Tex-O-Kan Flour Mills Co.

In the Matter of TEx-O-KAN FLOUR MILLS COMPANY (MORTEN MILLING COMPANY BRANCH) and NATIONAL COUNCIL OF GRAIN PROCESSORS In the Matter of TEX-O-IRAN FLOUR MILLS COMPANY (BURRUS MILL AND ELEVATOR COMPANY BRANCH) and NATIONAL COUNCIL OF GRAIN PROCESSORS Cases Nos. C-1483 and C-1484.-Decided August 19, 1940 Jurisdiction : flour milling industry. Unfair Labor Practices In General: application of doctrine of respondeat superior to acts of supervisory employees with and without authority to hire or discharge. Interference, Restraint, and Coercion: anti-union statements; dissuading employees from joining or remaining members of the Union; threat to close plant unless union activity ceased; threats of interference with conditions of employment; assistance in circulating withdrawal petitions; circulation of "loyalty" petitions; conducting an election despite protests of its employees; attempt to deal with employees individually rather than through union organization; suggestion that employees could have their own organization without outside representation; interrogation concerning union membership. Discrimination: discharges, lay-offs, and refusal to reinstate one employee for union membership and activities; discharge of one employee because of his suspected activities on behalf of the union, charges of alleged discriminatory discharges, dismissed as to six employees. Remedial Orders : reinstatement and back pay awarded; back pay not awarded from date of Intermediate Report to date of Order as to certain employees. Practice and Procedure :- complaint dismissed as to employee, alleged to have been discriminatorily laid off, who failed to appear to testify. Mr. L. N. D. Wells, Jr., for the Board. Mr. George 0. Wilson, of Dallas, Tex., for the respondent. Mr. Earl Dietz, of Oklahoma City, Okla., and Mr. Jack Carter, of Fort Worth, Tex., for the Union. Mr. Allan Lind, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon separate charges and separate amended charges duly filed by the National Council of Grain Processors (A. F. of L.), herein called 26 N. L. R. B., No. 83. 765 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union,' the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated August 3, 1939, against Tex-O-Kan Flour Mills Company, Dallas, Texas, herein called the respondent,' alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and accompanying notices of hearing were duly served upon the Union and the respondent. On August 8 and September 16, 1939, the Regional Director, acting as agent for the Board, issued separate amendments to the complaint. Copies of such amendments and an amended notice of hearing were served upon the parties. Concerning the unfair labor practices, the complaint, as amended, alleged in substance: (1) that the respondent, on or about November 1, 1938, called a meeting of its employees at the-Morten mill and urged them to -bargain individually with the respondent; (2) that the respondent, between December 1, 1938, and the date of issuance of the complaint, urged, persuaded, and warned many of its employees at the Morten mill to refrain from becoming or remaining members of Local No. 21818 and threatened to close said Morten mill if the employees retained their union membership; (3) that the respondent caused anti-union petitions to be circulated among the employees at the Morten mill on company property and time; (4) that the respond- ent at the same mill on divers dates from November 7,, 1938, to June 12, 1939, discriminatorily discharged and refused to reinstate 15 named persons 3 because of their membership in Local No. 21818; (5) that the respondent, between November 15, 1938, and the date of the issuance of the complaint, urged, persuaded, and warned many of its employees at the Burrus mill to refrain from becoming or remaining members of Local No. 21827 and threatened said employees with discharge and discrimination for joining or remaining members. of said organization; (6) that the respondent, on or about December 15, i Subsequent to the filing of the charges , the title "National Council of Grain Processors" was changed to "National Council of American Federation of Grain Processors." 2 The separate charges and amended charges involved two mills of the respondent One of the mills, located in Dallas , Texas, is known as the "Morten Milling Company Branch," herein called the Morten mill, the other, located in Saginaw, Texas, is known as the "Burrus Mill and Ele% ator Company Branch," herein called the Burrus mill. Charges involving the Morten branch were filed by the Union on behalf of its local, Flour, Feed Mill and Cereal Workers' Union No. 21818, herein called Local No. 21818. Charges in- volving the Burrus branch of the respondent were filed by the Union on behalf of Flour, Feed Mill and Elevator Workers' Union No. 21827, herein called Local No. 21827. On May 12, 1939, the Board , acting pursuant to Article II, Section 37 (b), of the National Labor Relations Board Rules and Regulations- Series 1, as amended, ordered that the cases be consolidated for the purposes of hearing and for all other purposes. 8 John Marple, O. H. Kirby, E C Carey, F L Fielding, J. C. Penny, Roy Frank, H. P Baker, Loys McMurray, Ed Starr, Jim Arnold, Billie Hansell, Robert Stewart , M. L. Brittian, Jimmy Ervin, and Samuel Vodnick. TEX-O-KAN FLOUR MILLS COMPANY 767 1938, and thereafter, caused anti-union petitions and petitions of withdrawal from the Union to be circulated among its employees at the Burrus mill; (7) that the respondent at its Burrus mill, on or about December 24, 1938, called a meeting of its employees and urged them to bargain individually with the respondent; (8) that the respondent on divers dates from November 13, 1938, to August 9, 1939, dis- charged and refused to reinstate 19 named persons, 'employed at its Burrus mill, because of their membership in Local No. 21827.4 On August 15, 1939, the respondent filed its answer to the complaint in which it admitted certain allegations of the complaint, denied the alleged unfair labor practices, and set up certain matters of affirmative defense. Pursuant to notice, a hearing was held from September 18 to Sep- tember 28, 1939, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the hearing counsel for the Board moved to amend the complaint by adding the name of L. M. 'Mitchell to the list of persons alleged to have been discriminatorily discharged from the respondent's Burrus mill. The Trial Examiner granted the motion. Numerous other motions and objections to the admission of evidence were made and ruled upon by the Trial Examiner at the hearing or were reserved and ruled upon by the Trial Examiner in his Intermediate Report. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On January 29, 1940, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. Therein he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from the unfair labor practices so found and that it take affirmative action of a reme- dial nature, including the reinstatement with back pay of John Marple, 0. H. Kirby, Loys McMurray, F. L. Fielding, Jim Arnold, and Billie Hansell. The Trial Examiner recommended, further, that the complaint be dismissed as to 29 individuals 'whose employment was terminated by the respondent, he found, for reasons other than their union membership and activity. Exceptions to the Intermediate 4 Claude Henson, C. 0. Stewart, V. L. Newland, R. H. Tomlin, Jack Burns, H. P. Chisum, H. E. Smith, Emory Kreidel, R. M. (Manley) Davis, C. M Hardgrove, H. L Hampton, J. H. Atchison, F. M. Maddux, C C. Wilson, G. W. Smith, J. C. Carroll. C. W. Fidler, Herbert Cowsert, and John Crouch. The names of several of the above individuals were misspelled in the complaint , as amended. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Report were thereafter filed by the respondent and by the Union. The Union also filed a brief in support of its exceptions. Pursuant to notice duly served upon the parties, a hearing was held before the Board at Washington, D. C., on May 28, 1940, for the purpose of oral argument. The respondent and the Union were represented by counsel and participated in the argument. The Board has considered the exceptions filed by the respondent and the Union and finds them to have merit only in so far as they are consistent with the findings of fact, conclusions of law, and order set forth below. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Tex-O-Kan Flour Mills, is a Delaware corporation authorized to do business in the State of Texas. It operates, among other enterprises, flour and feed mills in Dallas and Saginaw, Texas. Prior to 1937 the Morten Milling Company owned the respondent's mill in Dallas, and the Burrus Mill and Elevator Company operated the respondent's mill i1I Saginaw. In 1937 these latter corporations were dissolved and merged with the respondent. During the fiscal year which ended May 31, 1938, the respondent processed about 3,395,232 bushels of wheat and other grains in its Morten mill. The value thereof was approximately $2,985,060.85. About 20 per cent of the aforesaid grain was shipped into Texas from points outside of that State. The finished product of the Morten mill includes flour and feed. During the fiscal year which ended May 31, 1938, the respondent manufactured at its Morten mill about 561,579 barrels of these products, having a dollar value of approxi- mately $3,970,569.15. Approximately 30.75 per cent of the afore- said products were shipped to destinations outside of Texas. During the fiscal year which ended May 31, 1938, the respondent processed at its Burrus mill about 3,289,087 bushels of wheat and other grains, having a dollar value of approximately $3,925,710.50. About 20 per cent of this grain was shipped into Texas from points outside of that State. The finished product of the Burrus mill includes flour and feed. During the aforesaid fiscal year, the respondent manu- factured at its Burrus mill about 715,019 barrels of these products with a value of approximately $5,711,722.46. Approximately 40.8 pei cent of these products were shipped to destinations outside Texas. II. THE LABOR ORGANIZATIONS INVOLVED The National Council of American Federation of Grain Processors, affiliated with the American Federation of Labor, is a labor organi- zation exercising jurisdiction over a large number of local labor organizations, including Locals No. 21818 and No. 21827. TEX-O-RAN FLOUR MILLS COMPANY" 769 Flour, Feed Mill and Cereal Workers' Union No. 21818 is a labor organization affiliated with the American Federation of Labor and the National Council of the American Federation of Grain Processors. It admits to membership employees of the respondent at its Morten mill. Flour, Feed Mill and Elevator Workers' Union No. 21827 is a labor organization affiliated with the American Federation of Labor and the National Council of the American Federation of Grain Processors. It admits to membership employees of the respondent at its Burrus mill. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion at the iViorten mill During the latter part of October 1938 the respondent ordered a general wage cut affecting all of its employees in the Morten mill. This wage cut precipitated the formation of Local No. 21818 among the employees. On October 30, 1938, a meeting of the employees was held at Reverchon Park at Dallas, Texas. At this meeting 21 em- ployees of the Morten mill attended and decided to form a local of the Union. In conformance with this decision a set of temporary officers was elected, and it was decided to secure a charter from the American Federation of Labor. Shortly thereafter a charter was granted to the Union, and it became Local No. 21818. Following the first meeting of the employees, the respondent's supervisory officers began a concerted campaign to dissuade the em- ployees from joining or remaining members of the Union. The record is replete with evidence of such activities. The following instances are but examples of the respondent's activities in this respect. Ed Starr, an employee, testified that on or about October 30, 1938, Lee Thompson, the respondent's chief engineer at the Morten mill and a supervisory employee, asked him whether or not he had joined the Union. Starr replied that he had not as yet, but that he intended to. According to the testimony of Starr, Thompson then advised him not to become a member of the Union, stating that it would merely get the employees into a great deal of trouble. The testimony of Starr was not refuted by the respondent. On or about November 2, 1938, the employees at the Morten mill were called to a general meeting by the respondent's officers. Blaine Thompson, general manager of the Morten mill, and W: H. Chambliss, the superintendent of the Morten mill, presided at the meeting. According to the testimony of John Marple and E. C. Carey, employees of the respondent, Thompson announced a general wage increase, stating that he was glad to take such action and expressing satisfaction that the respondent and its employees could settle their differences without the help of an "outside organization." According to the two employees, Thompson also invited the employees as individuals to 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discuss problems with him at any time. Called as a witness for the respondent, Thompson denied the testimony of Marple and Carey and stated that he had no knowledge of the Union when the above- mentioned meeting was held in the Morten mi11. The Trial Examiner, who observed the witnesses, did not credit Thompson's denial. Superintendent Chambliss did not testify. We find, as did the Trial Examiner, that the incident occurred as described in the testi- mony of Marple and Carey recited above. O. B. Yandell, an employee, testified that on or about November 9, 1938, Carl Lynch, a second miller and a supervisory employee, told him that if the Union presented a contract, the respondent would shut down its plant. He further stated, according to Yandell, that the respondent would never sign a contract with the Union. H. P. Baker testified that on or about November 11, 1938, Lynch asked him whether or not he had joined the Union and advised him, "If I was you I would just let the damned union go; all it does is cause strikes and causes us all to be out of jobs." Lynch, a witness for the respondent, did not deny the testimony of Baker and Yandell. We find that the conversations took place as set forth above. Yandell testified that on or about November 14, 1938, Lee Thomp- son, the chief engineer in the respondent's Morten mill, warned him that if the employees continued their union activities, the mill would be closed and they would be laid off. This was not denied by any witness in behalf of the respondent. Between December 5 and 15, 1938, Frank Van Cleve, a shipping clerk in the respondent's mill, circulated a petition among the mill employees on which the signers signified their intention to resign from the Union. The circulation of this petition during working hours was overtly aided and abetted by various supervisory officers. For ex- ample, on or about December 23, 1938, one Smith, an elevator fore- man in the Morten mill, told two employees who were wearing their union buttons, M. L. Brittian and John Binson, "Boys you just as well pull them pins off, everybody in the mill was signing that petition and the company said they would spend $100,000 to break this up, and I'd advise you to sign." 5 When Binson agreed to sign the document, Smith left the place where the two employees were working and disappeared inside the mill. Within a few moments Van Cleve appeared with the petition and asked the two employees if they were ready to sign it. Binson signed the document, while Brittian refused to sign it. On or about December 15, 1938, according to the testimony of Starr, Lee Thompson, chief engineer, again attempted to persuade him to resign from the Union. Specifically, Thompson told Starr, "I think you boys ought to pull the buttons off and get out of here. 3 Smith did not testify at the hearing. TEX-O-KAN FLOUR MILLS COMPANY 771 It ain't going to get you anywhere. It will get your job, and they can always find an excuse to fire you for it." The testimony of Starr was not denied by the respondent: On or about December 16 , 1938, John Coleman, a union member in the Morten mill, was ordered to leave his job and take the place of R. E. Stewart , a feed packer who had just been laid off . Coleman protested the change to Chambliss on the ground that his new task was harder work . He also asked Chambliss how long he would be obliged to remain in Stewart's position . Chambliss replied, according to testimony of Coleman, that he did not know because the respondent had.just begun the fight. He further stated, according to Coleman, "How do you think we feel everytime we see one of you fellows got one of those buttons in our faces . . . If you boys are smart you will come out of it as quickly as you can . I am not supposed to be talking to you about it. If you ever say anything about what I am saying I am going to say it is a he." Chambliss was not called as a witness to refute the testimony of Coleman. On or about December 29 , 1938, Fate Moore , au ordinary employee, circulated a petition which was addressed to the respondent's general manager and which read as follows: We the undersigned are taking this means to inform you that we have been, and are now well pleased with our working condi- tions at the Morten mill. We have in the past and feel that we can in the future deal without the help and cost of some outside organization . Trusting our action meets with your approval, we are your loyal employees. This petition was circulated in the mill during working hours. The circulation of this petition , as in the case of the one previously men- tioned, was aided by the acts of various supervisory employees of the respondent. For example, on or about December 31 , 1938, according to the testimony of James Robertson and R . E. Stewart, two em- ployees, Joe Hudson , a second miller and a supervisory employee, told them that they had better sign the petition. According to the testi- mony of the two above-named employees, Hudsons aid "If you don't, they are going to close the mill down Monday." Hudson did not contradict their testimony . Dallas Earnest', an employee , testified that Hudson came to him on or about December 31, 1938, with the petition and told him , " Earnest you just as well get your name on this and get all right; the company has set aside $65,000 to fight you fellows with and it hasn't got a chance to win." Earnest requested Hudson to ask Chambliss whether or not it would be all right to sign the document. Hudson then went to see Chambliss and later returned and told Earnest , " Earnest, the old man is mad as hell. He said be was going to break this thing up and if he didn't break it up in a week he is going to shut the mill down and fire every damned one of you, 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but he said he would have to go to jail but he didn't care, the company had plenty of money and was behind him and he said if you will sign it you will not get fired." Hudson, a witness for the respondent, did not deny the testimony of Earnest, although he denied that he ever told anyone that the respondent had set aside $65,000 to fight the Union. The Trial Examiner, who observed the demeanor of the witnesses, found in accordance with the testimony of Earnest. We find that Hudson made the remarks attributed to him by Robertson, Stewart, and Earnest substantially as recited above. On or about January 5, 1939, according to the testimony of Yandell, Lynch, the second miller, advised him that if he did not pull off his union button he would be discharged. Yandell also testified that on the afternoon of the same day Hudson asked him why he had not signed the anti-union petition circulated by Moore. The testimony of Yandell was not refuted by the respondent. On December 31, 1938, Blaine Thompson, general manger, in the presence of Chambliss, then superintendent, talked to James Robert- son, an employee, while the latter was at work in the Morten mill, saying, according to Robertson, that "he