Heyward Granite Co.

In the Matter of M. T. HEYWARD, M. B. HEYWARD, JOHN T. HEYWARD, AND DANIEL HEYWARD, DOING BUSINESS AS HEYWARD GRANITE COM- PANY; ROCKTON & RION RAILWAY; AND THE WINNSBORO GRANITE CORPORATION and AMERICAN FEDERATION OF LABOR, QUARRY WORKERS BRANCH, RION, SOUTH CAROLINA In the Matter of THE WINNSBORO GRANITE CORPORATION and AMERICAN FEDERATION OF LABOR, QUARRY WORKERS BRANCH, RION, SOUTH CAROLINA In the Matter of ROCKTON & RION RAILWAY and AMERICAN FEDERATION OF LABOR, QUARRY WORKERS BRANCH, RION, SOUTH CAROLINA In the Matter of H. G. PHILLIPS, DOING BUSINESS AS DAVIS GRANITE COMPANY, AND PHILLIPS GRANITE COMPANY and GRANITE CUTTERS INTERNATIONAL ASSOCIATION. OF AMERICA AND AMERICAN FEDERATION OF LABOR, QUARRY WORKERS BRANCH, RION, SOUTH CAROLINA Cases Nos. C-779, C-730, C-731, and C-133f3, respectively.Decided December 21, 1939 Quarrying and Granite Processing Industries-Employer: nonapplicability of Act to common carrier subject to Railway Labor Act-Procedure : consolidation of complaints : allegations of unfair labor practices predicated upon interrelated events ; former proceeding : dismissal without prejudice of, involving identical charges, not a bar to determination on merits-Interference, Restraint, and Coercion-Discrinmination : closing plants to discourage union activity-Reinstate- ment Ordered : special remedial order : discharged employees in event respondent, out of business at time of hearing, has since reentered or does in the future reenter the same or a similar business in which discharged employees are qualified to work ; preferential list to be maintained by another respondent who offered to reinstate employees for whom work was available-Back Pay: special remedial order : awarded employees of employer out of business at time of hearing from date of reentry to date of offer of employment ; awarded employees of other respondent from date of failure or refusal to reinstate to date of offer of employment. Mr. Warren Woods and Mr. Alex E. Wilson, Jr., for the Board. Hemphill d Hemphill, by Mr. John M. Hemphill and Mr. Paul Hemphill, of Chester, S. C., for the respondents. Mr. Dick Hudson, Mr. G. Eugene Ivey, and Mr. Irving S. Nathan, of Atlanta, Ga., and Mr. Herbert Thatcher, of Washington, D. C., for the Granite Cutters and Quarry Workers. Mr. Eugene R. Thorrens, of counsel to the Board. 18 N. L. R. B., No. 73. 542 HEYWARD GRANITE COMPANY 543 DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by the American Federation of Labor, Quarry Workers Branch, Rion, South Carolina, herein called the Quarry Workers, the National Labor Relations Board, herein called the Board, by Charles N. Feidelson, Regional Director for the Tenth Region (Atlanta, Georgia), issued its com- plaint dated May 2, 1938, against three respondents : (1) M. T. Hey- ward, M. B. Heyward, John T. Heyward, and Daniel Heyward, doing business as Heyward Granite Company, herein also called Hey- ward; (2) Rockton & Rion Railway; and (3) The Winnsboro Granite Corporation, alleging that the respondents had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.' Copies of the complaint accompanied by notice of hearing were duly served upon the respondents and the Quarry Workers. The complaint alleged in substance: (1) that on or about Novem- ber 18, 1937, the respondents locked out their employees and have failed and refused to reopen their plant and reinstate them because they joined the Quarry Workers; (2) that on or about, and after, November 18, 1937, the respondents threatened to, and did, send their orders to other plants to discourage their employees from form- ing a labor organization and engaging in other union activities; and (3) that by these acts, the respondents interfered with, restrained, and coerced said employees in the exercise of the rights guaranteed in Section 7 of the Act. On May 10, 1938, th6 respondents filed their answers denying, among other things, that they had engaged in the alleged unfair labor practices. Pursuant to notice a hearing was held in Columbia, South Carolina, on May 9, 10, and 11, 1938, before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. On June 24, 1938, the Trial Examiner filed his Intermediate Report. He found that the respondents had engaged in and were engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act., On July 5, 1938, the respondents filed exceptions to the Intermediate Report. Pursuant to notice, a hearing for the purpose of oral argument was held on 1 By order dated April 30, 1938, the Board had consolidated the cases against these three respondents. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 8, 1938, in Washington, D. C. On December 12, 1938, pursuant to Article II, Section 38 (d), of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board or- dered that the hearing, including the testimony, evidence and exhibits, motions, and the rulings and Intermediate Report of the Trial Examiner be set aside and stricken from the record, that a new hear- ing be held, and that, the proceedings be remanded to the Regional Director for the purpose of conducting a new hearing. Upon charges and amended charges, subsequently filed by the Quarry Workers and Granite Cutters International Association of America, herein called the Granite Cutters, the Board by its Regional Director for the Tenth Region issued its complaint, dated April 5, 1939, against the respondents, H. G. Phillips, doing business as Davis Granite Company, and Phillips Granite Company, alleging that the respondents had engaged in and were engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. Copies of the complaint accompanied by notice of hearing were duly served upon the re- spondents, the Quarry Workers, and the Granite Cutters. With respect to the unfair labor practices, the complaint against H. G. Phillips and Phillips Granite Company alleged in substance : (1) that on or about November 18, 1937, H. G. Phillips closed his