barlow assured him that he was through. Alvin Swedenborg then told him that after this "union affair was over" and if the Union did not win the election, he would see to it that he would get a higher-paying job. From that day on, until the morning of the election, management officials ceased to follow him around. Also after the above-described disavowal of the Union by Barlow, the super- intendent came to him and asked him if he knew of a union meeting that night. At that time the employee replied that he knew of none, but later in the day, upon reaching home, Barlow called the superintendent and told him he had heard there was to be a meeting that night at the church. The next morning the super- intendent informed him that he and Loren Swedenborg had gone over to the church, but found no meeting. Later the same morning the superintendent gave him a dollar, stating that Alvin Swedenborg had said it was for the phone call.6 Employee Lemon Fields credibly testified, and it is found, that the day after the first union meeting he was approached by the superintendent who asked him, "Fields, what about this Reverend Williams? ... what about this union junk? .. . They tell me he is the head of it. Do you know anything about it?" Fields told him that Reverend Williams was the pastor of the church for which he was a deacon. The superintendent then asked him if he had signed a card, and Fields admitted that he had? (As noted hereinafter, Fields was discharged later the same day.) On the morning of the election, after discovery that Kenneth Barlow had at- tended the union meeting the night before, the superintendent told the employee that the only way his "job would be secure" would be not to vote at all. (Barlow's testimony is uncontradicted on this incident.) The foregoing interrogation, threats, and promises of benefit to employees by the three management officials clearly constituted, and is concluded to have been, illegal interference, restraint, and coercion within the meaning of the Acts D. The discriminatory discharges 1. Lemon Fields Fields was summarily and without warning discharged the day after he at- tended the first union meeting on April 11. As noted in the subsection immediately above, it is undisputed that shortly before being dismissed at the end of his shift, he was asked by Superintendent Swedenborg if he had signed a union card at that meeting, and that he admitted the fact. It has also been found that during the same interview the superintendent queried him about the pastor of the church for which Fields was a deacon, and where union meetings were held. Fields' testimony is further uncontradicted to the effect that at the time of his sudden termination he had been continuously employed for nearly 3 years, although during that period many other employees had been temporarily laid off for lack of work. Except for occasional shifts, when needed to help out in some other department, most of Fields' employment had been spent in the department called the Hide House, where the first steps in the tannery process are taken. Because 6 The findings in the preceding two paragraphs rest upon the credible testimony of Barlow. The partial denials of Smith and the superintendent are not credited, for reasons previously stated. Alvin Swedenborg was not a witness, and Loren Swedenborg was not questioned about his part in the above events. Although counsel for ,the Respondent produced documentary evidence showing that Alvin Swedenborg left town the night of April 28, apparently rebutting Barlow's testimony that his call to the super- intendent about a union meeting took place "about two days I reckon before the election," Barlow's fixing of the date was, as is plain from the language used by him, only approxi- mate. And the superintendent admitted that the employee did call him, regarding the union meeting which actually did not take place. 7 The superintendent denied only that he had asked Fields about Reverend Williams. He did not deny having had the conversation, nor having asked him if he had signed a card. 8 See, for example: Sebastopol Apple Growers Union, 118 NLRB 1181 ; "M" System Inc., Mobile Hones Division, Mid-States Corp., 118 NLRB 502; and Union Furniture. Company, Inc., 118 NLRB 1148. THE BASER TANNING COMPANY 649, of his long experience, apparently, in this department Fields was assigned by his. foreman, John Stehura, to instruct new employees how to trim the raw hides. Fields' testimony again is uncontradicted that throughout his employment he had never received complaints from Stehura or any other foreman under whom he had temporarily worked. After eliciting from Fields the admission that he had signed a union card,. Swedenborg talked with Foreman Stehura. And within a few minutes Stehura came to Fields and told him, according to the employee's credible testimony, that the superintendent had said he was to be laid off that day. Fields asked him why. Stehura replied, "Well, there is a few smart guys around here and we are going. to get rid of the smart ones first." Fields asked who else was to go, and the foreman replied, "Just two for today. You and Johnny Miller."9 Fields was terminated at the end of his shift that day, and has not been re- instated. The foregoing is a summary of events bearing upon Fields' dismissal, and plainly indicates a discriminatory discharge to discourage union activity. The plain indication becomes a convincing certainty when the Respondent's affirmative evidence is appraised. The answer claims that Fields was "discharged for in- competence and inability to do the work required." No management witness, however, testified to this effect. Indeed no supervisor or official was