Collins Baking Co.

In the Matter of COLLINS BARING Co. and BAKERY & CONFECTIONERY WORKERS LOCAL UNION No. 486 Case No. C-130-1j .-Decided Janetw-y 11, 19f0 Bakery Industry-Interference, Restraint, and Coercion: composition of, list of union members and questioning employees as to its accuracy ; condoning and abetting threats made by • salesmen to union members ; attempts. to in- fluence union president to terminate union activity ; disparagement of union representative ; anti-union statements-Discrimination: as to tenure 'of em- ployment : one employee discharged for union activity although guilty of in- fractions of working rules ; seven employees discharged for union member- ship : comparison of pay rolls rebutting defense that discharges necessitated by plant reorganizationReinstatement Ordered: discharged employees-Back Pay: awarded. Mr. Alexander E. Wilson, Jr., for the Board. Battle c6 Smith, by Mr. Willis Battle and Mr. A. Edward Smith, of Columbus, Ga., for the respondent. Mr. Herbert G. B. King, of Chattanooga, Tenn., for the Union. Mr. Malcolm A. Hoffmann, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Bakery & Con- fectionery Workers Local Union No. 486, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated March 17, 1939, against Collins Baking: Co'.,' Columbus, Georgia, 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) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint alleged in substance that the respondent had urged, persuaded, and coerced its employees to refrain from becoming mem- bers of the Union; had discriminated in regard to the hire and tenure. I Also designated as "The Collins Baking Co ." and as "Collins Baking Co ., Inc.," in thcc record. 19 N. L. R. B., No. 42 374 COLLINS B.M.,U'NC COMPANY 375 of employment of seven of its employees and refused to reinstate five of them, thereby discouraging union membership and activity ; and had, by these and other acts,. interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint and accompanying notice of hearing were duly served on the respondent. On March 23, 1939, the respondent filed its answer admitting that it was engaged in interstate commerce, but traversing other material allegations of the complaint. Pursuant to notice, a hearing was held at Columbus, Georgia, on March 30 and 31; 1939, before Webster Powell, the Trial Examiner duly designated by the Board. All parties,, represented by counsel, participated in the hearing.' Full opportunity to be heard, to examine and cross-ex- amine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing,.a motion was allowed, without objection, to amend the complaint so as to allege that David Earl Swain had been discriminatorily discharged and denied reinstatement. The Trial Examiner made several , other rul- ings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial' Examiner and finds that no prejudicial errors were committed. The rulings are hereby af- firmed. At the close of the hearing, the Trial Examiner gave the parties opportunity to present oral argument and to file briefs. The respondent and Union filed briefs with the Trial Examiner which have been considered by the Board., On June 7, 1939, the Trial Examiner filed an Intermediate Report, copies of which were duly served upon all the parties, in whicli he found that the respondent 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 Act and recommended that the re- spondent cease and desist from its unfair labor practices, offer full reinstatement to five employees and make them whole for loss of pay resulting from their discriminatory discharges by the respond- ent,2 and further recommended that the complaint be dismissed in so far as it alleged discrimination against J. T. Pennington. On July 13, 1939, the respondent and the Union filed exceptions to the Intermediate Report, and later filed briefs in support thereof. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on October 19, 1939. The respondent was represented by counsel and participated. The Board has considered the exceptions of the respondent and the Union The Trial Examiner recommended no back pay for two employees found to have been discriminated against but who received a week's pay in' advance at the time of their discharge, and were reinstated within the ensuing weep. 376 DECISIONS uF NATIONAL LABOR RELATIONS BOARD and, to the extent that they are inconsistent with the findings, con- clusions, 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 BUSINESS OF THE RESPONDENT Collins Baking Co., a Delaware corporation, is engaged in the manufacture, sale, and distribution of cake, bread, rolls, and other bakery products. Its principal office and plant are in Columbus, Georgia, with other plants located in Valdosta and Augusta, Georgia, and in Dothan and Montgomery, Alabama. All of the alleged un- fair labor practices took place at the Columbus plant, which does a general bakery business, maintaining its own truck lines into Ala- bama.8 At least 75 per cent of the raw materials used at the Colum- bus plant are obtained from sources outside the State of Georgia, and a substantial amount of its finished products are shipped across State lines. The sales of the Columbus plant for an average 4 weeks' period during 1938 amounted to approximately $12,500 in cake and $12,000 in bread. Of this amount, cake shipped to Alabama totaled about $5,000, and cake and bread sold at the Columbus plant to out-of-State customers approximated $4,000. II. THE ORGANIZATION INVOLVED