had a mind to close the plant down, fire everybody and start over again." Thompson said further: "If you want work, get to work. You don't have to belong to a Union to work here, to get work." Another employee, R. E. Stewart, also heard this conversation and corroborated the testimony of Robertson. The respondent did not deny the testimony of the two employees. On or about January 6, 1939, "Red" Hope, a second miller who exercised supervisory powers, came to Earnest with the anti-union petition and told him "Earnest, we have got to get this thing broke up. Some of you just as well come sign it " Upon Hope's insistence Earnest finally signed the petition. Hope did not testify. On or about January 6, 1939, Loys McMurray, an employee, was persuaded by Moore to sign the petition. The petition was then located in the office of the respondent's shipping clerk. McMurray went to the office to sign the petiition and upon his entry he was greeted by Hudson, the second miller, who told him, "I'm glad to see you go over on the right side." On this occasion Hudson removed the union button which McMurray was wearing at the time. Later in the day McMurray obtained another union button, which he wore in plain sight. Sometime late in the evening of the same day Hudson observed that McMurray was wearing a union button and asked him what he meant by such action, saying, "I thought you had signed out of the union." McMurray explained that he signed the petition merely for the purpose of expressing his satisfaction with the working condi- tions in the respondent's mill. Hudson then informed McMurray that he would regret his decision. On the following day Chambliss, the superintendent, observed that McMurray was wearing a union TEX-O-KAN FLOUR MILLS COMPANY 773 button and expressed some surprise, stating that he understood that McMurray had "signed out" of the Union. McMurray explained that Chambliss was mistaken in the latter respect. Chambliss then walked off saying, "Well, I can't tell you what to do but I can tell you what is good for you." 6 On January 11, 1939, Lynch talked to Yandell. regarding the union activities in the Morten mill. According to Yandell, Lynch said, "Yandell, I am worried. I am afraid they are going to shut the mill down." Yandell inquired as to the reason why the respondent would want to close the mill. Lynch then said, according to Yandell, "Anytime they present a union contract they are going to shut the mill down." Yandell replied, "Mr. Burrus couldn't afford to shut the mill down," but Lynch insisted, saying, "You will see, he will take his money and walk out." Lynch then intimated to Yandell that flour was being manufactured for the respondent in San Antonio in order to break up the Union. Lynch did not deny the testimony of Yandell set forth above. Moore continued to circulate the "loyalty" petition during working hours in the respondent's mill until on or about January 10, 1939. During its circulation Moore warned various employees that unless they signed the petition they would lose their jobs and that the respondent would shut down its mill. Testifying for the respondent, Moore insisted that he alone wrote the petition and that he acted on his own initiative in circulating the same among the employees in the Morten mill during the regular hours of work. In view of the fact that Moore was overtly aided in his attempts to secure signatures to the anti-union document by the various supervisory officers men- tioned above, we find that the respondent was instrumental in the circulation of the anti-union petition and that it was circulated for the purpose of defeating 'the activities of the Union in the plant. In this connection it is also significant to note that the petition besides bearing the signatures of a number of employees was also signed by Chambliss, superintendent; J. B. Warren, foreman; Lee Thompson, chief engineer; Kinman, warehouse foreman; and Lynch and Hudson, second millers. The signature of Superintendent Chambliss was written boldly at the top of the right band column of names. The petition was presented to the respondent on or about January 10, 1939. On January 14 the respondent acknowledged receipt of the petition by sending a letter to the individual signers thereof expressing its appreciation for the expression of confidence in the management and indicating to the employees that it was for them to decide whether or not they wished to deal directly with the company. On February 21, 1939, the respondent continued its efforts to As noted above, Chambliss did not testify Hudson, although appearing as a witness for the respondent, did not refute the testimony of McMurray. 323429-42-vol. 26-50 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thwart the Union's growth. According to the testimony of 0. B. Yandell, Paul Fisher, who had succeeded Chambliss as superintendent on February 13 of the same year, called a meeting of the employees in the respondent's warehouse . Thompson, the general manager, who was also present , announced that the purpose of the meeting was to conduct an election for the purpose of determining whether or not the Union had a majority of the employees as members. Yandell testified that he protested against the forced election because the Union had received no notice thereof. Despite this protest Thompson proceeded to conduct the election. The balloting resulted in 31 votes for the Union, and 21 against it. Thompson then informed the employees that he was ready to negotiate with the Union. The record is devoid of any showing of bargaining negotiations between the U4iion and the respondent. We find that the respondent, by conducting the above-mentioned election, despite the protest of its employees, interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act.7 The respondent contends that the anti-union statements of the various supervisory employees mentioned above did not result in the commission of unfair labor practices by it because such employees either did not have the power to hire or discharge employees, or acted outside the scope of their authority and without the express permis- sion of the respondent. In this connection it is pertinent to note that Chambliss, as superintendent of the Morten mill, and Fisher, who replaced him on February 13, 1939, as well as Thompson, the general manager of both of the respondent's mills, were in positions of authority so as to directly represent the respondent in its dealings with its employees. We, therefore, find that the statements attributed to them represent the policy of the respondent." As to the various other supervisory employees mentioned above, it appears that the second millers were in control of production on the various floors of which they were in charge, and that during the absence of the super- 7 The Board has previously held that it is an unfair labor practice for an employer to conduct an election among its employees. See Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L R. B. 626, enf'd National Labor Relations Board v Remington Rand, Inc , 94 F. (2d) 862 (C. C. A 2), cert. denied 304 U. S. 576, platter of Eagle Manufacturing Company and Steel Workers Organizing Committee, 6 N L. R. B 492, enf'd National Labor Relations Board v. Eagle Manufacturing Company, 99 F (2d) 930 (C. C A. 4); Matter of McNeely & Price Company and National Leather Workers Association, Local No. 30 of the C. I. 0 , 6 N. L. R B 800, enf'd as mod , National Labor Relations Board v McNeely & Price Company , 106 F (2d) 878 (C. C A. 3). 8 The assertion that the supervisors or company officials who were the actors in the events described above lacked direct authorization from the respondent to engage in such conduct is irrelevant , since it is well settled that the principle respondent superior is applicable in proceedings under the Act. See Sunshine Mining Co v. National Labor Relations Board , 110 F (2d) 780 (C C. A 9), National Labor Relations Board v. American Manufacturing Co , 106 F. (2d) 61, 67 (C. C. A 2); National Labor Relations Board v. A. S. Abell Co., 97 F. (2d) 951, 956 (C. C. A 4), National Labor Relations Board v. Virginia Ferry Cc , 101 F. (2d) 103, 106 (C . C A 4), National Labor Relations Board v Planters Mfg Co , 105 F. (2d) 750, 754 (C. C A 4), No- tional Labor Relations Board v. Goshen Rubber Co ., 110 F . (2d) 432 (C C A 7), Swift & Co. v. National Labor Relations Board, 106 F. (2d) 87, 93 (C. C. A 10). TFDX-O-KAN FLOUR MILLS COMPANY 775 intendent of the plant, they were in charge of production. It is also clear that they issued instructions to the various employees and saw to it that the orders of the respondent were carried out. The record also reveals that the employees considered the second millers as super- visory employees. While such employees did not have the power to hire and discharge, their recommendations in these matters were usually considered by the respondent. Under such circumstances we find that the second millers were supervisory employees, and as such their statements represented the policy of the respondent.' We find that the respondent, by various anti-union statements of its supervisory employees, by the circulation of anti-union petitions, and by the various other acts outlined above, has interfered with, re- strained and coerced its employees in the exercise of the rights guar- anteed to them in Section 7 of the Act. B. The discharges at the Morten mill John Marple and 0. H. Kirby. Marple began working for the respondent sometime in March 1937 and remained in the employ of the respondent until he was discharged on November 7, 1938. He was employed as a feed packer. Kirby commenced working for the respondent on October 20, 1937, and continued to work as a flour packer until he was also discharged on November 7, 1938. It is clear from the record that both employees were considered competent by the respondent. Following a general wage cut in October 1938, Marple became a leader in the formation of Local No. 21818. He was instru- mental in arranging for the first meeting of the Union and at the meeting was elected president thereof. Kirby was elected financial secretary of the Union at the first meeting in October and was also active in the formation of the Union. On or about November 3, 1938, Jasper Meek, chief clerk and assistant manager of the Morten mill, informed Marple, "If you don't get out of this thing and get on the other side or show the manager that you are a company man you are going to lose your job." Marple inquired whether this meant that he should withdraw from the Union. Meek replied in the affirmative.10 On November 4 Marple was at work when Carl Lynch, a second miller, approached him and said, "Boy, what is the matter with you? I thought you were a better friend to me than this." Marple asked what Lynch meant and the latter replied, "Getting in this damn union here and trying to make us all lose our jobs." Marple expressed i See Matter of T W. I-Iepler and International Ladies' Garment Workers Ln,on , 7 N L. R. B. 255 , Matter of M. Lowenstein & Sons, Inc , and Bookkeepers', Stenogi aphers', and Accountants' Union Local No 16, etc , 6 N L. R. B 216, Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No 459, enf'd in International Association of Machinists v. National Labor Relations Board, 110 F (2d) 29 (C. A. D. C.) petition for cert granted 311 U. S. 72 ii Meek did not testify at the hearing 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD confidence that the respondent "will carry on with us all right," to which Lynch replied, "They won't do it. You will all get fired." Marple then declared that he would remain with the Union even if he were discharged. Before the conversation terminated Lynch said, "I am going to come to your house and try to beat a little sense into your head tomorrow." On November 5 Lynch visited Marple at his home. Kirby, then temporary financial secretary of the Union, was also present on this occasion. During the course of the conversation, Lynch told the two employees, "You boys are taking your own course. Here it is in the middle of winter and close to Christmas. You are going to get us all fired. If the company don't fire us, they will close the mill down and we will be out of a job anyhow." Marple answered, "Well, I can't back out. I started in this Union and I am going to stay in it. If they are going to fire us they will probably do it anyhow." At this point Lynch replied, "No, I will guarantee you don't lose your job if you help break up the Union. The company is backing me in any- thing I say or do. If you and Red Kirby will go to the mill with me, Mr. Blaine Thompson or Mr. W. H. Chambliss, either one, will guarantee they won't fire you if you help break up this Union." Despite this persuasion, both Marple and Kirby refused to leave the Union. Lynch did not deny having made any of the foregoing statements. On November 6, 1938, Marple presided over a meeting of the Union. On the following day he reported to work as usual and was informed by E. C. Carey, the head packer, that he had been instructed by Chambliss to discharge him. Marple and Kirby, who was also discharged by Carey, then went to find Chambliss and secure an explanation for their discharge. The two men found Chambliss, who, however, refused to give any explanation beyond a statement that more employees would be discharged on the following day. After Marple and Kirby had been discharged, Hudson, a second miller, who had been with Chambliss when the two employees sought an explanation for their discharge, went to the engine room and told Yandell not to allow either of the two men to enter the mill. Yandell inquired as to the meaning of this order and also inquired as to whether Marple and Kirby had been discharged or merely laid off. Hudson indicated that the two employees had been discharged. Thereupon, Yandell inquired, "Well, do you think it is on account of the Union?" Hudson replied in the affirmative. The respondent did not refute these facts. The respondent contends that Marple and Kirby were not dis- charged but merely laid off because of slack work. This contention is not borne out by the record. To the contrary, the record shows that TEX-O-IRAN FLOUR MILLS COMPANY 777 since the discharge of Marple and Kirby, the respondent has hired It number of new employees." Marple testified that C. L. Masterson, an employee, was transferred to the position which he held in the mill, and that a new employee was hired to take over the duties of Masterson. This testimony was not denied by the respondent. On May 30, 1939, the respondent recalled Edgar Kennedy, a flour packer who had been laid off prior to the discharge of Marple and Kirby. We find that the respondent discharged John Marple and O. H. Kirby because of their union membership and activities. E. C. Carey began working for the respondent on July 13, 1931, and was discharged on November 8, 1939, 1 day following the discharge of Kirby and Marple. At the time of his discharge, he was employed as head packer at the Morten mill. Carey testified that during his several years of employment with the respondent, no dissatisfaction had ever been expressed in regard to his work. This testimony was not controverted by the respondent. On November 3, 1938, Lee Thompson, chief engineer, asked Carey whether or not he intended to join the Union. Carey replied by saying that be might join the Union and also told Thompson that he knew of no reason why anyone should object to employees organizing a union. He expressed his belief to Thompson that since employers are allowed to form such organizations as the Chamber of Commerce, and since doctors and lawyers also organized into various associations, he saw no reason why anybody should object to employees organizing into a union. It also appears that some 6 or 7 weeks prior to his discharge, a union organizer came into the mill and requested Carey's permis- sion to go through the mill and talk to the employees. Carey informed the organizer that he had no objection to his going through the mill. At that time Chambliss was within 20 or 30 feet of where Carey was 11 The pay-roll records introduced by the respondents show that the following new employees have been hired or recalled by the respondent: Name Position Date hired James L Rockins_________________ Laborer------------------------------- February 21, 1939. C R Helmuth____________________ Sweeper, roll tender------------------- March 8, 1939 R M Donaldson_________________ Oiler ---------------------------------- March 8,1939 J L. Raines_______________________ Sweeper, roll tender___________________ March 8,1939. Darvm Shearon___________________ Sweeper------------------------------- March 15, 1939 Joe Willbanks_____________________ Spouter------------------------------- March 23, 1939 Willie Evans______________________ Laborer----------------------------- April 10, 1939 Arthur Willis_____________________ Sweeper, millwright helper------------ April 17, 1939 W Morney--------------------- Laborer ------------------------------- April 18, 1939. E H Daniels_____________________ Laborer------------------------------- May 11, 1939 J W. Hodges---------------------- Sweeper------------------------------ May 15, 1939. Mark Jones______________________ Bagman assistant --------------------- May 18, 1939 C L Masterson___________________ Laborer ------------------------------ May 26, 1939 William L Burk______________ Elevator helper_______________________ May 30, 1939 Edgar Kennedy___________________ Flour packer-------------------------- May 30, 1939. Titus Washington_________________ Laborer ------------------------------ July 12, 1939 Johnnie De Vore__________________ Bagman assistant _____________________ August 1, 1939 James Randall____________________ Elevator helper_______________________ August 7, 1939 F. E McCarty-------------------- Sweeper-------- _________ September 9, 1939 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD talking to the union organizer . Later in the day Chambliss came over and asked Carey whether he knew that the person he had been talking to was a union organizer . Carey replied that he had been "making some inquiries" but that he did not know who he was. Chambliss then said , " Well, he was a damn union organizer and I ran [him] out of here." On November 8, 1938, Chambliss informed Carey that he was to be discharged . Carey testified that the discharge came as a shock to him and that he inquired as to whether there was anything wrong with his work. Chambliss replied that his work was perfectly all right, but that the Company had decided to abolish his job in order to take care of the raise in wages granted the other employees . Carey then inquired as to whether it was possible for him to be transferred to some other kind of a job and stated that he was capable of holding practically any position in the mill . Carey called Chambliss' atten- tion to the fact that he had seniority over other employees in the mill who were still working and pointed out that the respondent had em- ployed new men within the 3-month period preceding his discharge. Despite these protestations on the part of Carey, his employment was terminated . Carey then informed Chambliss that he was going to the office in regard to the matter . Chambliss advised him that there was no need of Carey's going to the office because he was "taking care of the situation." When Carey insisted , Chambliss said , " Well, if you insist I rather you wait a few days until this blows over. There is a telegram up there from the union where O. H. Kirby and John Marple has filed charges against the Company for discharging them . . . '" The respondent contends that Carey was discharged because his job as head packer was abolished . It claims that no one has been hired to replace Carey as head packer. However, Fisher's testimony reveals that one Perkins, another employee, has taken over the duties of Carey. There is no showing as to why Carey should have been discharged rather than Perkins. The respondent contends that the salary paid to Carey was an unnecessary expense. However, in view of Carey's offer to take a lesser position , which offer was rejected by the respon- dent, and in view of the fact that the respondent subsequently hired new