Hunt Foods and Industries, Inc.

SOUTHERN COTTON OIL CRUDE MILL, ETC . 959 Southern Cotton Oil Crude Mill, Division of Hunt Foods and Industries, Inc. and Meat Cutters, Packinghouse and Allied Food Workers, District Union 433, AFL-CIO. Case No. 10-CA- 5106. October 7, 1963 DECISION AND ORDER On April 2,1963, Trial Examiner Rosanna A. Blake issued her Inter- mediate Report in the above-entitled proceeding, finding that Respond- ent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Respondent has also requested oral argument.1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner with the following modifications: The Trial Examiner found that Respondent violated Section 8 (a) (3) of the Act by refusing to hire Robert Maxwell, Flay Martin, James Payne, and Oscar Vinson because each had signed a union card. While we agree with the Trial Examiner's findings as to Maxwell, Martin, and Payne, we disagree with her finding with respect to Vinson. The record discloses that Oscar Vinson visited Respondent's mill on August 1, and again on September 1, 1962, seeking seasonal employ- ment. On the first such occasion, which was prior to the commence- ment of Respondent's seasonal operations, or the employment of any seasonal applicants, Vinson was told by Superintendent Woolsey that he would let the year-round men know when the mill was ready to 'Because, in our opinion , the record, exceptions , and briefs adequately set forth the issues and positions of the parties, this request is hereby denied. 2 We agree with the Trial Examiner 's finding that the General Counsel failed to sustain the burden of proving that the Union represented a majority of the employees at the time it requested bargaining with Respondent , and, therefore, that Respondent did not violate Section 8 ( a)(5) of the Act. In doing so , we deem it unnecessary to pass upon the addi- tional grounds relied uipon by the Trial Examiner in dismissing the Section 8(a) (5) allegations of the complaint. 144 NLRB No. 92. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD start operations. When Vinson returned on September 1, the mill was already in full operation. On this occasion, he spoke to Supervisor Suggs who informed Vinson that he was not going to be hired. At the hearing, Woolsey listed Vinson as one of the group denied employ- ment for medical reasons, and Respondent admits that Vinson would not have been hired even if he had made timely application before all the vacancies were filled. In evaluating the evidence, the Trial Examiner found that Respond- ent had seized upon Vinson's physical condition as a pretext for deny- ing employment to him, the real reason being that Vinson had signed a card authorizing the Union to represent him. The Trial Examiner therefore concluded that Respondent's failure to hire Vinson was in violation of Section 8 (a) (3) of the Act. It is clear that Vinson's first visit to Respondent's mill on August 1 was long before the start of the seasonal operations. As the Trial Examiner found, Respondent could not at that time have given Vinson precise information as to the date on which the mill would begin opera- tions. Nor could Superintendent Woolsey's remarks on the occasion be interpreted as meaning that the Company would notify the men individually when the mill was ready to commence operations. As the Trial Examiner noted, the Company's usual practice was to have its regular year-round employees spread the word as to when application for seasonal employment should be made. The mill began seasonal operations on August 27 and Respondent had hired its full complement of employees prior to Vinson's second visit to the mill on September 1. At no time then did Vinson make timely application for employment. Thus, even assuming that Respondent intended to discriminate against Vinson because of his union activity, no such opportunity was in reality presented. In these circumstances, we find that Respondent did not violate Section 8 (a) (3) of the Act by failing to hire Oscar Vinson.3 We have found, in agreement with the Trial Examiner, that Re- spondent violated Section 8 (a) (3) of the Act by refusing to hire Robert Maxwell, Flay Martin, and James Payne. We shall therefore award these discriminatees backpay in the manner and to the extent set forth in the Trial Examiner's Recommended Order. However, as Respond- ent has completed its operations for the 1962-63 season, we shall mod- 3 Chairman McCulloch and Member Leedom distinguish Shawnee Industries, Inc, Sub- sidiary of Thiokol Chemical Corporation, 140 NLRB 1451, on the ground that there , unlike here, the application was not just for a particular seasonal job, but was also viewed as a continuing application for general vacancies at later dates, as stated in footnote 2 thereof. Member Fanning would make no distinction between seasonal as opposed to general or regular vacancies In either situation, he would find no Section 8(a) (3) violation when, as here, the Respondent does not have a policy of considering application for future em- ployment, and it is established that no job vacancies existed at the time application was made, unless it can be shown that at the time of the application the Respondent's conduct was such as would lead the applicant reasonably to infer that future application for employment would be futile because of a discriminatory attitude evidenced on behalf of the Respondent. SOUTHERN COTTON OIL CRUDE MILL, ETC. 961, ify the reinstatement provisions of the Trial Examiner's Recom- mended Order to provide for our usual remedy in such circumstances.4 Accordingly, if the Respondent has not begun operations for the 1963- 64 season at the time of the issuance of our Order, we shall direct that the names of the employees found to have been discharged in violation of Section 8(a) (3) of the Act be placed on a preferential hiring list, and that Respondent offer them employment at its plant in preference to any other person. If, however, the Respondent has begun opera- tions for the 1963-64 season at the time our Order issues, we shall direct that these employees be granted full and immediate reinstate- ment to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modifications : 5 1. Delete the provision in 2(a) in toto, and insert the following: (a) If the 1963-64 season has not begun at the time this Order is issued, place the names of employees Robert Maxwell, Flay Martin, and James Payne on a preferential hiring list and offer them, in preference to any other persons, employment at Respond- ent's Savannah, Georgia, plant, when employment for which they are qualified becomes available. The selection among the indi- viduals for employment opportunities as they become available shall be on any basis determined by Respondent, provided the same is not on the basis of union membership or activities. If, how- ever, the 1963-64 season has begun at the time this Order is issued, offer to the aforementioned employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges. 2. Omit the name Oscar Vinson from provision 2 (b). 