Hardin's Bakeries, Inc.

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I would, accordingly, on the basis of the uncontroverted allegations, concerning the employees' actions, and the absence of opposition, grant the motion in order to effectuate the policies of the Act to pro- mote orderly collective bargaining. - MEMBER BEAN took no part in the consideration of the above Sup- plemental Decision and Order. Hardin's Bakeries, Incorporated and Retail, Wholesale and Department Store Union, AFL-CIO. Case No. 15-CA-1510. May 9, 1960 DECISION AND ORDER On February 18, 1960, 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 and a supporting brief. 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 [Members Rodgers, Bean, and Panning].. 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 entire record in this case, including the Intermediate Report and the excep- tions, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following modification.' ORDER Upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Hardin's Bakeries, Incorporated, Meridian, Mississippi, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Retail, Wholesale and Depart- ment Store Union, AFL-CIO, or in any other labor organization, by ' Contrary to the Respondent's arguments , we have adopted the Trial Examiner's credibility findings for we are not convinced by a clear preponderance of all the relevant evidence that his credibility resolutions are incorrect. Ainsworth Precision Castings Company, Division of Harsco Corp., 125 NLRB 601. Although Member Rodgers agrees with this conclusion, he would not to 'any degree rely, as did the Trial Examiner , upon the small size of the Respondent's plant to establish the Respondent's knowledge of the union activity of Gibson and Berden , the two discriminatees For the finding of knowledge Member Rodgers would rely solely upon the credited testi- mony of Gibson and Berden as to threats made prior to discharge and statements made at the time of the discharges. 127 NLRB No. 76. HARDIN'S BAKERIES, INCORPORATED 659 discharging, laying off, or otherwise discriminating in regard to the hire or tenure of employment of employees, or any term or condition of employment. (b) Interrogating employees concerning their union activities, affiliation, or sympathies in a manner constituting interference, re- straint, or coercion in violation of Section 8(a) (1) of the Act. (c) Threatening employees with reprisals or promising them bene- fits to discourage union membership and activity. (d) 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 Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organizations, 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 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 organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Offer immediate and full reinstatement to David Berden, James Buckalew, Marvin Gibson, Billy Hastings, and Jimmy Thompson 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, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records, and reports, and all other records necessary to analyze the amounts of backpay due, and the rights of employment under terms of these recommendations. (c) Post at its Meridian, Mississippi, plant, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent, be posted by it im- mediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. e Tn 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 " 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director for the Fifteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 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 you that : WE WILL NOT discourage membership in Retail, Wholesale and Department Store Union, AFL-CIO, or in any other labor organization, by discharging, laying off, or in any other manner discriminating against employees in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT threaten 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 or sympathies in a manner constituting interference, restraint, or 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 Retail, Wholesale and De- partment Store Union, AFL-CIO, or any other labor organiza- tion, 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 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 authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL offer to Marvin Gibson, David Berden, James Buck- alew, Jimmy Thompson, and Billy Hastings immediate and full reinstatement to their former or substantially equivalent posi- tions, and make them whole for any loss of pay they may have suffered as a result of our discrimination against them. HARDIN'S BAKERIES, INCORPORATED, 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. HARDIN' S BAKERIES, INCORPORATED 661 INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Rela- tions Board, and an answer having been filed by the above-named Respondent, 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, was held in Meridian, Mississippi, on January 12 and 13, 1960, before the duly designated Trial Examiner. All parties were represented at the hearing and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Argument was waived. Briefs have been received from the Respondent and General Counsel. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: . FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Hardin's Bakeries, Incorporated, is a Mississippi corporation engaged in the busi- ness of operating bakeries. As part of its operations it conducts a wholesale bakery in Meridian, Mississippi, the only plant involved in these proceedings. During the year 1958 the Respondent purchased materials valued at more than $50,000 which were shipped to its Meridian plant from points outside the State of Mississippi. The Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization admitting to membership employees at the Respondent's Meridian plant. in. THE UNFAIR LABOR PRACTICES A. Setting and major issues The chief issue in this proceeding arises from the admitted discharge of five em- ployees at the Meridian plant in mid-February 1959. General Counsel claims that all five were discriminatorily dismissed to discourage membership in the Charging Union. The Respondent denies this allegation and in its answer urges certain other reasons for each discharge. About 70 employees at the plant are engaged in the making, wrapping, packing, and shipping of bread to retail dealers in outlying communities. Ralph I. Meaders is the plant manager; George Jackson, the superintendent. Under Jackson are four foremen, conceded by the Respondent to be supervisors within the meaning of the Act: Williams, Sargeant, Singley, and Fletcher. It appears that until early February 1959, no organizational efforts had been made at this plant for about 10 years. Indication of the Respondent's opposition to such organization is revealed in the credible testimony of employees Marvin Gibson and David Berden, among others. About a month after Berden was hired in October 1958, he remarked to Foreman Williams that it would be a good idea if the employees had a union in the bakery. Williams advised him that he had better not "talk like that" or he would be "losing his job." As noted below, Berden in fact was discharged by Williams soon after he actively participated in organizing the Union here involved. Employee Gibson was rehired by the Respondent in June 1958 , after having worked for about a year at another local plant. Gibson applied for rehiring after employees at this other plant had gone on strike. When reemploying Gibson, Superintendent Jackson warned him that he must not "talk about any union in the plant" and said that "they weren't going to have a union in the plant." Gibson also became active in organizing the Union, and was fired in February 1959, under circumstances described below.' In the latter part of January 1959, Gibson communicated with Union Representa- tive Daniel relative to organizing the bakery, and on Saturday, February 7, Daniel came to Meridian and met with Gibson, Berden, and a few others. At this meeting a number of authorization cards were signed, and visits were then and during the next few days made to employees at their homes, soliciting membership. I For reasons set out below the Trial Examiner is unable to rely upon the testimony of either Jackson or Williams, and does not credit their denials that they made the above statements attributed to them. ,662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As described in more detail below, employees who attended this February 7 meet- ing and others who signed cards were summarily discharged. B. The discharges Marvin Gibson and David Berden: As noted immediately above, Gibson initiated the organizational movement at the Respondent's bakery by arranging for a meeting with the union representative on February 7. He accompanied Daniel on several visits to employees' homes. When reporting for work the following Thursday, Feb- ruary 12, he was given his paycheck by Foreman Williams and told he was fired. He asked why, and Williams replied only that he knew why. Gibson then went to Superintendent Jackson and asked him the reason. Jackson told him he had been "mashing" the bread. The employee protested against this accusation but Jackson told him he "was fired, that that was all there was to it." Later the same day Williams discharged Berden, who also had attended the Febru- ary 7 meeting and had sought signatures at employees' homes. When giving the employee his check the foreman said, according to Berden's credible testimony, he "had reason to believe that a union was trying to organize the place" and that he believed Berden "was in on it." He further told Berden that he did not want to see him around the plant any more, but that if he wanted to see his friends to do so "at their homes." The Trial Examiner can credit neither Williams' denial that he made the remarks at the time of the discharge attributed to him by Berden, nor the extravagant and plainly fabricated reasons advanced by him for firing both Gibson and Berden. Wil- liams claimed he discharged Gibson because: he didn't try to pick up the bread right. He didn't try to put it on the dolly right. He just throwed it around. He let it go without end seals on it. He ,let it go in there that was wrapped sideways, wouldn't put it in the box straight. He further claimed that he told Gibson "two or three times that I wasn't going to put up with it much longer," that he told both Jackson and Meaders about this employee and they said to fire him. Meaders, however, said that he knew "hardly anything at all" about Gibson's discharge. The same foreman said that he fired Berden not only for "mashing" the bread but also for smoking at the machine. As to the latter point, his own testimony establishes that if this were a reason, then he clearly discriminated against Berden, since he admitted that a "lot of the boys were smoking on the wrapping machines" and only Berden was discharged. The foreman's own testimony also negates his claim that the two employees were fired for "mashing" bread. According to his testimony he got complaints from Meaders and Jackson about such mishandled bread "maybe the 1st, the last of February." On cross-examination he said that the "sharp increase" over