Bakery & Confectionery Workers Local Union No. 486 is a labor organization chartered by Bakery & Confectionery Workers Inter- national Union of America, affiliated with the American Federation of Labor. It admits to membership all employees of the respondent except clerical and supervisory employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The respondent's baking operations at its Columbus plant are all conducted in a single large room. For about 10 years prior to April 1938, these operations were conducted in two production units, in sepa- rate shifts, one making bread and rolls, the other. making cake. On April 2, 1938, the bread and roll departments were separated. As a result of this change, the roll department 4 and the cake department s The respondent's voting stock is controlled by the Campbell-Taggert Company of Kansas City , Kansas. L. 111. Collins is the president of the respondent and actively supervises activities at the Columbus plant. A Also known as the "bun " department. COLLENTS BAKING CO -MPANY 377 thereafter operated at the same time, while the bread department worked on a separate shift. During the summer and fall of 1938, the Columbus plant undertook to provide cake for the Valdosta and Au- gusta, Georgia, plants. Due to the limited space in the plant, this increase in cake production resulted in congestion, confusion, and com- plaints from customers. By December 10,. 1938, the respondent's officials decided that a reconsolidation of the bread and roll depart- ments would be necessary. Rumors of this decision were current among the respondent's employees. About December 15, 1938, William Jennings Reed and Percy Hollo- way, employees of the respondent, went to the Central Labor Union headquarters in Columbus to secure aid in organizing employees at the respondent's plant, and arranged for an organizational meeting of the employees. The meeting was held on December 31. In the interim Reed and Holloway were active in soliciting the other employees of the bread .and roll departments to attend. On December 29, 1938, and during the height of the above activity, Holloway was discharged allegedly because he expressed dissatisfac- tion with.wages and because of violations,-of working rules. The pre- vious day Holloway, who worked on the night shift, had been in= strutted by Superintendent Campbell not to go to work that night but to report to the plant next morning. On his arrival at the plant on the 29th, Holloway had a conversation with Joseph Ussery, superintendent of the cake department. According to Holloway, Ussery remarked that he "was afraid this was going to happen . . . that the boys would not stick by you and you would be left holding the bag." Although Ussery denied having this conversation, the record leaves doubt as to his credibility and we find that it did take place in the man- ner described by Holloway. After talking with Ussery, Holloway was called into the office of J. B. Campbell, superintendent of the bread and roll departments, where Campbell asked if Holloway was "dissatis- fied." When Holloway observed that he was, Campbell rebuked him for not making complaints direct to Campbell. Holloway then stated, "Well, that last summer when business was on the boom, I came to you and asked for more pay and you told me you couldn't do it . . . I did not think it would be wise to come to you now." Thereupon Campbell inquired, ". . . Does that mean you went to somebody else besides me?" Holloway replied, "Sure. I went down to see the Union men." Campbell then paid Holloway off, saying, "I still reserve the right to hire and fire a man, so I can't use you any more." On January 4, 1939, the respondent discharged 7 other union mem- bers who had attended the December 31 meeting. In explaining these discharges the respondent's president, L. M. Collins, generally denied knowledge of any union activity among the employees prior to January 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1, 1939. He testified that on that day Ussery reported that he had "just learned that two or three of the boys have, or are contemplating, joining the Union. I thought you would like to have that informa- tion." Ussery's version of the conversation was that he had told Col- lins merely that Holloway felt he had been discriminated against for his'union activity. Ussery, testifying for the respondent, specifically, denied having stated that other employees had joined the Union. According to Collins, he first learned on January 3, 1939, that physical changes at the plant necessary for reconsolidation of the bread and roll department were complete. At this time, Collins testi- fied, a cake expert recommended to him that the reconsolidation should be effected that night. Collins alleged that he then informed Superin- tendent Campbell that some lay-offs would be necessary because of the reconsolidation, told Campbell that "some of the boys had joined the- Union," and instructed him to ascertain the identity of union members so that there would be no discrimination in the lay-offs. Campbell's version was that he had been "surprised?' to learn of any union activity and doubted that any employees actually belonged to the Union. Nonetheless, he proceeded to draft a list of 6 or 8 em- ployees who might be laid off, and took it to William Reed, who at the December 31 meeting had been elected temporary president of the Union. The list contained only union members, with Reed's name first: This fact, together with Campbell's