Jefferson Lake Oil Co., Inc.

In the Matter Of JEFFERSON LAKE OIL COMPANY, INCORPORATED and SULPHUR WORKERS LOCAL UNION No. 21195 Case No. C-1067.-Decided October 2 , 1939 Sulphur Mining-Interference, Restraint, and Coercion: disclosure of identity of union members, effort to secure ; engendering fear of loss of employment for union membership or activity ; expressed preference for unaffiliated labor organization ; inducements granted for repudiation of outside union ; espionage ; wage increase offered to discourage union activity ; individual contracts, effort to impose departmental collective bargaining unit-Company-Dominated Union: contract with, abrogated ; coercion to join, and attend meetings of ; dis- crimination in favor of, discharge for refusal to join ; recognition as rep- resentative of employees; soliciting members on company time and property, not controlling where same privilege granted outside union ; sponsoring and fostering the growth of ; responsibility for activities of supervisory employees ; threat of discharge for failure to join; disestablished, as agency for collective bargaining-Evidence: mere statement by counsel of disestablishment of com- pany-dominated union, absent evidence, insufficient to base finding-Collective Bargaining: charges of failure to, withdrawn-Discrimination: discharges, for union membership and activity ; for refusal to join and otherwise evidence interest in unaffiliated union ; refusal to reinstate following non-discriminatory lay-off; charges of, in regard to 'hire and tenure, not sustained as to eight employees-Reinstatement Ordered: discharged employees ; employees laid off ; reinstatement to positions for which qualified ; application for, not prerequisite to order requiring, in view of employer practice negativing necessity ; dis- placement of newly hired employees by employees discriminatorily discharged and refused reemployment ; reduction of -staff after reinstatement order com- plied with, if necessary ; preferential. list-Back Pay: awarded ; no indicia to determine order of reinstatement ; proportionately distributed among all dis- criminatorily discharged employees, although immediate employment for all unavailable ; measured by earnings of new employees ; no deduction in, on account of unemployment compensation benefits paid to employees. Mr. L. N. D. Wells, Jr., for the Board. Mr. E. Howard McCaleb and Mr. Eugene H. Walet, Jr., of New Orleans, La., and Mr. Kenneth McCalla, of Houston, Tex., for the respondent. Mr. Harry Brownstein, of counsel to the Board. 16 N. L. R. B., No. 40. 355 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed 1 by Sulphur Workers Union No., 21195, herein called the Union,- the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, texas), issued its complaint, dated March 25, 1938, against Jefferson Lake Oil Com- pany, Incorporated,' herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. A copy of the com- plaint and the notice of hearing thereon were duly served upon the respondent and the Union.4 In respect to the unfair labor practice, the complaint alleged, in substance, (1) that the respondent dominated and interfered with the formation and administration of a labor organization known as the Employees Independent Protective Association, herein called the Association, and contributed financial and/or other support to it; (2) that the respondent discharged and refused to reinstate 51 named employees for the reason that they joined and assisted the Union and engaged in concerted activities for the purpose of col- lective bargaining and other mutual aid and protection; (3) that the respondent had, since November 10, 1937, refused to bargain col- lectively with the Union as the exclusive representative of its employees in an appropriate unit, consisting of employees engaged in the production and handling of sulphur, excepting those in official, I The respondent contends that the charges cannot support the Board's complaint since there was no proof that the individuals signing the charges for the Union were "authorized and empowered to file the charge on behalf of the individuals stated in the charge." Such authority is not necessary . Article II, Section 1, of National Labor Relations Board Rules and Regulations-Series 1, as amended , provided that a charge "may be made by any person or labor organization." These rules and regulations were complied with here. 2 The original charge referred to the Union as Federal Labor Union of Freeport, Texas. The amended charges thereafter filed referred to the Union both as the Sulphur Worker,-, Union No. 21195 , which is the correct designation , and Sulphur Workers Local Union 211.95. a Also referred to as Jefferson Lake Oil Company, Inc. 4 On November 22, 1937, the Union filed a petition for investigation and certification of representatives pursuant to Section 9 (c) of the Act. On March 7, 1938 , the Board ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice , and further ordered that the two cases be consolidated for the purposes of hearing . On April 18, 1.938 , the Board , deeming it necessary in order to effectuate the purposes of the Act, ordered the severance of the representation case from the case here being considered. The representation case is therefore not involved in the present proceeding. J EFFERSON LAKE OIL COMPANY, INCORPORATED 357 supervisory, or clerical capacities, although a majority of such em- ployees had chosen the Union as their duly designated representative for the purpose of collective bargaining; and (4) that the respondent had, by these and other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. Pursuant to notice of hearing, and notice of postponement of hear- ing, duly served upon the respondent and the Union, a hearing was held in Brazoria, Texas, from April 18 to,23, inclusive, and April 25 and 26, 1938, before Joseph S. Kiernan; the Trial Examiner duly desig- nated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties.' At the coln- mencement of the hearing, the respondent filed an exception to the jurisdiction of the Board denying that the respondent's operations affect interstate commerce within the meaning of the Act, and an answer denying that the respondent had engaged in or was engaging in unfair labor practices as alleged," and asserting that all the allega- tions in the complaint, save for the alleged discriminatory discharges and refusals to reinstate, were previously compromised and settled. At the close of the Board's case, the Board moved to amend the complaint in respect to the dates when certain unfair labor practices were alleged to have been committed by the respondent. The motion was granted. During the course of the hearing, upon the respondent's declaration that it would bargain collectively with the Union as the exclusive rep- resentative of the respondent's employees within the appropriate unit, the Union withdrew the charge it had filed referring thereto. The Board's attorney, pursuant to instructions from, and acting for, the Regional Director for the Sixteenth Region, thereupon dismissed the allegations of the complaint pertaining to the respondent's refusal to bargain collectively with the Union. We hereby approve the with- drawal of the charge and affirm the action of the Regional Director. At the close of the entire case, the Board moved to amend the com- plaint by including within its scope an alleged successor to the Asso- ciation. The motion was denied. During the course of the hearing, the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings 6 Although the Association was not served with the complaint , notice of hearing, and notice of postponement of hearing herein , opportunity to Intervene was given it by the Trial Examiner during the course of the hearing. The Association , however, did not intervene. 6 The answer was orally broadened In scope to include the denial of all the unfair labor practices charged . The written answer denied only the allegations of discriminatory discharges and refusals to reinstate. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Trial Examiner and finds that no prejudical errors were com- mitted. The rulings are hereby affirmed. On November 28, 1938, the Trial Examiner filed his Intermediate Report, a copy of which was duly served on all parties, finding that the respondent had engaged in unfair labor practice affecting com- merce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist therefrom and take certain specified affirmative action to effectuate the policies of the Act. The Trial Examiner found that there was no evidence to support the complaint that the respondent had refused to bargain collectively with the Union , and recommended the dismissal of that portion of the complaint without prejudice. Exceptions to the Intermediate Report were thereafter filed by the re- spondent. The respondent requested opportunity to submit briefs or .present oral argument to the Board on the exceptions . Permission to file briefs was granted by the Board to all parties. The respondent thereafter filed a brief in support of its exceptions . The Board has considered the. exceptions to the Intermediate Report, and , in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a Louisiana corporation having its principal office in New Orleans, .Louisiana, is engaged chiefly in the production, sale, and distribution of sulphur . The sulphur is produced at Clemons Dome in Brazoria. County, Texas. The respondent also carries on oil operations in Louisiana . It is , however, with the respondent's sulphur operations in Texas that this proceeding is concerned. The respondent first ' began shipments of sulphur in September 1937. From September 1937 to April 13, 1938, the respondent sold and shipped 13,800 tons of sulphur to purchasers outside the State of Texas, and shipped 68 ,266 tons of sulphur to destinations within the State of Texas. Of the intrastate shipments , 74.7 per cent, or 51,008 tons, were shipped to the Texas Gulf Sulphur Company in consideration for a leasehold interest in sulphur-producing land. All of this sulphur was in turn sold and shipped by the Texas Gulf Sulphur Company to purchasers in other States and foreign coun- tries. From May 1937, when the respondent commenced the produc- tion of sulphur, to. April 18, 1938, the respondent purchased $19,629.70 worth of chemicals for use in producing sulphur , $14,417.37 of which JEFFERSON LAKE OIL COMPANY, INCORPORATED 359 was for purchases from concerns outside the State of Texas. During the.same period, total pipe purchases amounted to $140,017.13, of which $109 ,522.22 represented purchases from concerns outside the State of Texas. II. THE ORGANIZATION INVOLVED Sulphur Workers Union No. 21195 is a labor organization affiliated with the American Federation of Labor, herein called the A. F. of L., admitting into membership employees of the respondent as well as .employees of another sulphur company in Freeport, Texas. Employees Independent Protective Association is a labor organiza- tion admitting into membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. The respondent's initial effort to hinder the formation and growth of the Union In September 1937 the A. F. of L. sent a labor organizer to • Freeport, Texas. When rumors of this organizer's presence reached Harold Jaquet and Frank Bell, respectively the respondent's assistant superintendent and general field foreman, they so informed the re- spondent's general superintendent, Harvey Wilson. About Septem- ber 15 Wilson called Pat Barry, an assistant field foreman, into his office, stated that he understood that the respondent's employees were forming ia union, and asked Barry to urge the employees to "hold off a little while . . . until the Company could financially be able to meet their demands." Pursuant to Wilson's request, Barry in- dividually discussed with about 70 per cent of the respondent's field employees the postponement of union organization, and at the same time elicited information concerning the desires of the workers to be represented by a nationally affiliated union or "a union or a club .of their own." In the latter part of September, Barry reported to Wilson that what he had stated to the respondent's employees prob- ably "hadn't done any good." On October 8, 1937, Jaquet learned from several employees that a labor organization planned a public meeting that evening in Free- port. That afternoon, he and Bell called numerous employees to the office and questioned them concerning the forthcoming meeting and the extent of unionization among the respondent's employees. Jaquet suggested to one of these employees, George Thomas, a yard foreman, who expressed his intent of attending the meeting, that the respondent would appreciate a report to Bell with respect to it. 247333-40-Vol. 16--24 360 DECISIO\S OF 1AT:1O AL LABOR RELATIONS BOARD Jaquet also told the employees that the company "would not tolerate a union, and if the men insisted on organizing one, we would all be out of jobs ..." Later that day, Jaquet, who reports "particular accidents" to Wilson "as soon as it happens," communicated with Wilson, then in New Orleans, by telephone, and advised him, among other things, of the meeting. Wilson instructed Jaquet to ascertain what labor organization was sponsoring the meeting and which of the respond- ent's employees would attend. The A. F. of L. held the public meeting on October 8, as planned. The following morning, the' respondent's general superintendent, supervisors, and foremen, questioned a number of employees con- cerning the meeting and their interest in labor organizations. Jaquet and Bell again interrogated Thomas. They were particularly inter- ested in learning who the speakers were, what was said, and whether the union organizer in his talks had mentioned the name of the respondent. Jaquet also wanted to know which of the respondent's employees had joined the Union, but Thomas refused to make such a disclosure. Wilson, having returned from New Orleans, called L. Zeller, ' an employee, into his office, and, by his own testimony, stated, "I told him I heard he was interested in the union. He said he was, and I asked him what it was all about . . ." Along similar lines, L. V. Lebeuf, chief engineer in charge of the power plant and super- visor over the machine and electrical departments, questioned Charles Hearn, maintenance foreman under his supervision. Henry Anding, pipe-line foreman, similarly questioned O. O. Evans, an employee whom he supervised. Lebeuf added, in speaking to O. J. Stoutes, an employee, that "if you boys don't get right, there's going to be a change." About the same time, Arthur Arrington, garage foreman, questioned Ed Lonis and Fred Duval, tractor and truck driver, respectively, accompanying his inquiries with the remark that if the Union successfully organized the plant, the respondent would cease operations and all employees would lose their jobs. At an A. F. of L. meeting on October 12, 1937, a committee of seven persons was selected to negotiate a contract with the respond- ent. The following day, before the committee had formulated its demands and itself requested a conference, three employee members of the committee, namely, A. B. Gladney, J. L. Eason, and Zeller, were called into the respondent's offices where were present Wilson, Eugene Walet, the respondent's attorney and a member of the board of direc- tors, and Alfred Mayer, the respondent's executive vice president and general -manager, who had recently arrived from New Orleans. There the employee representatives, in a 11/2-hour conference, were questioned concerning their grievances, were told that the respondent .TEFFP;RSO\ LAl' E 011. COKPAN , INCORPORATED 361 was in financial difficulty. "was going to do what was right," and would like to settle possible strikes "without any trouble." Eason did riot know why he and the other two employees happened to be chosen for this conference by the respondent, and Mayer himself testified that lie did not know who suggested their being called. In view of the respondent's diligent and extensive inquiries into activities of the Union, the peculiar coincidence of Gladney, Eason, and Zeller being singled out for separate attention : by' the respondent-can be explained only by the fact that the respondent had been informed earlier of -their selection as members of the contract negotiating committee, and had summoned them for the purpose of thwarting union progress in its incipiency. We so find. 2. The "Employees' Group" contract Since June or July 1937, Wilson had repeatedly but unsuccessfully requested Mayer to increase wages of the employees. Sometime between October 9, when Wilson talked to Zeller concerning the labor difficulties at the plant, and October 13,.Wilson again urged a ivage increase. Mayer this time responded." For a period of 3 or 4 days after October 13, 1937, the respondent, acting through Mayer, Wilson, Walet, and Lebeuf, sent for its employees singly and in departmental groups. The employees were then proffered an employment contract covering wages, hours, and working conditions, which Mayer exhorted the employees to sign. The contract was drafted by Walet, the respondent's attorney, without participation by the Union or any of the respondent's employees. The contract, however, was prefaced by a "whereas" clause that the particular departmental group concerned had arrived at an agreement with the respondent with respect to wages, hours of labor, and working conditions. The contract pro- vided for a general increase in wages of 10 per cent, but with greater increases in a few individual cases. It provided that the appropriate unit for purposes of collective bargaining should be a departmental unit-there, appear to have been about 15 departments-and that col- lective bargaining for the employees in the department was to proceed "individually and as a group." It further provided that the agree- ment was to remain in full force and effect until the respondent had ' Mayer also testified that he selected Eason , Gladney, and Zeller at this time to the exclusion of any other employee probably because he thought that they were entitled to an increase in wages of more than 10 per cent which , as will later appear , he gave to most of the employees . In view of the fact that there is no showing that these three employees did receive more than the regular 10-per cent increase, and were not, in any event, given or promised the increase on this day , and further, that these employees were not in the same department , and the raises given were generally made to departmental groups at one time, we cannot credit Mayer's testimony in this respect. BBarry also suggested to Mayer,that "if we could increase the wages a little." the employees might form a "club or union of their own . . 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD improved its financial and industrial position "and saw fit to make adjustments" or until 60-day written notice by either party had been given to the other.