even ques- tioned by counsel for the Respondent as to who discharged Fields or why.10 It was General Counsel, in cross-examining Stehura, who drew from Fields' immediate supervisor the claim that he and the superintendent "decided" to lay the employee off that day "for insufficiency of work." Not only is Stehura's testimony without any support by the superintendent or of company records, but it is inconsistent with the claim in the answer. In short, not only is there no evidence to support the Respondent's claim in its- answer, but a counterclaim is set up by its own foreman. The Trial Examiner concludes and finds that Fields actually was discharged, upon orders from Superintendent Swedenborg, because this official, after interroga- tion of the employee, believed that he was instrumental in initiating union activity, and for the purpose of discouraging further organization. 2. John Miller Miller also was summarily discharged on April 12, the day after the union meet- ing which he attended. At that time he had been employed in the retan depart- ment under Foreman Charles Wiser for a period, lacking a few days, of 4 years- an unusually long period in a tannery which the Respondent contends had an extremely high rate of employee turnover. As in the case of Fields, although there were numerous economic layoffs during his employment, Miller was never laid off until his final discharge. His testimony is undisputed that during this long period Wiser never complained to him about his work. Although there is no evidence that Miller was especially active in the organiza- tion of the Union, he joined and attended the first meeting. And as found above, in the case of Fields, Foreman Stehura told the latter that the superintendent had informed him that he and Miller had been chosen for the first discharges because they were "smart guys." The answer of the Respondent contends that Miller, like Fields, was "discharged for incompetence and inability to do the work required." Although General Counsel drew from Secretary Smith, on cross-examination,- the claim that he and the two Swedenborgs decided to fire Miller, because a week before the dismissal he had refused to "do work that his foreman had requested him to do," the only evidence offered by the Respondent to support the claim im its answer was from Foreman Wiser, in the following colloquy: Q. (By counsel for the Respondent.) The day of the discharge, it has been established as April 12th, 1957. Now, prior to this date, did you have any difficulty with Johnny Miller with respect to his work? A. No. e Although Stehura denied telling Fields that they were "going to get rid of the smart ones first," he did not deny that the superintendent had told him to lay Fields off. 10 There is vague and unpersuasive testimony by Foreman Harry Mason , of another department, to the effect that twice during Fields' long employment he had worked a single shift under him, and that be "wouldn't hold up his end." Mason, however, had nothing to do with Fields' discharge, and there is no evidence that he ever reported Fields to his own foreman. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Can you hear what I said ? Did he have-was he a good worker or did he- A. Oh-he was a no good worker. Q. What? A. He was not a good worker. Q. Describe then what was the trouble? A. Well, he was slow and he wouldn't do what he was supposed to some- times. You had to tell him about every job so we got rid of him . Pulled his card. In the opinion of the Trial Examiner , Wiser's terse and general claim, without a single detail of dereliction on the part of Miller, is no more convincing than the contention in the answer. In the face of the undisputed fact that this employee had 'worked in the 'same department, under the same foreman , for 4 years without complaint, it is difficult to place reliance upon Wiser's prompted testimony.- It is inconceivable that a "no good worker," who had to be told "about every job," should have had uninterrupted employment for this length of time while others were laid off. And that higher authority than Wiser actually ordered the discharge is plainly indicated in Miller's undisputed testimony that when Wiser told . him, on April 12, that he was to be laid off and he asked why, the foreman replied that he did not know. The Trial Examiner is convinced and concludes that Miller's discharge, like that ,of Fields, was precipitated by antiunion motives on the part of management- motives which , as noted in the preceding section, shortly after April 12 prompted these same officials to engage in other coercive conduct. It is found that Miller was discriminatorily discharged , for the purpose of discouraging further union activity. 3. The "three alleged layoffs a. James Trent, Adell Metcalfe, and Junior Coleman As noted in the "chronology" above, there were no more alleged discriminatory discharges after those of Fields and Miller until May 2, the day after the election. In view of the findings of surveillance , threats, and promises made by management during the interim , some question may arise as to the absence of more summary action. This question finds a ready answer in the testimony of Secretary Smith, who testified that on April 16, a Board agent requested management to halt, if possible, even economic layoffs until after the day of the election . It appears that management complied with the suggestion. And although continuity of the discharge chronology may be broken, because the Respondent claims that employees Trent, Metcalfe , and Coleman were all laid off because of economic requirements their cases will be considered in this single section. Trent, a machine operator in the