Continental Box Co., Inc.

In the Matter Of CONTINENTAL Box COMPANY, INC. and FEDERAL LABOR UNION No. 21328 Case No. C-1226.-Decided January 25, 1941 Boo Mainufactoring Industry-Interference, Restraint, and Coercion: anti- union statements by supervisory, employees-Company-Dominated Union: ex- pressed opposition to outside union; supervisory participation in soliciting membership in inside union ; discrimination in favor of inside union in per- mitting widespread solicitation on company time and property ; recognition of inside union without adequate check on majority claims ; employer ordered to disestablish-Discrimination: dicharge of four employees for union membership and activity; charges of not sustained as to one employee-Regular and Sub- stantially Equivalent Employment: factors considered-Reinstatement Ordered: four discharged employees ; refusal of offer of reinstatement without seniority and back pay made during hearing, no bar to order of reinstatement-Back Pay: awarded three employees from date of discharge to date of offer of rein- statement; awarded to one employee from date of discharge to date of Inter- mediate Report and from date of Order to offer of reinstatement. Mr. Harry C. Duncan, Jr., for the Board. Wood and Morrow, by Mr. M. S. McCorquodale, of Houston, Tex., and Mr. Paul E. Duzeski, of Chicago, Ill., for the respondent. Mr. George A. Wilson, for the Federal Union. Mrs. Mary Telker Iliff, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Federal Labor Union No. 21328, herein called the Federal Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated October 31, 1938, against the Continental Box Company, Inc.,' Houston, Texas, herein called the respondent, alleging that the re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and Referred to in the complaint and other of the formal papers as the Continental Box Company, Incorporated. 19 N. L. R. B. No. 92. 860 CON'TINEN'TAL BOX COMPANY, INC. 861 (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Concerning the unfair labor practices, the complaint alleged in substance that the respondent (1) fostered, encouraged, sponsored, dominated, and interfered with the formation, enlistment of mem- bers, and administration of a 'labor organization of employees at its Houston plant known as the Employees Aid Association of the Con- tinental Box Company, herein called the Association, and contributed financial and other support thereto; (2) discriminated in regard to the hire and tenure of employment of five employees, namely, Floyd Coombs, J. L. Heuermann, Theodore Ryan, Ralph Cato, and Bennie Sampson, because of their membership in and activities in behalf of the Federal Union, and because they engaged in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection, and thereby dis- couraged membership in the Federal Union; and (3) by the above- mentioned activities, by inquiring of certain employees as to their union membership, by inquiring. of certain employees as to how they intended to vote in a consent election held by the Regional Office of the National Labor Relations Board, and by 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 upon the respondent and upon the Federal Union. On No- vember 5, 1938, the Regional Director, on his own motion, extended the time for filing answer and extended the hearing date in the matter. The respondent filed an answer to the complaint, dated November 5, 1938, in which it admitted certain allegations thereof but denied that it was engaged in interstate commerce or that it had engaged in any unfair labor practices, and averred affirmatively that the five employees named in the complaint had been laid off because of in- sufficient work. The answer contained further matter in the nature of a motion to dismiss the complaint, and a request for a bill of particulars. Pursuant to notice, a hearing was held on November 28 and 29, and December 1, 2, 3, and 5, 1938, in Houston, Texas, before Henry J. Kent, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and the Fed- eral Union by a duly designated officer. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing, counsel for the respondent renewed orally the motion to dismiss the com- 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint contained in the answer, and made a further request for a bill of particulars. The Trial Examiner denied the motion and the request except that with regard to paragraph 6 of the complaint he requested the attorney for the Board to furnish the respondent more particulars orally at the hearing. This was done. The Trial Examiner then ruled that the complaint was sufficient to give notice to the respondent of the issues raised. During the course of the hearing, the Trial Examiner made other rulings upon motions and upon objections to the admission ' of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. On January 16, 1939, the respondent submitted to the Trial Exam- iner a written brief upon the issues presented. On March. 24, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from engaging in the activities constituting unfair labor practices;, that it reinstate to their former positions Floyd Coombs, J. L. Heuermann, and Bennie Sampson with back pay; 2 and that it post appropriate notices. He further recommended that the complaint be dismissed in regard to Theodore Ryan and Ralph Cato, and as to the alleged violation of Section 8 (2) of the Act. On April 6, 1939, the respond- ent filed Exceptions to the Trial Examiner's Intermediate Report, and on May 2, filed a brief in support of its exceptions. On October 31, 1939, the respondent moved to reopen the record in the case to introduce a certified copy of the judgment of divorce entered by the District Court for Harris County, Texas, in Cause No. C-259,714, styled Myrtie C. Coombs vs. Charles Floyd Coombs, wherein the District Court judge decreed that the claim of the defendant, Charles Floyd Coombs, agadnst the Continental Box Company for back wages as set out in Case No. C-1226 before the Board, be set apart to the plaintiff, Myrtie C. Coombs, as her sole and separate property and that all right, title, and interest in such claim: be divested out of the defendant, Charles Floyd Coombs, and vested in the plaintiff, Myrtie C. Coombs. On November 6, Myrtie C. Coombs filed a petition to intervene in this proceeding, asking that such back pay as was found to be due to Charles Floyd Coombs 2 The Trial Examiner having found that the discrimination against Bennie Sampson occurred at the time of the respondent's refusal to reinstate him, the back pay recom- mended in Sampson's case was to run from the date of the refusal to reinstate. CONTINENTAL BOX COMPANY, INC. 863. be ordered paid to her, the intervenor. The Board denied the petition for intervention on November 7. On November 9 the attor- ney for the Board and the attorney for the respondent entered into a stipulation setting out the judgment in said Cause No. C-259,714 in the District Court for Harris County, Texas, and agreeing that the defendant in such cause was the same person as Floyd Coombs in the present case. On the same date, the respondent requested the Board for permission to withdraw its application to reopen the record. On November 14, 1939, the Board entered an order making the stipulation of November 9 part of the record in this case. Pursuant to notice, a hearing was had for the purpose of oral argument before the Board in Washington, D. C., on November 9, 1939. The respondent presented oral argument on its Exceptions. The Board has considered the Exceptions to the Intermediate Re- port filed by the respondent and its brief and oral argument in sup- port thereof and, in so far as they are inconsistent 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 BUSINESS OF THE RESPONDENT The respondent is a Texas corporation, engaged in the manufac- ture, sale, and distribution of wood and paper boxes. It operates a manufacturing plant at Houston, Texas; a warehouse at Dallas, Texas; and sales offices at Houston, Mercedes, and Dallas, Texas. It is a wholly owned subsidiary of the General Box Company, a Dela- ware corporation, having its main office at Chicago, Illinois. We are concerned here only with the Houston plant. The principal raw materials used by the respondent in the manu- facture of boxes at its Houston plant are veneer, lumber, steel wire, corrugated sheets, nails, and miscellaneous metal products. Of these raw materials, approximately 50 per cent, amounting in value to about $370,000 annually, are purchased and transported in interstate commerce to the Houston plant from States other than the State of Texas. Of the products manufactured by the respondent in the year 1937, approximately 9 per cent, amounting in value to $92,000, were shipped in interstate commerce to customers outside the State of Texas. The percentage of interstate shipments of finished products in 1938 was approximately thO same as in 1937. The respondent's business, the manufacture. of boxes for fruits and vegetables, is seasonal in.character. There is a large increase in 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the number of employees in the fall of the year, and a corresponding decrease in the late winter when the packing season comes to a close. On December 21, 1937, the respondent employed -approximately. 