Lawrenceburg Roller Mills Co.

In the Matter of LAWRENCEBURG ROLLER MILLS COMPANY and FLOUR MILL & GRAIN ELEVATOR EMPLOYEES UN ION No. 21840, AFFILIATED WITH THE A. F. or L. Case No. C-1478.-Decided May 18, 1940 Milling Industry-Interference, Restraint, anti Coercion: speech and notice calculated to discourage membership in union ; questioning, warning, and threat- ening employees with respect to the union and disparaging the effectiveness of the union as a bargaining agent; demotion of union member; charges of, unsup= ported as to maintenance of surveillance over union meetings-Discrimination: discharges : charges of, sustained as to one, dismissed as to two employees; lay-cffs: charges of, sustained as to two employees-Reinstatement Ordered: of employee discharged and of employee demoted-Back Pay: awarded one employee from date of discharge to date of offer of reinstatement ; awarded two employees from date of lay-off to date of reinstatement; awarded one employee from date of demotion to date of Intermediate Report and from date of Order to offer of reinstatement. Mr. Walter B. Chel f and Mr. Robert D. Malarney,, for the Board, Stanley c0 Smoyer, by Mr. Harry E. Smoyer, of Cleveland, Ohio, and Bielby & Bielby, by Estal G. Bielby and Chester E. Bielby,, of Lawrenceburg, Ind., for the respondent. Mr. Robert A. Wilson, of Washington, D. C., for the Union. Mr. Raymond J. Compton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Flour Mill & Grain Elevator Employees Union No. 21840, affiliated with the A. F. of L., herein called the Union , the National Labor Relations Board, herein called the Board, by Robert H. Cowdrill , Regional Director for the Eleventh Region (Indianapolis, Indiana ), issued its complaint dated June 28, 1939 , against Lawrenceburg Roller Mills Company, Lawrenceburg, Indiana, the respondent herein , alleging that the re- spondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) 23 N L. R. B., No.. IN. 980 LAWRENCEBURG ROLLER MILLS COMPANY 981 and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the complaint, as amended, alleged that the respondent (1) in December 1938, discharged George Daugherty, Albert Luchte, and James White, and in January 1939, laid off Roy Gribben and Walter S. Rhodes, and thereafter refused to reinstate said employees for the reason that they assisted the Union and engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection; and (2) by the afore-mentioned acts, by urging, persuading, and warning its employees to refrain from becoming or remaining members of the Union, by threatening them with discharge and other reprisals if they became or remained members of the Union, and by maintaining surveillance over meetings of the Union, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint and notice of hearing were duly served upon the respondent and upon the Union. On August 7, 1939, the respondent filed a written answer to the complaint admitting the allegations of the complaint as to the nature of its business, but denying that it had engaged in the unfair labor practices alleged therein. Pursuant to notice, and notice of postponement, a hearing was held in Lawrenceburg, Indiana, from August 28 through September 8, 1939, before Thomas S. Wilson, the Trial Examiner duly desig- nated by the Board. The Board and the respondent were represented by counsel, participated in the hearing, and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. During the course of the hearing, the Trial Examiner granted a motion by counsel for the Board to dismiss the allegations of the complaint in so far as it alleged that the respondent had discriminatorily discharged and refused to reinstate George Daugherty. At the conclusion of the Board's case, counsel for the Board further moved to amend the complaint to conform to the proof with respect to variances in names, dates, and minor formal errors. The motion was granted. The Board has reviewed the rulings of the Trial Examiner on notions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Trial Examiner thereafter filed his Intermediate Report, dated January 20, 1940, copies of which were duly served on the parties, in which he found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act by making a speech and posting a notice discouraging membership in the Union, by maintaining surveillance 2M4034-41-N of 23--G3 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a union meeting, and by warning and persuading its employees, through supervisory officials, to refrain from joining or remaining members of the Union, and by discriminating in regard to the hire and tenure of employment of Albert Luchte, James White, Roy Gribben, and Walter S. Rhodes. He accordingly recommended that the respondent cease and desist from engaging in these activities and, affirmatively, reinstate with back pay the four employees found by him to have been discriminatorily discharged or laid off. On March 14, 1940, the respondent filed exceptions to the Inter- mediate Report of the Trial Examiner, and a brief in support of its exceptions. On March 19, 1940, pursuant to notice duly served upon all the parties, a hearing for the purpose of oral argument was held before the Board at Washington, D. C. Only the Union appeared by counsel and participated. The Board has reviewed the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is an Indiana Corporation engaged in the milling of wheat, flour, and offal at Lawrenceburg, Indiana. In 1938 it pur- chased grain amounting in value to $1,395,000, of which approximately 50 per cent was shipped to it from points outside the State of Indiana. During the same period, the respondent shipped approxi- mately 95 per cent of its finished products, consisting of 358,000 barrels of flour and 15,000 tons of feed, valued at $2,100,000, to States other than Indiana. The respondent employs approximately 65 employees in the operation of its Lawrenceburg plant. IT. THE ORGANIZATION INVOLVED Flour Mill & Grain Elevator Employees Union No. 21840, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In the latter part of October 1938, a group of the respondent's em- ployees initiated the formation of the Union, and at a meeting held on November 15, 1938, 15 employees joined the organization , applied for a charter, and elected Albert Luchte business agent. In October rumors that a union was being formed were reported to Louis B. LAWRENCEBURG ROLLER MILLS COMPANY 983 Henkle, plant superintendent, by Steve Liddle, mill foreman, and Largus Brauer, foreman of the warehouse. Henkle testified that he also saw "signs that something was going on," that he noticed groups of men "with their heads together" who would avoid his gaze and had a "rather sneering expression on their faces." He thereupon conferred with Frank Hutchinson, vice- president and general man- ager, and informed him of the rumors concerning the formation of a union, and that some of the men had been told there was going to be a "closed shop" and if they did not join the Union they might lose their jobs. He advised Hutchinson that such rumors were "a bad thing for the plant." It was then decided that Henkle should talk to "some" of the men and tell them "of their rights and of the company's rights." Early in November Henkle began to hold conversations with various employees concerning the Union. Albert Luchte, one of the originators of the Union, testified that on November 4, 1938, Henkle inquired as to what he knew concerning its organization, telling him, "You know we don't need no union around here," that "it would be useless to pay money to a union . . . it was just paying it out for nothing," and that the respondent would never have a closed shop. He further informed Luchte that his work had always been satisfactory and that if he became dissatisfied to "just let me know." Charles Lewis testified that about November 8 Henkle asked him what he knew about the Union and in reply to his answer of "nothing" states, "Charley, you don't need to join any union. I have always treated you fair and you will always be taken care of." About November 17, after Lewis had joined the Union, Henkle told him that the respondent would be forced to close the plant, because it "couldn't stand for any union." He also remarked that Lewis had "changed" since their previous conversation. Elmer Webb testified that about November 11 Henkle questioned him con- cerning his knowledge of the Union, suggested that Webb knew more than he admitted, and told him "I figured that you have always been a pretty broadminded fellow. I want you to think this over. They won't give any vacations or anything for holidays." George Seevers, who later became president of the Union, testified that shortly after joining the Union on November 11, he was questioned by Henkle as to "why the boys wanted a union." Seevers replied that the respondent had been reluctant to pay overtime, maintained no system of seniority, and failed to grant promotions when merited. Henkle then told Seevers, according to the latter, that there had been complaints about his work, but that there was a better job intended for him. When Seevers, in response to Henkle's ques- tioning, replied that he was very much in favor of a union, Henkle retorted, "Well, the union is only a place to pay your money in for 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD somebody to get fat on," that he was not in favor of any union, and that "if we ever have a union, we will never have a closed shop . . . we will hire and fire whoever we please." He advised Seevers that he had "better think it over. " Harlan Craven testified that about November 15, a few days after he had joined the Union, Henkle inquired as to his knowledge of the Union and told him that he did not think "the company