American Cyanamid Co.

In the Matter of AMERICAN CYANAMID Co. and UNITED PHOSPHATE WORKERS UNION No. 22036, AFFILIATED WITH THE AFL Case No. C-1830.Decided December 13, 19 1 Jurisdiction : mining and processing of pebble phosphate'rock. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements and threats by supervisory employees ; surveillance of union meeting Segregation of colored and white employees in company town so as to prevent free attendance at union meetings and collection of union dues, held to be 8 (1) despite existence of long-established segregation rule- such enforcement of rule found to be for anti-union motives. Discrimination: eight discharges; charges of, dismissed as to one employee Remedial Orders : reinstatement and back pay awarded Practice and Procedure : posting of notice pursuant to arrangement with Regional Office guaranteeing employee rights under the Act held not to warrant dis- missal of complaint regarding prior unfair labor practices where subsequent to the posting, employer engaged in further unfair labor practices. Mr. Warren Woods, for the Board. Mr. W. F. Bevis and Mr. Willard Ayres, of Holland, Bevis c Hughes, of Bartow, Fla., Mr. Thomas B. Adams, of Jacksonville, Fla., and Mr. G. R. Martin, of New York City, for the respondent. Mr. J. L. Rhodes, of Jacksonville, Fla., and Mr. H. L. Sapp, of Lakeland, Fla., for the Union. Miss Edna Loeb, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Phosphate Workers Union No. 22036, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued its complaint dated December 2, 1940, against American Cyanamid Company, Brew- ster, Florida, herein called the respondent, - alleging that the re- spondent had engaged in and was engaging in unfair labor practices 37 N L. R. B., No. 100. 578 AMERICAN CYANAMID CO. 579 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, accom- panied by notice of hearing, were -duly served upon the respondent and the Union. The complaint alleges in substance that the respondent (1) termi- nated the employment of S. E. Sloan, W. T.' Sloan, H. L. Sapp, J. M. Hutchins, L. F. Blanton, W. E. Blanton, Quincy N. Nettles, C. Arthur Nettles, and G. W. Howell, because of their membership in and activities on behalf of the Union; (2) discouraged membership in the Union by threatening its employees with loss of their jobs if they did not cease their union activities , offering its employees in- ducements to give up their union membership, and spying upon union meetings and the activities of union members ; and (3 ) by these and other acts and conduct, interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. On December 11, 1940, the respondent filed its answer to the com- plaint, admitting the allegations regarding the nature and scope of its business, but denying that it had engaged in the alleged unfair labor practices. On December 14; 1940, the respondent filed with the Regional Director a motion for further particulars and motions to strike portions of the complaint. Pursuant to notice, a hearing was held in Bartow, Florida, from December 16 to 21; 1940, before Martin Raphael, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by. counsel, the Union by representatives, and all participated in the hearing. Full opportun;ty to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing the Trial Examiner denied the respondent's previously filed motion for further particulars and motions to strike.' At the close of the Board's case, the respondent moved to dismiss the complaint. The Trial Examiner granted the motion without objection in so far as it related to Section 10 (b) of the complaint,' but reserved ruling on the remainder of the motion. At the close of the hearing the Trial Examiner granted without-objection a motion made by counsel for the Board to amend the complaint to conform to the proof in regard to names and dates. At the conclusion of the hearing the respondent i Before the Trial Examine, made the above ruling, counsel for the Boa, d outlined what he intended to prove at the hearing, and the respondent admitted that that statement had supplied it with some of the desired paiticula,s and placed it in a better position to proceed Paragraph 10 (b) alleged that the respondent interfered with, influenced, and ds- couraged mnemnbe,ship in the Union by Iewa,ding and remunerating employees for having voted aga,ntit or promising to vote against the Union or for having campaigned among othe, employees pe,snading them to vote against the Union 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renewed its motion to dismiss the complaint and moved also to strike testimony in the record. The Trial Examiner reserved his ruling on these motions . During the hearing and again at the conclusion thereof, counsel for the Board moved that the record in a repre- sentation proceeding involving the same parties 3 be incorporated into the record herein. The Trial Examiner reserved ruling on these motions. During the hearing the Trial Examiner ruled upon other motions and upon objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. At the close of the hearing , the Trial Examiner afforded the parties an opportunity to argue orally and to file briefs with him, but the parties did not do so. On February 25, 1941 , the Trial Examiner filed his Intermediate Report, copies of which were duly served on the parties . He found that the respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint and recommended that the respondent cease and desist therefrom and reinstate with back pay the nine individuals named in the complaint. In his Intermediate Report the Trial Examiner denied the respondent 's motion to dismiss and also the motion made by counsel for the Board to incorporate the record in the aforementioned representation proceeding' The respondent's motions to strike testimony , not specifically ruled upon by the Trial Examiner, are hereby overruled . On March 24, 1941, the respondent filed exceptions to the Intermediate Report and on April 2, 1941, filed a brief in support of its exceptions. Pursuant to notice, on, April 17, 1941, a hearing for the purpose of oral argument was held before the Board at Washington, D. C. The respondent appeared by counsel and participated in the oral argument. The Board has considered the exceptions and brief of the respondent and in so far as the exceptions are inconsistent with the findings, conclusions , and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, American Cyanamid Company, is a Maine corpo- ration with its principal office in New York City. It owns and oper- ates manufacturing plants at Warners and Bound Brook, New Jer- 3 Matter of American Cyanamid 'Co and United Phosphate Workers ' Union No. 22036, A F L, 19 N. L R B 1026. 4 See footnote 3, supra AMERICAN CYANAMID CO. 581 sey, and phosphate rock mines and other property in connection there- with at Brewster, Florida. This proceeding involves only the re-, spondent's operations at -Brewster, which consist primarily of the mining, processing, and shipment of pebble phosphate rock. More than 90 percent of the rock mined and processed at Brewster is shipped into and through States of the United States other than Florida and into foreign countries. In 1938, an average year, such products were valued in excess of $1,000,000. Brewster is what is commonly termed "a company town." The respondent employs between 250 and 300 white and colored employees at its mines and plant, practically all of whom live in Brewster. II. THE ORGANIZATION INVOLVED United Phosphate Workers Union No. 22036 is a labor organization affiliated with the American Federation of Labor. It admits to mem- bership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and ,coercion On or about May 16, 1939, E. H. Dixon, Ivy L. Alderman, G. W. Howell, and Roy Odom, employees of the respondent, consulted Frank Walker, an American Federation of Labor organizer, about forming a labor organization among the respondent's employees, and on the same day, applied to Walker for a charter. A few days there- after, Reuben Connell, another employee, called Dixon, Odom, Howell, and Y.F. Peters, another employee, to a conference in the office of Harry L. Mead, the respondent's general manager, to discuss the question of organizing a union. Odom, Dixon, and Howell, wit- nesses for the Board, testified regarding the conferences in substance as follows: Connell advised Mead that the men were organizing and Mead stated that he would like to know "what the'trouble is, why you all are organizing?" He told the men that "the company is hands off," stating, however, that he had broad powers to act as he saw fit, and that he did not care for the men to have a union. In the course of the discussion, Mead suggested that the men form their own company union in the plant, saying, "Why not let's all have a union together and settle our disputes here? Why pay a man in Washington to sit on-his ass up there and dictate to us what to do down here? . . . Why should we have somebody on the outside telling us how, to run our men when we can form a company union here." Mead testified that Connell told him that the men were forming a union and did not want to go behind his back about it; and that he 433257-42-voL. 37-38 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then told them that the Wagner Act prohibited him from discussing unionism with any employee, that he could not discuss that matter with them, but that he was free to discuss with them any matters pertaining to their wages, working conditions, or grievances at that or any other time. He denied, however, that he suggested that the employees form a company union. Connell, one of the respond- ent's witnesses, gave a version of the conference substantially similar to that of Mead, but Peters, another witness for the respondent, testi- fied that he believed that Mead did say something similar to, "Why don't you form your own little union and just get together among yourselves?" In view of the mutually corroborative testimony of Board witnesses, which was, in turn, supported in part by that of the respondent's witness Peters, we find, as did the Trial Examiner, that Mead made in substance the statements attributed to him at this meeting by Board witnesses. As the Trial Examiner found, Mead's statements to the men at the above described meeting constituted an illegal intrusion into the field of self-organization. Mead's suggestion that the men should form their own union, his statement that he did not care for the men to have a union, his intimation that they could bargain with him indi- vidually respecting their wages, hours, and working conditions, and that the formation of a union was indicative of some sort of "trouble," ii ere plainly, in their context and under the circumstances of their utterance, intimidatory and coercive statements, and interfered with the rights of the respondent's employees to self-organization. Thus, at the outset of the organizational campaign by the Union, Mead communicated to the men the respondent's intention not to permit them to exercise the rights guaranteed to them under the Act and betrayed a purpose to frustrate the Union at its very inception., On the night of Saturday, May 27, 1939, the Union held its first meeting, installed its charter, and elected the following employees as officers : C. Arthur Nettles, chairman or president ; C. L. Hooker, vice president; N. S. Peters, secretary; G. W. Howell, recording or cor- responding secretary; Quincy N. Nettles, treasurer; Roy Odom, guide; and H. L. Sapp, guard. The meeting was held in the Central Labor Hall at Lakeland, Florida, a town located about 25 miles from Brew- ster. Sapp, C. A. Nettles, and S. E. Sloan, another employee, wit- nesses for the Board, testified in substance that when they went into the hall to attend the meeting, they saw J. D. ("Jap") Smith and J. C. Long, superintendents, respectively, of the respondent's Old Colony mine and flotation plant, standing on the sidewalk a short distance front 5 See Matter of Charles Hobart and American Federation of Labor, 25 N. L . R B. 727, enf'd, Hobart Cabuiet Co v N. L. R. B, decided May 8, 1941 (C C A 6), cert den. November 10, 1941. AMERICAN CYANAMID CO. 583 the front of the building ; that when they came out of the hall about 2 hours later, they saw Long and Smith still standing near the afore- mentioned building; and that Smith and Long were in a position to observe and identify the persons who went into the union hall. Leon M. Simmons, a witness for the respondent , who is employed as a shift boss under Long's supervision , testified that he attended the meeting, that before the meeting he saw Long and Smith on a corner about a half block from the meeting hall, and that he did not see them after the meeting. Long and Smith admitted that they were in Lake- land on the evening in question but denied that they were there for the purpose of watching the union meeting, denied that they did so, and testified , in effect, that they were not in a physical position to watch the meeting. They testified further that this was the first time they had taken the trip to Lakeland together, and that their pur- pose for doing so was to enable Smith to make some purchases at a local store. The Trial Examiner stated that both Long and Smith testified about the trip in amazingly full detail, and he indicated that their fresh, clear, and nearly identical recollection of apparently un- important incidents for so long a time seemed to surpass the scope of reasonable memory. The Trial Examiner stated that those facts, together with the fact that the first trip of the two superintendents to Lakeland together occurred on the night of the Srst union meeting, prevented him from giving credence to their testimony in this regard, particularly when weighed against the mutually corroborative and credible testimony of Board witnesses . We concur in that appraisal and finding regarding credibility and find, as did the Trial Exam- iner, that Long and Smith kept the first union meeting under surveillance. On or about June 24, 1939, pursuant to a reduction in force, the respondent laid off approximately 16 employees , among 'whom were Dixon, Odom, Alderman , and J. B. Frier. The complaint does not allege and we do not find that these lay-offs were discriminatory.