conversation with Holloway on December 29, persuades us that Campbell in fact had considerable knowledge of union activity prior to his conversation with Collins. Campbell clearly came to Reed with the list because he knew Reed to be the leading union member. On showing Reed the list, Campbell asked if it correctly recited the names of the union members and remarked, "Now if there is any more, you can tell me but you don't have to." Reed then augmented the list to its full complement of 13 members. Accord= ing to Reed, Campbell further stated that the men were "all fools if we thought we could get anywhere," that Collins "would close the shop before he would recognize any kind of a union," and that "the union man wasn't asking nothing but our suckers' money." While Campbell denied disparaging the Union, he admitted telling Reed that Collins was a "diplomat . .. should be handled diplomatically, and you could do better yourself." Campbell's credibility is such that we find he in fact made the remarks attributed to him by Reed. After talking to Reed, Campbell passed on to Andrew Kelly, another union member, and inquired if the list accurately showed the men who had joined the Union. Campbell told Kelly at the time, "I think you fellows just played hell," and, "you may be sorry of this." Campbell later took the list to Charles B. Hall, Jr., another union member, for similar verification. OOLLINS BAKING ()OMPAN'Y 379 Reed, who was not discharged, testified'that for about 3 weeks after he'joined the Union "it was hell" to get along because Campbell "gave me hell" about things he had not noticed before.- A conversation be- tween Campbell and David Swain, one of the employees discharged January 4, further indicates the respondent's attitude toward the Union. When Swain asked Campbell for reemployment Campbell promised him work "as soon as this racket, this trouble blew over." Swain testified, without contradiction, that the conversation proceeded as follows : He said that he laid a bunch of them off on account of this union, and I told him, "Well, I haven't paid any fees, I just joined the Union." In other words, I signed my name, and lie said, "I am sorry about that," that I was a union man. A' conversation between Campbell and Cody Brown, a boy who was put to, work twisting bread in Hall's place, was described by Brown as follows : ... he (Campbell) came by one day when I was twisting bread and he said, "How are you doing?" and I said, "I think I am doing all right. I am not quite as fast asHall'was," and he said, "Well, I would have liked to have kept Hall on, and he could have made twenty dollars this week as easy as he made nothing, but right at the last he got shitty, and I had to let him go." Campbell described Brown as a "good boy" but denied having the above conversation with him. We find that the conversation took place as Brown testified . Reed, moreover, testified, and we find, that Cake Superintendent Ussery told him he "could really go up in the Company" if he would "play ball." About three weeks before the hearing, Reed was approached while at work by one Renfroe, a salesman of the respondent, and asked to attend a meeting of the salesmen in their office. Superintendent Campbell was present at the time, and Reed said he would attend if he were replaced at work by Foreman Ed Morton. Morton so replaced Reed, and Reed, Kelly, and Hall, another union member, went to the salesmen's room. The Union had distributed cards urg- ing customers to buy only union-made bread, and at the meet- ing Reed was told by Salesman Hanson that if any more of these cards were distributed along the salesmen's routes he would be "blackjacked." Reed reported what had transpired to Campbell, who said he was not surprised, that he had known for a week that the meeting was going to be called, and that the union men should stop "fighting the salesmen." Campbell also observed that the union men would get along better with Mr. Collins if they went to him themselves, rather than through an outside representative. He commented that Mr. Sims, the union 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative, "ate Mr. Collins' ass out" and "wouldn't get nowhere." Campbell's version of what he said to Reed did not substantially refute Reed's testimony. Campbell summarized his statement to Reed as follows : "I said, `it seems, Jennings, you are on the wrong foot.' That was the topic of the conversation." The salesmen them, selves reported to Campbell what had taken place at the meeting and were not disciplined by the respondent. It is clear from the fore- going that the respondent sought to induce Reed, the president of the Union, to give up his union activity. We find that the respondent by composing a list of union members and questioning union members as to its accuracy, by condoning and abetting threats made by its salesmen to union members, by attempt- ing to influence Reed to terminate his union activity, by disparaging a union representative, and by the other statements and acts of its supervisory employees set forth above, has interfered with, coerced, and restrained its employees in the exercise of their rights guaranteed in Section 7 of the Act. B. The discharges and refusals to reinstate Percy Holloway was employed by the respondent on April 2, 1938, after the separation of the bread and roll departments. He had earlier worked for the respondent in the years 1929 and 1930. As noted above, Holloway was outstanding in the organization of