196 persons in production and maintenance. The number of such em- ployees decreased to about 73 by May 18, 1938, the reason for the decline being the seasonal drop in business. II. THE ORGANIZATIONS INVOLVED Federal Labor Union No. 21328 is a labor organization affiliated with the American Federation of Labor, admitting to its membership certain production and maintenance employees of the respondent.3 The Employees Aid Association of the Continental Box Company, Inc., is an unaffiliated labor organization, admitting to its member- ship all employees of the respondent other than those in a clerical, supervisory, or official capacity. III. THE UNFAIR LABOR PRACTICES Early in the fall of 1937, a group of the respondent's employees approached George Wilson, secretary of the Houston Trades Council, and asked his aid in forming a labor organization. Some time in September of that year, a meeting for that purpose was held in the Houston Labor Temple, which was attended by 75 to 100 of the respondent's employees. A number of those present at the meeting signified their desire to form a union, and a charter was thereupon applied for. On October 26, 1937, the American Federation of Labor chartered the group as Federal Labor Union No. 21328. During the period between the organizational meeting and the receipt of the charter, a temporary organization was set up. Tem- porary officers were selected and several meetings were held. After the charter was received, regular officers were elected by the Federal Union. Some time after the formation of the Federal Union, Wilson and another American Federation of Labor representative, acting on behalf of the Federal Union, called upon the respondent's president, Talbert. They informed him that they represented a majority of the employees and requested him to enter into collective bargaining negotiations with the Federal Union. President Talbert suggested that an election be held to determine whether or not the employees did, in fact, desire to be represented by the Federal Union. 8 There is no definite showing in the record as to which classes of the respondent's employees are eligible for membership in the Union . An agreement between the respondent and the Union for a consent election covered all production and maintenance employees except official, clerical, and supervisory employees. CON'TINTNTAL BOX COMPANY, INC. 865 . Thereafter, the respondent and the Federal Union entered into an agreement providing for an election, to be held under the super- vision of the Regional Director for the Sixteenth Region of the National Labor Relations Board. The respondent therein agreed to recognize the Federal Union as the exclusive representative of all eligible employees, provided it received the votes of a majority of all employees eligible to vote in the election. The election was held in accordance with the terms of the agreement on December 21, 1937, the Federal Union receiving a majority of the votes cast.4 It did not,, however, receive the votes of a majority of the eligible voters, and the respondent, therefore, did not recognize it or bargain with it. The Association was organized approximately a month before the election, and was recognized by the respondent as bargaining agent for its employees on December 28, 1937. The formation and recog- nition of the Association are discussed elsewhere in this Decision.' A. Interference, restraint, and coercion On December 20, 1937, the night before the consent election was held, President Talbert called a meeting of all employees in the plant. He read a prepared statement to them making it clear that the respondent had already fixed its wages, hours, and other impor- tant working conditions and that collective bargaining would be un- necessary and, in fact, futile. He notified the employees, among other things, that : It is the policy of this Company not to enter into any agree- ment which will compel its employees to join, or refrain from joining any organization in order to get or hold a job with this Company. * * * Nine hours shall constitute a day's work and fifty-four hours shall constitute a week's work at all times except during rush periods * * * The Company is now mak- ing arrangements to see to it that there shall be at least one day of rest in seven * * * The Management, and operation of this plant, and direction of the working forces, including the right to hire, promote, suspend, transfer from one job to another, or dis- charge, must remain in the hands of the Management of this Company. In promotion, in layoffs, and in rehiring, this Com- pany will give due regard to ability, efficiency, physical condition A The results of the election were as follows : Number of eligible employees------------------------------------------ 196, Number of votes cast________________________________________________ 167 Number of votes cast for the Federal Union-_- --------------------------- 95 Number of votes cast against the Federal Union_ ,----------------------- 72 5 See Section III B, infra. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and personal habits, and special consideration will also be given to seniority. * * * We want our employees to clearly under- stand that the Company is personally interested in their welfare; that it is the policy of the Company to pay the highest wages that prevail in our locality, or in the box business, for like work under like conditions. This statement purported to set out the "policy and present prac- tices" of the respondent. Yet this was apparently the first time that the employees had ever' been summoned to such a meeting, or advised by any means whatsoever of this "policy." The circumstances under which it was pronounced-its applicability not to, present but to future conditions-clearly indicates that the respondent's purpose in reading this statement was not to advise the employees of the pres- ent conditions-with which they were already familiar-but . to notify the employees that the respondent had, by unilateral action, determined its wages, hours, and working conditions, and that there was, therefore, no need for a union in the plant to represent them in collective bargaining. We find that the respondent, by making the foregoing statement, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharges Floyd Coombs and J. L. Heueri wan. Floyd Coombs was first em- ployed by the respondent in the late fall or early winter of 1936. His work was more or less irregular until the first of the year and then steady until March or April 1937. At that time the slack season was beginning and Coombs quit to accept another job. He again applied for work at the respondent's plant in July 1937. Business was then slow and he was not taken on until the week of September 9. He thereafter worked continuously until his discharge on October 11, 1937. Coombs, a charter member, joined the Federal Union in September 1937. He was named temporary president while still in the respond- ent's employ; was active in soliciting his fellow-workers to join the Federal Union; and contacted approximately one-third of the em- ployees for that purpose before his discharge. After the Federal Union received its charter, Coombs was elected its first regular president. J. L. Heuermann had a longer service record than Coombs. He began work for the respondent in November 1936 and worked con- tinuously until his discharge on October 11, 1937. Heuer;nann had CO'N'TINENTAL BOX COMPANY, INC. 867 attended at least two union meetings before his discharge and had asked other employees to attend such meetings. He had "signed up" with the Federal Union about 3 weeks before October 11, 1937 .1 On the afternoon of October 9, 1937, Coombs went to the plant shortly before the time he was to begin work on the night shift.. There he met Heuermann and Joe Gay, two fellow-workers who were off duty at the time, standing in the shipping entrance to the plant, smoking. The three men entered into a conversation about the affairs of the Federal Union. During this discussion, Trader, a supervisor 7 who had frequently warned Heuermann to "leave it (the Federal Union) alone," joined the group and inquired as to how to become a member of the Federal Union. Gay pointed Coombs out as the man to see about joining. Trader then walked away, returning shortly thereafter with President Talbert. As they approached the three men, Trader, in answer to a question by Talbert, stated that he thought the men were discussing the Federal Union. Talbert, approaching the three employees, asked them if they were dissatisfied, and stated, "Gentlemen, you know these labor men ain't going to join no union." 