° °Dixon, Odom, Alderman, outstanding union leaders, Frier, and other employees were released under the following circumstances Mead called to his office C Arthur Nettles and C L Hooker, president and vice president of the Union, respectively; infoimed them that a number of employees would have to be laid off and that he desned to retain em; ployee, best suited tqi construction woik', and requested their assistance in selecting the least veisatile employees for lay-off Nettles theicupon assisted S I Wooten, the iespondent's construction superintendent, in selecting a group of employees, including Dixon, Odoni, and Alderman The thiee men were laid off ip June 1939 together with Frier and about 12 otheis Thereafter the Union complained to the Regional Director that Dixon, Odom, and Alderman had been released because of union membership and activity, but on July 24, 1939, Nettles and Hooker joined with Mead in sending a letter to the Regional Director explaining that the lay-offs were not discriminatory ' On July 28, 1959, the Union filed charges alleging unfair labor practices within the meaning of Sec- tion 8 (1) and (3) of the Act (Case No XV-C-440), but later Nettles requested permis sion to withdraw the chaiges The Regional Director permitted the withdrawal of the chaiges and closed the case on September 26, 1939 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But we do note herein the activities of Superintendent "Jap" Smith in connection with the lay-offs. Dixon testified that about a week before he was laid off , he had the following conversation with Smith on company property : And Ivy [Alderman] and myself were sitting on the bench out from the telephone . We had just got through eating our lunch, and he ["Jap" Smith] walked up to me and said, "How about me joining your scab union ?" And I said, "You can't join, and besides, we have not no scab union", and he said, "Dick, you had better drop that union, it is going to get your job", and he says, "You know that Harry-" speaking of Mr. Mead "is not going to let you get by with this", and I said, "Jap, if it, gets my job, it will just have to get it." I said, "If I have to leave here on account of the union , I hope to leave things in better shape than I have lived in for the last twenty years." According to Prier's testimony, on June 24, the day of the lay-offs, Smith told Frier that "he had been good to all of us boys and that we had all went against him and he had to let us go on account of the union." On the same day, according to Dixon's testimony, Smith again emphasized the attitude of the management toward the Union by telling Dixon, "I warned you last week to drop that union, and you wouldn't listen to it, so you asked for it, and you got it." Dixon's testimony was corroborated by Alderman and Frier. Con- nell testified that he observed Smith, Dixon, and Alderman begin to talk that day, that at first they were out of his earshot, but that when they approached him, the only conversation was in substance as follows : DIXON. Well, another good union man gone. SMITH. No, Ed [Dixon ], it wasn't the union, it was only to get more time for the men . . . by cutting off the youngest crew and your crew was the youngest crew. Connell testified in substance that Frier was with him and could not, therefore, have heard more than Connell heard . Frier testified, however, that he was only a few feet from Smith , Dixon, and Alder- man when he heard Smith's above anti-union statement to Dixon, and Alderman testified also that Frier was present: at the time of that statement. Smith denied making the anti-union statements attri- buted to him above, but in view of our previous finding regarding his credibility , the positive and corroborative character of the testi- mony of Dixon, Alderman , and Frier, and the entire record, we find, as did the Trial Examiner , that Smith made in substance the state- ments which they attributed to him. AMERICAN CYANAMID CO. 585 Near the end of June or first of July, during the course of a con- versation at one of the respondent's mines with J. D. Miller, an em- ployee, Smith referred to the recent lay-off of Dixon, Odom, and other employees and said, "The bastards got just what they asked for and what was coming to them. There are going to be plenty more to get the same thing." Smith added that he understood that Miller was an active union member and warned that he "had better get out of it" if he wanted to retain his job. Smith did, not deny having made the above statements. During July 1939 representatives of the Union met with Mead on two occasions to negotiate regarding a contract. At one of these conferences Mead agreed that the colored employees could hold their union meetings in the school building at Brewster and that the white employees could use the local theatre building. On or about August 1, 1939, Mead called Sapp, one of the union leaders, into his office and 'gave him a letter, and stated that he expected the orders outlined therein to be obeyed. The letter, in substance, states : For the best interests of all concerned, we must request strict adherence to the long established rule of the Company prohibit- ing any white person entering our negro quarters, excepting on Company business, or having written permission from the Com- pany's office. Negro members of A. F. of L. Local Lodge #22036 may continue to use the negro school building for their meetings. Meetings held there may not be attended by white persons. [Italics supplied.] On that occasion Sapp asked Mead what the meaning of the letter was and Mead replied that it meant that he, Sapp, could do his com- pany work in the colored quarters, but "That doesn't mean that you can meet with the negroes in the quarters over there and collect union dues, and stuff like that." The proscription contained in the letter made it impossible, according to Sapp, to collect dues from the col- ored workers and also made it impossible for white organizers or union adherents to attend meetings of the colored members to advise or consult them. It appears that the respondent had a long-standing rule segregating its white and colored employees. The respondent contends that on the above occasion it was merely enforcing the rule as usual, and that if the Union had been allowed to overstep the rule, the respondent would have been guilty of unfair labor practices in favoring or assist- ing the Union. We cannot agree with this contention. In the light of the respondent's frequently expressed hostility to the Union, its discriminatory discharges of union leaders, treated below, and Mead's 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement to Sapp when giving him the above letter, we find, in accord with the Trial Examiner's finding, that Mead's specific application of the segregation rule in the letter to Sapp and the timing thereof were intended to discourage and curtail membership in and activities on behalf of the Union. The respondent cannot justify such action by relying on its customary racial segregation or on its private rights in the company-owned quarters. As we have stated in an analogous situation, "The rights guaranteed to employees by the Act include full freedom to receive aid, advice, and information from others, con- cerning those rights and their enjoyment." ' Almost all of the re- spondent's employees live in the company-owned town. Under all the circumstances we find that the respondent's enforcement of racial segregation so as to curtail the afore-mentioned union activities of Sapp and its other employees constituted serious interference with the exercise of employee rights guaranteed in the Act.s Sometime in September 1939 S. I. Wooten, the respondent's con- struction superintendent and deputy sheriff and constable of Brewster, asked Dixon, one of the employees laid off in June, when he would vacate the company house which he was then occupying. Dixon testified that on that occasion Wooten said to hint, "Mr. Mead says he will spend $20,000 to break this union up" and "You are-not the only one that is going to leave here." Sapp testified that Wooten made a similar statement to him sometime during the same month. His testimony on that score is as follows : Well, we were just riding' along there talking about general work and conditions and things, and Mr. Wootin [sic] asked me how the union was coming on, and I told hint, "Pretty good, I thought." And he says, "Well, I was in hopes that it would amount 'to something." But, he says, "I don't know," he says, "The old man s swears he will bust it up if lie has to spend $20,000." And I says, "If he busts it up, he will be a busting son of a gun, because I don't believe he will do it." And we quit talking about the union and commenced talking about the general run of work and other things. Odom testified that sometime after his lay-off in June, Wooten told him that there was nothing wrong with his work and said, "I know that you have been a good hard working boy, that was not what got Matteis of Hai lan Fuel Company and United Mine Workers etc , 8 N L R B 23, 32 See N. L. R B. v. Cities Service Oil Co , decided July 25, 1941 (C. C A 2) . N L R B v. West Kentucky Coal Co, 116 F (2d) 816 (C C A. 6) ; Matter of Weyerhaeusei Timber Conipany, Longview Branch and International Woodncorkers, etc, 31 N L. R B , No 40; Matter of Un ited Dredging Company, etc and Inland Boatmen's Division, etc, 30 N L R 13, No 118 ; Matter of Harlan Fuel Company and United Mine Workers, etc, supi a, footnote 7 Mead is so referred to in the record. AMERICAN CYANAMID Co. 587 your job at that time . . . I don't mind talking to you'and telling you, the Union has got you off from here and it is going to get others." Wooten denied making the above statements or any anti-union statements at any time. The Trial Examiner stated that at the bear- ing he formed the impression, which was confirmed upon his subse- quent reading of the record, that Wooten had memorized a good deal of his testimony for the purpose of placing himself in an innocent light and lending support to his denials of ever having made an anti- union statement. In view of the circumstances, and in the light of his demeanor on the stand, and of the positive and corroborative char- acter of the testimony by witnesses for the Board, the Trial Examiner found Wooten's denials incredible. Upon the entire record, we are in accord with that finding regarding Wooten's credibility and find that Wooten made the above statements substantially as related by Dixon, Sapp, and Odom. Sometime in November 1939, following the filing of charges of unfair labor pncetices 10 and pursuant to prior arrangement with the Regional Office, the respondent posted on its bulletin boards a notice dated November 27, 1939, stating : - The American Cyanamid,Company recognizes and will comply with the principles of collective bargaining as embodied in the National Labor Relations Act, and specifically with the language of Section 7 of the Act, which reads as follows : "Employees shall have 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 or other