4 See Stockbridge Vegetable Producers, Inc., 131 NLRB 1395. The notice is amended as follows . Delete the third indented paragraph thereof, and substitute the following: We WILL, if the 1963-64 season has not begun at the time this Order is issued, place the names of employees Robert Maxwell , Flay Martin, and James Payne on a preferential hiring list and offer them , in preference to any other persons , employment at Respondent 's Savannah, Georgia, plant if and when employment for which they are qualified becomes available. Insert the following as the fourth and fifth indented paragraphs of the notice: We WILL, if the 1963-64 season has begun at the time this Order is issued, offer to the aforementioned employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges. . We WILL reimburse and make whole Robert Maxwell, Flay Martin, and James Payne for any loss of pay they may have suffered by reason of our discrimination against them. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Meat Cutters, Packinghouse and Allied Food Workers, District Union 433, AFL-CIO, herein called the Union, on September 14 and No- vember 20, 1962, the General Counsel, acting through the Regional Director for the Tenth Region, issued a complaint on November 21, 1962 , alleging that Southern Cotton Oil Crude Mill, Division of Hunt Foods and Industries , Inc., herein called the Company, Southern, or Respondent, had engaged in conduct which violated Sec- tion 8 (a) (1), (3 ), and (5 ) of the Act. In its answer, Respondent admitted certain allegations of the complaint, such as the commerce allegations, but denied the com- mission of any unfair labor practices. Thereafter, pursuant to due notice, a hearing was held before Trial Examiner Rosanna A. Blake at Savannah, Georgia, on January 22 and 23, 1963. All parties appeared and the General Counsel and Respondent were represented by counsel and the Charging Party by a general organizer . All parties were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses , and to present oral argument. Counsel for the General Counsel and counsel for Respondent filed briefs. Having considered the entire record in the case, the briefs filed by counsels for the General Counsel and for the Respondent, and from my observation of the witnesses while testifying, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Southern Cotton Oil Crude Mill, Division of Hunt Foods and Industries, Inc., is a Delaware corporation with an office and place of business at Savannah, Georgia, and is engaged in the processing, sale, and distribution of cotton seed products. Dur- ing the 12 months prior to the issuance of the complaint, a representative period, Southern sold and shipped products valued in excess of $50,000 from its plant in Savannah, Georgia, directly to points outside the State of Georgia. Upon the foregoing facts I find, as Respondent admits, that it is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. Meat Cutters, Packinghouse and Allied Food Workers, District Union 433, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The facts The Union began an organizational campaign among Southern's employees in February 1962. Hunt Foods, of which Southern is a division, has its headquarters in California and in late February, Union Business Agent Robert Ackerman called J. B. Russ, manager of labor relations for Hunt Foods, in California. Ackerman told Russ that the Union represented a majority of Southern's employees and requested the Company to bargain with the Union. Russ replied that he did not have complete information concerning Southern but that the Union's demand would be given careful consideration. On March 5, Russ wrote Ackerman that the Company did not believe that the Union represented a "voluntary majority" of Southern's employees in any appropriate bargaining unit. Respondent's business is seasonal and according to Russ' assistant, Thomas H. Hemer, this statement was based on the low level of employment at that time. In another letter to Russ, this one dated March 6, Ackerman named 22 employees who, he said, had authorized the Union to represent them. Ackerman also enclosed photostatic copies of the cards allegedly signed by the employees and offered to have their authenticity checked by some impartial third party.' Thereafter, Hemer, who had been put "in charge of" the Southern matter by Russ, examined the photostatic copies of the cards submitted by Ackerman. Hemer testi- fied that he found some of the signatures to be illegible, that others were printed, and still others were signed with "X's." This caused the Company, Hemer said, to question the authenticity of at least some of the cards and to doubt whether some of 'Russ' March 5 letter and Ackerman's March 6 letter crossed in the mail. SOUTHERN COTTON OIL CRUDE MILL, ETC. 963 the employees knew what they were signing.2 Heiner told Ackerman of the Com- pany's doubts in a telephone conversation on March 17 , and said that the Company felt that the best thing to do was to have an election. In another telephone conversation a few days later, Russ told Ackerman that the Company was willing "to go to a consent election" but a disagreement arose con- cerning the proper date for the election. Ackerman argued that it should be held immediately while the Company took the position that, since its operation was sea- sonal, the election should not be held until fall when the mill would be operating at or near its peak. Shortly thereafter, the Union filed a representation petition (Case No. 10-RC- 5227) and a hearing was held at which the chief issue apparently was the one which had prevented the parties from entering into a consent-election agreement, i.e., the proper date for holding an election. The Union still asserted that it should be held at once with the employees eligible to vote being those currently employed (in the off-season ) and those employed during the past season .3 The Company still main- tained that the election should not be held until after the new season began the follow- ing fall. On May 8, the Acting Regional Director for the Tenth Region issued a Decision and Direction of Election in which he directed that an election be held in the fall, the exact date to be determined later? The Union did not appeal. In early September, the Regional Director set the election for September 19. No election was held, however, due to the filing of the unfair labor practice charges which gave rise to the instant proceeding. 