the Union. In the week preceding the December 31 meeting, he had approached nearly all the employees in the bread and roll depart- ment and obtained their promises to attend. We have already noted the circumstances of Holloway's discharge on December 29, 1938,° and particularly his conversation with Superintendent Campbell, during which the latter led Holloway to admit that he had become actively interested in the Union as a means of. bettering his working condi- tions. No specific reason was given to Holloway for his discharge when it took place. The respondent alleges that Holloway's dismissal resulted from the unsatisfactory character of his services and at the hearing sought to show that Holloway was dissatisfied with working conditions, burned rolls, and frequently violated its rule against smoking. Campbell testified that he discharged Holloway because of com- plaints from Foreman Ed Morton. Morton's testimony was that he made a series of complaints to Campbell. He contradicted himself, however, as to whether the last of his alleged complaints, 2 or 3 days before Holloway's discharge, was because of Holloway's "dissatisfac- tion" or because of violation of the smoking rule. Morton admitted 5 Section III A, above. COLLINS PAKINiG COMPANY 381 that other employees, including himself, smoked at the plant,° but claimed that Holloway was the "biggest smoker." He averred that Holloway's work, originally good, had become unsatisfactory at the time he received .an increase in wages by virtue of the application of the Wage-Hour Law 7 some 2 months before Holloway's discharge, and that thereafter Holloway had burned many rolls. Morton admitted that one Faulk, who worked with Holloway at the oven and was not discharged, also burned "a good many rolls." We do not believe it mere coincidence that immediately before his discharge Holloway had urged almost all the employees under Camp- bell to attend the union organizational meeting and that Campbell thereafter questioned Holloway until he admitted being interested in the Union . Under the circumstances we are impelled to find that the respondent knew of Holloway's union activity before Campbell's conversation with Holloway on December 29, 1938. Such a con- clusion is consistent with an admission later made by Morton , Hollo- way's foreman. Holloway testified that on January 30, 1939, he remarked to Morton, "I know I was fired because of the Union," whereupon Morton replied, "That's right; I know that too." Morton denied making this reply but in view of the equivocal character of much of his testimony we find that he did so. It is significant that although Holloway's alleged defects as an employee were of long standing, the respondent did not attempt to discipline Holloway until he manifested interest in the Union.8 Moreover, the respondent did not in fact call these alleged defects to Holloway's attention at the time of his discharge, and did not discharge or discipline other em- ployees for similar offenses., Campbell's remarks at the time of Holloway's discharge, following as they did immediately after Hollo- way had discussed the Union with nearly all his fellow employees, and considered with the other circumstances set forth above, indicate that even though Holloway may have been guilty of minor infrac- tions of the respondent's rules, he was discharged for other reasons. It is clear that Holloway was discharged because of his union activity 10 O Morton customarily chews tobacco. 7 Fair Labor Standards Act of 1938. 52 Stat. 1060. Amended, August 9 , 1939, Public Act No. 344, 76th Congress. 8Matter of Harry G. Beck, etc.. and International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 355, 3 N. L. R. B. 110; Matter of Electric Boat Company and Industrial Union of Marine and Shipbuilding Workers of America, etc., 7 N . L. R. B. 572; Matter of Trenton-Philadelphia Coach Company and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 6 N. L. R. B. 112. Matter of Botany Worsted Mills and Textile Workers Organiz ing Committee, 4 N. L. R. B. 292, enf'd as mod, and remanded . Botany Worsted Mills v. N. L. R. B., 106 F. (2d) 263 (C. C. A. 3). 10 Cf. Matter of Kelly-Springfield Tire Company and United Rubber Workers of America, Local No . 26, etc., 6 N. L. R. B. 325, enf'd, The Kelly-Springfield Tire Company v. National Labor Relations Board. 97 F. (2d) 1007 (C. C. A. 4). 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent, by discharging Percy Holloway on December 29, 1938, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. C. B. Hall, Jr., Floyd Hearn, Carl Anthony, B. F. Phillips,. Robert Holcombe," David Swain, and J. T. Pennington, employees in the bread and roll departments, were paid an extra week's wages and discharged by Superintendent Campbell on January 4, 1939. All- of them previously had attended the union meeting at the Labor Temple on December 31, 1938, and there had signed application cards for membership in the Union. Only union members were discharged although 10 of the 23 ordinary employees in the bread and roll de- partments did not belong to the Union on January 4.12 _. The, respondent denied having any intent to discriminate against union members in making the discharges. As already noted, Collins, the respondent's president, testified that he. instructed Campbell to ascertain the identity of union men in order not to discriminate against them in making the lay-offs, and Campbell prepared a com- plete list of union men by questioning Reed, Kelly, and