8 He also said that if the three men were not satisfied, he would "pay them off," and, further, that "he would shut down the place and go fishing before he would deal with the Union." Coombs stated that Talbert also told them that "the Union wouldn't do us any good, it would probably give us five cents an hour more, but it would cut our hours down so it wouldn't make us any- thing." The three had little to say. Talbert then turned to a truck driver who was standing nearby, but who was not in the group, and asked, "Have you got anything to do with this ?" The truck driver answered in the negative and Talbert then said, "Well, if you have, I will get you fired too." President Talbert denied that he had said anything pertaining to the Federal Union during this conversation on October 9. He stated that on that occasion he discovered the men smoking in an area where smoking wag prohibited and accused them of being dissatisfied with a Heuermann, referring to a paper not identified in the record , testified that he had joined the Federal Union October 11, 1937. This paper apparently indicated the date on which Heuermann was initiated or the date on which he paid his fees , as he testified without contradiction that he had "signed up" with the Federal Union three weeks before his discharge, although he did not pay fees the first time he "signed something" at the meeting. 7 While Trader had no authority to hire and discharge , he was in charge of the shipping department and supervised the work there . On occasion he had as high as 10 to 15 men under his supervision . Employees in the shipping department testified that Trader gave them their orders and referred to him as "the head of the shipping department." s This quotation is from the testimony of J. L. Heuermann , whom counsel for the respondent characterized as "a straightforward man" in discussing this incident in his oral argument before the Board. 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their jobs . The explanation he offered for the accusation was that: smoking in that part of the plant was punishable by discharge and; was, therefore, tantamount to a resignation. However, when first questioned about the incident, Talbert did not claim that he men- tioned smoking at the time , but said that his only remark to the men had been, "If you boys are not satisfied with the job you have got, why don't you leave?" Later, he changed his testimony some- what to state that he had told the men to "Put out your cigarettes and get on the job." Coombs , however, does not smoke and was not smoking at the time. Although the respondent indicated on the record its intention to call Trader as a witness, the latter was never called to the stand and no explanation was offered for his failure to testify . Nor was the truck driver, who was present on the occasion of this conversation, called as a witness. The Trial Examiner, who from his observation of the demeanor of the witnesses had an opportunity to form a trustworthy opinion as to their credibility, found that the testimony of Coombs and Heuermann was "convincing" and that the conversa- tion occurred substantially as recited above. The testimony of the three employees, together with all of_ the other factors discussed above, convinces us that Talbert at no time during this incident on October 9 criticized the men for smoking, but rather upbraided them for their union activities alone. We so find. After the conversation with Talbert , Heuermann completed his day's work and Coombs reported and worked on the night shift.. Neither worked after that day. While Coombs was at work that night, Talbert came to his machine and stood there for some time. Later the same evening when Coombs left his machine to get a drink of water, 'the timekeeper approached and asked him what he had done, as Talbert wanted his name and number. When 'Coombs reported for work on October 10, he was told by his foreman that the latter had orders to give him no work. At the foreman's direction , he reported to Superintendent Miller the next day and was told that his work had been unsatisfactory and his "time was fixed. " Miller refused to give him any further explanation for the discharge . When Heuermann reported for work October 11, his time card was not in the rack. The timekeeper told him he should get his check at the office . He saw Superintendent Miller in the plant after getting his check, and the superintendent told him merely that the company could not use him and that he should come back some other time. In its answer the respondent alleged that both Coombs and Heuer- mann were laid off because of lack of work . No evidence was intro- duced at the hearing in support of this allegation. As a matter of CONTINENTAL BOX COMI ANY, INC. 869 fact, the respondent stipulated that in the fall of the year it- begins its busy season, which necessitates a large increase in the number of employees rather than a decrease. We must, therefore, reject the contention that these men were laid off because of lack of work. At the hearing the respondent urged that it had discharged both Coombs and Heuermann because of their inefficiency on the rock- fastener machine. Coombs had worked on this machine several weeks during the 1936-1937 season and had been placed on it again about a week before October 11, 1937. Heuermann was also working on a rock fastener at the time of his discharge. Superintendent Miller testified that there were an unusual number of cull boxes being made shortly before Coombs and Heuermann were discharged and that he made an investigation of this and concluded that Coombs and Heuermann's crew were to blame for the excessive amount of culls. President Talbert testified in this connection that Miller had shown him a record indicating that Coombs was not a capable workman and produced too many culls." Miller, on the other hand, denied that the company kept any record of the number of culls.10 No records were produced by the respondent to show the percentage of culls turned out by Coombs and Heuermann as compared to the percentage turned out by other employees performing similar opera- tions or to show that an excessive number of culls were actually produced at the time in question. ° The testimony of Talbert on this point was as follows : .Q. (By Mr. Duncan .) I asked you do you, personally , know of any other act of inefficiency by Mr. Coombs and the alleged smoking incident? A. (Talbert). Yes. The record was produced and I stated it and it is still there at the office and we can still produce it. Q. Now, was it from that record that you testified a moment ago that Mr. Coombs was producing culls? A. Yes. Q. Is that correct? A. Yes, from that record. Q. Is that the reason that he was fired? A. I did not fire him. Q. You did not fire him? A. No. Q. Do you know why he was fired? i • # • M t A. Mr. Miller brought me a record and proved that he was not a capable work- man and I told him that he knew what to do with those sort of people, to get rid of them. Q. Was it by showing you that Mr . Coombs was producing culls that he proved to you that Mr. Coombs was not an efficient worker? A. Yes. 10 The testimony of Superintendent Miller was as follows : Q. (By Mr. Duncan.) Does the company keep any tabulation of the number of culls produced? A. (Miller). No, sir ; It never has. Q. You never have kept an account of how many culls are produced? A. No, sir. Q. Or how many are repaired? A. No, sir. 283030-41-vol. 10-56 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a Other than the statement of Superintendent Miller that his investigation