2. Analysis and conclusions The General Counsel's contention that the Company's refusal to bargain with the Union in February and March violated Section 8(a)(5) and (1) of the Act is based on the claim that the Union in fact represented a majority of the employees when it made its bargaining requests.5 As stated supra, the season was coming to a close when the Union made its bar- gaining requests. As a result, the number of employees working was well below the number employed throughout most of the 1961-62 season. According to the General Counsel, however, the Union represented a majority of the employees at the time of its requests because 22 of the 41 employees who worked all or most of the season just ending had signed authorization cards. Assuming for the moment that the General Counsel is correct in contending that the Company violated the Act by refusing to bargain in February and March if the Union represented more than half of the employees who worked most or all of the 1961-62 season, the record does not establish that 22 of the 41 employees had authorized the Union to represent them. 2I do not give any weight to Hemer's hearsay testimony that the signatures were checked by Southern officials in Savannah who also questioned the authenticity of some of them. The Savannah officials were present throughout the hearing and testified on other matters but were not questioned concerning the cards . Although some of the find- ings set forth in this section are based on similar hearsay testimony by Heiner, these findings concern events which are not seriously in issue and are necessary only to provide continuity . But on a matter as critical as whether the cards were checked by Savannah officials, I cannot give any probative value to Hemer's assertion that he was "convinced" that the signatures were checked in Savannah. 8 The Union 's position was based on the fact that company records show that a high percentage of employees return to work season after season. 4 The final paragraph of footnote 3 reads as follows: In accordance with the usual practice of the Board in a seasonal industry, I direct that an election be held at or near the peak of the Employer's seasonal operations on a date to be determined by me, among the employees in the appropriate unit who are employed during the payroll period immediately preceding the date of issuance of notice of election. 5 Early in the hearing, I noted that the Union 's bargaining requests and the Company's refusal to bargain appeared to have occurred more than 6 months prior to the filing of the charge and pointed out that in that case Section 10 (b) of the Act barred an unfair labor practice finding based thereon. Thereafter, however, Respondent 's witness, Hemer, testified to a conversation he had with Union Representative Ackerman on March 17 (within the 6-month period ) in which the latter renewed his bargaining request and Heiner restated the Company's position. 727-083-64-vol. 144-62 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is true that the Union had 22 cards on which the names of 22 of the 41 em- ployees appear. But I do not agree with the General Counsel's apparent argument that the authenticity of the signatures on those cards must be assumed absent challenge by the Company at the hearing. The burden of proving the Union's majority lies with the General Counsel and, in my opinion, he has not sustained that burden. Only 11 of the purported signers of the cards were witnesses. A few were shown the cards which they had allegedly signed and authenticated their signatures . Others merely testified that they had signed union cards.6 Although Union Organizer Edward Graham indicated that some of the cards were signed at meetings at which he was present, he did not name the employees so signing and did not even state the number. Moreover, Graham admitted that "several cards were given to workers and they in turn signed up their fellow workers." Under these circumstances, I am unable to conclude that the record establishes that 22 (or the necessary 21) employees had signed union authorization cards at the time of the Union's bargaining requests. I am therefore unable to find that it represented a majority of the 41 employees who worked all or most of the 1961-62 season. But even if the Union represented a majority of the employees who worked during the 1961-62 season, it does not follow that the Company's refusal to bargain violated the Act. As indicated supra, when company officials in California examined the photostatic copies of the cards submitted by the Union, they questioned the authenticity of at least some of the signatures, and informed union representative Ackerman of their doubts. Having examined the cards, I cannot say that the Company's doubts were so unjustified as to warrant the conclusion that they were asserted in bad faith. Concededly, the Company's subsequent conduct raises a serious question concerning its good faith in challenging the Union's majority. Its position, when combined with its contention that the election should not be held until fall (discussed infra), pro- vided it with an opportunity to destroy the Union's asserted majority by failing to hire some or all of the apparent card signers for the new season. And, as found infra, it did refuse to hire four of them because they had-or it believed they had- signed union cards. But, in the circumstances of this case, the subsequent discrimina- tion against four of the signers is not sufficient to convince me that the Company was acting in bad faith when it questioned the authenticity of some of the cards. As previously indicated, the signatures on some of the cards are virtually illegible and two are signed with an "X." Their authenticity was questioned by Hunt Foods officials in California and there is no evidence that Hunt Foods has a policy or prac- tice of denying employees the rights guaranteed them by the Act. In fact, the record suggests the contrary.? On the other hand, the decision not to hire 41 of the card signers was made by Southern officials in Savannah apparently without the prior knowledge of Hunt Foods. In sum, then, while Respondent's discrimination against four card signers shortly before the period in which the Company knew the election would be held creates a suspicion that it was not acting in good faith when it questioned the authenticity of the cards, I find on the basis of the whole record that its doubts were asserted in good faith. It follows, therefore that it did not violate Section 8 (a)(5) and (1) of the Act by refusing to bargain with the Union, on request, even if the latter in fact represented a majority of the employees