plant and locked out 20 named employees and thereafter failed and refused to reopen his plant and reinstate said employees because of their union activities; (2) that on or about January 1, 1938, Phillips Granite Company acquired the assets and obligations of H. G. Phillips, and has since carried on his business, and has acted in his interest, and as his successor; (3) that Phillips Granite Company has failed and refused to reopen its plant and reinstate said employees because of their union activities; and (4) that on or about, and after, November 15, 1937, the respondents, by threats, intimidation, and other acts, interfered with, restrained, and coerced said employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 12, 1939, the respondents filed their answers denying, among other things, that they had engaged in the alleged unfair labor practices. By orders dated April 30, 1938, January 27, 1939, and April 8, 1939, the cases involving the five respondents were consolidated for the purpose of hearing and for all other purposes. Pursuant to notice, a hearing was held in Columbia and Chester, South Carolina, from April 17 to 21 and April 24 to 26, 1939, inclu- sive, before Horace A. Ruckel, the Trial Examiner duly designated by the Board. The Board and the respondents were represented by counsel and participated in the hearing. The Granite Cutters ap- HEYWARD GRANITE COMPANY 545 peared by representative. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing, the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the opening and at the close of the hearing, the respondents moved to dismiss the proceeding. The Trial Examiner reserved rul- ing thereon. On July 22,1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. He denied the motions to dismiss and found that the respondents, with the excep- tion of The Winnsboro Granite Corporation, had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that Heyward, Rockton & Rion Railway, H. G. Phillips, and Phillips Granite Company, cease and desist from their unfair labor practices and, affirmatively, that Heyward, Rockton & Rion Railway, and Phillips Granite Company offer reinstatement with back pay to their locked-out employees. The Trial Examiner found further that The Winnsboro Granite Corporation did not en- gage in unfair labor practices. The Trial Examiner made no recom- mendations concerning back pay or reinstatement with respect to H. G. Phillips. Exceptions to the Intermediate Report were filed by the respond- ents, the Granite Cutters, and the Quarry Workers on August 14, 1939. The Granite Cutters and the Quarry Workers filed a joint brief on September 14, 1939. Pursuant to notice, a hearing was held before the Board on October 12, 1939, in Washington, D. C., for the purpose of oral argument. The respondents, the Granite Cut- ters, and the Quarry Workers were represented by counsel and par- ticipated in the hearing. The respondents contend that the cases herein involved were con- solidated improperly. We find that consolidation was proper be- cause of the interrelationship of the events upon which the allega- tions of unfair labor practices by the respondents were predicated. We find, further, that the respondents were not prejudiced by such consolidation. Heyward and The Winnsboro Granite Corporation contend that the present proceeding is barred as to them because they filed with the Board a document known as "Notice of Appeal and Statement of Exceptions" in another Board proceeding against them assertedly involving identical charges and allegations. Inspection of the 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board docket as to this other proceeding reveals that following a hearing the Trial Examiner dismissed it without prejudice. Clearly nothing in this other proceeding precludes our making a deter- mination on the merits in the instant proceeding. The Board has considered the exceptions of the respondents and the unions and the brief of the unions, and, save as the exceptions are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case the Board makes the following : FINDINGS OF FACT 1. THE RESPONDENTS AND THEIR BUSINESS The Winnsboro Granite Corporation and Phillips Granite Com- pany, except in so far as either or both may be an agent, successor, or assign of one or more of the other respondents, are not employers within the meaning of Section 2 (2) of the Act of _ any employees involved in this proceeding. We shall accordingly dismiss the com- plaint as to The Winnsboro Granite Corporation and Phillips Granite Company, except in so far as any order in this proceeding may apply against either or both as the agent, successor, or assign of one or more of the respondents subject to such order.2 Rockton & Rion Railway, a common carrier by railroad, partici- pating in the transportation of freight from one State to another, is, except in so far as it may be an agent, successor, or assign of another of the respondents, subject to the Railway Labor Act 3 and, therefore, with such exception, is.not an employer within the mean- ing of Section 2 (2) of the Act. We shall accordingly dismiss the complaint as to Rockton & Rion Railway, except in so far as any order in this proceeding may apply against it as an agent, successor, or assign of one or more of the respondents subject to such order. Heyward Granite Company is a partnership engaged in the quar- rying and sale of granite at a place known as the Anderson Quarry, located about 10 miles south of Rion, South Carolina. During 1937 Heyward sold approximately 175,000 cubic feet of granite. It shipped 45.4 per cent of this material to States other than South Carolina. From June 1 to December 1, 1937, Heyward purchased supplies valued at $22,861, of which approximately one-third in value represented purchases made outside the State of South Caro- 2 Cf. National Labor Relations Board v. Hopwood Retinning Co., Inc., 98 F. (2d) 97 (C. C. A. 2) enf'g. in part Matter of Hopwood Retinning Co., Inc. and Monarch Retinning Company, Inc. and Metal Polishers, Buffers and Platers' International Union, Local No. 8, and Teamsters Union, Local No. 584, 4 N. L. R. B. 922. 