Lykes Bros. Inc. of Georgia

606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lykes Bros. Inc. of Georgia and United Packinghouse Workers of America, AFL-CIO Lykes Bros. Inc. of Georgia and United Packinghouse Workers of America, AFL-CIO Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and United Packinghouse Workers of America, AFL-CIO Robert Ackerman, individually, and as agent of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO and Meat Cutters, Packinghouse and Allied Food Work- ers Union Local No. 433, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO and United Packinghouse Workers of America , AFL-CIO Meatcutters, Packinghouse and Allied Food Workers Local Union No. 433, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO and United Packing- house Workers of America, AFL-CIO. Cases Nos. 10-CA-2950, 10-CA-3038, 10-CB-583,10-CB-584, and 10-CB-585. August 11, 1960 DECISION AND ORDER On November 25, 1958, Trial Examiner John H. Eadie issued his Intermediate Report in the above-consolidated proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel, the Respondent Company, and the Respondent Unions, here- in called the Amalgamated, filed exceptions to the Intermediate Report and motions to reopen the record, and the General Counsel and Respondent Company also filed briefs. On April 9, 1959, the Board issued an order directing, in part, that the record be reopened and that a further hearing be held for the purpose of (1) permitting the General Counsel to amend the complaint to add Lykes Bros. Inc., as a party Respondent, and (2) to permit the parties to introduce evidence relating to the physical arrangements at the hearing, insofar as they affected the Trial Examiner's opportunity to observe witnesses. On February 5, 1960, Trial Examiner Eadie issued his Supple- mental Intermediate Report, a copy of which is also attached hereto, in which he affirmed the findings of fact, conclusions of law, and recommendations in his original Intermediate Report, with the addi- tional recommendation that the Respondent Company withdraw and withhold recognition of the Amalgamated until it shall have demon- 128 NLRB No. 68. LYKES BROS. INC. OF GEORGIA 607 strated its exclusive majority status pursuant to a Board-conducted election. Thereafter, the General Counsel, the Charging Party, and the Respondent Company filed exceptions to the Supplemental Inter- mediate Report and supporting briefs.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. Except as they have previously been overruled in connection with the remand order, supra, the rulings are hereby affirmed. The Board has considered the Intermediate Report, the Supplemental Intermediate Report, the exceptions and briefs, and the entire record in the cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as indicated below : 1. We find, in agreement with the Trial Examiner, that the Re- spondent Company violated Section 8(a) (1) and (2) of the Act in the numerous instances summarized in the Intermediate Report. The Trial Examiner also stated in the Intermediate Report, but failed to predicate a finding of violation thereon, that employees W. W. Mauldin, Henry Holsey, Henry W. Salter, Clem Wisham, Benjamin Soloman, Leroy Blackmon, and C. E. Willis testified without contra- diction that either Supervisor J. O. Vaughn or Supervisor H. C. McElvaine, or both, asked them to join the Amalgamated or to sign its checkoff cards, and that Wisham, Mauldin, and Willis testified credibly to the effect that Vaughn had threatened them with reprisals if they did not do so. We find that by the above solicitations and threats the Respondent Company further violated Section 8(a) (1) and (2) of the Act. 2. We also agree with the Trial Examiner, for reasons stated in the Intermediate Report, that the Respondent Company violated Sec- tion 8(a) (3) of the Act in the selection of Mauldin, Solomon, Bryant, Blackmon, Wisham, and Jenkins for layoff on June 3 and 14,1957, and Carlton on August 27, 1957. However, unlike the Trial Examiner, we find that the General Counsel has failed to show that the selection of Arlie J. Pate for layoff on June 7, 1957, was discriminatory. Pate was hired on October 11, 1956. He worked in the curing cellar under Foreman A. B. Ward and occupied one of the lowest-rated jobs in that department. Unlike the employees who were laid off in the kill and cut department, Pate had been admonished by Ward on 1 As the exceptions filed by the Amalgamated and Respondent Ackerman to the Supple- mental Intermediate Report were not timely filed, they were rejected . Lykes Bros. Inc. of Georgia, 126 NLRB 1286. In its exceptions to the original Intermediate Report, the Respondent Company also requested oral argument . This request is hereby denied as the record, including the exceptions and briefs, adequately presents the issues and positions of the parties. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several occasions for being slow and not keeping up with his work, and about 3 months before his layoff was given a warning slip. Ward testified , in effect, that he selected employees for layoff on the basis of seniority, that Pate was laid off because of a low seniority standing, and that several employees who had less seniority than Pate were retained because they had more experience . In addition, employees with more seniority than Pate were also laid off on June 7, and the Respondent Company's cancellation of Pate's June 3 layoff is incon- sistent with the conclusion that Pate was laid off because of his ad- herence to the Charging Union. In these circumstances , therefore, we find that the General Counsel has failed to prove that the Respond- ent Company 's layoff of Pate on June 7,1957, violated Section 8 (a) (3) of the Act . We shall, therefore, dismiss the complaint herein as it applies to Pate. 3. The Trial Examiner found that the Respondent Company's letter to VTisham dated October 6 , 1957, in which it offered him im- mediate employment on the night shift in the sweet pickle cellar, constituted a valid offer of reinstatement . We disagree. A formal tender of employment, which merely offers new employment, is not an adequate offer of reinstatement ? Moreover, Wisham had orig- inally been employed on the day shift in the kill and cut department. Thus, the Respondent Company's offer of employment on the night shift in the sweet pickle cellar was not an offer of reinstatement to a substantially equivalent position.' We shall therefore order the Re- spondent Company to offer Clem Wisham immediate and full rein- statement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges , and to make him whole for any loss of pay he has suffered from the date of his layoff to the date of the Intermediate Report and from the date of this Decision and Order to the date he is offered reinstatement.' As the instant record does not disclose whether the other discrim- inatees who returned to work prior to the hearing were, in fact, re- instated to their former or substantially equivalent jobs without any loss of their prior rights and privileges , we shall leave this question to the compliance stage of this proceeding.' 4. The Trial Examiner found that Robert Ackerman, secretary- treasurer of Respondent Meat Cutters, Packinghouse and Allied Food Workers Union Local No. 433, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, was also an agent of the Amalgamated's International Union, and recommended that the International remedy certain of the unfair labor practices found. 2 Lewis Coal Company, 108 NLRB 887, 889. 3 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. * See Denver Fire Reporter and Protective Company, Inc, 119 NLRB 1187, 1189. 6 Associated Wholesale Grocery of Dallas, Inc., 119 NLRB 41, 50. LYKES BROS. INC. OF GEORGIA 609 We do not agree. In finding that Ackerman was an agent of the In- ternational, the Trial Examiner relied upon (1) Ackerman's signature to the contract between the parent corporation and the Amalgamated, (2) his maintenance and enforcement of the contract as it applied to the Respondent Company, and (3) his conduct of union meetings on behalf of the Amalgamated. However, the record discloses that, in each of these instances, Ackerman was acting on behalf of Local 433 rather than the International. Under these circumstances we find that Ackerman was not an agent of the International,' and there is no other evidence establishing that the International was responsible for any of the unfair labor practices. We shall, therefore, dismiss the complaint herein insofar as it applies to the International. However, as Ackerman was named as a Respondent herein, we shall correct an apparent oversight by the Trial Examiner and specifically name Ackerman as an agent of the Respondent Local responsible for rem- edying the unfair labor practices. 5. In his Intermediate Report, the Trial Examiner failed to recom- mend that the Respondent Company withdraw recognition from the Respondent Unions and the General Counsel excepted thereto. In his Supplemental Intermediate Report, the Trial Examiner reversed him- self and recommended that the Respondent Company cease main- taining and enforcing its contract, and withdraw and withhold recog- nition from the Amalgamated until it shall have demonstrated its exclusive majority status pursuant to a Board-conducted election. The Respondent Company excepts. In making this recommendation, the Trial Examiner apparently construed the Board's remand order, supra, as requiring acceptance of the General Counsel's contention that Board practice requires a cease recognition order whenever a violation of Section 8(a) (2) has been established, regardless of the nature of the violation or the surrounding circumstances. We do not agree, however, that such an order is appropriate here. To the extent that the Trial Examiner, in making such a recom- mendation, relied on the Board's remand order, he has misconstrued the purport and intent of that order. The remand order did not mention the Trial Examiner's recommended remedial order. Instead, insofar as is pertinent here, the remand order granted the General Counsel's request for a remand which the General Counsel requested be granted only in the event the Board did not enter a cease recogni- tion order upon the record as made at the original hearing.' Con- sequently, insofar as it might be permissible to draw any inference e Cf. United Construction workers, et al. v . Haislip Baking Company, 223 F. 2d 872 (C.A. 4) ; Mile Branch Coal Company v. United Mine Workers of America, 266 F. 2d 919 (C.A.D.C.). 'As noted in the Supplemental Intermediate Report , the General Counsel subsequently withdrew the allegations of the complaint which were the subject of this aspect of the remand order. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the Board's remand order, such an inference would be contrary to that apparently drawn by the Trial Examiner. Nor do we agree with the General Counsel that Board precedent supports a cease recognition order here. The General Counsel relies on two cases in support of this contention,' both of which cases are clearly distinguishable from the situation involved in the instant case. In the New Orleans Laundries case, unlike here, there had been a recently expired closed-shop contract, and the respondent permitted its personnel office and employees to be used in such a manner as to convey to newly hired employees the impression that membership in the union continued to be mandatory, or at least favored and sup- ported by the respondent. It appeared, moreover, that at least some of this conduct occurred before the execution of a later contract which the Board had found, following its practice of not considering any allegations of unfair labor practices in a representation proceeding, to be a bar to a representation petition.' In the Sioux City Brewing Company case the Board issued a cease recognition order, notwith- standing the existence of a valid contract between the parties, because there the assistance and support not only occurred in the midst of the competing union's organizational campaign, but also, unlike here, after a timely petition for an election had been filed with the Board by the competing union. In the Sioux City case, therefore, the unlawful assistance served to strengthen the incumbent union's representative status at a time when the employees affected could appropriately seek and were seeking to change their representatives, while in the New Orleans case the unlaw- ful assistance as found by the Board occurred against a background of conduct which clearly served to strengthen the incumbent union's status before the execution of the contract and in the face of a rival union's organizational campaign. In such circumstances, it was ap- propriate for the Board to require withdrawal of recognition so that the employees might thereafter select their representatives free from the effects of the unlawful assistance. In the instant case, however, the considerations which impelled the Board's orders in the New Orleans Laundries and Sioux City Brewing cases are absent, as all of the un- lawful assistance occurred shortly after the execution of a presump- tively lawful contract," and at a time when, because of that contract, the employees could not appropriately seek to change their representa- 8 New Orleans Laundries , Inc., 114 NLRB 1077; Sioum City Brewing Company, 82 NLRB 1061. 'Because of a question involving the interpretation of Section 10(b) of the Act the Board, in finding unlawful assistance , deemed it unnecessary to rely on the conduct which antedated the execution of the contract . Such conduct was, however , of the same type as that on which the Board relied in finding unlawful assistance 10 As the General Counsel withdrew the allegations of the complaint attacking this contract, it must be presumed for purposes of this case that its execution and maintenance were lawful. LYKES BROS. INC. OF GEORGIA 611 tives, and there is no evidence of any background conduct before the execution of the contract which could be said to have strengthened the Amalgamated's representative status. Our dissenting colleague seems to take the position that in every case involving assistance in violation of Section 8 (a) (2), the Board must mechanistically order the Respondent to cease recognizing the assisted union. However, the Board has not so held," and the courts have re- peatedly cautioned the Board that its remedial orders must be tailored to fit the violations found. Although we have found that the Re- spondent unlawfully assisted the Amalgamated to obtain additional members and dues, this assistance does not on this record warrant an inference that the Amalgamated's ability to represent the employees in the daily administration of its contract was thereby adversely affected. Nor can we understand how our colleague can find support for his proposed order in the circumstances that the contract would no longer be a bar. If that circumstance is relevant at all to the nature of the order to be entered, and we doubt that it is relevant, it would seem to militate against his proposed order as it would be more likely to postpone than to hasten the day when an election could be held, since compliance with a cease recognition order would be a prerequisite to an election. And finally we cannot agree that the employees would be deprived of no benefit under the contract, for they would most cer- tainly be deprived of union representation in the administration of the contract. Under all the circumstances, therefore, we do not believe that an order requiring the parties to suspend their bargaining relationships pending an election is necessary to effectuate the policies of the Act. Accordingly, as there is no basis for a finding that the contract be- tween the parties involved herein was a consequence of the unfair labor practices found, or that this contract thwarts any policy of the Act, we reject the Trial Examiner's recommendation for the issuance of a cease recognition order.'2 6. The Trial Examiner further recommended that the Respondent Company, jointly and severally with the Amalgamated, reimburse its employees for all dues paid to the Amalgamated subsequent to May 1, 1957. The Respondents except. As indicated above, the record pres- ently before us discloses no illegality in the May 1, 1957, contract be- tween the Respondents. Thus, the assistance and interference found herein is confined solely to coercion by the Respondents to force certain employees to execute dues checkoff cards for the Amalgamated. In these circumstances we find, unlike the Trial Examiner, that a. re- fund of dues to all employees would not be appropriate. Accordingly, 11 See Alaska Salmon Industry, Inc, and its Member Employers, 122 NLRB 1552. 