normal complaints "started around the 15th of February," which would have been 3 days after both Gibson and Berden were discharged. Additional discredit upon Williams' effort to make it appear that Berden was an unsatisfactory employee is cast by the undisputed facts that about 3 weeks before his discharge the employee received an increase in pay, and that upon giving him the raise Williams told him he "deserved one" but urged him not to tell other employees because they were not getting one. And it is plainly unreasonable to believe that Gibson should suddenly become undesirable as a workman. He had been first employed in 1955, worked there until 1957, when he quit voluntarily, and was again employed in June 1958. In short, the Trial Examiner finds no merit in the reasons advanced by the Respondent for these two dismissals, nor in its claim that management was un- aware of union activity in general or the participation of Gibson and Berden. Gibson was the leader in the organizational movement and Berden was among the first to join. As found heretofore, Gibson had been warned by Jackson that the Company would not have a union in the plant, and Berden had been warned by Williams in October 1958, that he had better not talk about a union or he would be "losing his job." Under the circumstances described herein and because of the small plant involved, that Trial Examiner concludes and finds that management was well aware of the union activity of both of these employees,2 and that to discourage union membership they were summarily discharged. 2 Bituminous Material & Supply CD, 124 NLRB 1007; Quest-Shop ]fork Brassiere Co. Inc, 80 NLRB 1149, enfd 185 P. 2d 285 (CA 2), cert. denied 342 US 812; and Stokely Foods, Inc, 91 NLRB 1267, enfd 193 F 2d 736 (CA 5). HARDIN'S BAKERIES, INCORPORATED 663 James Buckalew: When this employee came to work on Friday, February 13, the day after Gibson and Berden had been dismissed, Shipping Clerk James Buckalew was summarily fired by Manager Meaders. According to the employee's credible testimony he was summoned to the office, where he was met by the manager's words: "Buckalew, you're fired. This is the reason I am firing you," whereupon Meaders thrust forward in one hand a check and in the other an unsigned card which Buckalew recognized as a union authorization card such as he had signed 3 days earlier. Meaders further said, "Now, get all your gear and get your - ,out of here." The Trial Examiner can credit neither Meaders' denial that he made the state- ment quoted by Buckalew nor the reasons proffered by him as a witness for firing the employee.3 Sitting at his counsel's table, Meaders displayed not a flicker of surprise or concern at Buckalew's testimony describing the discharge interview, but as a witness himself he exhibited marked discomfiture, mopping his face repeat- edly with his handkerchief. Furthermore, as the record shows, his testimony in several respects is inconsistent with, or contradicted by, that of other management witnesses . Finally, the reasons claimed by him as a witness are at serious variance with those set forth in the Respondent's answer. In summary, for the following reasons the Trial Examiner finds no merit in any ,of the claims as to this employee's discharge set forth in the answer or advanced by Meaders as a witness: (a) The answer claims that "on the day of the discharge a serious mistake was made regarding a special order that he apparently forgot, or at least didn't turn the order over to any one." The fact is, established by Meaders' own testimony, that Buckalew did no work on the day of the discharge, and obviously could have made no mistake that day, serious or otherwise. He was fired upon reporting for work. (b) The last of two so-called "messed up" orders which Meaders claims as one of the reasons for the discharge, according to his own testimony, occurred several days before the discharge and involved only two loaves of bread. Nor was this clearly minor incident Buckalew's fault, according to the employee's undisputed testimony, but that of Foreman Singley, who was not a witness . The two loaves were supposed to be sliced lengthwise and Buckalew, not qualified to operate and reset the slicing machine as Meaders admitted, had turned the order over to the foreman and it was he who apparently neglected to fill it. (c) The manager's own testimony destroys the validity of any charge of Buck- alew's responsibility for the first alleged "messed up" order. It appears that an order of bread, being transported from Meridian by public bus, arrived at its desti- nation in "mashed up" condition, some 10 days or 2 weeks before the discharge. Meaders said it was not "packed" right. According to his own testimony, however, be investigated at the time of the occurrence and found that not Buckalew, but another shipping clerk, had actually packed the order, and that all Buckalew had done was take the package to the bus station. And also as a witness Meaders ad- mitted that the bus company may have been responsible for the "mashing." (d) Finally, Meaders stressed as the precipitating reason for the employee's dis- charge, a claim that on both Wednesday and Thursday, the 2 days preceding the discharge, Buckalew had persistently disobeyed his orders not to talk to girls in the office. Not only does the answer fail to mention anything about this claim, but as a rebuttal witness Buckalew denied being given any such orders and further declared that for the last 6 weeks of his employment his days off had been Wednes- day and Thursday, and that on neither of these days had he come to the plant. The Respondent made no effort to refute this rebuttal testimony. In the absence of any such attempt at refutation, the Trial Examiner infers that the company records would have supported Buckalew's testimony on the point. 