mutual aid or prptection." The American Cyanamid Company will not in any way inter- fere with, restrain or coerce its employees in the exercise of the rights guaranteed and granted them in Section 7 of the National Labor Relations Act as stated above. The American Cyanamid Company will not discriminate against any of its employees because of their membership or non-membership in; affiliation or non-affiliation with, or activities in behalf of any labor organization or union, and it will not in any way 'discourage or encourage membership in any labor, organization or union. This means that the employees of this Company are free to join or not to join any labor organization as they may see fit, without fear of interference on the part of the Company, or 10 See footnote 6, supra 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without fear of any discrimination by the Company for that reason. It is our established practice not to give effect to a settlement or compromise of unfair labor practices where an,employer violates it or continues a course of unfair labor practices. As we find below, subse- quent to the posting of the November notice the respondent engaged in further unfair labor practices. Upon the entire record we find that the purposes of the Act would not be effectuated by giving effect to this posting and dismissing the allegations of the complaint as to unfair labor practices prior thereto." The respondent maintains that at or about the time the union activities commenced, through Mead it instructed its supervisory em- ployees not to interfere with the union activities of its employees, and several supervisory employees testified that they were so advised. The respondent did not, however, notify the employees generally of the alleged instructions. Moreover, the facts set forth above and below demonstrate, and the Trial Examiner found, that even if such instructions were issued, they were not complied with; and the respondent is plainly liable for the conduct of its supervisory employees under the circumstances here disclosed.i2 We find that by the acts and conduct described above, including the anti-union and coercive statements made by Mead, J. D. Smith, and Wooten, the surveillance of a union meeting by Long and Smith, and the enforcement of racial segregation curtailing legitimate union activities, and by the acts and conduct described below, including the discriminatory lay-offs and the anti-union and coercive state- ments of Wooten, J. D. Smith, and Frank Smith, the respondent has interfered with, restrained, and coerced its employees in the exer- cise of the right to self-organization, to form, join, or assist labor '3 Matter of Picker X-Ray Corporation and International Association of Machinists, 12 N L R B 1384; Matter of Hope Webbing Company and Textile Workers Organizing Committee, etc, 14 N. L R B 55 ; Matter of Harry L Half and International Ladies'. Garment Workers' Union, 16 N. L. R B. 667; Matter of Phillips Petroleum Company and Oil 11%orkers International Union, etc , 23 N L R B 741 "In Swift d Company v N L It. B., 106 F (2d) 87 (C C A 10). rehearing den, 106 F (2d) at 94, enf g as mod, Matter of Swift it Company, a Corporation, and Amalga- mated Meat Cutters and Butcher Workmen of North America, Local No 6i1, et al, 7 N L R B 269, the court disposed of a similar defense, stating. While the evidence showed that Middaugh, the plant manager, and Young, the plant superintendent, repeatedly warned against violations of the National Labor Relations Act and solicitation of union membership on petitioner' s premises during working hours, they took no effective means to stop repeated violations of the Act. Furthermore, with respect to the acts of the supervisory foremen, the doctrine of iespondeat suporioi applies, and petitioner is iesponsible for the actions of its supervisoty toiemen, even though it had no actual participation therein See also N L R B. v The A S Abell Co, 97 F. (2d) 951 (C. C A 4), enf'g as, mod, Matter of The A. S. Abell Company, a Corporation and International Printing and Press- men's Union, etc, 5 N L R. B 644; Titan Metal Manufacturing, et at v. N L. It. B , 106 F. (2d) 254 (C. C. A 3), cert. den, 308 U. S. 615, enf'g Matter of Titan Metal Manu- facturing Company and Federal Labor Union No. 19981, 5 N L R B. 577. AMERICAN CYANAMID CO. 589 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 guar- anteed in Section 7 of the Act. B. The lad-offs and discharges The complaint alleges, and the respondent denies, that the respond- ent terminated the employment of nine employees on various dates between December 15, 1939, and April 23, 1940, because of their membership in and activities on behalf of the Union. The Trial Examiner' found that all nine employees were discriminatorily released, and the respondent takes exception thereto. The nine employees whose cases are treated below were among the Union's most active adherents, and the majority of them were union officers or committeemen. Only two of the seven original officers of the Union were retained as employees by the respondent. One of the two retained resigned his union office early in the Union's existence, and neither of them appears to have paid union dues or to have been active in the Union after September 1939. Thus the Union's leaders and most emphatic advocates were eliminated from the respondent's employ. Considerable evidence was offered at the he as to whether or not the respondent followed principles of seniority in laying off employees. The Trial Examiner found the evidence insufficient to establish that the respondent adhered strictly to seniority principles in making lay-offs but found that the respondent did consider length of service along with other factors such as ability and versatility. We concur in those findings of the Trial Examiner. We turn now to a consideration of the nine lay-offs or discharges, in chronological order. The Sloan Brothers S. E. Sloan was first employed by the respondent in 1931. He worked for a short period of time, quit, and returned in 1933. He continued to work for the respondent from 1933 until he was laid off on December 15, 1939. At the time he was laid off he held the job of carpenter foreman. During the period from 1933 to 1939 he performed a variety of tasks, among others, running a crew on a concrete mixer, painting, carloading, serving as classifier at the flotation plant, and doing carpentry. The major portion of his time was devoted to painting and carpentry. When he commenced work- ing in 1933, his rate of pay was 45 cents an hour; at the time he was laid off it was 60 cents an hour. He had been carpenter foreman 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for about a year before his lay-off and had done carpentry before coming to work for the respondent. S. E. Sloan joined the Union about April 12, 1939, solicited mem- bers for it thereafter, attended the May 27 meeting which we have found was kept under surveillance by the respondent, and was a member of the contract committee which had several conferences with Mead during 1939. About the first of December 1939, shortly before he was laid off, S. E. Sloan was elected chairman of the Union. W. T. Sloan, brother of S. E. Sloan, was first, employed by the respondent in about September 1933, and with the exception of short lay-offs, remained in the respondent's employ continuously until his alleged discriminatory lay-off on December 15, 1939. During that period he performed various jobs, among others, those of motorman, oiler at the flotation plant, town watchman, painter, and carpenter. At the time of his lay-off he was earning 50 cents an hour as a carpenter under his brother S. E. Sloan. W. T. Sloan joined the Union early in its membership campaign, being the eighth man to sign up, attended the meeting of May 27 as well as almost all the other meetings of the Union, and assisted Odom, Alderman, S."E. Sloan, Sapp, and others in soliciting their fellow employees to join the Union. Sapp testified without contradiction, and we find, that the em- ployees who were most active on the Union's behalf between the June 24 lay-off and December 15 were himself, the two Sloan broth- ers, J. Al. Hutchins, and G. W. Howell, two other charging employees named in the complaint. According to S. E. Sloan's testimony, sometime in August 1939 he had a conversation with Wooten, his immediate superior, in which Wooten asked him, "How are you boys coining oil? I understand you are nearly 100 per cent organized." When Sloan told him that he thought that about 95 per cent of the employees had joined the Union, Wooten replied, "Well, I thought once you boys were going to put it. over, but now I don't believe you will." Wooten denied having made the latter statement but, like the Trial Examiner, we do not credit his denial. According to Sloan's further testimony, his next conversation with Wooten took place on or about November 1. At that time Wooten told Sloan that there was going to be reduction in force but that he had discussed the matter with Mead that morning and had it "all fixed" with Mead for the retention of Sloan and his brother. During the course of this conversation Wooten stated, "This thing is getting in a hell of a predicament around here. I can't tell yet just what is going to happen." Sloan reminded Wooten that he had stated that he had everything "fixed up," and Wooten reaffirmed his declaration to that effect. Sloan AMERICAN CYANAMID CO. 591 -thanked him for what he had done, and Wooten replied, "Please don't say anything about this." Wooten admitted that in November he spoke to Sloan regarding his conversation with Mead, the im- pending staff reduction, and the probable retention of Sloan, and his brother, but he denied having made the other statements attributed to him. We do not credit his denials, however, and find, as did the 'Trial Examiner, that the above conversation took place substantially as related by Sloan. S. K Sloan testified further that in the latter part of November he had another conversation with Wooten under the circumstances described in his testimony set out below : And he [Wooten] blew his horn when he cane up to my house and my wife answered the door, and she came back and told me that it was Mr. Wooten. So I stopped my eating and went out to the car. He asked me and says, "How is everything going?", and I told him, "0. K., solar as I knew." And he says, "Well, you better kinder watch yourself." And I says, "What do you mean, watch myself?" And he says, "You know ,how people talk in a little place like this" * * * And he says, "The old man there is going to have a lay off now, and the old man, somebody has told him something, or somehow, and he has got you and your brother kinder spotted." And I says, "What do you mean, `spotted'?", and he says, "Well, you just watch yourself and be particular," he said. I told him that I didn't have anything to watch and I asked him was my ' work O. K., if my work was all right, and he said that my work was a hundred per cent, and I told him that I tried to live like a citizen of the town, and that I didn't have nothing else to watch. And we talked about the job a little bit, and then he went on. Wooten testified that he had a conversation with S. E. Sloan at the time and on the occasion above mentioned but denied making the above statements in the course of it. He admitted telling S. E. Sloan that he had heard that Sloan was using some very .indiscreet. talk and that unless he stopped it he would lose his job or be laid off if Mead "got ahold of it." Wooten admitted further that the "indiscreet" talk referred indirectly to the Union. We find, as did the Trial Examiner, that Wooten made the above statements in sub- stance as testified to by Sloan. On or about December 1 Wooten told S. E. Sloan that he and his brother would be laid off on December 15 and that Mead was going to retain two other employees in lieu of them, N. G. Seng, paint 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foreman, and F. L. Fails,13 Seng's son-in-law. S. E. Sloan pro- tested that Seng was not a carpenter and Wooten replied, "Well, he says he is, and if he is not, we will fire him and get another one ill." He did not suggest that S. E. Sloan would be recalled if Seng proved' unsatisfactory. According to S. E. Sloan's testimony, as partially corroborated by W. T. Sloan, who was present during a portion of the conversation, substantially the following statements were made during the conversation : Wooten stated, "Well, I hate to tell you, but the old man has done what I told you the other day, he has laid you [S. E. Sloan] and your brother both off." Wooten suggested that S. E. Sloan