12 N.L R.B. v. Scullin Steel Company, 161 F. 2d 143, 147 ( C.A. 8). 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we shall order a refund of dues only to those employees who were in- dividually coerced to sign dues checkoff cards.13 7. The General Counsel and the Charging Party except to the Trial Examiner's failure to include Lykes Bros. Inc., the parent of the Re- spondent Company, in the recommended order." As the record shows that the Respondent Company is a wholly owned subsidiary of Lykes Bros. Inc., that employees of both companies are included in the same contract unit, and that the two companies are owned and controlled by the same individuals, we find that, for purposes of this proceeding, the two companies constitute a single employer within the meaning of the Act. Accordingly, we find Lykes Bros. Inc. equally responsible for the violations of the Act committed herein by the Respondent Com- pany, and shall therefore order it to take appropriate remedial action. 15 ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent Company, Lykes Bros. Inc. and Lykes Bros. Inc. of Georgia, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Packinghouse Workers of America, AFL-CIO, or in any other labor organization of its em- ployees, by discriminating in regard to their hire or tenure of employ- ment or any term or condition of employment. (b) Interrogating employees concerning their union membership and activities in a manner constituting interference, restraint, or coer- cion, or making threats of reprisal because of such activity. (c) Threatening employees with reprisal for failure or refusal to join Meat Cutters, Packinghouse and Allied Food Workers Union Local No. 433, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization. (d) Rendering assistance and support to Meat Cutters, Packing- house and Allied Food Workers Union Local No. 433, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or to any other labor organization. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights 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 11 Cf. N L R B v. McGongh Bakeries Corporation, 153 F 2d 420 , 425 (C.A 5) ; N L R B. v. Parker Brothers and Company, Inc, 209 F 2d 278, 280 (CA. 5) 14 As indicated above, this case was remanded in part to permit the General Counsel to add Lykes Bros Inc., as a party Respondent. 15 Margaret Ann Grocery Stores, 115 NLRB 1676, 1690 LYKES BROS. INC. OF GEORGIA 613 Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Clem Wisham immediate and full reinstatement to his, former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him and Leroy Blackmon, L. C. Mauldin, Lee Jenkins, T. Earl Bryant, O. G. Carlton, and Benjamin Solomon whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The Remedy," as modified herein. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to compute the amount of backpay due under the terms of this Order. (c) Post at its plant, in Albany, Georgia, copies of the notice at- tached hereto marked "Appendix A." 16 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Company's authorized representative, be posted by the Company immediately upon receipt thereof, and be- maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company- to insure that these notices are not altered, defaced, or covered by- any other material. (d) Post at the same places and under the same conditions as set forth in (c) above, as soon as they are forwarded by the Regional Director, copies of the notice of the Respondent Union attached- hereto marked "Appendix B." (e) Mail signed copies of the notice attached hereto marked "Ap- pendix A" to the Regional Director for the Tenth Region, for posting- by the Respondent Union at its business offices and meeting halls in Albany and Savannah, Georgia, in places where notices to members are customarily posted. Copies of said notice to be furnished by the Regional Director, shall, after being signed as provided above, be forthwith returned to the Regional Director for such posting. (f) Notify the Regional Director for the Tenth Region, in writing, within 10 days of the date of this Order, what steps the Company has taken to comply herewith. B. The Respondent Union, Meat Cutters, Packinghouse and Allied Food Workers Union Local No. 433, Amalgamated Meat Cutters ie In 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 " 577684-61--vol. 128-40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Butcher Workmen of North America, AFL-CIO, its officers, representatives, successors, assigns, and agents, including Respondent Robert Ackerman, shall : 1. Cease and desist from: (a) Restraining and coercing employees of the Respondent Com- pany, Lykes Bros. Inc. and Lykes Bros. Inc. of Georgia, or of any other employer, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will ,effectuate the policies of the Act : (a) Post at its business offices and meeting halls in Albany and Savannah, Georgia, copies of the notice attached hereto marked "Ap- pendix B." 11 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by an official representative of the Union, be posted by the Respondent Union immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to insure that these notices are not altered, defaced, or covered by any other material. (b) Post at the same places and under the same conditions as set forth in (a) above, as soon as forwarded by the Regional Director, copies of the notice attached hereto marked "Appendix A." (c) Mail signed copies of the notice attached hereto marked "Ap- pendix B" to the Regional Director for the Tenth Region, for posting by the Respondent Company at the office and plant of the latter in places where notices to employees are customarily posted. Copies ,of this notice, to be furnished by the Regional Director, shall be returned forthwith to the Regional Director, after they have been signed by an official representative of the Union, for such posting. (d) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. C. The Respondent Company, Lykes Bros. Inc. and Lykes Bros. Inc. of Georgia, shall jointly and severally with the Respondent Union, Meat Cutters, Packinghouse and Allied Food Workers Union Local No. 433, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, reimburse all employees who were indi- vidually coerced to sign dues checkoff cards for the said Union for all dues deducted from their wages subsequent to May 1, 1957. 17 See footnote 16, supra LYKES BROS. INC. OF GEORGIA 615 IT IS FURTHER ORDERED that the allegations of the complaint to the effect that the Respondent Company discriminatorily selected Arlie J. Pate for layoff on June 7, 1957, be dismissed. IT IS FURTHER ORDERED that the allegations of the complaint herein, insofar as they allege that the International of the Respondent Union, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, violated Section 8(b) (1) (A) of the Act, be, and they hereby are, dismissed. MEMBER BEAN, concurring in part and dissenting in part: I concur in the conclusion of the majority that the Respondent Company violated Section 8(a) (1) and (2) by the solicitations and threats engaged in by its supervisors, and 8(a) (3) by the layoffs of employees, as part of an effort to enforce allegiance to the Respondent Union and to discourage membership and activity in the rival unions which were organizing in the plant. I also concur in the conclusion that the Respondent Union and its agent violated 8(b) (1) (A) by threatening to procure the discharge of employees who did not join and cooperate with the Union or who engaged in activity On behalf of its rival. I dissent, however, from the failure to include in the remedy for the unlawful support and assistance furnished by the Respondent Company to the Respondent Union, the usual provision requiring the Company to cease recognizing and dealing with the Union until and unless it is certified, or has demonstrated its majority status, in a Board-conducted election. My colleagues' rejection of the General Counsel's request for this customary remedy is based upon a purported distinction, here made for the first time, between unlawful assistance and support of a union which occurs prior to the employees' selection of an exclusive bar- gaining agent, and similar unlawful assistance and support provided to a union after it has negotiated an otherwise lawful contract. There is in my opinion no adequate existing precedent for such a distinction 18 Nor do I believe that such a distinction is supported by the basic policy of Section 8 (a) (2). The purpose of that section is twofold: to permit the employees a free choice of their representative, and to insure that the representative selected will perform the obligations with which it is entrusted single-mindedly and in a manner free from taint of sup- port or assistance by the employer with whom such representative is required to deal on behalf of the employees. The majority decision recognizes only the first of these objectives, and, in rejecting the usual remedy of withdrawal of recognition, 7e The New Orleans Foundries and Sioux City Brewing cases relied on by the General Counsel and sought to be distinguished by the majority are in my opinion factually close to the present case and support the use of the traditional remedy. In any event, how- ever, no such factual distinction as that now sought to be drawn was considered or dis- cussed in those cases, which applied the usual remedy requiring the withdrawal of recog- nition until the unions should be certified. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attaches significance to the timing of the unlawful assistance, as hav- ing occurred when the employees "could not appropriately seek to, change their representatives," i.e., at a time when, under representation case principles, the Union's contract would constitute a bar to an election. In other words, it is only the existence of a "presumptively lawful contract" which precludes them from ordering the withdrawal of recognition. I believe that this view is in error in several respects. First and foremost, this approach ignores the importance of provid- ing a remedy not only to preserve the employees' initial freedom of choice but to expunge, if possible, the effects of employer assistance and support as it impinges upon the Union's position as representative in the daily administration of the collective-bargaining contract on behalf of the employees. Especially in the presence of flagrant acts of employer preference and support, such as the threats of discharge and layoffs in this case, which the Union has quite evidently adopted and approved as shown by its own commission of similar coercive act,19' considerable doubt is cast upon the Union's ability fairly to represent the employees, and no less a remedy than the requirement of with- drawal of recognition pending an opportunity for expression of the employees' desires in an election, would appear to be required. Second, assuming that the contract might have barred an election in a representation proceeding as of the time the unlawful assistance, and support occurred, the record nevertheless discloses that the con- tract between the Company and Union is for an initial term of 3 years and 3 months and is now approaching the close of that term. As more than 2 years of this contract have expired, the contract is no^ longer a bar under representation case principles, and thus it is evi- dent that even under these doctrines the door is presently wide open for the conduct of an election. But last and most important, it is now established that the Board is not precluded by considerations applicable only to proceedings in representation cases from conducting an election such as may be re- quired to remedy violations of Section 8(a) (2) in unfair labor prac- tice proceedings under the authority of Section 10(c). The Supreme Court has not only so held in the Bowman case 20 but has also indicated therein its approval of the Board's use of the election as an appropriate remedy for an employer's violation of Section 8(a) (2) by furnishing unlawful assistance and support to a labor organization. In these circumstances, the Board should not hesitate to employ the traditional remedial requirement that further recognition of the Union should await its selection in an appropriate Board-conducted election. 16 Such flagrant coercion was not present in Alaska Salmon Industry, the only case cited' by my colleagues in which the Board has not ordered withdrawal of recognition in a situation involving unlawful assistance in violation of 8(a)(2). 20 N L R B v District 50, United Mine Workers of America (Bowman Transportation, Inc.), 355 U S. 453. LYKES BROS . INC. OF GEORGIA 617 Two further matters merit discussion : First, no problem of unit should arise to preclude an appropriate remedial election. Although the parties have recently included the plant here involved in a broader contractual unit with other plants of the parent company, the Board has twice previously found the employees of this plant to constitute a separate appropriate unit and has held representation elections in the plant on that basis. The brief history of bargaining on a broader basis under the coverage of the multiplant contract is not a persuasive history in view of the fact that practically from the beginning of such coverage the Union's status as representative in this plant has been substantially tainted by company assistance and support, as well as by coercion practiced by the Union itself as a means of maintaining its representative position. Especially for the purposes of a remedial election to expunge the effects of this history of prejudice to the Union's position as representative on behalf of these employees, a unit limited to the employees of this plant is appropriate. Moreover, if the Board should direct the Company to withhold recognition from the Union pending the Union's designation in a Board-conducted election, no benefits under the existing contract need thereby be lost to the employees. Such an order customarily provides that although there must be a withdrawal of recognition of the union as bargaining agent, such action is not to be taken as requiring aban- donment of any of the terms and conditions of employment established by the contract. Indeed it is doubtful if the Board's remedial pro- visions can in fact affect any of the employees' substantive rights under the contract 21 In any event, such a remedial order, while not depriving the employees of benefits gained by virtue of the contract, would serve as an aid to freeing them from the burden of representa- tion by an agent in administration of the contract whose position as such agent has been prejudiced by unlawful company assistance and support. a J. I. Case Company v. N L R.B., 321 U.S. 332, 340. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL offer Clem Wisham immediate and full reinstatement to his former or substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him and Leroy Blackmon, W. W. Mauldin, Lee Jenkins, T. Earl Bryant, O. G. Carlton, and Benjamin Solomon whole for any loss of pay suffered as a result of our discrimination against them. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate our employees concerning their mem- bership in or activities on behalf of United Packinghouse Workers of America, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion, or make any threats of reprisal because of such activity. WE WILL NOT threaten our employees with reprisal for failure or refusal to join Meat Cutters, Packinghouse and Allied Food Workers Union Local No. 433, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization. WE WILL NOT discourage membership in United Packinghouse Workers of America, AFL-CIO, or in any other labor organiza- tion of our employees, by the discharge of any employees or by discrimination in any other manner in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in the Act, except to the extent that such rights 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, jointly and severally with Meat Cutters, Packing- house and Allied Food Workers Union Local No. 433, Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, reimburse our employees who were individually co- erced to sign dues check off cards for the aforesaid Union for all dues paid subsequent to May 1, 1957, pursuant to the contract or any superseding agreement between Lykes Bros. Inc. and the aforesaid Union. All our employees are free to become or remain or refrain from becoming or remaining members of the United Packinghouse Workers of America, AFL-CIO, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization. LYKES BROS. INC. AND LYKES BROS. INC. OF GEORGIA, 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. LYKES BROS. INC. OF GEORGIA 619' APPENDIX B NOTICE TO ALL MEMBERS OF MEAT CUTTERS, PACKINGHOUSE AND ALLIED FOOD WORKERS UNION LOCAL No. 433, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, AND TO, ALL EMPLOYEES OF LYKES BROS. INC. AND LYKES BROS. INC. OF GEORGIA 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, we hereby notify you that : WE WILL NOT restrain or coerce employees of Lykes Bros. Inc. and Lykes Bros. Inc. of Georgia, or any other employer, in the exercise of rights guaranteed by Section 7 of the Act, except to. the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as' authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL jointly and severally with the said Company, reim- burse all employees of the Company who were individually coerced to sign dues checkoff cards for our Union, for all dues paid subsequent to May 1, 1957, pursuant to the contract or any superseding agreement between Lykes Bros. Inc. and our Union. MEAT CUTTERS, PACKINGHOUSE AND ALLIED FOOD WORKERS UNION LOCAL No. 433, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) ROBERT ACKERMAN, AGENT, MEAT CUTTERS, PACKINGHOUSE AND ALLIED FOOD WORK- ERS UNION LOCAL No. 433, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, Individual. Dated---------------- By------------------------------------- (ROBERT ACKERMAN) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed by United Packinghouse Workers of America , AFL-CIO, herein called United, the General Counsel of the National Labor Relations Board, by the Regional Director for the Tenth Region , issued a consolidated complaint, dated December 5, 1957, again Lykes Bros. )Inc. of Georgia , herein called the Com- pany; Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO; Meat Cutters , Packinghouse and Allied Food Workers Union Local No. 433, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein referred to collectively as the Amalgamated or as Amalgamated and Local 433, respectively ; and Robert Ackerman, individually and as agent of said Amal- gamated and Local 433. With respect to the Company , the complaint alleged that it had engaged in unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended herein called the Act. As to Amalgamated, Local 433, and Respondent Ackerman, the complaint alleged that they had engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and Section 2(6) and (7) of the Act. The Company filed an answer about December 16, 1957 , in which it admitted the jurisdictional allegations of the complaint , but denied the commission of any unfair labor practices . The answers of the Amalgamated, Local 433, and Respondent Ackerman denied the commission of any unfair labor practices and denied having knowledge sufficient to form a belief as to the jurisdictional allegations of the complaint. Pursuant to notice, a hearing was held at Albany, Georgia, on various dates, start- ing on April 1 , 1958, and ending on May 27, 1958, before the duly designated Trial Examiner. At the start of the hearing the General Counsel moved to amend para- graphs 6 (a) and (d) of the complaint . The motion was granted over the objections of the Respondents . During the course of the hearing , the Trial Examiner, over the objections of the General Counsel , granted motions of the Company and Amal- gamated to dismiss paragraphs numbered 5 and 6 (e) of the complaint . At the close of his case, the General Counsel moved to strike the name of Jack Deal from para- graph numbered 7 of the complaint. The motion was granted without objection. During the hearing, the Company and Amalgamated made a number of motions to dismiss the complaint in whole or in part. Each renewed its motions at the close of the whole case. Ruling was reserved . The motions to dismiss are disposed of as hereinafter indicated. After the conclusion of the hearing , the General Counsel, the Company, the Amalgamated , and Respondent Ackerman filed briefs with the Trial Examiner. The Company also filed a motion to correct the record. No ob- jections to the motion having been made, the motion is granted , and the motion is marked and received in evidence as Trial Examiner's Exhibit No. 5. Based upon the record as a whole, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is a Georgia corporation , with its principal office and place of busi- ness located at Albany, Georgia , where it is engaged in livestock slaughtering, meat processing, and meat packing. During the year 1957 , the Company sold and shipped directly from its Albany plant to points outside the State of Georgia finished products valued in excess of $ 100,000. IT. THE ORGANIZATIONS INVOLVED United. Amalgamated, and Local 433 are labor organizations which admit to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES A. Background The Company, a wholly owned subsidiary of Lykes Bros. Inc, a Florida corpo- ration, purchased its Albany plant during the latter part of 1954. The parent or Florida corporation operates a packing plant in Tampa, Florida, and three branch houses in other parts of Florida For about the past 10 years the parent corporation has had contractual relations with Amalgamated covering its Florida establishments. LYKES BROS. INC. OF GEORGIA 621 A petition seeking a Board election and certification for a production and main- tenance unit at the Company's plant was filed on December 24, 1954, by United. Amalgamated intervened in the proceeding. Neither union prevailed in the subse- quent election directed by the Board. United filed another petition with the Board in March 1956. Amalgamated did not intervene. A majority of the Company's employees voted against United in the resulting election. On May 1, 1957, a new contract was executed between Amalgamated and the parent corporation, "for itself and its wholly-owned subsidiary, Lykes Bros. Inc. of Georgia." The Company's employees were included in the unit for the first time. Shortly after the signing of the contract, the employees were solicited to sign checkoff authorizations cards for Local 433. On May 27, 1957, a meeting was held by Amal- gamated for the Company's employees, at which time the contract was ratified. At about the same time and during May 1957, United and the Moultrie, Georgia, local of Amalgamated were conducting campaigns to organize the Company's em- ployees. On Friday, May 31, 1957, United held its first meeting for the Company's employees. On the following Monday the Company began to lay off employees, allegedly for economic reasons. B. Supervisors and agents No dispute exists concerning the supervisory status of L. N. Moore, plant manager; Walter (Jack) Smith, plant superintendent; A. B. Ward, foreman over the "sweet pickle" department; J. C. Carlton, foreman over the "kill and cut" department; and R. E. Horne, foreman over the "sausage" department. There is a dispute concerning the status of W. O. Vaughn, J. O. Vaughn, H. C. McElvaine, W. R. Baxter, and Thelma Ward. 1. W. 0. Vaughn Vaughn, referred to frequently in the record as "Shorty," works under Foreman A. B. Ward. Ward supervises the "sweet pickle" or "curing cellar," an area about 100 feet wide by 200 feet long; the "smoked meat hang," a separate room covering an area about 35 by 15 feet; the "smoked meat pack" and "sliced bacon" departments, both in the same room covering an area about 40 by 100 feet; and the "ham boning" department, which is located in the curing cellar. Ward's office is in the "center" of the curing cellar. As of June 1, 1957, there were approximately 15 employees in the curing cellar, 11 in .the smoked meat hang, 14 in the smoked meat pack, 7 in sliced bacon, and 4 in ham boning. Employee Arlie Pate testified that during December 1956,1 Ward called "the whole crew" together and told them that he was appointing Vaughn as his "assistant fore- man" and wanted them to obey Vaughn and follow his orders. Employee Carley Bryant testified that "about two months before I was laid off" (June 7, 1957) Ward told all the employees as a group that he was making Vaughn an assistant foreman and that they were "to cooperate and go along with him and do what he said." Em- ployee Horace Salter testified that during March 1957, Ward called all the employees together "around the ham pumping table" and told them that he did not want them "to talk back" to Vaughn, as he was his "assistant." 2 Pate, Bryant, Salter, Saunders, and employee C. E. Willis testified, in substance, that Vaughn assigned work to the employees; that he transferred them from job to job; that he told them when to punch out from work or when to work overtime; that they reported to Vaughn when a job was completed; and that Vaughn granted time off from work. Salter testified that during June 1957 he was at his father's home, together with Ward and Vaughn, and that when Vaughn complained about employees watching the clock "every evening," Ward replied, "Anybody that don't work to suit you, you just bring them to me and I'll get rid of them." 3 Vaughn was carried on the Company's records as a "ham pumper " Ward testified, in substance, that Vaughn received a wage increase and became a gangleader "offi- 'It appears that Pate was not sure of the date, as he testified, "in December of '57-'56, somewhere along in there." 2 Employee Glenn Saunders testified to a similar meeting, also during March 1937 s Vaughn did not appear as a witness at the hearing Ward did not deny the above statement attributed to him by Salter. Saunders testified that about 3 or 4 weeks after Ward made Vaughn his assistant he overheard Ward tell Vaughn that if he did not want employee J. L. Brown, he should "let him go" Ward testified that at one time he told Vaughn to let Brown "go home" when his work was finished for the day, but denied that he ever told Vaughn that he could discharge Brown Ward's testimony is credited in this connection. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cially" during August 1957, in the sweet pickle department; 4 that previously he had used Vaughn unofficially as a gangleader in the sweet pickle department only; that Vaughn spent 80 to 90 percent of his time doing ordinary work such as "pumped picnics, salted dry bellies down, salted picnics down, put them in bins"; 5 that as a gangleader he used Vaughn to relay his orders to the employees, to "tell the various gangs ... to make a change," and to keep buggies and tubs up so as to avoid work stoppages; that the type of work that Vaughn performed did not change "too much" after he became a gangleader officially; that he never referred to Vaughn as his "assistant foreman"; that at various times he used other employees, including Salter, to relay his orders; that he had never authorized Vaughn to grant employees time off; and that Vaughn did not have the authority to hire or fire or to recommend such action. Concerning a group meeting with the employees during the early part of 1957 and the reason for it, Ward testified, At one particular time I called them together, I didn't necessarily call them just for Vaughn. . . . I don't remember who it was in particular, but I sent someone up to the freezer, I believe it was, to tell the ones I had working up there what to do. Well, there was three or four of them wouldn't believe the fellow. So when I came back and found the work wasn't done like I had . sent word for them to do, well, I called them all together and told them regardless of who I sent word for them to change their work orders, to change them, . . . and that more than likely Shorty would be doing most of the passing on of the orders; that I would use him because he was right there where I could get hold of him in the cellar and I would use him; but there would be other people coming up there to tell them to change the orders, too, at times and to do what they said to do; and if anyone came up there and told them to do anything I hadn't told them to tell them, they would have to answer to me about it. In brief, insofar as supervisory status is concerned, Vaughn during the times material herein was on the fringe. Both Ward and Smith testified that Vaughn had never attained the status of foreman or assistant foreman, and that he was not even designated as a gangleader until August 1957. In fact, the records of the Company show that he had a nonsupervisory classification, that of pumper, during the times in question. It is undisputed that he was paid an hourly rate as a pumper, and that he did not receive a wage increase until he was promoted to gangleader. It is admitted that Ward used Vaughn unofficially as a gangleader for at least 3 months before August 12, 1957. Ward's testimony, however, indicates that a gang- leader is not a supervisory employee within the meaning of the Act, since a gangleader merely sees to it that the employees are supplied with work and relays the foreman's orders. The question of whether or not Vaughn was delegated or permitted to exercise supervisory authority beyond that of gangleader remains. I credit Ward's version of his remarks to the assembled employees in March or April 1957. It is possible that he referred to Vaughn as an "assistant," but I do not believe that he used the term "assistant foreman," especially in view of his uncon- tradicted testimony that he used a number of named employees, including Salter, to transmit his orders at that time. Ward's explanation of the reason for his talk to the employees appears plausible. Since Ward did not mention any other employee by name and told the employees that "more than likely Shorty [Vaughn] would be doing most of the passing on of the orders," it is understandable that they arrived at the conclusion that Vaughn was being made an "assistant" to Ward or an "assistant foreman." From the above, it would appear that Vaughn was not a supervisory employee. Directing employees to transfer to other jobs or to work overtime is not conclusive. This could have been a mere relay of orders from Ward. There remains the un- contradicted testimony to the effect that Vaughn granted time off to employees with- out consulting Ward and concerning Ward's statement to Vaughn in Salter's presence. Salter testified that at some unspecified time Vaughn granted him time off from work when he was sick. Saunders testified that sometime during the months of `Superintendent Smith testified that he changed Vaughn's classification to gang- leader about August 12, 1957. The undisputed evidence shows that gangleaders were paid hourly rates, as were other employees, and that foremen were paid weekly salaries. 