Acme-Evans Co.

National Labor Relations Board - Board Decisions

May 29, 1940

24 N.L.R.B. 71 (N.L.R.B. 1940)

In the Matter of ACME-EVANS COMPANY and FEDERAL LABOR UNION
No. 21873, AFFILIATED WITH THE A. F. OF L.
In the Matter of ACME-EVANS COMPANY and INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS & CHAUFFEURS , STABLEMEN AND HELPERS
LOCAL UNION 135, AFFILIATED WITH THE A. F. OF L.
In the Matter of ACME-EVANS COMPANY and INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS & CHAUFFEURS , STABLEMEN -AND HELPERS LOCAL
UNION 135, AFFILIATED WITH THE A. F. OF L.
Cases Nos. C-1438, C-1439, and R-1368, respectively.-Decided
May 29, 1940
Flour Milling Industry-Interference , Restraint , andCoercion:,,ingniring and
causing inquiries to, be made concerning ; union activities ; rewarding '-disclosure
'by an employee of information about union activities ; surveillance ; anti-union
-statement ; prohibition on personal activities designed solely to curb union
activities-Discrimvinatory Discharges : for union membership and activity ;
-charges of , as to three employees , sustained-Strike : caused by discriminatory
-discharges-Discrimination in Reinstatement of Strikers : charges of , as to 11
employees , sustained ; refusal by respondent to displace or shift to other posi-
tions new or younger employees hired in positions of strikers upon application
of strikers held to constitute discrimination ; independent evidence of discrimi-
nation in employment of strikers in inferior positions as new employees without
-seniority or other rights-Discrhainatory Refusals to Reinstate and/or Discharges
of Strikers : charges of , sustained as to 11 employees , dismissed as to one em-
ployee-Unit - Appropriate for Collective Bargaining.: truck drivers , exclusive of
production and maintenance employees , supervisory officials and clerical help-
Representative : proof of choice : seven of nine truck drivers employed by re-
spondent members of union-Collective Bargaining : refusal to negotiate with
union ; defense of doubt as to the appropriate unit, the designation of Team-
sters, and the eligibility of striking employees to be included in unit rejected,
where alleged doubt not real or reasonable ; defense of clean hands rejected;
ordered to bargain collectively with union as exclusive representative-Rein-
statement Ordered : of employees discriminated against and striking employees,
to former or substantially equivalent positions ; preferential list for those for
whom employment not immediately available ; convictions for minor offenses
and participation in altercations growing out of strike not grounds for refusal
-of-Back Pay : awarded ( 1) to employees discriminated , against from date of
discrimination ; ( 2) to striking employees who did not apply for reinstatement
or not fully reinstated , from 5 days after date of Board's Order-Evidence: of-
fered to prove an alleged violation by striking employees of Sherman Anti-Trust
Act and State laws, in absence of prosecutions or convictions, held properly
,excluded by Trial Examiner-Investigation of Representatives : petition for,
dismissed in view of order to bargain.
24 N. L . R. B., No. 2.
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72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Walter B. Chel f, for the Board.
Messrs. Paul Y. Davis, Kurt F. Pantzer, and Gustav H. Dongus, of
Indianapolis, Ind., for the respondent.
Weiss, Seligman ct Born, by Messrs. Jacob Weiss and Ezra Weiss,
of Indianapolis, Ind., for the Teamsters and the Federal.
Miss Margaret Holmes, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On January 17, 1939, Federal Labor Union No. 21873, affiliated
with the A. F. of L.,' herein called the Federal, filed with Robert H.
Cowdrill, Regional Director for the Eleventh Region (Indianapolis,
Indiana) a charge, and on March 18, 1939, an amended charge, alleg-
ing that Acme-Evans Company, Indianapolis, Indiana, herein called
the respondent, had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On January 17, 1939, Interna-
tional Brotherhood of Teamsters & Chauffeurs, Stablemen and Help-
ers Local Union 135, affiliated with the A. F. of L., herein called the
Teamsters, filed with the Regional Director a charge, and on March 2
and March 25, 1939, amended charges, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the Act. On March 2, 1939, the Teamsters
filed with the Regional Director a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of the respondent, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the Act. On
March 20, 1939, the National Labor Relations Board, herein called
the Board, acting pursuant to Article II, Section 37 (b), of National
Labor Relations- Board Rules and Regulations-Series 1, as amended,
ordered that the three cases be consolidated for the purpose of hearing.
Upon the above charges the Board, by the Regional Director, issued
its complaint, dated March 27, 1939, against the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
I The name under which the American Federation of Labor chartered the Federal appears
to be Flour and Grain Workers Union No. 21873.
ACME-EVANS COMPANY 73
(3), and (5) and Section 2 (6) and (7) of the Act. Copies of the
complaint, accompanied by notice of hearing, were duly served upon
the respondent, the Federal and the Teamsters.
The complaint, as amended at the hearing, alleged in substance
(1) that the respondent discharged Lowell Chastain on January 8,
1939, and thereafter refused to reinstate him, because he joined and
:assisted the Federal; (2) that the respondent discharged Ralph Money-
.maker and James Nall on January 9, 1939, and thereafter refused to
reinstate them, because they joined and assisted the Teamsters; (3)
that as a result of the above acts the Federal and the Teamsters went
-on strike on January 12, 1939; (4) that the respondent refused to
reinstate upon application and thereby terminated the employment
of Dorothy Lewellen, Robert Graphman, Robert White, Charles W.