Hall. Al- though Collins asserted that he had cautioned Campbell not to dis- criminate against union members and claimed that he regarded a dis- criminatory discharge as a serious matter, he acknowledged that he did not ascertain that all discharged by Campbell on January 4 were union members. The respondent contends, however, that it understood all employees in the bread and roll departments were members of the Union on January 4, and thus it could have intended no discrimination against union members. It is clear that after Reed had expanded the list to its full complement of 13 union members, Campbell inquired, "Is that all now," and Reed replied that the list was complete. Campbell then verified the accuracy of the list by checking it with the two other union members. We are convinced that the respondent did not on January 3 in fact believe that all employees in the bread and roll departments belonged to the Union. The respondent also urges that the discharges were necessitated by reconsolidation of the bread and roll departments since, after the original separation of the two departments in April of 1938, new men were employed to operate identical machines on different shifts and thus such new men had to be laid off when the departments were once "Designated as Robert Holcomb in the complaint. 'A list of employees taken from the respondent's January 7 "Bread Shop" pay roll shows a total of 24 employees, including Foreman Morton, the 7 discharged employees, and 6 employees designated as "colored" and to whom separate consideration is given below. COLLINS BAKING COMPANY 383 more brought together. Between April 2, 1938, and March 11, 1939, the respondent hired 22 persons and terminated the employment of 17 in the bread and roll departments. It is apparent that if the separation of the two departments on April 2, 1938, had resulted in a duplication of work, the respondent's pay roll shortly after that date would have shown a substantial increase in new employees. It ap- pears, however, that only three new men were employed in April of 1938 following the separation, and this figure is little more than the average figure for each of the months from April of 1938 to January 1939.13 Three new employees were also hired in September and No- vember of 1938 and five in December of that year. It is noteworthy that the pay roll of November 5, 1938, lists 21 employees in the bread and roll departments, while the pay roll of March 11, 1939, shows 19 in the reconsolidated departments; or a total decrease of but 2 em- ployees. - Percy Holloway, whose name appears on the November. pay roll, was discharged on December 29. It was not contended that the discharge of Holloway bore any relation to the reconsolidation effected on January 4, 1939. On February 18, 1939, George W. Faulk voluntarily left his employment. Excluding from consideration these two employees whose terminations of employment were unrelated to the reconsolidation, it is evident that the respondent's readjustment of its plant bore no legitimate relation to the lay-off of the union members.14 Even had some lay-offs been necessary, the question would remain as to why Hall, Hearn, Anthony, Phillips, Holcombe, Swain, and 18 The following is a schedule of the respondent's hiring during these months : April----------------------- 3 September------------------- 3 May------------------------ 2 October--------------------- 1 June----------------------- 0 November------------------- 3 July------------------------ 1 December------------------- 5 August--------------------- 2 "The respondent in its exceptions states that the list of union members as drafted by Campbell omitted only the names of indispensable employees and negroes "whose work the white employees would not be willing to take over." The respondent in effect argues that the negro employees should be disregarded in determining what employees it was possible to lay off on January 4 . There are discrepancies in the testimony as to whether four, five, or six negroes were employed on January 4. It is clearly indicated , however, that there could not have been more than five. On the assumption that negroes performed work different from whites , the respondent would have been compelled to lay off colored employees if there was merit to its contention that the reconsolidation in January neces- sitated the lay-offs. The respondent employed two colored men prior to April 2, 1938, and five thereafter . Thus, under the respondent 's contention , the "colored" type of work more than doubled because of the separation . If the reconsolidation resulted in the laying off of men in operations which increased as a result of the separation , it follows that it would have been necessary to lay off "colored " operators . There is no convincing testi- mony that negroes did menial work or that the work of negroes and whites was not interchangeable . Campbell acknowledged that he had employed a negro at bread wrapping, work also performed by white employees , and there is testimony to the effect that he promised to lay this negro off Lo make work for Swain . In any case, it was established that negroes are eligible to membership in the Union , and the respondent could not have reasonably concluded that all employees in the bread and roll departments were union members by excluding negroes from its consideration. 