employees whose positions Carey could have filled,12 we are of the opinion that the respondent 's contention in this respect is -without merit. Our conclusion in this respect is strengthened by the fact that prior to the discharges in the present case, the respondent generally followed a policy of seniority in laying off its employees . Carey tes- tified that during the years of his employment as head packer he had received instructions from his superintendent to lay off extra men and to divide the work equally among the regular men when work was slack. The testimony of Carey in this respect remains undisputed on 12 See footnote 11, supra. TEX-O-KAN FLOUR MILLS COMPANY 779 the record. It is clear that this policy was not followed in the present instance, for Carey, who had 7 years' seniority, was discharged whereas employees who had been with the respondent for no longer than 3 months were retained. The Trial Examiner found that Carey was not discriminatorily dis- charged. He based his finding upon the ground that there was no evidence to show that the respondent knew Carey belonged to the Union at the time of his discharge. As a matter of fact Carey did not join the Union until November 13, 1938. However, from the evidence set forth above, which was not denied by the respondent, it is clear that Thompson was aware of Carey's intent to join the Union and his belief in the right of employees to organize into unions. It is also clear that Chambhss, the superintendent, associated the presence of a "damn union organizer" in the plant with Carey. In view of the cir- cumstances surrounding the discharge of Carey, as set forth above, the fact that both Thompson and Chambliss were aware of Carey's union leanings; the fact that Chambliss told Marple and Kirby at the time they were discharged that more discharges were to follow on the next day; and in view of the strong anti-union attitude displayed by the respondent upon the inception of the Union, we find that Carey was discharged because of his suspected activities on behalf of the Union. F. L. Fielding, a member of the Union, began to work for the respondent on January 5, 1937. During his employment he worked in various capacities, such as feed packer, painter, sweeper, and flour hauler. On November 1, 1938, he was transferred from the position of sweeper to the position of feed packer. This transfer was made for the purpose of relieving Fielding's brother who had gone on vacation on November 1. Upon the return of Fielding's brother on November 15, 1938, Fielding asked Chambliss whether or not he was to return to his old sweeping job. Chambliss informed Fielding that since there was no more work for him to do he would have to lay him off. Field- ing testified that on the night of November 15, 1938, he was injured in an accident at his home and remained under medical care until on or about December 18, 1938. Shortly thereafter he sought reinstate- ment at the Morten mill, but was not given employment. The Trial Examiner found that Fielding was not discriminatorily discharged on November 15, 1938, on the ground that there was no showing that the respondent knew he was a member of the Union at that time. Upon a review of the evidence we are in agreement with the Trial Examiner in this respect. However, on or about November 13, 1938, a petition requesting the respondent to reinstate Marple, Kirby, and Carey was signed by Fielding as well as by a number of other union members. This petition was presented to the respondent 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on November 28, 1938. The Trial Examiner concluded that there- after the respondent was aware of Fielding's union affiliation. We are in agreement with the conclusion of the Trial Examiner. The respondent contended at the hearing that it had no need of Fielding's services and that it would call him back if a need arose for the work that lie could handle. The record shows that beginning on March 8 the respondent hired four new sweepers-Raines on March 8, Shearon on March 15, Hodges on May 15, and McCarty on Sep- tember 9, 1939 . The respondent offered no reason for hiring new sweepers rather than recalling Fielding , an employee who had experi- ence in this type of work . In view of the above circumstances and taking into consideration the numerous acts of interference, coer- cion, and restraint committed by the respondent, the Trial Examiner found that the respondent discriminatorily refused to reinstate Fielding on and after March 8, 1939 . Upon a review of the entire record, we are in agreement with the Trial Examiner in this respect. We find that the respondent discriminatorily refused employment to Fielding on and after March 8, 1939, because of his union member- ship and activity. J. C. Penny, a member of the Union, had been employed by the respondent as a watchman for approximately 6 months prior to his discharge on December 28, 1938. Thompson, the general manager, testified that he was instrumental in obtaining the watchman's posi- tion for Penny because of his personal friendship with Penny. Thompson further testified that Chambliss, the superintendent, -complained of Penny's services almost from the inception of his employment . In order to alleviate these complaints , Thompson testified, he transferred Penny from the position of night watchman to that of day watchman. However, upon being informed by the respondent's accountant that the position of day watchman was unnecessary Thompson dispensed with Penny's services. No one has been hired to replace Penny as day watchman. The Trial Examiner found that Penny was not discriminatorily discharged. The Union excepted. Upon a review of the entire record, we find that Penny was not discharged because of his union membership or activity. H. P. Baker began working for the respondent on November 10, 1936, as a sack cleaner. During his employment he held various other positions, such as sweeper , meal packer, flour packer , assistant engineer, and millwright helper. During his employment he re- ceived several increases in pay and his wage rate varied from 37% cents an hour at the beginning of his employment to 52%% cents an hour at the termination of his employment. Baker was one of the charter members of Local No. 21818, having joined at its first meeting on or about October 30, 1938. On or about TEX-O-KAN FLOUR MILLS COMPANY 781 November 11, 1938, Carl Lynch, Baker's immediate supervisor, asked him if he had joined the Union and paid his $2 initiation fee. Baker replied that he had not up to that time and that he did not know when he would. Lynch then said, "If I was you I would just let the damned Union go; all it does is cause strikes and cause us all to be out of jobs." Before leaving, Lynch warned Baker to remember what he had said. Several days later Baker began wearing his union button while at work. On or about November 28, 1938, Lee Thompson, the chief engineer, asked Baker whether he had joined the Union. Baker refused to answer this question. Neither Thompson nor Lynch denied the testimony of Baker set forth above. On or about December 28, 1938, Fate Moore brought the "loyalty" petition, referred to above, to Baker and asked him if he had signed it. Moore told Baker that it was for his own good to sign it and that signing the petition meant it job to Baker. Nevertheless, Baker refused to sign the petition and returned it to Moore. As noted above, Baker started wearing his union button several days after his conversation with Lynch on November 11, 1938. He continued to wear his button until his employment was terminated on February 8, 1939. On the day of the termination of his employ- ment he was told by Chambliss that he was to be "let out." Baker asked if he had done anything wrong and Chambliss replied, "No, we don't need you any longer: we are going to discard your job." Baker then reminded Chambliss that he was capable of holding a number of jobs in the plant and that he had seniority over many men holding other jobs. Baker testified at the hearing that he had seniority over all the packers at the Morten mill except two.13 This testimony was not denied. Nevertheless, the respondent terminated his employment. The respondent contends Baker was not discharged on February 8, 1939, but merely laid off because the respondent had discontinued the manufacture of meal and, therefore, had no use for the services of Baker. Blaine Thompson, the respondent's general manager, testi- fied that Baker was let out on February 8, 1939, because the respondent had discontinued meal packing at that time and because there was no other work for Baker to do without putting him on a job that paid less. Thompson further stated that this would be a bad policy be- cause it made an employee unhappy. While it is perhaps true that the respondent discontinued the manufacture of meal on or about February 8, 1939,14 the respondent's reason for not retaining Baker in some other position is without merit. It is clear that Baker had 13 At the time of Baker's discharge there were 10 flour packers and 5 feed packers in the employ of the respondent. 14 Baker admitted that the respondent had discontinued meal packing prior to his discharge. The pay- roll record of the respondent shows that no other meal packers, as distinguished from feed and flour packers, were in the employ of the respondent after the termination of Baker's employment. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority over other packers who were retained and who were being paid at the same rate as he was. Furthermore, in view of Baker's request to be retained in some other position, the respondent's con- tention that he would be unhappy in a lower paid position is fallacious. It is clear that Baker would have preferred being employed in a lower paid position than to being without employment. We are convinced that Baker was laid off or discharged on February 8, 1939, because of his union affiliation and activity. The evidence showing that Baker was one of the charter members of the Union; that he had been questioned about his union affiliation by Lee Thomp- son, a supervisory officer of the respondent; that Carl Lynch, his immediate supervisor, had warned him not to join the Union; that he had refused to sign the loyalty petition when requested to do so by Moore; that Baker was capable of filling several positions in the mill and that he had more seniority than a number of employees who were retained when his employment was terminated; together with the strong anti-union attitude displayed by the respondent, persuades us, and we find, that Baker was discharged or laid off on February 8, 1939, because of his union affiliation and activity. The complaint alleges, as we have found above, that Baker was discriminatorily discharged on or about February 8, 1939. However, the record reveals that Baker was later recalled on June 19, 1939, and subsequently discharged on August 30, 1939. Since the facts of this latter discharge were fully litigated, we shall proceed to determine whether or not Baker was discriminatorily discharged on August 30, 1939.15 After charges had been filed with the Board alleging that Baker had been discriminatorily discharged, he was called back to work on June 19, 1939, as a flour packer. In the interval he had earned but $12 in private employment. On the day he returned to work he had a con- versation with De Lyle Kinman, warehouse foreman, in which Kin- man intimated that it would be best if he dropped his union affiliation and that if he did he could "have a job at the Morten Milling Com- pany for a long time." Baker replied that he was coming back to work just as he had left it. Thereafter, Baker continued to wear his union button while at work and to attend union meetings. On August 30, 1939, Baker's employment was terminated. The respondent contends that it was forced to dispense with Baker's services on August 30, 1939, because of a reduction in force. Fisher, the superintendent, testified that Baker had been laid off because he was not a "first-class flour packer; he doesn't take care of his work 15 A motion to conform the pleadings to the proof was made and granted at the hearing . The Trial Examiner considered the discharge of August 30, 1939, as part of Baker 's case. Full opportunity to cross- examine Baker and to introduce evidence with respect to the discharge of August 30, 1939, was afforded the respondent we conclude that the discharge of August 30, 1939, was fully litigated . We shall therefore consider it. Cf. National Labor Relations Board v. Mackay Radio & Telegraph Co , 304 U. S. 333. TEX-O-KAN FLOUR MILLS COMPANY 783 properly, and when I cut the force down he was the one let out." On direct examination, Fisher also adverted to a mix-up on a car of flour that "caused quite a bit of unloading" and asserted that the fault for the mix-up lay with Baker. However, on cross-examination Fisher conceded that he could not recall the particulars of the incident re- ferred to above and admitted that be could not recall whether he had mentioned the particular incident to Baker. Fisher also stated that he had spoken to Baker about his inefficiency when he let him out. However, when requested to be specific as to what be had told Baker, Fisher was unable to clarify the matter. On the other hand, Baker testified that, upon the date of his discharge, Fisher merely told him his employment was terminated because of a reduction in force and then offered to give him a recommendation. We credit Baker's testimony. Indeed, Fisher's testimony is so evasive and incoherent as to render it incredible. Proof of Fisher's unreliability in this matter is brought out by the testimony of Blaine Thompson, the respondent's general manager, who stated that he was familiar with all the respond- ent's employees and that Baker "was a very good man." Thompson further testified that Baker was an experienced packer and that the respondent would take him back if his services were needed. This testimony is in direct contradiction to that of Fisher, who stated that Baker was not a "first class packer" and that he did not take care of his work properly. Furthermore, Fisher testified that he would not recall Baker except as a sweeper or in some other job in which "he could produce." This conflict in the testimony of the respondent's own witnesses casts serious doubt upon the contention of the re- spondent. With respect to the contention of the respondent that a reduction in force caused by a slack in business necessitated the displacement of Baker on August 30, 1939, the record shows that subsequent to his discharge a number of the respondent's employees put in a great deal of overtime work. Dallas Earnest, an employee, testified that on September 5, 1939, the following employees worked overtime at the mill: A. Banks, E. U. Hudnall, and F. E. Perkins, flour packers, worked 8 hours overtime apiece; G. R. Helmuth, a roll tender, worked 8 hours overtime; Bruno Powell, a laborer, worked 7 hours overtime; that on September 6 the following employees worked overtime at the mill; Johnny De Vore and Mark Jones, bagmen assistants, worked 7 hours and 3 hours overtime, respectively; F. E. Perkins, flour packer, worked 1 hour overtime; Fate Moore, a spouter, worked 4 hours over- time; C. L. Masterson, a laborer, worked 1 hour overtime; that on September 7 the following employees worked overtime at the mill: F. E. Perkins, flour packer, worked 3 hours overtime; C. L. Masterson, laborer, worked 3 hours overtime; that on September 8 the following employees worked overtime at the mill: Mark Jones, bagman assist- 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ant, worked 432 hours overtime; R. L. Robertson, 18 truck driver, worked 7% hours overtime; Bruno Powell, a laborer, worked 8 hours overtime; L. D. Earnest, flour packer, worked 6 hours overtime; that on September 9 the following employees worked overtime: Bruno Powell, laborer, worked 2% hours overtime; F. E. Perkins, flour packer, worked 10 hours overtime; Johnny De Vore and Mark Jones, bagmen assistants, worked 4 hours overtime apiece; E. U. Hudnall, flour packer, worked 3 hours overtime; that on September 11 the following employees worked overtime at the mill: Wm. L. Burk," elevator helper, worked 5 hours overtime; F. E. Perkins, flour packer, worked 2312 hours overtime; C. C. Forte," flour packer, worked 8 hours over- time; E. U. Hudnall, flour packer, worked 1 hour overtime; that on September 12 the following employees worked overtime in the mill: F. E. Perkins, L. D. Earnest, and E. U. Hudnall, flour packers, worked 8 hours overtime apiece; Mark Jones, bagman assistant, worked 7 hours overtime; that on September 13 the following em- ployees worked overtime at the mill: C. C. Forte, flour packer, worked 12 hours overtime; A. Banks, flour packer, worked 8 hours overtime; Wm. L. Burk, elevator helper, worked 8 hours overtime; L. D. Earnest, flour packer, worked 4 hours overtime; that on Sep- tember 14 the following employees worked overtime at the mill: F. E. Perkins, flour packer, worked 8 hours overtime; Mark Jones, bagman assistant, worked 8 hours overtime; that on September 16 the following employees worked overtime at the mill: F. E. Perkins, flour packer, worked 1 hour overtime; A. Banks, flour packer, worked 8 hours overtime; C. C. Forte, flour packer, worked 8 hours overtime. This testimony was not refuted by the respondent. In view of the facts set forth above we cannot find on the basis of this record that a slack in production necessitated the discharge of an employee. Nevertheless, even if business conditions necessitated the discharge of an employee, we are convinced by the record that this was not the reason for Baker's selection for discharge. The evidence showing that Baker was warned by Kinman, the warehouse foreman, to drop his union affiliation upon returning to work with the respondent; Baker's refusal to heed this advice and his continuation of his union activities and membership; the incredibility of Fisher's testimony in explaining the discharge of Baker; the fact that Baker had more seniority than a number of employees who were retained by the respondent;19 together with the strong anti-union attitude of the respondent, persuades us, and we-find, that Baker was discharged on August 30, 1939, because of his union activities and membership. 16 Referred to in the record as R. L. Robinson. 17 Referred to in the record as L. E. Burk. 18 Referred to in the record as C. C. Ford. 10 See footnote 11, supra. TEX-n-KAN FLOUR MILLS COMPANY 785 Loys McMurray started working for the respondent on July 30, 1937. At the time of his discharge on March 11, 1939, he was engaged as a feed packer in the respondent's mill. McMurray was one of the original members of the Union, having joined on October 30, 1938. He signed the petition requesting the respondent to reinstate Marple, Kirby, and Carey, and was one of three members of a committee that presented this petition to the respondent's general manager. In January 1939 McMurray refused several times to sign the. "loyalty" petition circulated by Moore and Hudson. However, he finally put his signature on the document after having been told by Moore that if the employees failed to sign, the respondent would close the mill. Upon this occasion Hudson removed a union button from McMurray's cap, as hereinbefore set forth. Later on the same day, which was on or about January 6, 1939, Hudson saw McMurray wearing another union button and after having questioned him about it told him he would be sorry for wearing it. On the next day, Chambliss came to McMurray and, referring to his union button, said, "Say, what are you doing with that button on?" McMurray replied that he had been wearing it all the time and expressed surprise that Chambliss had not noticed it before. Chambliss then indicated that he had understood that McMurray had "signed out" of the Union. McMurray replied that Chambliss was under a misapprehension and that he intended to remain with the Union unless somebody forced him to resign. Chambliss then said, "Well, I can't tell you what to do but I can tell you what is good for you." Chambliss then went away but returned within an hour and accused McMurray of having incorrectly weighed a sack of flour. Chambliss said, "By God, is that the way you weigh stuff here?" McMurray retorted that the sack of flour was correctly weighed when he last looked at it. "By God," continued Chambliss, "You can't start saying that; you can see for yourself. I can't fire you for one thing, but I can fire you for weighing something wrong. The Gov- ernment will back me in that." There followed an extended contro- versy, during the course of which Chambliss stated that he ought to discharge McMurray for insubordination. Then Chambliss began to pat McMurray on the shoulder and said: "You God damn fellows think you have got something don't you" and McMurray replied: "I know we have got something." Chambliss continued: "You are going to find you ain't got a God damn thing. I could whip any six of you because if I can't-I have got the difference right here in my pocket." McMurray testified he noticed a rather large bulge in the superintendent's coat pocket. Despite Chambliss' threats, Mc- Murray was retained at the time. It was not until March 11, 1939, that the respondent saw fit to discharge McMurray. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 11 , 1939, McMurray was at the mill when Earnest, an employee at the mill, told him that he was wanted by De Lyle Kinman, warehouse foreman in the Morten mill. McMurray found Kinman in the latter's office, and the warehouse foreman at once told him that he had received instructions from Fisher to discharge him. Kinman said, according to McMurray, "I know you have been expecting this ever since you boys started this union business here." Kinman did not deny this testimony . An argument followed regarding seniority, after which McMurray left the mill. ' At the hearing counsel for the respondent , during his cross-exami- nation of McMurray , said, "When conditions improve and business improves and working conditions , we want you to come back " Thompson testified that McMurray was laid off because of lack of work and will be recalled if the respondent finds itself in need of his services. These statements, however, are inconsistent with the testimony of Fisher who declared that McMurray was laid off for inefficiency . Such conflicting testimony and statements cast serious doubt upon the credibility of the respondent's witnesses . Further- more, it appears from the undenied testimony of McMurray that Ed Kennedy, an employee who had formerly been laid off , was recalled to take his place. Kennedy was not a member of the Union. The Trial Examiner found that McMurray was discriminatorily discharged because of his union activities and membership. We are in agreement with the Trial Examiner , and so find. Roy Frank , a member of the Union, had been working for the respondent for approximately 432 years prior to his discharge on March 8, 1939. He was first employed as an oiler and on July 6, 1938, he was transferred to the position of spouter , which job he held at the time of his discharge . He became a member of the Union on October 30, 1938, and wore his union button while at work. He testified that he signed the anti-union petition only upon the insistence of his foreman , Carl Lynch, that if he signed it he would retain his position, but that if he did not sign it he would lose his job. Later, however, Frank requested Moore to withdraw his name from the peti- tion. The petition shows that this withdrawal was not effected. Frank testified that on the date of his discharge Fisher, who became superintendent on February 13, 1939, called his attention to the fact that he had made a mistake in mixing his flour and told him that because of this error he would have to be laid off. Frank testified that he then requested to be put in some other position and pointed out that he had been in the mill for some time and could handle prac- tically any job. The record does not disclose Fisher's reply to this offer. However, Frank was not retained . Frank was offered a job as a flour packer on June 15, 1939 , but refused it on the ground that TEX-O-KAN FLOUR MILLS COMPANY 787 he did not understand how to perform the duties of a packer. The record shows that he declined to give the proffered position a trial. Fisher, the superintendent, testified that Frank was not an efficient spouter and that he offered him a job as packer because he believed that that was the only position that Frank could fill. Fisher testified that a good spouter could do the work of a flour packer if he had been employed in the mill for any length of time. It appears from the record that flour packing requires less skill than the work of a spouter. The Trial Examiner found that Frank was discharged for reasons other than his union activities. Upon a review of the entire record, we are in agreement with the finding of the Trial Examiner. We find that the respondent has not discriminated in regard to the hire and tenure of employment of Roy Frank. Ed Starr, a member of the Union, had been employed by the respondent for approximately 15 years prior to his discharge on May 13, 1939. At that time he was engaged as an operating engineer in the engine room of the plant. On March 29, 1939, the respondent had all of its employees undergo a medical examination for the purpose of determining whether or not any of its employees were industrial hazards. As a result of this examination several employees were discharged upon the discovery that their physical condition did not warrant their retention. It appears from the medical examination record of Starr that he suffers from poor vision in both eyes. Shortly before his discharge, Lee Thompson, the chief engineer, reported to Blaine Thompson, the general manager, that Starr had almost made a serious mistake in the engine room-because of his poor eyesight. According to Thompson, Starr's inability to read a pres- sure gauge almost caused the explosion of a boiler which might have resulted in great damage to the respondent's plant. Blaine Thompson testified that he reported this incident to Fisher who agreed with him that Starr should be replaced. As a result of this discussion Starr was discharged. At the hearing Starr admitted that he had very poor vision in one eye, but testified that since his medical examination he has purchased glasses and has thus rectified his poor vision to some extent. The Trial Examiner found that the discharge of Starr was due to reasons other than his union activities. Upon a review of the entire record, we are in accord with the finding of the Trial Examiner. We find that the respondent has not discriminated in regard to the hire and tenure of employment of Ed Starr. Jim Arnold and Billie Hansell were both discharged on June 12, 1939, allegedly for making a mistake in packing flour. Arnold had been employed by the respondent for approximately 5 years, while Hansell had been in the employ of the respondent for over 20 years. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hansell and Arnold both testified that they had received no complaints about their work during.their employment. The two employees were both members of the Union and wore their union buttons while at work. Arnold had been elected financial secretary of the Union, replacing Kirby upon his discharge. It is also pertinent to note that both Arnold and Hansell refused to sign the anti-union petitions circulated by Moore and Van Cleve. Hansell testified that the first week that Kinman was made warehouse foreman,20 he called the four negroes who were working on the loading gang and said to them, "I don't know that Mr. Warren has ever told you boys so it falls my duty to tell you I'd rather you would go and sign that petition right away and it will look like we are getting somewhere." Despite this urging, Hansell refused to sign the petition. Arnold testified that sometime in April 1939 he was told by Hudson, his immediate superior, "You boys can't go through with this union. The company is going to beat you out because they have $65,000 to do it with." Hudson, a witness for the respondent, denied that he told Arnold that the respondent had set aside $65,000 to fight the Union. The Trial Examiner did not credit Hudson's denial; nor do we. The remarks attributed to Hudson by Arnold are in accord with the respondent's general anti-union attitude and its numerous acts of coercion. It is also pertinent to note, as set forth above, that Smith, an elevator foreman, also boasted to Brittian and Binson that the respondent had a large sum of money to use in its fight against the Union. Several weeks after the incident referred to above, Hudson came to Arnold's home after work and told him, "Well, Jim, I just came up to tell you that they are trying to get something on you so that they can fire you." Hudson did not deny having made this statement. Several days after this warning, Arnold went on his vacation and did not return until on or about June 7, 1939. On June 9 Arnold and Hansell packed a quantity of flour which had been ordered by the Smith Baking Company of Mobile, Alabama. The two employees both testified that, in accordance with previous custom, Hansell asked the sack boy, one Jones by name, which sacks were to be used for that particular order. It appears from the record that it was the duty of the sack boy to arrange the sacks which were to be used by the packers. Jones pointed out a group of sacks which were marked "Smith Baking Company" and the two packers pro- ceeded to fill the order. It appears that the sack boy made an error in arranging the sacks and as a consequence the two packers packed 280 pounds of flour in the wrong set of sacks. The respondent con- tends that the two packers should not have followed the directions of the sack by, but should have been directed by a "run sheet" which 20 Kinman became warehouse foreman on January 1, 1939. TEX-O-KAN FLOUR MILLS COMPANY 789 was posted in the mill. The run sheet specified the type of sacks that were to be used by the packers on the particular order herein involved. It is clear from the record that the two employees did not follow the directions posted on the run sheet. On June 12, 1939, the two employees were notified by Kinman, the warehouse foreman, that they were discharged because of the error made in packing the flour. The two employees protested on the ground that the error was attributable to the sack boy. They demon- strated to Kinman that they had used the sacks which had been pointed out to them by Jones. Kinman admitted that he would "have to get after the sack boy too ," but stated that he would never- theless have to discharge them since he had been told to do so by the management . On June 15 , 1939, Arnold saw Blaine Thompson and explained that the error was the fault of the sack.boy. Thompson rejected this explanation stating that the employees should have fol- lowed the "run sheet" which had been posted for their guidance. Thompson also stated that the error of the two employees was one of a series of errors and that such mistakes were expensive to the respon- dent. Before Arnold left, Thompson gave him a check for 4 weeks' wages in advance. On June 17 Hansell went to the mill to see Thompson respecting an error in his check . He testified that he failed to see Thompson but had a conversation with Kinman who said, "I like all of you boys and I want to get along with you. I will tell you what to do, don't go and file no labor charges against me because I want to try and get you back on the job. In other words, I don't want to get mad with you." On June 20 Hansell was able to see Thompson . He testified that Thompson told him during the course of the conversation which ensued, "I am going to pay you 6 weeks in advance , but I will tell you to keep that under your nose. Don't say anything to Jim Arnold about it because I have to have some cause to fire Jim and I don't want him back on the job. In fact , I am going to fire all of them and get rid of the whole damned bunch in 6 weeks' time, and I am going to get rid of all the white anyway. I am going to hire colored because they are easier to handle, to get along with better. I have got $65,000 to break that darned union up and we ain 't going to have . . . any such damned things [sic ] as a union." Thompson , while admitting the conversation with Hansell , denied the testimony set forth above. Thompson testified that Hansell came in to him and stated that he believed he had been discharged because of the Union. Thompson testified that he replied that this was not the cause of Hansell's discharge , but that he was discharged because he had committed a serious error in his packing. Thompson testified further that he then explained that such errors were costly to the respondent and that it was necessary that the packers pack 323429-42-vol. 26-51 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their orders in accordance with instructions . Thompson also testified that he told Hansell that he had no objection to negro help and then asked him how long he had been with the respondent . Upon Han- sell's reply that he had been employed by the respondent for 20 years, Thompson stated that he then asked him whether or not he had re- ceived any severance pay in lieu of notice. Upon Hansell's reply that he had not, Thompson saw to it that he received a sum equivalent to 6 weeks' pay. Thompson explained that he gave Hansell 6 weeks' pay while granting Arnold only 4 weeks' pay because Hansell had been with the respondent for a longer period of time than had Arnold. Thompson conceded that he told Hansell in a "joking way" not to tell Arnold about the extra 2 weeks' pay, but testified that he did so merely to prevent Arnold from being envious. The Trial Examiner resolved the conflict between the testimony of Hansell and Thompson by finding in accordance with Hansell's testimony . Without passing upon the above conflict in testimony, we are of the opinion that the evidence in the record , exclusive of Hansell 's testimony with respect to his conference with Thompson, is of such a nature as to compel a finding of discrimination. As we have noted above, the record reveals a strong anti -union bias on the part of the respondent . This, together with the warnings to Arnold by Hudson that the respondent was seeking an excuse to discharge him, establishes that the respondent intended to discharge Arnold because of his union activities . The mistake which provided the excuse for the discharge of both Arnold and Hansell , while of undoubted harm to the respondent , was not without mitigating cir- cumstances . The error occurred not only because Arnold and Hansell failed to read their "run sheets," but also, and primarily, because the sack boy, upon whom they customarily relied, was in error. It should be noted , moreover, that Arnold and Hansell had been em- ployed by the respondent , without criticism or complaint as to their work, for periods of approximately 5 and 20 years , respectively, when the respondent, with full knowledge of the circumstances surrounding the error, discharged them. Under all of the circumstances, and in the light of the entire record, we conclude that the error of Arnold and Hansell was seized upon by the respondent as a pretext for dis- charging them, and that the real reason for their discharge was their union activities and membership. M. L. Brittian , a member of the Union, had been employed by the respondent for 2 years prior to his discharge on August 4, 1939. While Brittian was not active in the Union, he made known his support of the Union by refusing to sign the anti-union petitions that were circulated in the respondent 's mill. On August 3, 1939, Fisher, the superintendent , caught Brittian smoking on mill property during working hours and ordered his discharge . It appears that smoking TEX-O-KAN FLOUR MILLS COMPANY 791 was contrary to the posted rules of the respondent . It also appears that a non-union man named Robinson had been discharged for a similar violation of the respondent 's rules sometime in June 1939. Blaine Thompson, the respondent 's general manager , testified that smoking had been prohibited for a number of years in the respondent's plant, but that the rule had not been strictly enforced under former managers . He stated that he called Fisher's attention to the laxness in the enforcement of the rule after some insurance inspectors had called it to his attention . Thereafter new "No Smoking " signs were posted in the mill . The posting of these new signs apparently occurred after Fisher became superintendent of the Morten mill on February 13, 1939. Thompson stated that there was some difficulty in enforcing the rule and that drastic punishment was provided in order to get compliance. In view of the entire circumstances , we find, in accordance with the finding of the Trial Examiner, that Brittian was discharged for reasons other than his union activities. Jimmie Ervin had been in the employ of the ,respondent for 16 years prior to the termination of his employment on August 9, 1939. He testified that of the negro employees in the "booster gang" he was the only person on his shift who wore his union button continu- ously. He also stated that the remaining union members in the gang had discontinued wearing their union buttons some time prior to his discharge . The testimony of Ervin was not controverted by the respondent . It also appears from the record that Ervin refused to sign the anti-union petitions that had been circulated in the respond- ent's plant during December 1938 and January 1939. The respondent contends that a slack in business necessitated a reduction in force and that Ervin was selected for dismissal because he was the least efficient of the employees in the "booster gang" where he was employed. The respondent 's contention that Ervin was dis- charged because of inefficiency rests upon the testimony of Fisher who stated that Ervin "was one of the poorest workmen in the crew" and that he had displayed such inefficiency over a period of time. Fisher also stated that when it became necessary to reduce the force Ervin was dismissed because of such inefficiency . Fisher cited no instances of inefficiency on the part of Ervin to substantiate his general statement . Furthermore, when requested to be more specific on cross-examination , Fisher testified as follows: Q. Now, can you be particular as to what has been wrong with Ervin's work from your own observation? A. Well, he just does not do his work; that's all; there is a number of things when a man is on a job that you could pick out and see that his work is inefficient; you can dovetail them 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD together; by the time you get through you have a pretty large sum. _ Q. Well, that is what I am trying to get at, the basic facts that add up to this big sum? A. Well, the basic facts, that is, that is work down there, dovetailing it back is so large that the basic fact is that he is just inefficient. Q. And you can't be particular in what respects he is? A. No; there is a number of them. . . . Q. What was Ervin's job out there? A. I think he was-I can't recall all of those-there have been- I think he was on the table; I am not sure. Q. You can't recall the job he had; you can't recall what was wrong with his work, can you Mr. Fisher? A. Well, there were so many of them that I can't remember them all; you are going back quite a ways and it is pretty hard for me to remember all of those definitely. Q. Well, now Ervin was just fired on August 9th. Wasn't he? Can you remember any particular inefficiency during the month of July or August? . . . A. No, but I could probably dig up some. The respondent's contention that Ervin was inefficient was not based upon any specific examples of improper work on his part. In view of this fact and the fact that Ervin had received no complaints about his work during his employment, we are convinced that the charge of inefficiency was not the real reason for the termination of Ervin's employment. We are strengthened in this conclusion by the fact that while Ervin had been in the employ of the respondent for 16 years, the record shows that a number of employees in the "booster gang" who were retained had been employed for but a short period of time. The pay-roll record introduced by the respondent reveals