Bainake, Vern Beaver, Marlin Hargis, and Frank L. Traux, because
they joined and assisted the Federal and engaged in the strike; (5)
'that on or about March 11, 1939, the respondent discharged and there-
after refused to reinstate, Clovis Faulk, Clarence Peters, Ruel Faulk,
Charles Baker, and Harold Baker, because they joined and assist cd'
'the Teamsters and engaged in the strike; (6) that the respondent
discriminated against Oliver Lowden, Paul Miller, Ray Forehand,
Garold Leslie, Otis Stinnett, Clarence Short, Ted A. Williamson,
William Bewley, Albert Wollenweber, John Judson, and Harry Ludy,
by employing them upon application for reinstatement as new em-
ployees, thereby depriving them of all rights enjoyed by them prior to
the strike, and by furnishing them with inferior and less desirable
duties and salaries, because they joined and assisted the Federal and
engaged in the strike; (7) that the respondent, between December 1,
1938, and the date of the complaint, urged, persuaded, and warned its
employees to refrain from becoming or remaining members of the
Federal or the Teamsters and kept under surveillance the meetings
and meeting places of the Teamsters; and (8) that the respondent on
or about February 10, 1939, and at all other times refused to bargain
with the Teamsters, although the Teamsters at all such times was the
duly accredited representative of a majority of the respondent's
employees in an appropriate unit.
On April 4, 1939, the respondent filed an answer in which it denied
that it had engaged in or was engaging in the alleged unfair labor
practices. On April 27 and May 2, 1939, the respondent amended its
answer to set forth specific defenses to the unfair labor practices alleged
in the complaint. The amended answers also pleaded as a defense
to the unfair labor practices alleged, that the Teamsters, the Federal,
the members, and officers thereof conspired to, and did, obstruct and
restrain the transportation of respondent's products in interstate
commerce, used and threatened violence, and aided and abetted the
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74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
use and threat of violence , against the respondent 's employees andi
property.
Pursuant to notice , a hearing was held at Indianapolis , Indiana,;
on various dates between April 10 and May 5, 1939, before Albert
Lohm, the Trial Examiner duly designated by the Board. The Board,
the respondent , the Teamsters , and the Federal were represented by
counsel and participated in the hearing. Full opportunity to be heard,.
to examine and cross -examine witnesses , and to introduce evidence
bearing upon the issues was afforded all parties.
During the hearing the Trial Examiner permitted counsel for the
Board to introduce evidence concerning the wages and hours'of the.
respondent's truck drivers . Although the respondent objected to the
introduction of this evidence on the ground that it was immaterial,
it joined with counsel for the Board in a motion, granted by the Trial
Examiner, that the Trial Examiner transmit a transcript of this evi-
dence to the Administrator of the Fair Labor Standards Act.
Although this evidence was not material to the issues in this proceed-
ing, the respondent was not prejudiced by its admission . The Trial
Examiner at no time instructed the reporter to transmit this evidence'
to the Administrator of the Fair Labor Standards Act. Moreover,,
in his Intermediate Report he reversed his ruling on the above motion.
His ruling denying such motion is hereby affirmed.
At the conclusion of the hearing, the respondent moved to dismiss;
the complaint - in Cases Nos. C-1438 and C-1439 on the ground that
the allegations were not supported by substantial evidence . The Trial
Examiner denied this motion in his Intermediate Report and his rul-
ing is hereby affirmed . The respondent also moved to dismiss the
petition in Case No. R-1368 on the grounds ( 1) that the Teamsters,
its officers and members , committed acts of violence against the re-
spondent 's employees and property and conspired to restrain re-
spondent's interstate shipments ; (2) that the Teamsters did not at any
time represent a majority of employees in an appropriate unit. The
Trial Examiner did not rule on this motion . We find no merit in
the grounds advanced by the respondent for dismissing the petition.
However, in view of our findings in Section VI below , and for the
reasons there stated, the petition in Case No. R-1368 will be dismissed.
. The respondent moved to quash the proceedings on the grounds
(1) that the Rules and Regulations of the Board, in so far as they
require the applications for subpoenas to specify "the nature of the
facts to be proved" by witnesses , are unconstitutional , and (2) that
the Trial Examiner was biased against it . The respondent's first
contention is without merit. The respondent 's second contention, as
elaborated in its brief , exceptions , and during the course of oral argu-
ment before . the Board , is based primarily on the assertion that the
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ACME-EVANS COMPANY 75;
Trial Examiner's rulings, his examination of witnesses, and his gen-
eral conduct of the hearing, revealed partiality toward counsel for
the Board and the Unions and hostility toward the respondent.2 An,
examination of the record fails to disclose the unequal treatment' of
which the respondent complains. The respondent also asserts that the-
Trial Examiner did not apply the Board's rules regarding the appli-
cation for subpoenas as to counsel for the Board and the unions and.
arbitrarily denied the respondent's applications for subpoenas. There
is nothing in the record to support the claim that the respondent was
improperly denied subpoenas. Four of the respondent's applications-
were denied by the Trial Examiner. These were for Lowell Chastain,
Hugh Gormley, Joseph Williams, and Bruce Travis, all of whom had.