who worked all or most of the 1961-62 season. See Norlee Togs, Inc., 129 NLRB 14, 15. There is still another reason why, in my opinion, the Company's refusal to bargain did not violate the Act. As indicated supra, the main issue in the representation case was whether the election should be held immediately or postponed until fall. In his Decision and 6In view of my ultimate finding, I find it unnecessary to decide whether such testimony is sufficient to prove that the witness signed the card relied upon on the date shown on its face. Y Heiner testified, without denial, that Hunt Foods recognizes and has amicable relations with this and other unions at numerous plants including one in or near Savannah. The failure of Hunt Foods officials to check the authenticity of the signatures by comparing them with the employees' signatures, which I am sure are in the possession of Southern officials in Savannah, and the failure to agree to the Union's offer to have the signatures checked by an impartial third party, is probably due to the fact that the Company's basic position was that the cards, even if valid, created no obligation to bargain since the Union's majority could not properly be established until at or near the peak of the new season. SOUTHERN COTTON OIL CRUDE MILL, ETC. 965 Direction of Election, the Acting Regional Director agreed with the Company's position that it should not be held until at or near the peak of the new season. He thereby rejected the Union's contention that its majority status could be determined properly by conducting an election among the employees currently employed and those who had worked all or most of the 1961-62 season. According to Respondent, this decision (which was not appealed) bars a finding that it was under a duty to bargain with the Union in February or March 1962. I agree. It is true that the Board has held repeatedly that a union, when confronted by unfair labor practices, may withdraw its representation petition (even after an election has been directed) and establish in an unfair labor practice hearing that it represented a majority of the employees on the date its bargaining request was refused. But, so far as I am aware, in none of those cases had the Board indicated in its Decision and Direction of Election that the date of the Union's bargaining request was one on which no valid determination of majority status could be made because of the seasonal nature of the business or for some other reason. In sum then, I conclude that the allegation of the complaint that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union, on request, is not supported by a preponderance of the evidence. B. The interference, restraint, and coercion In late August Sylvester Carr went to the mill to apply for work and spoke to Supervisor R. M. Suggs who observed, "I guess you are in the Union, too." Carr said he was not in the Union and Suggs commented that he "didn't think that all of the fel- lows that signed those cards, that the superintendent would hire them back." During the same period, Eddie Johnson talked to Suggs at the mill. In the course of the conversation, Suggs asked when Johnson had seen Freddie Collins who had worked for the Company the previous seasons. Johnson replied that he had not seen Collins recently and asked when Collins was reporting for work. Suggs explained that he did not know "because [he didn't] think they are going to work Freddie because he is a union man." Johnson indicated his belief that the Company already had a union to which Suggs answered, "No, we don't have a union and we will not have a union." 8 Although Suggs did not directly question Carr concerning his union membership, his comment to Carr suggested the possibility that Can was a union member and clearly could be expected to-and did-cause Carr to declare his position. Assuming that such a remark would not be coercive standing alone, it is clearly so when followed by a statement indicating that the job prospects of union adherents were not bright. Accordingly, I find that Suggs' comment to Carr as well as his statements to Can and Johnson that prounion men might not be employed constituted interference, restraint, and coercion and thereby violated Section 8(a) (1) of the Act. C. The failure to hire for the new season 10 of the employees who signed cards 1. The Company's method of hiring As indicated supra, the business of Southern is seasonal. The season begins in the latter part of August and ends the following February or March. In the fall of 1962, the day shift began working on August 27 and the night shift on August 30. When seeds begin coming in, Superintendent Woolsey or Night Supervisor Suggs or both tell some of the full-time employees 9 to pass the word around that the plant will begin operating on or about a certain date and the men go to the plant and apply 8 The above findings are based on the testimony of Carr and Johnson which I credit. It is true that Collins had not signed a card but the Company apparently regarded him as a union adherent for Superintendent Woolsey listed him as one of the card signers. Neither Carr nor Johnson was a union member and no reason appears why either would attribute such statements to Suggs falsely. As a matter of fact, it is far from clear that Suggs denied having made some of the statements testified to by Carr and Johnson. To the extent that he did deny having made the statements, I discredit his denials. Suggs was clearly interested in the Union's organizational campaign and the subject of the employ- ment prospects of the card signers was one which was likely to come up. Moreover, Suggs could not have failed to be aware that only 8 of the 18 card signers who applied were reemployed. 9 Eight employees worked throughout the summer of 1962. 