would want a union," that it had been in business for 41 years without any "labor difficulties" and did not "want any now." He then informed Craven that if the Union was successful in organizing the plant the respondent's employees would be deprived of certain privileges they then enjoyed, and urged Craven to "think it over thoroughly" before he joined, pointing out that he (lid not have to join in order to hold his job. Henry Ake testified that when he requested a loan in December Henkle asked him what he thought about the Union and whether or not it "worried" him. According to Ake, Henkle proceeded to tell him that the Union would not be able to secure any increase in pay for the men, that Ake should "stick by him," that Hutchinson would be his "best friend," and that he would not have to "worry very long because finally the union guys would be out." Henkle also asked Ake, according to the latter's testimony, whether Webb had attempted to get him drunk so that he would join the Union. Henkle admitted introducing the subject of the Union into his conversations with the above-mentioned employees, but testified that he merely told them that he had heard rumors of a union being organized, that it was a matter for each man to decide for himself, and that the respondent would always maintain an open shop. We are unable to believe, however, that Henkle confined his discussion of the Union to these remarks. In view of his admitted concern over the formation of the Union, his determination to speak to the individual employees concerning their "rights," the consistent testi- mony of the various employees to the contrary, and the Trial Exam- iner's refusal to give credence to his testimony, we find that Henkle made substantially the statements attributed to him. Harley Holland, a prospective employee, also testified that during an interview with Henkle on November 6, Henkle inquired if he had ever been a union member , and informed him that the respondent was "having a little trouble." When Holland replied that he had belonged to a union in 1936 because he "had to," and that he "didn't like unions," according to Holland, Henkle told him, "In case these boys go out on strike, I will give you a job then if you are not a union man." Henkle admitted having a conversation with Holland regarding employment , but could not recall asking him whether or not he belonged to a union . He denied any conversation concerning the possibility of a strike. However, the anti-union sentiment LAWRENCEBURG ROLLER MILLS COMPANY - 985 expressed by Heckle in his conversations with the respondent's employees lends weight to Holland 's testimony and permits no credence to attach to Henkle's denial. We find, as did the Trial Examiner, that he made the statements testified to by Holland. Hutchinson , the vice president and general manager, likewise dis- played the respondent's hostile attitude toward the Union. About November 15 , shortly before working time , Russell Craig was informed by Henkle that Hutchinson wanted to see him in his office. Craig testified that upon his arrival Hutchinson , who was a distant relative of the Craig family, inquired concerning his father and mentioned the hunting at the , Craig farm. He then asked Craig if he had heard anything about the Union, how many men were members , suggesting 8 or 10, and whether or not he had joined. Craig further testified that when he replied that he had not joined, Hutchinson told him that he would not have to join in order to keep his job , that the respondent would shut down the plant before it would agree to a closed shop, and , that he was just giving Craig "a little friendly advice" because of the friendship existing between their families . Hutchinson admitted having called Craig to his office to inquire about the hunting at the Craig farm, and that as a "part- ing remark" had inquired if he had joined the Union . He denied, however, having any further conversation with reference to the Union. In view of the statements made by Hutchinson in a speech hereinafter discussed, we agree with the Trial Examiner and credit Craig's version of the conversation. A number of employees testified that foremen in the various de- partments also inquired of employees concerning the activities of the Union and made statements similar in import to those made by Henkle. Glen Faulkner, elevator foreman , admittedly asked Roy Gribben, an employee in his department , several times if he was a member or attended meetings of the Union . Gilbert McKain , assist- ant to the head miller and alternately in charge of the night shift, told George Seevers that he would not join the Union because his brother who had been a union member "all his life" had "consider- able trouble being kept out of employment," and also because while working for the respondent in 1920 or 1921 he had joined the other employees in obtaining a wage increase of 5 per cent and as a result had lost a customary 10-per cent bonus. , McKain also told Seevers on this occasion that "you read in the paper every day where the unions was failing, that he didn't think they would amount to any- thing anyhow, you couldn't use them in the flour mills." James White testified that Largus Brauer, warehouse foreman, in the pres- I This was the first time prior to 1938 that the respondent's employees had engaged in concerted activities for the purpose of collective bargaining. 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ence of Herbert Hutchinson, asked him what he knew about the Union and when White replied "nothing," Brauer retorted, "You ought to know, you belong to it." George Seevers testified that Steve Liddle, head miller, questioned him concerning a rumor that "all the bosses was going to get canned after the union went through," and that at the time Liddle said "something about the A. F. of L. being crooked." Harland Craven also testified that Harry Snyder, his foreman, told him that Henkle had been informed as to the identity of the 19 members of the Union, and that Craven was one of them. Brauer, Liddle, and Snyder denied the statements attributed to them by White, Seevers, and Craven. In view of the general course of conduct pursued by the respondent's supervisory employees and the finding of the Trial Ex- aminer that they made such statements, we cannot credit to their denials and we find that Brauer, Liddle, and Snyder, made substan- tially the statements ascribed to them above. On November 19, 1938, the respondent closed its plant at 3 p. m. and upon orders, from Henkle the employees assembled to hear an address by Hutchinson. Henkle accompanied his introduction of Hutchinson with the statement that he had "felt for some time that things were not right in the plant" and that he thought if they "would all talk this thing over it would be for the best interests of everybody." Following a prepared outline, which was introduced in evidence, Hutchinson informed the men that it was their privilege to organize a union but that there were "certain facts" which the respondent thought they should know, stressing first that the respond- ent would maintain an "open shop," and second that "no employee whether member of a union or not would be permitted to threaten any other employee who desired to work." After stating that this was the first "trouble" experienced by the respondent in 35 years, Hutchinson proceeded to outline what the respondent had done for its employees in the past and how it had always "felt that if any- thing was wrong or not satisfactory, you would come and tell us personally." He then gave a resume of the respondent's financial difficulties for the past 2 or 3 years and the increased competition in the milling industry, followed by the query of "what chance do you think we would have of competing if we paid higher wages and quoted higher selling prices." As indicated by the outline of his speech, Hutchinson continued with the following statement : . Right now-regardless of the efforts of some of you to form a union, the serious question before this Company is whether we will stay in business or not. If we can break even or lose a little we are willing to go ahead, but without your whole- LAWRENCEBURG ROLLER MILLS COMPANY 987 hearted suppose [sic] cooperation and assistance, the chances don't look very favorable. Mr. Rothwell and Mr. Brown, founders of the business, are still interested here, but not absolutely necessary for them to keep their money here if employees are not interested in making the business succeed. After offering to permit a group of three employees to check the records in verification of his statements concerning the respondent's financial condition, Hutchinson read a telegram from Rothwell, presi- dent of the respondent, corroborating the views just expressed and ending with the statement, "The men know how friendly relations with them have been for a long term of years and they know whether these have been helpful or otherwise." According to the testimony of several employees, Hutchinson concluded his speech with a state- ment to the effect, "What good would the union be without a job." Hutchinson denied making the statement, but since it expresses, though perhaps more bluntly, the point of view conveyed by his ,speech, we find, as did the Trial Examiner, that Hutchinson ended his remarks substantially as testified to by Board witnesses. Hutchinson testified that in making the foregoing speech he was motivated by the "terrible" situation and near "chaos" existing in the plant, the threatening and harassment of employees, and the increasing lack of respect accorded foremen by the men. The record, however, is devoid of any indication that employees were in fact threatened or intimidated by union members or that they so com- plained to the respondent. It appears from his own testimony that Hutchinson's appraisal of conditions in the plant was based largely upon "rumors that were going on about the men threatening em- ployees that if they didn't join the union they would lose their jobs" and so far as the record shows, upon a single instance of alleged insubordination by a member of the Union. It is impossible to be- lieve that Hutchinson, were he so greatly concerned over the lack of respect shown foremen, as he alleged, would have made no refer- ence to it in his speech. We are satisfied that the sole purpose of the speech was to counteract the union organizing activities of the employees. Hutchinson's denial of the Union's anticipated demands for a closed shop and higher wages was plainly intended to disparage any benefits to be received from union membership. We find that his reference to the respondent's prior beneficence was undoubtedly an implied reproach for union activity which he -assumed meant a lack of appreciation 'on the part- of the employees for what the- respondent had done for them. We further find that he identified union activity with conduct detrimental to the respondent's welfare. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 7, 1938, the respondent discharged Luchte, business agent, and the following day, Charles Bingaman and George Daugherty, two other members of the Union, allegedly for smoking in violation of a plant rule, and misconduct. On December 14 a committee of union representatives met with the respondent to pro- cure their reinstatement and to present a proposed contract providing for wage increases and a closed shop. The respondent refused to reinstate the union members, maintaining that their discharge was' for cause, but after some discussion of the Union's claims to mem- bership agreed to take the proposed contract under advisement. A second meeting was held on December 21, but the respondent still refused to reinstate the discharged employees. On December 15, after its first conference with the Union, the respondent posted on its bulletin board the following notice : 2 Recently, a number of our employees have complained that they have been treated unfairly and discriminated against by other employees who have been active in forming a union. You already have been informed that the matter of union membership is something for each individual employee to decide for himself free from coercion or intimidation either by the com- pany or any of its employees. Today we told a committee representing those who belong to the union that in the future no employee will be permitted to coerce, discriminate against or intimidate other employees, or otherwise treat them unfairly, because they may disagree on the question of union membership. Each employee has a right to join or not to join any union and what he does about it will have no effect upon his job with or the treatment which he will receive from this company. The company will take immediate action on any cases reported to it. [Italics supplied.] Since there was no more provocation for posting the above notice than existed for the making of Hutchinson's speech on November 19, we are convinced that the respondent's purpose was to reassure the employees that despite its conference with the union representatives its position of hostility to the Union, as previously outlined, remained unchanged. We find this action by the respondent to be a further interference with the rights of its employees to self-organization guaranteed in the Act. Dawson Bills joined the Union about November 15, 1938, and in December, shortly after the discharge of the three union members 2 The notice was removed from the bulletin board on December 17, 3 days after posting. The record contains no explanation for this action LAWRENCEBURG ROLLER MILLS COMPANY 989 above-referred to, was demoted from his regular job as a flour packer to repacking and given a reduction in pay from 50 cents to 43 cents an hour. Bills testified that when his foreman, Largus Brauer, in- formed him of the reduction he inquired if there was anything wrong with his work, and that Brauer replied, "No, you will be all right when you get your 80 cents an hour; that is what it is isn't it?" and added, "When you get that amount, we will all have to go up to the union hall, but now we don't." Brauer was obviously referring to the wage rate provided for in the proposed contract presented by the Union to the respondent on December 14. Brauer denied making the above statements and testified that the demotion of Bills was the result of a shift in the packing crews necessitated by the fact that since the advent of the Union some of the packers were not speaking to one another, and that he had asked Henkle if "we couldn't break it up, try to put the boys that were on friendly terms together and those that were not, let them work the other shift." Brauer further explained that had Bills been retained as a packer when making this change he would have been working on the same shift as Snelling, head packer, with whom Bills had not been on speaking terms for "years." Brauer later admitted that the last knowledge he had of Snelling and Bills not speaking to each other was a year prior to the transfer. Moreover, there was no satisfactory showing in the record that the respondent could not have arranged the working schedules of the eight packers involved so as to keep Bills and Snelling on opposite shifts. The record further fails to establish the existence of such inefficiency or dissension among the packers because of the Union as would warrant their rearrangement. Otis Moreillon, a packer who was subpenaed by the Board and admitted his re- luctance to testify, stated that the discussion of the Union among the packers consisted only of "friendly arguments and talk," and Charles Slayback, another packing employee, denied that there were any serious arguments over the Union but admitted that they "talked" about it. We do not credit the foregoing explanation by Brauer and his denial of the statements attributed to him by Bills. Brauer further justified his demotion of Bills by a desire to give the position to Everett Clark, an allegedly more capable packer, who replaced Bills. Brauer, however, admitted that Clark had not packed flour since the respondent discontinued its third shift a "few years" prior. Clark was not a member of the Union. Brauer also main- tained that he demoted Bills because of the numerous errors allegedly found in his tally sheets. The testimony of Brauer and Inglis, the respondent's timekeeper, on this point was both vague and contra- dictory. Since Bills had been retained as a packer by the respondent 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for over 5 years, we accord no merit to this contention.3 In view of his years of satisfactory service, the inadequate showing of reason- able cause for his transfer, his replacement by a less experienced and non-union employee, and the fact that during this period only mem- bers of the Union were involved in difficulties with respect to their employment, we are convinced that Bills was demoted as a part of the respondent's obvious determination to discourage membership in the Union. In its Exceptions to the Intermediate Report, the respondent ob- jects to the failure of the Trial Examiner to find that its supervisory employees were eligible to membership in the Union. The inference that the respondent would have us draw from this objection un- doubtedly is that such a finding would relieve the respondent of responsibility for the conduct of its foremen. We have held, how- ever, that an employer is not relieved from responsibility for the ac- tivities of its supervisory employees by virtue of their membership or eligibility to membership in a labor organization.' An employer in its relations with its employees necessarily acts through and must be held responsible for the acts of its supervisory employees. More- over, in the instant case Henkle, who as plant superintendent was directly responsible for the activities of his departmental foremen, acted with the knowledge and consent of the respondent's vice president. We find that by the activities of Henkle and its other supervisory employees in disparaging the Union, and in questioning, warning, and threatening employees with respect thereto, by Hutchinson's speech on November 19, by posting the notice on December 15, and by the demotion of Dawson Bills, the respondent has interfered with; restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The evidence with respect to the allegation that the respondent maintained surveillance of union meetings consists of testimony that Liddle and McKain, mill foremen, were seen near the union hall while meetings were in progress. Both Liddle and McKain denied spying or having any intention of spying upon the meetings of the Union, and the explanation given by them for their probable presence a See Matter of Montgomery Ward & Company and Reuben Litzenberger et at, 9 N L. R. B. 538, enf'd as mod., Montgomery Ward & Company v. National Labor Relattions Board, 107 F. (2d) 555 (C C. A. 7). 