8 44 Stat. 577, as amended , 48 Stat. 1185, 45 U. S. C. A.; Cf. United States v. Union Stockyard d Transit Co. of Chicago, 226 U. S. 286 ; Bremner et al. v. Mason City & C. L. R. Co., 48 F. (2d) 615 ;United States V. Illinois Terminal, 168 F. 546. HEYWARD GRANITE COMPANY 547 lina. Heyward had approximately 75 production workers on its November 17, 1937, pay roll. H. G. Phillips, doing business as Davis Granite Company, engaged in the finishing and sale of granite monuments and markers at a shed in Rion, South Carolina. H. G. Phillips, through Davis Granite Company, shipped finished products valued at a total of approxi- mately $35,230.01 during 1937. Approximately $7,814.61 in value of these finished products were shipped outside the State of South Carolina. About November 17, 1937, H. G. Phillips ceased doing business as Davis Granite Company; the shed at Rion was closed; part of the machinery was stored therein; part of it was sold to an outside company; and the stock of granite and supplies was sold to Phillips Granite Company, a corporation organized and con- trolled by H. G. Phillips and owned by him and members of his wife's family. H. THE ORGANIZATIONS INVOLVED Granite Cutters International Association of America and American Federation of Labor, Quarry Workers Branch, Rion, South Carolina, herein jointly called the Union, are labor organizations affiliated with the American Federation of Labor. The Union admits to membership employees of the respondents. III. THE UNFAIR LABOR PRACTICES A. The background as to Heyward E. E. Hammond, locomotive engineer on the Rockton & Rion Rail- way, testified that sometime in 1934 Daniel Heyward, partner in and general manager of Heyward, stated to him : ... There will never be a union here. There never has been. [My father] would not allow it and [I] would not allow it. Daniel Heyward denied having made this statement. On the basis of the entire record we credit Hammond and find, accordingly, that Daniel Heyward, in substance, made the statement attributed to him. William R. Ashford, a Heyward foreman, testified, and we find, that he had the following conversation in July or. August 1937 with one Castle, superintendent of Heyward, with reference to an employee who had absented himself from work without permission : "... We ain't working anybody who belongs to the union 4 at all. I am going to run him off if he comes back." Castle was not called as a witness. 4 This was not a labor organization involved in the present proceeding. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The union meeting Preliminary arrangements having been made on November 13, 1937, and notice given by word of mouth, Leo B. Carter, Fred E. Hatchell, and R. S. Denny, organizers of the Union, conducted a meeting at a place known as Rutland's Store in Rion, South Caro- lina,r, on the evening of November 17, 1937.. Approximately 100 employees signed applications for membership in the Union at this meeting. Carter testified that immediately before the meeting began E. Fowler, a Phillips Granite Company foreman, approached Carter inside the store and told him that some gentlemen wished to see him outside; that there he met W. K. Setzer, a Heyward foreman, S. D. Banks, a Rockton & Rion Railway foreman, and Earl Isen- hower,6 an independent contractor who did work on various occa- sions for the respondents with employees furnished by them ; and that they 'told him that ... Mr. Heyward's father ... some 20 years before, when the union came into that section, had closed the sheds down, and let them rot, because the workers there joined the union, and if [the union representatives] organized the workers that the same thing would happen again ... it would be to the best of my interests and the other two organizers ... not to attempt to organize the workers there that night .. they would not be responsible for what would happen if [we] did organize them ... [we] would probably be hurt and if [we] did go ahead and organize them anyway, that the workers would be locked out by Mr. Heyward ... Although Banks and Isenhower denied that these threats were made, they admitted that a conversation took place, asserting that it was limited to an inquiry by Fowler as to the Union's requirements with respect to apprentices. Neither Fowler nor Setzer was called to testify. During the course of the meeting Carter called the assembled em- ployees' attention to the presence of these three foremen and Isen- hower and told them that the supervisory employees had threatened him for attempting to form a labor organization. None of the four denied at the meeting that they made the threats. In view of the credible testimony of Carter, the failure of Setzer and Fowler to testify, the incredible explanation of Banks and Isenhower as to the subject of the conversation, and the circumstances surrounding the conversation, we find that Fowler, Setzer, Banks, and Isenhower, in substance, made the statements attributed to them by Carter. 