previously testified as witnesses for the Board and had been fully-
cross-examined by the respondent concerning matters material to the'
issues in this case. The respondent in its application requested these
witnesses to produce the membership cards of the Teamsters for the,
years 1935-1938, and the membership cards of the Federal for the year
1938. This type of evidence had been properly ruled immaterial to the:
issues in the. case by the Trial Examiner when the respondent sought.
to elicit it on cross-examination of these and other witnesses. Apart,
from the respondent's request for the membership records of the'
Unions, the respondent did not indicate the nature of the evidence it
desired to adduce from these witnesses and it does not appear that
they would have testified on any matter not fully probed when they
first testified and were cross-examined at the hearing.3 We find that
the respondent was not prejudiced by the Trial Examiner's rulings
denying its applications for the above-described subpoenas. His,
rulings are hereby affirmed. We further find that the respondent was
accorded a full and fair hearing and that the record does not sustain
its charge that the Trial Examiner was biased against it. The Trial
Examiner's ruling denying the respondent's motion to quash the
proceedings on the grounds above set forth is hereby affirmed.
The respondent filed a motion that the Trial Examiner report evi-
dence concerning the alleged violation of the Federal Anti-Trust Act
2 Numerous other grounds were assigned by the respondent in support of its claim of
bias. The respondent claims (1) that the Trial Examiner did not read the respondent's
brief; (2) that without warrant he repeatedly accused respondent's counsel of improper
conduct; (3) that he interrupted the respondent's witnesses with antagonistic questions;
(4) that he deferred ruling on the admissibility of the respondent's exhibits to hamper
the respondent in the presentation of its case; and (5) that he failed to rule on certain
motions made by the respondent. These assertions find no support in the record. The
respondent also claims bias because the Trial Examiner made rulings during the hearing
adverse to it. This position is without merit. See National Labor Relations Board v.
Stackpole Carbon Company, 105 F. (2d) 167 (C. C. A. 3) cert. den. 60 S. Ct. 142;
Wilson & Company, Inc., v. National Labor Relations Board, 103 F. (2d) 243 (C. C. A. 8).
E One of these witnesses testified when recalled by the respondent for that purpose.
It does not appear that the others would not have voluntarily resumed the stand had the
respondent requested them to do so.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Department of Justice and a motion for a speedy determination
of the proceedings. The former motion was denied and the latter
motion was granted by the Trial Examiner in his Intermediate Re-
port. The Trial Examiner also granted motions by counsel for the
Board and the respondent to conform the pleadings to the proof.
These rulings are hereby affirmed.
During the course of the hearing, and in his Intermediate Report,
the Trial Examiner made numerous other rulings on motions and on
objections to the admission of evidence. Certain of these rulings are
discussed in Sections III and V below. We have reviewed the rulings
of the Trial Examiner and find that no prejudicial errors were com-
mitted. The rulings, except as hereinafter noted, are hereby affirmed.
On December 1, 1939, the Trial Examiner filed an Intermediate
Report, copies of which were duly served on all parties, finding that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(3), and (5) and Section 2 (6) and (7) of the Act, and recommending
that the respondent cease and desist therefrom and take certain affirm-
ative action, including reinstatement of employees with back pay,
to effectuate the policies of the Act. Exceptions to the Intermediate
Report were thereafter filed with the Board by the respondent.
On March 5, 1940, oral argument was had before the Board in
Washington, D. C. The respondent, the Teamsters, and the Federal
appeared and participated in the argument.
Upon the motion of counsel for the Teamsters and the Federal, the
Board agreed to consider briefs which had been filed with the Trial
Examiner in its determination of the issues herein. A similar request
by the respondent, contained in its exceptions to the Intermediate
Report, is hereby granted. All briefs have received consideration by
the Board. The Board has also considered the exceptions filed by the
respondent to the Intermediate Report of the Trial Examiner and,
except in so far as the exceptions are consistent with the findings of
fact, conclusions of law, and order set forth below, finds them to be
without merit. In its exceptions the respondent requested leave to
adduce additional evidence. Such evidence included all the respond-
ent's exhibits, matters embodied in offers of proof, and oral testi-
mony excluded by the Trial Examiner at the hearing. Certain ex-
hibits included in the respondent's request are admitted in Section
III below.4 The other evidence is irrelevant and immaterial to the
issues in this case. The request to adduce additional evidence, with
the exception of the exhibits admitted in Section III below, is hereby
denied.
4 These exhibits are numbered 110, 125 , 130, 106 , 131, 132 , and 31 to 69.
ACME-EVANS COMPANY 77
Upon the basis of the entire record, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Acme-Evans Company, an Indiana corporation with its principal
office and place of business in Indianapolis, Indiana, is engaged in the-
manufacture of flour, meal, grain and cereal products, and in the-
purchase and sale of cereals and cereal products.
In the conduct of its business the respondent owns and operates
several grain elevators and flour mills in Indianapolis, Indiana, and,
employs about 150 employees. In 1937, 50 per cent of the raw mate-
rials purchased by the respondent, amounting to an expenditure of
$1,647,000, originated outside the State of Indiana; 85 per cent of the-
products manufactured by the respondent in 1937, the gross sale value
of which amounted to $3,940,000, were shipped outside the State of
Indiana.