'Saunders testified that he had never seen Vaughn pumping hams and that Vaughn performed "different" manual jobs "just a little bit at a time." Salter testified that Vaughn "don't work much, just does as he pleases" ; and that he did not see him do any ham pumping during May and June 1957. Bryant testified that he saw Vaughn perform- ingsome of the jobs in the department ; that Vaughn pumped hams for "a short period ,of time" ; and that Vaughn helped employees by showing them how to do their jobs "fast." LYKES BROS. INC. OF GEORGIA 623 April, May, and June, 1957, Vaughn granted him time off from work.6 Salter, when questioned as to the date of the conversation between Ward and Vaughn, testified, "It was, I'd say, June." The complaint alleges that Vaughn engaged in illegal conduct on behalf of the Company on or about May 15 to June 7, 1957. The evidence shows that Vaughn engaged in such conduct during May 1957. In my opinion, while the question is close, this evidence is not sufficient in order to sustain the burden of proof. At most, the General Counsel has proved that during the time material herein on one occasion Vaughn granted an employee time off from work without consulting Ward first. Even if Salter's testimony with respect to Ward's statement to Vaughn is considered relevant and material on the question of supervisory status, disregarding the time element, nevertheless there is no evidence that Vaughn at any time recommended, effectively or otherwise, the discharge of an employee. Further, it should be noted that the conversation took place away from the plant and apparently at a social gathering at the home of Salter's father. Finally, in view of the fact that Ward used a number of employees to relay his orders, I do not believe that a conclusion that the Company held out Vaughn to the employees as a representative of management or that the employees regarded him as such is warranted. The complaint also alleges that Vaughn was an agent of the Amalgamated. In this connection, Pate, Bryant, and Saunders testified that Vaughn told them that he was getting $2 for each card of the Amalgamated that he got an employee to sign. Vaughn did not reveal to them the identity of the person or organization allegedly making such payments. Employee Henry Holsey testified without contradiction that during the end of May 1957, he attended a meeting of the Amalgamated for the colored employees of the Company at which Robert Ackerman, secretary-treasurer of Local 433, pre- sided, and that the following conversation took place at the end of the meeting: Graham, the colored organizer, he was talking with Mr. Ackerman and my- self. . And he [Graham] said, "You are giving these other fellows a couple of dollars to get these people to sign up, two dollars a head, why don't you give him [Holsey] the same benefits that you do the others if he gets some signed up?" Mr. Ackerman said, "Well, if he can get them signed up, good. . . . You just write your name up on the top corner where I'll know that you got those signed up." Counsel for the Amalgamated objected to the above testimony on the grounds of hearsay. He points out in his brief, Nowhere in the record is there evidence of the fact of the payment of monies to Vaughn [by anyone] for getting signed checkoff cards. Hearsay testimony that he told others that he received such payments does not prove the fact of payment. . The absence of the fact of payment is not remedied by hearsay testimony from another source that "these other fellows . . " [unidentified] receive such payments. Nor does a direct offer of payment to Holsey prove that Vaughn did in fact receive such payment from anyone, much less the Union. I agree with this argument. Since there is no direct evidence in this connection, I find that the General Counsel has failed to sustain the burden of proving agency. Accordingly, it will be recommended that the complaint be dismissed insofar as it relates to W. 0. Vaughn. 2. J. 0. Vaughn 7 J. 0. Vaughn, also referred to in the testimony as "Shorty," worked in the Com- pany's "freezer." Moore testified that during the latter part of 1956, E. G. Morgan, an official of the Company, told Vaughn, "Shorty, you've done a good job over there. We are going to make you foreman of the freezer now" 8 Concerning Vaughn's duties, Moore testified, in substance, that although Vaughn was "in charge" of the freezer, he had no employees to supervise as no employees were assigned to the freezer on a permanent basis; that Vaughn was referred. to as foreman of the freezer in much the same manner as in the Army a person is referred to as "captain of the latrine"; that from time to time employees were sent from other departments to work in the freezer as they were needed; that when employees were assigned to such temporary work in the freezer, they remained under the supervision of their own foremen; that at such times Vaughn worked with the employees, but had no 8 This testimony was in answer to a leading question propounded by the General Counsel. 7 Vaughn did not appear as a witness at the hearing. 8 B. G. Martin, the Company's office manager, testified that Morgan told him to give Vaughn a raise effective October 8, 1956, and to put him on the payroll as "freezer man." 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervision over them; and that employee B. S. Hathcock, who was assigned to the "loading dock," worked in the freezer "quite a bit." 9 Hathcock testified that he worked for the Company from October 1956 until February 1957; that he worked on the loading dock for about a month and then was transferred to the freezer where he remained until his employment was termi- nated; that about January 25, 1957, Vaughn gave him a warning notice; 10 that Vaughn told him and another employee "when to go to work and when to quit"; that about the end of February 1957, he received a discharge slip which was signed by both Vaughn and Smith, with the former's signature in the space provided for the "foreman"; that several weeks later he returned to the plant and had a conversation with Smith; and that when he asked Smith why he was discharged, Smith replied that he did not know the reason and that Hathcock should ask Vaughn." Concerning Hathcock's discharge and the reason for Vaughn's signature on the slip, Moore was questioned and testified as follows: Q. Do you recall that lay-off9 A. Yes, sir. I believe he was fired. Q. Do you recall anything about the lay-off slip? A. Yes, sir. Jack came in the office-Jack Smith came in the office and said he was letting Hathcock go, and I asked him what was the matter. He said he was too slow. I said, "Is that that big boy that works over there in the freezer" He said, "Yes." I said, "Well, let him go." He said, "What do you want me to put on the slip?" And I've forgotten now what I told him, "Lack of work," or something like that. And Jack started out. I said, "Wait a minute." I said, "Is that the boy that's been working over there in the freezer?" He said, "That's right." I said, "Let Shorty Vaughn sign that thing." Shorty had just stepped in the office. I said, "Let Shorty sign it. That will make it official." And Shorty signed it. Q. What did you mean by saying, "Let Shorty sign it. That will make it official"? A. Well, we had been kidding Shorty about being freezer foreman, and so I just thought I would give him a boost and let him put his name on it. He said he would be glad to do it. Q. This was some more of the kidding? A. Yes, sir. Q. Well, was this sort of a private joke, or something, or was somebody else in on it? A. Well, just Morgan and myself, as far as I know. And Jack was in there when Morgan said he was going to make him freezer foreman. Employee Henry Salter testified without contradiction that on or about May 30, 1957, he overheard a conversation between Vaughn and employee R L. Edge; that "he [Vaughn] said that he was somewhat confused over his job now, that Mr. Ackerman had told him that he was not a foreman, that he was a gangleader, for Mr. Morgan, the Personnel Manager at Tampa, was up here and he made him a foreman"; and that when Edge asked him if he had anyone to help him in the freezer, Vaughn replied, "Yes, . I've hired me a boy [who] will be in in the morning. . . . He's the Turner boy." 12 Vaughn's appointment as a foreman may have been a private joke between Moore, Morgan, and Smith, but it is clear from the record that it was not so regarded 9 Moore admitted that when he was reviewing a seniority list of the kill and cut department in preparation for it general layoff, he wrote the word "freezer" after each of the names of Vaughn and employee C H. Turner. 10 This notice was received in evidence In the space provided for the signature of the "Foreman or Supervisor" appears the writing "J. 0 Vaughn " The notice is dated January 25, 1957, and sets forth Hathcock's name, clock number, and department as "Freezer " On printed reasons for the warning the words "Conduct " and "Disobedience" are checked . Under "remarks" there is the notation "playing on fob " 11 Smith did not deny the above statement attributed to him by Hatheock 13 The Company's records disclose that C. H Turner was hired on March 15, 1957. As noted above, Moore wrote the word "Freezer" after his name on the seniority list. This list will be discussed in more detail hereinafter LYKES BROS. INC. OF GEORGIA 625 by Vaughn. He held himself out to the employees as a foreman, as shown by his issuance of a warning notice to Hathcock and by his conversation with Edge. That the Company encouraged Vaughn in his belief cannot be questioned in view of Moore's request for him to sign Hathcock's discharge slip. It is undisputed that the Company did nothing to disabuse the minds of the employees, since Moore testified that the purported joke was not made known. Hathcock's undenied testimony to the effect that Smith told him to inquire of Vaughn as to the reason why his employment was terminated is indicative of the fact that Vaughn at least effectively recommended the discharge. Further, Hath- cock's testimony, which is credited in this connection, shows that Vaughn had at least two employees under his direct supervision. Moore's testimony is contradictory in some respects. He testified that no employees were assigned permanently to the freezer. However, as noted above, his testimony indicates that Hathcock and Turner were so assigned. For the above reasons, I find that J. O. Vaughn at the times material herein was either a supervisory employee within the meaning of the Act or a representative of management for whose conduct the Company was responsible. The complaint also alleges that Vaughn was an agent of the Amalgamated. There is no substantial evidence in the record in support of this allegation. Accord- ingly, it will be recommended that the complaint be dismissed in this respect. 3. W. R. Baxter 13 Before October 1, 1956, Baxter was a salesman on the road for the Company. From October 1, 1956, until June 10, 1957, he was a beef salesman in the shipping office. From June 10, 1957, until his employment was terminated about September 1957, he relieved salesmen who were on vacation, with the exception of 2 weeks when no salesmen were on vacation. During this period of 2 weeks he returned to the job of beef salesman in the shipping office. As beef salesman, Baxter spent part of his time in the "beef cooler," where he directed the work of two or three em- ployees. He was paid a straight salary, as were the other salesmen, and did not punch a timeclock. Employees O. G Carlton and C. E. Willis worked in the beef cooler. Concerning Baxter's duties, Carlton testified that Baxter "tagged the beef to be shipped out. He told us what beef to bone, what beef to ship, and where to ship it to"; that Baxter told him when to report for work and when to quit; that Baxter on some occasions let him off from work early without consulting with anyone; that when Baxter was on the road (as a relief salesman), Moore and Smith gave the orders to the em- ployees in the beef cooler; and that "at times he'd [Baxter] go home and leave us at work when we'd have a real big day, and he'd tell me when we get through to knock off. . . Most of the times we went home generally when we got through with runs and things." Employee C. E. Willis testified that the hours of work were irregular in the beef cooler; that "a couple of times" Baxter granted him permission to get off early from work; that Baxter "mostly checked beef, what beef was going out, showed us what to get out, told us when to clock in and when to clock out, . . . [customers] would call in over the telephone . tell him what kind of beef they wanted; and he would go in, pick out the kind of beef, tag it, and tell us which to get out . . . Some times they would come in; . . they would go in the cooler and pick out the beef they liked, and he would put a tag on it or either point out which one for us to get out"; that on occasions Carlton acted as beef salesman during Baxter's absences; that the hours of work were governed by the amount of orders, that "some times [Baxter] would tell us that he was leaving, as soon as we got through with a certain job, to check out"; that at other times Baxter told them to "clean beef hooks" or to help out on the loading dock when there were no orders to be prepared for shipment; and that when Baxter was on the road as a relief salesman, "Carlton, he kind of looked after it. Mr. Jack [Smith] and Mr Moore would come in and talk to him and tell him what to do, and we would do that." Concerning Baxter's duties, Moore testified, in substance, that "I don't think [Baxter] had the authority to hire or fire.14 He never did any hiring or firing. It was handled through Jack Smith"; that Baxter "could make recommendations [such as hiring or firing or wage increases], I suppose. I don't know. He never did"; that Baxter's work "was carried out under the orders of either myself or Jack Smith. is Baxter did not appear as a witness at the hearing. 14 Moore admitted that he had told a field examiner of the Board that although Baxter had never exercised such authority, he did have authority to hire and fire employees. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And he, in turn, would give the orders to the boys working in the beef cooler"; that Baxter "was in charge of the beef sales, and naturally the beef boning. In other words, he would pick out which cattle was to be boned. And this beef job, I don't know whether you would call that a supervisory job or not, but he did direct"; that Baxter spent more of his time in the shipping office than he did in the beef cooler; that if an employee had performed his work improperly, it would have been Baxter's duty to have noticed it and to have reprimanded the employee; that "it would have been [Baxter's] job to, if the work was being done improperly, to have reported it to Jack Smith. . . . He might have told them they were doing it wrong, but I don't know about reprimanding"; that Carlton acted as beef salesman before October 1956 and when Baxter was a relief salesman during the summer of 1957; that Army contracts were responsible for almost all of the variations in the working hams in the beef cooler; and that the decision on the hours to be worked was made either by him or Smith, and not by Baxter. Smith's testimony was substantially the same as Moore's in connection with Baxter's duties. When questioned as to whether or not Baxter had the authority to reprimand employees, Smith testified, "Well, yes, I'd say he did; if he saw one of them was not boning beef right or if he would see one did not cut a cattle down right, why, yes, he would. As far as having authority, I don't know; but he probably would say something to them, I imagine. I don't recall him ever doing it." Smith also testified that he did not "recall" if Baxter had even made any recommendations concerning employees; and that if Baxter had made such recommendations, he would not have acted without checking personally. I credit the above testimony of Carlton and Willis. Their testimony shows that Baxter directed them as to what orders were to be prepared for shipment, told them when to clock in and out, transferred them to other jobs when their regular work was completed, and granted permission for them to leave work early. While there are some contradictions in Moore's testimony, he impressed me as a credible witness in this connection, as did Smith. It is apparent from their testimony that they were not sure as to just what authority Baxter did have over the employees, in the beef cooler. However, it is clear from the record that Baxter never did make any recommendations concerning employees either to Moore or to Smith. There is no evidence that Baxter ever did reprimand an employee. The testimony of Moore and Smith in this connection was in answer to hypothetical questions. The record shows that the employees involved 15 did not receive orders or instruc- tions from Baxter as to how they were to bone beef or otherwise perform their work. His directions, usually made merely by tagging the beef, were confined to the prepara- tion of orders for shipment. It must be remembered that Baxter was a salesman, in charge of beef sales at the times material herein, who probably knew little or nothing about the actual work of beef boning or other preparation of a carcass, and that his supervision over the employees in the beef cooler was more or less incidental to the job of beef salesman. In my opinion, the question of Baxter's status is close, as was that of W. O. Vaughn, above. The beef cooler was a small operation, at least insofar as the number of employees is concerned. It appears that these employees received very little, if any, supervision over their actual work. The fact that Baxter granted employees time off from work without consulting a higher authority is not sufficient. For the above reasons I find that Baxter was not a supervisory employee within the meaning of the Act. 4. H. C. McElvaine is McElvaine worked in the kill and cut department under Foreman J. C. Carlton. He was made a gangleader in that department on August 12, 1957. Before that time he was classified by the Company as a "rumper and backer." At the times material herein, there were two employees in the kill and cut department who were classified as "floorsman," a higher paying classification than that of McElvaine. There was one other employee, B. W. Ferguson, who held the same classification as McElvaine. The department is divided between two floors with connecting stairs. It is possible to view most of the operation by standing on the stairs. There were approximately 47 employees in the department on or about June 1, 1957. Employee Henry Holsey testified that during the normal working day of 10 hours Carlton was absent from the department "approximately an hour and a half overall is It is undisputed that J. O. Vaughn, whose status has been discussed above, at times performed beef boning work in the beef cooler. 10 McElvaine did not appear as a witness at the hearing. LYKES BROS. INC. OF GEORGIA 627 . throughout the day"; that during Carlton's absences McElvaine "gave us orders"; 17 that McElvaine "a lot of times" ordered him to perform various jobs; and that on one occasion, when Carlton was absent due to illness, McElvame sub- stituted for him as supervisor of the department. Employee Henry W. Salter testified that during the normal working day of 10 hours Carlton was absent from the department on the average of 1 hour; that during such absences McElvaine "takes over" and transfers employees to other jobs; that nobody had told him that McElvaine was an assistant foreman; that during the latter part of 1956 or the early part of 1957, Carlton was absent from the plant for a few months; that Jude Willis acted as foreman during part of this time; that when Willis' employment was terminated, and before Carlton returned to work, "Mr. Morgan from Tampa was up here, and he . . . put Holsey, told him to go over there and gut hogs [McElvaine's job at the time], and he took `Mac' downstairs and `Mac' took over as far as I know"; that McElvaine at the time "started giving orders" but at times returned to the top floor and "gutted hogs"; that during the time that McElvame "took over" he discharged an employee by the name of Vernon Crosse; that during October 1957, McElvame granted him time off from work because of illness, without first talking to Carlton who was present in the department at the time, that when McElvaine was made a gangleader, "I couldn't tell any difference. He gave orders right on"; that during the fall of 1957 Carlton was on vacation for 2 weeks; that McElvaine and Ferguson each acted as foreman for about a week during this period of time, that Carlton at times relayed orders to him by employees other than McElvaine; and that McElvaine spent most of his time performing manual work "right across the table from me." Employee W. W. Mauldin testified that Carlton was absent from the department on an average of an hour a day; that during such absences McElvaine gave the orders, transferred employees to other jobs, and told them when to take rest periods and when to clock out; and that usually the employees clocked out without being told since they know when the work for the day was finished. Employee L. C. Mauldin testified that he worked in the kill and cut department for about 6 weeks before his layoff on June 3, 1957, and that "many times" McElvaine gave him his working orders. Smith testified that McElvaine has never had the status of foreman or assistant foreman. Carlton testified that McElvaine "was a cattle romper on beef, and on the hog kill he snatched guts, and on pork cut he took the neck bones out of the shoulder. . He was carried as a rumper . . . the classification. . . He done anything I told him to do, or we called on him, what we called all-around man." I credit the above testimony of Holsey, Salter, W. W. Mauldin, and L. C. Mauldin. Their testimony shows that McElvaine, in addition to acting unofficially as a gang- leader during the times material herein, "took over" or substituted for Carlton during his absences from the plant. It is undisputed that on one such occasion he was responsible for the discharge of an employee. Accordingly, I find that he was a supervisory employee within the meaning of the Act. The complaint also alleges that McElvaine acted as the agent of the Amalgamated. There is no substantial evidence in the record in support of this allegation. There- fore, it will be recommended that the complaint be dismissed in this respect. 5. Thelma Ward 18 Thelma Ward, the wife of Foreman A. B. Ward, worked as the "spice room girl" under Foreman Horne. She was an active adherent of the Amalgamated. The General Counsel contends that the evidence shows that she "acted as an agent for the Respondent Employer in soliciting employees to sign checkoff authorization cards for the Respondent Unions. . J. L. Williford worked in the sausage department under Foreman Home. He testified credibly that on about May 23 or 24, 1957, Horne told him, "I want you to go ahead with me and Thelma Ward and sign one of the [Amalgamated] cards." Horne denied the statement attributed to him by Williford. His denied is not credited. Employee D. J. Blanchard testified credibly that he worked in the "sausage kitchen" as a "chopper" under Foreman Horne, that Horne's office was in the spice room where Ward worked; that at the end of May 1957, Ward told him that Horne wanted to see him in his office; that Horne told him, "Mrs. Ward will tell you what to do," and that after Horne left the office, Ward solicited him to sign a card for the Amalgamated and told him that he would be laid off from his job if he did 17 Holsey had the classification of floorsman. 18 Ward did not appear as a witness at the hearing 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not do so. Horne testified, in substance, that Blanchard used "lots of spices" in his work as a chopper ; that "the only time there would be any occasion for [telling an employee to see Ward] was when we probably would make test blocks of sausage and they were spiced, spices fixed specifically for that sausage, and I would tell them to go in and ask Thelma where the spices was , to give them that spice"; and that although he did not recall any specific occasion , he might have told Blanchard "to go to the spice room and get the spices and Mrs. Ward would show him which one to get." Horne denied that he told any employee that Ward "would tell them what to do." His denial is not credited. I find that Ward acted as the agent of the Company for the purpose stated above. Horne's statement to Williford indicates that he and Ward were working together in securing signatures on checkoff cards. That his direction to Blanchard was not related to the business of the department is shown by the fact that Ward 's remarks to Blanchard were confined to the subject of unions.19 The complaint also alleges that Ward acted as the agent for the Amalgamated. Outside of the fact that she was active on behalf of the Amalgamated , there is no substantial evidence in support of this allegation . Accordingly, it will be recom- mended that the complaint be dismissed insofar as it relates to Thelma Ward as an agent of the Amalgamated. C. The Company 1. Violations of Section 8(a)(1) and (2) 20 T. E. Bryant worked in the kill and cut department under Foreman J. C. Carlton. About the middle of May 1957, he had a conversation with Carlton . Concerning this conversation, Bryant testified credibly as follows: He said, "Earl, got a question I want to ask you ." I said, "Okay." He said, "Have you saw any unionmen?" I said, "Yes , I saw both kind." He said, "What do you mean by both kind?" And I said, "A.F. of L. men from Moultrie and the CIO man from Tifton ." And he said-well, he said, "If the plant finds out about it," he said, "you'll be fired or laid off." He said, "The CIO from Tifton or the A.F. of L. from Moultrie is not going to come in here because the plant won't put up with it." He says, "If the CIO was to have an election and win it, the company would not have it because they would not sign the contract." He said, "I know both parties are going to try to come in," but he said, "they are not going to come in , not going to have any union ex- cepting the same union they have in Tampa." Said, "It ain 't worth a damn," but said "that's the only one they are going to have." Carlton denied that he ever had a conversation with Bryant about any unions. His denial is not credited. The above statements of Carlton are found to be vio- lative of Section 8(a) (1) of the Act because of the illegal interrogation and because they contain a threat of reprisal. About 3 or 4 days after the above conversation , McElvaine solicited Bryant to sign a checkoff card for the Amalgamated . J. O. Vaughn also solicited him to sign such a card a few days later . It is found that such conduct on the part of supervisors and representatives of management is violative of Section 8(a)(1) and (2 ) of the Act.21 Horace W. Salter worked in the curing cellar under Foreman Ward. Salter testified , in substance, that he had several conversations with Ward about the Unions ; that on May 14, 1957, he asked Ward about the checkoff cards of the Amalgamated that W. 0 Vaughn was getting signed ; that Ward replied, "Salter, I'll tell you as a friend, ... the company don't want the - CIO. They want what they've got in Tampa. . Hawkins [an official of the Company] said he would not give [United ] a contract. Before he'd give them a contract he'd dump that new building [part of the Albany plant] as a total loss and go back to Tampa": that a day or two later he told Ward that he was going to sign a checkoff card of the Amalgamated ; that Ward replied, "that's what the company wanted"; and that 10 The above conversations will be related hereinafter in more detail In their testimony the witnesiPs frequently referred to the United as the "CTO," to the Amalgamated as the "AFL," and to the Moultrie local of the Amalgamated as the "AFL from Moultrie." 