° All of the respondent's employees signed the contract. Thomas signed the contract in apprehension of the loss of his job, because "you, yourself (Walet) told me that that contract must be signed that evening, so you could get away back to New Orleans." When Hearn asked Lebeuf if it was necessary to sign the contract, Lebeuf replied "it was necessary for a man to stay on the right of the com- pany if he wanted to work out there." Another employee signed be- cause E. P. Landry, his foreman, told him "it would be a good idea to sign it." During the time when the employees were present in the respond- ent's office, Mayer spoke to them and, according to Wilson, whose testimony we accept as true, stated : Generally he explained to them that the company was in a tight financial position . . . and it was very difficult to get hold of 0 It was stipulated by the parties that the contract below set forth is the form which was used for each departmental group, each contract specifying the rate of pay and hours of work for the particular department involved. The entire contract reads as follows : . AGREEMENT BETWEEN EMPLOYEES GROUP (DRILLERS) OF THE JEFFERSON LAKE OIL CO.. INC., AND THE JEFFERSON LAKE OIL CO., INC. This agreement made and entered into by and between Jefferson Lake Oil Co., Inc., hereinafter called "Company" and the Employees. employed and known as "Drillers", of the Jefferson Lake Oil Co., Inc., individually and collectively, and hereinafter called "Drillers." Witnesseth :- That whereas the "Drillers" have shown that they represent a majority of the employees in that division trade or group employed by the Company as drillers, being the total number of drillers so employed by the "Company." And whereas "Drillers" and "Company" have arrived at an agreement with respect to wages, hours of labor and other working conditions. Now therefore it is agreed between the parties hereto as follows (1) "Company" recognizes "Drillers" as a group or division, individually and collectively, to bargain, individually and as a group, as to wages, hours, and other working conditions. (2) "Company" agrees to pay and "Drillers" do hereby agree and accept the rate of One Dollar and Ten Cents ($1.10) per hour wages, and a forty-eight (48) hour working week. (3) "Drillers" shall at all times have the right, individually or as a group to present grievances to "Company" through its designated officer or representative. (4) This agreement shall be and remain in force and effect until such time as "Company" shall have improved Its position comparatively with other companies in the sulphur industry, financially and industrially, and see fit to make adjust- ments or until either or any party hereto gives sixty days written notice to the other parties. (5) The present rates of pay and working hours shall continue in effect, subject to adjustments herein provided. Thus done and signed by the parties hereto, in originals, this 16th day of October, 1937. JEFFERSON LAKE OIL CO. INC., By (Signed) A. A. l1IAYER, Executive Vice-President. EMPLOYEES' GROUP OF THE 'JEFFERSON LAKE OIL CO., INC., "DRILLERS", By , individually. JEFFERSON LAKE OIL COMPANY, INCORPORATED 363 money, and that he wanted to do as good for the men as he was financially able to, and even though it was a strain he was going to give them the 10 per cent increase . . . The general nature of a conversation was, he was going to do as good for the men as he could, but that he was limited. He was seeking a way to pacify them and get them contented. Satisfied with their work- ing conditions. Although most of. the employees were granted a wage increase of 10 per cent, the wages of Thomas, several days later elected vice president of the Union, were increased by 50 per cent. As Thomas left the office, Wilson, stating that he was trying to be neutral and that he was on the "spot," entreated Thomas to use his influence with the employees to straighten out the labor difficulty at the plant. 3. Other acts of interference . Despite the consummation of the "Employees' Group" contracts, the Union was able to maintain its ranks. Other incidents occurred thereafter which are reflective of the respondent's attitude toward the Union. Lebeuf cautioned Elvest Pelletier, an employee, that since, he had been given an increase in pay, he had "better get on the right side of the fence." To Hearn, Lebeuf suggested that if he, without the participation of the Union presented a list of employee demands on a "piece of paper," the respondent would "fix you up" on it. To another employee under his supervision whom he had approached, Lebeuf stated that if the Union successfully organized the respond- ent's employees, the Union would make demands which could not be met and the respondent would -be forced to shut down. Anding re- minded another employee of the "union troubles" then extant at Houston, Texas, and added that the respondent would never recog- nize the Union-"they will either shut down or lay you off." Bischoff stated to an employee that he (Bischoff) had the power to hire and discharge and that he (the employee) was "working for the coin- pany, not against it." Bell warned Thomas that should the respond- ent recognize the Union, the respondent would be unable to compete with a rival sulphur company and would cease operations. Wilson stated to an employee that the respondent was ready to test the Union's economic strength and in the event of a shut-down those. employees who were "loyal to their job and all," would be transferred to other sulphur-producing leases where there were no union activities. 4. Conclusion with respect to interference, restraint, and coercion The facts above set forth reveal with compelling clarity the respond- ent's interference with its employees' right to self-organization and 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bargain freely through representatives of their own choosing. At the outset, when a report of a labor-organizational movement circu- lated, the respondent sent out one of its foremen as an emissary to thwart the movement in its infancy. The respondent intensified its anti=union activities when it was apprised of the labor meeting in Freeport on October 8. Immediately preceding and following this meeting, the respondent, by a pervasive examination of its employees, inaugurated a program designed to intimidate its employees and .to enlighten itself on matters which, under the Act, it should have taken no concern. Wilson participated along with others of high rank in the respondent's employ. Even before returning to Brazoria from New Orleans, Wilson had been advised of the meeting in a telephone conversation with Jaquet. Wilson's instructions to Jaquet were in general conformity with steps already taken by him and Bell, and which were, in themselves, unfair labor practices. Thus employees were questioned as to union sympathies,10 were told that the fruition of unionism would mean the loss of their jobs," and were asked to engage in acts of espionage on behalf of the respondent 12 When the respondent discovered that the Union was preparing to negotiate a contract with it for its workers, the respondent, without waiting for union proposals to be presented, ferreted out employees selected by the Union to represent the Union in the negotiations and sought to forestall future activity by promises of palliatives. - Using the "Employees' Group" contract as an instrument, the re- spondent then administered what it apparently hoped to be a coup de grace. We find that the "Employees' Group," contract, proffered to ^ individual employees at this "time, and under the circumstances 10 Matter of The Boss Manufacturing Com.pa .ny.and. International Glove Workers' Union of. America, Local No. 85, 3 N. L. R. B. 400; Matter of Trenton Garment Company and International Ladies' Garment Workers Union, Local 278, 4N. L. R. B. 1186 ; Matter of Semet: Solvey Company, and Detroit Coke Oven Employees Association and International Union, United Automobile Workers of America, Local 174, 7 N. L. R. B. 511. nMatter of Remington Rand, Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. R. B. 626, aff' d. National Labor Rela- tions Board v. Remington Rand, Inc., 94 F. (2d) 862, Cert. den. 304 U. S. 576; Matter of Leo L. Loney, individually, doing business as Tapered Roller Bearing Corporation and International Association of Machinists , District No. 15, 3 N. L. R. B. 938 ; Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No. 502, 6 N. L. R. B. 171 ; aff'd. as mod . National Labor Relations Board v. Stackpole Carbon Company„308 U. S. 605; Matter of The Serrick Corporation and Internati onal Union. United Automobile Workers of America. Local No. 459. 8 N. L. It. B. 621; Matter of Emsco Derrick and Equipment Company (D ,( B Division) and Steel Workers Organizing Com- mittee. 11 N. L. R. B. 79. 12Matte• of Metropolitan Engineering Company and ,lfetropalitan Device Corporation and United Electrical and Radio Workers of America, Local No. 1203. 4 N. L. R. B. 542 ; Matter of The Boss Manufacturing Company and International Glove Workers' Union of America, Local ' No. 85, 3 N. L. R. B. 400 ; Matter of Friedman-Harry Marks Clothing Company, Inc. and Amalgamated Clothing Workers of America, 1 N. L. R. B. 411, aff'd. National Labor. Relations Board v. Friedman-Harry Marks Clothing Company, 301 U. S. 58. JEFFERSON' LAKE OIL COMPANY, INCORPORATED 36.5 mentioned, was deliberately designed to destroy the Union and fore- close its employees from exercising the right to self-organization and collective bargaining guaranteed to them under the Act.'8 Statements made by Mayer contemporaneously with the signing of the contracts clearly evidence this purpose. Notwithstanding the prefatory statement that the contract was a consummation of a bilateral accord between the respondent and its employees, the contract was neither the result of mutual negotiation carried on in good faith nor the expression of a free choice on the part of the employees. In view of the timing of the wage increases, belatedly granted after previous abortive efforts to obtain it and immediately preceding the Union's first effort at collective bargaining, and in view of the respond- ent's open hostility toward the Union, we conclude that the wage in- crease was awarded by the respondent in anticipation of a similar demand being made by the Union, was calculated to act as an induce- ment to the employees to sign'the individual contracts with a minimum of protest and to pacify the employees into facile submission to the employer's will, and, as a logical incident thereto, to subvert the Union itself.' 13Matter of Williams Manufacturing Company, Portsmouth , Ohio, and United Shoe Workers of America, Portsmouth, Ohio, 6 N. L. R. B. 135; Matter of National Licorice Coanpany and Bakery and. Confectionery IVorker.s International Union of .4 nerk:a. Local Union 405, Greater New York and Vicinity, 7 N. L. R. B. 537, aff'd. as mod. National Labor Relations Board v. National Licorice Connpanll. 60 S. Ct. 569: Matter of Newark Rivet Works and Unity Lodge No. 420. etc.. at al.. 1) N. L. R. B. 498. 14 Wilson testified that he had requested Mayer since June or July 1937 to grant a wage.-Increase to the. employees . .Mayer, promised an. Increase as soon as the respondent comnienced^tlie shipment of sulphur.' Shipments began about September 15. 1937. Mayer testified that he was unable to grant the increase until about the middle of October because of his absence from New Orleans . He returned , however, in October, after ship- ments had begun. He was in New Orleans on or before October S. In any event, in view of the fact that Wilson again suggested a wage increase to him shortly after October 9. and before October 13, during the height of union activity, and it was upon this request that Mayer finally acted , and in view of the other circumstances mentioned above, we reaffirm our finding above in regard to the moving consideration for the wage increase. Matter of Ronni . Parfum, Inc.. and Ey-Teb Sales Corp . and United Mine Workers of America. District No. 50, Chemical Division, successor to Chemical Workers Local Industrial Union No. 33, affiliated with C. 1. 0., 8 N. L. It. B. 323, aff'd. National Labor Relations Board v . Ronni Parfum Inc.. 104 F. (2d) 1017 (C. C. A. 2d) ; Matter of The Falk Corporation and Amalgamated Association' of Iron, Steel and Tin Workers of North America, Lodge 1.728, 6 N. L. R. B. 654. aff'd. National Labor Relations Board v. Falk Corporation 102 F. (26) 383 C.SC. A. 7th ; Matter of'National Licorice Company and Bal:ery.and Confectionery Workers International Union of America, Local Union 405, Greater New York and Vicinity. 7 N. L. It. B. 537, aff'd. as mod . National Labor Relations Board v . National Licorice Company, ee supra.; Matter of Hercules-Cauiphell Body Co.. Inc. and United Automobile Workers of America. Local 3'118, 7 N. L. R. B. 431; Matter of American Potash cf Chem- ical Corporation. :in(] Borax ,t Potash Workers' Union No. 20181. 3 N. L. It. B. 140, aff'd. National Labor Relations Board v. American Potash and Chemical Corp., 98 F. (2d) 488; Matter of Jackson Daily A'ews. Inc.. and Jackson Printing Pre.e.cmcn and As sistants Union No. 211. 9 N. L. R. B. 120; Matter of Tideurnter Iron, f ,Steel Company Inc. and American Federation of Labor. Passaic County. New Jersey District. 9 N. L. R. B. 624. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In foisting upon its employees the departmental -unit provision contained in the "Employees ' Group" contract, the respondent, under the circumstances here present, could have intended but a single self- evident consequence . Whatever its ultimate purpose in seeking to establish at its plant a great number of comparatively small collective bargaining units, the respondent's immediate intent was to demolish the Union by imposing upon its employees bargaining units of the respondents' own determination , entirely in disregard of appropriate- ness or employee choice in the matter . The employees were given no voice whatsoever in the determination of the most effective mech- anism to protect their own interests. Thus the employee's right to self-organization was flouted. Particularly illuminating as to the effect of the respondent's con- duct on its employees is the testimony of Adolph Davis, a witness called on behalf of the respondent : Q. (By respondent's attorney.) What made you change from the A. F. of L. to the Independent Union? A. Well, I had already signed a contract with the Company after I joined the A. F. of L. Therefore, I figured I didn't need a bargaining agency to represent me any more with the said Jefferson Lake Oil Company. Q. (By Board attorney.) Then when you found out you were in there (the Union) and it was formed for the purpose of col- lective bargaining, and you found out under this contract that you did not need any collective bargaining, you could get on all right for yourself, you decided to drop out ; is that it? A. That's it. We find that, by enlisting the aid of individual employees to engage in acts of espionage on other employees and make reports to it, by warning and threatening its employees that successful union- ization would cause the plant to shut down and the employees to lose their jobs, by urging employees to use their influence on other em- ployees to smooth out employee unrest and dissatisfaction, by ques- tioning employees to elicit information concerning the union affilia- tion of its employees , by endeavoring to induce the Union, on October 13, to forestall expected negotiations on a contract between itself and the Union, by its use of the "Employees' Group" contracts and by the acts done and statements made in connection therewith, the respondent has interfered with, restrained , and coerced its employees in the exercise of the right to self-organization , to form, join, and assist labor organizations, to bargain collectively through representa- JEFFERSON LAKE OII, COMPANY, INCORPORATED 367 'tiv'es of their own choosing, and to engage in concerted activities for =the "purpose of collecting bargaining and other mutual aid and protection. B. The Associations The idea of forming the Association originated with Gilbert Ebarb, a. driller in charge of three employees, about October 1, 1937. He .engaged the services of an attorney, held a preliminary organizational .meeting at his home, and completed organization of the Association about October 8. Ebarb was elected. president, Henry Anding, fore- man of the pipe-line gang, vice president, E. C. Arceneaux, secretary, and W. C. Lewis, treasurer. Membership cards were printed and .personally paid for by Arthur Arrington, garage foreman, without reimbursement from the Association. He testified that he was moved to do so possibly because of the esteem in which he held the Association. About October 8, Wilson, upon Ebarb's request, granted Ebarb 2 or 3 weeks leave of absence from employment, without pay. A sub- stantial part of this time Ebarb spent at the respondent's plant urging employees to withdraw from the Union and to become members of ,the Association, and occasionally adding that such was the respond- ent's desire. He admitted speaking to all employees who would talk to him.15 Wilson was informed of Ebarb's activity by Jaquet. On several occasions, Ebarb referred employees to Wilson when they hesitated about becoming members of the Association. In response to Ebarb's invitation, one employee, at least, did confer with Wilson, ,who spoke to him of an employee's "loyalty" to his job, and then proceeded to disparage the Union and threaten a plant shut-down in the event the Union successfully achieved its demands. This employee later became a member of the Association. He testified, "I figured if I did not, I might be laid off or fired." As will later appear, also - active on behalf of the Association were other employees in a super- visory capacity, whose activity, as in the case of Ebarb's, was not disavowed by Wilson. Other evidence already considered reveals Wilson's antagonism toward the Union. We find that Wilson had notice of Ebarb's conduct with reference to the Association, and overtly gave approval to it. We further find that the employees had knowledge of such approval and believed Ebarb to be expressing the wishes of the respondent in this respect. Independent of this, how- 1s Ebarb testified that in soliciting employees, he told them "that we, each and every one would have the right to a say-so in it, in the bargaining part of it, and the dues that we would pay, we would benefit it by an insurance of our own making and kind." Three employees testified, however, that Ebarb told them that if they did not "sign up" with the Association, they would lose their jobs. Ebarb did not specifically deny their testimony, which we find is true. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, Ebarb's statements and conduct, as we will later more fully consider, are nevertheless attributable to the respondent, which is responsible for the activities of its officials and supervisors. Many other of the respondent's supervisory employees, five by their own admission , solicited members for the Association or otherwise expressed their preference for it . The following besides Ebarb, were active in this respect : Anding, Arrington, Lebeuf, and Bischoff, whose supervisory status we have already mentioned ; John Perkins, fore- man in charge of the salvage and rig-building crew ; H. C. Grace, purchasing agent and foreman in charge of the warehouse and plant site; Dewey Wilson,' an operator in charge of a sulphur station and subsequently a foreman over a gang of negro laborers ; Joe Schwebel, a supervisor over a crew of workmen , and Randolph Prell, shipping foreman 17 Anding admitted that he "talked to everybody " to join the Associa- tion. To a group of employees under his supervision, he stated, on October 21 , that by November 1, they might lose their jobs unless they became members of the Association . He warned another em- ployee, a member of the Union, that he was on the "wrong side" and that by affiliating with the Association , he would be on the "right side" and be doing "what the company wanted us to do. " To another union member who hesitated to join the Association , Anding declared that the respondent was "not going to accept no union," and added that he would be "walking around without a job" if he did not join the Association and attend its meetings . To two other employees who were temporarily laid off, Anding declared that they must sign Association membership cards before returning to work. Neither signed and neither returned to work. Anding categorically denied having told any employee that he would have to join the Association to keep his job. In view of the consistency of employees' testimony to the contrary, however, much of which is corroborated , and And- ing's own admission that he encouraged membership in the Associa- tion, we find that these incidents-occurred as testified to by the various employees. An employee testified that Perkins told him and other employees that Jaquet had said that "everybody had to come to the (Associa- tion ) meetings or lose their job." Perkins did not testify . Jaquet denied having told anybody that they would have to join or refrain 10 Not to he confused with Harvey Wilson, plant superintendent. Hereafter Dewey Wilson will be referred to by his full name, and Harvey Wilson, as heretofore, only by his eurname. 17 The respondent, in its brief, admits that among those forming and sponsoring the Association were Ebarb, Anding, and Arrington. The respondent goes on to state, how- ever, that uncorroborated statements are testified to by the claimant and rebutted wholly or partially by the men to whom they are attributed. We are thus making separate find- ings with respect to these persons. JEFFERSON LAKE OIL COMPANY, INCORPORATED 369 from joining any particular labor organization to retain his job. He did not specifically deny having made such a statement to Perkins, although opportunity to do so was afforded. He was alleged to have made a remark of similar import to another supervisory employee 18 Jaquet had, from the outset, shown antagonism toward the Union. We find that Jaquet made the statement attributed to him. There is testimony that Bischoff promised an employee a wage in- crease if he would "get on the other side, the right side . . ." and that he threatened discharge to another employee who did not "line up" and drop out of the Union. Although Bischoff did not deny making these statements attributed to him, he testified that he did not discuss labor organization with anyone. His testimony is contra- dicted by still other evidence in the record. We find that these inci- dents occurred as above set forth. Arrington likewise warned employees of dismissal if they did not become Association members.19 Arrington testified that he was active in the Association, solicited employees wherever he happened to be, and signed up between 25 and 30 members. He did not specifically deny using coercion in securing Association memberships, but testified that when he distributed membership cards, "I told-them they could sign it or not sign it. I' left it with those remarks." We do not credit Arrington's indirect denial in view of the consistent testimony to the contrary of numerous witnesses. We find that he engaged in solicitation as described above. Prell was delegated by the Association to solicit the respondent's colored employees. For this purpose, Prell made a visit to the homes of many of them on the evening of October 16. Generally his method of securing memberships followed the same pattern as em- ployed by other supervisors and foremen already considered, namely, threatening employees with the loss of work unless they became Asso- 18 A witness testified without contradiction that when Prell solicited him for member- ship, Prell stated that Jaquet told him ( Prell ) that those who refused, would be discharged. 10 One witness, for example, testified as follows : Q. You know Mr. Arthur Arrington? A. Yes, sir ; I know him. Q. Has he ever talked to you about a union? A. Yes, sir ; he did. Q. When was that? A. That was the 14th of October or the 18th, I believe. Q. Where were you when you talked to Mr. Arrington? A. Well , I was in the field and all the boys around the field, he sent for us to come up there next to the office. Q. Who sent for you? A. I guess , Mr. Arthur-that is who I saw when I got up there. Q. What happened when you got up there? A. Well, he had some cards for all the fellows to sign. Q. What did he say? A. He said, if we wanted the job to sign the cards , and if we didn't sign the cards, we would lose our jobs. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciation members. For example, to some, he stated, "if you don't sign, you won't have a job long; the Mexicans and the white folks will have it." To another employee, who was temporarily laid off, Prell promised his return to work if he enrolled in the Association. This employee returned to work about 2 days after he joined the Association. To another, he attributed intimidating remarks as orig- inally emanating from Jaquet.21 At one point in his testimony, Prell stated that he did not remember what his "selling line" was that "sold" the Association to the colored employees, while at an- other point he testified that he simply gave them membership cards for the Association, explained that he believed that the Association was a better organization than the Union, that he was a member of the Association, and that he was enrolling employees for it. "I told them the cards were there and if the boys wanted to sign them, we would like to have them. If they didn't want to sign them, it was just up to them." 21 Further testimony by Prell is enlightening : "I think those negroes I had working for me, all of them signed." In view of the consistent testimony of numerous witnesses which con- tradicts Prell's general denial of coercion and Prell's uncertainty as to the nature of. his conversations, we find that the incidents occurred as testified to by the various employees. On November 3, 1937, the Association asked Wilson for a collec- tive bargaining conference, but was referred to Mayer as the proper authority for such matters. Shortly thereafter, a conference was arranged, but it was adjourned at the outset because the Association was unable to show proof of majority. On November 8, the Union asked Wilson for a collective bargaining conference, and was like- wise referred to Mayer. On November 10 a conference was at- tempted, but failed of completion because the Union, as in the case of the Association earlier, could not prove that it represented a ma- jority of the respondent's employees. On November 15, at the Asso- ciation's instigation, another conference was held between the Association and the respondent. Signatures of Association members 10 The statement Jaquet was alleged to have made was that employees would be dis- charged unless they joined the Association. Neither Prell nor Jaquet specifically denied this allegation , although Jaquet generally denied telling anyone that he would be dis- charged for joining or failing to join any labor organization. u Prell further testified as to a conversation with George Spiller , a colored employee : Q. Do you recall any part of that conversation with him? A. Yes, sir ; I do. Q. Will you state it briefly? A. I went out there and saw some of these negroes and asked them if they wanted to join our union. (The Association .) This negro told me that he didn't know, said that he joined-said he might , he would like to but said "Mr. Randolph, I have known you a long time. I would like to join it," but said, "I belong to the other one." I said, "It doesn't make any difference, you can belong to this one too, if you want to." He said "All right, sir." He said, "how many of the rest of them (have joined)"? This is negro talk now, just like I am telling It. I said, "Quite a few." He said , "all right." He signed a card . . . JEFFERSON LAKE OIL COMPANY, INCORPORATED • 371' were checked with the respondent's pay roll, and when the respondent determined that the 'Association represented between 126 to 132 em- ployees-a majority-the Association and the respondent proceeded to negotiate for a contract. A contract concerning wages, hours, and working conditions, and. recognizing the Association as the ex- elusive representative of the respondent's employees for the purpose of collective bargaining,, was consummated that same day. The respondent contends that the acts and. statements of its super- Visor-k- employees are not binding upon it. We do not agree. The respondent cannot, under the circumstances, escape responsibility for the conduct of its supervisors or foremen. A supervisory employee. acts as an agent of the employer, and his acts are,necessarily those. of the employer unless . effectively disavowed.22 Employees are in constant association with supervisory employees from whom they take orders and learn the company policy. In the instant case, those to whom the employees looked for an expression of the re- spondent's policy found, .not impartiality, but an attitude,of marked favoritism toward the Association: and distinct hostility toward the Union. The respondent's ' responsibility is not altered or .extin- guished, as the respondent further contends; because the supervisory. employees may not have the, power to hire or discharge.23 Moreover,, the acts and statements of•Wilson and Jaquet, heretofore noted, con 22 Matter of Eagle Manufacturing. Company and Steel Workers Organizing Committee, 6 N. L. R. B. 492. aff'd. as mod. National Labor Relations Board Y. Eagle Manufacturing Company, 99 F. (2d) 930; Matter of Virginia Ferry Corporation and Masters, Mates-and Pilots of America, No. 9, at at., 8 N. L. R. B. 730, aff'd. as mod. Virginia Ferry Corporation v. National Labor Relations Board, 101 F. (2d) 103; Matter of Swift & Company and. Amalgamated Meat Cutters and Butcher 1Workmen of North America, Local No. 641, at al., 7 N. L. R. B. 269, aff'd. as mod. Swift & Company V. National Labor Relations Board, C. C. A. 4th, 106 F. (2d) 87 ; Matter of C. C. A. Lund Company and Novelty Workers Union, etc., 6 N. L. R. 'B. 423; aff'd. as mod: National Labor Relations Board v. Christian A.' Lund, etc., 103 F. (2d) 815; Matter of The Cudahy Packing Conipany and Packinghouse Workers, etc., 5 N. L' R. B. 472, aff'd. as mod., The Cudahy Packing Company v. National Labor Relations Board, et al., 102 F. (2d) 745;•Matter of Em.sco Derrick & Equipment Company (D & B Division) and Steel Workers Organizing, Committee, 11 N. L. R. B. 79; Matter of M. Lowenstein & Sons, Inc., and Bookkeepers'. Stenographers' and Accountants' Union,' Local No. 16, United Office. and Professional Workers of America, C. 1. 0. et al., 6 N. L. R. B. 216; Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. P. B. 621; Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21164, 9 N. L. R. B. 11.7; Matter of Baer if Wilde Company and Swank Products ' Inc. and International Workers Union, Local 18, 9 N. L. R. B. 420; Matter of T. W. Hepler and International Ladies' Garment Workers Union, 7 N. L. R. B. 255; Matter of Central Truck Lines,,Inc. and Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, 3 N. L. R. P.. 317. It is undisputed that the supervisors or foremen above mentioned possessed distinct super- visory responsibilties, such as laying out, directing, and inspecting work, transmitting orders to employees, and maintaining discipline. Likewise, employees regarded them as their overseers. '' ' 23 There is evidence in' the record, however, and we find, that practically all of the employees whom.the respondent designates as supervisors in its brief, and who were active, as above related, on beh'alf'of the Association, do have the power to'hire 'and discharge', or the right' to make recormricndations'tiierefor' which are usually followed by the respond- ent. As above stated, however, this is not determinative. 372 -DECISIONS OF NATIONAL LABOR RELATIONS I30ARD cerning whose authority to bind the respondent no question is raised, plainly pointed out the respondent's anti-union policy which the, supervisory employees followed.24 We have mentioned that the solicitation of employees to become members of the Association often occurred during working hours and on company property. Our decision in this case, however, is not based upon or influenced bythis fact. The respondent's rules did not forbid solicitation by anyone for membership in any labor organiza- tion. Indeed, there is evidence, and we find, that solicitation for the Union likewise occurred during working hours and on company prop- erty. Moreover, two of the union solicitors, Hearn and Thomas, were employees of a supervisory status. If the treatment accorded two labor organizations is equal, the treatment accorded to one cannot be condemned or condoned any more than the treatment accorded to its rival. In this case, however, circumstances appeared which visibly affected any picture of impartiality on the part of the respondent. These circumstances have already been enumerated in part. Prac- tically all of the respondent's supervisors and foremen with the ex- ception of Hearn: and- Thomas, .engaged in : conduct,. solicitation or otherwise, on behalf of the Association. What is more important, however, is that the respondent lent support to and openly encouraged the activities of those who favored the Association. It allied itself with the Association, and those who solicited on behalf of the Associa- tion did so with impunity. On the other hand, the respondent dis- avowed the activities of those supervisory employees who favored the Union. This was done, not only by statements and conduct of Mayer, Wilson, Jtiquet; and:Lebeuf, which have already. been.-noted, but.was rendered more effective and conclusive by the discriminatory dis- charges of Hearn; Thomas, and a liiunber of other' employees because of their union membership and activity." By such conduct, the re- spondent interfered with the freedom of the employees in choosing their representative. That employees realized which organization the respondent itself supported is shown by the following testimony of an employee : Q. (By counsel for the respondent.) How did you know, if your did not discuss labor questions with him, what he meant by getting on the "right side"? 24 Matter of Heller Brothers Company of Newcomerstown and International Brotherhood of Blacksmiths, Drop Forgers, and Helpers, 7 N. L. R. B. 646; Matter of Swift & Company and United Automobile Workers of America, Local No. 265, et al., 7 N. L. R. B. 287'; Matter of Emsco Derrick & Equipment Company (D & B Division ) and Steel Workers Organizing Committee, 11 N. L. R. B . 79: Matter of Virginia Ferry Corporation and Masters, Mates and Pilots of America, No. 9 et al., 8 N. L. R . B. 730, aff'd . as mod. Virginia Ferry Corporation v. National Labor Relations Board, 101 F. (2d) 103. 21 See Subsection C, infra. JEFFERSON LANE OIL COMPANY, INCORPORATED 373 A. Well that is what everybody out there called the "right side," is that Independent Protective Association; if you are not on that side, you are on the wrong side. Q. In other words, it is generally discussed out there that that is the right side, the Independent Protective Association? A." By all of those that belonged to .it;. yes, sir. The respondent urged at the hearing that it had already disestab- lished the Association and disaffirmed the contract of November 15, 1937, consummated with it. It was stated by counsel for the re- spondent, and denied by counsel for the Board, that in April 1938, as part of a compromise, the respondent agreed to disestablish the Asso- ciation and disaffirm the contract. However, neither counsel testified and there is no competent evidence in the record from which we can conclude that the respondent did, in fact, withdraw recognition from and disestablish the Association, and cease giving effect to the con- tract of November 15, 1937. We cannot, therefore, uphold the re- spondent's contention. We find that the respondent has dominated and interfered with the formation and administration of the Association, and has con- tributed support to it, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. C. The lay-offs and discharges The complaint herein alleged that the respondent discharged and refused to ,reinstate 51 named employees for the reason that they joined and assisted the Union and engaged in concerted activities for the ptirpose``df collective bargaining and'other,nintnal aid and protec- tion. The respondent admits the dismissals, but asserts that 11 em- ployees were discharged for cause, and 40 employees were laid off because "it did not need the total number of men then employed to efficiently continue its operations ..." These defenses will subse- quently be considered.26 n The respondent also insists that aside from the reduction In work at the plant, the lay-offs and discharges were in addition necessitated by a retrenchment program. For the purpose of proving a straitened financial condition, the respondent offered evidence to show' that it:hadmade' loans ' to'carry on its operations ; that- dividends on Its cumulative preferred stock were unpaid ; and that it had to forego the taking of a discount on purchases not paid in time. It also introduced into evidence an exhibit showing a list of accounts receivable, accounts payable, and cash in bank. We find that the lay-offs , discharges , and refusals to reinstate were not in any way motivated by, and did not occur as a consequence of, the respondent 's retrenchment pro- gram. The money which the respondent had borrowed , and the dividends which accumu- lated, occurred earlier during a transitional period of reorganization when the respondent was contracting its business activities in Louisiana , and expanding its operations in Texas, before shipments of sulphur had actually begun and income derived therefrom received. The purchases on which discount was not availed of by the respondent were a small 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent further asserts that on November 1, 1937, the pay- roll date preceding the dismissals, about 195 of the respondent's 207 employees were members of the Union, and that in the dismissal of employees, union members must necessarily have been affected; fur- ther, that it had no knowledge at the time of the lay-off s and dis- charges, that any of the dismissed employees were union members. The respondent's contentions in these respects are not sustained by the record. Apart from the fact that the Union did not have the number of members the respondent claimed it had, the manner in which the dismissals occurred, as will hereafter be related, showed a marked preference for Association members and a deliberate plan, to oust union members. As for the respondent's knowledge of its employees' labor affiliations, the record shows that practically every employee who was laid off or discharged by the respondent was approached by one or more of the respondent's supervisory employees and his affiliation with and sympathy for the Union or the Asso- ciation discussed. In addition, meetings of the colored division 27 of the Association were attended by Prell, who was thus fully apprised not only of what occurred at the meetings, but of the employees who attended as well. Prell testified that his attendance was prompted by his desire to help the members "get in line." Furthermore, we have noted that the respondent on several occasions sought out em- ployees to inform it of the union affiliations of its employees. In- deed, Wilson admitted to Barry that he had "received reports" that he (Barry) was a member of the Union. The record thus reveals the respondent's knowledge of the labor organization affiliations of the employees. We shall now consider the respondent's contention that a reduc- tion in work was responsible for the lay-offs of the 40 employees above mentioned. Percentage of the respondent 's total purchases . The exhibit , though obviously inadequate, did not of itself show a poor financial condition. It howed a total of cash in bank and accounts receivable far greater than the total of accounts payable. Furthermore , wages of all employees were increased in October 1937 , about a month before the beginning of the lay-offs and discharges . Mayer testified that he had several months prior to October advised Wilson that wages would be increased only "as soon as the Company was in a financial position " to do so. On January 22, 1938, the respond- ent's president directed a. communication to stockholders extolling the management for the "Company's success" and the "favorable outlook which the future holds." Moreover, it is apparent that the respondent relaxed the rigidity of any retrenchment program when the respondent contemporaneously and subsequently hired other employees to re- place, in part, the employees who were laid off and discharged. This will be considered later in more detail. By our order in this case, subsequently set forth, we are not imposing upon the respondent any expenses, absent unfair labor practices, which it did not itself undertake by its own action. 