disclosed that Heuermann's crew produced a great many culls, no evidence was offered by the respondent in support of its contention that Heuermann was inefficient. Even if we were to accept as true this unsupported testimony of Miller's, we could not find that Heuermann was discharged for inefficiency in view of the fact that the record does not indicate that Heuermann was to blame for the alleged excessive number of culls turned out by the crew. Nor is there any evidence whatsoever that other members of the crew were discharged or penalized in any way at the time Heuer- mann's employment was terminated. Heuermann had had no com- plaints about. his work within at least 3 months of his discharge on October 11. As a matter of fact, he remembered only one complaint during his entire employment at respondent's plant; that, shortly after he began work. To support its contention that Coombs was inefficient, the re- spondent called as witnesses a cull repairman and a part-time super- visor,ll both of whom testified that there were more culls than usual at the time Coombs worked on one of the rock fasteners. The cull repairman further stated that most of these culls came from one particular machine, where Coombs worked "part of the time." On the other hand, a third witness called by the respondent, testified that Coombs had worked as rock fastener behind his machine at least a week and that he had no "real objections" to his work. He said further that he had found Coombs a "fairly good" operator and that the men who were acting as rock fasteners behind his ma- chine at the time of the hearing, "worked about the same." Coombs, himself, testified that his work had never been criticized until after his discharge, when Superintendent Miller told him that he was unsatisfactory. Upon consideration of the entire record, we find that it does not substantiate the contention that either Heuermann or Coombs was an inefficient employee. The respondent also suggests that the discharge of these men was brought about, at least in part, by an alleged violation of the no-smoking rule, on October 9. Yet Coombs, who does not smoke and was not smoking at the time, was discharged, while Gay, who was admittedly smoking, was not discharged. In connection with this defense, it is also important to note that President Talbert said nothing to the men on October 9 about smoking, nor did Superin- tendent Miller mention it to either Coombs or Heuermann when 11 This witness, Byrd, worked part time as a supervisor and part time as a machine set-up man. When acting in the latter capacity he was not in a position to know the number of culls produced or who was responsible for their production . He was not always acting as a supervisor during the period that Coombs was on the rock fastener. CONTINENTAL BOX, CODIPA\ Y', INC. 871 he discharged them. On this showing we cannot accept the con- tention that the alleged violation of the no-smoking rule was one of the factors which brought about these discharges. Heuermann applied for, reinstatement about a- month before the hearing commenced, but Superintendent Miller refused to reinstate him. Coombs applied for reinstatement on two occasions, but Miller told him he was not needed. The respondent contends that it refused to reinstate Coombs because at the time of his discharge he "threat- ened" Miller and because on one subsequent occasion when he applied to Miller for reinstatement he "approached him in a belligerent atti- tude with his fist clinched" and on another "in an extremely disagree- able" manner. It is not denied that Coombs engaged in the foregoing acts. As stated above Coombs "threatened" Miller on the occasion when the was discharged; the "threat" being to "get even." Coombs made the threat after accusing Miller of having discharged him because of his union activity. We find below that the respondent, in fact, discharged Coombs because of his union activity. The respondent provoked the "threat" from Coombs by its unlawful action in terminating his em- ployment. His actions on the occasions when he applied for reinstate- ment were also colored by the respondent's prior conduct. The respondent could well anticipate that Coombs would be resent- ful and even belligerent as a result of the termination of his employ- ment in contravention of the Act. Moreover, the respondent has not in any way indicated its disposition to cease the discrimination against Coombs which resulted in his discharge. Under all of the circum- stances we find that Coombs' conduct at the time of his discharge and when he applied for reinstatement was not the reason motivating the respondent in refusing to reinstate him. Upon consideration of the entire record we find that the respondent, on October 11, 1937, discharged, and subsequently refused to reinstate, Floyd Coombs and J. L. Heuermann and each of them because of their membership and activities in the Federal Union, thereby discriminat- ing in regard to the hire and tenure of employment of the said em- ployees and each of them, and discouraging membership in a labor organization; that by said discharges and refusals to reinstate, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Bennie Sampson. Sampson, a colored employee, was a charter member and trustee of the Federal Union. He talked to almost all of the negroes in the plant about the organization and asked them to join. He began work for the respondent in November 1933 and worked continuously until January 28, 1938. Several months after 872 DECISIONS OF NATIONAL LABOR REIATIONS BOARD he was hired he was given a job on the printing machine and thereafter. remained at substantially the same work. For at least 11/2 years be- fore his alleged lay-off he had operated a printing machine with an- other employee, Mason Johnson. During his 4 years of service with the respondent, Sampson received several wage increases. There is no evidence that his work was ever criticized or was unsatisfactory in any respect.. Two or three days after the consent election in December 1937 Sampson and Mason Johnson were called to the president's office. There they met Talbert who questioned them about how they had voted in the election and whether or not they were members of the Federal Union. Johnson said that he had voted for the Federal Union but was not a member. Sampson, however, admitted that he had not only voted for the Federal Union, but was a member and had paid initiation fees and other assessments . Talbert, on hearing this, cursed and said, " . . . that mussed you up and mussed me up too." He went on to say that he could live for a year without working, and that before he would hire outsiders he would blow the whistle and shut down, and then asked the men whether they could live for a month or two without work. He also stated, "We have our own or- ganization," and suggested that the two employees forget the Federal Union and join the Association. Mason Johnson, who was retained on the printing machine after Sampson's so-called lay-off, testified for the respondent. He was not questioned about this specific incident but did deny generally that Talbert had ever talked to him about the Federal Union or that he had ever heard Talbert talk to any other employees about such matters. Talbert, himself, denied that he had had such a conversa- tion with Sampson and Johnson or that he had ever discussed the Federal Union with the latter. In view of Talbert's similar denial of the anti-union statements which we have found that he made on October 9, and in view of the Trial Examiner's refusal to credit the instant denials, we cannot give credence to his testimony concerning the above conversation. On or about January 27, 1938, 46 employees were severed from the respondent's pay roll because of the seasonal decline in business. Sampson was included in the group of 46 although he had never been furloughed in seasonal lay-offs before. There were approximately 34 employees with less seniority than lie retained, while only 1 with more seniority were laid off. Of these seven, five 12 were like Samp- son members of the Federal Union. Mason Johnson was retained on 'a These five included Ralph Cato and Theodore Ryan, whose lay-offs were also the subject of 8 (3) allegations in the complaint and are discussed hereinafter. CON'TINENTA'L BOX COMPANY, INC. 873 the machine which he and Sampson had operated. He had more seniority than Sampson, and the respondent claims that he was a more- efficient employee. Superintendent Miller stated-that-no one