8 Nor can the Trial Examiner believe Meaders' denial that he had in his possession an unsigned union card on that date Although both he and employee Scarbrough placed .the incident as occurring a few days after Buckalew's discharge, the manager admitted having obtained an unsigned union card from the latter employee. While it may well be that Scarbrough, a witness for the General Counsel and still employed at the plant, was ',mistaken as to the date he surrendered his unsigned card (he declined to join the Union), the nature of Meaders' other plainly fabricated testimony, noted herein, warrants the reasonable inference that he knowingly tailored the date of receiving the card to a point after the discharges had taken place, for the obvious purpose of supporting his claim that management had no knowledge of union activity In any event, whether it was obtained from Scarbrough or from some other source, the Trial Examiner is convinced that Meaders had a union card at the time of discharging Buckalew. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner concludes and finds that the preponderance of credible evi- dence sustains the complaint' s allegations as to Buckalew, and that he was dis- criminatorily discharged on February 13 to discourage union membership. Jimmy Thompson: At the time of his discharge on February 16, 1959, Jimmy Thompson had been working about 4 months in the Respondent's shipping depart- ment, under Foreman Williams. Thompson was one of the few employees attend- ing the first organizational meeting on February 7, and thereafter sought signatures upon union cards. On February 16 he was given his check and summarily fired by Williams. As a reason for this action Williams told him there had "been a lot of trouble around here and you haven't been wearing a uniform." When Thompson protested, Williams replied that "he couldn't help it, that he didn't have anything to do about it." (The quotations are from Thompson's credible testimony.) The claim advanced as a reason for the discharge by Williams, both to the employee and as a witness, to the effect that being out of uniform was the cause, is plainly a pretext proffered to cover the actual reason. It is true that the employee, because of the nature of his work, seldom wore the particular type of short-sleeved shirt employees working inside the plant were required to wear. For the last 4 months of his employment-late fall and winter-Thompson's work required that he be out of doors from 4 to 10 hours a day, and his testimony is not specifically disputed by Williams that shortly after being assigned to this work he asked for, and received, the foreman's permission to wear a long-sleeved shirt of his own, which the bakery did not provide. And if Williams' claim that the employee "wouldn't never wear his uniform" is to be considered as a denial that he ever gave such permission, then it is plain that 4 months of being out of uniform had been fully condoned by the foreman and management, and that some other reason must have precipitated the discharge. The Trial Examiner is convinced and finds that the real reason for Thompson's dismissal was his union activity, of which it is inferred Williams was aware. Williams did not specifically deny the employee's testimony that shortly before his own discharge he asked the foreman if Berden and Gibson had been fired "on account of the union," that the foreman replied that "he didn't know," but that "it .would be a lot better to quit and find a job than it would be to be fired, because you couldn't find a job after you was fired for something like that." The discharge of Thompson, the Trial Examiner is further convinced, was for the purpose of dis- couraging membership in the Union. Billy Hastings: At the time of his discharge on February 16, Hastings had been employed by the Respondent since August 1956, and throughout the entire period of his employment had worked under the direct supervision of Foreman Dallas Sargeant. He joined the Union on February 12, and 4 days later was summarily fired by Sargeant, being given no reason. The reason offered by Sargeant as witness for his dismissal of Hastings is so clearly unreasonable on its face as to warrant disbelief. Sargeant glibly declared that Hastings had been an unsatisfactory employee "ever since he started to work there"-a period of 2ih years. The falsity of this claim is further revealed by the undisputed facts that: (1) Shortly before his discharge Hastings had been promised another raise by Superintendent Jackson; and (2) since his hiring he had received five separate increases in pay. Even Meaders conceded that Hastings held a "very responsible position," tending the ovens, and it is inconceivable that an unsatis- factory employee on such a job would either have been retained or promised a raise. The Trial Examiner is convinced and finds that, contrary to the Respondent's contention, management became aware of Hastings' union affiliation, and dis- charged him to discourage membership therein. C. Other interference; conclusions in general The credible testimony of Alton Booker, an employee of some 15 years service with the Respondent in the responsible position of oven operator, establishes and the Trial Examiner finds that about February 14 Superintendent Jackson asked him if he had heard about union organizational efforts in the plant and that when he said he had, Jackson continued: I don't have to ask you if you have joined