384 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pennington were discharged rather than other employees. It is clear that seniority was not a determinative fact in making the lay-offs. Hall and Hearn were on the respondent's pay roll at all times between April 2, 1938, and January 4, 1939. Pennington, who was on the respondent's pay roll of April 2, left the respondent's employ on December 3, but was.rehired on December 18. The other discharged employees were hired between May 15 and November 23, 1938. Four- teen workers with less seniority than Phillips, 8 with less than Swain, 7 with less than Anthony, and 4 with less than Holcombe were re- tained on January 4. The respondent introduced no evidence to show that employees retained in the consolidated department after January 4 possessed any greater efficiency or skill than those laid off. We have already noted the conversation between Campbell and Cody Brown, a boy who was twisting bread in Hall's place, during which Campbell acknowledged that he would have liked to retain Hall as an employee but had to let him go "because right at the last he got shitty." 15 Hall shortly thereafter was reemployed and there is considerable testimony showing that Hall was an unusually skilled worker. We find that the respondent reemployed him when, after experimenting with others in his place, it found them unable properly to perform his duties.16 Hearn also was reemployed within it week after his discharge. The respondent contends that its failure to discharge William Jennings Reed, president of the Union, was "powerful evidence" that it had not discriminated against union members. As already noted, however, efforts were made to intimidate Reed after January 4, 1939, and Ussery attempted to wean him away from the Union by more subtle means. Reed had worked for the respondent for 10 years, and his salary was considerably in excess of the average of those dis- charged. Campbell admitted Reed to be a "very good man." We are convinced that the respondent preferred to intimidate Reed to give up his union activity rather than to discriminate against him. The respondent hired three new men after January 4. Campbell testified that before the respondent employed one of these three men, it attempted to reemploy Anthony who was then in Mobile, Alabama, seeking employment. Campbell called at Anthony's Columbus home, and talked to Anthony's mother, but gave no indication that he de- sired to offer employment to Anthony. Campbell later received a letter from Anthony inquiring whether work was available for him, but there is no showing that the letter was answered. Directly after Campbell called at Anthony's home, the respondent on January 10 employed Earl Hunt in Anthony's job. Later Anthony actually was 16 See Section III A, above. 16 Shortly after Hall's reemployment, he received an increase in pay, GOLLINS BAKING OOMPNN'Y 385 reemployed for a week, at another job in the place of an ill employee. At the end of that week he was promised his old job because an em- ployee, Faulk, had informed the respondent of his intention to leave and Campbell contemplated transferring Hunt to Faulk's position. In the meantime Anthony complained about the 25-cent an hour wage which he received while substituting for the ill employee in place of his, former pay of 31 cents. When Anthony actually sought employ- ment in his old job Campbell refused it and upbraided him for his dissatisfaction .' The circumstance that all those discharged on January 4 were union members and that they were discharged the day following Campbell's ascertainment of their membership, the admissions of the discriminatory character of the discharges by the respondent's supervisory employees, the unsatisfactory nature of the respondent's explanation for the discharges, and the anti-union conduct and state- ments set forth in Section III A, above, lead us to the conclusion that the employees here involved were discharged by the respondent in order to discourage and deter organization of its employees by the Union. The respondent alleged, and the Trial Examiner found, that Pen- nington was a temporary employee and thus was not discriminated against by the discharge. The Union excepts to this finding. Ac= cording to the respondent's witnesses, Pennington was employed for the Christmas rush only, and had asked merely for Christmas work. Pennington was first employed by the respondent in 1935, and on May-13, 1938, was put to work on the rolls oven. From December 3 to 17, 1938, Pennington left the respondent's employ, but applied once more for work on December 17.. On this occasion he was repri- manded by Campbell for having left without notice on December 3, but Campbell agreed to try to make a place for him again. At the same time Foreman Morton told Pennington that another employee would be laid off to make possible his employment at the oven, but that Pennington would have to work at 25 cents and hour. Penning- ton asserted that nothing was said to him about "temporary status" and that he considered his job a permanent one. At the union meeting of December 31, 1938, Pennington was elected secretary-treasurer of the Union. Pennington testified, without con- tradiction, that on January 4, Campbell told him that he and Hol- combe were being laid off as a result of the consolidation and in order to cut expenses. At the time of his discharge Pennington received 17 It is clear that the respondent at no time reinstated Anthony in the position to which he was entitled but gave him only temporary employment at a lesser salary. Others of the discharged employees unsuccessfully sought reinstatement about this time. As already noted. on. the occasion of one. such application Campbell told Swain "he had laid a bunch of them off on account of this union." 