6 Approximately 60 persons , many of whom are employed by the various respondents, live in Rion. 0 Also referred to in the record as Isenhouser. HEYWARD GRANITE COMPANY 549 C. The Heyward shut-down On November 17, shortly before the union meeting hereinabove de- scribed, Daniel Heyward, Roy Shaw, a Heyward employee and secretary of the Union, and C. E. Glover, Heyward bookkeeper, were riding in an automobile. Shaw testified that during this trip Daniel Heyward stated to Glover that Heyward would "shut down everything" if the employees formed a union. Glover did not testify. At the hearing Daniel Heyward denied that he made this statement or that he knew of any union activity by the employees at this time. The Trial Examiner, who had an opportunity to observe the demeanor of the witnesses, did not credit these denials. In view of the credible testimony of Shaw, the presence of supervisory employees at the meeting, and the other circumstances in the record, we find that Daniel Heyward in substance made this statement attributed to him. On the next morning, November 18, 1937, a breakdown occurred in the electric-power equipment at the quarry. Upon reporting for work the Heyward employees were told of the disruption in the transmis- sion of electric power and were instructed to wait. Later that morning Superintendent Castle sent the employees home pending further notice from him. The quarry closed down that day and did not reopen until February 1938. On November 22, 1937, Hammond met Daniel Heyward at the Anderson Quarry. According to Hammond's testimony he stated that he intended to look for another job; and Heyward replied that "that was a good idea because" Heyward "did not know what the damn Union was going to do." Although Daniel Heyward testified that he "never made any statements about the Union to anyone" he did not deny specifically that he made this statement. We credit Hammond and find that Daniel Heyward in substance made the statement attributed to him. In a discussion concerning the Union with William R. Ashford about a month after November 18, 1937, Superintendent Castle stated that he "was not going to join it because there wasn't going to be any union over there in that part of the country as long as the Heyward name was attached to it." Since Heyward sells its products principally to dealers in the northerly States, its production is seasonal and declines in the winter months when the ground cannot be easily broken for setting monu- ments. Heyward contends that, because of the start of the slack season and because conditions were adverse, it contemplated closing the Anderson Quarry about November 20, and that it discontinued operations on November 18 because of the breakdown in its electrical 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equipment which prevented the conduct of "channel bar" 7 drilling operations in the quarry. While the evidence tends to support Heyward's contention that because of adverse business conditions it would have been required to close the Anderson Quarry some time in November 1937 or shortly thereafter, we are convinced that the shut-down on November 18, 1937, was premature and not caused by the disruption of its electric power. . Daniel Heyward testified that Heyward had no orders or further work on November 18. We cannot credit this testimony. Heyward's order books were not introduced in evidence. Moreover, Daniel Hey- ward's testimony that before the opening of business on the morning of November 18, he contemplated shutting down about November 20, indicates that Heyward had orders on November 18 or that certain work preparatory to a seasonal shut-down remained to be done. In fact, Heyward's purchases of supplies during the first part of Novem- ber approximately equalled its total purchases for the entire preceding month, of October, thus indicating further that an immediate shut- down was not contemplated. Heyward urges that the failure in the electric-power system induced it to shut down because it was unable to use its large air compressor, with which it normally operated the channel bars, without a supply of high voltage electric power.8 On prior occasions when a disruption occurred in the electric power, Heyward utilized a steam boiler for power purposes in the operation of its channel bars. On November 18, however, Heyward made no effort to use the steam boiler. Al- though Heyward urges that the steam boiler was in a defective condi- tion, rendering it unfit for use, the record does not support his con- tention. Heyward had used the steam boiler for power purposes as late as May 1937 and Heyward made no effort on November 18 to ascertain its condition. It was not until about a week after November 18 that Heyward checked the steam boiler to determine its availability for use. Moreover, Heyward did not request the electrician sent by the South Carolina Gas and Electric Company to make power avail- able by emergency or other methods. Indeed, Heyward sent the employees home before the electrician completed the tests necessary to determine the source of the difficulty and the measures needed to correct it. Furthermore, a group of carpenters and helpers working under Foreman Setzer on i;he construction of a shed away from the "'Channel bar" drilling refers to the drilling operations necessary for the separation of huge blocks of rough granite from the mother stone as it is found in the natural state. 8IHeyward does not claim that the failure of the power equipment restricted its supply of electricity for the operation of its smaller air compressors , for lighting, or for other purposes not requiring high voltage electric power. IIEYWARD GRANITE COMPANY 551 Anderson Quarry did not require a supply of current. Yet Heyward discontinued their activities also on November 18. Finally, the An- derson Quarry resumed operations in February 1938, before the power company repaired the electrical equipment, and engaged in "cleaning- up" and other work, which likewise could have been done during the remainder of the month of November without the use of high voltage electrical power. Thus Daniel Heyward announced his determination not to "allow" a union to organize his employees and Superintendent Castle threatened to discharge an employee because of union membership. Moreover, shortly before the meeting whose purpose was the forma- tion of the Union, Daniel Heyward declared that Heyward would shut the quarry if the employees formed a union. Further, at the very time in which the Union was holding its organizational meeting, Heyward, through Foreman Setzer, threatened to injure the union organizers and to lock out the employees