consult Mead about the matter and said, "It will pay you to think things over." Sloan told him that he had nothing to think over, that he had joined the Union of his own free will, that he intended to stay with it "job or no job," and that if that was the attitude of Wooten or Mead they could pay him off "right then" and not wait until December 15. Wooten replied, "Well, maybe I should not have mentioned it to you," adding that he was sorry that it had happened but that he had a job to perform and had to carry out orders. Wooten denied making the above statements but under all the circumstances, we concur in the Trial Examiner's finding that Wooten made substantially the statements attributed to him by the Sloan brothers. The respondent alleges that because of diminution in work it was necessary to reduce its carpentry force, and this claim is not con- tradicted in the record. The 'discrimination, if any, against the Sloan brothers lies, therefore, in the fact that the respondent selected them for lay-off instead of Seng and Fails. The respondent con- tends that it selected the two Sloans after comparing their capa- bilities with those of Fails and of Seng. Wooten testified that be- fore the lay-off he had a talk with Mead about retaining the Sloans, that Mead had tentatively agreed to keep them, but that Mead had changed his mind and indicated that he would rather keep Seng, stating, "I wonder if Seng is a carpenter? I understand he does carpenter work,-I understand that his father was a contractor." Mead asked Wooten- to find out whether Seng could do carpenter work. Wooten testified that he made an investigation to determine that fact. It was perfunctory and consisted simply of asking Seng whether he had done carpenter work before; Seng said that he could do any carpenter work at Brewster. Wooten reported this to Mead, who told Wooten, "Well, that settles it; we will keep Seng and Fails on the carpentry crew." Mead testified that both Seng and S. E. Sloan "did their work very acceptably," that his knowledge of the quality of their work ^ Also referred to in the record as Fail AMERICAN CYANAMID Co. 593 did not seve as, a factor in his selection between them, but that their "capabilities" were the deciding factor. In defense of its retention of Seng in preference to S. E. Sloan, the respondent urges that Seng had served as paint foreman longer than Sloan had been' carpenter foreman, that Seng, an older man, had long and varied experience which Sloan had not had, and that Seng was a fairly good mason and plasterer. Seng's prior experience had been secured in the capacity of helper to his contractor father, and he had not done any carpentry work for the respondent theretofore. S. E. Sloan, on the other hand, had been the respondent's carpenter foreman for a year prior to his lay-off, had had about 12 years experience around construction work including his service with the respondent, was an experienced carpenter, floor sander, and painter, and had done extensive painting work for 3 or 4 years in the respondent's employ. In our opinion the respondent failed to demonstrate at the hearing that it knew Seng to be more capable than S. E. Sloan. , As the Trial Examiner stated, in accepting Seng's statement that he could do carpenter work as against the known and proven capabilities of S. E. Sloan, Mead was either making an error of business judgment or had other motives for retaining Seng in lieu of Sloan. The Trial Examiner found it difficult to believe that Mead could honestly have made such an error in judgment. That the respondent's re- tention of Seng in preference to S. E. Sloan was not the result of any such error is indicated by Wooten's above statements to the Sloan brothers, by the fact that S. E. Sloan had been in the respond- ent's employ approximately 3 years longer than Seng, and by the fact that Mead's preference for Seng if he could perform carpenter work arose only after S. E., Sloan was elected chairman of the Union. As revealed by Wooten's testimony above, Mead's previous tentative plan had been to retain both the Sloan brothers. Although Mead and Wooten denied knowledge of Sloan's election to a union office, such denial is not convincing upon this record. Furthermore, in view of the respondent's admitted knowledge that S. E. Sloan served upon the Union's contract committee, it is significant to note that at the time of the lay-off in question, Seng was not a member of the Union. Although he had apparently been active in the Union for a short period early in its existence, after the June 1939 lay-offs Seng told Sapp that he was quitting the Union for fear of losing his job. Seng paid only one month's union dues, attended no union meetings after July 1939, and became affirmatively hostile' to the Union. Upon all the evidence we agree with the Trial Examiner that the respondent's real motive for selecting S. E. Sloan for lay-off instead of Seng is plainly , shown in the respondent's animus against the 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and in its desire to remove some of the militant union leaders from the presence of its other employees. The respondent's explanation of its retention of Fails in lieu of W. T. Sloan was that "the feeling between the Sengs and the Sloans" was not "very good," that the Sloan brothers and Seng and Fails were considered good working pairs, respectively, and that, in sub- stance, the latter were considered a better working pair than Seng and WI. T. Sloan. But, by its own admission, the respondent would have retained W. T. Sloan had it not laid off his brother S. E, Sloan, which lay-off we have already found to be discriminatory. In addition, the record shows that Fails, Seng's son-in-law, had not worked for the respondent as a carpenter and that he had about 5 years less seniority than W. T. Sloan. The. latter had done both painting and carpentry for the respondent, was a competent work- man, and was recognized by the respondent's officials as such. Wooten,gave him a letter of recommendation and according to W. T. Sloan's testimony, told him on'or about February 20, 1940, "I am going to take care of you just as soon as things quiet down around here, and this here all blows over." Although Wooten contradicted the latter testimony, we find, as did the Trial Examiner, that Wooten made the statement attributed to him. As the Trial Examiner stated, apart from the fact that W. T. Sloan's lay-off was a conse- quence of the respondent's discrimination against his brother, it appears affirmatively from all the evidence that the motive for laying off W. T. Sloan was also discriminatory, and we so find. H. L. Sapp H. L. Sapp was first employed by the respondent in 1924. He worked until 1927, when he quit. In September 1928 he resumed his employment with the respondent and thereafter, except for a short lay-off in 1935, worked for it continuously until he was laid off on December 15, 1939. At the time of his lay-off Sapp performed pipe fitting, plumbing, and general repair work, and also worked on the dragline, machinery, and pumps. His departmental head was Frank Smith, master mechanic and foreman of the machine shop, who occasionally delegated Sapp to make inspections of equipment for which Smith was responsible. When Sapp performed construction work outside the shop, he worked under-the supervision of S. I. Wooten, construction superintendent. The record demonstrates affirmatively and the respondent admits that Sapp was a competent worker. Frank Smith told C. A. Nettles, ,another employee named in the complaint, that Sapp was one of the best men on his job. In July 1939 the respondent gave its employees AMERICAN CYANAMID CO. 595 a general wage increase of approximately 15 per cent , but Sapp at that time received a 15 cent or approximately 25 per cent raise, from 621/2 to 771/ cents an hour.I Frank Smith told Sapp at the time that he had received the largest increase of any employee. Sapp was unquestionably one of the outstanding leaders in the Union. He was a charter member, at the meeting held on May 27 was elected a guard,` and later was also designated chairman of the Union's contract, grievance, and housing committees. As committee chairman he conferred with Mead several times prior to his lay-off. There is no dispute that Mead knew that Sapp belonged to, and was active on behalf of, the Union. Subsequent to his discharge, Sapp was the only witness for the Union at the hearing conducted in the representation proceeding on December 20, 1939,1 acted as a union observer with S. E. Sloan at the election held therein by the Regional Director on February 23, 1940, and served as a union representative at the hearing in this proceeding. According to the testimony of C. A. Nettles, about 2 or 3 weeks before Sapp was laid off, Wooten told Nettles to speak to Sapp to see if he would not drop his union activity. Nettles refused to do so, whereupon Wooten replied, "He is a mighty good mein, and we sure hate to see him go, but he is going to be let go if he doesn't drop this union now." Although Wooten denied making this statement, his denial was not credited by the Trial Examiner, and we find that he made the statement substantially as set out above. Frank Smith and Sapp were good friends. The testimony shows that Sapp did some of Smith's work, that Smith was grateful to Sapp for it, and that he "went to bat" for Sapp in getting him the,wage increase mentioned above. Although Smith denied it, the credible testimony of C. A. Nettles shows, and we find, as did the Trial Examiner, that a few days before Sapp was laid off, Smith told Nettles that he would resign his job as master mechanic before he would lay off either Sapp or J. M. Hutchins, another employee named in the complaint. If the respondent had a valid reason for selecting Sapp for lay-off, it appears unlikely that, Smith would have expressed an intention to take such drastic; action in protest thereof. As the Trial Examiner stated, from Smith's conduct the inference is not unreasonable that, so far as his judgment was concerned (and as head of the machine shop lie was in a position to form a sound one) there was no valid reason for terminating Sapp's employment. On or about December 12, P. T. Duprey, newly appointed master mechanic, advised Sapp that lie was assuming supervision of the machine shop , that he did not need pipe fitters or plumbers in' the "See footnote 3, sups a. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD village, and that Sapp would be laid off on December 15. Sapp's employment was severed on the latter date. In 1939 and 1940, because of increases in its inventory, the respond- ent effected substantial staff reductions in production and related departments. The respondent contends that in December 1939, it curtailed machine-shop expenses by approximately 25 per cent and that Sapp was released pursuant to, that retrenchment. Sapp was the only regular plumber and pipe fitter employed in the shop. The respondent contends that it selected Sapp, for lay-off because his services could be spared more easily than those of other shop employees without reducing the efficiency of the shop. The reasons advanced in support of that contention were that since no new buildings were being constructed no new plumbing installation was contemplated, that pipe fitting had been largely replaced by electric welding, and that plumbing and pipe-fitting work as such "was inconsiderable." The record does not bear out that reasoning. Regardless of the absence of new construction work,15 it does not appear that Sapp's plumbing work ever consisted altogether or largely of installation of new equipment. Moreover, an exhibit in- troduced into evidence by the respondent demonstrates that plumb- ing maintenance work continued to be necessary after the lay-off, and that from January through April 1940 more time was spent at such work than was spent therein by Sapp and his helper during the comparable period in 1939.16 The entire elimination of plumbing maintenance could not have been a likely prospect since the respond- ent's houses continued to be occupied by almost the same number of families as had theretofore cccupied them. There are more than 200 such dwellings in Brewster and approximately 700 persons reside in them. Although the respondent had installed electric welding ma- chines with which employees performed tasks formerly done by pipe fitting, this occurred long before 1939 and as in the case of plumbing, the record contains no evidence that there was any sudden decline in pipe-fitting work just before the December 15 lay-off. Moreover, for several years prior to his lay-off Sapp had spent only a portion of his time, about 50 per cent or