had been put on Salnp- son''s.job to replace him. It does not appear in the record, however, that any change was made in the method of operating the printing machine that would enable one man to do the work formerly done by two. In oral argument the attorney for the respondent claimed that Johnson and Sampson operated two different machines and that when business dropped off, one machine was closed down. He ad- mitted that this was not a part of the evidence in the case. As a matter of fact, the record indicates that Sampson and Johnson worked on the same machine and that both had been retained during the dull season the previous year. Sampson testified that the day he left he saw an employee, named Ben Ivory, take his former job, and that both Ivory and Johnson had told him since that time that the former had his job. Ivory had less seniority than Sampson and was, as a matter of fact, retained at the time the latter was laid off. Mason Johnson was not questioned as to whether or not Sampson had been replaced. Ben Ivory was not called as a witness, although it appears from the record that he was still in the respondent's employ at least as late as September 22, 1938. The evidence discussed above convinces us that Sampson was replaced at the time of his alleged lay-off in January 1938 and that such "lay-off" was in fact a discharge. At the time of his discharge Sampson was told by Superintendent Miller to make sure that the respondent had his right address. He chid so but was not recalled in the fall of 1938. Around October he heard that the respondent was taking on men and visited the plant to apply for work. . Miller told him that they could not hire him. Between the date of Sampson's discharge and the time of the hearing, the respondent had recalled 67 old employees and hired 75 new em- ployees, yet Sampson was never recalled. Upon consideration of all the surrounding circumstances, we are convinced that President Talbert's remarks to Sampson shortly before his discharge indicate the true reason for the termination of his employment. We find that the respondent, on January 28, 1938, discharged, and subsequently refused to reinstate, Bennie Sampson because of his membership and activities in the Federal Union, thereby discrim- inating in regard to thee hire and tenure of employment of the said employee and discouraging membership in a labor organization; that by said discharge and refusal to reinstate, the .respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ralph Cato. Cato began work for the respondent in 1929 and worked continuously until January 28, 1938. He was employed in the shipping department.13 He began work at 25 cents an hour and was making 40 cents an hour at the time of his alleged lay-off. He joined the Federal Union when it was first organized and attended several meetings. He talked to other employees about the Federal Union and asked them to join. On several occasions during November and December 1937, Trader, Cato's foreman, questioned him concerning his membership in the Federal Union. On one such occasion President Talbert passed by and the foreman pointed Cato out as one of the Federal Union men. Talbert then asked Cato if he was a Federal Union man, but Cato denied it. The president then said, "If I thought you were, I would throw you out of here just like you would throw a fried Irish potato out." Trader did not take the stand to deny that he had engaged in this activity. Talbert admitted that he might have made a remark similar to the one about the "Irish potato" if Cato was not doing his work, but denied that he had discussed the Federal Union with Cato at any time. A day or two after the consent election, Cato was called to Talbert's office where the latter asked him again if he had joined the Federal Union. When Cato finally admitted that he had, Talbert told him, among other things, that he was "cutting his own throat" and that he, would "shut down" before he would let the Federal Union come into the plant. The president further stated that he had enough money to last 2 years and asked whether Cato had enough to stay on the Federal Union's side for that long. As in the case of his similar remarks to Bennie Sampson, Talbert denied this conversation in a general way. In view of Talbert's anti-union attitude as dis- closed by the entire record and our previous findings as to Talbert's credibility, we ate constrained to reject his denials with respect to his conversations with Cato. Cato's employment was terminated by the respondent on January 28, 1938, together with that of 45 other employees. At the time Cato was the oldest employee in his department and no one else in the entire plant having a seniority record equal to his was laid off. Approximately 49 employees with less seniority than he were retained. On previous occasions when there had- been no work available for Cato in the shipping department he had been given work in other parts of the plant. 13 Cato's work required him to lift bundles weighing from 25 to 100 pounds and load them in box cars. CO2NTINE\TAL BOX CO'MPAN'Y, YN C. 875 The respondent contends that Cato was chosen as one of the em- ployees to be laid off because of his physical condition. Some time in the summer of 1936 the respondent, upon instructions from Gen- eral Box Company, its parent corporation, instituted the practice of requiring its employees to have physical examinations. Superin- tendent Miller testified thit,'t the respondent's policy with reference to the examinations was not to employ or reemploy anyone who was reported unfit. He stated that the rule was not strictly applied as to old employees, that in the' case of such employees having unfavorable reports, he and President Talbert took the individual cases under advisement and did not always discharge a man whose report dis- qualified him.14 Miller also stated that the report on physical exami- nation was taken into consideration in making seasonal lay-offs. In June 1936 Cato cut his hand while working in the plant and was sent to the Houston Clinic for treatment. During the time that he was off work with this injury and was visiting the clinic. for treat- ment, he was given his first physical examination. This was on July 9, 1936. The recommendation of the doctor who made the ex- amination was, "Disqualified because of marked varicosities of both legs." In spite of this report disqualifying him, Cato was returned to work August 6, 1936, and worked continuously, without lay-off and without any further physical examination, from August 1936 until January 1938.15 There can be no doubt that his so-called lay- off on that date amounted to a discharge. A "good many" men were admittedly hired in the shipping department between January and December 1938, yet Cato was never recalled. The respondent ad- mitted that he had been replaced."' In October 1938, Cato again applied for work at the respondent's plant. Superintendent Miller, whom he first saw, told him that the Company was not putting on any hands. Cato later spoke to Presi- dent Talbert, who told him to go to Miller and get a slip for another physical examination. When he got the slip from Miller, the latter 14 Charlie Washington , another employee with less seniority than Cato, was not laid off in January 1938, although the recommendation of the doctor on Washington 's exami- nation made July 9, 1936, stated that he "Shows moderate varicocele and disqualifying enlargement of both inguinal rings." Superintendent Miller testified that Washington was kept on in spite of this report , because he was an exceptionally good man and his work did not require him to do any lifting over 30 pounds , while Cato ' s work required him to lift bundles 'weighing from 25 to 100 pounds . There is no medical or other testi- mony in the record, however, as to what type of work a man in Washington's condition could safely perform, nor is there any such testimony as to what could or would result if either Cato or Washington performed heavy work. 15 It should be noted that Cato was retained during the dull season in the spring and summer of 1937, although "quite a number" of employees were laid off in April 1937, according to Superintendent Miller. 1e Superintendent Miller testified that Cato had been replaced by a new man in the fall of 1938 and that in the meantime men were occasionally transferred to the depart- ment when it was busy. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told him that if the doctor gave him a favorable report he could re- turn to work. He then went to the clinic for a second examination. The doctor's recommendation on this occasion was, "Extreme vari- cosity of veins of both legs and right thigh. This makes him un- qualified for heavy work or work requiring much walking or stand- ing." Superintendent Miller refused top reinstate Cato after this report, although he had reinstated him in the fall of 1936 after re- ceipt of a similar report, which disqualified Cato, not for any particular kind of work, but generally, for work in the respondent's plant. A comparison of the treatment accorded to Cato by the respondent before and after he joined the Federal Union is enlightening. The respondent rehired Cato in the fall of 1936 after receipt of an un- favorable physical report disqualifying him for work . When the time came for the seasonal lay-off in the spring of 1937 , Cato was retained in spite of this report. All of this occurred before he joined the Federal Union. Turning to an examination of the treatment which Cato received after joining the Federal Union, we find that he was discharged in January 1938 allegedly because of this same physical report and was refused reinstatement in the fall of that year allegedly on the basis of a second report which was similar to the first but suggested that Cato could be hired for lighter work. The record fails to disclose any reason for the respondent 's changed attitude toward Cato other than that contained in President Tal- bert's threats to get rid of him if he engaged in any activity in behalf of the Federal Union. In the light of the entire record, we find- that the respondent, on January 28 , 1938, discharged, and subsequently refused to reinstate, Ralph Cato because of his membership and activities in the Federal Union, thereby discriminating in regard to the hire and tenure of employment of the said employee and discouraging membership in a labor organization ; that by said discharge and refusal to reinstate, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. About 13 weeks after his discharge , Cato obtained a week's work .at $2.00 a day cleaning out a lumber yard. Later, he was hired for 4 days at 40 cents an hour digging an excavation for the foundation of a house. Other than this, he had had no employment up to the time of the hearing. He desires reinstatement. Theodore Ryan. Ryan was first employed by the respondent in the fall of 1933. He worked continuously until the spring of 1936, when he was laid off along with other employees because of the .seasonal decline in business. After that time he worked during the busy seasons in 1936-1937 and 1937-1938. He was again laid off on CONTINENTAL BOX COMPANY, INC. 877 January 28, 1938, with the group of 45 other employees referred to above. Ryan had never had any complaints about his work, but his hourly rate of 23 cents was never raised during his 5 years of service. Ryan joined the Federal Union in November 1937 and attended three of its meetings. Occasionally he would ask other employees to join as they walked home from work. Both President Talbert and Superintendent Miller denied that they knew of Ryan's mem- bership in the Federal Union at the time of his lay-off. As set out above, Ryan was laid off on January 28, 1938. There were approximately 36 employees with less seniority retained, while only 2 with more seniority were laid off. However, this was the third straight season that Ryan had been among those chosen for the lay-off.. Ryan applied for reinstatement on two occasions but was told that there was no work for him that fall. We find that the lay-off of Theodore Ryan and the subsequent refusal to reinstate him were for reasons other than his union activities. C. Domination of and interference with the formation and admin- istration of the Association About a month before the consent election in December 1937, some of the older employees in the respondent's plant organized the Asso- ciation. One of these men, Peter Thiesen, admitted that his purpose in doing so had been to fight the Federal Union. The founders of the Association circulated petitions and solicited the signatures of those who were interested in joining. The treatment accorded the Association by the respondent from the time of its inception was in sharp contrast to that accorded the Federal Union. We have already pointed out how Coombs and Heuermann were soundly rebuked and then discharged merely for engaging in a quiet conversation about the Federal Union on their own time. Yet the Association was permitted to carry on wide- spread solicitation for members on company property. Many of the respondent's own witnesses testified that they had "signed up" for the Association in the plant, some even admitting that they had done so during working hours. It is inconceivable that such general solicitation could have gone unnoticed, yet apparently no steps were taken to stop it. On the eve of the consent election the respondent had warned its employees that solicitation of union mem- bership on company property would not be tolerated.17 Yet this rule "President Talbert's statement to the employees that night read in part, "This Com- pany will insist that there shall be no solicitation of union membership on the Company's premises." 878 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not applied to the Association. In defense of the allegation that the respondent permitted widespread solicitation in the plant by that organization, the answer stated that "Respondent has made no effort to interfere with activities of its employees in labor organi- zations either during or after working hours ; . . . respondent has not prevented its employees from discussing labor organizations during working hours and signing their names to instruments relat- ing thereto." As hereinbefore mentioned, President Talbert, who berated sev- eral of the Federal Union men for their activities on behalf of the outside organization, urged Bennie Sampson to join the Association. Supervisor Trader, who had questioned employees about their mem- bership in the Federal Union and advised them to "leave it alone" apparently felt no such animosity toward the Association, as the record indicates that he was himself a member of that organization. G. H. Rowald, who was in charge of the shipping department at night, was also a member of the Association. W. R. Byrd, who identified himself as a supervisor,18 admitted that he also had solici- ted employees to join the Association. A day or two after the consent election a group of employees who belonged to the Association called on President Talbert and asked him to recognize them as the bargaining agency for the employees. Talbert told them that they had to get organized and get a lawyer before he would think about it. The Association followed his sug- gestions. A few days later it hired a lawyer, held a meeting, and elected officers. The respondent's favoritism towards the Association was also evi- denced in its speedy recognition of that organization as bargaining agent for its employees. We have already pointed out that the respondent insisted on an election before it would recognize the Federal Union, and that prior to the election it interfered with its employees' right of self-organization by attempting to persuade its employees that collective bargaining with it would be futile and that there was no need for a union in the plant. On December 28, 1937, a week after the election,19 a committee of 9 members of the Association approached Talbert and claimed that 111 employees had joined the Association. They presented a petition bearing 111 sig- natures. President Talbert testified that they also presented signed membership cards and that after checking the signatures on the cards and the petition and finding them to be authentic, he recognized the group. Cox, president of the Association, who was on the committee, testified, however, that at that meeting only the petition was pre- 18 Byrd directed the work in the plant but had no authority to hire or fire. 19 See footnote 4 for the results of the election. CONTINENTAL BOX, COMPANY, INC. 879 rented, and that Talbert "just looked at it" and said he would recog- nize the Association . The respondent introduced in evidence a copy of a letter dated January 10, 1938, which was identified by Talbert as a communication addressed to him by the Association asking for a meeting to discuss a contract . In its letter the Association claimed to represent more than 60 per cent of the employees and stated that it would