if the Union proceeded with its membership campaign. The following day Heyward shut down the quarry. Also, 4 days thereafter Daniel Heyward informed Ham- mond that it "was a good idea" for Hammond to look for another job because he did not "know what the damn Union was going to do." Finally, the facts relating to the customary mode of operating the Anderson Quarry and the circumstances surrounding the suspension of its operations set forth above indicate that Heyward was not moti- vated in shutting down the Anderson Quarry on November 18 solely by the interruption of its supply of electric power or by an alleged lack of work. In view of these circumstances, it is clear, and we find, that Heyward seized upon the afore-mentioned stoppage of its supply of electrical current and the forthcoming seasonal shut-down as an occasion for locking out its employees on November 18 because they had just formed the Union. D. The H. G. Phillips shut-down H. G. Phillips started preparations for a shut-down on November 18, 1937, when his employees were instructed by their supervisor to dis- continue their ordinary duties of cutting, polishing, and finishing, and to commence loading granite on railroad cars. Some of the H. G. Phillips employees were directed to "double up" in order to finish certain monuments. The next day, W. W. Neal, H. G. Phillips' man- ager, asked Willie Chappell, H. G. Phillips' employee, whether he had attended the November 17 union meeting and, when he replied in the negative, Neal assured Chappell that if he "stayed with" Neal, Neal would "be with" Chappell. On November 20, 1937, A. C. Morgan, H. G. Phillips' foreman, notified the employees of an indefinite lay- off and the Rion shed ceased operations. A portion of the monuments 283029-41-vol. 18--30 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were delivered to customers in a semi-finished state. The remainder was sent to Phillips Granite Company for completion. H. G. Phillips had lost about $5,000 in the conduct of his business at the Rion shed during 1937, and intended to close the shed some time in November 1937, or shortly thereafter because of lack of business. It was not, however, until about January 1, 1938, that he decided not to reopen the Rion shed again. Since H. G. Phillips did not actually close the Rion shed until after November 20 and because of the unexplained absence of Neal at the hearing, we do not give credence to H. G. Phillips' testimony that about noon on November 17 he directed Neal to suspend opera- tions at the Rion shed at the close of business on November 18. H. G. Phillips testified further that he had no knowledge of the union meet- ing prior to November 18, that at that time he was apprised of it by a companion while away on a hunting trip, and that he did not return to Rion until after the Rion shed had closed. Whether or not H. G. Phillips, himself, was aware of the proposed holding of the union meeting or whether he was apprised of the meeting immediately there- after, appears to be of no consequence. It is undenied that Neal, who was in complete charge of this respondent's business, at least in the absence of H. G. Phillips, was fully aware of the meeting and the respondent is chargeable with his knowledge. Phillips Granite Company, controlled by H. G. Phillips, also had a finishing shed about 500 yards from the Anderson Quarry. This shed closed at the same time that Heyward did and for the same asserted reason. We have found, however, that the Heyward shut- down was not due to lack of business or available work, but that Hey- ward used the interruption in its electrical power supply on November 18 as a pretext to discontinue operations that day when it learned of the employees' union activity. It appears further that November 18 was not a regular pay day for Phillips Granite Company and that its foreman, one Threadgill, in explaining on November 18 why the plant was being closed during a period intervening between regular pay days, stated to H. L. Lee, a Phillips Granite Company employee : "Heyward and Phillips had thrown a damn fit that morning so they just decided to pay off and shut down." 11 As we have noted above, Heyward shut down its quarry on. Novem- ber 18, 1937, to discourage its employees from engaging in union activities. At the same time and place, Phillips Granite Company shut down its shed under circumstances disclosed by the present record 0 Our decision and order in the present proceeding are based solely on the present record. It may be noted, however, In passing, that we found the shut-down of Phillips Granite Company to be a discriminatory Lock-out in Matter of Phillips Granite Company and Granite Cutters' International Association of America and The Quarry Workers' Inter- national Union of North America, affiliated with The. American Federation of Labor, 11 N. 1. R. B, 010. HEYWARD GRANITE COMPANY 553 to be suspicious. We have noted also that H. G. Phillips was the common controller of Phillips Granite Company and of Davis Granite Company and that Fowler, a Phillips Granite Company foreman, on November 17, 1937, threatened the union organizers with bodily harm if the Union continued with its organizational plans and threatened that the sheds would be closed if the Union organized the employees. H. G. Phillips began to shut down the shed at Rion on the day fol- lowing the union meeting and the making of these threats, and on the same day that Heyward and Phillips Granite Company discon- tinued operations. Although the record indicates that H. G. Phillips was losing money in the conduct of the Rion enterprise and would have discontinued operations some time in November 1937 or shortly thereafter in the normal course of events, we are convinced that H. G. Phillips altered the customary mode of operations at the Rion shed to hasten completion of work on hand and sent a portion of the unfinished monuments elsewhere to enable him to