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for work.1° As Robert Maxwell, one of the alleged discriminatees, put it, "I know when it was time for the [seeds] to start coming in. I knew my job and I just reported back there [in the fall of 1962] during my normal time." Flay Martin, an- other alleged discriminatee, testified that he would hear about the mill starting up from other employees and he, in turn, would pass the word on to others. He said that sometimes he would go to the mill to see if it was about to begin operating. Still another alleged discriminatee, Ben Wiggins, testified that he knows when the mill starts and if he wants a job he goes there and applies. I find, therefore, that Respondent has no practice of notifying the men individually of the date on which operations will begin but that it tells its full-time employees to pass the word around that the mill will begin operating shortly. Thereafter, job applicants go to the mill and Respondent hires the number of employees needed. Although Manager Howe testified that the men are hired from those present on a given day, he also testified that the Company tells the men "just as close as they can" when the mill will actually start up. 2. The Company's explanation for its failure to hire the alleged discriminatees Although few if any of the jobs require real skill or training, Plant Manager Howe admitted that the Company likes to have experienced employees. As Supervisor Suggs put it, "It's very hard on you if you don't [have an experienced crew]." And it is clear that a substantial percentage of the employees work season after season. Superintendent Woolsey admitted, however, that things were ",a little different" in the 1962-63 season in this respect and Supervisor Suggs conceded that there were "quite a few new faces" in the mill "this year." As set forth above, the Union furnished the Company in March the names of the 22 employees who, it said, had signed cards. Of these, three were not laid off at the end of the 1961-62 season but worked throughout the summer. Four of the remaining nineteen were hired for the new season. Another came in, was sent to take a physical examination, was told to report to work, but did not do so. Four others did not apply for work in the fall of 1962. The remaining 10 are the alleged discriminatees. All applied for work but none was hired. According to the Com- pany, four of these were refused employment for medical reasons, the other six because they applied after the Company had hired a full crew. a. The six men who applied after August 27 The mill began operating on August 27 and it was on that morning that Super- intendent Woolsey hired the men for both the day and night shifts although the night shift men did not report for work until August 30. It is clear, however, that six of the alleged discriminatees did not apply for work until August 30 or later. Henry Louis, who had worked for Respondent off and on since 1948, went to the mill in early September but admittedly spoke to no one." On a later occasion, either in September or October, Louis and another of the alleged discriminatees went to the mill at night and asked Supervisor Suggs if the Company was "hiring any hands." "According to Plant Manager Joseph It. Howe, when the plant is about to start operat- ing, key employees are told that "when they see [former employees] to notify them to come in and see the superintendent." I do not credit the testimony of Osgood, Wiggins, and Wright that the Company notifies employees when to report to work if by this testi- mony they mean that employees are notified individually . It is true that the Company has on occasion sent individual employees word to come to work if an employee quits or fails to show up but this falls far short of establishing that the Company officially notifies each employee of the date on which the mill will begin operating Nor do I credit the testimony of Louis and Williams that the Company posts at the beginning of the season a list of employees to be hired. None of the other witnesses for the General Counsel referred to such a list and Respondent denied that one was posted. According to Super- intendent Woolsey, whose testimony I credit in this respect, cotton seed is 'crushed first and during this period the mill operates two 12-hour shifts. When the cotton seed is finished and the mill is processing soybeans, the plant operates three 8 -hour shifts. On occasion in the past when the plant changed from two to three shifts, Superintendent Woolsey posted the names of the men who were to work each shift. II Louis testified that he went to the plant to look for the list which, he said, the Company always posted of the men who were to return to work. For the reasons stated infra, I do not credit Louis' testimony that the Company had posted such a list in the past. SOUTHERN COTTON OIL CRUDE MILL, ETC. 967 Suggs replied, "No, that they were full up." The mill was admittedly in operation on both occasions.12 Willie Osgood, who had also worked for the Company for a number of seasons, applied for a job on September 7. He talked to Supervisor Suggs who said he had a full crew but that if anybody dropped out he would let Osgood know.13 Ben Wiggins had worked for the Company off and on over the years. He went to the mill on August 30 and asked Superintendent Woolsey about a job. Woolsey said he did not need any one. Wiggins returned a few days later and talked to Supervisor Suggs who said he could not use Wiggins. Ernest Wright, another employee with several years of experience, applied for work about August 30.14 Superintendent Woolsey told Wright that he would let Wright know if he was needed. Williams Haynes, another experienced employee , went to the mill on August 30. Haynes had heard from a fellow employee that the mill "was about to start up" and told Supervisor Suggs that he had heard Suggs wanted Haynes to come in.15 Suggs said he knew nothing about that and Haynes then saw Woolsey. Like Suggs, Woolsey said he knew nothing about a request that Haynes come in and said he had "got somebody in [Haynes'] place." 16 Haynes returned to the mill about a week later but was told that the Company had a full crew. Rufus Williams, another employee with many years of service, went to the mill sometime after September 1 but apparently spoke to no one.17 About a week later, he talked to Supervisor Suggs at the mill who told him that they were "full" up.18 The General Counsel concedes, at least tacitly, in his brief that none of the above employees applied for work on or immediately before August 27 when both the day and night crews were hired. He contends, however, that the record discloses that the Company did not hire its full work force on August 27, as it claims, but hired 12 employees the week ending September 5 and another 2 the week ending Septem- ber 12. But General Counsel's Exhibit No. 8, on which he relies, does not establish that additional employees were hired during the weeks of September 5 and 12 but reveals only that there were more employees on the payroll during those weeks than there were on the week ending August 28. Moreover, the obvious explanation for the increased payroll for the week ending September 5 is that it included the night- shift employees who did not begin work until August 30 but who were hired on August 27.19 In view of the foregoing facts, I am unable to find that a preponderance of the evidence supports the allegations of the complaint that Respondent refused to hire Louis, Osgood, Wiggins, Wright, Haynes, and Williams because they had signed union cards. I find that they were not hired because they did not apply until after