retan department under Foreman Charles Wiser, began his employment with the Respondent in December 1953, and with the exception of a few months in 1954, his employment was continuous until May 2, 1957. Although later becoming a most active union worker, it ' appears that at the beginning he only attended the first union meeting on April 11 , signed a card, and persuaded his cousin, employee Edward Reed, to attend with him. Reed is an oiler in the same department . A few days after the meeting-a date which the Trial Examiner infers, for reasons set out in a footnote below, was April 15, a number of management officials and Foreman Mason gathered around Reed. Reed was asked who had attended the meeting , and Reed readily divulged the names of Trent, Willie Payne, Junior Coleman, Kenneth Barlow, Jack Barlow, and Charles Frank.il The next day, April 16, Reed informed his cousin that Loren Swedenborg u The fixing of the date of 'this incident as April 15 , is the result of weighing certain inherent probabilities of the surrounding circumstances , although Trent and another employee present said that it occurred the day after the first union meeting , which would have been April 12. In the first place, Loren Swedenborg, identified by the employees as being present at Reed's interview ,, was not at the plant that day-competent evidence establishes that he was not in the city until late on April 12, a Friday. And the plant did not operate on Saturday,. the 13th. Monday, April 15, was the first working day after Loren SSwedenborg's return. Approaching the date problem from other established events, there is no dispute that Trent was actually assigned to the Hide House where, according to Secretary Smith's testimony , employees are sent for layoff or discharge. Since lie actually was not laid off until the day of the election, 2 weeks later, it is apparent THE RASER TANNING COMPANY 651 had told him he would be the "next one to go up the hill"-a tannery term for being laid off.12 That same day the superintendent instructed Trent to report to the Hide House, where credible testimony establishes that employees were sent for punishment or for discharge and layoff. Trent followed instructions and the next day reported at the Hide House where, despite his long experience at the tannery, he was required to do the work of an inexperienced new employee as well as that of a common laborer, such as helping tear up floors. Shortly before the end of Trent's shift on May 2, Superintendent Swedenborg •came to the Hide House and instructed its foreman, Stehura, to lay off Trent and Metcalfe. He was dismissed and has not been reinstated. Adell Metcalfe, although apparently' carried on the payroll as Hide House em- ployee, it is undisputed that most of his work from the time he was hired, in June 1954, to May 2, 1957, was with the maintenance crew, performing carpentry, masonry, and electrical duties. Because of his working hours he was unable to attend the first union meeting on April 11, but 2 days later joined by signing a card. As found in section III, C, above, Metcalfe was queried and threatened by all three management officials, and on the morning of the election was told by both Swedenborgs that if he appeared at the voting place they would know he voted for the Union. On May 2, the day after the election, just before closing time, Foreman Stehura told him to stop by the office and pick up his check, and said that the "ax has fallen." He was paid oc and has not been reinstated. Junior Coleman began employment with the Respondent in 1952 and, with the exception of a temporary layod in 1954, continued until May 10, 1957. He was an experienced worker in various departments. Coleman was-one of the three or four employees who initiated the organization of the Union, early in April. Like Trent, he was an official union observer at the -election. He attended the union meeting which, as found, was spied upon by management officials. On the morning of the election, Secretary Smith came to him with a list in his hand and asked him if he had attended the union meeting at the Steelworkers Hall the night before. Coleman admitted the fact. Coleman -observed his own name on the list carried by Smith.13 When Coleman went to the time clock to punch out on May 10, a note on his timecard instructed him to report at the office. Coleman turned his card and note in at the main office, received his check, and was told by Smith, "You're laid off." Coleman asked why. Smith replied, "You know why. I'm sorry."14 The claim of economic layoff of the three employees In support of its claim that these three employees were laid off because of economic necessity, the Respondent offered only the testimony of Secretary Smith, who said that he "collaborated" with the two Swedenborgs in "formulating" the seniority list from which layoffs were selected. His testimony, much of it in answer to leading questions by his counsel, has support of questionable weight in that some reason developed for the delay. And, as found above, it was on April 16, also .according to Smith's testimony, that management agreed with a Board agent not to lay any more employees off until after the election. It thus appears that Trent's recollection of the order of events, if not the calendar dates, was reasonably accurate. The Reed interview was on April 15, he was told of his transfer by the superintendent on April 16, and reported to the Aide House on April 17, but was not terminated at once because of the agreement entered into the day before. That Reed was interviewed by the officials as found above, is a finding which rests upon the credible testimony of Trent and Coleman, the reluctant admission of Reed, and the many incidents of surveillance and threats initiated by the same officials a few days later. As to Reed, the record amply demon- strates his eagerness to testify for the Respondent and his antipathy toward his cousin and toward General Counsel. After denying having told General Counsel a number of things at an interview preceding the hearing, he finally admitted having told counsel that he had been questioned by the superintendent shortly after the first union meeting. 