less, in pipe-fitting and plumbing work and he was qualified to perform and had per- formed a variety of other jobs for the respondent. His inspection 15 The record indicates that some new construction was contemplated but does not reveal whether it was ever begun or entailed plumbing or pipe-fitting work 16 The work in 1940 was done by various shop employees most of whom received lower wages than Sapp had received It is notable, however, that the respondent did not offer Sapp the opportunity to continue that work at lower wages At the hearing Sapp testi- fied that between December 15 1939 , and March 6, 1940. lie would not have been willing to return to work at an apprentice's pay, but he testified that lie would have taken a wage reduction had other employees received proportionate reductions The record does not show that the respondent questioned Sapp in these regards prior to releasing him AiI'IERICAN CYANAMID CO. 597 work was apparently a responsible function, for Frank Smith, then master mechanic, delegated it only to Sapp and C. A. Nettles, who were among the highest paid employees in the shop.17 The record does not, show who performed this work after Sapp's lay-off and Nettles'. subsequent discharge, discussed below. Smith testified that Sapp was "a handyman all around," and C. A. Nettles, who was them-lead man at repair work, testified that Sapp was assigned to any kind of work except electric welding. According to Smith, efficient operation of the shop requires, in addition to electric welders. lathe operators and heavy workmen for outside repairs. It is true that Sapp was not a welder nor a finished lathe operator. He did some lathe work, however, and according to his uncontradicted testi- mony, could do the work of V. A. Manley, an apprentice lathe oper- ator who had much less seniority than Sapp and who told Sapp after the June 1939 lay-offs that he was going to quit the Union to safeguard his job The respondent did not lay off Manley but there- after promoted him to the position of a, full-fledged lathe operator and increased his wages from 50 cents to 771/2 cents per hour, Sapp's former wages. Sapp was also a competent repairman and had performed that type of work for the respondent. The respondent retained for repair work J. E. Newman, Sr., also its boilermaker, and Nettles, both of whom received higher wages than Sapp and could, according to Mead, perform any of Sapp's former work. Newman, like Manley, told Sapp after the June 1939 lay-offs that lie was going to quit the Union because he feared the loss of employment.18 Newman thereafter be- came hostile to the Union. In a union conference with Mead in December 1939 after Sapp's lay-off, Newman acted as a union com- mitteeman but, behaved- in a manner so hostile to the Union that J. L. Rhodes,. organizer for the Union, recommended his removal from the committee. Nettles was discharged in April 1940 because .of his union activities, as found below, and the record indicates that the respondent gave Newman preferential treatment in connection with that discharge.- The respondent did not recall Sapp to fill the vacancy created by Nettles' release, but in September 1940 hired one Galberaith, former mine superintendent who quit the respond- ent's employ in March 1940. In October 1940 Newman was trans- ferred to a foreman's job outside the shop. The respondent did not, prior to the hearing, recall Sapp or otherwise fill the shop vacancy 17 Smith testified that he l.as usually nearby when inspections were made and sometimes assisted therein _ '8 Newman did not deny making the above statement. He testified that he remained -a member of ,the Union until February 1D40 but did not i ecall whether he was in arrears in dues. 19 See the discussion of the discharge of the Nettles biotheis , infra. 4'532:7-42-Voc 37--39 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD created by that transfer. At the time of the hearing some of Sapp's repair work was being performed by Manley and by one Hagan, former mine repairman who had less seniority than Sapp. The union membership, if any, of Hagan does not appear and he was clearly not a union leader as was Sapp. Sapp was also capable of doing the work 'of one Mills, a non-union employee retained by the respondent. The latter, who was classified as an apprentice ma- chinist and apprentice welder, had been employed only 2 months when Sapp was laid off. At the hearing the respondent also claimed that Sapp's one-time excessive use of intoxicating liquor was one of its considerations in choosing him for lay-off. It was conceded by the respondent's counsel, however, -that for some time Sapp had not been drinking to excess. Counsel for the respondent stated frankly, "It is not claimed that his habit on that behalf was so bad during the immediate past before this December lay-off, but while it was perhaps somewhat remote at that time, was not immediate conduct, it did have some influence in making their selection, is my information." Sapp 'tes- tified without contradiction that for a period of 2 or 3 years he had not taken a drink of liquor. There is no credible evidence that either Mead or Smith, in discussing the men to be selected for lay-off on December 15, ever adverted to Sapp's conduct in this respect, nor was Sapp advised that his drinking had anything to do with his lay-off. As already stated, the respondent concedes that Sapp was - a competent worker. The Trial Examiner found that the alleged drinking habits of Sapp did not play a ,part in the decision to lay him off, but that, on the contrary, it was offered at the hearing for the first time in the nature of an afterthought. We concur in that finding. The employment history of the machine shop following Sapp's lay-off is relevant in impugning the respondent's defense regarding Sapp. Prior to'the reduction in staff on December 15, 1939, 15 white workers and 5 colored helpers were employed in the shop. On the latter date the respondent laid off Sapp, Hutchins, another employee named in the complaint and the respondent's only blacksmith, three apprentice electric welders,20 and one helper. In January 1940 it rehired the helper, rehired at the same job one of the apprentice welders who quit the Union after his lay-off, and rehired another of the three apprentices at a job outside the shop. In July 1910 the respondent rehired the third apprentice laid off, thus effecting -the reinstatement of all shop employees laid off in December 1939 21 20 The record is not clear as to whether another apprentice 'welder, J.'E. Newman, Jr., was also laid off. 21 Ibid AMERICAN CYANAMID CO. 599 except Sapp and Hutchins, who were among the Union's most active adherents. It appears that the respondent's -business improved in 1940, and on March 15, 1940, it put into effect a general 21/z ,cent per hour -wage increase. By October 16, 1940, the respondent employed in the shop one or two more white workers and three more colored helpers than before the December 1939 reduction and its bi-weekly pay roll in -October 1940- -aggregated in excess of $100 more than before the December 1939 reduction. Regardless of this restoration of force and increase, in expenses, neither Sapp nor Hutchins was recalled to work and Mead testified that he saw no prospect of needing either type of workmen in the immediate future. Thus, Wooten threatened that Sapp would be released if he did not quit the Union; Smith threatened to resign his position rather than lay off Sapp; the respondent has shown no sudden drop in or cessation of plumbing and pipe-fitting work; Sapp was qualified to perform other -kinds of work; some non-union -or anti-union employees were retained in preference to Sapp, the Union's outstanding advocate; some of those retained had less seniority than Sapp; and finally, the respondent did not recall or contemplate recalling Sapp despite the subsequent restoration of the staff reduction pursuant -to which Sapp was allegedly released. Upon all this evidence and the entire record we find, as did the Trial Examiner, that the respondent did not lay off Sapp for the reasons assigned by it, but discharged him and there- after failed to reinstate him because of his leadership in the Union and his activities on its behalf. J. M. Hutchins J. M. Hutchins worked for the respondent for 21 years. At the time of his lay-off on December 15, 1939, he was working in the machine shop as a blacksmith, his work consisting principally of making wrenches. He spent 50 to 60 percent of his time at that work; during the remainder of his working time he made screens, babbitted'L bearings, and operated drill presses. His pay at the time of his lay-off was 821/.9 cents an hour. He received his last raise of 10 cents an hour pursuant to a general wage increase on or about July 1, 1939. Hutchins was W. T. Sloan's father-in-law. He joined the Union on or about July 4, 1939, attended its meetings regularly, helped solicit members, and was one of its most outspoken advocates, fre- quently expressing leis favorable opinion concerning the Union and giving advice about the way in which to organize it to other employees near the local filling station where the men gathered in the evenings and on Sundays. C. L. Hooker, the respondent's garage foreman, who was the Union's first vice president but who soon resigned that office and was 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not active in the Union after September 1939, warned Hutchins about his union conversations at the filling station, advising him, ". .. if you will keep your mouth shut [about the Union ] you can stay here just as long as you want to." Hutchins -and Frank Smith, his superior , had been friends for about 14 years.- According to Hutchins ' testimony, he had a number of conversations with Smith during the summer, fall , and winter of 1939. At those times , Smith told him that the Union would get him into trouble, that he had better get out of it, and also that the employees were "damn fools" to be giving their money to the American Federa- tion of Labor so that the union officials in Washington , whom he referred to as "big Ikes" and "loafers," could ride around the country having a good time. Smith denied making these statements . He tes- tified on direct examination that Hutchins was a "great Townsend man" and that he would "kid" him by telling him : "You had better get out of that thing and save your money ." On cross-examination, he testified : "Just exactly what I said, I couldn't tell you, but I did tell him one time, `Dad, if you woulft just take that money you are sending up there and spend it yourself, you would have some fun with it."' Smith admitted that Hutchins was "very truthful," but that he "got himself twisted up is all." The Trial Examiner did not credit Smith's denials, and found that he made, in substance, the state- ments attributed to him by Hutchins. We concur in that finding. ,On or about December 5, 1939, Duprey told Hutchins that he was being "fired" because the respondent had to curtail expenses in the machine shop by approximately 25 per cent . Hutchins went to see Mead, who confirmed Duprey's statement . On December 15 Hutchins was laid off. At his request he was permitted to resume work between March 15 and April 15, 1940, in order to become eligible for social security benefits. As found in connection with Sapp 's lay-off, before December 15, 1939, Frank Smith threatened to resign his position as master me- chanic rather than lay off Hutchins or Sapp. Apparently Smith, then head of the shop, saw no valid reason for the lay-off of either. As in Sapp's case, the respondent contends that Hutchins was selected for lay-off pursuant to retrenchment in the shop because his services could be spared more easily than those of other shop em- ployees. In attempted explanation of why that should be true con- cerning its only blacksmith, the respondent asserts that blacksmith's. work was greatly reduced due to the substitution therefor of electric and acetylene welding. By the respondent 's own admission, however, this substitution had been commenced several years before , and there is no showing that there was any sharp decline in Hutchins ' work as a blacksmith immediately prior to December 15, 1939. On the other AMERICAN CYANAMID CO. 601 hand, Hutchins, who was in a good position to know and was a credi- ble witness, testified that there was plenty of work for him to do at the time of his lay-off, that he had done nothing but blacksmith's work during his one month's employment in 1940, that_he had been training two apprentices to do his work in case of emergency, and that they replaced him after April 15, 1940, when he finally left the re- spondent's employ. One