the Union, because you were here when they tried to get a union in before and I think you know how Mr. Hardin feels about a union in this shop. . You know that Mr. Hardin would close this shop before he would have a union in the shop.4 4 For reasons heretofore described, as to Jackson's credibility on other matters, the Trial Examiner cannot accept as true his denial that he made the above-quoted statement. HARDIN'S BAKERIES, INCORPORATED 665 At about the same date employee William Hassell was summoned to Manager Meaders' office where, in the presence of Foreman Williams, he was asked how he "felt" about conditions in the plant, and after other remarks Meaders told the employee, according to the employee's credible testimony: that my work was very satisfactory and all the bosses liked me, and ... he hated to see me leave, but if I didn't go for the company, I had to leave . . the bakery's been running on Mr. Hardin's policy for fifty-eight years and wasn't anybody going to change that policy. Williams added that "it had been tried one time, but they didn't succeed in it." The Trial Examiner infers from the nature of the remarks and surrounding circumstances that both the manager and the foreman were referring to union activities, and it is found that such remarks constituted a thinly veiled threat that Hassell would be fired if he actively participated in the Union.5 At about the same time Foreman Fletcher asked employee Scarbrough if he had a union card. When the employee replied that he had one, Fletcher asked for it, drove the employee to his home for it, and thereafter turned it over to Meaders. Foreman Singley also asked Scarbrough if he had signed a card. When the em- ployee said he had not signed one, the foreman said things might "get rough." The Trial Examiner concludes and finds that, under the circumstances herein de- scribed, by the above-described interrogation of employees and threats of reprisal, voiced by Meaders, Fletcher, Singley, and Jackson; by Williams' threat of reprisal to Berden in October 1958, noted in section III, A, above; and by the discriminatory discharges of the five employees described above, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The 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 certain affirma- tive action to effectuate the policies of the Act. It will be recommended that the Respondent offer Gibson, Berden, Buckalew, Thompson, and Hastings immediate and full reinstatement to their former or sub- stantially 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 normally have earned as wages, absent the discrimination against him from the date of the discrimination to the date of the Respondent's offer of full reinstatement, less their 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 request, make available to the Board and its agents all payroll and other records pertinent to the analysis of the amounts of backpay due. Since the violations of the Act which the Respondent has 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 purpose 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. Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire, tenure, and condition of employment of employees Gibson, Berden, Buckalew, Thompson, and Hastings, thereby discour- s The Trial Examiner is unable to accept as credible the versions given by Meaders and Williams as to this interview, which both admit occurred. 666, DECISIONS OF NATIONAL LABOR RELATIONS BOARD aging membership in and activity on behalf of 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 by Section 7 of the Act, the Respondent has- engaged in and i& 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- me. ce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Deeco, Inc. and Local 976,. International Union, Allied Industrial' Workers of America, AFL-CIO. Case No. 21--CA-3740- May 9,, 1960 DECISION AND ORDER . On January 25,1960, Trial Examiner William E. Spencer issued his' Intermediate Report in the above-entitled proceeding, finding. that the, Respondent had not engaged in and was not engaging in the unfair' labor practices alleged in the complaint and recommending that the, complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Coun sel filed exceptions to the Intermediate Report, together with a sup porting brief. 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 Interme- diate Report, the exceptions and brief, and the entire record in the case, and finds merit in certain of the General Counsel's exceptions. Ac cordingly, the Board adopts the findings, conclusions, and recommen dations of the Trial Examiner, with the modification set forth below.: As set forth more fully in the Intermediate Report, the Respondent, had had collective-bargaining agreements with the Union since 1956, and, since October 1958, Wilbur E. Harwell had been the Union's au- thorized representative in its dealing with the Respondent. In March= 1959 Harwell had requested a seniority list, but Julius Feldhorn, the Respondent's president, had been dilatory in furnishing it because oft the pressure of business. After being put off for over 5 months, Har- well was promised that the list would be ready on September 8. When Harwell arrived at the plant on that date, however, he was informed that Feldhorn was out, and Respondent's acting comptroller, E. M. Pashkow, knew nothing about the seniority list. At this point, Har- well accused Feldhorn of giving him the "run around" and of being a liar; Harwell then left without seeing Feldhorn or the seniority list. '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 [Members Rodgers, ;Bean- and Fanning]. -127 NLRB No. 86.