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a week's check in advance as did regular employees. This Camp- bell sought to explain as merely an "office mistake." We find that Pennington was not temporarily hired, but had been returned to work as a regular employee. It is thus clear that he was discrim- inated against to the same extent as the other union members who were discharged. We find that the respondent by discharging J. T. Pennington, C. B. Hall, Jr., B. F. Phillips, Floyd Hearn, Carl Anthony, Robert Holcombe, and David Swain, on January 4, 1939, and by thereafter failing to reinstate Pennington, Phillips, Anthony, Holcombe, and Swain, discriminated in regard to their hire and tenure of employ- ment thereby discouraging membership in the Union. By the dis- charges and failures to reinstate, the respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above occurring in 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. V. THE REMEDY Since we have found that the respondent has engaged in certain unfair labor practices, we shall order the respondent to cease and desist, therefrom. Moreover, we shall order the respondent to take certain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that the respondent discriminatorily discharged and thereafter refused to reinstate Percy Holloway, Carl Anthony, B. F. Phillips, Robert Holcombe, David Swain, and J. T. Pennington. We shall order the respondent to offer these employees immediate and full reinstatement to their former positions without prejudice to their seniority and other rights and privileges, and, further, to make them whole for any loss of pay they have suffered by reason of its discrimination against 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. his discharge. to. the date of the offer. of reinstate- ment, less his net earnings 18 during said period. Charles B: Hall, 18 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 or her un- C'OLLIN S BAKING C'OMPAN'Y 387 J r., and Floyd Hearn were reemployed by the respondent within a week after their discharge. - Since at the time of their discharge they were given a week's pay in advance, no remedial action as to them is necessary. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLIIsIONs OF LAW 1. Bakery & Confectionery Workers Local Union No. 486, Bakery .& Confectionery Workers International Union of America, is a labor organization within the meaning of Section 2 (5) of the Act. 2.. The respondent, by interfering with, restraining, , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. The respondent, by discriminating in regard to the hire and tenure of employment of Percy Holloway, C. B. Hall, Jr., Floyd Hearn, Carl Anthony, B. F. Phillips, Robert Holcombe, David Swain, and J. T. Pennington, thereby discouraging membership in Bakery & Confectionery Workers Local Union No. 486, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 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, Collins- Baking Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Bakery & Confectionery Workers Local Union No. 486, or any other labor organization of its em- ployees by discharging. any of its employees or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment: lawful discharge and the consequent necessity of seeking employment elsewhere. See Hatter o f 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 government or governments which supplied the funds for said work-relief projects. 388 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD (b) In any other manner interfering m ith, restraining, or coercing its employees in the exercise of the right t o 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 and other mutual aid and protection: as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : -' (a) Offer to Percy Holloway, Carl Anthony, B. F. Phillips, Robert Holcombe, David Swain, and J. T. Pennington, immediate and full reinstatement to their former positions, without prejudice to 'their seniority and other rights and privileges; `(b) Make whole the persons named in paragraph '2 (a) above for any loss of pay they have suffered by reason of the respondent's discrimination in regard to hire and tenure of employment, by pay- ment to .them, respectively, of a sum of money equal to that which each would have earned as wages during the period from the date of such discrimination against him to the date of the offer of reinstatement, less his net earnings during that period; deducting, however, from the amount otherwise due to each of the said em- ployees, monies received by said employee during 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 governments which supplied the funds for said work-relief projects; (c) Post immediately, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees in conspicuous places throughout its plant, stating that the respondent will cease and desist in the manner set forth in para- graph 1 of this Order, and take the affirmative action set forth in paragraphs 2 (a) and (b), and that the respondent's employees are free to become or remain members of Bakery & Colife'otionery Workers Local Union No. 486, and that the respondent will not dis- criminate against any employee because of membership or activity in that organization ; (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.