Respondent had hired its work force for the new season. b. The four men allegedly refused employment for medical reasons The mill was built in 1915 and its machinery is old and is not equipped with modern safety devices. This means that the possibility of accidents is greater than 12 At times, Respondent appears to be contending that employees are not hired at night but must apply and be hired during the day. However, it is clear from Superintendent Woolsey's testimony that Night Shift Supervisor Suggs has authority to hire and does hire if he needs additional men and that If Suggs knows a man is needed on the day shift, and an applicant comes to the plant at night, Suggs suggests that the man come back the next day. 13I am unable to find that , as contended by Respondent, Louis, Williams, and maybe others did not really wish to be employed by Southern in the fall of 1962 and that their applications were, therefore , not made in good faith 14 Although Wright testified that he went to the plant on August 20, he also testified that the day shift was operating at the time but that the night shift had not started yet. 16I do not credit Haynes' testimony that the Company had sent him word individually. 10 In my opinion , Woolsey meant only that he had hired someone to do the work Haynes had done the previous season 17 Although Williams testified that he went to the mill about August 22 or 23, he stated that the mill was operating "full bloom both day and night." is I do not credit Williams' testimony that in past years Superintendent Woolsey gave him a list of employees to notify to report to work on a given date 19 At the hearing, the General Counsel's position seemed to be that Respondent dis- criminated against Louis and the other late applicants by failing to follow its past prac- tice of notifying them-individually-when the mill would start operating and when to return to work. It has been found, however, that the Company had no such practice. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it would be in a newer plant. At least' in part for this reason, the Company sends new employees to its doctor, R. L. Neville, for physical examinations. Old em- ployees are also sent to Dr. Neville for examination from time to time. According to the Company, it was particularly aware of the safety problem in the fall of 1962 because an employee named Crosby had his arm cut off in an accident in the plant in September 1961. According to the Company, it refused to hire Robert Maxwell, Flay Martin, Oscar Vinson, and James Payne because their physical condition was such that it feared that they might be involved in accidents in the mill. Robert Maxwell had worked for the Company many seasons. When he applied for work in August 1962, Woolsey told him that he would not be employed because the doctor said he had dizzy spells. According to Woolsey, he decided not to rehire Maxwell after he went through his files and found a report by Dr. Neville which showed that Maxwell had dizzy spells. Dr. Neville's report is dated October 30, 1961, and I am convinced that, as Max- well testified, he went to Dr. Neville on that occasion because of an injured finger. The report contains no recommendation that Maxwell not be employed or that be return for treatment. However, a check mark made by Dr. Neville's secretary in the section entitled "Medical History" indicates that Maxwell had been dizzy on some undisclosed date in the past. About 10 days after Dr. Neville made his report, the manager of the Company's insurance department in New Orleans sent Plant Manager Howe a memorandum asking him to check into Maxwell's dizziness because it could be a serious matter. The record does not indicate what action, if any, Howe took as a result of the memorandum.20 But it does show that Maxwell continued to work and his testi- mony that he did not lose a day during the 1961-62 season because of illness is un- denied. However, the Company claims it refused to hire Maxwell in the fall of 1962 because of Dr. Neville's 1961 report. I cannot and do not believe that Maxwell was denied employment for the reason stated. Even assuming that the Company decided in the fall of 1962 not to hire anyone who was subject to dizzy spells, as it clearly had a right to do, it is incredible to me that it would refuse to hire Maxwell, a long-time employee, on the basis of the indefinite medical evidence it had in its possession. In my opinion, if Woolsey had become genuinely concerned about the year-old report, he would have at least called Dr Neville or at most sent Maxwell for a new examination. Had Dr. Neville been called, I assume that he would have told Howe what he testified to at the hearing, namely, that his examination of Maxwell revealed no physical condition which would cause dizziness. Flay Martin began working for Respondent in 1949 and worked many seasons thereafter. He went to the mill about August 15 and saw Superintendent Woolsey. Woolsey told Martin that his "blood (was] high," that he had a "disability," adding "I don't think I will work you this year." Martin went back to the mill twice there- after looking for work. On the second occasion, Woolsey told Martin he had been told he could not work and "to stay out of the gate." Martin was examined on August 31, 1960. Dr. Neville reported that Martin was suffering from hypertension but stated that he could work if he continued under treatment and his blood pressure came down to "near normal." The report also noted that Martin was to return to Dr. Neville in 2 weeks as he apparently did. At least Dr. Neville notified the Company on Septemberl4, 1960, that Martin's condi- tion was "being controlled by medication" and "He is able to resume his regular duties." In a memorandum dated September 14, 1960, the New Orleans office called Howe's attention to Dr. Neville's report on Martin and tactfully reminded Howe to see that Martin continued to receive treatment, adding that if he did not, "then perhaps it would be advisable to dispense with his services." And by letter dated November 23, 1960, all mill managers were warned to be careful about the type of work assigned to employees with high blood pressure because of the danger of accidents. The letter closed with the suggestion that employees who had been with the Company for a number of years and suffered from high blood pressure be given light work and barred from working in the pressroom. Although Martin apparently discontinued his treatment shortly after his 1960 examination, there is no credible evidence that the Company was aware of this fact or indicated the slightest interest in Martin's physical condition between 1960 20 Howe testified only that he "passed the information on" to Superintendent