12 Although Loren Swedenborg, as a witness, did not deny having informed Reed as to Trent's layoff, Trent's testimony as to what Reed said is not accepted as proof of what Swedenborg may have told Reed. It is competent testimony, the Trial Examiner believes, bearing upon Reed's credibility and upon the question as to whether or not Reed did reveal to management the names of employees who attended the first union meeting. 18 Coleman's testimony on this incident is undisputed. 14 Smith's denial that he made this statement is not credited. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD oral quotations from notes which he said he made from company records, and certain lists of employees in the different departments on May 1, 1957. These lists, purportedly taken from company records, were placed in evidence without objection from General Counsel and without cross-examination upon them, despite the fact that they contain apparent discrepancies in relation to sworn testimony General Counsel elicited from his own witnesses. For example, Trent testified, without challenge, that he had had continuous employment since September 1954. Yet the exhibit in evidence listing his name bears the hiring date of January 11, 1955. Smith's testimony, in reply to leading questions, to the effect that these layoffs were "in line of seniority," is clearly inaccurate in the case of Trent, even if the date of January 11, 1955, be accepted as that of his hiring. Counsel for the Respondent in effect admitted that an employee, Sturgill, had less seniority than Trent, but was laid off on May 2. Nor is there any adequate proof in the record as to when Sturgill actually was laid off, if ever. As to the primary question of an economic necessity for reduction in force, the Trial Examiner considers that the Respondent has not sustained its claim that forced reduction was required, even if fewer hides were being processed at this period. The testimony of Helen Moores, pay clerk and a witness called by the Respondent, establishes that there is and has been an extremely large voluntary turnover at this plant, over a period of many years. It was her estimate that from 10 to 15 to 40 or 50 employees quit each month. Furthermore, if the figures produced by Smith are to be accepted, there were 55 new employees hired between June 1 and October 31, 1957. The general claim by Smith that once an employee is laid off, for lack of work, he must return if at all as a new employee, and that no such laid-off employee is sent for when work resumes-thereby implying that the responsibility is upon such employees to seek employment-is disposed of, it seems to the Trial Examiner, by the service upon the Respondent of the first amended charge dated May 3, 1957, showing plainly that Trent and Metcalfe were seeking reemployment, and of the second amended charge dated September 19, 1957, showing the same as to Junior Coleman. The weak claim that the Company did not have the addresses of such employees is unconvincing. Since during this period the Respondent was hiring many new- and so far as the record shows inexperienced-employees, the inference is reason- able that the Respondent refused rehire to these three employees for the same reason that it discharged or laid them off. Conclusions And that reason, the Trial Examiner is convinced and finds, was because of their known union activity and leadership. It is therefore concluded and found that these three employees were, in fact, discharged, and discriminatorily, in order to discourage union activity and mem- bership. 4. Kenneth and Jack Barlow Both Barlows had long service working for the Respondent. Their employment ceased on the same day, May 9, 1957, about a week after the election, and the day before Junior Coleman was discharged, as found above. The complaint claims that they were dismissed because of their union activities. The Respondent claims that they were not discharged, but that they voluntarily quit. Credible and substantial evidence establishes that management was fully aware of the Barlows' union activity and membership, particularly that of Kenneth Barlow. The latter's testimony is uncontradicted that soon after he began his activity he was followed about the plant by officials, even to the restroom. It has previously been found that he was warned not to talk to any employee, despite the lack of any such plant rule. Secretary Smith admitted that the Barlows were on the list the officials compiled of those who "had actually gone to the union and signed up with the union, signed cards. . . ." Jack Barlow was asked by his foreman, Jones, just before the election if he was as strong for the Union as was his brother. When he admitted that he was, Jones replied, "Well, that's too bad."15 As noted in an earlier section of this report, Kenneth Barlow was questioned by two officials on the morning of the election, after discovery that despite his 15 Jones' denial of this interrogation is not credited. As noted in a previous section, it is uncontradicted that in some instances Jones' superiors engaged in similar conduct, and it is reasonable to believe that Jones would follow such policy. THE BASER TANNING COMPANY 