At the hearing the respondent agreed that it was engaged in inter--
state commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Federal Labor Union No. 21873 is a labor organization chartered
by the American Federation of Labor. It admits to membership all:
production, maintenance, and clerical employees of the respondent.
International Brotherhood of Teamsters & Chauffeurs, Stablemen,
and Helpers Local Union 135 is a labor organization chartered by
the American Federation of Labor. It admits to membership em-
ployees of the respondent engaged in the occupation of truck driving,.
and employees of other firms in the city of Indianapolis, Indiana, who,
are similarly employed.
M. THE UNFAIR LABOR PRACTICES
A. Background
In December 1935 the respondent employed Ray F. Sopher as its:
plant superintendent, in charge of the respondent's production work..
In the spring of 1936 Fred Wagner, the respondent's general fore-
man, left the respondent's employ and Ernest Beachman, a weigh-
master, was advanced to the position of general foreman. Sopher
and Beachman, subject to the direction of the respondent's officials,.
have been in charge of the respondent's production and maintenance.
work since 1936.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In July 1936 the respondent employed Lowell Chastain as a clerical
assistant to Sopher . When Chastain was employed Sopher instructed
him to observe all activity among the employees and to report it.
Sopher also informed Chastain that he had found Wagner , the former
general foreman , unsatisfactory because he failed to make such re-
ports. Pursuant to Sopher's instruction , Chastain continuously kept
Sopher aware of activity in the plant , including union activity.' . One
of the first duties assigned to Chastain was the preparation of applica=
tion blanks . On the regular blank used by the respondent , Sopher
instructed Chastain to insert an inquiry concerning the union affili-
ations of the applicants . On occasions Sopher made thorough investi-
gations of this subject before employing applicants.,
In May 1938 Sopher and Beachman ascertained that an applicant
named Thomas Markovich did not belong to a union before the
respondent hired him. - After Markovich was employed , Sopher had
Chastain watch him to learn if he visited the headquarters of the
Meat Packers' Union during his lunch hour.
The Committee for Industrial Organization secured some member-
ships among the respondent 's employees in the summer of 1937. A
group of workers met at the home of one Robinson , an employee, in
July 1937 and decided to form an inside union to combat the C. I. O.
The group asked Orrie Powell , the respondent 's elevator foreman,
to assist them, and Powell agreed to do so after obtaining the ap-
proval of Sopher, Samuel Harrell, a vice president , and J . L. Lip-
pincott, the respondent 's treasurer . At about this time, Sopher asked
Chastain to report all activity among the employees to him .' There-
after, Powell discussed the proposed inside organization with numer-
ous employees during working hours in the plant. Two meetings
were held for the purpose of organizing the inside union. Notices
announcing the time and place of the meetings were posted on the
time clocks in the plant . The meetings were held in the evening on
the respondent 's property with Sopher 's permission .' At the first
meeting Sopher addressed the employees and Powell was elected
temporary chairman . In the week elapsing between the first and
second meetings there was considerable discussion of the proposed
organization on the respondent 's property during working hours.
Powell participated in these discussions ; he also asked Harrell, a
vice president , to suggest an attorney for the inside union. Harrell
named an attorney and Powell instructed two employees to interview
him. In this manner , the services of an attorney were obtained.
6 There was no evidence in the record as to what activity other than union activity
Chastain was instructed to, and did, report.
9 The record is silent concerning the nature of the "activity" Chastain was instructed
to report.
7 Although the respondent usually operates a night shift, none of the employees were
excused from work to attend the meetings.
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ACME-EVANS COMPANY 79
At the second meeting Powell, the attorney, and Timmons, a mill
foreman, spoke to the employees. The employees decided at this
meeting to abandon the attempt to form an inside union and there
was no further discussion or activity on its behalf.
Coincident with the above attempt to form an inside union, Beach-
man made his views concerning outside unions known to several em-
ployees. He stated that it was against the respondent's policy to
have a union in its organization and that the respondent could find
^t number of reasons to lay off employees suspected of having joined
al union.
The respondent's interest in, and inquiries into, the union activity
of its employees, its support of the 1937 attempt to form an inside
.union, and Beachman's anti-union remarks, clearly demonstrated
during this period its opposition to "outside" unions. The com-
plaint did not allege that the acts and conduct heretofore discussed
-constituted unfair labor practices, and we make no finding to that
effect nor predicate any order upon such findings or determination.
However, the respondent's conduct prior to December 1938 is relevant
and material in the evaluation of the respondent's subsequent acts
and conduct and we have considered it in that connection.8
B. Interference, restraint, and coercion
In the early part of December 1938 the respondent's mill workers
began discussing the possibility of organizing a union. Lowell
-Chastain, Albert Wollenweber, an electrical worker, Paul Miller, a
receiving clerk, Charles Bainake and Lee Doerre, tinsmiths, and
Albert Dillon, ,in overseer in one of the respondent's mills, led the
discussions among the mill workers. On or about December 12
Chastain telephoned Hugh Gormley, the representative of the Ameri-
can Federation of Labor for the State of Indiana, and arranged for
a meeting of the respondent's. mill workers on December, 17.