4 See Matter of Ward Baking Company and Committee for Industrial Organization, 8 N L. R B 558; Matter of Tennessee Copper Company and A F of L Federal Union No 21164, 8 N L R B 575; Matter of Nest Oregon Lumber Company and Lumber and Sawmill Workers Local Union No. 3, International Woodworkers of America and Lumber and Sawmill Workers Union Local No. 2532, chartered by the United Brotherhood of Car- penters and Joiners of America, 20 N L R B 1 LAWRENCEBURG ROLLER MILLS COMPANY 991 in the vicinity of the meeting hall is not unreasonable. We find that the evidence is insufficient to sustain the allegation in the complaint that the respondent kept under surveillance the meetings of the Union. B. The diseTimzn natory discharge of Luchte Albert Luchte was first temporarily employed by the respondent in 1922 or 1923, and received regular employment in 1930. For al- most a year prior to an operation for appendicitis in August 1937, Luchte had held the position of packer at a wage rate of 50 cents an hour. Following his illness and upon the advice of his physician, Luchte requested less strenuous work and was transferred to the mill as a sweeper at the same rate of pay that he received when packing. His duties entailed cleaning the basement and first floor of the mill, the disposal of sweepings from all five floors, the conveyance of empty sacks to the sack-cleaning department, the elimination of "choke-ups" in the flour spouts, and other work of a similar nature. Luchte was also given extra employment by Henkle mowing the lawn and doing other odd jobs around Henkle's home. He was one of the first to promote the organization of the Union and was elected its business agent on November 15, 1938. Early in November, Henkle sent Luchte to Cincinnati, Ohio, in the "company car" to bring a Rabbi to the plant for the performance of certain religious rites in connection with the manufacture of flour for Jewish consumers. On November 4, after his return, Henkle called Luchte to his office to pay him for this extra service. In their conversation, Henkle brought up the subject of the Union, telling Luchte, "You know the boys around here pretty well, because you get around quite a bit," and inquiring, "What do you know about this union ?" Henkle, as previously related, then told him that there was no need for a union in the plant; that he would be paying out money to no purpose ; that his work had always been satisfactory ; and that if he became dissatisfied to tell him about it. Prior to this conversation, in October, Faulkner, the elevator foreman, had ques- tioned Luchte about the Union, derided him about becoming a "big shot" after his election as business agent on November 15, and a few days later greeted Luchte with "Hello there, Brother Rat." As Luchte was sweeping the basement of the mill shortly before his discharge on December 8, 1938, Henkle reprimanded him for not removing some dust from the joists and ordered him to "get that cleaned up." Luchte immediately stopped sweeping and obeyed. The following day, Luchte testified, Henkle again "jumped onto me about fumigating." Luchte told him that he "fumigated twice this week and that's more than we ever did," to which Henkle replied 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Then fumigate it again." On December 7, approximately 10 min- utes before quitting time, Luchte went to the water shed adjoining the boiler room to "wash up," preparatory to leaving the plant. After he had finished, Luchte started to smoke a cigarette. Luchte testified that upon receiving a warning from Harry Rubel of Hen- kle's approach he threw away his cigarette and that he was not smok- ing when Henkle entered. He further testified that it was customary for the men to smoke in the watershed, and that it was the practice of the other employees to warn them of Henkle's approach by greet- ing him (Henkle) in a loud tone of voice. Henkle testified that he saw Luchte throwing his cigarette into the shower bath as he came into the shed and that he said "Well !" Luchte denied that Henkle said anything to him. The next day, Henkle discharged Luchte for "misconduct and smoking." As previously stated, the union committee endeavored twice in December to secure the reinstatement of Luchte, Bingaman, and Daugherty, but the respondent maintained that they had been dis- charged for cause and refused to reemploy them. On February 11, 1939, Hutchinson sent for Luchte and, according to the former's testimony, stated, that he thought Luchte had suffered "enough penalty for what he had done," and that he could return to his job if he would "agree to observe the rules, and do the right thing." According to Luchte, Hutchinson also told him, "Well, if you want your job back, you'll have to drop all of your charges with the Labor Board." Luchte testified that he denied having been guilty of such neglect of duties as Hutchinson alleged, stated that the Union, not he, was responsible for filing the charges, and that he thought he was entitled to back pay. Hutchinson asserted that the respondent was not responsible for his loss of pay, and Luchte left the office without agreeing to return to work upon the terms offered. Although Hutchinson denied that either the Union or the Board was mentioned in his conference with Luchte, his denial as elicited by counsel for the respondent upon direct examination is uncon- vincing : Q. Was the union mentioned in that conference? A. Absolutely there was nothing mentioned about the union. Q. Or about the Labor Board? A. I think perhaps he may have got the impression, be- cause Q. No, I want to know what was stated. A. There was absolutely nothing. I don't think the Labor Board or the union was mentioned in the whole conversation. I made it a special point not to. LAWRENCEBURG ROLLER MILLS COMPANY 993 We credit, as did the Trial Examiner, Luchte's account of the con- versation.,' In its answer the respondent alleges that Luchte was discharged, after previous warning, (1) for neglecting his duties and failing to carry out the instructions of his foremen, (2) for entering the plant after working hours without the permission of the watchman on duty, and (3) for violation of its smoking rules. In support of the first allegation, Henkle testified that in November 1938, Steve Liddle and Bud McKain, mill foremen, reported that Luchte was fre- quently absent from his place of duty in the basement and on the first floor of the mill, and that he in turn brought the matter to Luchte's attention. Liddle and McKain both testified that they had complained to Henkle, but admitted that they had never spoken to Luchte concerning their inability to find him. They also admitted that on the occasions that Luchte could not be found they looked for him only on the "first floor and basement," Liddle further testi- fying that he never spent "over five minutes' in trying to locate him. Henkle also testified that he personally saw Luchte on several occasions in various parts of the mill where his presence was not required by his work. John Inglis, the respondent's timekeeper, testified that on one occasion when he found Luchte sitting in the boiler room during working hours Luchte jumped up and said, "Don't scare me that way with those white pants. I thought you were Mr. Henkle." Inglis jokingly reported the incident to Henkle who, Inglis testified, also thought it amusing. Inglis further testi- fied that a month or 6 weeks before Luchte's discharge he passed Luchte taking some sacks to the sack-cleaning department and that when he passed that way about 10 or 15 minutes later Luchte was still talking to Paul Blumeyer who worked in that department. Inglis stated that shortly afterwards he asked Blumeyer, "What are you fellows plotting against ?" and was told that Luchte had been asking him to join the Union. Inglis first testified that he reported the incident to Henkle after questioning Blumeyer, but on cross- examination stated that he mentioned it to Henkle beforehand and 5 Bingaman and Daugherty were also named in the original charges filed by the Union on December 12, 1938. In support of Ilutchinson's account of his interview with Luchte, the respondent cites in its brief their testimony that in similar conversations with Hutchinson prior to their reinstatement he made no request for a withdrawal of the charges pending before the Board We note, however, that following their reemploy- ment in January and May 1939, respectively , Binganian and Daugherty not only evinced an unwillingness to press the charges filed in their behalf, but appeared at the bearing as hostile witnesses for the Board and disavowed affidavits admittedly signed by then in support of such charges Accordingly, the charges were withdrawn as to Bingaman and the complaint was dismissed as to Daugherty Both men , moreover, testified that they were no longer members of the Union , Bingaman specifically admitting that he had withdrawn from membeiship prior to his iecniployment We find nothing in the circumstances surrounding the reinstatement of Bingaman and Daugherty to support the respondent's contentions with respect to Luchte 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Henkle remarked that he "supposed" Luchte was talking about the Union. With reference to the second alleged cause for Luchte's discharge, the evidence discloses that he returned to the plant one evening early in November to deliver a receipt for union dues to Charles Slayback, and that while there stopped to talk to several employees. Luchte admitted that he did not report to the watchman on this occasion, but testified that he did not do so because it was customary for em- ployees to enter the plant without restriction. Henkle testified in contradiction that "No Trespassing" signs were posted and that he had instructed the watchmen to allow "nobody" to enter the plant without special permission. Luchte was never told either before or after this occasion that he had violated any rules of the respondent by visiting the plant after working hours. The evidence relative to Luchte's violation of the smoking rules shows that for many years the respondent had maintained "NO SMOKING" signs throughout its plant, and that the fire hazard of smoking in the mill, warehouse, and elevators, was well recog- nized by the employees. It was permissible, however, to smoke in the engine and boiler rooms of the power plant