synchronize the shut-down of the Rion shed with the union organization of his employees. We con- clude therefore that the shut-down of the Rion shed was a discrimina- tory lock-out. We find that the respondents, Heyward Granite Company and H. G. Phillips, by locking out the employees named in Appendix "A" and Appendix "B," respectively, on or about November 18, 1937, discrimi- nated in regard to their hire and tenure of employment, thereby dis- couraging membership in the Union, and interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents, Heyward and H. G. Phillips, set forth in Section III, above, occurring in connection with the opera- tions of the respondents described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents, Heyward and. H. G. Phillips, have engaged in unfair labor practices we will order that they cease and desist therefrom and that they take certain affirmative action which will effectuate the policies of the Act. We have found that Heyward, by closing its quarry on November 1.8, 1937, unlawfully discriminated in regard to the hire and tenure of employment of the employees on its pay roll on November 17, 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1937.10 Heyward reopened its quarry on or about February 16, 1938. Pursuant to our usual practice, these employees would be entitled to be made whole for any loss of pay they may have suf- fered by reason of Heyward's discrimination against them. From the record it appears that Heyward would have closed its quarry for business reasons shortly after November 18 and we have no means of ascertaining the interval between the day of the unlawful shut-down and the day the shut-down would lawfully have occurred. Because of this and other circumstances in this record, and because of our order in Matter of Phillips Granite Company," we find that ef- fectuation of the policies of the Act does not require a back-pay order for this period in this case. About 2 days before Heyward reopened its plant, Heyward, in a letter addressed to the Union proposed to reinstate applicants for work in the number required for the operation of its quarry.12 In view of this offer we shall not enter any back-pay order against Heyward for a period beginning with its resumption of operations. A number of employees returned to work pursuant to Heyward's letter. Accordingly, no further order of reinstatement is required with respect to these employees. The other employees did not return to work or otherwise act on Heyward's offer. Since Heyward en- gaged in the unlawful shut-down and its letter did not offer reinstate- rnent to all the employees thus discriminated against but only to those employees for whom work was available, we find that the purposes of the Act will be effectuated best by requiring Heyward to place all employees who were locked out and who have not been reinstated on a preferential list, following a system of seniority or procedure to such extent as has heretofore been applied in the conduct of its business, to be offered employment in their former or sub- stantially equivalent positions as such employment becomes available and before other persons are hired for such work. 13 If Heyward should hereafter fail or refuse to reinstate one or more of these employees, in accordance with the principles set forth above, 10 The record indicates that Clarence Dorsey, Harold Richardson, Hezekia Roof, and Josh Cook, who testified at the hearing , were employed on November 17, 1937, in the Heyward Quarry by Sam Cook , an independent contractor. We find that they were not employees of Heyward. 11 See footnote 9, supra. 13 Roosevelt Chappell, a Heyward employee, testified that some time in the spring of 1938 he found Superintendent Castle recruiting help among a group of men standing on the street in the town of Winnsboro ; that, as he was passing the group , Castle called him and inquired whether Chappell belonged to the Union ; and, that when he answered that he did and that he desired work, Castle stated : "We can't hire you if you belong to the Union." At another point in his testimony , however, Chappell stated that he in- formed Castle that he (Chappell ) did not desire to return to work. In view of the confused state of this testimony we do not credit it. 18 Cf. Matter of Western Felt Works, a Corporation and Textile Workers Organizing Committee, Western Felt Local, 10 N. L. R. B. 407; Matter of Williams Coal Company and United Mine Workers of America, District No. 23, and companion cases, 11 N. L. R. B. 579. 1 HEYWARD GRANITE COMPANY 555 each such employee will be entitled to the back pay which he would normally have earned from the time of such failure or refusal to the date Heyward offers him reinstatement, less his net earnings 14 during such period. We have found also that H. G. Phillips, by closing the Rion shed on or about November 18, 1937, unlawfully discriminated in regard to the hire and tenure of employment of the employees named in Appendix "B." Pursuant to our usual practice the named employees would be entitled to be made whole for any loss of pay they may have suffered by reason of H. G. Phillips' discrimination against them. From the record it appears, however, that H. G. Phillips would have closed the Rion shed shortly after about November 18, 1937, and we have no means of ascertaining the interval between the day of the unlawful shut-down and the day the shut-down would lawfully have occurred. Because of this and other circumstances in this record, and because of our order in Matter of Phillips Granite Company,15 we find that effectuation of the policies of the Act does not require the back-pay order for this period in this case. Also, pursuant to our usual practice the named employees would be en- titled to reinstatement. H. G. Phillips, however, has permanently ceased doing business as Davis Granite Company at the Rion shed. Moreover, the Rion shed had not reopened by the