exhibit to Talbert the signed membership cards at any time he desired to see them. The evidence is undisputed that the Com- pany recognized the Association about 2 weeks before January 10, 1938. In view of this letter offering to show Talbert the cards 2 weeks after he claimed he had seen them , and in view of the testi- mony of the president of the Association set out above, we do not place any weight in Talbert's contention that he saw the membership cards and checked the signatures thereon before recognizing the As- sociation. Any check that he may have made on December 28 must have been very casual , and recognition was given the Association almost immediately. On, the very night of this meeting or, at the latest, the next day, the respondent placed a notice on its bulletin board, advising its employees that the Association was recognized as the representative of a majority of its employees . The notice contained a list of those whose signatures appeared on the petition which had been submitted to Talbert. The speedy recognition of the Association after a hasty check of its majority claims is in sharp contrast to the respondent's insistence on an election before dealing with the Federal Union. The evidence unquestionably shows that the respondent favored the Association as against the Federal Union, and did not hesitate to make this preference known to its employees. No records of the Association were produced at the hearing. Thomas Doyle, one of the originators of the organization, had all of its records in his possession. He was no longer in the respondent's employ at the time of the hearing , and no one knew where he could be reached. Doyle had arranged for the use of the meeting hall for the organization and had obtained the membership cards which it used, but there was no evidence to indicate who paid the expenses which he incurred . The bylaws of the Association provide for dues of 10 cents a week, but no dues were ever collected and there was no money in the treasury at the time of the hearing . The secretary of the organization stated that she did not know who paid the expenses. We find that the respondent dominated and interfered with the formation and administration of the Employees Aid Association and. contributed support to it, and thereby interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It is essential in order to effectuate the purposes and policies of the Act that the respondent be ordered to cease and desist from certain activities and practices in which we have found it to have engaged. Further to effectuate the purposes and policies of the Act, and as a means of removing and avoiding the consequences of the respondent's unfair labor practices, we shall, in aid of our cease and desist order, order the respondent to take certain affirmative action, more par- ticularly described below. We have found that the respondent in many ways has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by the Act, and we shall, therefore, order the respondent to cease and desist from any such practices. We have found that the respondent discriminatorily discharged, and subsequently refused to reinstate, Floyd Coombs, J. L. Heuer- mann, Bennie Sampson, and Ralph Cato because of their union mem- bership and activity. We shall, therefore, order the respondent to offer them reinstatement to their former positions without prejudice to their seniority and other rights and privileges. The respondent contends that Coombs was refused reinstatement because of his con- duct at the time he was notified of his discharge and at the subse- quent times when he applied for reinstatement. We have previously considered this contention and found that Coombs was refused rein- statement because of his union membership and activity. Even in the absence of this finding we do not believe that Coombs' conduct was such as to bar him from reinstatement. 21, We hold that the effectuation of the policies of the Act requires that Coombs' dis- criminatory discharge be remedied by his reinstatement.21 As here- tofore set forth, the respondent asserted that Cato was refused reinstatement because of his physical condition. We have found, however, that he was refused reinstatement because of his member- 20 See Republic Steel Corporation 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 Committee, 9 N. L. R. B. 219. -Matter of Harnischfeger Corporation and Almagated Association of Iron, Steel and Tin Workers of North America, Lodge 1111,, 9 N. L. R. B. 676. CONTINENTAL BOX COMPANY, INC. 881 ship and activity in the Federal Union. In so finding we did not hold that Cato did not suffer from the condition reported by the doctor who examined him. As a result of his examination the doctor concluded, "This makes him unqualified for heavy work or work requiring much walking or standing.". He also reported to the respondent that Cato was "fitted for light work." In view of these. facts, we shall not require the respondent to reinstate Cato to his former position in the shipping department, but shall provide that. it may, if it so desires, carry out our order to reinstate him by placing him in a substantially equivalent position involving "light work." 22 We shall further order the respondent to make whole Coombs, Heuermann, and Sampson for any loss of pay they have suffered by reason of their respective discharges 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 reinstatement, less his net earnings during said period .28 We shall order the respondent similarly to reimburse Cato. Since the Trial Examiner did not recommend the reinstatement of Cato, however, we shall, in accordance with our usual practice, limit such reimbursement in his case to the periods (1) from the date of his, discharge to the date of the Intermediate Report, and (2) from the date of this Order to the offer of reinstatement.2' The respondent contends, however, that Coombs, Heuermann, and Sampson have secured regular and substantially equivalent employ- ment elsewhere and, therefore, are no longer employees, within the meaning of Section 2 (3) of the Act; that, since they are not em- ployees, the Board has no power to reinstate them. While we do not adopt the view that the obtaining of other regular and substantially equivalent employment deprives the Board of power to reinstate in- dividuals who have been discharged for union activities and desire reinstatement, 25 the employment -records of these three men since the 22 See .Matter of Harnischfeger Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1114, 9 N. L. R. B. 676. 23 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 termination of employment and the consequent necessity of his seeking employment else- where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers, 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. 2 Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760. 25 Matter of Eagle-Picker Mining & Smelting Company, a corporation, and Eagle-Picker Lead Company, a corporation and International Union of Mine, Mill & Smelter Workers, Locals Nos. 15, 17, 107, and 111, 6 N. L. R. B. 727. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date of their discharges would not in any event justify the applica- tion of the rule for which the respondent contends.21 Floyd Coombs. Coombs had several temporary jobs after he was discharged by the respondent. He worked 4 days as an "extra" employee for Trappey & Son, distributors of canned goods; 10 days for the Postal Telegraph Company as a messenger during the Christ- mas season; and 3 weeks as an-extra helper on a rush order for B. A. Reisner, a small structural steel concern. On March 1, 1938, he ob- tained employment with Myers-Spalti Furniture Company. He began work there at 27 cents an hour and' was making 35 cents an hour at the time of the hearing. He worked a 40-hour week and had earned, on the average, about $13.00 per week. Coombs received 33 cents an hour while working for the respondent. Although Coombs received a higher hourly rate at Myers-Spalti, his weekly earnings were greater when he worked for the respondent. His work at the time of the hearing consisted of finishing and staining boats. At the time he was discharged by the respondent, Coombs was op- eratiing a rock-fastener machine. He testified that he "liked machine work best." He testified that, if granted his seniority, he would rather work for the respondent than Myers-Spalti even though at a lower hourly rate, and that he believed that in a year he would be making more at