On December 14 Chastain told Charles Powell, a sewer, about the
meeting with Gormley scheduled for December 17 and the efforts
being made to form a union. This conversation did not occur on
the respondent's time or property. Powell immediately told Beach-
man that a union was being formed among the mill workers. Beach-
man asked Powell who had been talking in favor of a union. Powell
named Chastain, Wollenweber, Miller, Doerre, and Bainake. Later
that day Powell stopped by Beachman's office to report that the
union meeting had been postponed until December 19. Beachman
relayed all the information obtained from Powell to Harrell, a vice
8 See National Labor Relations Board v. Pacific Greyhound Lines, Inc ., 303 U. S. 272;
International Association of Machinists , etc., v. National Labor Relations Board, 110 F.
( 2d) 29 (App. D. C.), pet. for cert. granted 60 S. Ct. 721.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president, and to Sopher. Sopher immediately discussed the matter-
with J. L. Lippincott, the respondent's treasurer.
On December 15, 1938, Harrell discussed the reports concerning-
the union activities of the employees at a meeting of the respondent's
executive committee. This committee, composed of Edgar H. Evans,
chairman of the respondent's board of directors, Isaac E. Woodard,
president of the respondent, and Samuel R. Harrell and John A.
Reis, vice presidents, manages the respondent's business between meet-
ings of its board of directors. Harrell told the committee that he-
had information to the effect that Chastain and Wollenweber were
interesting themselves in a union. Reis suggested that Sopher be
called before the committee and questioned about Chastain's activi-
ties. This was done. Sopher reported all he had heard from Beach-
man concerning the union activities of Chastain and other employees.
The executive committee instructed Sopher to ask Chastain if he was
interested in a union.
Sopher then approached Chastain and asked him if he had engaged
in union activities. Sopher told him that his name had been turned
in to Lippincott as a charter signer, but that he (Sopher) did not
think Chastain "was that kind of a boy." Chastain denied that he
had been engaging in union activities. Sopher told Chastain on
December 15 that he was in a wonderful position to bring all con-
fidential information to him, because he (Sopher) could not question
the employees himself. Sopher then reported the outcome of his
investigation to Harrell.
Shortly after the December 15 meeting of the respondent's execu-
tive committee, Harrell called Wollenweber into his office. Harrell
remarked that Wollenweber's name had been reported to him in con-
nection with a union meeting and he asked Wollenweber if it was
to be a C. I. O. meeting. Wollenweber declined to answer. Harrell
then inquired if Wollenweber had joined a union. Wollenweber
replied that he had not. Harrell asked if he was going to join.
Wollenweber replied that he did not know. Wollenweber testified
that Harrell said that meetings such as the one he was interested
in could cause "a lot of commotion that wasn't agreeable." Harrell
denied making that statement. Under all the circumstances in this
case, and in the light of Harrell's strenuous inquisition of Wollen-
weber regarding his union activities, we find that Harrell made the
statement attributed to him by Wollenweber.
Between December 15 and 19 there was considerable union activity
in the plant. Various employees reported such activity to Sopher and
to the respondent's other officials and were closely questioned concern-
ing their reports. On December 19 several of the respondent's mill
workers met with Gormley and organized the Federal. On December
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ACME-EVANS COMPANY 81
21 Charles Dillon, who was one of the first advocates of a union and
-one of the persons who signed the charter of the Federal, reported the
-occurrences at a Federal meeting to his foreman who, in, turn, arranged
for him to talk with Hughes Patten, one of the respondent's vice presi-
dents. The details of Dillon's reports are discussed. in Section III C 1,
below. Dillon testified that he requested a wage increase from his fore-
.man at approximately the same time that he made his reports concern-
ing the Federal meeting. He also stated that he lost, interest in the
union after he had talked to his foreman on December 21. Dillon was
.granted a wage increase on December 27 and promoted to the position
.of foreman. Thereafter he resigned from the Federal. Although
numerous other employees were granted wage increases on December
27, Dillon's was by far the most substantial increase given. These
circumstances are strongly persuasive of the conclusion, and we find,
that Dillon's disclosures of union information were, if not actually
induced by the respondent, well rewarded."
On December 23, 1938, seven of the respondent's nine truck drivers
joined the Teamsters. Thereafter Ralph Moneymaker solicited the
membership of John Romine and Alfred Gosney, the two non-union
drivers. Various other drivers who had joined. the Teamsters, includ-
ing James Nall, also solicited their membership and invited them to
'Teamsters' meetings. In his testimony at the hearing Romine ad-
mitted that during this period he acted as "stool pigeon" for the re-
-spondent. That the union activities prevailing among the respond-
^ent's truck drivers were reported to the. respondent' s officials is, evident
from the fact that on December 21 Lippincott called Otto Nall, a
:salesman, into his office and asked him if his son. James belonged to a
union. Lippincott remarked that he had heard. that some of the drivers
were interested in a union. Lippincott instructed Otto Nall to find
out who these drivers were. Otto Nall made the requested inquiry
of his son and later reported to Lippincott that James Nall was not
affiliated with any union. Also in December 1938 John Parson, a fore-
man, asked one of the truck drivers if he knew anything about the
'Teamsters. The driver professed ignorance on the subject and Parson
reported the result of his inquiry to Clarence McGowan, the truck
foreman.