close of the present hearing. We will, therefore, not require reinstatement of the em- ployees named in Appendix "B" unless the respondent, H. G. Phil- lips, has since reentered, or shall in the future reenter, the business of finishing and selling granite monuments or markers, or any similar business in which the employees are qualified to work. We shall require the respondent, in the event the respondent has reentered such business, to reinstate the employees named in Appendix "B" to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges with back pay to each of them, less his net earnings,16 from the time the respondent reentered such business to the time of the offer of reinstatement; or, 14 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 deducted 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 govern- ment or governments which supplied the funds for said work -relief projects . Republic Steel Corporation, et at. v. National Labor Relations Board, 107 F. (2d) 472 (C. C. A. 3) enf'g. as mod., Matter of Republic Steel Corporation and Steel Workers Organizing Com- mittee, 9 N. L. R. B. 219. 15 See footnote 9, supra. 16 See footnote 14, supra. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the event that the respondent shall in the future reenter such busi- ness, to offer at that time reinstatement to the employees named in Appendix "B" to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, and back pay to each of them, less his net earnings,17 from the time the respondent reenters such business to the time of the offer of reinstatement. The record contains no evidence to support the allegation that Heyward threatened to, or did, send its orders to other plants to discourage its employees from forming a labor organization or en- gaging in other union activities. We shall, accordingly, dismiss this allegation. Since the evidence does not support the complaint in so far as it alleges that Phillips Granite Company engaged in unfair labor practices, we shall dismiss the complaint in this respect. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Granite Cutters International Association of America and American Federation of Labor, Quarry Workers Branch, Rion, South Carolina, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure- of employ- ment of the employees on its pay roll on November 17, 1937, the respondent, Heyward, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By discriminating in regard to the hire and tenure of employ anent of his employees named in Appendix "B," the respondent, H. G. Phillips, has engaged 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 in Section 7 of the Act, the respondent, Heyward, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent, H. G. Phillips, has engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 17 See footnote 14, supra. HEYWARD GRANITE COMPANY 557 7. The respondent, Heyward, has not engaged in unfair labor practices by threatening to send, or sending, its orders to other plants, to discourage union activities of its employees. 8. The respondent, Phillips Granite Company, has not engaged in .unfair labor practices by failing or refusing to reopen its plant and reinstate the employees named in Appendix "B." ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, M. T. Heyward, M. B. Heyward, John T. Heyward, and Daniel Heyward, doing business as Heyward Granite Company, its agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Granite Cutters International Association of America and American Federation of Labor, Quarry Workers Branch, Rion, South Carolina, or any other labor organiza- tion of its employees, by discharging, laying off, or refusing to re- instate any of its employees, or in any other manner discriminating against its employees in regard to their hire and tenure of employment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Place the employees named in Appendix "A":18 upon a prefer- ential list in the manner set forth in the section entitled "The remedy" and in said manner offer them employment as it becomes available, without prejudice to their seniority and other rights and privileges ; (b) Make whole the employees named in Appendix "A" for any loss they may suffer in the event the respondent fails or refuses to reinstate them as required by paragraph 2 (a) above, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from the date of is Appendix "A" includes the employees of Heyward on November 17, 1937 , minus the employees on its pay roll of March 22 , 1939, the last pay-roll day prior to the time of the hearing. If Appendix "A" includes the names of persons who were reinstated prior to March 22 , 1939, and who are not on the pay roll on that date because they quit or were laid off or discharged for cause , our Order should not be construed to require the respondent to reinstate or pay them back pay. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such failure or refusal to the date of reinstatement, less his net earnings,", if any, during such period; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employees during the said period for work performed 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 government or gov- ernments which supplied the funds for said work-relief projects; (c) Immediately post notices in conspicuous places throughout its quarry and maintain such notices for a period of at least sixty (60) consecutive days, stating: (1) that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b) of this Order; (2) that it will take the affirmative action set forth in para- graphs 2 (a) and (b) of this Order; and, (3) that the respondent's employees are free to become or remain members of the Quarry Workers or the Granite Cutters and that the respondent will not discriminate against any employee because of membership or activity in said organizations; (d) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. 