because of their fireproof construction, and it was common practice for employees to do so during working hours. The evidence also establishes that the men customarily smoked in the watershed adjoining the boiler room and in boxcars located on the trestle behind the warehouse. Al- though smoking during working hours and in places other than the power plant had never been expressly permitted, it is clear that the respondent was aware of,this practice. The apparent custom of the supervisory employees was to overlook such smoking as did not occur in their presence, and the employees usually smoked when they could do so without being seen by their foremen. That the rules were not strictly enforced with respect to smoking in the less haz- ardous parts of the plant, is evidenced by the fact that Henkle could recall but three discharges for smoking prior to 1938, and they involved employees who had been found smoking in the base- ment of the elevator and inside the mill. Moreover, the respondent did not discharge Dawson Bills when, upon the basis of a report by Brauer, he was held responsible for a boxcar fire in July 1938. The respondent endeavored to show that after the boxcar fire the rule against smoking was more rigidly enforced throughout the plant. Henkle testified that he had given all of the foremen special instruc- tions to warn the employees that smoking was strictly prohibited and to report any violations. Brauer, however, was the only fore- man who admitted receiving such instructions. It appears that Brauer did warn the warehouse employees and that thereafter they smoked less frequently in the boxcars and were more careful not to LAWRENCEBURG ROLLER MILLS COMPANY 995 be caught. The evidence shows, however , that in smoking elsewhere there was no change in the customary smoking habits of the eiii- ployees. Nor was any stricter enforcement of the rules made evi- dent by the respondent until after the Union began to organize, and then only by the sudden discharge of Luchte, Bingaman, and ,Daugherty early in December.6 It was not until February 17, 1939, that the respondent posted the following notice: NOTICE TO ALL PLANT EMPLOYEES SMOKING Recently it has come to our attention that there has been smoking by some of our employees in and around our plant, on our premises during working hours. It is difficult to understand how any employee could have the impression that smoking was permitted on these premises in view of the rule and signs that have been posted to that effect for a number of years. Because of the fact that a flour mill is a dangerous explosive hazard, smoking in or around the premises not only endangers the life of the smoker, but all of those working in the plant, as well as the property itself. We are again notifying each of you that smoking in or out of the plant buildings on the premises of this Company is prohibited and that any violator of this rule will be discharged immediately . The fact that some other employee violates this or any other rule without being caught will be no excuse for others. It will be the purpose of the Company through its Foremen to enforce this rule to the letter and regardless of who it may affect. It has also been called to our attention that certain employees have recently been found wandering around the plant away from their place of duty without any particular reason for so doing. Every employee knows that he is expected to be on his job during working hours. In the future if any employee is found in a department other than his own, away from his place of duty, during working hours, he shall be considered as neglect- ing his work. Any employees who are not actually employed in the loading of cars who are found in cars or at other places away from their place of duty during working hours, shall be considered as neglecting their work. This Rule Will Be Impartially But Strictly Enforced. 6 See footnote 5, supra 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent's contentions with respect to Luchte's neglect of duty and violation of the rules are not supported by the record. It was admitted that Luchte's work required him to go to various parts of the mill and, so far as the record shows, Luchte's absence from his principal place of duty on the occasions complained of might well have occurred in the ordinary pursuit of his duties. Furthermore, had Luchte's absences been as detrimental to his work as indicated by the testimony of Liddle and McKain, who were charged with the immediate responsibility for the operation of the mill, it is reasonable to assume that they would have brought the matter to his immediate attention and not left its correction to the plant superintendent, Henkle. As for the brief conversations held by Luchte with other employees on his trips throughout the plant, there was no showing that they interfered with the efficient per- formance of their work, nor did the respondent require its employees to abstain from talking with their fellow employees during working hours. The longest period shown to have been spent in such con- versations was the 10 or 15 minutes Luchte spent talking to Blumeyer about the Union. In contrast, we observe the freedom with which supervisory employees engaged in anti-union conversations during working hours and the closing of the plant for Hutchinson's speech. We also find no merit in the respondent's contention that Luchte's visit to the plant after working hours contributed to his discharge. There was no evidence that the employees were aware that such visits were a violation of the respondent's rules. It appears from Henkle's own testimony that his instructions allegedly were given to the watchmen, not to the men, and it is obvious that the "No Trespassing" signs were not intended for the respondent's regular employees. It is significant that specific instances relied upon by the respond- ent to show Luchte's neglect of duty and violation of its rules have some connection with his union activity. While we agree with the contention made by the respondent in its exceptions that any viola- tions of the rules by Luchte are not to be excused because of their occurrence while engaged in union activity, we are convinced that had Luchte not been so engaged on the occasions complained of, the respondent would have considered his conduct in keeping with that normally prescribed for its employees. We again note the respond- ent's failure to find any cause for complaint in the conduct of its supervisory employees in questioning employees as to their union membership and engaging in other anti-union activity during work- ing hours. Moreover, Luchte had received no complaints until `after he joined the Union, and Henkle personally had expressed his satisfaction with Luchte's work but a few weeks before his discharge. LAWRENCEBURG ROLLER MILLS COMPANY 997 That the respondent also considered Luchte a worthy employee prior to his known activity in the Union, is shown by his employment at Henkle's home, by his transfer to the mill without a reduction in pay following his operation in 1937, and by his selection for the trip to Cincinnati in pursuance of the respondent's business. In view of this commendatory attitude toward Luchte, his more than 8 years of service, and the respondent's willingness to reemploy him if he would withdraw the charges filed with the Board, we are satisfied, and we find, that if his union activities had not met with the respondent's disapproval Luchte would not have been regarded as an unsatisfactory employee or discharged with no other warning than that evinced by Henkle's criticism shortly before his dismissal. The respondent contends in its brief that because of his smoking "Luchte was a constant hazard to the safety of the respondent's mill." It appears from Henkle's testimony, however, that his prin- cipal objection to Luchte's smoking in the watershed on December 7 was because it occurred during working hours. Henkle also testi- fied that this occasion was the first time he had ever seen Luchte smoking while "on duty." Luchte admitted that he habitually left the mill twice daily to smoke, and we cannot believe that the re- spondent was not aware of this practice. Luchte testified without contradiction that he had smoked in the presence of Liddle on at least one occasion several months prior to his discharge, and Liddle admitted that he had never reprimanded Luchte for smoking. In view of the respondent's hostility toward the Union, the paucity of discharges for smoking during the more than 10 years preceding its organization, and the fact that after the Union began to organize discharges for smoking were confined to union members and obvi- ously not impartially enforced we are convinced that Luchte's viola- tion of the smoking rules was utilized by the respondent only as an ostensible justification for his discharge. When discharged, Luchte was earning 50 cents an hour and aver- aging $20 weekly. Since that time he has earned approximately $28 at odd jobs hanging wallpaper. We find that the respondent, on December 8, 1938, discharged, and subsequently refused to reinstate Albert Lutche because of his membership and activities in the Union, thereby discriminating in regard to the hire and tenure of his employment and discouraging membership in a labor organization ; and 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. 2830.