that during 1939 the respondent hired three new employees as general laborers and recalled three additional employees in the same category. Specifically, the pay-roll record shows that E. H. Daniels, a new em- ployee, was hired on May 11, 1939; Willie B. Evans on April 10, 1939; Titus Washington on July 17, 1939. The records of the laborers who were recalled are as follows: James L. Rockins was employed as a laborer prior to February 20, 1938. He was laid off on August 3, 1938, and was recalled on February 21, 1939. W. Morney had been in the respondent's employ as a general laborer prior to February 20, 1938, and was laid off on March 23, 1938. He was recalled on April 6, 1938, and was subsequently laid off on August 3, 1938. He was recalled on April 18, 1939, and was still in the employ of the respondent at the time of the hearing. C. L. Masterson had been TEX-O-KAN FLOUR MILLS COMPANY 793 employed by the respondent as a general laborer prior to February 20, 1938, and-had been laid off on March 23, 1938. He was recalled on May 26, 1939, and was in the employ of the respondent at the time of the hearing. It seems improbable to us that the newly hired employees should be considered more efficient than Ervin, who had been steadily em- ployed by the respondent for 16 years. Furthermore, it seems strange that the employees who had been previously laid off and were later recalled should be considered more efficient than Ervin, who, on the other hand, had been retained throughout. This becomes especially paradoxical in view of the fact that Ervin had not been criticized for his work during his employment. The combination of circumstances showing that Ervin was the only member of the Union in the "booster gang" who maintained his identity as a union member; that he refused to lend his aid to the circulation of the anti-union petitions which activity was carried on with the overt sponsorship and aid of the respondent; that he was one of the oldest employees in the respondent's service; that the respondent hired a number of new employees shortly before his dis- charge; the incredibility of respondent's explanation for his discharge when considered in the light of the entire circumstances, lead us to believe, and we find, that the real reason for the discharge of Ervin was his union activities and membership. Samuel Vodnick was also discharged on August 9, 1939, assertedly for the same reason as Ervin. The Trial Examiner found in accord- ance with the respondent's contention and the Union excepts thereto. Vodnick, a member of the Union, had been employed by the respondent as a bagman assistant for approximately 2 years prior to the termination of his employment. He testified that he had re- ceived no complaints about his work during his employment. This testimony remained uncontradicted on the record. The evidence shows that there were three bagmen assistants in the employ of the respondent at the time of the discharge of Vodnick. Of the three, Mark Jones was first employed in May 1939, while Johnnie De Vore, the other bagman assistant, was recalled on August 1, 1939, having been previously laid off on August 3, 1938. Thus it appears that of the three bagmen assistants, Vodnick had more seniority than the other two employees. It also appears that neither Jones nor De Vore were members of the Union. On or about January 10, 1939, Moore requested Vodnick to sign the anti-union petition which he was then circulating. Vodnick refused to sign the petition on two occasions but, under the threat that the respondent would shut down the mill unless the union men signed the petition, he signed it on January 12, 1939. Several days later, however, he requested Moore to strike his name from the peti- 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion. It appears from the petition, which was introduced into evi- dence, that Vodnick's name had been stricken therefrom prior to its presentation to the respondent. With respect to the respondent's contention that Vodnick was the least efficient of the bagmen assistants, Fisher testified that over a period of time, Vodnick had proved himself inefficient and that he was unable to get along with other employees. When specifically asked on cross-examination to explain the inability of Vodnick to get along with other employees, Fisher was evasive and admitted that he could not remember ever having reprimanded Vodnick for such an asserted fault. We are not convinced by Fisher's testimony that Vodnick was unable to get along with other employees. The only instance cited by Fisher in support of his testimony that Vodnick was inefficient was a statement to the effect that he had told the employees in the packing room that they were not getting the bags out properly. It is obvious that such a complaint was directed to all the employees in the packing room and not to Vodnick personally. Blaine Thomp- son testified that Vodnick was laid off because there were too many men in the sack room and that since Vodnick's work had become a "little careless" he was laid off. No specific instance of carelessness on the part of Vodnick was cited by the respondent in support of Thompson's testimony. As in the case of Ervin it seems strange to us that Vodnick should be chosen as the least efficient of three bagmen assistants in view of the fact that he had retained his job while De Vore, the other bagman assistant, had been previously laid off. Furthermore, the fact that De Vore had been in the employ of the respondent but a week prior to the discharge of Vodnick renders it doubtful that a valid com- parison of his efficiency with that of Vodnick could be made. In view of the entire circumstances, we are of the opinion that the respondent's contention that Vodnick was discharged because of inefficiency is without merit. The combination of circumstances showing that Vodnick was the only member of the Union among the bagmen assistants; the evidence showing that he had withdrawn his signature from the anti-union petition which had been circulated with the knowledge of the re- spondent; the fact that he had more seniority than the other two bagmen assistants; the fact that respondent had recalled a new bag- man assistant a week prior to the discharge of Vodnick, together with the incredibility of respondent's explanation for the termination of Vodnick's employment, leads us to believe, and we find, that the real reason for his discharge was his union activity and membership. Robert Stewart had been in the employ of the respondent for approximately a year and 9 months prior to August 9, 1939, the date of the termination of his employment. He joined the Union on TEX-O-KAN FLOUR MILLS COMPANY 795 October 30, 1938, and wore his union button while at work. Stewart signed the petition requesting the reinstatement of Marple, Kirby, and Carey, and was a member of the committee that presented it to the respondent on or about November 28, 1938. On December 16, 1938, Stewart was laid off. He testified that his foreman, J. B. Warren, informed him of his lay-off and that he, Stewart, requested an explanation for the lay-off. According to Stewart, Warren replied that he did not know the reason, but that it was not because he was not needed. Warren then stated that the management had requested him to lay off Stewart. The testimony of Stewart in this respect was not disputed by the respondent. On or about December 27 Stewart was recalled by the respondent. He testified that on or about December 31, 1938, Blaine Thompson, the general manager, came to the table where he and another em- ployee were working and said, "they had been working around here without a union and if we want to continue to work there, to go to work and stop the foolishness; he had a mind to close the mill down Mon- day and start all over again." Thompson did not deny the testimony of Stewart. , On the same evening, Hudson, a second miller, came to Stewart and asked him whether or not he had signed the anti- union petition then being circulated by Moore. Stewart replied that he had not. Shortly thereafter, on January 4, 1939, Stewart was again laid off. He protested his lay-off to Warren, his foreman, saying that "it seems like the company is taking its spite out on me on account of going up with that committee" that presented the petition requesting the reinstatement of Marple, Kirby, and Carey. Stewart testified that Warren replied, "I guess you are right." War- ren did not testify. Following his lay-off, Stewart was recalled to the plant on Feb- ruary 4, 1939. Upon his recall he was placed in the "booster gang," although he had formerly been employed as a stacker in the mill. Stewart testified that there were six other employees on his shift of the "booster gang" and that of the six, two were non-union men, while three others discontinued wearing their union buttons in the month of July 1939. Stewart stated that he continued to wear his union button throughout that period. His testimony in this connec- tion was not refuted. On July 29, 1939, Stewart was laid off for 2 weeks because of a reported infraction of the respondent's no-smoking rule. Stewart testified that after working from 8 o'clock until 6:30 in the evening of July 26 he stepped out of the plant for a moment and smoked a cigarette on railroad property which adjoined the respondent's plant.21 11 It appears that on July 26 the employee who was supposed to relieve Stewart became ill and that as a consequence Stewart had to work from 8 o'clock in the morning until 12 o'clock that night. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He conceded that the night watchman saw him smoking and that about 10 or 15 minutes later Carl Lynch, a second miller, reprimanded him for smoking. Stewart testified that he told Lynch that he was not on company property but that he was on the railroad property. According to Stewart, Lynch then reprimanded him for smoking on company time, to which Stewart replied that he had caught up with his work and that he thought he could take a few seconds off for a smoke. Lynch did not deny the testimony set forth above. Stewart testified that nothing was said to him about the smoking incident until 3 days later on July 29. On this occasion he was informed by Kinman that he was to be laid off for 2 weeks because of the smoking incident. On August 9 Stewart was recalled by Kinman and was told that he was to be discharged because of a reduction in force. The respondent contends that Stewart was laid off in order to reduce the "booster gang," or loading crew. Blaine Thompson testi- fied that there were too many members on the loading crew at the the time of Stewart's lay-off and that it was necessary to reduce its number. He testified that at the time there were 18 members on the loading crew when the respondent had need of only 16. It was, therefore, decided, according to Thompson, to discharge Stewart. Thompson testified that if the respondent had need of any more employees, Stewart would be recalled. For similar reasons set forth above in the cases of Vodnick and Ervin, we are of the opinion that the respondent's contention is with- out merit. 'Stewart was the only one of the six employees in the "booster gang" who wore a union button continuously. He had also been actively engaged in union activities. He had been one of a com- mittee of three who presented the petition requesting the reinstatement of Marple, Kirby, and Carey, and had refused to sign the anti-union petition circulated with the knowledge of the respondent. Thus it is clear that Stewart's union membership and activities were well known to the respondent. It is also clear that as a result of his activities Stewart suffered several lay-offs early in 1939. The statements attrib- uted to Warren, , Stewart's immediate supervisor, which were not denied, clearly support this inference. The respondent's contention that a reduction in force necessitated the discharge of Stewart, ex- plains, if true, only the necessity for eliminating an employee. It does not explain why Stewart, who had been with the respondent for a longer period of time than had many of the newly hired employees,22 was chosen for the discharge. No explanation was offered by the respondent why Stewart should have been chosen rather than some of the newly hired employees. 22 See footnote 11, supra. TEX-O-KAN FLOUR MILLS COMPANY 797 In view of the entire circumstances we find that the respondent discharged Robert Stewart because of his union affiliation and activities. In summation, we find that the respondent discriminated in regard to the hire and tenure of employment of John Marple, O. H. Kirby, E. C. Carey, M. L. Fielding, Loys McMurray, H. P. Baker, Jim Arnold, Billie Hansell, Jimmie Ervin, Samuel Vodnick, and Robert Stewart. We find that by such discrimination the respondent has discouraged membership in Local No. 21818 and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. We find that the respondent has not discriminated in regard to the hire and tenure of employment of J. C. Penny, Roy Frank, Ed Starr, and M. L. Brittian, within the meaning of Section 8 (3) of the Act, and the allegations in the complaint with respect to them will therefore be dismissed. C. Interference, restraint, and coercion at the Burrus mill On October 24, 1938, the respondent ordered a general wage cut affecting the employees in its Burrus mill at Saginaw, Texas. Within 3 days thereafter, Herbert Cowsert, Finis" Hardgrove, and several other employees went to see A. E. Howse, packing and warehouse superintendent of the Burrus mill, to protest against the decrease in wages. In reply to their protest, Howse stated that he had done everything within his power to prevent the decrease in wages. Cow- sert then expressed the opinion that if the employees had an outside organization working in their behalf the respondent might counter- mand the decrease. Howse then said, "Cowsert, I wouldn't do anything drastic." Following this interview the employees began to talk of forming a union and plans were laid to hold a meeting for that purpose in the American Federation of Labor hall at Fort Worth, Texas. On November 4, 1938, the respondent called a meeting of the employees in the broadcasting studio located in the general office building of the respondent. Upon this occasion J. Paul Smith, general manager of the Burrus mill, addressed the workers and informed them that the wage cut had been due to a misunderstanding of the provisions of the new Wage and Hour Law,23 and that the respondent now proposed to give the employees an increase in wages. Having made this announce- ment, Smith went on to observe that there was a lot of unrest among the employees and stated that inquiries directed to older employees would reveal that the respondent had always dealt fairly with the workers. Smith concluded by saying that the door of his office was always open to employees who had grievances to discuss. It is clear 2 The Fair Labor Standards Act (52 Stat . 676), commonly referred to as the wage and Hour Law, became effective October 24, 1938. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the tenor of Smith's statements that the respondent was aware of the union activities then going on within its plant and that Smith was inviting the employees to deal with him personally rather than through a union organization. Despite the statements of Smith, the employees held their first meeting on November 6, 1938, and formed Local No. 21827 of the Union. Following the inception of the Union various supervisory officers of the respondent began a concerted campaign to thwart its growth. The following instances are examples of the attempts on the part of various supervisory employees of the respondent to prevent the employees from joining or remaining members of the Union. On or about November 15, 1938, L. M. Mitchell urged a fellow employee, one Huctor, to attend meetings of Local No. 21827. Huctor answered that he could not do so and continue to hold his job with the respondent. At this moment, according to Mitchell, one Steinbauer, chief engineer in the Burrus mill, walked up and said that no union man could work for him. Huctor was one of his subordinates in the engine room where the conversation took place. Steinbauer did not appear as a witness for the respondent. Mitchell further testified that on or about November 22, 1938, Fisher, the superintendent of the Burrus mill as well as the Morten mill, asked him whether or not he belonged to the Union. Upon receiving an affirmative answer, Fisher expressed the opinion that the employees were making a mistake, although he denied having any personal feeling against the Union in the matter. Fisher then sug- gested, according to Mitchell, that the employees could have their own organization without outside representation. Upon this occasion Fisher also stated, according to Mitchell, that he had a way of finding out who were members of the Union and that the names of the em- ployees who belonged were known to him. Fisher denied the testimony of Mitchell set forth above and stated that the only conversation he had with Mitchell concerning the Union was on one occasion when Mitchell came into his office and told him that he had dropped out of the Union. According to Fisher, Mitchell also asked about forming a company union, to which Fisher replied that he could do just as he pleased about the matter, that the decision rested solely with Mitchell. The Trial Examiner, who had an opportunity to observe the demeanor of the witnesses, did not credit the testimony of Fisher. We find, as did the Trial Examiner, that Fisher made the remarks attributed to him by Mitchell substantially as related above. On or about December 10, 1938, Jack Boyle, a loading foreman in the Burrus mill, talked to James L. Scogin about the Burrus Union. The conversation was held just outside of the office of Howse. At first Scogin asked Boyle: "Are you all working today?" And Boyle replied: "Yes, Tuck Turner called us and told us to come to work. TEX-O-KAN FLOUR MILLS COMPANY 799, I guess you can see now who is taking care of us around here, Mr. Fisher and Mr. Howse." Then Boyle added: "You better keep your mouth shut and stay away from that damn Union. You will be better off." Boyle did not testify. On or about December 15, 1938, R. E. Neal had a conversation with Joe Johnson, a supervisory employee who was in charge of the employees in the bag room at the Burrus mill, regarding the Union. The conversation was held in the mill during working hours. Accord- ing to the testimony of Neal, which was undisputed, Johnson said, "You boys aren't getting anywhere with this union. I would like to offer a suggestion that we get up a petition and have it worded and all sign it-we don't know just how to word it but we could get it worded in the office-and get the boys to sign this petition and probably we can get more work. They have been shifting a bit of stuff to King- fisher, Oklahoma.24 You know how the bags have been going out. We might hold that business here if we all get right." Later the same day Neal saw Johnson circulating a petition addressed to J. Paul Smith, manager of the Burrus mill. This petition was dated Decem- ber 15, 1938, and read as follows: Dear Sir: We, the undersigned, are taking this means to inform you and the Burrus Mill that we are and have been well pleased with our working conditions at Burrus Mill. We have in the past and feel that we can in the future deal with you without the help and cost of some outside organization. Trusting that this will meet with your approval, we remain Your loyal employees, The petition was circulated throughout the mill during working hours by Johnson and Jack Boyle, a loading foreman. The following are typical examples of the attempts of Johnson and Boyle to obtain the signatures of the employees to the petition. On or about December 15, 1938, Boyle met A. L. Hampton, an employee, in the washroom of the Burrus mill during working hours and asked him whether or not he wanted to get out of the Union. Hampton's reply was in the negative. Boyle then showed him the petition referred to above, and said, "We are trying to get the boys to sign this. We are going to get better conditions if we can get this thing squelched." Hampton refused to sign the petition. When Hampton remarked that he intended to stay in the Burrus Union, Boyle said: "I joined the Union and I got out. I have a family to support." Hampton retorted: "I have too, but I don't intend to get out." Boyle was not called as a witness for the respondent. On December 15, 1938, W. H. Nichols was packing flour when $4 The respondent also operates a flour mill at Kingfisher, Oklahoma. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson asked him to sign the anti-union petition. Johnson said that if the employees signed the petition and sent it to the office working conditions would improve and the employees would not have to contribute to an outside organization. On the same day Johnson talked to C. NN. Fidler, an employee, about the petition and said, "If I can get you boys to sign this petition I can get you better work- ing conditions, such as smoking, working more hours." Johnson also said that the respondent at that moment was sending business elsewhere but that if the employees placed their name on the petition matters would improve. Fidler declined to sign the petition. This conversation took place in a freight car at the Burrus mill while E. K. Wilson, a loading foreman, was present. Neither Johnson nor Wilson appeared as witnesses. On or, about December 17, 1938, Boyle and Johnson met Emory Kreidel, an employee, near the latter's home, and asked him to sign the anti-union petition, telling him, "We have 68 men that have already signed." Kreidel declined to sign the petition, stating that he would have to consult his fellow workers first. Whereupon Johnson remarked, "Well, you know the reason you are not getting any more working time is on account of the Union. And the reason we haven't got any more business out there is because they are sending the business other places in order to freeze out the Union." It appears that Johnson should have been working at the Burrus mill at the time he was importuning Kreidel to sign the petition. During the same period mentioned above Johnson circulated another petition which was also dated December 15, 1938, and which read as follows: Dear Sir: We the undersigned employees of Burrus Mill Elevator Com- pany of Fort Worth, Texas, herewith tender our resignations to A. F. of L. Local Lodge. This petition was also circulated during working hours. On or about December 17, 1938, S. J. Hall, an employee, was in bed at home when E. K. Wilson, a loading foreman, and Boyle made their appearance with the first anti-union petition mentioned above. Wilson asked Hall whether or not he belonged to the Union and after receiving an affirmative answer suggested that Hall might wish to withdraw from the Union in order that the employees might have more work. Hall said he would do anything to get additional working time and.signed the petition. On or about December 19, 1938, Hall also signed the petition resigning from the Local. He was given this petition by Boyle during the regular hours of work at the Burrus mill. Boyle was his foreman at the time. Numerous other instances of attempts by Boyle and Johnson to persuade the employees to resign from the Union and to sign the TEX-O-KAN FLOUR MILLS COMPANY 801 anti-union petition referred to above are set forth in the record. However, the respondent's activities in this respect are not confined to the acts of the various supervisory employees mentioned above. The following instance clearly reveals that officers of the respondent who were in positions of greater responsibility also attempted to dissuade the employees from joining or remaining members of the Union. Late in December 1938 Mitchell paid a visit to the office of J. Paul Smith, the manager of the Burrus mill, for the purpose of securing a loan of $12 from the respondent. Mitchell testified that while he was there Smith exhibited the first anti-union petition referred to above, and requested him to sign it. Mitchell did so, and was then given the $12 which he sought. Upon the same occasion, according to Mitchell, Smith asked him whether or not he was a member of the Union, and after receiving an affirmative reply, Smith said that he thought the employees were making a mistake. Mitchell testified that as he was preparing to leave, Smith asked him for the names of the employees who would leave the Union. According to Mitchell, he protested that the question was unfair. Whereupon Smith said, according to Mitchell, "Mitchell, if the Labor Board gets hold of this it is a damn lie. I never said it." In conclusion, according to Mitchell, Smith said that non-union employees would work even if he had to post guards at the Burrus mill for their protection. Smith denied the testimony of Mitchell set forth above. He testified that in the latter part of 1938 or the early part of 1939 Mitchell came to him and stated that he was worried for fear that Smith "might hold it against him because he joined the Union." According to Smith, he told Mitchell that he did not know whether or not he belonged to the Union. Mitchell then stated, according to Smith, that he had joined the Union only because of pressure exerted upon him by other employees but that he was now out of the Union and that he was not going to have anything to do with it from then on. On cross-examination Smith denied that Mitchell signed any petition in his presence. However, Smith was unable to explain why Mitchell's name appeared on the original of the petition which was introduced into evidence by the respondent and not upon a photostatic copy of that petition which was introduced into evidence by the Board. While the record does not reveal when the photo- static copy was made it is clear that Mitchell signed the anti-union petition sometime thereafter. This evidence substantiates the testi- mony of Mitchell and tends to discredit the testimony of Smith. However, aside from this evidence, the Trial Examiner, who had an opportunity to observe the demeanor of the various witnesses, found that the testimony of Smith in this and other particulars was not credible. Upon a review of the entire record we are in agreement 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Trial Examiner in his determination as to the credibility of Smith. We find in accordance with the testimony of Mitchell set forth above. Late in January 1939 Hall asked Joe Johnson, who was in charge of the employees in the bagroom, why the respondent was shipping so many bags to its mill in Kingfisher , Oklahoma. Specifically he asked Johnson why the respondent could not run a certain type of bag in the mills so that the employees could get more time. Johnson replied, "We could if there was less union men than there was at Kingfisher, if they would pull off their buttons they would get to run the bags here." Hall then inquired whether it would cost more to ship the bags from Kingfisher than from the respondent's plant in Saginaw. Johnson replied, "No the rate is the same. If there was less union men at the mill than at Kingfisher, if the boys would wake up, there would be more work running them here." James Scogin, an employee, testified that he shipped about 2500 bags from the Burrus mill to the Kingfisher mill on March 30, 1939; that Johnson told him while he was working in the bagroom the day after 18 men were laid off on March 29, 1939,25 that he shipped 11,053 to the Kingfisher plant the evening before and that Johnson lamented and said, "We should have clone this job here if things had been like they should have been." As noted above, Johnson did not appear as a witness for the respondent. On or about February 15, 1939, H. E. Smith, an employee, was at work in the Burrus mill when Wilson, his foreman, said to him, "If you boys don't get out of the Union you are going to lose your jobs." Several other employees also testified that Wilson had made similar statements to them. Wilson did not appear as a witness for the respondent. It is clear from the evidence set forth above that the respondent, through its supervisory officers and agents, attempted to discourage membership in Local No. 21827. Proof of the respondent's success in this matter may be found in the fact that membership in Local No. 21827 dwindled from 72 members in November 1938 to approximately 13 members in September 1939. We find that by the aforesaid activities of its supervisory employees and by other acts the respondent has interfered with, restrained, and coerced its employees in the exercise of the right to self-organization, to form, join , or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection. 2 These lay-offs are discussed below. TEX-O-KAN FLOUR MILLS COMPANY 803 D. The discharges at the Burrus mill Claude H. Henson. Henson had been in the employ of the respond- ent for slightly more than 5 months prior to November 19, 1938, the date of the termination of his employment. He was one of the first men to join the Union on November 6, 1938. During the term of his employment Henson worked as a sweeper and also in the millwright crew. He testified that he had received no complaints about his work during his employment. On November 19, 1938, A. J. Ball, the millwright foreman, told Henson that his services were no longer needed. Henson then saw Fisher, who said he would support what- ever action Ball had taken. Henson then returned and asked Ball for an explanation of his discharge, to which Ball replied, "You are just too slow for me." Fisher testified that Henson was discharged because of his ineffi- ciency. He stated that Henson was hired as a sweeper and could not perform the job satisfactorily. He was-then transferred to the mill- wright department as a helper.26 According to Fisher, Ball, the mill- wright foreman, complained of Henson's services on several occasions, stating that he could not get Henson to do his work properly. Fisher testified as to several specific incidents where he had personally ob- served that Henson was inefficient. On one occasion Henson was detailed to paint the locker room in the mill. According-to Fisher, he went down to the locker room to see how the job was coming along and observed that Henson was not doing the job as it should be done, "he was getting paint all over everything . . . and wasn't doing much painting at that." Fisher stated that he then told Ball to take Henson off the job. On another occasion Henson was sent to tighten some "bolters" on the seventh floor of the mill. According to Fisher, this was a job that any ordinary employee could finish in an hour, but that Henson was on the job for 4 hours and was not able to finish it even then. Fisher further testified that Henson was also inefficient as a sweeper, "he didn't get around and keep the mill clean and get between the elevator legs." Because of the complaints of Ball regarding Henson's work and in the light of his own personal observation, Fisher testified that he ordered Henson's discharge. While Henson denied that he ever received any complaints about his work, he did not con- trovert Fisher's testimony set forth above. We find that Henson was discharged for reasons other than his union activities and membership. V. L. Newland, 0. 0. Stewart, and R. H. Tomlin were all employed as feed packers in the respondent's Burrus mill and were all discharged on November 21, 1938. 26 During the vacation of one of the sweepers Henson was temporarily transferred to this position and later transferred back to the millwright crew. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. L. Newland had been in the employ of the respondent for a year prior to his discharge. He testified that up to the time of his discharge no dissatisfaction had been expressed with regard to his work. He became a member of the Union on November 13, 1938, and was dis- charged on November 21. Newland testified that on the day of his discharge he was engaged in packing 140-pound bags of flour. He stated that he had packed such bags all morning and that when he returned from lunch he packed about 50 bags before noticing that his scale had been tampered with during his absence in the lunch period and that as a consequence the 50 bags were 6 pounds overweight. Newland reported the error to his foreman , Finis Hardgrove, who in turn consulted with Howse, the superintendent of the warehouse and packing operations of the respondent . Hardgrove returned to New- land and informed him that he was discharged because of his error. Newland then went to see Howse and requested permission to correct the error on his own time, stating to Howse that this was the first mistake he had made since he was employed . Howse refused this request. According to Newland , at least four other employees had made similar mistakes in packing flour prior to his discharge and had been allowed to correct the error on their own time. Howse, a witness for the respondent , at first denied that the respondent had adopted such a policy . However, on cross-examination , he conceded that he had used that method on some occasions but stated that he could not recall any particular case. Howse's testimony in this respect is of such an evasive nature as to render his testimony valueless . We find, on the basis of the record , that prior to Newland's discharge the respondent had allowed packers to correct errors on their own time. The respondent contends that Newland was discharged solely for the reason that he had made the error referred to above. On direct examination Howse testified that Newland was discharged because of bad weights and that the error resulted in a shipment of flour missing its boat connections at the port of its delivery and thus delaying the completion of the order . On cross-examination Howse conceded that the failure to make the proper boat connections was not the real reason for Newland 's discharge but that the inaccuracy was the primary factor involved. The Trial Examiner found that Newland was not discriminatorily discharged on the ground that there was no evidence in the record to show that the respondent knew Newland belonged to the Union at the time of his discharge other than the general statement of Fisher that the names of the union members were known to him . The Trial Examiner concluded that since this statement was not made until November 22, 1938, the respondent was unaware of the union affilia- tion of its employees until that time. We are of the opinion that the respondent was aware of the union activities of its employees almost TEX-O-KAN FLOUR MILLS COMPANY 805 from the inception of such activities. This fact is clearly indicated by the statements of Smith to the employees as early as November 4, 1938, to the effect that he'was aware of the unrest then existing among the employees. Furthermore, the record shows that as early as November 15, 1938, the respondent, through its supervisory officers, indicated its opposition to the activities of the Union. Then, too, it is entirely probable that Fisher was aware of the union membership prior to the date on which he told Mitchell of his knowledge, and we so find. In view of the entire circumstances we find that the respondent was aware of Newland's membership prior to his discharge. This fact, the circumstance that Newland's discharge closely followed the advent of the Union in the plant, the refusal of the respondent to follow its usual procedure and allow Newland to correct his error on his own time, together with the anti-union attitude displayed by the respondent, indicate that the error attributed to Newland was a mere pretext used by the respondent in its attempts to rid the plant of union men. We find that the respondent discharged Newland because of his union membership and activities. G. 0. Stewart started working for the respondent as a sweeper on or about November 15, 1926. During his employment he was promoted to the position of oiler, then to the position of feed packer, which job he held at the time of his discharge. He had been engaged as a feed packer for 8 years prior to his discharge. Stewart had more seniority than any other feed packer in the respondent's employ at that time. He was one of the original members of the Union, having joined on November 6, 1938. On November 21, 1938, Stewart was summoned to the office where Howse, Wilson, and Boyle were test weighing the feed of two packers on the shift. According to Stewart, about seven or eight sacks which he had packed appeared to be 3 to 5 ounces overweight. Upon the completion of the test Howse told Stewart that he was discharged because of the errors made. Stewart testified that he protested on the ground that he had been with the respondent for 12 years and had never previously been singled out for such an error. Stewart also testified that he requested Howse to reweigh the bags on the old type beam scales that Stewart had originally used in weighing the bags. Stewart claimed that the scales that he had been using might be inaccurate and that could have been the reason for the discrepancies in weight. Howse refused this request, stating that the scales would not vary. Howse, a witness for the respondent, testified on direct examination that Stewart was discharged because of "bad weights." Howse also testified that Stewart's weights were "uneven," that is to say they were irregular, some of the bags being overweight and the others being 323429-42-vol. 26-52 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD underweight . On cross-examination Howse could not recall how far Stewart's weights were off. He stated that all he could remember was that the weights were variable, being both over and under. This contrasts with Stewart's testimony in which he stated that his weights were not more than 3 to 5 ounces overweight. We find in accordance with Stewart's testimony . Howse further testified that prior to the time that Stewart and Tomlin were discharged he had cautioned the men in the plant to be careful about their weights on numerous occa- sions; however, he stated he had no record and did not know how long it had been since he personally tested the weights of the particular men in the plant. Furthermore, while Howse stated that the check-up on weights was made in the ordinary "course of events during a periodical check-up," he could give no definite date or time as to when these so-called "periodical check-ups" were made, stating that they were made at his choosing. Howse conceded that no particular com- plaint had been made which might have served as a reason for making the "check-up" at this particular time. Howse admitted that the misweighing of flour was not always a dischargeable offense, but stated that after a man was warned and thereafter continued to have had weights he was discharged. Stewart testified that he had never previously been singled out for such an error. Howse conceded that he could not remember having singled out or cautioned Stewart in this respect. We therefore conclude that this was the first offense of Stewart with respect to misweighing flour. Finally , it is clear from the record that on prior occasions where such mistakes occurred the respondent allowed the packers to repack the flour on their own time. This privilege was not accorded Stewart. The Trial Examiner found that Stewart was not discriminatorily discharged on the ground that no proof was offered to show that Howse knew of Stewart 's union membership . In view of the strong anti-union attitude displayed by the respondent and in view of the facts set forth in our discussion of Newland upon this point, we can- not agree with the Trial Examiner in this respect. In view of the entire circumstances we are convinced that Howse, as well as the other supervisory employees of the respondent , were well aware of the fact that Stewart was a member of the Union and that he had participated in union activities at the time he was discharged. The circumstances showing that Stewart had been in the employ of the respondent for over 12 years, that during his employment he had never been seriously criticized for his work, that the error ascribed to Stewart was his first offense in the matter, that the check-up on weights occurred shortly after the inception of the Union without apparent cause therefor, that Stewart was not accorded the privilege of correcting the error on his own time, that Howse refused to check the weights on the scale that Stewart had been using , even though TLX-O-KAN FLOUR MILLS COMPANY 807 requested to do so by Stewart, when viewed in the light of the general anti-union attitude displayed by the respondent, convince us that the error attributed to Stewart was a pretext designed to cloak the real motive of the respondent for discharging him. We find that the respondent discharged Stewart because of his union membership and activity. R. H. Tomlin had been working for the respondent as a feed packer for 2 years prior to his discharge on November 21, 1938. He had been in the employ of the respondent for, approximately 5 years. He testified, without contradiction, that during his employment his work had never been criticized. Tomlin was a member of the Union at the time of his discharge. Tomlin testified that when he came to work on November 21, 1938, Stewart, whom he relieved, told him that he had been discharged allegedly for, short weights, but in reality because of his union affilia- tion and warned him to be very careful about his weights. As a result of this warning Tomlin testified that he was particularly careful about his work. However, about 5 'clock Tomlin and Chisum, the other feed packer, were called to the respondent's office where Howse was test-weighing the bags that the two feed packers had packed. Tomlin testified that Howse demonstrated that only one bag that he had packed was 1/2 pound underweight and that the remainder appeared to be correctly weighed. On the other hand, Howse testified that the bags Tomlin had packed varied in weight from 12 ounces underweight to 8 ounces overweight. We find in accordance with Tomlin's version of the error. It seems improbable to us that Tomlin, who had been warned that a mistake on his part would result in his discharge, would be as careless as Howse's testimony seems to indicate. The Trial Examiner found, as in the case of Stewart and Newland, that the respondent was not aware of Tomlin's union membership at the time of his discharge and therefore dismissed the complaint as to him. For the reasons set forth above in the cases of Stewart and Newland, we cannot agree with the Trial Examiner's conclusion. In view of the entire circumstances we are convinced that the respondent was aware of Tomlin's union affiliation and activity, and so find. As in the case of Stewart, this was the first offense of Tomlin in mis- weighing feed. He testified that he had never been singled out for bad weights on any previous occasion. Howse admitted that he could not recall having singled out or cautioned Tomlin on any pre- vious occasion. Furthermore, Howse conceded that the misweighing of flour was not always a dischargeable offense. It seems strange that both Tomlin and Stewart should be discharged upon their first offense, especially after having served the respondent for such a long period of time without previous mishap. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent discharged Tomlin because of his union activities and membership. Jack Burns had been in the employ of the respondent slightly more than 3 months prior to January 6, 1939, the date of the termination of his employment. He joined the Union on or about November 13, 1938, and began to wear his union button about December 15, 1938. Sometime in December 1938 Burns refused to sign the anti-union petition then being circulated by Johnson. On January 5, 1939, during the course of his work, Burns loaded the wrong kind of flour in a freight car. Burns testified that on the day in question E. K. Wilson, the loading foreman, verbally instructed him to load a certain type of meal in the car and that he did so. It appears that Burns should have followed the written instructions which were posted for his benefit. However, Burns testified that in accordance with previous custom he followed the verbal instructions of his foreman. On the following day Wilson informed him that he had loaded the wrong type of meal do the car and was therefore dis- charged. Burns testified that he protested on the ground that he had followed Wilson's instructions. Wilson did not appear as a witness for the respondent. We find, therefore, that Wilson mis- informed Burns as to the type of flour that was to be loaded and that as a consequence the error was committed. Howse, a witness for the respondent, testified that his investigation of the matter revealed that Burns had loaded the car where. the mis- take was made and that he therefore ordered his discharge. Howse admitted that he made no investigation to find out whether Burns or Wilson was responsible for the error. The Trial Examiner found that Burns was discharged for reasons other than his union activities. We are not in agreement with the finding of the Trial Examiner in this respect. The respondent's hostile attitude toward the Union, the circumstances surrounding the discharge of Burns showing that it was the fault of Wilson that caused the error complained of, when considered together with the evidence indicating that the respondent was aware of Burns' union activities and membership, convince us, and we find, that Burns was discharged because of such membership and activities. H. P. Chisum had been in the employ of the respondent for approxi- mately 1 year and 10 months prior to the termination of his em- ployment on March 17, 1939. Chisum joined the Union on November 13, 1938, and wore his union button while at work. He testified that Howse warned him on several occasions that he was going to "get him after a while," and that the last occasion occurred on the night of Tomlin's discharge on November 21, 1938. Howse, a witness for the respondent, did not deny Chisum's testimony in this respect. It also appears that sometime in December 1938 Jack Boyle, the load- TEX-O-KAN FLOUR MILLS COMPANY 809 ing foreman, requested Chisum to sign the anti-union petition which was then being circulated in the mill. Boyle told him that his job would "last longer" if he signed the petition. Despite this threat Chisum refused to sign. On March 14, 1939, Chisum became ill and requested a fellow employee, Hall, to notify the respondent that he would not report for work because of his illness. Three days later Chisum returned to work and was told by Howse that he was discharged for failing to report his illness. Chisum testified that he told Howse that he had asked Hall to report his illness to the respondent and that he called Hall into the office to corroborate this statement. According to Chisum, Hall informed Howse that he had reported Chisum's sickness to Willis, the head miller, and that Willis had obtained a substitute for Chisum. According to Chisum, Howse then told him that he was not discharged but merely laid off. Chisum was never recalled by the respondent. Howse, a witness for the respondent, did not deny the testimony of Chisum in the above respect. We therefore conclude that Chisum's version of the incident is correct. The Trial Examiner found that Chisum was discharged for reasons other than his union activities. Apparently he based his conclusion on the supposition that Chisum could not be depended upon to appear for work. This finding was based upon the testimony of Fisher who made such a statement, and on the basis of Chisum's testimony wherein he stated that sometimes illness obliged him to remain at home. It appears, however, that Chisum's testimony in the above regard was made solely for the purpose of demonstrating that on previous occasions when he had become ill lie had reported his illness through another employee. The fact that Chisum's absence was clearly excusable, since his illness was reported to the respondent in accordance with the usual procedure, when viewed in connection with Howse's threats to "get" Chisum, leads us to believe that his absence from work was seized upon as an excuse for getting rid of a union employee. In view of the entire circumstances we find that Chisum was discharged because of his union membership and activities. On or about March 29, 1939, the respondent terminated the em- ployment of 18 employees including the 13 complainants who are named below. The following is a brief summation of the duties, length of service, and union activities of these complainants. H. E. Smith started working for the respondent in January 1936. At the termination of his employment he was employed on the ware- house loading gang. Smith joined the Union on November 10, 1938, and wore his union button at work. He testified that on or about February 15, 1939, E. K. Wilson, the warehouse foreman, told the loading gang, "If you boys don't get out of the Union you are going 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to lose your jobs." This , testimony was not denied by the respondent. Smith's name does not appear upon either of the anti -union petitions circulated in the respondent 's mill. - C. W. Fidler, also a member of the loading gang, began working for the respondent on October 5, 1938. He was a member of the Union and wore his union button while at work. He testified that in January or February 1939, E. K. Wilson told the loading gang that "we might as well get out of the Union, that the company had too much money, we couldn't fight them, they would whip us. He said that Jack Burrus would shut that mill down and not run it any more and he would do that before he would have the Union run it."- This testimony was undenied . Fidler also testified that on or about December 15, 1938, Johnson approached him during working hours and said, "If 1 can get you boys to sign this petition I can get you better working conditions , such as smoking , working more hours." Johnson also stated, according to Fidler, that the respondent was sending its business elsewhere and that business would get better if the employees would sign the petition . Fidler refused to sign the petition . Johnson did not testify for the respondent. G. W. Smith, also a member of the loading gang , began working for the respondent on October 15, 1938. He joined the Union on November 6 , 1938, and wore his union button while at work. He refused to sign the anti-union petition circulated by Johnson about the middle of December 1938. He testified that Wilson told the loading gang sometime in February 1939 that the "Union didn't have a chance ." This testimony remained uncontroverted on the record. F. M. Maddux worked steadily for the respondent as a sweeper and on the loading gang from 1929 until March 1939 . He joined the Union on November 20, 1938, and wore his union button while at work. His name does not appear on either of the anti-union petitions. C. C. Wilson began -working for the respondent on September 20, 1937. He was working on the loading gang at the termination of his employment. He became a member of the Union on November 10, 1938, and was a member of the executive board for the Union. He displayed his union button while at work. His name does not appear on either of the anti-union petitions circulated in the plant. He7bert Cowsert began work as a trucker for the respondent in October 1936 and ended as a car loader. During his,employmant he received two raises in pay. Cowsert was one of the group of em- ployees who protested to Howse about the reduction in wages that the employees received on or about November 1, 1938, and was told by Howse not to do .anyt'h ng drastic when Cowsert suggested that the employees might do better with an outside organization working on their behalf . He became a member of the Union on November' TEX-O-KAN FLOUR MILLS COMPANY 811 6, 1938, and was elected financial secretary of the local. He did not sign the anti-union petition circulated by Johnson. C. M. Hardgrove began working for the respondent in 1930 and was engaged as a flour packer upon the termination of his employment. He joined the Union on November 6, 1938, and wore his union button while at work. He refused to sign the anti-union petition circulated by Johnson. He testified that during the period of his employment the respondent usually laid off the most recently hired employees when a reduction in force became necessary. This testimony was not denied by the respondent. Hardgrove had seniority over a number of packers who remained in the employ of the respondent. Emory Kreidel began working for the respondent on January 7, 1937: At the time of the termination of his employment he was engaged as a trucker in the warehouse. He was a member of the Union and wore his union button while at work. Kreidel testified that Johnson and Boyle met him near his house on December 17, 1938, and asked him to sign the anti-union petition, Johnson stating, "We have 68 men that have already signed." When Kreidel refused to sign the petition, Johnson said to him, "Well, you know the reason you are not getting any more working time is on account of the Union and the reason we haven't got any more business out there is because they are sending the business other places in order to freeze out the Union." Neither Johnson nor Boyle appeared as witnesses to deny the above statements. R. M. (Manley) Davis was first employed by the respondent on De- cember 2•, 1919. He was engaged as a flour packer and had 20 years seniority. He testified that several weeks prior to his discharge he and his partner made a record in packing flour and were complimented by Jack Burrus, the president of the respondent. This testimony was not denied. • Davis joined the Union on November 10, 1938. His name does not appear on either of the anti-union petitions. A. L. Hampton began working for the respondent in January 1937. He was engaged as a flour packer at the termination of his employment. Hampton joined the Union at its second meeting and wore his union button while at work. On or about December 15, 1938, Boyle, the loading foreman, attempted to persuade Hampton to sign the anti- union petition, saying, "We are trying to get the boys to sign this. We are going to get better conditions if we can get this thing squelched." Hampton refused to sign the petition. J. C. Carroll had been in the respondent's employ as a flour packer for 24 years prior to the termination of his employment. He joined the Union on November 16, 1938, and displayed his union button while at work. His name does not appear on either of the anti-union petitions. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. H. Atchison began work for the respondent April 22, 1937, as a feed packer. He joined the Union on November 6, 1938, and dis- played his union button while at work. His name does not appear on either of the anti-union petitions. Atchison testified that sometime in January 1939 he had a conversation with A. J. Ball, head millwright at the mill, in which he told-Ball about the unrest at the mill and about having read in the paper that 143 men had been ordered back to work at some other plant and had been paid $185,000 in back pay. Accord- ing to Atchison, Ball replied, "Burrus wouldn't. They will buy that fellow Elliott off." 27 Ball did not testify for the respondent. John Crouch did not appear to testify on his own behalf and there is no evidence in the record concerning him. We shall therefore dismiss the complaint as to him. The respondent contends that the above-named employees were laid off because business conditions necessitated a reduction in force. The respondent offered no statistical data showing a reduction in business to justify such a lay-off. As a matter of fact the number of overtime hours put in by the respondent's employees since the reduction in force indicates that the respondent's business has increased rather than decreased since the lay-off, especially during the month of Sep- tember 1939. Since March 29, 1939, and up until September 20, 1939, the employees in the warehouse department have put in approxi- mately 1,903 hours of overtime, while the employees in the loading department have put in approximately 2,666 hours of overtime. In both instances the respondent has paid the employees who have put in such overtime, time and a half for their overtime work. Further- more, since March 29, 1939, the respondent recalled 4 of the 18 em- ployees 28 laid off and has hired 12 new employees. The positions and date of employment of the individuals who were hired are revealed in the table set forth below. Name Duties Date of first employment A H Balch------------------------------- Warehouse-------------------------------- 9-13-39 J J Krauss ----------------------------------- Warehouse------------------------------- 4-26-39 Lawrence Livingston-----_ ----------- Sweeper----------------------------------- 6-28-39 Eldon McClellan----------------------------- Sweeper--------------------------------- 9-20-39 Bill Russell- --------------------------------- Sweeper----------------------------------- 6- 7-39 Ira Woodard ---------------------------------- Unloader---------------------------------- 6-28-39 William Summers----------------------------- Warehouse-------------------------------- 3- 8-39 Ben Williams ----------------------- Warehouse-------------------------------- 29 1-31-38 In addition to the above employees the record reveals that since March 29, 1939, the respondent hired four new negro employees to i7 Edwin A. Elliott is the Board's Regional Director at Fort Worth, Texas 28 Two of the employees who were recalled were union men while two were non-union employees. Of the two union men , one, S. J Hall, had signed both of the anti-union petitions referred to above. 22 Williams was transferred from the respondent 's Corsicana , Texas, warehouse to the Burrus mill some- time after March 29, 1939 TEX-O-KAN FLOUR MILLS COMPANY 813 do clean-up work around the plant, which type of work had formerly been done by the loading gang. The position and duties of the complainants are set forth in the table below: Name Duties Date of first employment Laid off Emory Kreidel ----------------------- Trucker------------------------------- 1- 7-37 3-28-39 H E. Smith -------------------------- Warehouse--------------------------- 1- 1-36 3-28-39 C W. Smith------------------------- . Warehouse ----------- --------------- -- 10-15-38 3-28-39 . M (Manley) Davis --------------- R Flour packer ---------- ------------ ---- 12- 2-19 3-28-39 C. M Hardgrove --------------------- Flour packer -------------------------- 9-29-30 3-28-39 A L. Hampton ---------------------- Flour packer -------------------------- 1- 7-37 3-28-39 F Maddux--------------------------- Sweeper------------------------------- -29 3-28-39 J. C Carroll -------------------------- Flour packer -------- ------------------ 8-15-38 3-29-39 C W. Fidler-------------------------- Warehouse ---------------------------- 10- 5-38 3-28-39 H. H Cowsert ------------------------ Trucker------------------------------- 10-15-36 3-28-39 John Atchison------------------------ Feed packer --------------------------- 4-22-37 3-28-39 C. C. Wilson------------------------- Warehouse--------------------------- 9-20-37 3-28-39 It is clear from a comparison of the two tables set forth above that the respondent in hiring the new employees had, in several instances, replaced the complainants. For example, four warehouse employees were laid off while subsequent thereto four new warehouse employees were hired. No reason was offered by the respondent for not recalling the laid-off employees when positions of the type they were capable of filling became available. We deem this particularly significant in view of the oft repeated statements of the respondent's counsel that if and when employment of the nature that the com- plainants were capable of performing became available, they would be recalled. While it is true that the respondent did not in every instance hire new employees to take the identical place of the complainants, it did shift its force in such a manner as to effectively replace most of the complainants. W. H. Nichols, an employee, testified that since March 29, 1939, Krauss,30 one of the new employees, was shifted from the position of sweeper to that of trucker. The record shows that Maddux, one of the complainants, was a sweeper while Kreidel and Cowsert were both truckers. No reason was offered by the respondent for preferring the services of Krauss, a new employee, to that of the above-named employees. Nichols further testified that Hogger and Williams, sweepers, were transferred from the positions they were originally hired for to fill in on the loading gang sometime after March 29, 1939. It was also testified that other transfers were made within the plant. These transfers together with the hiring of new employees make it evident that the respondent was replacing the complainants either by hiring new employees in their places directly or by transferring old employees to their places and substi- tuting new employees in the places of the transferees. The testimony 30 Also referred to in the record as Crouse. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Nichols in this and analogous respects was not disputed by the respondent. It should be noted, moreover, that the respondent offered no reasonable explanation of the manner in which it selected the persons to be laid off . A. E. Howse, superintendent of the warehouse and packing departments , who was instrumental in choosing the com- plainants for the lay-off, was repeatedly requested by Board's counsel to explain why the complainants were chosen for the lay-off rather than other employees . Howse was vague and indefinite in his testi- mony. The following are typical examples of the reasons offered by Howse for choosing the complainants': Q. What factors did you take into consideration in determin- ing what men you would lay off, Mr. Howse? A. Well, it would be hard to definitely state; in other words, it is merely a judgment that a man in that position , that men would have to go about in making those decisions , like you would in the regular course of any business. Q. Did you take into account the length of service the men had had there? A. Various and sundry reasons and facts. Q. All right. I want to know what those various and sundry reasons were. A. Well, there is nothing definitely that I could speak of. Q. Just name the factors you took into account? A. Trying to give every man, as far as I could see , a square deal as is humanly possible, and we couldn't keep all of them. Q. When individual lay-offs were made, ability being equal, you followed seniority as closely as possible, did you not? A. Well, as closely as possible, yes. Q. Why then did you lay off Mr. Carroll with 27 years seni- ority? A. I don't remember what our reason was. I don't recall. Under further cross-examination Howse stated that the manage- ment considered the lay-offs for some time prior to the actual occur- rence, but that he "couldn 't recall what discussion went on with regard to these men , or why we picked this one or why we picked that one." In view of Howse's testimony and the entire record it is clear that the respondent did not choose the persons to be laid off upon the basis of their ability or service. Indeed, Howse admitted that all of the laid-off employees were as competent as the men retained. The record reveals that in most instances the complainants had more seniority than certain employees who were retained. TEX-O-KAN FLOUR MILLS COMPANY 815 We cannot find, on the entire record, that a reduction in force was necessary for business reasons at the time the 12 complainants were laid off. But even if this were true, as the respondent contends, we are nevertheless convinced that the criterion used by the respondent in selecting the complainants as the persons to be laid off was their union activities and membership. The facts showing that out of 18 persons laid off all but 2 were union men; that both of the non-union men were later reinstated, while only 1 union 31 man out of 16' was reinstated; the failure of the respondent to offer any valid reasons for selecting the particular persons to be laid off; the fact that the respond- ent hired new employees subsequent to the lay-off of the complainants and by shifting its force actually replaced many of said complainants; the fact that subsequent to the lay-offs it required its employees to do considerable overtime work; together with the general anti-union attitude of the respondent as it is revealed in the record, leads us to conclude, and we find, that the respondent selected for lay-offs and laid off Emory Kreidel, H. E. Smith, G. W. Smith, R. M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton, F. M. Maddux, J. C. Carroll, C. W. Fidler, H. H. Cowsert, John Atchison, and C. C. Wilson because of their union membership and activities. L. M. Mitchell had been in the employ of the respondent for approx- imately 2 years prior to his discharge on August 31, 1939. He joined the Union in November 1938 and wore his union button while at work. As we have noted above, on or about November 22, 1938, Paul Fisher, the superintendent of the mill, asked Mitchell if he was a member of the Union. When Mitchell replied that he was, Fisher, while dis- claiming any opposition to the Union, stated that he was afraid the employees were making a mistake and suggested that they have an inside organization rather than having "outsiders" represent them. Fisher further stated that he knew who, among the employees, were members of the Union; that he had ways of finding out such matters; and that the dues paid by the employees went into the pockets of the organizers. In the latter part of December 1938 Mitchell went to see J. Paul Smith, the manager of the Burrus mill, for the purpose of securing a loan of $12., While he was there Smith asked him if he was a member of the Union and upon receiving an affirmative reply, Smith said, "Well, I'm afraid you boys are making a mistake, I don't have any-' thing against the Union, but I believe you are making a mistake." During the course of the conversation which ensued Smith asked for the names of the employees "that would pull out of the Union." When Mitchell protested that this was unfair, Smith stated, "Mitchell, if the Labor Board gets hold of this it is a damn lie. I never said it." 31 S. I. Hall, the other person reinstated , having signed the anti-union petitions thereby, in effect, resigned from the Union. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith further stated that the employees "who stayed out of the Union and stuck to the mill would work if he had to put guards out there and guard them." Before Mitchell was able to secure his re- quested loan of $12, Smith had him sign the anti-union petition which expressed satisfaction with the working conditions and a feeling that the employees would deal with the respondent " without the help and cost of some outside organization." - Mitchell was discharged on August 31, 1939. His discharge came about under the following circumstances : It is the custom of the respondent to sell old bags to a junkman or to any of its employees who may wish to purchase the same for home use or resale. Prior to August 31 , 1939, Mitchell had been in the habit of buying bags of this type from the respondent. On August 31, 1939, he was a party to one of these transactions . J. Paul Smith,, general manager of the mill, testified that on or about August 31 a friend of his in the milling business called up by telephone and informed him that Mitchell had brought some jute bags and wanted to sell them to him . It appears that the respondent used jute bags in its business and that ordinarily it did not sell them as junk. Smith testified that he immediately told Howse to find out how Mitchell got the bags . Howse testified that upon investigation he discovered that Mitchell had obtained the bags without going through the normal procedure of obtaining the consent of the bagman as to the particular type of bags he was to take. It also appeared that among the bags purchased by Mitchell as junk burlap were several bags of good material which the respondent could have used in its business . Howse accused Mitchell of having wrongly graded the bags and thus obtained the good bags. According to the respondent this led to the discharge of Mitchell. On the other hand, Mitchell testified that on or about August 30, '1939, he asked Joe Johnson , the bagman , if he could purchase a pile of old bags that were going to be discarded . According to Mitchell, Johnson agreed and stated that he could have the bags. On the following day Mitchell testified that.he was going to get the bags but that he was unable to do so because Johnson was out of the plant. According to Mitchell he counted out the bags and determined how many were there and whether there were any of good quality. He then sought the advice of Brinkley, the assistant bagman, as to whether he could take the bags. According to Mitchell , Brinkley said it was all right providing he obtained Johnson's consent. Mitch- ell then went to the office to discover where Johnson could be located. It appears that Johnson had been excused from work that day so that he might move his belongings from one place of residence to another. According to Mitchell , he thereupon went to the home of Johnson and specifically asked him whether he could have the bags at the TEX-O-KAN FLOUR MILLS COMPANY 817 price quoted to the junkman. According to Mitchell, he told Johnson that there were some good bags in the group, but that Johnson stated that these bags were "weegi}y" and that he could have them as junk. Mitchell then returned to time plant, took the bags and made arrange- ments with the office to pay for them out of his check. - Neither Johnson nor Brinkley appeared as witnesses for the respondent. We find that Mitchell's version of the bag incident is correct. Howse conceded on cross-examination that Mitchell acted with complete honesty in the matter. Howse further admitted that Mitchell had informed him of the procedure he had gone through in obtaining the bags. However, Howse stated that Mitchell should have waited until Johnson returned to the plant so that he could have graded the bags and thus prevented Mitchell from getting the bags which the respondent believed were good bags. Although Mitchell did not accomplish the purchase of the bags on this occasion in the customary manner, the respondent was fully aware of the fact that he had acted in accordance with the instructions given to him by his foreman and without any intention of defrauding the respondent. In view of the strong anti-union hostility displayed by the respond- ent, particularly with reference to Mitchell, in view of the fact that Mitchell's action was clearly excusable, and that the respondent was aware of the entire situation at the time of his discharge, we conclude that the respondent seized upon the alleged error of Mitchell as an excuse to discharge him and that the real reason for his discharge was his union membership and activities. In summation, we find that the respondent discriminated in regard to the hire and tenure of employment of G. 0. Stewart, V. L. Newland, R. H. Tomlin, John Burns, H. P. Chisum, H. E. Smith, Emory Kreidel, R. M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton, J. H. Atchison, F. M. Maddux, C. C. Wilson, G. W. Smith, J. C. Carroll, C. W. Fidler, Herbert Cowsert, and L. W. Mitchell. We find that by such discrimination the respondent has discouraged membership in Local No. 21827, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find that the respondent has not discriminated in regard to the hire and tenure of employment of Claude Henson and John Crouch within the meaning of Section 8 (3) of the Act, and the allegations in the complaint with respect to them will, therefore, be dismissed. 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 substantial 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent has discriminated in regard to the hire and tenure of employment of John Marple, 0. H. Kirby, E. C. Carey, M. L. Fielding, Loys McMurray, H. P. Baker, Jim Arnold, Billie Hansell, Jimmie Ervin, Samuel Vodnick, and Robert Stewart at its Morten mill; and has discriminated in regard to the hire and tenure of employment of G. 0. Stewart, V. L. Newland, R. H. Tomlin, Jack Burns, H. P. Chisum, H. E. Smith, Emory Kreidel, R. M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton, J. H. Atchison, F. M. Maddux, C. C. Wilson, G. W. Smith, J. C. Carroll, C. W. Fidler, Herbert Cowsert, and L. M. Mitchell, at its Burrus mill. In order to effectuate the policies of the Act we shall order the respondent to reinstate the above-named employees to their former positions or, if these are not available, to substantially equivalent positions. Where necessary, we shall require the respondent to dis- place employees who have succeeded to these positions, or to positions which either because of seniority or the practice of the respondent should have been offered to one of the above-named employees. We shall also order the respondent to make each of the above-named employees whole for any loss of pay he may have suffered by reason of such discrimination by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his net earnings32 during such period.33 However, since the Trial Examiner dismissed the complaint in so far as it alleged that the respondent discriminatorily discharged E. C. Carey, H. P. Baker, Jimmie Ervin, Samuel Vodnick, Robert Stewart, and G. 0. Stewart, 32 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 elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 8590, 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 Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L R B 219, enf'd as mod as to other issues , Republic Steel Corporation v. N. L. R. B , 107 F. (2d) 472 (C. C A 3), cert granted as to this issue, May 20, 1940 33 The date of the discrimination as to M. L. Fielding occurred on March 8, 1939, when the respondent hired a new employee rather than recalling Fielding for a position which he could have filled. TEX-O-KAN FLOUR MILLS COMPANY 819 V. L. Newland, R. H. Tomlin, Jack Burns, H. P. Chisum, H. E. Smith, Emory Kreidel, R. M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton, J. H. Atchison, F. M. Maddux, C. C. Wilson, G. W. Smith, J. C. Carroll, C. W. Fidler, Herbert Cowsert, and L. M. Mitchell, we will exclude from the computation of back pay for each of the above individuals the period from the date of the Intermediate Report, January 25, 1940, to the date of this order.34 Since we have found that the respondent has not discriminated in regard to the hire and tenure of employment of J. C. Penny, Roy Frank, Ed Starr, M. L. Brittian, Claude Henson, and John Crouch, we will order that the complaint be dismissed in so far as it alleges that the respondent has engaged in unfair labor practices by dis- charging these individuals. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. National Council of American Federation of Grain Producers, affiliated with the American Federation of Labor; Flour, Feed Mill and Cereal Workers' Union No: 21818; and Flour, Feed Mill and Elevator Workers' Union No. 21827, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of John Marple, 0. H. Kirby, E. C. Carey, M. L. Fielding, Loys McMurray, H. P. Baker, Jim Arnold, Billie Hansell, Jimmie Ervin, Samuel Vodnick, Robert Stewart, G. 0. Stewart, V. L. New- land, R. H. Tomlin, Jack Burns, H. P.' Chisum, H. E. Smith, Emory Kreidel, R. M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton, J. H. Atchison, F. M. Maddux, C. C. Wilson, G. W. Smith, J. C. Carroll, C. W. Fidler, Herbert Cowsert, and L. M. Mitchell, thereby discouraging membership in Local No. 21818 and Local No. 21827 of the Union, 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. ai See Matter of E R. Haffelfinger Company, Inc . and United Wall Paper Crafts of North America, Local No. 6,1 N. L. R. B 760, 767; Matter of Colorado Milling & Elevator Company and Denver Trades and Labor Assembly, 11 N L. R. B. 66, Matter of C G. Conn, Ltd. and Metal Polishers International Union, Local No. 77, 10 N. L. R. B. 498. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The respondent has not discriminated in regard to the hire and tenure of employment of J. C. Penny, Roy Frank, Ed Starr, M. L. Brittian, Claude Henson, and John Crouch, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent , Tex-O-Kan Flour Mills Company , Dallas, Texas, and its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Flour, Feed Mill and Cereal Workers' Union No. 21818 and Flour, Feed Mill and Elevator Work- ers' Union No. 21827, or any other labor organization of its employees, by laying off, discharging, or refusing to reinstate any of its employees or in - any other manner discriminating in regard to their hire and tenure of employment or any terms or conditions of their employment; (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 concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranted in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to John Marple , O. H. Kirby, E. C. Carey, M. L. Fielding, Loys McMurray, H. P. Baker, Jim Arnold, Billie Hansell, Jimmie Ervin, Samuel Vodnick, Robert Stewart , G. O. Stewart , V. L. New- land, R. H. Tomlin, Jack Burns, H. P. Chisum, H . E. Smith, Emory Kreidel, R. M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton, J. H. Atchison, F. M. Maddux, C. C. Wilson, G. W. Smith, J. C: Carroll, C. W. Fidler, Herbert Cowsert, and L. M. Mitchell, immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, displacing, if necessary, any employees who may have succeeded to their former positions or to any other position which because of seniority or the practice of the respondent should have been offered to any of the above-named employees; (b) Make whole John Marple, O. H. Kirby, M. L. Fielding, Loys McMurray, Jim Arnold, and Billie Hansell for any loss of pay they may have suffered by reason of the respondent 's discrimination in regard to the hire and tenure of their employment and the terms and conditions of their employment by payment to each of them of a sum of money equal to that which each would normally have earned as TEX-O-KAN FLOUR MILLS COMPANY ' 821 , wages from the date of such discrimination to the date of the offer of reinstatement, less his net earnings 35 during the said period; deducting; however, from the amount otherwise due to each of said employees, monies received by said employees during said period for work per- formed upon Federal, State, county, municipal, or' other work-relief' projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern- ment or governments which supplied the funds for said work-relief projects; (c) Make whole E. C. Carey, H. P. Baker, Jimmie Ervin, Samuel Vodnick, Robert Stewart, G. O. Stewart, V. L. Newland, R. H. Tomlin, Jack Burns, H. P. Chisum, H. E. Smith, Emory Kreidel, R. M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton, J. H. Atchison, F. M. Maddux, C. C. Wilson, G. W. Smith, J. C. Carroll, C. W. Fidler, Herbert Cowsert, and L. M. Mitchell, for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to the hire and tenure of their employment by payment to each of them of a sum of money equal to that which each would normally have earned as wages from the date of such discrimination to the date of the offer of reinstatement, excluding therefrom the period between January 25, 1940, and the date of this Order, less his net earnings 36 during said period; deducting, however, from the amount otherwise due to each of 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; (d) Post immediately in conspicuous places throughout its Morten mill and its Burrus mill, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respondent 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) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the respondent's employees.are free to become or remain members of Flour, Feed Mill and Cereal Workers' Union No. 21818 and Flour, Feed Mill and Elevator Workers' Union No. 21827, and that the respondent will not discriminate against any employee because of membership or activity in either of said organizations; (e) Notify the Regional Director for the Sixteenth Region in writing within ten (10) days from the date of this Order what steps the re- spondent has taken to comply therewith. 33 See footnote 32, supra. 36 See footnote 32, supra. 323429-42-53 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to J. C. Penny, Roy Frank, Ed Starr, M. L. Brittian, Claude Henson, and John Crouch. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.