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, H. G. Phillips, his agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Granite Cutters International Association of America and American Federation of Labor, Quarry Workers Branch, Rion, South Carolina, or any other labor organiza- tion of his employees, by discharging, laying off, or refusing to rein- state any of his employees, or in any other manner discriminating against his employees in regard to the hire and tenure of their employment ; (b) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) In the event the respondent, or his agents, successors, or assigns has reentered the business of finishing and selling granite monu- 1° See footnote 14, supra. HEYWARD GRANITE COMPANY 559 meats or markers or any substantially similar business in which the employees named in Appendix "B" are qualified to work, offer immediate reinstatement to them to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges in the manner set forth in the section entitled "The remedy" above, and in such event, make whole the employees named in Appendix "B" for any loss of pay they may have suffered by reason of the respondent's failure or refusal to reinstate them on the date of reentering business by payment to each of them of a sum of money which he would have earned as wages from that date to the time of the offer of reinstatement, less his net earnings,20 if any, during such period ; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employees during the said period for work performed upon Federal, State, county, municipal, or other work- relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Fed- eral, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (b) In the event the respondent or his agents, successors, or assigns shall in the future reenter the business of finishing and selling granite monuments or markers or any similar business in which the employees named in Appendix "B" are qualified to work, offer at that time reinstatement to them to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, and in such event, make whole the employees named in Appendix "B" for any loss of pay they may suffer by reason of the respondent's failure or refusal to reinstate them on the date of re- entering business by payment to each of them a sum of money which he would have earned as wages from that date to the time of offer of reinstatement, less his net earnings '20 if any, during such period ; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employees during the said period for work performed 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, munici- pal, or other government or governments which supplied the funds for said work-relief projects ; (c) In the event the respondent, or his agents, successors, or as- signs has reentered his former business or a substantially similar business, immediately post notices in conspicuous places throughout his plants, sheds, buildings, and other places of employment, and maintain such notices for a period of at least sixty (60) consecutive days, stating: (1) that the respondent will cease and desist in the Z0 See footnote 14, supra. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner set forth in paragraphs 1 (a) and (b) of this Order; (2) that he will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and, (3) that the respondent's employees are free to become or remain members of the Quarry Workers or Granite Cutters and that the respondent will not discriminate against any employee because of membership or activity in said organizations; or, in the event the respondent, or his agents, successors, or assigns shall in the future reenter his former business or a substantially similar business, at that time immediately post such notices and keep them posted for the same period; (d) Notify the Regional Director for the Tenth 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 complaints as to The Winnsboro Granite Corporation, Rockton & Rion Railway, and Phillips Granite Company, except in so far as they or either of them may be an agent, successor, or assign of Heyward or H. G. Phillips, be, and they hereby are, dismissed. AND IT IS FURTHER ORDERED that the allegation of the complaint that Heyward engaged in unfair labor practices by threatening to send, or sending, its orders to other plants to discourage its em- ployees from engaging in union activities and the allegation of the complaint that Phillips Granite Company engaged in unfair labor practices by failing to reopen its plant and reinstate the employees named in the complaint, be, and they hereby are, dismissed. APPENDIX "A" Ashford, W. R. Ashford, Wash Alexander, Glover Alexander, Lazarus Barrow, H. C. Bates, Willie Broom, Lazelle Brown, Albert Brown, Jim Burrell, James Butler, Claude Byrd, J. B. Byrd, Lindsay Byrd, Tom Carter, James Castles, Rufus Chappell, Roosevelt Coleman, Eddie Cook, John Cook, Lonnie Craig, John Davis, Edgar Davis, Hosie Davis, Sam Evans, Jerry Gadson, Hempton Good, Horace Gooden, Lonnie Gooden, Wade Harris, Ben Harris, Robert Henderson, Alex Henderson, John Herndon, Mooky HEYWARD GRANITE COMPANY Jackson, Roosevelt Johnson, Bully Johnson, Lonnie Johnson, Robert Martin, Rice McCants, Will McKinstry, Frank McKinstry, Hardy McKinstry, James McKinstry, Jeff Mobley, Dan Owens, James Padgett, Quay Pearson, Jim "Q" Barber, R. L. Beckham, Harry Boyd, Mose Brannock, O. L. Broom, Lewis Bundrick, C. H. Bundrick, J. E. Bundrick, Will Chappell, Willie Copeland, Arnett Pearson, Jim "S" Pearson, Silas Pearson, Taft Seibles, Walter Shaw, Roy Simmons, Albert Small, Blease Swygert, J. S. Thompson, Allen Thompson, George Thompson, Fred Thompson, Joe Woodward, Dave Yarboro, Wade APPENDIX "B" Copeland, B. T. Dixon, E. L. Donaldson, R. H. Humphries, H. N. Reed, Claiborn Reed, J. E. Richardson, Edgar Shaw, James Thompson, Wesley Wrenn, J. E. 561 MR. WILLIAM M. LETSERSON took no part in the consideration of the above Decision and Order.