-34-41-von 23-64 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The alleged discriminatory discharge of White James W. White had been employed in the respondent 's ware- house department since February 1937. He joined the Union about November 11, 1938. On December 23 White was working on the same crew as Hutch- inson, Jack Endress, and Frank Ernest , non-union employees. While they were preparing a boxcar for loading. White stopped working and was standing in the doorway of the , car smoking a cigarette. Brauer appeared and seeing White smoking said, "Well, Jini, what have you got to say for yourself." White replied, "I haven't got a thing," and continued to smoke. After looking in the car, Brauer returned to the mill where lie reported the incident to Henkle. Not long afterwards, White was notified by another employee that he was to report to Henkle's office after working hours . White testi- fied that he turned to the other three men and asked , "If he says anything to me, all of you are going to back me up that you were smoking? " and that they replied in the affirmative. White asked Brauer later that day if Henkle was going to discharge him, and protested that the other three men also had been smoking. Brauer replied, "Well, they were not smoking when I looked in the car." Brauer testified that when he later questioned Ernest and Hutch- inson, Ernest replied , "You didn't see me," and Hutchinson denied having smoked in the boxcar. White was discharged when he reported to Henkle that afternoon. The evidence shows that Brauer warned White about smoking after the boxcar fire in . July 1938, and again about 2 weeks before his discharge , after Brauer had found cigarette butts and matches on the floor of the boxcars . On the second occasion , Brauer told both White and Ernest, who were working together at the ,time, "There is smoking still going on here. If I ever catch you , you are going to be reported for it." The evidence also shows that at the conference between the respondent and the union committee on December 21, 2 days before White was discharged , Snelling, union representative, asked Hutchinson if the respondent would discharge "any" man caught smoking in violation of the rules. Hutchinson replied, "We certainly will," and Snelling then told him , "Well, I will try you out, I will give you a chance." Since the evidence does not establish that Ernest , Endress, or Hutchinson, were smoking when Brauer apprehended White, we do not find that in discharging White the respondent accorded prefer- ential treatment to the other non-union members of the crew. A]- though we have found that the respondent had utilized Lutche's LAWRENCEBURG ROLLER MILLS COMPANY 999 smoking in the watershed to conceal the true motive for his dis- charge on December 7, in view of the above statement made by Snelling at the December 21 conference, we cannot say that there- after the smoking rules were not impartially enforced. So far as the record shows, Endress was the only employee discovered smok- ing after White was discharged, but because of his more than 20 years service he was not dismissed until caught smoking for a second time in July 1939. We do not find, however, that in overlooking his first offense, Endress was shown such preference by the respond- ent as would indicate a discriminatory treatment of White. White had been employed by the respondent for less than 2 years and, moreover, had been warned both before and after he joined the Union that he would be discharged if found smoking in the box- cars. In view of all the evidence pertaining to White's discharge, we find that it was not occasioned by his membership or activity in the Union. D. The discriminatory lay-offs Roy Gribben and Walter S. Rhodes were employed in the elevator department, Gribben for over 14 years, Rhodes since March 1934. Both had been steadily employed until their lay-off on January 12, 1939, at which time there were four men working in the elevator department. In point of service, Gribben was junior to Harry Christian, although both weighed wheat and did the same type of work. Rhodes had been working as a laborer for a year longer than Henry Ake. Rhodes joined the Union on November 11, 1938, Gribben on December 13. Christian and Ake were also members of the Union. In November Gribben asked Henkle for an increase in pay. Henkle questioned him about the Union and stated that the re- spondent did not want a union in the plant, and that if there was a union, Gribben would not be able to talk to Hutchinson or him "about any affairs." Glen Faulkner, elevator foreman, also ques- tioned Gribben several times about the Union, and about January 3, 1939, told Gribben. "Well, Pop, I heard that you was the first to join the union." Gribben replied that lie was the last and not the first to join. For 3 weeks prior to their lay-off, Gribben and Rhodes had been 'employed at cleaning and repair work because of a shortage of work in the elevator department. At quitting time on January 12, 1939, Faulkner summoned Gribben and Rhodes and said, Well, I guess you know what it is all about, don't you? You are both laid off, and you ought to go and talk to Henkle." When they reported -to Henkle. lie told them that they were being laid off because work in the elevators was slack. Rhodes requested Henkle to give them 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD temporary work elsewhere in the plant as had been done during previous slack periods, but was told that there was no work in the other departments. Rhodes reminded Henkle that the respondent recently had hired new men in the mill, and Henkle replied that he was laying off elevator and not mill employees. Rhodes further commented that on the basis of seniority he and Ake should be laid off and not Gribben. Henkle's reply was that he was laying off the "junior operator and the senior helper." 7 Rhodes went to Faulkner's home the evening he was laid off and during a discussion of the Union in connection with his lay-off Faulkner admittedly told Rhodes that he had never "believed that the union was good for anybody," or "felt that one was ever needed." Rhodes also talked to Hutchinson the following day and reiterated his protest made to Henkle the afternoon before. When Rhodes referred to the new men hired in the mill, Hutchinson stated that their lay-off would "hurt" them as much as it would Gribben and Rhodes. He advised Rhodes to keep in touch with Henkle as to the possibility of securing reemployment. Rhodes accordingly saw Henkle the following day and several times thereafter, but was told that there was no work available. About February 2 Rhodes went to the plant and asked Henkle for a loan of $25.00. Henkle told him that the respondent did not lend money to men not on the pay roll, but that he would see what he could do about it personally, and that in the meantime Rhodes was to stay away from the plant. That same evening, Henkle went to Rhodes' home and gave him his per- sonal check for $10.00. Thereafter Rhodes did not return to the plant. Gribben after his lay-off had gone to Dry Ridge, Kentucky. Commencing in June and continuing for a period of 2 or 3 months during the harvest season the work in the respondent's elevator de- partment greatly increases, making it necessary to hire additional employees. On June 29, July 5, and July 9, 1939, three new em- ployees were hired in that department. The first week in July, Rhodes approached Faulkner on the street and told him that he thought it unfair that Henkle was hiring new men before recalling him and Gribben. Faulkner stated that he thought Rhodes could return to work if he saw Henkle. Rhodes, however, believed that he should have been notified and did not report to Henkle until ad- vised to do so by the State Unemployment Office. Rhodes testified that before starting to work on July 10, Henkle told him that he was giving him "another chance" and that he would have to "pay atten- tion to the work." Henkle denied telling Rhodes he was getting "another chance," but admitted that he told him, "I want you to do your work right, obey the rules of the company." Gribben, who was ' The evidence shows that the respondent applied no system of seniority in its plant. LAWRENCEBURG ROLLER MILLS COMPANY 1001 notified by letter to report for work on July 15, was also told by Henkle to obey the rules. Henkle's explanation for his admonition to Gribben and Rhodes was that it was a customary procedure when employing men. On July 14, 1939, the evening before he returned to work, Gribben visited the plant and stopped to talk to Brauer. They discussed his lay-off, and Gribben stated that he did not think he should have been laid off in the first instance. Brauer remarked, "Well, can't you see through it yet V" Brauer denied making this statement, although he admitted having talked to Gribben on this occasion about his return to work. We find, as did the Trial Examiner, that Brauer made the statement attributed to him by Gribben. While Gribben was talking to Faulkner in his office shortly thereafter, Rhodes passed by wearing a union button. Faulkner remarked, according to Gribben, that he was doing the "wrong thing" by wearing the button in the plant because Henkle would not "stand for that," and that Rhodes would "probably be pushed out as soon as this rush is over." Gribben further testified as follows : About August 12, after Gribben had returned to work, Faulkner asked him if he had paid his dues in the Union. Gribben replied affirmatively and Faulkner said, "Well, I hope you haven't. I hope you are behind, because we have been thinking for quite a while you would just drop it." He also stated that the Union had not done Gribben "any good," and that the Union would be unsuccessful because "a money place like this will always win out." Faulkner denied having any conversation with Gribben about the Union after his return to work. In view of Faulkner's admitted questioning of Gribben about the Union prior to his lay-off, and his disparagement of the Union to Rhodes, as described above, we find, as did the Trial Examiner, that Faulkner made the statements testified to by Gribben. Both