27 The Association had two divisions , one composed of the respondent 's colored employees and the other composed of the respondent's white employees. JEFFERSON LAKE OIL COMPANY, INCORPORATED .375 1. Lay-offs and discharges for reasons other than "for cause" After having been originally engaged solely in oil production in Louisiana, the respondent, in 1936,, broadened the scope of its activi- ties to include the mining of sulphur in Texas. Preparations for constructing a sulphur plant in Texas were commenced on Septem- ber 19, 1936. Full improvement of the property to be utilized and exploited by the respondent became necessary before production could begin. Much of this work was done by independent contractors, but a-considerable amount was performed by employees of the respondent. As a consequence, the respondent had in its employ a number of employees who were not engaged in the actual production of sulphur. Although construction of the plant was completed in April 1937, and mining for sulphur began in May 1937, the respond- ent found it necessary to continue the services of many of these employees. On September 2, 1937, Mayer wrote to Wilson, inter alia, as fol- lows : ". . . for the present, I would request that you eliminate all labor in and around the yard for the purpose of improving the property. . . . In other words, limit your activities to those opera- tions which are directly connected with the production of sulphur and abstain from any improvements or embellishments." Wilson replied by letter on September 22, that "all the suggestions you made had already been carried out." The respondent had in the mean- time decreased the number of employees on its pay roll from 233 on August 31, to 206 on September 16.21 . This apparently was the respondent's initial effort to eliminate the services of those employees who were engaged, in work not directly connected with sulphur production. . On November 1, 1937, the i:espondent had in its employ 207 em- ployees. The respondent insists that on about November 11, further extraneous. work had been completed, and further reduction in per- sonnel was in order. Wilson testified that despite the reduction in force which had already been effected, it was not until the first part of. November that the , respondent was "generally catching up the odds and ends . . . were pretty well caught up, they got every- thing in ..pretty tip-top shape, so it was a question of every-day operation." He further testified that about October 15, 1937, the employees were "getting to the point where they were un- necessary" and that he "knew there was a lay-off ahead." We credit this testimony. In accordance with Wilson's testimony, and other evidence in the record, we find that a portion of the work not directly 2s The number of the respondent's employees set forth throughout this decision does not include office employees. 247888-40-col. ]6=-25 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD connected with sulphur production had been completed about Novem- ber 11, and that therefore there were a ;lumber of employees whose services the respondent no longer required. In making this finding we are persuaded by the fact that on January 16, 1938, and there- after, the respondent stabilized the number of employees at 179, and we are not unmindful of the numerous adjustments, many of them unforeseen, which are necessitated by business undergoing reorgani- zation and beginning a new venture. The respondent dismissed 40 employees between November 10 and 15, inclusive. Many of these employees, when dismissed, were told that the respondent was "reducing forces." However, a great num- ber of them, during the month preceding the termination of their employment, had been warned by supervisors and foremen that they would be discharged or laid off if they did not join the Association or withdraw from the Union. We have considered such remarks under Section III A and B, supra. We shall have occasion to refer to them again when discussing individual lay-offs and discharges. In the hire and dismissal of employees, the respondent followed no rules of seniority. Decisions were purportedly based upon ability. The respondent hired colored employees as common laborers. Their work was of a, different character than the work for which the respondent hired white employees, and the wages they received were smaller. For reasons hereafter apparent, the two types of work, and the employees who performed each, . must be considered separately. a. Discrimination of employees other than "common laborers" The employment of 22 employees who were hired by the respond- ent for work not classified as common labor was terminated between November 10 and November 15, 1937, inclusive. Their names appear on Appendix A herein.29 Practically all of these employees were employed, at least a part of the time,30 in the field.31 The respond- ent concedes their efficiency and in individual cases expressed particular satisfaction with their work. Beginning on October 24, 1937, and extending through November 24, 1937, covering a period 21 For reasons hereinafter stated, Appendix A excludes the names of R. N. Brady, Harry Skotnik, Joe Skotnik, Frank Skotnik, and G. E. Thomas , who were released between November 10 and November 15, and includes the name of R. V. Ward, released prior thereto. 80 There were 12 employees in Hearn's gang, for example , who also had duties in the power plant. 31 The respondent's operations are divided into two main categories : ( 1) field operations, which embraced employees employed in the carpenter shop , garage, sulphur stations, vat, shipping department , pipe-line gang, well drilling , salvage, and rig-building crews, ware- house, and general field traffic ; and (2 ) other operations , which embraced employees employed in the machine and blacksmith shops, powerhouse, and electrical department. JEFFERSON LAKE OIL COMPANY, INCORPORATED 37.7 during which the above 22 employees were dismissed, the respondent hired 11 new employees. Two others were hired on December 11 and 17, The names of these employees, some of whom previously had been employed by the respondent, were set forth on an exhibit introduced in evidence as "white men recently employed," 32 and are .set forth in Appendix D herein. None of the new employees who were then in the respondent's employ were dismissed in November when the discharges above mentioned occurred. At least 11 of the 13 new employees were members of the Association,33 some joining the Association before beginning to work for the respondent. In response to a question as to why the respondent hired new em- ployees while discharging employees already in its employ, Wilson stated that the respondent "had too many men in the field and not enough in the machine shop, and the fellows in the field were. not used to working in the machine shop." However, the evidence shows, and. we find, that nine of the new employees were used for work in the% field.34 Only one of the new employees devoted his time exclusively to the machine shop,85 and the other three divided their time between the machine shop, blacksmith shop, and power plant.3' From the record, we find that the employees discharged by the respondent were qualified to do the work for which the 13 new em- ployees Were hired. For example, new employees were hired for work as night watchmen, truck drivers, mechanics, workers in the machine shop, power plant, blacksmith shop, pipe- line gang, rig- building crew, and salvage crew. As we shall later observe when discussing individual cases of employees discharged, much of this Work had been previously performed by the old employees, and none of it could not have been adequately undertaken by them. Bell, who was in active 'charge of sulphur production, admitted that although the new staff was efficient, he "wouldn't say they were any more efficient" than the staff which he previously had. We now consider individually the cases of alleged discrimination. G. E. Thomas. Thomas was hired by the respondent on April 6, 1937. He was employed first as a mechanic in the garage, subse- quently transferred to the field as an assistant yard foreman, and This exhibit contained a list of 20 employees . Six of them , -though classified as "recently employed," were hired by the respondent prior to October 15, 1937, before the. respondent became aware that a Jay-off was forthcoming. A seventh, although rehired later, had been absent due to Illness. They are therefore not considered in this decision. 11 The record does not show the affiliation of the other two employees. 3A These employees were Edwin Johnson, W . W. Arnold, W. H. Lavender, W. S. Jones,. E. A. West, J. M. Schwebel , J. D. Sloan, F. L. Franck, J. D. Marshall. v This employee was Henry Hudec. se These employees were D. S. Morphew , H. F. West, and Erven Leblanc. Wilson himself admitted that the new employees did not work In the machine shop , but that, "two of them were employed in the machine shop, (and ) one of them in the power plant to sub- stitute for a man who did go in the machine shop." 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finally, in the latter part of May 1937, promoted to yard foreman where he continued until his discharge on November 11. His duties as yard foreman consisted of supervising or "bossing" a group of 6 to 63 negro laborers, servicing and supplying equipment to the various departments in the field, and taking care of general field traffic. Thomas joined the Union on October 8, and was later elected vice president. On October 8, 1937, as previously set forth under Section III, A, ,supra, Jaquet and Bell queried Thomas about the labor meeting to be held that evening in Freeport. When Jaquet asked him to re- turn the -following morning with information of what took place, Thomas replied that the respondent paid "for the work I did on the job, and that this meeting was an open meeting down there, . . and if they wanted to know what went on down there, I suggested that they go down themselves." On the morning of Octo- ber 9, when Thomas was recalled for questioning by the same persons, he remained unamenable. On October 20 Thomas was given a 50-per cent increase in wages because of a favorable work record. At the same time Wilson urged him to exercise his influence to quiet the labor disturbance then extant at the plant. About October 27 Bell detained Thomas to inquire whether his wage increase was satisfactory and whether he was soliciting em- ployees to become members of the Union. Thomas replied that he had joined the Union, but had solicited no one. Bell then warned : "Thomas, you are a good man here and doing your work splendidly, ,and I would like to keep you -here, but you are going to have to be awful careful." On November 11, 1937, Jaquet told Thomas to check in his equip- ment, that his work was satisfactory, but that the respondent was conducting an "economical campaign," and that he and all but one of the six employees then under his direct supervision were "slated" to be dismissed. All the employees in Thomas' crew, including the one who remained, were members of the Union. When Thomas was discharged, his duties were assumed by Dewey Wilson. Wilson testified that in addition to taking over Thomas' work, Dewey Wilson supervised the sulphur operators, which Bell had found it necessary to do himself while Thomas was employed. Bell testified that Dewey Wilson had undertaken the additional work, but that his job was similar to Thomas'. Although Dewey Wilson stated that he worked around the sulphur station, he could not remember anything specific he had done, or when he had last been there. "The fact of the business (is)," he admitted, "I have not had any trouble since I have been on the job; didn't have to do any- JEFFERSON LAKE OIL COMPANY, INCORPORATED 379 thing." Oscar Wilson, a sulphur-station operator over whom Dewey Wilson allegedly had supervision, and a brother of Dewey Wilson, testified that Dewey Wilson had no supervisory authority over any- one in the sulphur station-that he had no knowledge of it and re- ceived no orders to that effect. Dewey Wilson had no previous experience in "bossing" a gang of colored laborers. Originally a member of the Union, he later withdrew. He joined the Association previous to his promotion to the vacancy created by Thomas' dis- charge, and he became active in its behalf. We find that Thomas was superseded by Dewey Wilson; that the duties performed by each were identical ; and that in any event, Dewey Wilson was assigned to no task which Thomas was not like- wise qualified to perform. We find further that although there may have been a reduction in work about the plant, such reduction did not affect the work which Thomas had been doing; that the job as general foreman over common laborers later assumed by Dewey Wilson remained intact and as vital to the respondent's business as before. In view of Thomas' satisfactory work record, his member- ship and activity in the Union, and the respondent's hostile attitude toward the Union which it vented upon Thomas by threats and warnings, we are convinced that Thomas would not have been dis- charged but for his union membership and activity. At the time of the hearing, Thomas was unemployed. C. A. Hearn. Hearn was hired by the respondent on April 1, 1937, as a maintenance foreman. Immediately preceding April 1, he had been employed by an independent contractor installing boilers in the respondent's plant. He was under the supervision of Lebeuf and any "watch" engineer who was in charge of a shift at the power plant. His duties consisted of construction work on partially com- pleted structures, and maintenance work on all buildings about the plant, including the office, warehouse, blacksmith shop, machine shop, lime house, and power plant. We find that Hearn did work generally associated with the operations carri€d on in the machine shop.37 Hearn supervised from 15 to 30 employees. When first employed, he earned 60 cents an hour; his wages were increased to 70 cents in September, and 77 cents in October. Hearn joined the Union on October 6, 1937, and was a member of its board of trustees. On October 9 Lebeuf questioned Hearn about his union membership and the labor meeting the previous evening. 87 Hearn was under the immediate supervision of Lebeuf , who was in charge of the machine shop . He testified that his maintenance work covered all buildings , including the machine shop. In a letter to Mayer from Wilson, the latter wrote that the machine shop handles all repairs for all departments of the mine. The evidence is clear that such were among Hearn's duties. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hearn replied that he had already joined the Union and that almost all of the respondent's employees had attended the labor meeting the previous evening. Lebeuf stated that he was "in a position where he couldn't talk very much about it." Previous to signing the "Employees' Group" contract, Hearn had been warned by Lebeuf that to refuse. might ,cost him his job. Thereafter, he was impor- tuned to join the Association, "line up" the respondent's employees, and individually to present a list of employee grievances to the re- spondent. Hearn replied to the latter suggestion that he had already delegated such authority to the Union. He did not join the Associa- tion nor is there any suggestion in the record that he attempted to influence others to do so. On November 11 Hearn and 10 employees under his supervision" were dismissed. Lebeuf stated to him at this time that all were good workers, but that the respondent was "on a little economical pro- gram, and they saw fit to lay a bunch of you men off." When Hearn challenged the reason for his discharge, and protested that "you (Lebeuf) have been telling me for a month that if I didn't get out of this union (the Union) and get into the company union (the As- sociation) I would be laid off," Lebeuf nodded his head affirmatively. Hearn testified that the following morning Lebeuf stated that "he didn't much blame us" when told that charges of unfair labor prac-' tices might be filed against the respondent. Lebeuf, although stating that he retained men in the respondent's employ upon a basis of their ability, testified that he did not remember the conversations he had with Hearn concerning his discharge, and did not deny that these incidents, as well as other incidents attributed to him, occurred as alleged. Wilson Waguespeck, an employee, testified that after Hearn was discharged, Bischoff stated to him : "If some of the boys around this plant don't get.right, they are going to get it too. I have cautioned Charlie Hearn and his gang. I have cautioned them to get on the right side or it would not have happened. They would not do it and there you are:" Bischoff did not deny having made the statement to Waguespeck although he testified that he did not talk to any one about labor organizations. Still another employee, however, testi- fied to Bischoff's solicitation on behalf of the Association. We find that Bischoff made the statement attributed to him by Waguespeck. Of the four employees in Hearn's gang retained by the respondent, three were Union members. A fourth, not a member, had been 3 days in the respondent's employ. All later became members of the Association, the three Union members having withdrawn from the Union. JEFFERSON LAKE OIL COMPANY, INCORPORATED 381 Lebeuf testified that the work for which Hearn was responsible had been consolidated with the machine shop under Bischoff's super- vision and was carried on by four employees. Lebeuf's testimony in this regard is without contradiction. These four employees worked in the power plant and machine shop. Two of them were hired on November 6, and a third, Henry Hudec, on November 20. Hudec, previously had been employed by the respondent. When he left in June 1937, Wilson promised him a job on his return- "if there will be an opening here. . ." Wilson testified that although Hudec was also a burner and welder, he otherwise' "may be doing" what Hearn did at the power plant. Hudec joined the Association 2 or 3 days before he returned to work. His duties at first consisted of air- compressor installation and completion of air lines in one of the buildings. It was not until 2 or 3 weeks later that Hudec devoted full time to the machine shop. At the time of the hearing, Hearn was unemployed. 0. J. Stoutess, Elvest Pelletier. Stoutes and Pelletier were em- ployees in Hearn's gang who were discharged on November 11, together with Hearn. Both were members of the Union, having joined on October 6 and 8 respectively. Stoutes had been in the respondent's employ since 1933, having worked for the respondent while it was carrying on oil operations in Louisiana, and with the exception of two' interruptions in the interim when he'quit the respondent's employ, worked continuously until his discharge. His work for ' the respondent in Texas began on-April 5, 1937. In Louisiana and in Texas he was employed as a tinsmith, insulator, and carpenter. In April 1937 he was earning 55 cents an hour. On October 16, he was given a raise of 11 cents- more, than the usual 10-percent wage increase given to other em- ployees-when he signed the "Employees' Group" contract. On October 10 Lebeuf, in discussing unionization at the plant, told Stoutes that "if you boys don't. get right, there is going to be a change." Again on November 5, in referring to certain conver- sations Stoutes had with other workmen, Lebeuf warned : "Stoutes, if you like your God damn job, keep your God damn mouth. shut.88 After his discharge, Stoutes applied for work at an adjacent sul- phur company and was asked for a recommendation from the re- spondent. Lebeuf refused to give Stoutes it written recommendation, 89 we previously have had occasion to consider Lebeuf's general denial to these state- ments, and we found , under all the circumstances, that he made such statements as alleged. In so far as the findings previously made are applicable to the discussion of the lay-offs and discharges presently being considered in this section , whether they concerned Lebeuf or any other person employed by the respondent, they will be here considered without again setting forth all the evidence upon which the finding was finally made. Thus, for example, we are not here setting forth . Lebeuf's denial, since it has already been considered, and a finding already made in regard to it. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but promised to recommend him over the telephone. The prospective employer called Lebeuf, and upon conclusion of the conversation, told Stoutes: "Well, I can put you on the job, but first do you think it is right for a man to run a job or the officials of the company?" He told Stoutes that if he withdrew from the Union he could-go to work. Stoutes previously had said nothing to him concerning his union membership. Stoutes testified that he did not accept employ- ment because it would have meant withdrawal from the Union. We conclude that Lebeuf informed the prospective employer of Stoutes' union membership and of the alleged labor difficulties with the Union. Pelletier was hired in February 1.937. While in Hearn's gang, he was generally used in the power plant. He started at a wage of 25 cents an hour but was earning 44 cents an hour when discharged. We have earlier referred to statements made to him on October 16 by both Lebeuf and Bischoff ; by the former, Pelletier was warned "to get on the right side of the fence"; by the latter, he was reminded that he was "working for this company; not against it." Pelletier remained in the Union.. At the time of the hearing, Stoutes and Pelletier were unemployed. J. H. Goolsby. Goolsby started to work for the respondent in March 1937, and with the exception of a single lay-off, worked con- tinuously until his discharge on November 11. At the time of his discharge, he was employed in the salvage crew under Bernard Pat- ton. Prior thereto, he had worked in the machine shop, pipe-line gang, and rig-building crew. He had received two wage. increases from the respondent, from 40 cents to 55 cents to. 61 cents hourly. Goolsby joined the Union on October 9. He affiliated' with'''the` Association on October 20 when Ebarb told hini that otherwise there would be a "lay-off coming." He retained his membership in the Union, however, paid no Association dues, and attended but one of its numerous meetings. On November 11 Bell told Goolsby that the respondent was reduc- ing its forces, and discharged him over his protest that he was the oldest employee in the crew in point of service with the respondent. Bell testified that the respondent eliminated the functions of the salvage crew and transferred its employees to other work. As will subsequently be. more fully considered, five employees in the pipe- line gang were, released at this time. Anding, foreman of the pipe- line gang, was given sole authority to select the employees from the discontinued salvage crew in order to replenish his own crew. Although the professed basis for. selection was efficiency and ability, Goolsby was not transferred, although ranking in seniority, experi- enced in pipe-line work, and possessed of a satisfactory work record. Goolsby was also experienced in the machine shop and the respondent JEFFERSON LAKE OIL COMPANY, INCORPORATED 383 admittedly needed employees experienced in that type of work. The three employees who were retained by the respondent from the sal- vage crew resigned from the Union, to which' they belonged, and became members of the Association. At the time of the hearing, Goolsby was unemployed. Edwin Dore. Dore had been in the respondent's employ since 1933, although not continuously. He worked as a pipe-line worker, rig builder, and driller's- helper. In the latter capacity he earned 76 cents hourly, in the other capacities, 61 cents. Dore joined the Union on October 6. Thereafter he was cautioned by both Perkins and Ebarb that unless he joined the Association and attended its meetings, he would be discharged. Dore did not join the Association. On November 11 Dore was discharged. He was replaced by Patton, ex-foreman of the salvage crew. Bell testified that Patton was an extra driller and that Dore had no such experience. How- ever, Dore was familiar with rig building and pipe-line work, and was not transferred to such work, notwithstanding the apparent need for such help. It appears that Dore was the only driller's helper who was dis- missed. There is no evidence as to the union affiliation of other employees in a capacity similar to his. At the time of the hearing, Dore was unemployed. J. K. Helton, J. E. Brooks, Haywood Watson, H. T. Britt, 0. 0. Evans. All of these employees except Evans, who devoted his time exclusively to work in the pipe-line gang under Anding, divided their time between duties in the pipe-line gang and duties with the respondent elsewhere in the field. Thus Helton and Brooks were also vat men, Watson a line walker, and Britt a rig builder. Prac- tically all, however, in addition to the `above work on which they were employed at the time of their discharges, had worked in other capacities in the field. All were members of the Union, having joined on October 6 and 8, 1937. Helton was hired by the respondent on February 4, 1937. He was earning 65 cents an hour at the time of his discharge on November 11, having received two increases during his tenure. On October 16, he was solicited by Ebarb to join the Association, and on October 20, he was given an Association card by Anding and told to sign if he desired to continue his employment. Helton refused in both in- stances. On November 5, when Helton asked Anding why certain officials were present, Anding replied "they are seeing that you are lined up right." Brooks was hired by the respondent on February 1, 1937. When be signed the "Employees' Group" contract on October 16, his wages 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were increased from 40 cents to 55 cents for vat work, and from 50 cents to 65 cents for pipe-line work, which was more than the usual 10-per cent increase that the respondent granted to its em- ployees. He was later promoted to yard foreman over a group of common laborers at a wage of 75 cents an hour, but he was removed from his work several days before his discharge on November 14. The cause for this removal is not disclosed in the record, although it appears that it was merely the result of the respondent's frequent interchange and transfer of employees. As in the case of Helton, Brooks was similarly approached to join the Association. Although he refused when solicited by Ebarb, he joined when urged by Anding. Brooks testified that immediately preceding the close of the workday on November 11, Anding asked him to attend the Association meeting the following evening, and that when he refused, Anding replied, "Okeh, you will go just like the rest of them." Anding did not deny having made this statement. Other employees testified that Anding made like remarks to them as We credit Brooks' testimony. On November 14 Anding told Brooks that the respondent was cutting its force and that his services were no longer, needed.' Watson commenced working for the respondent in January 1937 at an hourly wage rate of 40 cents.. His wage was increased to 45 cents, and again to 55 cents on October 16. Anding employed over- tures similar'to, those which he used on other employees under his supervision to induce Watson to become an Association member. Watson signed after having first refused. He attended one meeting, and paid no dues. He was discharged on November 10. Britt began his employment with the respondent on July 1, 1937. On October 20, 1937, he was laid off. Shortly before November 1, Arrington told him that before he returned to work he would first •have to become a member of the Association. Britt thereupon signed a membership card, and returned to work on November 1. Britt at- tended one meeting of the Association, but also attended Union meet- ings. He was discharged on November 12. At the time of his dis- charge, he was earning about $25 a week. From February to April 1937, Evans was employed in construct- ing the respondent's power plant. In May he was reemployed, and with intermittent lay-offs, worked until he was discharged on No- vember 12. ' Evans worked in the power plant and rig-building crew previous to working in the pipe-line gang. His earnings were 55 cents hourly. One of Evans' lay-offs occurred on October 12. On October 10, Anding was overheard pointing out Evans to others as a union mein- 39 Evidence to this effect was presented by Gordan and Goolsby. JEFFERSON LAKE OIL COMPANY, INCORPORATED 385 ber. On October 20 Schwebel, a supervisor, told Evans that he (Schwebel) and Ebarb had been delegated by Wilson to secure em- ployee memberships into the Association, and that if he joined the Association, he would be recalled sooner. Evans joined and re- turned to work on November 8. Evans testified that on November 11, Anding, upon learning from him that he was a fully paid-up member of the Union, stated to him that he was on the "wrong side," that he should get on the "right side," and "do like the company wanted us to do." Anding denied this testimony, but in view of con- sistent testimony of similar import by many other employees, we can- not give credence to the denial. Helton, Brooks, Watson, Britt, and Evans were union members. Although several had joined the Association, under the circumstances related above, they still retained their membership in the Union. The two employees who remained in the pipe-line crew after they were discharged were members of the Association. The four other employees who were then transferred to the pipe-line crew, if they already had not done so, became members of the Association. It is significant that Anding, active in the Association and vice president of the organization, was given the authority to retain the employees that he wished in his gang, even to selecting others from another group. Of the six employees who finally composed the pipe-line gang, one had. been last hired on October 28, another on November 2, and 'a third on November 4. They were employees classified as "recently hired" by the respondent. We also note the fact that of the employees who regularly com- .prised,the pipe-line gang, four were dismissed and their places taken by employees who were ordinarily occupied with other duties. Bell testified that employees were selected and retained on a basis of ability. There was no evidence, however, of any dissatisfaction whatsoever with the work of the discharged employees and there is no evidence that the discharged employees were not fully as qualified as those employed in their stead. Moreover, Bell apparently bad followed a policy of retaining employees for particular work when they were already regularly employed in such work .40 At the time of the hearing, Brooks, Watson, and Evans were unemployed, Britt was employed by Brazoria County at $3 a day, and Helton was renting a 15-acre farm on which he raised garden products and corn. T. J. Gordan, H. S. Goolsby. Gordan was hired on January 14, 1937, as a carpenter, and promoted to carpenter foreman on October 1. "In the case of Dore, Patton replaced Dore as a driller's helper. Bell testified that Patton was a regular driller, and Dore was not, and that he made it a practice to place the regulars first. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Previously he had been engaged in construction work on buildings of the respondent. He was given a wage increase from 50 to 60 cents an hour on October 1, and on October 16 was given an additional in- crease to 75 cents. Gordan became a member of the Union about October 9. There- after Anding told him that the respondent would shut down and lay off its employees before it would recognize any union. On Novem- ber 10 Anding told him to join the Association and attend its meet- ings. When Gordan stated that he already belonged to the Union, and "it wouldn't look right to belong to two . . .," Anding added that if he did not he would be "walking around without a job." When Gordan was discharged on November 11, Jaquet told him that the respondent was cutting down expenses, but that he was a good worker and would be recalled in not more than 2 or 3 days. In Wilson's letter to Mayer on September 22, he stated that the three carpenters were "extremely busy" and that the respondent "will probably have to continue with this number." At the time of his discharge, Gordan was in the midst of constructing a garage and carpenter shop. The buildings were later completed by other em- ployees. Gordan had been assisted by H. N. Goolsby and Julius Fossil, who were members of both the Union and the Association. Goolsby was employed in the pipe-line gang under Anding from April 29, to November 5, 1937, when he was transferred to assist Gordan in carpentry work. There he continued until his discharge on November 11. He received 55 cents an hour as a pipe-line worker, and 60 cents an hour as a carpenter. Goolsby became a member of the Union on October 9. On Octo- ber 20 he also joined the Association when Anding, under whom he was then employed, urged him and others to join the Association in order to protect their jobs. Goolsby attended two Association meetings on , the two successive nights following his affiliation. Thereafter he did not attend. On November 10 Anding warned him that since he was a member of the Association, he had better attend its meetings.41 Goolsby refused, and on November 11 Bell dismissed him with the explanation that the respondent was reducing person- nel. In December Anding told Goolsby that he was a good hand and that he could be returned to work if he signed an Association membership card. Goolsby refused because of his union member- ship. At the time of the hearing, Gordan and Goolsby were unemployed. Ed Lonis. Loris had been with the company since April 17, 1937, as a tractor driver. Previous to being employed by the respondent, he had 7 years experience driving tractors and working around drill- 41 Similar statements were attributed to Anding by Gordan and Brooks. JEFFERSON LAKE OIL COMPANY, INCORPORATED 387 jug rigs. He started with the respondent at an hourly wage of 50 cents, was later given an increase to 55 cents, and finally was in- creased to 65 cents when the "Employees' Group" contracts were sighed. Lonis became a; member of the Union on October 11. About a week later, he became a member of the Association when Arrington stated that such affiliation would be necessary to hold his job. Lonis attended two Association meetings and, according to Anding, was selected on the bargaining committee of the Association. The extent of his activity on the committee, if any, is not disclosed. Lonis thereafter apparently became inactive, for throughout October, Ar- rington warned Louis that if he did not attend Association meetings, he would be discharged. Lonis testified that on November 11, after Arrington unsuccess- fully attempted during working hours to persuade him to attend an Association meeting, Arrington visited him at his home and stated: "Ed, I want to talk to you as a friend. I don't want to see you lose. your job. You are a good driver, the best I have ever had down, there. I want you to stay, but if you don't drop that A. F. of L. and come and join this and go along with us, they are going to fire you. I know what I am talking about." Lonis remained adamant. Ar- rington did not deny the visit, but testified that