of these apprentices was Franklin Rentz, a welder who told Sapp after the June 1939 lay-offs that he was going to resign from the Union for. fear of loss of employment.22 Although the respondent did not hire a blacksmith specifically to replace Hutchins, some blacksmith's work continued to be done after his lay- off, some by Newman, Sr., by Thompson, an employee who dropped out of the Union after paying his initiation fee and 2 months' dues, and by Galberaith, former mine superintendent who quit the respondent's employ in March 1940 and was rehired in the shop in September 1940. Hutchins' chief blacksmith's work had been fabricating wrenches, his skill at which had elicited many compliments. Sometime after his lay-off the respondent began to purchase wrenches instead of fabri- cating them, claiming that it now effects an economy thereby. The respondent does not show, however, and we are not convinced, that this would have been true before the release of Hutchins, the respond- ent's only employee skilled at wrench work.23 Furthermore, it is admittedly "quite the regular practice of the respondent, when making staff' reductions to transfer employees to other departments where places can be made for them, and this policy, was followed ^in the December 15, lay-off. But Hutchins, a loyal em- ployee of 20-odd years' service, was not offered a chance to work elsewhere, and the respondent made no showing that it could not have made a place for him somewhere in its organization had it so desired. Moreover, Mead testified on cross-examination that the major por- tion of work performed by Hutchins for some time before his lay-off was not blacksmith's work. Besides blacksmith's work Hutch- ins did babbitting and screen work. There was no evidence that work of this character had diminished immediately preceding the December 15 lay-off. Although conceding that the respondent may have been seeking, inter alia, to save money by this lay-off, the Trial Examiner found it significant that the respondent did not offer Hutchins a'chance to continue his babbitting and screen work at a lower wage. The respondent excepts to that finding on the stated as Rentz quit the respondent's employ sometime in April 1940 22For a time the respondent assigned this work to one Hausl, a welder and machinist hired in May 1940 allegedly to fill the vacancy left by Rentz's quitting, but Hausl, after. practice, was unable to acquire the skill necessary therefor. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ground that Hutchins was very old and unable to work any longer. We can give little weight to such reasoning, which appears to be offered by way of afterthought. Although Hutchins testified at the hearing that he was afraid he was too old for reinstatement to the respondent's employ, the respondent offered no evidence that Hutch- ins' age interfered with or impaired his work or in any way influenced his selection for lay-off. Finally, the respondent's defense regarding Hutchins is impugned by the fact, discussed above in connection with Sapp, that despite the restoration of force and increase in expenses in the machine shop by October 1940, the respondent did not recall Hutchins and did not anticipate doing so in the immediate future. Upon all the evidence, including Smith's warnings to Hutchins that the Union would cause him "trouble," we find, as did the Trial Examiner, that the respondent selected Hutchins for lay-off and thereafter failed to recall him because of his militant espousal of the Union rather than for the reasons, alleged by the respondent. The Blanton Brothers L. F. Blanton and W. E. Blanton, brothers, were employed by the respondent from April 15, 1937, to March 16, 1940, when they were discharged. At the time of their discharge, L. F. Blanton was employed as an oiler at the rate of 521/2 cents an hour, and W. E. Blanton was employed alternately as an oiler and tractor driver, earning 521/2 and 621/2 cents an hour, respectively, on the two jobs. They both joined the Union in May 1939, attended union meetings, and were active in soliciting members in the Union's behalf. L. F. Blanton was a member of the Union's contract committee and as such conferred with Mead. L. F. Blanton testified that in about the first week of January 1940, he had a discussion with Wooten concerning the possible out- come of the prospective Board election.24 According to Blanton, Wooten asked him how he thought the election would come out; Blanton replied "one hundred per cent for the union"; and Wooten answered, "Well, I will tell you, you, fellows had better be careful about this union business, because if you don't mind out, you are going to lose your jobs. Not only you, but there are a lot more good men here that are going to go on account of this union." According to Blanton's further testimony, Wooten added that he did not think that the Union was going to be successful. Blanton then told him that he was going to vote for the Union and that all the colored em- ployees in the respondent's Oak Ridge mine would also, because he 24 See footnote 3, supra. AMERICAN CYANAMID CO. 603, had been talking to them "very strongly" and they had promised to vote for the Union. Blanton also testified that at that point Wooten said, "Well, you can remember one thing, that you may, be sorry of this." Although Wooten denied having made the above statements, we find, as did the Trial Examiner, that he made them substantially as testified to by Blanton. About a week before the Board election of February 23, W. E. Blanton had a conversation with "Jap" Smith about the Union on company time and property. At that time the two men observed Quincy N. Nettles, an employee whose discriminatory discharge is discussed below, on the washer speaking to two colored employees. Smith thereupon stated to Blanton, according to the latter's testimony, "I bet I know what they are talking about." Blanton said that he-had no idea, whereupon, according to Blanton's further testimony, Smith replied, "I bet they, are talking about that union, and that very thing is going to get him run away from here, and that goes, for you too." After the Union failed to poll a majority in the election held on Feb- ruary 23, the two Blanton brothers were active among the respondent's colored employees in an effort to reenlist their support of the Union. On or about March 6 W. E. Blanton had a conversation with Smith during working hours in the presence of L. F. Blanton. At that time W. E. Blanton asked Smith when he could be returned to his regular job of carloading. Smith replied that he did not know but, that there would be some more lay-offs in a few days, supplementing that warning, according to Blanton, with the statement, ". . . if you will get out of the union and quit talking union to my negroes and get on the job, I will see that you get your job back." Blanton replied, "I can't give you any promises like that, I can't go against my obligation in the union." Smith denied making the above statements attributed to him by W. E. Blanton, but like the Trial Examiner, we do not credit his denials. We find that he made substantially the statements attributed to him above. L. F. Blanton had a conversation with Wooten about a week before his lay-off, near the filling station at Brewster. Also present at that time were his brother W. E. Blanton, W. T. Sloan, and J. B. Frier. According to their testimony and that of L. F. Blanton, the following occurred : Wooten asked L. F. Blanton if he still lived in a company house. Blanton, somewhat surprised, replied that he did. Wooten then asked him if he still wanted to work for the respondent. Blan- ton replied that he had no idea of quitting. Thereupon Wooten said that Mead had given him orders to lay off some men and stated, "There are lots of good men that have got to go. If you want to work on, now, I will make you a proposition. If you will resign your mem- bership from the committee and quit your work in behalf of the 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, you can stay on and work with the company." Blanton re- fused to do so. Wooten stated that he "hated" for "good men" to be laid off and expressed the fear that when he was assigned to supervise a construction job, the men he desired to select for the work "would be gone." Wooten said that both the Blanton brothers were good workers, especially L. F. Blanton; and told the latter, "Well, you are going to have to quit what you are doing now, then, if you intend to keep on working with the company, because Mr. Mead is not going to have no union here." Wooten admitted discussing with L. F. Blanton the possibility of placing him and his brother on contemplated new construction work, but denied making the above anti-union statements and threats attributed to him by the Blanton brothers, Sloan, and Frier. Upon the entire record, however, including the mutually cor- roborative character of the testimony of the latter, we agree with the Trial Examiner and find that Wooten made the statements and threats in substance as set forth above. On March 16, the day of their release, L. F. Blanton and W. E. Blanton went to the paymaster to get their pay. As they were coming out, they met Wooten. The latter asked L. F. Blanton if he had been in to see Mead. Blanton replied that he had not, that he had just been in to get his pay. According to the Blantons' testimony, Wooten said, in substance, "Well, have you considered our talk of the other day when we was at the filling station?" to which L. F. Blanton re- plied, "No, sir, there wasn't any considering to do. I told you what I was going to do there, and that was final." Wooten denied that he saw or spoke to the Blanton brothers that day but we find, as did the Trial Examiner, that they had the above described conversation. When L. F. Blanton received his wages from Michael Alderman, Jr., office manager, the latter said that Blanton was being laid off, not discharged, that he would be called back later, and that the reason for the lay-off was a decrease in work. Alderman told W. E. Blanton that there was nothing wrong with his or his brother's work and that they were "good hands." Alderman did not contradict the above. It is not disputed that at the time of his lay-off from his job as oiler, L. F. Blanton had greater seniority than three oilers who were not laid off, Freeman Durrance and Bill Norris, who were not members of-the Union, and Felton Turner,25 who was a union member but does not appear to have been a union committeemen as was L. F. Blanton or as active as he. W. E. Blanton testified without contradiction and we find that he had worked longer for the respondent than any of the following per- zs Turner and Norris were dragline oilers, whereas L. F. Blanton was a washer oiler. The latter had had some experience at dragline oiling as a fill-in, and it appears that oilers can be transferred without experience since the job does not require much skill. AMERICAN CYANAMID Co. 605 sons who performed work which he had done and which he could have continued to do at the time he was laid off: Durrance, Norris, Fennell, and Turner, oilers. Fennell's union membership or activities, if any, do not appear. Although W. E. Blanton was regularly classified as a carloader, at the time of his lay-off he was doing oiling and other work for which he was apparently qualified, and oiling does not appear to be skilled work requiring experience. The respondent contends that the Blanton brothers were laid off pursuant to one of the afore-mentioned staff reductions necessitated by increases in its inventory. The reduction made in March 1940 entailed only four lay-offs including those of the Blanton brothers. Within a month after that reduction the respondent's business appears to have improved, and crews which were abolished in March were restored in April and June 1940. Specifically, in April 1940, only about a month after the Blanton's release, the respondent hired two white employees, C. A. Rowell and E. M. Young,-on its washer crews at oiling and carloading work, and another, J. T. Adams, at pump and tractor work. Although the Blanton brothers were apparently quali- fied to perform that work, the respondent did not recall them therefor. Rowell, Adams, and Young, whose union membership, if any, does not appear, had been previously employed by the respondent. The record does not disclose Young's prior service but indicates that Rowell and-Adams had first-been employed more than a year later than the Blanton brothers. Rowell had been laid off because of the staff reduction in December 1939. The date of Adams' lay-off does not appear. Mead testified that he selected the Blanton brothers for lay-off as the respondent's "least desirable" employees, in that they had been convicted of several crimes, and testified further that they are in- eligible to be reinstated for the same reason. The Blanton brothers did not deny that they had been guilty of these crimes, all of which, it should be noted, occurred prior to their initial employment by the respondent. W. E. Blanton was convicted in 1929 of selling intoxicat- ing liquors and of "breaking and entering." 