Gribben and Rhodes were reemployed at the same rate of pay as received prior to their lay-off. Gribben, however, was assigned to general work in the elevator department and was not permitted to weigh wheat as he had done previously. After Gribben's return, the respondent qualified under the United States Warehouse Act, which requires that all weighers be licensed. Faulkner instructed Christian and Rubel, who was also a weigher when the respondent operated a third shift, to obtain licenses, but said nothing to Gribben about se- curing one. Gribben has weighed no wheat since his return to work. The respondent contends that the lay-off of Gribben and Rhodes was attributable solely to a lack of work in the elevator department. Faulkner and Henkle testified that they had discussed the lack of work in the elevators and the possibility of laying off Gribben and Rhodes 3 weeks prior to January 12, and that they finally decided to 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lay off Gribben and Rhodes because Christian was a more experienced weigher than Gribben, and Ake a better laborer than Rhodes. The respondent's records show that January 1939 was unusually slack and that the respondent handled approximately 85,000 bushels of grain less that month than in January 1938. In February and March 1939, however, the respondent handled approximately 150,000 bushels more, and also slightly more from April to June, than for the same periods in 1938. In January, shortly after Gribben and Rhodes were laid off, Charles Lewis, a coal tender in the power department, was trans- ferred to the elevators for at least one 48-hour week and on other occasions for 2- or 3-day periods. During the weeks ending Febru- ary 16 and 23, 1939, Dawson Bills also was transferred from repacking to the elevator department for 82 hours, and thereafter worked in that department intermittently until about April 1 when, with the exception of a 2-week period, his transfer became permanent.8 A tabulation introduced in evidence by the respondent shows that, with the exception of March, an average of four men were employed in the elevator department from January to June 1939, and that notwith- standing the fact that the time spent by Lewis was admittedly not included in the computation, the average number of hours per man was but 6 hours less per month than in 1938. In justification of his refusal to transfer Gribben and Rhodes to some other department, Henkle testified that they were not physically able to perform the heavy work required in the warehouse and that they had no mill experience. He further testified that he had received reports from the foremen that Gribben and Rhodes "were not adapted to work" in the mill, warehouse, or packing room. Gribben, however, testified that he had been transferred to the mill for 2 or 3 weeks on one occasion, and that he had loaded flour and feed and tied flour sacks "lots of times." He further testified that once in preparation for prospective work on one of the packers he had spent several evenings after working hours learning its operation, but that Faulkner recalled him to the elevators and Rhodes was transferred to the packer in his stead. Rhodes testified that he also had tied flour sacks, loaded flour and feed, and in addition had run the feed packer and worked on the maintenance crew when reroofing the warehouse. Henkle admitted that Gribben and Rhodes had "helped a little bit in the warehouse in times gone by," but that it was only on "small package goods." He further testified that at the time of their lay-off there were no jobs "open" in the other departments, and that had Gribben and Rhodes been transferred other employees 8 As we have found above, Bills had been discriminatorily transferred from packing to repacking The record shows that his transfer to the elevator department carried with it the same rate of pav that he received after his demotion to repacking. LAWRENCEBURG ROLLER MILLS COMPANY 1003 would have been forced out of employment . The record shows that from December 12 to December 27, 1938, the respondent hired three new employees in the warehouse and two in the mill . In 1939 three more men were employed in the warehouse , Bingaman and Daugherty were reinstated on February 20 and May 17, respectively , and Joseph Lipps, a new employee, was hired on March 20. We are not persuaded that the decline of work in the respondent's elevator department in January explains the lay-off of Gribben and Rhodes. It is clear that shortly after their lay-off there was suffi- cient work in that department for at least one man , and thereafter, according to the respondent's own records , possibly two on a shorter hour basis . It is equally clear that there also was sufficient work available for Gribben and Rhodes in the mill and warehouse had they been transferred to these departments. Their transfer during pre- vious slack periods in the elevators contradicts Henkle's disparage- ment of their qualifications for that type of work. Indeed, the re- spondent excepts to the failure of the Trial Examiner in his Inter- mediate Report to find: "That on the occasions that Rhodes and Gribben were transferred to the mill during slow seasons in the ele- vator, there was work in the mill which needed to be done and which would have required extra help to be hired had not said employees been transferred to the mill." The proposal of such a finding is not only an admission that Gribben and Rhodes were capable of perform- ing other work, but also that it would have been in keeping with the respondent's normal procedure if it had transferred them in Decem- ber when there was work in both the mill and warehouse which "needed to be done ," as evidenced by the hiring of five additional employees. The respondent argues, however, that these new em- ployees had been hired to fill permanent positions before Gribben and Rhodes were laid off, and further that Gribben and Rhodes were not "fitted for steady employment in the mill." As for the first conten- tion, the record shows that at least one man was hired in the mill after the probability of laying off Gribben and Rhodes had been dis- cussed. Moreover, in February and March 1939, two more men were hired in the warehouse , including Charles Bingaman , whom the re- spondent but 3 months before had allegedly discharged for smoking and misconduct." Assuming that Gribben and Rhodes were so unqual- ified, as is secondly contended , there is no showing that they requested "steady employment" in another department ; their only desire was to be temporarily employed until their regular work was available. Although Henkle denied the existence of any general policy to trans- fer employees to other departments during slack periods , the testi- mony of Inglis, who for 20 or 25 years prior to becoming time- 0 See footnote 5, 8fVra 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD keeper was foreman of the elevator department, appears in contra- diction. Inglis testified that, when he was foreman, if there was "a fellow in the elevator and we knew it was going to be slack, if there was an opening in the mill we would give him preference." The re- spondent had employed Gribben steadily for over 14 years, Rhodes for approximately 4, and their prior transfer during these years shows that such a policy existed up to the time of their lay-off. Moreover, from Henkle's own testimony, it appears to have been con- tinued thereafter. In explanation of his failure to recall Gribben or Rhodes in April when work in the elevators became sufficient to transfer Bills permanently to that department, Henkle testified, "Well, it was a matter of judgment on my part. I thought Bills could do the work and in the milling business today we have to look to economy. Now, if you have got help inside of the plant that can do a job that is enough. You can use that help to do it." We do not believe, therefore, that Henkle's refusal to accord this customary preference to employees with as many years of satisfactory service as Gribben and Rhodes is explained by the specious reasons alleged therefor. We are persuaded by the evidence and find that the real reason lay in the hostility toward the Union which dominated the respondent's conduct during this period. In its brief, the respondent cites as a "test of whether or not Gribben and Rhodes were laid off and not sooner reinstated because they were union members," the fact that all four employees in the ele- vator department had joined the Union. The respondent thereby infers that because it did not discharge Christian and Ake the lay-off of Gribben and Rhodes could not have been discriminatory. While such a factor is to be considered, it is not determinative. We also find no merit in the respondent's contention that it did not know prior to their lay-off that Gribben and Rhodes were members of the Union. It appears from Faulkner's testimony that he knew Gribben was a member, and in view of his hostility toward the Union, his question- ing of union employees as described above, and the statements made by him to Rhodes after his lay-off, we find that Faulkner knew that both Gribben and Rhodes had joined the Union. At the time of his lay-off Rhodes was earning 43 cents an hour and averaging $18.92 a week. Since his discharge he had earned ap- proximately $108.00 at other employment. After his lay-off, Gribben earned $1.00 a week working on his father-in-law's farm. He also received money from the State in unemployment insurance benefits. We find that the respondent laid off Roy Gribben and Walter S. Rhodes on January 12, 1939, and refused them reinstatement until July 10 and July 15, 1939, respectively, because they joined and assisted the Union, and that the respondent thereby discriminated in regard