21W W Mauldin , Henry Holsey, Henry W Salter , Clem Wisham , Benjamin Solomon, Leroy Blackmon, and C. E. Willis testified without contradiction that either J 0 Vaughn or McElvaine, or both, asked them to join the Amalgamated or to sign its checkoff cards. Wisham , Mauldin , and Willis testified credibly to the effect that Vaughn threatened them with reprisal if they did not sign a card. LYKES BROS. INC. OF GEORGIA 629 on about May 16 Ward asked him to try to get employee Glenn Saunders to sign a checkoff card for the Amalgamated. Ward denied the statements attributed to him by Salter. He denied that he had any conversations with Salter about unions or about employee Saunders. He testi- fied, "[Salter] could have asked me about signing the card. I don't remember whether he did or not. As I say, there was about half the people at one time or another did ask me, and I gave them the answer I couldn't tell them any way what to do. . " Ward's denials are not credited. I credit the above testimony of Salter and find that Ward's conduct and statements are violative of Section 8(a)(1) and (2) of the Act. It has been found above that Foreman Horne had a conversation with Williford on or about May 23, 1957. Concerning this conversation, Williford testified credibly as follows: He said, "Jim," he said, "you're a good boy." He said, "I think a lot of you and," said, "I don't want you to go wrong." Said, "I want you to go ahead with me ,and Thelma Ward and sign one of the A.F. of L. cards." And said that if the CIO come in that they'd have to shut down the plant, and said that if he found out that any of us were for the CIO that he'd have to fire us. It is found that the above conduct and statements of Horne are violative of Section 8(a) (1) and (2) of the Act. Williford testified without contradiction that on the same day as the above con- versation Thelma Ward interrupted his work and told him, "If you don't want a colored boss man . . . you'd better take and sign this [Amalgamated] card, and if you want to keep the job." This solicitation and implied threat of reprisal is found to be violative of Section 8 (a) (1) and (2) of the Act. The incident involving Foreman Horne, Blanchard, and Thelma Ward has been related above. A few days before, or on or about May 26, 1957, Blanchard had a conversation with Horne. Blanchard testified credibly concerning this conversa- tion as follows: He just told me, said "I knew that you worked with the CIO with Armour & Company in Tifton before you come here; and," said, "if they find out that you are for the CIO, you'll go out the gate just like you come in." Said that "We don't want this CIO in here at all." Said, "If we do get the CIO in here," that they would shut down the plant and they would take the foremen and load out what meat they had and send it to Tampa and they would open up in about 60 days and they would be ready to go back again where they would not hire any of the employees that voted for the CIO. He said that he heard, learnt that L. C. Mauldin was for the CIO the year before and he transferred him up to the Cut and Kill to get shed of him there... . So he said, as he understood, ViErra Woods voted for the CIO the year before; and if he found out for sure, she's going out the gate. Horne denied all of the above statements attributed to him by Blanchard. His denials are not credited. Since his statements to Blanchard contain threats of reprisals, it is found that they are violative of Section 8(a) (1) of the Act. Concerning his conversation with Thelma Ward a few days later, Blanchard testified without contradiction that she asked him to sign a card of the Amalga- mated; that she said, "We don't want the CIO in here . . . they will shut the plant down, if the CIO comes in here. . . . This is the one [the Amalgamated] we want like we got in Tampa"; and that she told him that he would be laid off or lose his job if he did not sign the Amalgamated card. The above solicitation and threats of reprisal by Thelma Ward are found to be violative of Section 8(a)(1) and (2) of the Act. Employee L. E. Hodge testified that during September 1957, Superintendent Smith came to him on the loading dock and asked him why employee David Gid- dens (Hodge's brother-in-law) was "getting out of the union"; that he told Smith that he did not know the reason unless it was because other employees were "signing cards to get out"; and that Smith replied, "Just tell him if he gets out he's on the [scatological] list." Smith denied that he had any conversation such as the one testified to by Hodge. His denial is not credited. It is found that Smith's statement to Hodge constitutes interference, restraint, and coercion. 577684-G1-vol 128 41 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee C. E. Willis testified credibly that he was laid off from work on August 13, 1957; that be was recalled to work in September 1957; and that after he was recalled to work and during September 1957, he had a conversation with Foreman Ward and J. O. Vaughn as he left the plant. Concerning this conversation, Willis testified, "J. O. Vaughn and Mr. A. B. Ward was sitting in the car. They called me to the car. . . Mr. A. B. Ward asked me then if I had joined back up with the A.F. of L., which I had signed to come out before. . . And I told him yes, I signed back up, I was back in it. He told me he wanted to tell me one thing, if I sticked with Bob [Ackerman] that he'd do anything he could do to help me, but if he caught me fooling with Flanagan's 22 CIO again, he'd fire [me]." Ward denied that he ever had any conversation such as the one testified to by Willis. His denial is not credited. It is found that Ward's interrogation and threat of reprisal are violative of Section 8(a) (1) of the Act. O. G. Carlton testified credibly that about June 7, 1957, Ackerman was in the plant; that Ackerman solicited and obtained his signature on a checkoff card of the Amalgamated; that Smith was present at the time, about "three or four feet" away; that when Ackerman asked him to sign the card, "somebody came through and started talking with Mr. Smith just off to the side"; and that "I wouldn't say [Smith] had [his attention] directly to Mr. Ackerman and myself." Ackerman testified, in substance, that he was in the Company's plant on a number of occasions "for the purpose of re-evaluating each job" under the contract; and that on such occasions Smith accompanied him as "the company will not let me go through the plant alone." Smith testified that he accompanied Ackerman during his visits in the plant; that "I went in the plant with him, but we have a telephone in each department, and the phone would ring, and maybe it would be long distance or somebody calling me, and I would look around and Mr. Ackerman would be gone"; that Ackerman never talked to employees about the Amalgamated or made union solicitations in his presence, and that he was not present during any conver- sation between Ackerman and Carlton. It is undisputed that on or about June 10, 1957, Moore denied the request of Sey- mour Flanagan, a representative of the United, that he be permitted "to roam" the plant in order to solicit employees to join the United. The General Counsel contends that the Company's refusal to grant Flanagan access to the plant was violative of the Act. Since a contractural relationship existed with the Amalgamated, I do not agree. In so finding I credit the above testimony of Ackerman and Smith. Carlton's own testimony indicates that Smith was not aware that Ackerman was engaging in union solicitation at the time. 2. Violations of Section 8(a)(3) The evidence discloses that T. E. Bryant, Benjamin Solomon, Leroy Blackmon, L. C. Mauldin, and Clem Wisham were laid off by the Company on June 3, 1957. Arlie Pate and Lee Jenkins were laid off on June 7 and June 14, respectively. The General Counsel contends that he has proved that the Company "discriminatorily laid off" the above employees. The Company maintains that these employees were laid off for economic reasons, namely, a reduction in force necessitated by a decline in business. The General Counsel does not dispute the need for a reduction in the working force, but contends that "the manner of selection . . . was discriminatory." On the Friday evening preceding a general layoff on Monday, June 3, 1957, United held a meeting for the Company's employees at the "wrestling arena" in Albany. All seven of the above employees attended this meeting. Employees Horace Salter and B. W. Ferguson also attended the meeting 23 After the meeting Salter and Ferguson went to the home of Foreman J. C. Carlton. Con- cerning the incident, Salter testified that Ferguson had asked him to attend the meeting; that at Ferguson's suggestion they drove to Carlton's house and parked in the driveway; that Carlton came out of his home and sat in the car with them: that when Carlton asked "who-all was at the meeting," Ferguson produced a "list of names . written with a pencil"; that Ferguson read off the names on the list, including "Earl" (T E.) Bryant, Solomon. Blackmon, L C Mauldin. Wisham Pate, and Jenkins; that when Ferguson read off the names of "two Vaughns" and Mc- Elvaine, Carlton said that they were "supposed to be there"; that Ferguson did not Seymour Flanagan is a representative of the United 13 It has been related above that Ferguson acted as foreman for about a week during the fall of 1957 when Foreman Carlton was on vacation Ferguson did not appear as a witness at the hearing Salter testified that he held the office of "chief steward" in the Amalgamated. LYI{RS BROS. INC. OF GEORGIA 631 give Carlton the list of names; that Ferguson read the names of "quite a few more" employees from the list in addition to those named above; and that with one excep- tion he could not recall other employees whose names were mentioned by Ferguson to Carlton. Foreman Carlton admitted that he had a conversation at his home with Ferguson and Salter about the time testified to by Salter. In this connection he testified that about 10:30 or 11 p.m. Ferguson called him and said "I want to talk to you"; that although he advised Ferguson that he had retired for the night, Ferguson insisted that he wanted to "talk"; 24 that Ferguson, together with Salter, arrived at his home about 15 minutes later and parked their car in his driveway; that he got in the car with them; and that he did not see any paper in Ferguson's possession. Concerning the ensuing conversation, Carlton was questioned and testified as follows: Q. Tell me, if you remember, and what you remember of the conversation, Mr. Ferguson's conversation and Mr. Salter's conversation and yours. A. Well, first, Mr. Ferguson asked me if I wanted a drink. I told him no, I didn't want a drink. And he said that they had a CIO meeting up there. I said, "They did?" He said, "Yes." I said, "Well, that's their business." I says, "I don't care if they had a CIO meeting." And we just talked, and he called over a number of names that was up there at the meeting, but I don't remember any of the names that he called off right now. I might have a day or so later, but now I don't. Q. You don't remember any names that he called off? A. No, sir, I sure don't. Q. Do you recall at all whether the names were familiar to you at the time? A. Yes, sir, some of them were familiar at the time. Q. Some of them were names as you recall of people you knew? A. Yes, sir, they were people I knew. Q. But you can't recall specifically who they were? A. Not specifically, not right now; no, sir. Carlton testified that he believed that Ferguson mentioned McElvaine's name; that he did not recall either of the Vaughns being mentioned by Ferguson; that he did not "recall" if he (Carlton) made any statement about McElvaine at the time; that Salter "just listened" and did not enter into the conversation; and that the first knowledge he had of United's meeting was when Ferguson told him about it during the conversation. Carlton denied the statement attributed to him by Salter con- cerning the "two Vaughns" and McElvaine. I credit Salter's version of the above conversation. Carlton's testimony has been discredited heretofore. As pointed out in the Company's brief, there are some few contradictions and inconsistencies in Salter's testimony, but in my opinion these are minor.25 He impressed me as an honest and reliable witness. The Company maintains that the layoffs in June had been under consideration since about March or April 1957. In this connection the Company adduced in evidence a document entitled "Kill & Cut Floor Employees," which the Company contends is the seniority list used to select employees to be laid off in that depart- ment.26 The names of employees and their seniority dates are typed on the document. There are checkmarks in pencil after the names of 16 employees. Two additional checkmarks, after the names of L. Bryant and H. M. Jones, appear to have been erased. Checkmarks appear after the names of L. C. Mauldin, T. E. Bryant, L. Blackmon, and Clem Wisham. None appears after the names of L. Jenkins or B. Solomon. Moore, Smith, and Foreman Carlton testified at length concerning this exhibit and the manner in which the employees were selected for layoff. Moore testified, in substance, that "all things being equal," the Company followed "department seniority" rather than plantwide seniority; that the seniority list for the kill and cut department was made up sometime in March 1957; that in April 1957, "hogs . .. were high and getting short . . . we were running about 200 to 225 hogs an hour on the chain"; that he and Hawkins "decided to cut some employees off and slow up some so that we could give the ones that were working enough hams to get by on"; that during April he called Foreman Carlton to his office and in- structed him "to see how many men he could cut off by cutting the chain down to 150 or 160 hogs an hour, and I told him to take into consideration seniority plus a' Salter testified that Ferguson called Calton. 25 Salter was cross-examined extensively. 21 The above exhibit has been referred to heretofore in connection with J. 0 Vaughn and C H. Turner 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ability, absenteeism and so forth, workmanship; that if we cut down we would have to have dependable employees, because we would be running a little short on the gang" ; that he gave the seniority list to Carlton and told him to note the employees which he recommended for layoff; that Carlton marked the list "in about 10 or 15 minutes"; that he told Carlton at the time that before making the layoff, "we'll see how the work goes"; that he then gave .the list to Smith; that in June he told Smith and Carlton, "Let's go ahead and make the lay-off. . . . I believe you've got too many men on here checked off. I don't believe you can get 150 or 160 hogs an hour if you lay this many off. Be sure you've got enough men left"; that Smith and Carlton "got together and laid them off"; and that otherwise he did not have any- thing to do with the mechanics of the layoff. Smith testified substantially the same as Moore concerning the layoff in the kill and cut department. However, he testified that the second conference between him, Moore, and Carlton took place "two or three weeks, probably, before the lay-off." He testified further that no additional markings were made on the seniority list at the time of the second conference ; that on the day of the layoff Carlton came to him and "wrote down the ones that he could lay off" on a separate list; that employees McElroy, J. T. Grant, Tompkins, Scott, and Cason, who names had been checked on the seniority list, were not laid off "because when J. C. had first made this list out, why, he had put more people down there than we thought that he could lay off and still get 150 or 160 an hour" ; 27 that employee Benjamin Solomon, whose name was not checked on the list , was laid off by "mistake"; and that Solomon was rehired as soon as Ackerman called the mistake to the Company's attention. Carlton testified that he put the checkmark on the seniority list; that he recon- sidered the list on the day of the layoff and decided which employees whose names had been checked should be retained ; that in selecting the employees for layoff he took into consideration "seniority, ability and production"; that Mauldin, Bryant, Wisham, and Jenkins were not "knife men," the skilled category in the department; that although Blackmon was a knife man, he "had been trying to butcher for 15 years, and he's one of the few persons that won't never be a butcher, a good one, I mean. . . . He can do the job, but it's so slow you can't put up with him. It takes him too long"; that Bryant "was a partial knife man , but he was not a good knife man, and he was bad absenteeism"; that Mauldin had the least seniority in the department ; 28 that Wisham had "bad absenteeism"; that Hadley, Grant, McElroy, and Cason were not knife men; 29 and that employee Hatcher, a knife man, had "bad absenteeism." The evidence shows that the employees mentioned above were hired on the fol- lowing dates: Jenkins --------------- 10-18 -54 Blackmon 7-11-55 Solomon 10-23-54 Wisham --------------- 8- 6-56 Mauldin --------------- 1-11-55 Hadley ---------------- 8- 8-56 Bryant ---------------- 9-27-55 Grant ----------------- 8-23-56 Hatcher --------------- 9-27-55 McElroy 11-29-56 Cason ------------------ 12-15-55 It is undisputed that the Company did not hire any new employees until all of the laid-off employees had either been called back to work or offered reinstatement. The evidence shows that the employees, named in the complaint , were rehired as follows : Blackmon ------------- 10-10-57 Solomon 6-25-57 Mauldin 7-30-57 Jenkins ------------- 6-24-5730 Bryant ---------------- 10- 7-57 The evidence establishes that by letter, dated October 6, 1957, and sent by certi- fied mail, the Company offered immediate reinstatement to Wisham ; that the letter n The evidence shows that employees H T Hadley and J. C. Hatcher , whose names had been checked on the list, also were not laid off on June 3. 