26 In 1931 he was con= victed of possessing and selling whiskey, and for being "drunk and parking on a highway." In 193$' he was charged with drunken driv- ing but not convicted thereof. L. F. Blanton was convicted of forgery in 1933, and served a 1-year sentence therefor. It was through Wooten that Mead first learned of the criminal records of the Blanton brothers. Wooten testified that the occasion for his investigating and reporting their crimes to Mead was as fol- lows:-In or about January 1940, he advised Mead that in the event 2e Wooten's report, mentioned below, listed the latter conviction as of 1929. W. D. Blanton testified that he was not convicted of that offense at that time but in 1932. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of any further lay-offs he was interested in retaining the Blanton brothers to work under him because he considered them good workers, particularly L. F. Blanton, whom he regarded as excellent at con- struction work.27 Mead responded favorably to his suggestion but indicated that he did not "know much" about the Blantons. Wooten thereupon said that he did not know anything "against them" ex- cept that an officer of Hillsborough County, Florida, had at one time arrested them on a "drinking" charge. Wooten testified that the afore-mentioned officer had told him, apparently over a year before January 1940, that the Blantons had been involved in other lawless- ness but that he had not inquired of the officer respecting those vio- lations. Mead then told Wooten to go to Tampa to investigate the other charges. Wooten testified that he did so and that during the first part of January 1940 he prepared a handwritten report which he gave to Mead shortly thereafter. After the Blantons were dis- charged, a typewritten report dated April 19 incorporating Wooten's handwritten notes was prepared. Upon all the evidence we find, as did the Trial Examiner, that the Blanton brothers were not discharged because of their past criminal conduct, as claimed by the respondent. In the first place, when W. E. Blanton was hired, he filled out an employment card and as a reference thereon gave the name of the deputy sheriff of Hills- borough County. That was assuredly a signal to the respondent to make an immediate investigation of Blanton's prior record. The respondent offered no evidence that it did so, however, or that it ever investigated the character of a worker when initially employing him. And it was not until the Union's campaign was in progress and the respondent had instituted a counter-campaign to oust the Union that the respondent felt impelled to inquire into the moral character of the Blantons, then employees of almost 3 years' stand- ing. It should be noted, moreover, that the said character inquiry allegedly resulted from Wooten's request in January 1940 to retain the Blanton brothers for a contemplated ;construction program- Since, according to Wooten's own testimony, no further lay-offs were anticipated in January, the Blantons' continued employment would normally have been taken for granted, and it therefore appears strange that at that time Wooten should have requested their reten- tion. Under all these circumstances, the respondent's investigation appears to have resulted from its desire to obtain information upon which a colorable reason for discharge could be premised. 211t should be noted that L. F. Blanton won five cash awards from the respondent for suggestions regarding improving the safety of working conditions on the respondent's premises. AMERICAN CYANAMID Co. 607 While the respondent allegedly deemed the past conduct of the Blantons of sufficient consequence to characterize them as undesirable, to select them for subsequent lay-off, and to rule them ineligible for reemployment, such conduct was not deemed serious enough to war- rant their discharge immediately upon the receipt of Wooten's re- port. Mead was unable at the hearing to explain that fact which also indicates that the respondent at no time attached any real signifi- cance to the long-past misdeeds of the Blantons. It should be further noted that the typewritten record of the Blantons' criminal past was not made until after they had been dis- charged. Although Wooten testified that he made a handwritten report sometime in January, his testimony, for the reasons already assigned, is entitled to little, if any, weight. Even if we assume that he was telling the truth in that regard, nevertheless, the respond- ent's entire conduct in making records concerning the Blantons indicates again that it did not regard the, moral character of its em- ployees as important. Mead testified that after the Board commenced to investigate the respondent's alleged unfair labor practices-and that was sometime in 1939-he kept records of facts pertaining to his employees and their employment status. Under those circum- stances, it seems reasonable to believe that if the past crimes of the Blantons were considered of some consequence, a permanent record thereof would have been transcribed promptly upon discovery. It should also be noted in this connection that at no time during the employment of the Blanton brothers did the respondent question them or in any way recall to them their previous offenses; that the respondent did not inform them that such offenses had occasioned their selection for lay-off; and that the respondent did not advise them that they were consequently ineligible for reemployment, as stated at the hearing, but, to the contrary, assured L. F. Blanton, through Office Manager Alderman, that he would be recalled to work later. It is undisputed that the Blantons while at Brewster had con- ducted themselves as law-abiding citizens of that community. In view of all of the above circumstances, the Trial Examiner found it logically impossible to accept the reason given by the respondent for the discharge of the Blanton brothers. We concur in that finding and upon the entire record, including the.anti-union statements and threats of Wooten and "Jap" Smith, find further that the respondent selected them for release and classified them as ineligible for rein- statement because of their membership and activities in the Union.28 28 Cf. Matter of Southern Steamship Company and National Maritime Union, etc., 23 NLR.B26 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Nettles Brothers C. Arthur Nettles was employed by the respondent from September 10, 1919, to April 15, 1940, when he was laid off with his brother Quincy. For a year prior to his lay-off, Arthur Nettles had been working as machine-shop foreman earning $1.021/2 an hour. Quincy N. Nettles had worked for the respondent from July 1923 to April 15, 1940. For 8 years prior to December 15, 1939, he was pit fore- man, earning $1.021/2 an hour; on that date, he was transferred to the position of washer foreman and was paid 671/2 cents an hour. Arthur Nettles was elected president of the Union on May 27, 1939, and held that office until August 1939, when-he resigned. He remained a member of the Union thereafter and continued to be active therein. Mead knew that he had been president of the Union. Quincy Nettles was a charter member of the Union and was elected its treasurer at the meeting held on May 27, 1939. When the employees applied for a union charter on May 16, 1939, Quincy Nettles' name was signed as president thereon without his knowledge. "Jap" Smith, his superintendent, knew about it, how- ever, and on an occasion between May 16 and 27, on company time and property, told Nettles that he should have his name removed from the charter because it would cause him trouble.29 As found above in connection with the Blanton brothers, about a week -before the Board election on February 23, Smith observed and com- mented upon a conversation between Quincy Nettles and two colored employees, stating, "I bet they are talking about that union, and that very thing is going to get him run away from here . . ." The Nettles brothers, like the Blanton brothers, were active in reenlisting negro support of the Union after the election, and that Smith attached a great deal of significance to such conduct has been shown above by the fact that he offered to have W. E. -Blanton returned to his regular job if he would discontinue such conduct and withdraw from the Union. The Nettles brothers were laid off on April 15, 1940, under the following circumstances: Arthur Nettles testified that 2 weeks prior thereto, Wooten told him that he was going to be "fired" and that he wanted him and his brother Quincy to see Mead. Arthur and Quincy Nettles went to see Mead, who presented them with a report by Wooten which stated, in part, that their sons, Dewey and Willard, had committed various thefts in Brewster. Mead stated that he was going to stop the thefts and that Quincy and Arthur Nettles would have to be laid off. In the above. report, reference was -made to 29 Smith testified that he never talked to Nettles regarding the Union but we nevertheless find, as did the Trial Examiner, that he spoke to Nettles as above --AMERICAN, CYANAMID CO. 609 thefts participated in by Ralph Seng , son of N. G. Seng, an employee referred to above in connection with the Sloan brothers . It also appears that the son of Newman, Sr ., whose name was not mentioned in the report, was implicated in the thefts. Quincy Nettles asked Mead what he was going to do about Newman and Seng. Mead re- plied, "I will take care of that later." According to the testimony of Arthur Nettles. "directly after the conference Quincy Nettles asked Wooten "why he didn't put the Seng boy in there, and the Newman boy," and Wooten replied, "why, every time that I would mention one of those boys' names, Mr. Mead would go up in the air and just cuss me out completely, and just raise all manner of hell . . . I could not get a word in hardly on them." , That testimony was cor- roborated by Quincy Nettles. Wooten denied making any such state- ments but, like'the Trial Examiner, we do not credit his denials. We find that he made in substance the above statements. Arthur and Quincy Nettles testified in substance that on April 16 Wooten told them that their lay-offs were "the damnedest thing that he had ever saw or heard 'of, that [they] both knew as well as he did that it wasn't the boys that got [their] jobs, it was the union got it." Wooten denied making the above statements. The Trial Examiner did not credit his denials nor do we. We find that Wooten made substantially the foregoing statements. Quincy Nettles testified that sometime between April 1 and April 15 "Jap" Smith told him that "it wasn't the boys' trouble that got [his] job, it was the union activity." Smith testified that he never talked to Nettles regarding the Union but we find, as did the Trial Examiner, that Smith made substantially the above statement. The evidence discloses that commencing about Christmas of 1939, Dewey and Willard Nettles, as well as Ralph Seng, the son of N. G. Seng, and J. E. Newman, Jr., the son of J. E Newnan, Sr., commit- ted or were implicated in the commission of various thefts in Brew- ster; that Wooten, who was also local sheriff, investigated and dis- covered certain facts concerning the thefts and spoke: to the Nettles brothers and their sons about then; as well as to the Sengs and New- mans ; and that the Nettles brothers made restitution for the money and other articles taken by their sons. Wooten made' a report to Mead concerning the thefts on or about April 1. Wooten's bias against the Union reflected itself in this report. He did not mention therein the complicity of the Newman boy in the thefts; he under- stated the case against Seng's boy ; and by the same token , on a com- parative basis, the over-emphasized the errors of the Nettles boys. In addition , the report is written . in such a manner as to indicate that the latter were in some way connected with , an illegal entrance 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made into a local building called the teaclierage, although Wooten admitted that he did not know that to be the fact. Although the Seng and Newman boys were implicated in the thefts, of which fact Mead was admittedly aware, their fathers were not reprimanded by Mead at any time. Newman, Sr., and