Woolsey. Although Woolsey was a witness for Respondent, he was not asked what steps, if any, he took after receipt of the New Orleans memorandum. SOUTHERN COTTON OIL CRUDE MILL, ETC. 969 and 1962.21 In any event, it is undisputed that Martin worked the entire 1960-61 season, was rehired for and worked the entire 1961-62 season. Finally, there is no testimony that he missed a day of work due to illness during either season. In view of all of the foregoing facts, I reject Respondent's contention that Martin was not employed in the fall of 1962 because of the 1960 medical report. As in Maxwell's case, I am convinced that if Respondent had been genuinely doubtful about employing Martin because of the 2-year-old report, it would have sent him for a new examination 22 Oscar Vinson, who had worked for the Company for 4 or 5 seasons, went to the mill about August 1, 1962. He asked Superintendent Woolsey when the mill would "start up" and Woolsey said he would let the men know.23 About September 1, Vinson along with two other alleged discriminatees went to the mill and spoke to Supervisor Suggs who made it clear that they were not going to be hired. Either on this or another occasion, Suggs apparently indicated that the reason in Vinson's case was an adverse medical report. Although Vinson did not apply for work until after the Company had hired its work force for the new season,24 Superintendent Woolsey listed Vinson as one of the group denied employment for medical reasons and Respondent concedes in its brief that Vinson would not have been hired had he made a timely application. The basis for the Company's position is a report by Dr. Neville dated September 14, 1961, which stated that Vinson suffered from hypertension but that he "can probably work safely if under treatment," adding that Vinson "should be checked every 30 days." Neville testified that Vinson never returned for treatment but when asked whether he had reported this fact to the Company, Neville replied, "They are aware of it I think." Later on, Dr. Neville testified clearly that he had no conversation with any company official about Vinson 25 Notwithstanding Dr. Neville's report, Vinson worked the 1961-62 season and he testified without denial that he was never ill. Although Vinson testified that Woolsey said something about Vinson's physical condition at the close of the 1962 season, his testimony is so confused both as to dates and generally that I seriously doubt that such a conversation occurred. In the first place, there would be no reason for Woolsey to refer to Vinson's physical examination at the close of a season in which Vinson had worked without difficulty. In the second place, and more significantly, Woolsey did not testify concerning any such conversation which, I am sure, he would have done had it taken place. In Vinson's case, therefore, as in Maxwell's and Martin's, I find that the Com- pany's refusal to hire Vinson was not caused by a year-old medical report which had not barred his employment the prior season 26 James Payne worked for the Company for many seasons. When he went to the mill in early August 1962, Superintendent Woolsey sent him to Dr. Neville who -1 I do not credit Woolsey's testimony that Martin told him he was going to the doctor regularly "but it resulted that he went back one time." Significantly, Woolsey did not indicate the date when he allegedly questioned Martin concerning his visits to the doctor or when or how he learned that Martin had been back only once. Dr Neville did not refer to any inquiry from the Company and I am convinced that Woolsey did not question Martin concerning his visits to the doctor and that Woolsey got his information concern- ing Martin's one visit from Dr. Neville shortly before the hearing '" I do not credit and give no weight to Manager Howe's hearsay testimony that the employees, like Maxwell, were told by Woolsey that their employment was conditioned upon an "understanding" that they continue to receive treatment 23I do not interpret Woolsey's statement to mean that the men would be notified in- dividually but only that the Company would follow Its usual practice of sending word to employees generally via other employees. 24 Although Vinson went to the plant about August 1, this was so long before the seed began to come in the Company could not have given him anything approximating precise information concerning the date on which the mill would begin operating. 26 In view of this testimony, I do not credit Woolsey's testimony that he asked Vinson if he was taking treatments, that Vinson said he was, but that "I checked with the doctor [who] told me [Vinson] had come back twice." As in Martin's case, I am con- vinced that Woolsey did not ask Vinson if he was receiving treatments and that any checking Woolsey did with Dr. Neville was done in preparation for the hearing 26 Although Respondent asserts that Crosby's accident made it more accident conscious, it is interesting to note that although the accident occurred on or about the very day of Vinson's examination, I e., September 14, 1961, it did not cause the Company to dispense with Vinson's services during the 1961-62 season. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reported on August 15 that Payne's hearing was impaired in both ears.27 Shortly thereafter, Woolsey told Payne he would not be rehired because the doctor had reported that he was "hard of hearing." Payne testified that he had experienced hearing difficulties since birth and Woolsey admitted that Payne had trouble with his hearing as far back as 1945 or 1946. More- over, contrary to Woolsey's claim, nothing in Dr. Neville's report or that of the specialist indicates that Payne was becoming more deaf with the passage of time.28 Although Dr. Neville testified that he had examined Payne on at least one previous occasion, his earlier report or reports are not in evidence. Dr. Neville also stated that he became aware of Payne's hearing difficulties the first time he examined Payne. Dr. Neville was unable to recall whether he made any recommendation to the Company with respect to Payne's further employment either after his own examination of Payne or his receipt of the specialist's report. On the other hand, Payne testified without dispute that Dr. Neville gave him a slip stating that Payne was "ok" to work and that he gave the slip to Woolsey.29 The foregoing facts cause me to conclude that Payne's deafness was not the real reason for the Company's failure to rehire him in the fall of 1962. Summary It is thus clear that Payne's deafness and the physical condition of Maxwell, Martin, and Vinson had long been known to the Company and had not rendered them unfit for employment until the fall of 1962. I am therefore convinced that in each case, the preexisting condition was seized upon by Respondent as a pretext for denying employment to Maxwell, Martin, Vinson, and Payne, the real reason being that each had signed a card authorizing the Union to represent them.30 As set forth supra, Supervisor Suggs told employee Johnson that the Company would not have a union and Suggs indicated to both Johnson and Carr the method to be used, namely, the denial of employment to "fellows [who] signed those cards." 