he simply stated, "Well, Ed, I would like to see you come back to another meeting." When Lonis refused, he testified further, he simply bade him good- night and departed. Lonis was discharged on the following day. We find in accordance with Lonis' testimony. Several days later Arrington took occasion to remark to another employee that if he did not attend Association meetings, he would "go like Mr. Lonis did." The respondent had in its employ, previous to Lonis' discharge, nine tractor drivers. But four were retained, one of whom was a relief man. All four were members of the Association. At the time of the hearing, Lonis worked part of the time in a small grocery store which was owned and operated by his wife.. Woodrow Hash,aw. Hashaw was hired on September 15, 1937, and discharged on November 15. He was employed as a blasting helper, earning 55 cents an hour. He became a member of the Union on October 8, and of the Association on October 16, when Arrington counseled that if he did not do so, he might be discharged. He attended but one meeting of the Association, however, and paid no dues to the organization. Three employees doing similar work who were members of the Association were retained by the respond- ent. At the time of the hearing, Hashaw was temporarily em- ployed by another company. Oliver Romero. Romero worked for the respondent in Louisiana from 1934 to 1936, and was then transferred to the respondent's Texas 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant. He was employed as an electrician helper. At the time of his discharge on November 11, he was earning 70 cents an hour, hav- ing received in the interim, two 10-cent hourly increases in wages. Romero joined the Union on October 8, 1937. On November 4, when Lebeuf overheard Romero discussing labor organizations with another employee, and upon inquiry, learned that he was a member of the Union, Lebeuf declared that if the Union "pulled through," Romero would probably lose his job. On November 11, Romero's foreman, who observed Wilson, Lebeuf, and Jaquet about the premises, counseled Romero that they were not "walking around -here for nothing. The axe is going to fall today. I don't mean you are going to be laid off, but I believe it is the right time to get on the other side if you like your job." Romero was discharged by Lebeuf the same day. He had not become a member of the Associa- tion. The respondent retained in its employ as an electrician helper one Pete Matukas, who likewise was a union member. At the time of the hearing, Romero was unemployed. . Fred Duval. Duval had been employed by the respondent as a truck driver since January 3, 1937. At the time of his discharge on November 12, he was earning 50 cents an hour, having been earlier given a 10-cent hourly increase in pay. Duval joined the Union on October 8. On October 10 Arrington questioned him about his membership and stated that if the Union successfully organized the respondent's employees, a shut-down would result. Duval testified that on October 17 Arrington again approached him with an Association membership card and stated, "You better go on and sign, or you- might lose your job out here." Arrington de- nied this testimony specifically. In the light of other evidence re- flecting upon Arrington's union activities, we cannot credit his denial. Duval joined the Association on October 17. After he joined the Association, Duval became inactive and attended but one of its meet- ings previous to his discharge. On November 5 Grace told him "'it was his job if he didn't sign an Association membership card." On November '12 Duval was discharged. The truck. previously driven by him was parked, and used only when a particular demand for it arose.42 , In the first part of December, after having refused on another oc- casion, Duval reafl'iliated with the Association and paid his dues, be- cause, he testified, Arrington assured him that it was only through such course that he could return to work. He was not, however, re- employed. At the time of the hearing, Duval was unemployed. *'Duval testified that his truck was continued in use after his discharge, and was regularly driven by other employees . Arrington and Wilson , however, denied this. JEFFERSON LAKE OIL COMPANY, INCORPORATED 389 Cleomere Leleux. Leleux had been first employed by the respond- ent in Louisiana in the machine shop and blacksmith shop. He was reemployed by the respondent on June 14, 1937, first as a worker in the repair gang, and subsequently as a fireman on a sulphur-loading machine, with a view to making him an operator as soon as he learned the trade. He earned 61 cents an hour. When he left the respond- ent's employ in Louisiana, he was given a letter of recommendation to potential employers. Leleux joined the Union on October 8,'1937. A few days later, Prell .approached him and stated that he thought it was "best" to sign an Association membership card, and "cooperate" with the respondent, but Leleux refused. Leleux joined the Association on October 16, however, when A. Landry, an employee who later replaced him, issued Association membership cards and warned that the employees "had better get right or else." Leleux paid no Association dues and at- tended no meetings. On November 15 the respondent discontinued the use of the con- veyor on. which Leleilx was working and discharged him. The hoist operator was transferred to a second conveyor as a fireman, replacing Odet Leblanc, an Association member, who was in turn transferred to field employment. Thereafter, the respondent apparently again placed two hoists in operation, for Leblanc was returned to his former position as fireman, and Landry took over Leleux's former post. Landry had been previously employed by the respondent in Loui- siana as a hoist operator. The respondent introduced evidence to show that in addition to his work as a fireman, Landry was also able to construct railroad spurs which were constantly being relocated on the premises, and could act as a relief operator if the necessity arose. At the time of the hearing, Leleux was unemployed. R. V. Ward. With the exception of a single lay-off in June, Ward had been in the respondent's employ since March 1, 1937, as a line- walker and worker in the pipe-line gang. Shortly before his lay-off on October 12, 1937, his wages had been increased from 40 cents to 50 cents an hour. Ward became a member of the Union on October 9,1937. Although Ward testified that he did not tell Anding that he was a member of the Union until after his lay-off, further testimony showed that on October 10, 2 days before his lay-off, Anding referred to him as a union member. After Ward had been laid off, Anding stated to him that in order to return to work, he would first have to become a member of the Association. Ward refused, and was not thereafter recalled for work. Other employees who were not members of the Union were laid off at the same time as Ward. Some of them, however, were thereafter 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reemployed. - Those reemployed were members of the Association. We believe the evidence affords insufficient basis for a finding that Ward was laid off because of his union membership or activity. It appears, however, that when work became available, he was. not given consideration for reinstatement because of his refusal to withdraw from the Union and become a. member of the Association. The impo- sition of this illegal condition precedent to reemployment relieved Ward of making formal application for reinstatement.43 Since his lay-off Ward has not been regularly employed. b. Conclusions with respect to discrimination of employees other than "common laborers" The respondent has urged that the dismissals of the employees listed in Appendix A, whose individual cases we have just considered, was necessitated by a reduction in available work. We have found that on about November 1, 1937, the respondent was beginning to complete work not necessary to the actual production 'of sulphur, and decided, about 2 weeks previous thereto, that a reduction in the number of its employees was inevitable. We have found also that after such decision had been made the respondent hired, and continued to hire after November 15 when the discharges were completed, new employees for work which was substantially identical to that performed by old employees, or which they were qualified properly to perform. The conclusion is inescapable that although the amount of work at this time may have decreased, it had not, as respondent contends, declined to such an extent as to require. the dismissal of 21 employees. Other- wise no occasion would have been presented for an increase in the respondent's staff of 13 new employees. Where work had lessened to the extent that the elimination of eight employees was proper, 21 employees were eliminated.44 Under such circumstances, particularly when old employees are satisfactory workers, as they were here, the discharge of old employees and the practically contemporaneous hiring of new employees to do the same or similar work,. as was done here, raises a strong inference that the discharges were discriminatory. 43 Matter of Carlisle Lumber Company and Lumber & Sawmill lVorkcrs' Union, Local 2511, Onalaska, Washington, and Associated Employees of Onalaska, Inc., Intervenor, 2 N. L. it. B. 248, National Labor Relations Board v. Carlisle Lumber Co., 94 F. (2d) 138, cert. den. 304 U. S. 575; Matter of The Grace Company and United Garment Workers of America, Local No. 47, 7 N. L. R. B. 766; Matter of Jacob A. Hunkele trading as Tri- State Towel Service of the Independent Towel Supply Company and Local No. /i0 United Laundry Workers Union, et al., 7 N. L. R. B. 1276. 4E We have found that although there was a reduction in work about the respondent's plant, it in no way concerned the work which had been performed by Thomas. His job continued without diminution, and was taken over, in toto, by Dewey Wilson. The respondent's defense of work reduction is equally inapplicable in Thomas' case. In arriv- ing at these results, we have included the cases of the Skotniks and Brady, who were released along with the others at this time, but with respect to whom unfair labor practice charges are dismissed. JEFFERSON LAKE OIL COMPANY, INCORPORATED 391 Viewed in ,the light of the respondent's manifest hostility toward the Union and its members, it is apparent that the respondent sought to rid itself of those employees who had become union sympathizers, while at the same time replenishing its personnel with employees who were not in its employ at the height of union activity and who, in its opinion, were untainted by union influence. Indeed, some of the new employees had joined -the Association even before being hired by the respondent. We conclude that the respondent in discharging and refusing to reinstate the employees listed in Appendix A, was guided by anti-union bias. The dismissals herein were referred to by the respondent both as lay-offs and discharges. Many employees were told that they were laid off. However, all the parties to the proceeding, including the respondent, frequently referred to these dismissals, not as lay-offs, but as discharges. Many of the employees testifying considered that they were discharged. The evidence indicates, particularly in view of a permanent reduction in available work at the respondent's plant, the need for fewer employees and the desire of the respondent to rid itself of union members, that these employees were discharged, not merely laid off. We find accordingly. In any event, however, whether the employees were laid off or discharged is immaterial, since either, under the circumstances, is discriminatory.46 We find that by discharging and refusing to reinstate Thomas and the employees listed in Appendix A,46 the respondent has discriminated against its employees with respect to hire and tenure of employment, thereby discouraging membership in the Union, encouraging mem- bership in the Association, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7.of the Act. c. Discrimination against employees working as "common laborers" Between November 11 and November 14, 1937, inclusive, the respond- ent laid off 17 employees who were employed as common laborers, all but one of whom worked in the field. These employees are named in Appendix B herein. The respondent likewise contends that their lay-offs were due to a decline in available work. It does not contend that their work was unsatisfactory. The respondent paid these workers 30 cents an hour. All who had been in the respondent's 45 Matter of Precision Castings Company, Inc. and Iron Molders Union of North America, Local 80. 8 N . L. R. B. 879. 46Brady and the Slotniks did not testify. All were under Hearn's supervision at the time of Hearn's discharge . Brady was later reemployed by the respondent. Other than the general facts surrounding the lay-offs and discharges of Hearn and the employees :n his gang, no evidence bearing upon the termination of their employment was presented. Under the circumstances, the charge of unfair labor practices in so far as it relates to the Skotniks and Brady will be dismissed. 247383-40-vol. 10--26 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employ when the "Employees' Group" contracts were signed received wage increases of 10 per cent. Between December 9, 1937, and January 15, 1938, inclusive, the respondent hired for common labor 22 new employees, many of whom had been previously in the respondent's employ. None, however, whom the respondent laid off in November were called back by the respondent for reemployment. The work for which the new em- ployees were hired was substantially similar to the work performed by the employees in the November lay-off, and was work for which the latter were adequately qualified. The new employees were hired through James Randon, office boy. Whenever the need for common labor arose, the respondent directed Bandon to secure them.47 Randon selected them from a reservoir of employees who were ever ready to come to work at the respond- ent's call. It was not the respondent's practice to require these persons themselves to apply at the respondent's plant for work. The workers thus remained at home awaiting calls for employment. When Randon commenced hiring employees, Sandy Bryant, an employee who had been laid off in November, observed him in the neighborhood and asked if the "respondent needed any more hands." Randon replied that the respondent "wanted some more men out in the field ... but they didn't want no union men-they were not hiring no union men." Randon testified that. he did not call back the employees who were laid off in November because he thought "they might feel that by getting them, that they would have to join it, (the Association) and they would hold me responsible." Only one of the employees whom Randon selected was a member of the Union. He was not, however, one of those who were laid off in November. Randon, who joined the Union in the forepart of October 1937, later withdrew from that organization and became a member of the Asso- ciation in the early part of November 1937. He was active in solicit-, ing employees to affiliate with the Association. We now. consider individually the employees who were laid off. James Chandler, Osby Johnson, Malachi Jammer, Samiuel Alston, Jefferson Woodward. These men were employees under Thomas' supervision. All but Johnson started to work for the respondent in February 1937, and with the exception of Woodward, who was thrice laid off during the interim, worked continuously until their lay-offs on November 11, 1937. Johnson had been employed by the respondent since April 5, 1937. All became members of the Union on October 11, 1937. About October 16 Prell visited Jammer and Alston at their homes with Association membership cards and told them that unless they 47 Randon testified that whenever Wilson wished help, "he sent me after them ." Wilson testified that Randon was told to "go out and get" the workers. JEFFERSON LAKE OIL COMPANY, INCORPORATED 393 withdrew from the Union and became members of the Association, they would lose their jobs. Neither, however, joined the Associa- tion. Johnson and Chandler did not join the Association, but Wood- ward joined when told by Arrington that otherwise he would lose his job. Chandler, Johnson, Alston, and Woodward have not re- ceived employment elsewhere since their lay-offs. Jammer works on a farm for his board and lodging. Clarence Woodward, Aaron Helm, A. M. Thompson, Charley Thompson, Samuel Moore. These men were laborers in Hearn's crew who were laid off on November 11. All became members of the Union about October 11, 1937. Helm commenced working for the respondent on January 12, 1937, and worked continuously until November 11. Woodward was first employed on October 1, 1937. The others worked for the respondent for several months in 1936, were laid off, and were not again re- employed until October 1, 1937. Woodward and Helm testified concerning Prell's visit to their homes about October 20 ' for the purpose of soliciting them to join the Association, to which visit reference has already been made. To each remarks patently coercive in character were made to induce them to sign membership cards in the Association .48 Helm did not join the Association. Woodward became a member that evening, but the following morning asked that his membership be withdrawn when he learned that most of the other employees had not joined.- It appears that neither Moore nor the Thompsons became members of the Association. Clarence Woodward, Helm, and A. M. Thomp- son have not received employment elsewhere since their lay-offs. Charley Thompson and Moore have been engaged in farming. William Robertson. Robertson had been employed by the re- spondent since January 5, 1937, first as a laborer in the fields and then as a laborer in the warehouse. He joined the Union on October 11. Thereafter, he became a member of the Association when so- licited by Arrington and told that other employees had likewise done so but he attended none of its meetings. He was laid off on November 11. . Robertson's job was to clean up and store. fittings which had been salvaged. At the time of his lay-off, most of the fittings on which Robertson was employed had been stored. The little work remain- " Woodward testified as follows : "He (Prell) had a little yellow card in his hand and I said, 'for what ?' and he said, 'for this company union .' I said, 'How come all this happened this evening since I left there-I just left there?' He said , ' I am telling you for your own good' ; he said 'All the other boys have signed,' so I said , 'All right,' I said I would sign it , so I signed it." Helm testified as follows : ". . . He (Prell) said be heard us boys had joined the American Federation and we was on the wrong side and if I didn't sign this card he was carrying around that night , I would be fired off my job and he said I worked pretty well around the plant but if I didn't sign the card he had, I would be fired off my job." 