N. G. Seng had dropped out of the Union before the Nettles brothers were dis- charged, and had actively opposed it preceding the election held on February 23. We have already noted Seng's preferential treatment in connection with the lay-off of the Sloan brothers and also New- man's anti-union conduct at a conference with Mead in December 1939. The fact that Meaci did not reprimand Newman and Seng at all for the conduct of their sons argues that conduct of children was not in fact held against their parents. Wooten testified that he warned the Nettles brothers that they would be discharged if the thefts did not stop. The latter denied that they had been so warned and Ave credit their testimony in that regard, as did the Trial Examiner. The respondent argues, however, that the sons of the Nettles brothers, had engaged in more misconduct than either the Newman or the Seng boy, but, like the Trial Examiner, we find it difficult to believe that the respondent refined its judgment with such nicety. If such a difference in quantity of misconduct actually caused the selection of Arthur and Quincy Nettles as against Seng and Newman, there appears to be no reason why the Nettles brothers were not so advised when they were discharged, particularly since at that time Quincy Nettles asked Mead what he intended to do about Seng and Newman. The Trial Examiner found that the respondent did not discharge C. Arthur Nettles and Quincy N. Nettles for the reasons assigned but because of their union membership and activity, and we find likewise. G. W. Howell The complaint alleges that the respondent terminated the em- ployment of G. W. Howell on or about April 23, 1940, because of his membership in, and activities on behalf of the Union. The respond- ent's answer denies this allegation and alleges affirmatively that at or about the time in question Howell had not worked for several days due to lack of work; that when the respondent did have work for him to perform and called him; he refused to come; and that thereafter the respondent did not call Howell back to work nor did Howell report for future work. Howell worked for the respondent at various jobs from about May 1926 until sometime in April 1940. He was a charter member and secretary of the Union and was active in the Union's behalf. AMERICAN CYANAMID Co. 611 Howell's principal work for 8 years prior to 1940 consisted of carloading on the washer crew. At the time of the staff reduction in March 1940, when the Blanton brothers and two other employees were acid off, Howell was transferred from the washer crew to a job in the dry or dust plant. During the latter part of March and the early part of April, decreased operations in the dust plant caused Howell and other employees there to receive only part time work which they shared in rotation. Sometime near the middle of April Howell asked Mead for more regular employment , but Mead refused this request, stating that if the work did not increase he would have to lay off more employees . Within 2 weeks thereafter Howell was summoned to the dust mill for 8 hours of work but refused to go, sending word to the respondent that he was not interested in such a small amount of work since he had applied for his unemploy- ment insurance . He had no further contact with the respondent and was taken off its pay roll on May 9, 1940. In April 1940 an increase in work outside the dust mill created three employment vacancies which Howell was apparently qualified to fill. The respondent rehired three former employees for those vacancies. It does not appear, however, that Howell applied for transfer to one of those jobs or that under any existing practice of the respondent he was entitled to be offered such positions before former employees were reinstated thereto. While we entertain doubt as to the respondent 's good faith in its treatment of Howell, we are not convinced, upon the entire record, that the respondent transferred Howell to the dust plant, gave him little work there, failed to transfer him from the dust plant, or other- wise discriminated in regard to his hire , tenure, terms , or conditions .of employment , because of his union membership or activity. Concluding Findings Upon the entire record we find, as did the Trial Examiner, that the -respondent discriminated in regard to the hire and tenure of em- ployment of S. E. Sloan , W. T. Sloan, H. L. Sapp, and J. M. Hutchins ,on December 15, 1939; of L. F. Blanton and W . E. Blanton on March 16, 1940; and of Quincy N. Nettles and C. Arthur Nettles on April 15, 1940, thereby discouraging membership in the Union, and by its aforesaid discrimination and other conduct, interfering with, re- straining, and coercing its employees in the exercise of rights guar- anteed in Section 7 of the Act. We find that the respondent has not discriminated in regard to the hire or tenure of employment of G. W. Howell. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to' lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair. labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. The reinstatement of the eight above-named employees shall be effected, in the following manner : All employees hired during or after the discharges or the lay-off s here in question shall be dismissed, if necessary to provide employment for those to be offered reinstate- ment. If, thereupon, by reason of a reduction in force, there is not sufficient employment immediately available for the remaining em- ployees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work. We shall order the respondent to make whole the above-named employees for any loss of pay they have suffered by reason of the discrimination against them, by payment to each of a sum equal to the amount which he would normally have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement-or placement upon the preferential list in accordance with the method set forth above, less his net earnings 31 if any, during said period. - 81 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- AMERICAN CYANAMID CO. 613 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CoNCLusIONs of LAW 1. United'Phosphate Workers Union No. 22036, affiliated with the American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. 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. 3. By discriminating in regard to the hire and tenure of employ- ment of S. E. Sloan, W. T. Sloan, H. L. Sapp, J. M. Hutchins, L. F. Blanton, W. E. Blanton, Quincy N. Nettles, and C. Arthur Nettles, thereby discouraging membership in a labor organization, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. ,4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within, the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not discriminated in regard to the hire and tenure of employment, of G. W. Howell, within the meaning 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, American Cyanamid Company, Brewster, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Phosphate Workers Union No. 22036, affiliated with the American Federation of Labor, or any other labor organization of its employees; by transferring, discharging, laying off, or failing 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 term or condition of their employment, because of their membership or activity in United where than for the respondent , which would not have been incurred but for the discrimina- tion against him and the consequent necessity for 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 1590, 8 N. L R ' B 440 Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corpo,ation v. N. L R. B , 311 U. S 7 4 3 3 2 5 7-4 2-v-o r.. 3 7--4 0 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Phosphate Workers Union No. 22036, affiliated with the American Federation of Labor, or any other labor organization of its employees,; We have found that the respondent discrm-mmated in regard to the hire and tenure of employnlent,of S. E. Sloan, W. T. Sloan, H. L. Sapp, J. Al. Hutchins, L. F. Blanton, 117. E. Blanton, Quincy N. Nettles, and C. Arthur Nettles. The respondent contends that H. L. Sapp and the Sloan brothers have obtained other regular and substantially equiva- lent employment and should not, therefore, be offered reinstatement. The three employees testified, however, that they desired reinstatement to their former jobs with the respondent. Even assuming that they or the other five employees discriminated against had secured substan- tially equivalent employment, we find, nevertheless, that in order to effectuate the policies of the Act, it is necessary to, and accordingly we shall, order that the respondent 'offer to all eight employees imme- diate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges.3° (b) In any other manner interfering With, restraining, or coei cmg its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purposes of collective bargaining and other mutual aid or protection, as guaranteed in Section 7 of the National Labor Rela- tions Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: 30 Matter of Ford Motor Conipany and lute, notional Union, etc, 31 N L R B, No 170; Matter of Weirton Steel Company and Steel [Porkers O,gani n ag Comimettee, 32 N L R. B., No. 179. The Trial Examiner recommended that reinstatement be offeied to all the above-named employees . The respondent contends that that iecommenchution is erroneous specifically in cegaid to several of the employees , as follows : The respondent urges that Hutchins should not be offered iemstatement because of his own testimony that he was 74 years old and 'aas afraid that he was too old to return to his job. We find no merit in this contention since Hutchins likewise testified that he would like to be reinstated and since there is no evidence in the ieco,d that his age interfered with his work prior to his lay-oft or will interfere therewith upon reinstatement. The respondent contends further that it should not he cequued to offer reinstatement to the Blanton brothers in view of their criminal iecoi d, We ha% e seen that the misdeeds of the Blantons occurred pi ioi to then employment by the respondent , that the two men were law-abiding during their employment by the respondent , and that they were not dis- charged because of their past records. Upon all the evidence, 'ae find that their long-past misconduct does not render the Blantons unsuitable for reemployment by the respondent Cf Matter of Southern Steamship Company and National Mmutime Union, etc , 23 N L. R B 26. The respondent urges finally that it should not be requued to offer the Nettles brothers reinstatement in view of the misconduct of then sons. This contention is clearly without merit in view of our findings that such misconduct was not the actual reason for their dis- charge and that the respondent retained othci employees whose sons were implicated in like offenses AMERICAN CYA11AMID CO. 615 (a) Offer to S. E. Sloan, W. T. Sloan, H. L. Sapp, J. M. Hutchins, L. F. Blanton, W. E. Blanton, Quincy N. Nettles, and C. Arthur Nettles immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority and other rights-and privileges, irr-tlie,^na.nuer set forth above in'the section entitled "The remedy"; (b) Make whole the said S. E. Sloan; W. T. Sloan, H. L. Sapp, J. M. Hutchins, L. F. Blanton, W. E. Blanton, Quincy N. Nettles, and C. Arthur Nettles for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of then of a suin of money equal to that which he would normally have earned as wages during the period from the date of such discrimination against him to the date of the offer of reinstate- ment or placement on a prgferential list in the manner set forth above in the section entitled "The remedy," less his net earnings,32 if any, during said period; (c) Immediately post in conspicuous places throughout its plant and mines at Brewster, Florida, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices 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) and (b) of this Order; and (3) that the respondent's employees are free to become or remain members of United Phosphate Workers Union No. 22036, affiliated with the Ameri- can Federation of Labor, ai}d that the respondent will not discriminate against any employee because of membership or activity in that organization ; (d) Notify the Regional Director for the Fifteenth Region in writing within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT Is FURTxr:R ORDERED that the complaint, in so far as it alleges that the respondent discriminated in regard to the hire and tenure of em- ployment of G. W. Howell, be, and it hereby is, dismissed. Mn. GEnARD D. REIri,Y took no part in the consideration of the above Decision and Order. 12 See footnote 31, supra.