31 and the courts have recognized repeatedly that an inference of "disciminatory motivation is sus- tained and buttressed by the fact that the explanation" given by the employer for its actions "fail[s] to stand up under scrutiny." N.L.R.B. v. Griggs Equipment, Inc., 307 F. 2d 275, 278 (C.A. 5). On the basis of the entire record, therefore, I find and conclude that Respondent re- fused to hire Maxwell, Martin, Vinson, and Payne because each had signed a union card. It follows, and I find, that Respondent by its action violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. By refusing to hire job applicants Robert Maxwell, Flay Martin, Oscar Vinson, and James Payne because they had authorized the Union to represent them in collective bargaining, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. "'Dr. Neville sent Payne to an ear specialist who notified Dr Neville on or about August 31 that Payne's right ear showed a 28-percent loss of hearing and his left ear a 35-percent loss Dr. Neville forwarded the specialist's report to the Company. 28Woolsey testified that Payne's hearing was getting "definitely worse" and "the doctor's examination bore that out." ^ That the Company retains slips which raise a question concerning an employees fitness is shown by its introduction into evidence of the slip Dr. Neville gave Vinson in September 1961 30 But even if the physical condition of these employees was in part responsible for the decision not to rehire these men, the -Company nonetheless violated the Act if their sign- ing of cards was also a factor. N L R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C A 2). 81 The fact that the Company hired some of the card signers does not prove that it did not refuse to rehire some of them for this reason. Cf. N.L R.B v. W. C. Nabors, d/b/a 'W. C. Nabors Company, 196 F. 2d 272 , 276 (C.A. 5), cert. denied 344 U S 865 SOUTHERN COTTON OIL CRUDE MILL, ETC. 971 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not engage in any unfair labor practice by refusing to bargain with the Union on request. 7. Respondent did not engage in any unfair labor practice by failing to hire job applicants Henry Louis, Willie Osgood, Ben Wiggins, Ernest Wright, Williams Haynes, and Rufus Williams. THE REMEDY I shall recommend the customary cease and desist order and the affirmative relief which is conventionally ordered in cases of this nature. Since the 1962-63 season is now over or nearly so, I shall recommend that Maxwell, Martin, Vinson, and Payne be offered reinstatement, in writing 5 days before the beginning of the 1963-64 season. Any backpay found to be due shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In view of the fact that the unfair labor practices found are of a character striking at the roots of employee rights safeguarded by the Act, I shall also recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Southern Cotton Oil Crude Mill, Division of Hunt Foods and Industries, Inc., its agents, officers, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees, directly or indirectly, concerning their union mem- bership, threatening employees directly or indirectly, with loss of employment be- cause they join a union or seek to be represented by a union, and in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. (b) Discouraging membership in Meat Cutters, Packinghouse and Allied Food Workers, District Union 433, AFL-CIO, or any other labor organization, by dis- criminating against employees in regard to their hire or tenure of employment or any term or condition of employment. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Robert Maxwell, Flay Martin, Oscar Vinson, and James Payne, in writing, 5 days before the beginning of the 1963-64 season, employment during 1963-64 and if the offer is accepted to return each man to his former or substantially similar job, without prejudice to his seniority or other rights and privileges. (b) Make Robert Maxwell, Flay Martin, Oscar Vinson, and James Payne whole for any loss they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Intermediate Report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of the Recommended Order. (d) Post at its mill in Savannah, Georgia, copies of the attached notice marked "Appendix." 32 Copies of said notice to be furnished by the Regioinal Director for the Tenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. sz In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "A Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and' Order." 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for the Tenth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith.33 It is further recommended that the complaint be dismissed in all other respects. " In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT interrogate employees concerning their union membership or threaten them with loss of employment because they join a union or seek to be represented by a union. WE WILL NOT refuse to hire job applicants, discharge employees, or otherwise discriminate against employees because they join or seek to be represented by the Meat Cutters, Packinghouse and Allied Food Workers District Union 433, AFL-CIO, or any other labor organization. WE WILL OFFER Robert Maxwell, Flay Martin, Oscar Vinson, and James Payne reinstatement to their former positions at the beginning of the 1963-64 season and will make them whole for any loss they may have suffered by reason of the discrimination against them. All our employees have the right to form, join, or assist any labor organization, or not to do so. SOUTHERN COTTON OIL CRUDE MILL, DIVISION OF HUNT FOODS AND IN- DUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 528 Peach- tree-Seventh Building, 50 Seventh Street NE., Atlanta 23, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice or compliance with its provisions. Midwest Television , Inc. Station WMBD-AM-FM-TV and Ameri- can Federation of Television and Radio Artists , AFL-CIO, and International Brotherhood of Electrical Workers, Local 1292, AFL-CIO, Jointly. Case No. 13-CA-5418. October 8, 1963 DECISION AND ORDER On July 18, 1963, Trial Examiner John F. Funke issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- 144 NLRB No. 94.