By December 30 the respondent's officials had a list of the employees
who were the most active in. sponsoring the Federal and the Teamsters.
9 Prior to the passage of the Fair Labor Standards Act, Dillon had worked ' as an over-
seer in the feed mill at 58 cents an hour, earning about $35 a week. After the Federal
regulation of hours , he continued to do the same type of work but his weekly earnings
'were reduced to $25. The respondent claims that Dillon was promoted to allow him
to earn a wage commensurate with his duties and ability . We do not question Dillon's
worth to the respondent . But the respondent 's failure to promote him; although he had
made several requests for wage increases , until he disclosed union information in the
manner . described above , clearly reveals the occasion for his advancement.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sopher and Harrell prepared a statement of the respondent's policies
regarding personal activities in the plant and decided to communicate
this statement to some of the employees. This was done on January
3 and 4, 1939. About 20 employees were called into Sopher's office in
groups of four or five. Half of these employees were active support-
ers of the union; the others were apparently innocent of any union ac-
tivity. There were four such conferences on January 3 and one on
January 4. Sopher, Beachman, and a stenographer were present at
all conferences; Harrell was present at all but one. Sopher read the
statement he and Harrell had prepared, which was as follows :
For a matter of some time there have come to our attention nu-
merous cases indicating neglect of company duties on the part of
certain employees. This concerns us only because of the effect
such (or your) neglect of duty is having upon other men and the
increasing disregard of company interests throughout the plants..
Now it so happens that a great deal of this neglect of duty is
occasioned by personal activities on the part of some employees,
conducted on company time and company premises. As you know,
the company has always maintained a very fair attitude toward all
its employees and it intends to follow out this policy in the future.
The record of the company requires no apology.
In the interest of discipline and efficiency, and to promote your
own welfare with the company, it is our duty to let you know that
we disapprove of inattentions to business during working hours
and while you are being paid by the company.
While you are working for us, and while we are paying you,
your duty is to do the Acme-Evans job in the Acme-Evans way,
with a complete disregard of all personal enterprises. This is
what you are paid for and this is what you are here for, and you
must use all time available while on duty to secure maximum re-
sults for the business.
Each and every individual is expected in the future to confine
his efforts to the job allotted to him, and while he is on the
premises and being paid for his working time, he may not solicit
other members of the organization for any purpose, whether to
purchase lottery ticket, join a union, arouse interest in a baseball
team, or other purposes.
This company, which is the oldest in Indianapolis and has an
unequaled record of fairness and security of employment, will
take all necessary steps to protect that record and its employees'
security in the event of further neglect of duty on your part.
If you are not satisfied with this declaration of policy and feel
you cannot give your undivided attention to the duties assigned
you, we will accept your resignation.
4
ACME-EVANS COMPANY 83
This statement was brought only to the attention of the employees
who were included in the January 3 and 4 conferences. It was not
posted in the plant or in any other way communicated to the other
employees.
On January 8, 1939, the respondent's truck drivers who were mem-
bers of the Teamsters met at the Teamsters' Hall on Massachusetts
Avenue in Indianapolis. Clarence McGowan, foreman of the respond-
ent's truck drivers, drove by the hall and was seen by many of the
respondent's employees. After he had passed the hall several times,
one of the respondent's employees called to him. McGowan did not
reply, but he ceased cruising by the hall. McGowan was seen driving
by the hall again on January 11 when the members of the Teamsters
and the Federal met and agreed to the strike, discussed below.
McGowan did not testify at the hearing to explain his conduct on
January 8 and 11. In the absence of any explanation of his conduct,
and in view of the other efforts made by the respondent to learn of
union activities, we find that McGowan's purpose in repeatedly driving
by the Teamster's hall was to observe the employees attending the
meetings and to discourage such attendance.10
The respondent maintains that the course of conduct it pursued
from December 14 to January 3, namely, its investigations of union
activities and its statement of policy, was motivated by a desire to
maintain efficiency in the plant and was not designed to discourage
its employees in the exercise of their rights under the Act. The re-
spondent insists that the advent of the unions caused neglect of work,
and for that reason alone the respondent engaged in the conduct
described above.
To consider fully the respondent's contentions it is necessary to
examine its mode of operation. The respondent operates three mills
in which it manufactures flour, cereals, meals and feed. The mills
operate in three 8-hour shifts under normal conditions. The functions
performed by employees include manufacturing work, packing and
loading, milling, elevator work, sack cleaning and repairing, and main-
tenance work. The respondent, also has a trucking department in
which it employs nine or ten truck drivers. In the performance of
all these functions the employees have many idle periods during their
shifts. For example, the respondent's packers customarily enjoy a
15-minute rest period during every hour of their work. The milling
employees have a 5- or 10-minute rest period out of each hour while
the mills are changing from one feed to another. In the sack depart-
ment there are also occasions during the working clay when the em
ployees are idle. Similarly, the truck drivers have occasional idle
10 Compare Indiana & Arichipan Electric Company and International Brotherhood of
Electrical Workers, Local Ba 20 N. L. R. B. 989.