to the hire and tenure of employment of said employees and LAWRENCEBURG ROLLER MILLS COMPANY 1005 discouraged membership in a labor organization; and that by such acts the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, A, B, and D 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we will order that it cease and desist from such practices and, to effectuate the purposes of the Act, we will order the respondent to post notices stating that it will not engage in the conduct from which it is ordered to cease and desist. The respond- ent's employees will thus be assured that they may exercise the rights guaranteed by the Act without fear of interference, restraint, or coercion. As a further means of removing and avoiding the con- sequences of the respondent's unfair labor practices, we shall order the respondent to take certain affirmative action, more particularly described below. We have found that the respondent discriminatorily discharged and subsequently refused to reinstate Albert Luchte because of his union membership and activity. We shall therefore order the re- spondent to offer him reinstatement to his former position without prejudice to his seniority and other rights and privileges. Although the respondent offered to reemploy Luchte if he should withdraw the charges filed with the Board, it is clear that this placed no obligation upon Luchte to forego redress for his wrongful discharge and return to work upon the respondent's terms. We find nothing in the cir- cumstances surrounding Luchte's refusal of the respondent's offer that would justify a denial of the remedy we shall order in his case. In its brief, the respondent argues that Luchte should not be rein- stated because he testified that if reemployed he would continue to smoke. In reinstating Luchte, however, we do not mean that the respondent is obliged to retain him in violation of its rules. If the respondent now enforces its smoking rules without discrimination, Luchte will be subject to discharge for a violation thereof as other employees of the respondent. 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have also found that the respondent discriminatorily laid off and subsequently refused to reinstate Roy Gribben and Walter S., Rhodes. However, since the respondent has already reinstated Grib, ben and Rhodes, we shall not order the respondent to reinstate them. We have further found that the respondent's demotion of Dawson Bills from "packing" to "repacking" work constituted an unfair labor practice. The respondent took exception to a similar finding by the Trial Examiner in his Intermediate Report on the ground that the finding did not come within the allegations of the complaint. However, since the respondent participated in the litigation of the issue and at no time applied to the Trial Examiner for a continuance of the hearing so that it might make additional preparation for the presentation of its defense, it cannot claim prejudice by the failure of the complaint specifically to allege Bills' demotion.1° We shall, therefore, in order to remedy the effect of this unfair labor practice, order the respondent to reinstate Bills to his former position as a "packer," or if such position is not available, to a substantially equiv- alent position without prejudice to his seniority and other rights and privileges. We shall also order the respondent to make whole Albert Luchte, Roy Gribben, and Walter S. Rhodes, for any loss of pay they have suffered by reason of the respondent's discrimination by payment to each of them a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his net earnings 11 during that period. We shall enter the same order with respect to Dawson Bills, except that since the Trial Examiner made no recommendation with respect to his reinstatement as a "packer," we will exclude from 10 See Fort Wayne Corrugated Paper Company v National Labor Relations Board, 111 F. (2d) 869 (C C A 7), enf'g Matter of Fort Wayne Corrugated Paper Com- pany and Local No 182, International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, 14 N. L. R. B 1 ; Cf. National Labor Relations Board v. Piqua Munising Wood Products Co, 109 F. (2d) 552 (C. C A. 6), enf'g Matter of Piqua Munising Wood Prod- ucts Company and Federal Labor Union Local 18787, 7 N i, R B 782 ; National Licorice Company v National Labor Relations Board, 60 S Ct 569, aff'g as modified 104 F. (2d) 655 (C C. A 2), enf'g as modified Matter of National Licorice Company and Bakery and Con- fectionery Workers International Union of America, Local Union 405, Greater New York and Vicinity, 7 N L. R B 537 it By "net earnings" is meant earnings less expenses. such as for transportation, room and board, incurred by an employee in connection with seeking work or working elsewhere than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seekine employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawm 11 Workrs Union, Local 2590, 8 N. L R B 440 We shall order the respond- ent to deduct from the back pay due under our Order monies received by an employee for work performed upon Federal, State , county, municipal , or other work-relief projects during the period for which we are ordering the respondent to pay such employee back pay and to pay such deductions over to the proper fiscal agency of the Fedeial, State, county , municipal , or other government or governments which supplied the funds for said work-relief projects. LAWRENCEBURG ROLLER MILLS COMPANY 1007 the computation of his back pay the period from the date of the Intermediate Report to the date of the order ,herein. This is in accord with our usual rule: 2 Upon the basis of the foregoing findings of fact and upon the entire record in this case, the Board makes the following: CONCLUSIONS or LAW 1. Flour Mill & Grain Elevator Employees Union No. 21840, affil- iated with the A. F. of L., is a labor organization, within the meaning of Section 2 (5.) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Albert Luchte, Roy Gribben, and Walter S. Rhodes, thereby discouraging membership in Flour Mill & Grain Elevator Employees Union No. 21840, affiliated with the A. F. of L., the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. 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 practices -within the meaning of Section 8 (1) 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. 5. The respondent has not maintained surveillance over union meet- ings and has not thereby engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. By discharging and refusing to reinstate James White, 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, Lawrenceburg Roller Mills Company, Lawrenceburg, Indi- ana, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Flour Mill & Grain Elevator Employees Union No. 21840, affiliated with the A. F. of L., or any other labor organization of its employees, by discharging, laying off, or refusing to reinstate any of its employees, or in any other manner 22 Matter of E. tt Hafelfinger Co. Inc , and United Wall Paper Crafts of North Amet ica, Local No. 6. 1 N. L. R B 760. 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminating in regard to hire or tenure of employment of its employees; (b) 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 con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Albert Luchte, immediate and full reinstatement to his former position, and to Dawson Bills immediate reinstatement to his former position as a "packer" or to a substantially equivalent position, without prejudice to their seniority and other rights and privileges ; (b) Make whole Albert Luchte, Roy Gribben, and Walter S. Rhodes, for any loss of pay they may have suffered by reason of the respondent's discrimination by payment to each of them a sum of money equal to that which each would have earned as wages during the period from the date of the discrimination to the date of the offer of reinstatement, less his net earnings 13 during said period ; deducting, however, from the amount otherwise due each of the said employees, monies received by said employees 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) Make whole Dawson Bills for any loss of pay he may have suffered by reason of his transfer from "packing" to "repacking" work by payment to him of a sum of money equal to that which he normally would have earned as a "packer" from the date of his trans- fer to January 20, 1940, the date of the Intermediate Report of the Trial Examiner, and from the date of this Order to the date of the offer of reinstatement, less his earnings while employed elsewhere in the respondent's plant during said period; (d) Post immediately in conspicuous places at its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the re- spondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) 38 See footnote 11, supra. LA`VRENCEBURG ROLLER MILLS COMPANY 1009 that the respondent will take the affirmative action set forth in para- graphs 2 (a), (b), and (c) of this Order; and (3) that the respond- ent's employees are free to become or remain members of Flour Mill & Grain Elevator Employees Union No. 21840, affiliated with the A. F. of L., and that the respondent will not discriminate against any employee because of membership or activity in said labor organization ; (e) Notify the Regional Director for the Eleventh Region in writing within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith; AND IT IS rURTHER ORDERED that the complaint, in so far as It alleges that the respondent, by maintaining surveillance over union meetings, has engaged in unfair labor practices within the meaning of Section 8 (1) of the Act, and by discharging and refusing to reinstate James White and George Daugherty, has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.