the respondent's plant than at Myers-Spalti. We find that Floyd Coombs has not obtained regular and substantially equivalent employment. J. L. Heuermann. About 1 or 2 months after his discharge Heuer- mann obtained part-time work with the Pullman Company which he still had at the time of the hearing. He worked an average of 2 or 3 days a week in the molding department and earned from $3.36 to $4.50 a day: He had made as high as $18.00 to $19.00 a week there. The record does not disclose Heuermann's hourly rate at the respond- ent's plant. At the time he was discharged he was doing the same work as Coombs, who received 33 cents an hour. Heuermann, how- ever, had a longer service record with the respondent. At the hear- ing Heuermann indicated his desire to return to work. We find that J. L. Heuermann has not obtained regular and substantially equivalent employment. Bennie Sampson. About 6 months after his discharge Sampson ob- tained employment with Elizabeth Moody, doing farm work. His work consisted of caring for cows, hogs, and chickens. He was paid $2.00 a day. When discharged by the respondent Sampson was earn- ing from 33 to 38 cents an hour. After 11 weeks he. quit this farm job because he was afraid of Elizabeth Moody, who "cursed" and- 2e Cf. Matter of Mooresville Cotton Mills and Local No. 1221, United Textile Workers of America, 15 N. L. R. B. 416. CONTINENTAL BOX COMPANY, Iac. 883 "talked about using a gun." At the time of the hearing Sampson was loading rice at the Federal Warehouse. He had had the job only about 2 months, and made 8 cents an hour less than he had made when working for the respondent. He worked only when there were orders to fill, and in the month before the hearing got only a few scattered days of work. Sampson desires reinstatement. We find that Sampson has not obtained regular and substantially equivalent employment. The respondent also maintains that Heuermann should. not be reinstated because he refused an offer of reinstatement made at the hearing. During the course of the hearing counsel for the respond- ent offered to reemploy Heuermann without back pay and without his seniority rights. He was asked on the record, ". . . does he desire to drop this controversy and accept his job?" Heuermann was given only a few hours to decide. He was not represented by counsel and it is clear from the record that he was confused as to his rights in the matter. When the attorney for the Board attempted to advise Heuermann of his rights he was met by vigorous objections on the part of the respondent's counsel. Heuermann agreed to return to work if given his old job with full seniority and back pay, but this was not the respondent's offer. Taking into consideration the circumstances under which it was made and the substance of the offer itself, we do not believe that Heuermann's rejection of this proposition should affect in any way the remedy which we would ordinarily order in his case. We have found that the respondent dominated and interfered with the formation and administration of the Employees Aid Asso- ciation of the Continental Box Company, Inc., and contributed sup- port to it. Because of such domination and interference, the Em- ployees Aid Association cannot serve the respondent's employees as a genuine agency for collective bargaining. We shall order the respondent not only to cease and desist fron such domination and interference, but also to withdraw all recognition from, and com- pletely disestablish, the Employees Aid Association as the repre- sentative of any of its employees for the purpose of collective bar- gaining with it in respect to wages, hours, and other working conditions. 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. Federal Labor Union No. 21328 and Employees Aid Associa- tion of the Continental Box Company, Inc., are labor organizations, within the meaning of Section 2 (5) of the Act. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire and tenure of employ- ment of Floyd Coombs, J. L. Heuermann, Bennie Sampson, and Ralph Cato, thereby discouraging membership in Federal Labor Union No. 21328, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By dominating and interfering with the formation and adminis- tration of the Employees Aid Association of the Continental Box Company, Inc., and by contributing support thereto, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) 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 has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. By laying off Theodore Ryan on January 28, 1938, and refusing to reinstate him, the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, as alleged in the complaint. 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 re- spondent, Continental Box Company, Inc., Houston, Texas, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Federal Labor Union No. 21328 or any other labor organization of its employees, by discharging or laying off its employees or any of them, or in any other manner dis- criminating in regard to hire or tenure of employment of its employees; (b) Dominating or interfering with the formation or administra- tion of the Employees Aid Association of the Continental Box Com- pany, Inc., or any other labor organization of its employees, or lending financial or other support thereto; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their 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 v CONTINENTAL BOX COMPANY, INC. 885 mutual aid or protection , as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Floyd Coombs, J. L. Heuermann , and Bennie Samp- son, immediate and full reinstatement- to "their former positions, and to Ralph Cato immediate reinstatement to his former position or to substantially equivalent employment , without prejudice to their seniority and other rights .and privileges; (b) Make whole Floyd Coombs, J. L. Heuermann , and Bennie Sampson and each of them for any loss of pay they have suffered by ,reason of their respective discharges , by payment to each . of them of a sum of money equal to the amount he normally would have earned as wages during the .period from the date of his discharge to the, date _of..the offer .of reinstatement, less his net earnings 27 during .said; period ; deducting, however, from. the amount otherwise due. to . each of the said employees monies received -by .said. employees .during said period for work performed upon Federal, State, county, munic- ipal, or other work-relief projects; and pay over the amount so de- ducted 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) Make whole Ralph Cato for any loss of pay he has suffered by reason of his discharge , by payment to him of a sum of money equal to the amount he normally would have earned as wages during the period from the date of his discharge to March 24, 1939, and during the period from the date of this Order to the date of the offer of reinstatement , less his net earnings 28 during said periods ; deducting, however, from the amount otherwise due to the said employee, monies received by said employee during said periods 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; (d) Withdraw all recognition from the Employees Aid Associa- tion of the Continental Box Company , Inc., as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances , labor disputes , wages, rates of pay , hours of employment , or other conditions of work, and completely disestablish the Employees Aid Association of the Continental Box Company, Inc., as such representative; 27 See footnote 23, supra. 28 Ibid. 283030-41-vol. 19--57 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Immediately post and keep posted, in conspicuous places in and about its plant at Houston, Texas, for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating that it will cease and desist in the manner set forth in para- graphs 1 (a), (b), and (c) of this Order, that it will take the affirma- tive action set forth in paragraphs-2 (a), (b), (c), and (d) of.this Order; and that the respondent's, employees are free to become or re- main members of Federal Labor Union No. 21328 and that-the respond- ent will not discriminate against any employee because of membership or activity in that organization; (f) Notify the Regional Director for the Sixteenth Region, in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. AND IT Is FURT--HER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges, with regard to Theodore Ryan, that the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (3) of the Act.