:84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
periods while they are waiting for the mill workers to complete load-
ing, and again between 5 and 5: 30 p. in. when they have returned to
the plant after completing their deliveries. The evidence is conclusive
that prior to January 3, 1939, the, conduct of the employees during
these periods was not restricted by the respondent in any way. The
employees customarily stepped outside the plant to smoke, engaged
in various discussions, and visited between departments. Indeed, prior
to January 3 personal activities in the plant were not confined to the
rest periods. We have already noted that the 1937 attempt to form
an inside union involved solicitation during working hours. More-
over, it was usual for employees, including foremen, to circulate lot-
teries, baseball pools and punchboards during working hours. As late
as the end of November 1938 Foreman Timmons circulated a turkey
punchboard in the plant. The respondent did not reprimand or dis-
cipline the employees for these personal activities prior to January
.3, 1939.11
The union activities in the plant, beginning about the first of
December 1938, followed the general pattern of all personal activities
in which the respondent's employees engaged. A good deal of the dis-
.cussion occurred during the periods when the employees were idle;
:however, much solicitation took place during the entire working day.
The respondent's claim that the union activity caused neglect of
work is based on the testimony of Sopher and Beachman that they
observed various employees talking in groups and that the reports
they secured from other employees disclosed that these discussions
`involved the unions. The respondent did not introduce other evidence
at the hearing to sustain its claim that the union activity impaired
efficiency. The record indicates that the personal activities which
..customarily prevailed in the plant took the form of group discussions
whenever the employees were concerned with matters of general inter-
est. Employees were never reprimanded for congregating in groups
.and the respondent did not deem these group activities to cause neglect
of work prior to December 14 when it became aware that the current
employee discussions concerned the Federal.
Having thus for several years tolerated widespread personal activity
in the plant, the respondent's attitude abruptly changed with the
advent of the Federal and the Teamsters. Extensive inquiries were
commenced by the respondent's officials and supervisors to learn about
the union affiliations and activities of the employees. These inquiries
consisted of surveillance of a Teamsters' meeting place and strenuous
inquisitions of employees. Vice-President Harrell informed an em-
11In 1931 and 1933 , notices were placed on the respondent's bulletin board cautioning
employees against drunkenness and gambling in the plant . The widespread and undis-
ciplined disregard of the gambling restriction reveals that the notice posted regarding
';it did not reflect the respondent ' s policy in the period we are considering.
ACME-EVANS COMPANY 85
ployee whom lie questioned concerning his union affiliation that union
meetings could cause commotion that "wasn't agreeable." By thus
investigating the union activity of employees, the respondent learned
the names of all the union leaders. It then called the sponsors of the
unions, together with certain others, into conferences at which Sopher
read a statement prohibiting personal activities in the plant. The
prohibition against personal activities was not deemed necessary until
the employees began discussing the Federal and the Teamsters instead
,of lotteries, baseball and inside unions. Nor was it contemplated to
establish a plant-wide policy. It was not communicated to the em-
ployees who were not included in the January 3 and 4 conferences, and
several persons testified at the hearing that they had never heard of
any restriction on their personal activities during working hours.
Harrell testified at the hearing that the specific purpose of the pro-
hibition against personal activities was to curb union activities.
Edgar L. Ulrey, the respondent's assistant general superintendent,
asserted that the statement was not designed to prevent employees from
'discussing such subjects as religion, but that it did prohibit discussions
about unions.12
Under all the circumstances, we find that the statement prohibiting
personal activities was directed solely at the union activities which
the employees pursued. Such a prohibition against union activities
alone, as well as the inquiries into and surveillance of union activities
'discussed above, when other personal activities were permitted em-
ployees during working hours and were not made the subject of inquiry
:and investigation, necessarily conveyed to the employees the respond-
ent's opposition to their self-organization, as such, and constituted
interference, restraint, and coercion of employees in the exercise of the
rights guaranteed them by the Act.
We find that the respondent, by inquiring and causing inquiries to
be made concerning its employees' union affiliation and activities, by
rewarding the disclosure by Dillon of information concerning the
union activity of its employees, by its surveillance of the Teamsters'
meeting places, by Ilarrell's statement to Wollenweber regarding union
2 Ulrey also testified :
Q. (By Trial Examiner .) ... To what extent can the employee converse on
any subject he pleases during his rest period?
A. Well, I wouldn't appreciate talking union on the job , personally , if you just
want my personal opinion.
Q. No, I want your opinion as assistant general superintendent as to what the
rights of the employees are during their rest period?
A. I still wouldn't want them to discuss that sort of subject.
Q. Would that be the only subject he couldn't discuss?
A. I wouldn't-well, on a moment 's notice that is all I can think of. I wouldn't
want him to discuss Ku Klux Klan, or a lot of other organizations that I am not
personally in favor of, for personal reasons.
283035-42-vol. 24-7
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nmeetings , and by its statement of January 3, 1939, interfered with,
restrained , and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
C. The discharges of Chastain, Moneymaker, and Nall
1. Lowell Chastain
The complaint alleges that the respondent discharged Lowell Chas-
tain on January 6, 1939,13 because he joined and assisted the Federal
The answer admits the discharge of Chastain, but denies that it was
in violation of the Act.