2 Mauldin testified that he worked in the sausage department as an "assistant foreman" under Foreman Horne , and that he was transferred to the kill and cut department about '6 weeks before June 3, 1957. The conversation between Blanchard and Horne on or about May 26, which in part concerned Mauldin, has been related and found above 29 The names of the above employees were checked on the seniority list, but were not included in the layoff. 20As noted above, Jenkins was laid off on June 14, 1957 . It is undisputed that Ackerman protested Jenkins' layoff to Moore and Smith, and that as a result of this protest Jenkins was reinstated as above with vacation pay for the time off from work. LYKES BROS. INC. OF GEORGIA 633 was sent to Wisham at his last known address; and that his letter was returned to the Company marked "unclaimed." I find this to be a valid offer of reinstatement. Mauldin, Jenkins, Wisham, Bryant, Solomon, and Blackmon signed authorization cards of United during April and May 1957. Bryant and Wisham signed dues checkoff cards of the Amalgamated on May 27 and May 28, 1957, respectively. During May 1957, McElvaine solicited Blackmon to sign a checkoff card of the Amalgamated. Blackmon refused. About 1 week later McElvaine tried to pin an Amalgamated button on him. Blackmon refused the button. About the last of May 1957, McElvaine solicited Solomon to sign a checkoff card of the Amalgamated. Solomon did not sign it. During June, July, and August, 1957, the Company laid off a total of 65 employ- ees. Of this number, 12 were laid off on June 3, all from the kill and cut depart- ment. The Company contends that the evidence shows that it was not motivated discriminatorily in selecting the employees for layoff since many of them, including Bryant and Wisham, had signed checkoff cards of the Amalgamated before they were laid off. I disagree. The evidence conclusively shows that the Company actively opposed United's campaign to organize the employees. Its interrogation of employees and threats of reprisal have been related and found above. On the other hand, the Company, by its supervisors and agents, supported the Amalgamated. Carlton had knowledge of the employees who attended United's meeting on May 31.31 Although the Company contends that a tentative list of employees to be laid off had been prepared weeks in advance of the actual layoff, by checking their names on the seniority list, Carlton admitted that he made the final selection on June 3. The employees who attended the meeting and whose names allegedly had been checked, Blackmon, Wisham, Mauldin, and Bryant, were laid off. Solomon, whose name was not checked, also was laid off. However, Hadley, Hatcher, McElroy, Grant, Scott, and Cason who were not mentioned as having attended United's meet- ing, and whose names also had been checked on the seniority list, were retained. If, as the Company contends, seniority was taken into consideration, it would appear that the selections should have been the other way around. As noted above, each of the employees named in the complaint, except Mauldin on departmental seniority, had greater seniority than some or all of the above employees who were not laid off. The Company contends that Solomon's layoff was a "mistake ." I am unable to believe this, considering the careful preparation that allegedly had been made for the layoff. Further, since the department was operating with a short crew after the layoff, it would appear that a good "knife man" would be missed immediately, rather than after 3 weeks had passed. In preparing for the layoff the Company apparently decided that Jenkins was a necessary man for the short crew, since his name was not checked on the seniority list. However, the Company changed its mind and laid him off 11 days later, although no employee in the department had greater seniority than he. The reason for this change is not explained. Carlton testified that Bryant and Wisham were selected for layoff, in part, because of "bad absenteeism." Bryant, called in rebuttal, denied such absenteeism. He testified credibly and without contradiction that he had not been absent from work "more than any average employee"; that early during his employment he was absent "about three or four weeks" because of an operation; that aside from his operation, during all of his employment, from September 1955 to June 3, 1957, he was absent about 10 or 11 times; that he never received any warning about absences, and that he was never absent without notifying Carlton. In this connection it is noteworthy that Carlton testified that Hatcher also was guility of "bad absenteeism." If ab- senteeism actually was a factor, why was Hatcher retained rather than Solomon, also a knife man? It is possible that, absent discriminatory motivation, one or more of the above employees may have been selected for layoff, but I am unable to differentiate between the cases. Accordingly, for all of the above reasons, I find that the Company violated Section 8(a) (3) of the Act in selecting for layoff Mauldin, Jenkins, Bryant, Blackmon, Wisham, and Solomon. As found above, Ferguson told Carlton that Arlie Pate was at the meeting of United on May 31, 1957. He was hired on October 10, 1956, and worked in the curing cellar under Foreman Ward. Pate was laid off by the Company on June 7, 1957. ' While the evidence indicates that the Company engaged in illegal surveillance of the above meeting, I do not believe it is sufficient to so find. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pate testified credibly that Ward "had gotten after me a few times about not lkeeping up . . . too slow"; that about 3 months before his layoff Ward gave him .a "warning slip" for "being slow" in his work; that on June 3, 1957, he received .a "slip" notifying him of his layoff; that when he went to the office to get his check, .Smith revoked the layoff order by calling Ward and telling him, "I didn't tell you to let Pate off"; that he worked the rest of that week; that at Ackerman's request he signed a checkoff card of the Amalgamated on May 27, 1957; that he signed an authorization card of United about the middle of April 1957; that he also signed an authorization card for the Moultrie local of the Amalgamated about the end of April; and that he had one of the "lowest" rated jobs (unskilled) in the department. Concerning the layoffs in the curing cellar, Ward testified, in substance, that "in general" he selected the employees on the basis of seniority; that regardless of seniority, he retained those employees in the unskilled or semiskilled classifications if they had experience on the job; that seniority was applied separately for the night and day shifts; that Pate was laid off because of a low standing or seniority; that Pate was laid off "by mistake" (on June 3); that Pate did not lose any time because Smith discovered the error; and that other employees who had less seniority than Pate were retained because they had more experience. The Company's records disclose that in the curing cellar employee Haire was laid off on June 4 and that employees Posey, Hartsfield, Bryant, and Horne were laid off on June 7. Of the above, Hartsfield and Bryant had more seniority than Pate. The records also show that Pate had more seniority than at least six unskilled employees who were retained, namely, Sandifer, Dickson, Norton, Smith, Walls, and Jarrell. By letter dated August 30, 1957, and sent by certified mail, the Company offered Pate immediate reinstatement. The letter was returned to the Company marked "refused." In this connection, Pate testified that he was away from Albany when a "registered letter" arrived; that as soon as he returned to Albany he went to the plant on a Saturday morning; and that a plant guard would not let him in or "talk to nobody." Smith testified credibly that the plant was not operating on Saturday during August and September 1957, and that the guard's instructions were to admit no one to the plant on Saturday. For the reasons set forth above in connection with the kill and cut department, I find that the Company violated Section 8(a) (3) of the Act in the selection of Pate for layoff on June 7, 1957. I also find that the Company made a valid offer of reinstatement on August 30, 1957. Pate's testimony shows that he knew the mean- ing of the "registered letter." Under the circumstances, he should have returned to the plant again or at least made some other effort to notify the Company that he was available for work. O. G. Carlton, a cousin of Foreman J. C. Carlton, worked in the beef cooler during all of his employment by the Company, from January 14, 1955, until his layoff on Angust 27, 1957. He was recalled to work on October 9, 1957. Carlton signed an authorization card of United about May 21, 1957. He attended several of its meetings, including the one held on May 31, 1957. He also signed an authorization card for the Moultrie local of the Amalgamated about April 1, 1957. He signed a checkoff card of the Amalgamated on June 7, 1957.32 Carlton testified credibly that "a few days" before his layoff he revoked the authorization for checkoff of dues; that Ackerman "mailed [the revocation] in" for him; that he had a conversation with Foreman Carlton about May 28; that Carlton "said he wanted to see me the day before. He wanted to get me to sign one of Mr. Ackerman's union cards; but at a meeting .. . the night before . . . he had got enough signed"; that he told Carlton, "it wouldn't have done any good to talk to me about it no way; I wouldn't of signed one of them"; that within 2 weeks of his layoff he had another conversation with Foreman Carlton; that he told Carlton that he would "vote for the CIO if they ever had an election"; and that "he told me if I didn't like the job and the union they had why didn't I quit and go some, ° else and get a job." 33 Concerning his layoff on August 27, Carlton testified, He [Smith] came in and gave me a [layoff] slip.. . He told me he was going to have to let me go, what beef they killed from then on that J. O. Vaughn s2 The testimony concerning Ackerman's solicitation of 'Carlton to sign a checkoff card has been set forth above. a9 Foreman Carlton denied the statements attributed to him by 0. G. Carlton His denial is not credited. LYKES BROS. INC. OF GEORGIA 635 and Bill Baxter would take care of, that J. O. Vaughn had more seniority than I did. . He said they was going to stop killing boners [beef] or as many bones as they had been killing. Smith testified substantially the same as Carlton in this connection . He testified that he told Carlton, "We're going to have to lay you off, because they're not getting too much beef to bone now, and we can buy beef on the outside cheaper than we can kill it and bone it here. . . . As soon as business picks up . . . we'll call you back." Smith testified that Baxter returned to work (as beef salesman) in the beef cooler the day before Carlton's layoff. The Company adduced in evidence a record of cattle killed and boned during 1957. It shows that 75 cattle were boned during the week ending August 10, none for the week ending August 17, 14 for the week ending August 24, and 8 for the week ending August 31. It also shows that from January 1 to June 1 only 333/4 were boned, and that 267 were boned from June 1 to August 3. It has been found above that J. O. Vaughn worked in and was the foreman over the freezer. In fact, the seniority list used for the kill and cut department has the notation, "Freezer," after Vaughn's name. The Company's records show that C. E. Willis worked in the beef cooler; that he was hired on September 5, 1957; and that he was laid off on August 13, 1957.34 I find that the Company discriminatorily selected Carlton for layoff. The evidence shows that Carlton was replaced by Vaughn. Therefore, it appears that an exception was made in this case of the Company's alleged policy of seniority by department. Further, as pointed out in the General Counsel's brief, although there was a sharp drop in the number of beef boned at the time of Carlton's layoff, very few beef were boned during the first 5 months of 1957. Carlton was not laid off at that time. Carlton attended United's meeting held on May 31. Although it has not been proved that the Company had knowledge of this, the conversation between O. G. Carlton and Foreman Carlton remedies the defect. O. G. Carlton let Foreman Carlton know without mincing words that he was a strong adherent of United. As stated above, the record is replete with evidence showing that the Company had a policy of actively opposing United and of supporting Amalgamated. In view of this policy, it is noteworthy that Carlton was laid off some few days after he revoked his authorization for checkoff of dues of Amalgamated. For the above reasons I am of the opinion that the Company's economic defense is not sufficient to overcome the prima facie case made out by the General Counsel. D. The Amalgamated Robert Ackerman is secretary-treasurer of Local 433. He was a signatory to the contract between the parent corporation and Amalgamated, and handled the maintenance and enforcement of the contract as it applied to the Company. During the times mentioned herein he conducted union meetings on behalf of Amalgamated. It is found that he acted as an agent of Amalgamated and of Local 433. A meeting of Amalgamated was held for the Company's employees on May 27, 1957, at the wrestling arena in Albany. Ackerman presided at the meeting, at which the contract was discussed and ratified.35 Employees T. E. Bryant, C. E. Willis, and Arlie Pate did not attend the meeting, but talked to Ackerman when he left the arena building. Bryant testified that Ackerman said, Earl, . if it had not been for me, . . . you would have done been laid off or fired. . . . Now, you can either get in or get out. . If you want to make it hard on me, . . I can make it hard on you, . .. I'll have your throwed out that gate. Concerning the conversation with Ackerman, Pate testified, When he spoke to me he said, "Pate, they tell me you're against me too." And I said, "Yes, sir, and I still am." He says, "Okay, if that's the way you want it, but I want to tell you this-" and he pointed his finger straight in my face: "If you fight me, I'll fight you. And in the end I'll put your out the gate. 3'Willis testified that he was recalled to work sometime during the last part of September. ac Employee Henry W. Salter testified that Ackerman stated at the meeting, "Any man that does not sign in my union will be fired " This statement was denied by Ackerman. His denial is credited. Employees Williford and Blanchard testified to the effect that Ackerman said that he could not "guarantee" their jobs; if they did not sign the checkoff cards. Ackerman testified that be made a similar stab orient. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Either you join my union, become a part of it and work with us, or else you'll go." ... I did hear him tell [Bryant] if it hadn't of been for him Earl would have been discharged. Willis testified that Ackerman said, Pate . . . you and Bryant pulled against me and . you-all made it hard going. . . . If you are going to fight against me, I'll fight you. . . I already got the contract. It's all sealed. . The best thing for you to do now is to join up and go along with us, or in the end I'll throw you out the gate. Ackerman denied the statements attributed to him by Bryant, Pate, and Willis. He admitted that he had a conversation with Bryant and Pate, but testified that he had never met or seen them before. He testified, in substance, that when he left the arena he was called over to a group of men by a representative of Amalgamated; that he then was introduced to Bryant and Pate; that after he explained the seniority provision of the contract to them, Bryant said, "Oh, it's a lousy contract"; that when a representative of Amalgamated from Moultrie stated that Ackerman had obtained a "good contract" and urged Pate and Bryant to "join up," Bryant said, "I don't want to sign up"; that he (Ackerman) said, "Well, if you don't want to sign up, don't, because when you do sign up I expect that you will give me your full co- operation and your full loyalty"; that Bryant then said, "Well, I may sign a card, but I won't lift a finger on the inside to help you"; that he replied, "That's all right, but, by the same token, I'll expect that you won't do nothing to hurt us, because if you hurt us you are not hurting me you are hurting yourself, because you are the Union"; and that Bryant and Pate then signed checkoff cards and shook hands with him 36 L credit the above testimony of Bryant, Pate, and Willis, and find that Ackerman's threat of discharge was violative of Section 8(b) (1) (A) of the Act. Henry W. Salter testified credibly that "about maybe a week or two weeks" after May 27 he and some other employees, including W. W. Mauldin, had a con- versation with Ackerman in front of the Company's plant; and that after a dis- cussion of union matters Ackerman said "that if he caught any man going up to the hotel to see the CIO man that he would be fired." Mauldin testified credibly that Ackerman, referring to some employees who were leaving the plant at the time, said, "Some of thems going up to the hotel to see that CIO man.. . If I catch them up there, . I'm going to have them fired." Ackerman denied the statements attributed to him by Mauldin and Salter. His denials are not credited, and I find that his statement is violative of Section 8(b)(1) (A) of the Act. Employee Horace Salter testified to the effect that he was a steward for the Amalgamated until about October 1957; that in the presence of Smith he told Ackerman that he was going to withdraw from the Amalgamated and would no longer act as steward; and that about a week later when he was transferred by management to a different job, Ackerman came to him while he was working and engaged in an argument. In this connection Salter testified, So I went up to the chill room and pulled out some bacon. Ackerman came in. . . He saw me up there, and he came running up there where I was at, and said, "Who put you in here?" I said the management. He said, "I'll get your out of here," and he started running upstairs. He was gone a few minutes and came back and had Mr. Ward with him. They stood over and talked a little bit. Mr. Ward ran out. Ackerman came over to where I was at. I asked him what was he going to fire me for . . . and he said, "I'm the big boy. I'm telling you, male or female, I'll fire your if you tear down my union. It took me 13 years to build it, and you're not going to tear it down " 37 About that time Ward came back. . . . He had me moved out to ham, pumping ham to ham grading. He [Ackerman] told me, says, "All I'm going to tell you, . . . I'm going to fire your I want to see Flanagan get your job back. . . The Company's been wanting to fire you for a long time, . I've been holding you . . . I'm going to let them fire you now. You just make one bobo, and your is gone " So I started out the door, and he followed me every step of the way, cussing me and telling me he was going to fire my until he got out the door. He stonoed and says, "I've got affidavits from male and female saying that I [Salter] threatened their jobs too if they did not come out of the [Amalgamated]." ae Louis Judge, an organizer of the Amalgamated, and Mario Cobrera, business agent of Local 433, testified substantially the same as Ackerman concerning the above incident. 17 Salter testified during cross-examination that while he was a steward for Amal- gamated he went to some meetings of United. LYKES BROS. INC. OF GEORGIA 637 Ackerman denied the statements attributed to him by Salter. He testified, in sub- stance, that his conversation with Salter was concerned for the most part with a violation of the seniority provision of the contract. I credit the above testimony of Salter, and find that Ackerman's conduct and statements constitute a violation of Section 8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company and Amalgamated set forth in section III, above, which occurred in connection with the operations of the Company set forth 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 Since it has been found that the Company, the Amalgamated, Local 433, and Robert Ackerman have engaged in unfair labor practices, it will be recommended that each of them desist therefrom and take certain affirmative action, including the posting and distribution of appropriate notices, designed to effectuate the policies of the Act. It has been found that the Company discriminatorily laid off Leroy Blackmon, T. Earl Brylant, L. C. Mauldin, Arlie J. Pate, Clem Wisham, O. G. Carlton, Lee Jenkins, and Benjamin Solomon. Therefore, it is recommended that the Respondent make whole said employees for any loss of pay they may have suffered by reason of the Company's discrimination by payment of a sum of money to each employee equal to that which he would have earned as wages from the date of the discrimina- tion to the date of reinstatement, or to the date of an offer of reinstatement as in the cases of Wisham and Pate, less his net earnings during such period, the loss of pay to be computed on a quarterly basis in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. It has been found that both the Company and Amalgamated unlawfully coerced certain employees to authorize the checkoff of union dues from their wages. Accord- ingly, it will be recommended that the Company and Amalgamated, jointly and severally, reimburse all employees for all such dues paid. 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. Amalgamated, Local 433, and United are labor organizations within the mean- ing of Section 2(5) of the Act. 2. By discriminating against Leroy Blackmon, T. Earl Bryant, L. C. Mauldin, Arlie J. Pate, Clem Wisham, O. G. Carlton, Lee Jenkins, and Benjamin Solomon, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By soliciting employees to authorize the checkoff of Amalgamated's dues, the Company has rendered, assistance and support to Amalgamated and thereby has engaged in unfair labor practices within the meaning of Section 8 (a) (2) and (1) of the Act. 4. By interfering with, resti'@ining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Amalgamated has engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.? SUPPLEMENTAL INTERMEDIATE REPORT STATEMENT OF THE CASE On November 25, 1958, the duly designated Trial Examiner issued his Intermediate Report in the above-entitled proceeding. On April 9, 1959, the Board issued an order directing, in part, that the record be reopened and that a further hearing be held before the same Trial Examiner "for the purpose of (1) permitting the General Counsel to amend the complaint to add Lykes Bros. Inc. as a party Respondent; 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) permitting the parties to introduce evidence relevant to the issues raised by paragraphs 5 and 6 (e) of the complaint, and when the complaint is amended as aforesaid, to said amendment; and (3) permitting the parties to introduce evidence relating to the physical arrangements at the hearing, insofar as they bear on the Trial Examiner's opportunity to observe the witnesses." Pursuant to notice, a hearing was held before the Trial Examiner at Albany, Georgia, on September 1, 1959. At the opening of the hearing the General Counsel moved to amend the complaint so as to include Lykes Bros. Inc. as a party Respond- ent. Following the above order of the Board, the Trial Examiner granted the motion. The General Counsel also moved "to withdraw from the complaint, the allegations of paragraphs 5 and 6 (e)." The motion was granted over United's objection. At the conclusion of the hearing counsel for the Respondent Unions and the Respondent Companies moved to dismiss the amended complaint insofar as it relates to Lykes Bros. Inc. Ruling was reserved. The motion to dismiss is hereby denied. After the conclusion of the hearing, the General Counsel and the Respondent Companies filed briefs with the Trial Examiner. The Respondent Companies also filed a motion to correct the official transcript of record. Since none of the parties have objected to said motion, it is granted and the record hereby is corrected in accordance with the motion, which is received in evidence and marked as Trial Examiner's Exhibit No. A. Physical Arrangements at Hearing The Respondent Companies called as witnesses J. D. Browne and John A. Curtiss, both attorneys. Browne testified, in substance, that while the hearing was held in the Dougherty County courthouse the witnesses "consistently" sat about 1 foot in front of the judge's bench and to the left of the position occupied by the Trial Examiner on the bench, "facing away from the Judge's bench"; that "the witnesses . were tilted back in their chairs at times during the proceedings and resting their heads on the back of the chair [sic] in front of the Judges bench"; and that "It is my opinion that the Trial Examiner could not consistently witness the face of the witnesses as they gave their testimony during these proceedings while I was present to observe." Curtiss testified that he was present at the hearing from May 20 through May 23; and that according to his recollection the witnesses "generally sat either in front or to [the Trial Examiner's] right." As to the Trial Examiner's ability to observe the witnesses, Curtiss testified, My observation or recollection is that he had very limited opportunity to examine the face of any of the witnesses that testified while I was in attendance there, because as I say, the witnesses had their backs to the Trial Examiner and most of the time the witnesess were so close to the bench that the Trial Ex- aminer could not have seen even a part of the tops of their heads. Many times the witnesses actually rested their chair against the bench with their back resting against the vertical face of that bench, and my recollection is further strengthened by my observation of that courtroom this morning. I sat in a witness chair this morning and Mr. Browne measured the distance from the top of my head to the top of the bench and my recollection is that it was about 9 inches. So when those witnesses were leaning up against the bench, I do not believe that even the tops of their heads were visible. The undisputed measurements show that the judge's bench is 21/2 feet wide; that the top of the bench is 4 feet 9 inches above the courtroom floor; and that the top of the bench is 2 feet, 61/2 inches above the floor of the platform in back of the bench. According to the Trial Examiner's best recollection, the first witness at the original hearing in the county courthouse occupied the regular space provided for witnesses, which was on the bench and to the Trial Examiner's left. Due to the noise of an air-conditioning motor or fan, all counsel complained that they were unable to hear the witness. In order to suit the convenience of counsel, the Trial Examiner left it to counsel as to where the witnesses should sit so that they could best be observed and heard. In accordance with this arrangement the position of the witness chair was changed at least once thereafter. All of the witnesses sat to the Trial Ex- aminer's left and sufficiently in front of the bench so that they could be observed to his satisfaction. Unfortunately, the colloquy concerning these arrangements was "off the record" since none of the parties at the time or thereafter objected. I am sure that both Browne and Curtiss testified to the best of their recollection. However, it is to be noted that their recollections differ as to whether the witnesses sat to the right or the left of the Trial Examiner. It is possible that my recollection AMERICAN LINEN SUPPLY CO., ET AL. 639 also is faulty. I did not take any particular note of the position of the witnesses, especially since no objection was raised at the time. I am sure however , that I was able to and did observe the witnesses when necessary . At all hearings I take notes as to my observations of the witnesses , as I did in this case. Since these notes were destroyed upon completion of my Intermediate Report, I have no specific recol- lection of any individual witnesses with one exception. This exception, whom I am sure all counsel will recall, had a pronounced southern accent and was somewhat of a comedian . During his testimony I was required to interrupt several times with an "off the record" until the laughter subsided. This witness was one of those who sat in front of the judge's bench. I have no recollection as to the number of feet he sat away from the bench, but I definitely recollect observing not only his face but most of his body. I recall that he appeared nervous as a witness and was constantly shifting his position in the witness chair. RECOMMENDATIONS The General Counsel urges in his brief that the remedial order in addition to that previously recommended in my Intermediate Report, should "include the directive that Respondent Employer cease maintaining and enforcing the contract with Re- spondent Unions . should provide affirmatively that the Respondent Employer withdraw and withhold recognition of Respondent Unions until they `shall have demonstrated [their] exclusive majority status pursuant to a Board conducted elec- tion' " In view of the Board's order reversing the Trial Examiner, I agree with the General Counsel insofar as the above directive applies to the operations of Re- spondent Lykes Bros. Inc. of Georgia, and so recommend. With this exception, I find no reason for changing any of the findings of fact, conclusions of law, and recommendations as set forth in my Intermediate Report dated November 25, 1958. American Linen Supply Co., et al. and Laundry and Dry Clean- ers International Union, Local 361. Case No. AO-12. August 1 2, 1960 ADVISORY OPINION This case is before the Board upon a petition filed by Laundry and Dry Cleaners International Union, Local 361 (herein called Local 361), under the provisions of Section 102.98 of the Board's Rules and Regulations, for an advisory opinion. A. Succinctly stated, said petition alleges the following : 1. Laundry and Dry Cleaners Section of Retail Clerks, Local 1116 (herein called Local 1116), has filed seven petitions for representation and certification with the State of Minnesota, Division of Concilia- tion, and five similar petitions with the State of Wisconsin Employ- ment Relations Board, "involving the various employers named in paragraph II." Said paragraph II names 12 employers, 6 of whom are located in Duluth, Minnesota, 5 in Superior, Wisconsin, and 1 in Cloquet, Minnesota, and also refers to General Drivers Union, Local 288 (herein called Local 288) as a party to the State proceedings. 2. The general nature of the business involved in the State board proceedings is the laundry and dry cleaning industry in Duluth, Minnesota, and Superior, Wisconsin. 3. At the present time the various laundry and dry cleaner em- ployers located in Duluth and Superior have a collective -bargaining 128 NLRB No. 85.