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to be done was completed by employees who were temporarily disabled from performing their regular duties. Robertson has not been regularly employed since his lay-off. Lee Lipkins, Sherman Johnson, Sandy Bryant, Morgan Bivens, Anderson Good. Lipkins, Johnson, Bryant, Bivens, and Good were employees working under Dewey Wilson's supervision. Some of them previously had worked for Thomas when he was yard foreman. Lipkins and Bryant had been in the respondent's employ, with several interruptions due to lay-offs, since September 1936. Johnson, Good, and Bivens had worked continuously for the respondent since Janu- ary and July 1937, and September 1936, respectively. Their lay-offs occurred on November 13 and 14. All became members of the Union on October 11. They were thereafter approached by Prell and Arrington to become members of the Association. The soliciting methods employed by them has heretofore been described, and were not in these instances, altered. None became a member of the Association. Lipkins, Johnson, and Bivens have not been employed since their lay-offs. Bryant and Good have been engaged in farming. John Jordan. Jordan was a laborer in the electrical department. He started to work for the respondent on September 1, 1936, and joined the Union on October 11, 1937. Thereafter he was ap- proached by both Ebarb and Anding to join the Association. And- ing told him, on November 9, that unless he did so, he would be out of a job. He was laid off on November 11. The respondent retained for work similar to Jordan's one Arthur Mack an Associa- tion member, who was not employed in this capacity until subsequent to September 22, 1937.49 Jordan has not been regularly employed since his lay-off. d. Conclusions with respect to the discrimination against employees working as "common laborers" The respondent's contention of completion of work previously performed by common laborers is more tenable than its same con- tention with respect to the work of employees not designated as common laborers. The evidence shows that much of the work col- lateral to sulphur production was common labor and had been finished on November 11. Then followed the lay-offs in November of the employees listed in Appendix B. We attribute the lay-off of the employees listed in Appendix B to a decrease of work previ- 49 Jordan had always been used in the electrical department. In Wilson's letter of September 22, 1937, he stated that there was but one colored helper in the electrical depart- ment. Since two were employed on November 11 when Jordan was discharged, it is apparent that Mack was not placed in this department until sometime after September 22. JEFFERSON LAKE OIL COMPANY, INCORPORATED 395 ously performed by them, and we find that their lay-offs in Novem- ber did not constitute discrimination within the meaning of the Act.-I0 Those laid off retained their status as employees within the mean- ing of the Act."1 Although laid off, the employees had a reasonable expectation of being recalled for work with the respondent when work in the future became available. Indeed, these employees con- tinuously held themselves in readiness to come to work for the re- spondent when the need for common labor arose. The respondent, in turn, instituted the practice of seeking them out, rather than requiring any application for work as a condition precedent to re- employment. Although the employees listed in Appendix B were properly laid off, the record is clear, and we find, that the respondent refused to reemploy these employees because of their membership in the Union and their failure to display sufficient interest in the Association. On December 9, 1937, the respondent commenced hiring new em- ployees as common laborers. Not a single employee who had previ- ously worked for the respondent as a common laborer and who was laid. off in November was hired by the respondent in December 1937 and January 1938. Although Wilson testified that he told Randon, through whom he hired common laborers, to hire strong and willing men and said nothing concerning their union, sympathies, we find that Randon was guided in the selection of employees according to their affiliation with a labor organization. He announced that the respondent was not reemploying union members, and he refused to rehire them. By the acts and statements of Randon, the respondent is bound. , 60After their lay-offs and discharges, all of the respondent's employees, including those not employed as common laborers, as well as common laborers , filed claims for unemploy- ment compensation benefits with the Texas Unemployment Compensation Commission. On the application forms, many of the employees explained their separation from employment as resulting from it "general reduction in force" or "general lay-off." Since no employee complained that he was laid off or discharged. because of bis,union.membership or activity, the respondent contends that this is an admission precluding a finding of discrimination in lay-offs and discharges. Aside from the fact that we find that the respondent did not discriminate in the lay-offs of the employees listed in Appendix B, but in the refusal to rehire them, the respondent's contention is without merit. When the applications for compensation were made, the employees first apprised the Commission that although the respondent stated that they were released because of a pay-roll reduction, they themselves were of the opinion that they were released because of their union membership and activity. The explanation assigned on the application form was given only after the employees were informed by the Commission's agent that such statement would create less objection by the respondent to their receiving the compensation benefits and that it would in no Ray prejudice their position with respect to the unfair labor practice charges already filed with the Board. Furthermore, the Commission's agent, called as a witness, testified that the "only thing that could be put on the form was that the man was laid off on account of reduction in force." 11 Matter of North Whittier Heights Citrus Association and Citrus Packing House Workers Union, Local No. 21091, 10 N. L. R. B. 1269; Matter of Alaska Packers Association and Alaska Cannery Workers Union, Local No. 5, Committee for Industrial Organization, etc. et at., 7 N. L. R. 13. 141; Matter of Merrimack Manufacturing Company and American Federation of Labor, 9 N. L. R. B. 173. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, because of their union membership and their failure to show sufficient interest in the Association, the respondent no longer considered as reemployable the employees listed in Appendix B, and destroyed their status as "reemployables." Such discrimination discourages union membership. We find that at the time of the hearing, the men listed in Appendix B had not obtained regular or substantially equivalent employment elsewhere. Because of the respondent's practice of notifying these employees, it was not necessary for those employees to make formal application for reinstatement with the respondent.52 We find that by refusing to reemploy the employees listed in Ap- pendix B, the respondent has discriminated against its employees with respect to hire and tenure of employment, thereby discouraging membership in the Union, encouraging membership in the Associa- tion, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Discharges alleged by the respondent to have been made "for cause" Hose Kelly. Kelly started to work for the respondent on Septem- ber 10, 1936, when the respondent first began to construct its plant in Texas. With three interruptions due to lay-offs, Kelly worked until he was discharged on November 14, 1937. He was employed principally as a gardener, but also assisted the porter in general work about the office. At the beginning of his employment with the re- spondent he was earning 18 cents an hour and at the time of his discharge he was earning 30 cents an hour. Kelly joined the Union on October 11. On October 16 Prell handed him an Association membership card to sign and stated, "If you don't sign, you won't have a job long; the Mexicans and the white folks will have it." Although at this time Kelly did not join the Association, he became a member a few days later upon Grace's solicitation. Kelly retained his membership in the Union, however, attending all the union meetings and refusing to attend any of the Association meetings. On November 11 Grace warned Kelly that the "big shots" knew about his "blowing about the union" and pointed out the fact that other employees were being laid off and that since he did his work well, he did not want to lay him off also. On Novem- ber 14 Kelly was discharged. 52 Matter of Atlanta Woolen Mills and Local No . 2307, United Textile Workers o f America, 1 N. L. R. B. 316 ; Matter of Aluminum Products Company, Metal Rolling and Stamping Company, Lamont Stamping Corporation, Banner Stamping Company, and Stainless Steel Products Company and Aluminum Workers Union No. 19064 and Aluminum Workers Union No. 19078, 7 N. L. R. B. 1219. JEFFERSON LAKE OIL COMPANY, INCORPORATED 397 Grace testified that Kelly frequently loafed on the job, and that he was laid off 5 days in September in the hope that he might be cured of loafing. He testified further that he hesitated about letting him go because Kelly was a "pretty old man," and he wished to keep him "as long as we could." Grace admitted, however, that Kelly maintained a good flower garden and that his work was done satis- factorily. In view of the respondent's warning to him to renounce the Union, we do not believe that loafing was the real reason for Kelly's discharge. At the time of the hearing, Kelly was unemployed. We find that the respondent discharged Kelly because of his union membership and activity, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. Willie Thompson. Thompson was employed by the respondent in July 1937, as a common laborer in the field and around the sulphur vats. He was earning 30 cents an hour at the time of his discharge on November 11. Thompson joined the Union on October 11. On October 26, upon Arrington's solicitation, he also joined the Association and later became the president of the colored division of that organization. On November 7 Thompson failed to attend a division meeting. Prell, who frequently attended division meetings, noticed his absence, and the following day questioned him about it. Three days later Thompson was discharged. Prell testified that Thompson was laid off for loafing. However, it does not appear that Thompson had ever been admonished concern- ing his work, and when he was discharged no reason was given for his dismissal. Several days later, Prell told Thompson that he was released because he was "talking against the company union for the other side . . ." At the time of the hearing, Willie Thompson was unemployed. We find that the respondent discharged Thompson because of his union membership and activity and because of his failure to evince sufficient interest in the affairs of the Association, thereby discourag- ing membership in the union, and interfering with, restraining, and coercng its employees in the exercise of the rights guaranteed by Section 7 of the Act. George Mariast. Mariast was hired by the respondent on Septem- ber 7, 1932, having been transferred to Texas from Louisiana when the respondent expanded its operations in 1936. He was employed as a driller and driller's assistant at a wage of $8.80 daily. He be- came a member of the Union on October 5. Mariast was discharged on November 17, about the time that the respondent dismissed a number of its other. employees allegedly 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of work reduction. The respondent asserts that Mariast was discharged for directing derogatory remarks at Jaquet, the respond- ent's assistant superintendent. On November 15, Mariast was in charge of operating a derrick, assisted by George Spiller, Rick Rockenbaugh, and Henry Guidry. When two members of Mariast's crew commenced- arguing whether an automobile which had' stopped about a quarter of a mile away belonged to Jaquet, at a moment when the derrick required attention, Mariast allegedly referred to Jaquet in obscene terms. On Novem- ber 17 Wilson told Mariast that he had, a "100 per cent a ecord," but that for cursing Jaquet, he was discharged. Mariast denied the charge and requested, without success, that he be confronted by his accusers. The record does not reveal how the respondent was first apprised of the incident of November 15. Rockenbaugh, an Association mem- ber, testified that Wilson called him into the office and asked, "Did I know anything about anybody talking about anybody . . . that would cuss anybody about anything." Thereafter, it appears that Ebarb, founder of the Association, secured a statement from Rockenbaugh and Spiller, a union member, that Mariast had, in fact, cursed-J.aquet. Spiller testified that he at first refused to sign the statement on the ground that he had not heard what Mariast had said, but signed it when Ebarb added, "Well, later on, 'it might help protect your job if you would sign it." Why Ebarb should have taken such an inter- est in an affair with which he should have had no concern, was not explained in the record. Mariast denied uttering the epithet attributed to him. Bell testified that profanity was "very common" among the re- spondent's employees, and that he knew of no one who was discharged for the use of it, or for cursing a superior. It is plain that the respondent seized upon a pretext to discharge Mariast because of his union affiliation. At the time of the hearing, Mariast was unemployed. We find that the respondent discharged Mariast because of his union membership and activity, thereby discouraging membership in the Union and interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act. Bill Knowles. Knowles was hired by the respondent on April 23, 1937, and at the time of his discharge on December 10, 1937, was earning 55 cents an hour. He became a member of the Union on October 9, 1937. Knowles was a "bleed water" tender whose duties required him to look after the proper functioning of the "bleed water" pumps JEFFERSON LAKE OIL COMPANY, INCORPORATED 399 connected with the reservoir. Defective pumps were to be reported, though not repaired, by him. Knowles described the incident lead- ing up to his discharge as follows : On about December 8, after reporting to Lebeuf that the reservoir was high, and being told to open up.-the pump and clean it out, he did so, and reported back to Lebeuf that the pump was "0. K." On December 10 Lebeuf exam- ined the pumps, noticed that the propellers in the pump were "eaten up," and stated, "it looks like you ought to know when a pump is worn out, Bill." On the afternoon of December 10, Lebeuf told Knowles that he would have to let him go and get a man of more experience. Lebeuf testified that Knowles was discharged because of "lack of knowledge to recognize the defective pump." The record affords insufficient basis for a finding that the respond- ent has discriminated against Knowles in regard to ' his hire and tenure of employment. We shall accordingly dismiss the allegations of the complaint in so far as they relate to Knowles. Sidney Fletcher,- Abe Mack, Frank Lipken, and Ben Mack. These employees began to work for the respondent in the latter part of 1936 and- early' in 1937 as common laborers. When they were dis- charged on December 13, 1937, they were digging mud pits under the immediate supervision of John Dollery. Each earned 30 cents an hour. All became members of the Union on October 11. About October 16 Prell told Fletcher that if he did not become a member of the Association, he would be discharged.. At about the same time, Dollery made remarks of similar import to Ben Mack. Fletcher testified, without contradiction, that in the latter part of October, Dewey Wilson warned them to attend Association meetings if' they wished to, retain their jobs. None of these employees became members of the Association, however, and it appears that none at- tended Association meetings. On December 12 Ambrose Goodwin, a member of the Association, pointed out these four employees to Dollery as being members of the Union. On December 13 they were discharged. Dewey Wilson testified that he discharged Fletcher, Abe and Ben Mack, and Frank Lipken because he could not get them to do their work. He testified that on December 13 lie warned them twice about loafing, and that a third time, when he observed that they were still "killing time," he discharged them. Although Dewey Wilson stated that he "had to be on those men all the time," he could not remember any instance previous to December 13 when he had. warned them regarding their conduct. Dollery, who was in immediate charge of the four employees, had never complained to.Dewey Wilson con- cerning their work. At the time of the hearing, Fletcher, Abe and Ben Mack, and Lipken were unemployed. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent discharged Fletcher, Abe Mack, Lip-. ken, and Ben Mack because of their union membership and activity, and failure to evince -sufficient interest in the affairs of the Associa- tion, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. George Spiller and Henderson Johnson. Johnson commenced working for the respondent in April 1937, and Spiller in July 1937. Both were employed in the field as common laborers, digging ditches, slush pits, and working about the sulphur vat. At the time of their discharge on December 14, 1937, they were earning 30 cents an hour: Both became members of the Union on October 11. On October 16 Prell enrolled them in the Association. A few days later, however, Spiller withdrew from membership. On December 14 Prell stated to them that they were loafing on the job, and discharged them forthwith. Prell testified, without denial, that he had warned them before concerning their idleness,-but that they did not improve in their work. - The record does not show that the respondent has discriminated against Spiller -and Johnson in regard to their hire and tenure of employment. We shall . accordingly dismiss the allegations of the complaint in so far as they relate to Spiller and Johnson. George Bivens. Bivens began to work for the respondent in No- vember 1936.. At the time of his discharge on January 23, 1938, he was a helper on a tractor, under Dewey Wilson's supervision. His earnings were 30 cents hourly. He joined the Union on October 11, 1937. - In October 1937 Arrington approached him and stated that in order to retain his job with-the respondent, it would be necessary for him to become a member of the Association. Bivens, however, re- fused to join. On the evening of January 22, George Potvin, a member of the Association and driver of the tractor on which Bivens was assigned as helper, reported to Dewey Wilson that he did not want Bivens with him any longer because Bivens failed to get off the tractor to do his work, and that "he made it hard on the other boys." On January 23, 1938, Dewey Wilson told Bivens to "go home." Bivens testified that he never refused to get off the tractor, but "when there was enough for two of us, I would get down and, do it, but when there was not, one of us would stay on there." The record does not show that the respondent has discriminated against Bivens in regard to his hire and tenure of employment. We shall accordingly dismiss the allegations of the complaint in so far as they relate to Bivens. ' JEFFERSON LAKE.OIL' COMPANY, INCORPORATED 401 IV.' THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON • COMMERCE We find that the activities of the respondent set forth in. Section III, A, B; and C, above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic,' and commerce among.the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. • THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order that it cease and desist therefrom and that it take certain affirmative action which will effectuate the policies of the Act. We have found that the respondent- has dominated and interfered- wit h the formation'and administration of the Association and has contributed support to it. Its continued- existence is a consequence of a violation of the Act.58 In order to effectuate the policies of the- Act and free the employees of the respondent from such domination and interference, and the effects thereof, which constitute a continu- ing obstacle to the exercise by employees of the rights guaranteed them by the Act, we will order the respondent to withdraw all recog- nition from and completely disestablish the Association as repre- sentative of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. It follows that the respondent must cease giving effect to its contract of Novem- ber 16, 1937, with the Association, any renewals or extensions thereof, and any new contract concerning grievances, labor disputes, rates of pay, wages, hours of employment, or conditions of work which it may have made with the Association. We'have found that the respondent has engaged in unfair labor practices by discharging Thomas. We shall order the respondent to offer him immediate reinstatement to his former position and to make him whole for any loss of pay he may have suffered by reason of his discharge, by payment to him of a sum equal to the amount 53 Matter of Pennsylvania Greyhound Lines, Inc., etc., and Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 1 N. L. R. B. 1, aff'd., National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261 ; Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No. 502, 6 N. L. R. B. 171, aff'd. , National Labor Rela- tions Board v. Stackpole Carbon Co., 308 U. S. 605. Cf. Matter of Consolidated Edison Company of New York, Inc., etc. et al., and United Electrical and Radio Workers of America affiliated with the Committee for Industrial Organization, 4 N. L. R . B. 71, aff'd. as mod. Consolidated Edison Co . et al . V. National Labor Relations Board et al ., 305 U. S. 197. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which he normally. would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period.5' We, have also found that the respondent has engaged in unfair labor practices in discriminatorily discharging and refusing to rein- state the employees listed in Appendix A. As to these employees, the record shows that all the positions formerly held by them -may not be immediately available due to a reduction in work at the time that they were discharged and ref used reinstatement. The record further shows, however, that other positions were available at the respondent's plant for which these employees were qualified and for which the respondent needed employees. These positions were as- signed to the employees listed in Appendix D, whom the respondent hired on October 24, 1937, and thereafter. We have found that such available work for which the respondent hired the employees listed in Appendix D would have been assigned to an appropriate number of the employees listed in Appendix A had it not been for their union membership and activity and their lack of interest in the Association. To effectuate the policies of the Act, in so far as possible, the respondent will be required to reinstate the employees listed in-Ap- pendix A to such positions as they would now be occupying, if the respondent had not discriminated against them. We will therefore order the respondent, in so far as possible, to offer to the employees listed in Appendix A reinstatement to their former or substantially equivalent positions, or, if no such positions be available, then to any positions for which they may be qualified. The offer of reinstatement shall be without prejudice to their former rights `and privileges. Such reinstatement shall be effected in the following manner : All of. the employees listed in Appendix D, and any other employees not listed thereon who have been hired after October 23, 1937, and who, as in. the case of the employees listed in Appendix D,. occupy the former positions of the employees listed in Appendix A, or sub- stantially equivalent positions or positions for which they may be qualified,55 shall be dismissed if necessary to provide employment for those to be offered and who accept reinstatement. If thereupon, by reason of a reduction in force, there is not sufficient employment 54 By "net earnings " is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects are not considered as earnings, but as provided below in the Order, shall be de- ducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. 16 These employees will be referred to hereafter as new employees. JEFFERSON LAKE OIL COMPANY, INCORPORATED 403 immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union membership or activites, follow- ing a, system as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such dis- tribution, for whom no employment is immediately available, as well as those employees who are reinstated, not to substantially equivalent positions, but to :positions for which they may be qualified, shall be ,placed-upon a 'preferential• -listprepared' in accordance with the principles set forth in the preceding sentence, and shall thereafter be reemployed in their former or substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. We have found that as of the time the employees listed in Appendix A. were discharged and refused reinstatement, the amount of work available at the respondent's plant had decreased, and that, as a consequence, some curtailment in the respondent's force was expedi- ent. The record does not indicate that the respondent followed any plan of seniority in retaining and rehiring its employees, and it is otherwise impossible to determine from the record which employees the respondent would have retained - in its employ had it not been governed by anti-union and pro-Association considerations in dis- charging and refusing to reinstate them. Under these circumstances, and since several employees may be equally qualified for a single position, which only one• may obtain, to •dward back pay only to those employees who are reinstated immediately according to the terms of our order, to the exclusion of those employees who are not reinstated because of the lack of immediate available employment, would result in a disparity of treatment of employees of the same class which the circumstances do not warrant and which our order should avoid in so far as it is possible. We are of the opinion that the purposes of the Act can most equitably be accomplished if the employees who are not immediately reinstated,. but who 'will be placed on e a• prefer- ential . list for reinstatement ..,v'hen.,employment . becomes: available, should share back pay together with those employees who- are imme- diately reinstated. We shall therefore order that back pay be distributed among all the employees listed in Appendix A. The amount to be distributed shall be measured by the earnings received by the new employees 5U from the time, after October 23, 1937, that each was hired by the respondent until the offer of reinstatement as herein ordered. As 16 See footnote 55. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back pay, each* employee listed in Appendix A shall receive that pro- portion of the entire amount to be distributed which his hourly wage At the time{ of the discrimination against him bears to the sum of the hourly wages of all the employees who are named in Appendix A at the time of the discrimination against. them. After such indi- vidual apportionment is made, each claimant's net earnings, as here= tofore defined,.are to be deducted individually from the sum credited to the particular claimant. We have found that the respondent, by refusing to reinstate the employees listed in Appendix B, has discouraged membership in a labor organization and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We have also found that on December 9, 1937, and thereafter, the respondent hired 22 employees to the exclusion of the 17 employees listed in Appendix B. Because it appears that all the employees listed in Appendix B could have been reinstated by the respondent at a time commencing on December 9, 1937, the con- siderations which impelled us to modify our usual back-pay order with respect to the employees listed in Appendix A are here lacking. Therefore, our usual grder will be appropriate. In order to remedy the effects of the unfair labor practices with respect to the employees listed in Appendix B, we shall order the respondent to reinstate such employees in the following manner : All common laborers hired on or after December 9, 1937, irrespective of the fact that they may have previously been in the respondent's employ, shall, if necessary to provide. employment for those to be offered reinstatement, be dis-- missed. ' If, thereupon, by reason of a reduction in force there is not sufficient employment available for the remaining employees, includ= ing those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual method of reducing its force, without discrimina- tion'against any employee because of his union affiliation or activities. Those employees remaining after such distribution, for whom no em- ployment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the pre- ceding sentence, and shall thereafter, in accordance with such, list, be offered employment in their former or substantially equivalent posi- tions, as such employment becomes available and before other persons are - hired for such work. We shall also order the respondent to make the employees listed in Appendix B whole for any loss of pay they have suffered by reason of the respondent's refusal to reinstate them by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of the respondent's refusal to reinstate: JEFFERSON LAKE OIL COMPANY, INCORPORATED ' 405 .him, to the date of offer of reinstatement, less his net earnings 67 during said period. _ We have found that the respondent has engaged in unfair labor practices by discharging the employees listed in Appendix C. We shall order the respondent to offer them immediate reinstatement to their former positions and to make them whole for any loss of pay they may have suffered by reason of their discharges, by payment to. each of them of a suin equal to the amount which each normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less the net earnings of each during said period.58 The Trial Examiner in his Intermediate Report recommended that the respondent deduct from back pay, and pay over to the Texas Unemployment Compensation Commission, the total amount of the benefits paid by the Commission to the employees who were dis- criminated against. To this recommendation the respondent 'ex- cepted. In accordance with our decision in Matter of Pennsylvania Furnace and Iron Company and Lodge No. 1328, International Asso- ciation of Machinists,59 and for the reasons therein stated, no deduc- tion from back pay will be made on account of unemployment com- pensation benefits. Upon the basis of the above findings of fact and upon the entire record' in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Sulphur Workers Union No. 21195 and Employees Independent Protective Association are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering. with the formation and adminis- tration of Employees Independent Protective Association and con- tributing support thereto, the respondent has engaged in and is engag- ing in unfair.labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of G. E. Thomas and the employees listed in Appendices A, B, and C, thereby .discouraging membership in Sulphur Workers Union No. 21195 and .encouraging membership in the Employees Independent Protective .Association, -the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its-employees in the exercise of the rights guaranteed by Section 7 of the Act, the re- 69 See footnote 54. 51 See footnote 54. 19 13 N. L. R. B. 49. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not discriminated and is not discriminating in regard to the hire and tenure of the employees listed in Appendix E, and has not engaged in and is not engaging in unfair labor prac- tices, within the meaning of Section 8 (3) of the Act, with regard to them. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Jefferson Lake Oil Company, Inc., and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Em- ployees Independent Protective Association, or with the formation or administration of any other labor organization of its employees, and from contributing support to Employees Independent Protective Association or any other labor organization of its employees; (b) Recognizing Employees Independent Protective Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay,,wages, hours: of, employment', or_^other conditions,,.of;.emp]oyri ent (c) Giving effect to its contract of November 15, 1937, with Em- ployees Independent Protective Association, any renewal or extension thereof, or any new contract concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of em- ployment, which it may have made with Employees Independent Protective Association subsequent to November 15, 1937; (d) Discouraging membership in Sulphur Workers Union No. 21195, or anyother:labor organization of its employees, by discharging or refusing to°reinstate°any of'its employees,'or in any Other'inahner discriminating in regard to their hire and tenure of employment or any term or condition of employment because of their membership or activity in Sulphur Workers Union No. 21195, or any other labor organization of its employees ; (e) Giving effect to the individual contracts of employment herein found to have been executed or any renewal thereof ; (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self -organization, to form, JEFFERSON LAKE OIL COMPANY, INCORPORATED 407 join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining and other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Employees Independent Pro- tective Association as a representative of its employees for the pur-. pose of dealing with the respondent concerning 'grievances, labor .dis- putes, rates of pay, wages, hours of employment, or other conditions of employment ; (b) Offer to G. E. Thomas immediate and full reinstatement to his former position, without prejudice. to his former rights and. privi- leges ; ' (c) Offer to those employees listed in Appendices A, B, and C,. immediate and full reinstatement to their former or substantially' equivalent positions, or to positions for which they are qualified in the manner set forth in the section entitled "Remedy", above, placing those employees for whom * employment is-not immediately available and those who although reinstated are reinstated not to substantially equivalent positions but to positions for which they are qualified, upon a preferential list in the manner set forth in said section; (d) Make-whole G: E. Thomas for any loss of pay he has-suffered by reason of his discrinzinatory discharge by payment td hiih of a sum of money equal to' that which he normally would have earned as wages from the date 6f,-his discharge to the date he is'offered rein- statement, less hik net earnings during that period, provided, how- ever, that the respondent' shall deduct from the amount otherwise due him, monies received by Thomas during said period for work per- formed upon Federal, State, county, municipal, or other work=relief projects, and pay: over the amount, so deducted to the appropriate fiscal agency of the Federal, State, county,, municipal, or other gov- ernment or governments which supplied the funds for said work- relief projects ; '(e) Make whole the, employees listed in Appendices A, B, and-. C, for any loss of pay they may have suffered by reason of their respec- tive discharges. and refusals. to reinstate, by payment to each of -them of a sum of money equal to.an, amount determined in the manner' set forth in the section entitled "The Remedy," above, provided, how- ever, that the respondent shall deduct from the amount otherwise due them, monies received by them during said periods for' work per- formed upon Federal, State, county, municipal, or other work-relief 247383-40-vol. 16--27 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD projects, and pay: over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other gov- ernment or governments which supplied the funds for said work- relief projects; (f) Immediately post notices to its employees in conspicuous places throughout its plants and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, ' stating , that the respondent will cease and desist in the manner set .forth in 1. (a), (b), (c), (d), (e), and (f) and that it will take the affirma- tive action set forth in 2 (a), (b), (c),. (d), and (e) of this Order; (g). Notify the Regional Director for the Sixteenth Region . in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-. missed in so far as it alleges with regard to the persons named in Appendix E that the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 'IT; IS FURTHER ORDERED that the complaint be, and it hereby is, dis-, missed in so ,far as it alleges that the respondent has engaged in and is engaging in unfair labor practices within the meaning-of Section 8. (5) of the Act. H. T. Britt J. E. Brooks Edwin Dore Fred Duval O. O. Evans H. S. Goolsby J. M. Goolsby T. J. Gordan C. A. Hearn Samuel Alston Morgan Bivens Sandy Bryant James Chandler Anderson Good Aaron Helm Malachi Jammers Osby Johnson Sherman Johnson APPENDIX A Woodrow Hashaw J. K. Helton Cleomere Leleux Ed Lonis Elvest Pelletier Oliver Romero O. J. Stoutes R. V. Ward Haywood Watson APPENDIX B John Jordan Lee Lipkins Samuel Moore A. M. Thompson Charley Thompson William Robertson Clarence Woodward Jefferson Woodward JEFFERSON LAKE OIL COMPANY, INCORPORATED Sidney Fletcher Mose Kelly Frank Lipken Abe Mack W. W. Arnold F. L. Franek Henry Hudec Edwin Johnson W. S. Jones W. H. Lavender Erven Leblanc George Bivens R. N. Brady Henderson Johnson Bill Knowles APPENDIX C Ben Mack George Mariast Willie Thompson APPENDIX D J. D. Marshall D. S. Morphew J. M. Schwebel J. D. Sloan E. A. West H. F. West APPENDIX E Frank Skotnik Harry Skotnik Joe Skotnik George Spiller 409 MR. WrLLIAM M. LEisExsox took no part in the consideration of the above Decision and Order.