653 confessed disavowal of the Union he had attended a union meeting the night before, and told by one of them that the only way his job would be secure was not to go to the polls. A week after the election, in which both Barlows participated, they were sum- marily and, at the same time, sent to the Hide House where, Secretary Smith's testimony makes clear, employees are sent for layoff. They reported as instructed and worked the next day under Foreman Stehura. About an hour before close of their shift, they were approached by the superintendent and told to pick up their checks, that they were being laid off. In September Jack Barlow returned to the plant, and asked the superintendent for work. Swedenborg told him that if it was up to him he would hire him at once, but the decision was that of Loren Swedenborg and Smith, who would not hire him because of "the way your brother carried on with the union." The superintendent then asked him if he had voted for the Union. Barlow replied that he had, and would do so again. Swedenborg then dismissed him by saying that he would not get a chance to, "because they won't hire you back."16 It is the claim of the Respondent that the Barlows quit their job and asked for their check on the day in question. Not only was the evidence offered by the Respondent to support this claim confusing, inconsistent, and unconvincing,17 but other circumstances make the claimed voluntary quit wholly undeserving of belief. As to the first of such circumstances, no credible reason was brought forward for sending the two Barlows to the Hide House. Both had more seniority than others in the same department. It is reasonably inferred that they were sent there for the specific purpose of discharging them, as in the case of Trent. . In the opinion of the Trial Examiner a determining point is the fact that al- though it well knew both Barlows were drawing unemployment benefits, manage- ment did not contest such payments, although Loren Swedenborg admitted that an employee who quits is not entitled to draw them. The Trial Examiner finds no merit in the Respondent's claim that the Barlows quit their jobs. It is concluded and found that both Barlows were discriminatorily discharged because of their union activity and to discourage further organizational efforts. 5. Conclusions as to the discharges The Trial Examiner concludes and finds that by discriminatorily discharging the seven employees, as above described, for the purpose of discouraging union mem- bership and activity, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Activities of the Respondent, set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take af- firmative action designed to effectuate the policies of the Act. It has been found that the Respondent discriminatorily and to discourage mem- bership in and activity on behalf of the Union discharged seven employees. It will be recommended that the Respondent offer them immediate and full rein- statement to their former or substantially equivalent positions, without loss of seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by payment to each of them of a sum of money equal to that which he would have earned as wages from the date of the discrimination "The finding rests upon Barlow's credible testimony . Swedenborg's denial is not credited, for reasons previously set forth. 17 Swedenborg was not questioned on this point by Respondent's counsel. His version, elicited by General Counsel, is inconsistent with that of Foreman Jones. And the book- keeper, who testified that the employees answered in the affirmative when she asked them If they were quitting, admitted that never before in the scores. of voluntary quits had she asked such a question. 1 654 DECISIO*S OF NATIONAL LABOR RELATIONS BOARD against him to the date of offer of reinstatement, less his net earnings during said period, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289 and Crossett Lumber Company, 8 NLRB 440. It will be further recommended that the Respondent , upon reasonable request, make available to the Board and its agents all payroll and other records pertinent to the analysis of the amounts due as back pay. Since the violations of the Act which the Respondent committed are related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is reasonably to be anticipated from its past conduct, the preventive purposes of the Act may be thwarted unless the recommendations are coextensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters & Butcher Workmen of North America, AFL- CIO, is a labor organization within the meaning of 2(5 ) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Lemon Fields, John Miller, James Trent, Adell Metcalfe, Kenneth Barlow, Jack Barlow, and Junior Coleman, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Nebraska Bag Company and Robert H. Silver, Trust Account of Harry L. Silver, Trust Account of Steven J. Silver, and Trust Account of Jeanne M. Silver, d/b/a Nebraska Bag Processing Company and Textile Workers Union of America, AFL-CIO Robert H. Silver, Trust Account of Harry L. Silver, Trust Ac- count of Steven J. Silver, and Trust Account of Jeanne M. Silver, d/b/a Nebraska Bag Processing Company and Textile Workers Union of America, AFL-CIO. Ca8e8 Nos. 17-CA-12$7 and 17-RC-1573. December 22, 1958 DECISION AND ORDER On May 23, 1958 , Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that he Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also recommended that the, Board set aside the results of the election conducted by it on August 13, 1957, in Case No. 17-RC-2573 and that the Board order the holding of an election, at the earliest appropriate time, 122 NLRB No. 75.