Lowell Chastain was employed by the respondent on July 26, 1936,.
as a clerical assistant to Sopher. His duties consisted of running
errands, doing stenographic work, and assisting in the preparation of
the pay roll.14 He retained this position until December 23, 1938, on
which date he was transferred to the respondent's main office, where
he worked until his discharge on January 6, 1939. At the time of his
discharge Chastain earned $17 a week.
As pointed out in Section III B above, Chastain became one of the
most active supporters of the Federal in December 1938. His union
activities came to the respondent's attention on December 14, 1938.
On December 15 at Chastain's request Sopher furnished him with a
letter of recommendation to enable him to secure a position with the
Department of Justice. In the letter Sopher praised Chastain for
his industry, clean habits and thoroughness in his work. We have
noted that on December 15 the respondent's executive committee in-
structed Sopher to ask Chastain if he was interested in a union, that
Sopher did so on December 16, and that Chastain denied that he be-
longed to a union. Later in the day on December 16, Sopher asked
Chastain to return the letter of recommendation and told him that
the best thing he could do was to hunt another job. Chastain did not
relinquish possession of the letter on the ground that he had misplaced
it although Sopher persisted in his request for its return for several
days.13
The respondent received numerous reports of Chastain's union ac-
tivities both inside and outside the plant between December 15 and
13 The complaint erroneously alleged that Chastain was discharged on January 8, 1939.
This error was corrected by the Board 's motion to conform the pleadings to the proof.
14 As we have hereinabove noted, Chastain 's earlier duties included reporting the activity
of employees in the plant.
16 Sopher offered no adequate explanation of his desire to have the letter returned. He
testified at the hearing that he decided Chastain was lying when Chastain avoided return-
ing the letter and therefore he asked for the letter. While this explanation might account
for Sopher's insistence on the return of the letter after December 16, it obviously fails
to explain his initial request for it.
ACME-EVANS COMPANY 87
December 23. On December 21 Albert Dillon told his foreman and
Hughes Patten, a vice president, what occurred at the December 19
Federal meeting. Among other things, Dillon reported that Chastain
had disclosed the pay rates of employees and the number of employees
in the plant.
On December 23, 1938, the respondent's executive committee decided,
to transfer Chastain .from Sopher's office to the main office. Sopher,
informed Chastain of his transfer and instructed him that he could
not converse with any of the employees in the main office at any time.
Erwin Stout, the respondent's secretary, assigned Chastain the duties
of operating a mimeographing machine, printing, and taking Sopher's
letters. Stout instructed the office employees to refrain from talking
.to Chastain and placed Chastain in a small office adjacent to his where
no other employee worked. Stout forbade Chastain to solicit union
membership or to discuss unions in the plant and instructed him to
leave the premises entirely during his lunch hour. Stout testified that
he kept Chastain under close surveillance during his employment in
the main office.
While employed in the main office, Chastain was frequently visited
by Charles A. Rhodes, the respondent's chemist. On these visits
Rhodes professed great interest in the Federal and attempted to draw
Chastain into a discussion of the Federal. On January 5, 1939, Rhodes
reported to the respondent in writing that Chastain had solicited his
membership.16 Rhodes testified to the same effect at the hearing.
Chastain denied soliciting Rhodes and the Trial Examiner credited his
denial. In view of the finding of the Trial Examiner, who had an
opportunity to observe both witnesses, and the other circumstances
surrounding the incident, we find that Chastain did not solicit Rhodes
to join the Federal.
On January 6 Chastain was called into the respondent's main office
where Harrell and Sopher awaited him. He was handed a letter,
signed by Sopher, discharging him (1) for engaging in union activi-
ties in the plant both before and after December 23; (2) for revealing
confidential information; and (3) for the reason that his position in
Sopher's office was being discontinued. Chastain protested that he
was innocent of the charges against him and asked Harrell to produce
or name the employee whose membership he was accused of having
solicited after December 23. Harrell refused to comply with his
request.
16 Rhodes" report , being respondent 's exhibit number 110 , was excluded by the Trial
Examiner . His ruling is reversed and this exhibit is admitted in evidence , not to prove:
the facts asserted therein, but for the limited purpose of showing the basis on which the
respondent purported to act in discharging Chastain on January 6, 1939.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In their testimony at the hearing the respondent' s officials disclosed
their resentment of Chastain's activities in behalf of the Federal 7
The record leaves no room for doubt that the respondent disliked his
union activity and upon learning of it immediately took steps to pre-
vent it. Thus, it made coercive inquiries concerning Chastain's sup-
port of the Federal, both of Chastain and of other employees in the
plant. Sopher's urgent demand on December 16, when the respondent
became convinced of Chastain's interest in the Federal, for the return
of the letter of December 15 praising Chastain's ability, indicates that
the respondent was then considering the desirability of disciplining
Chastain to prevent him from organizing the employees in the Federal.
Thereafter, when Chastain persisted in his union activities, the re-
spondent transferred him from his position with Sopher, isolated him
from general contact with other employees,, and placed him under an
express injunction, not then applied to other employees, to refrain
from activity on behalf of the Federal. Finally, on January 6; the
day after Rhodes reported that Chastain had asked him to join the
Federal, Chastain was summarily discharged without an opportunity,
despite his request, to confront Rhodes, whose accusation against
Chastain we have found was untrue. The respondent's course of con-
duct with respect to Chastain is strongly persuasive of the conclusion
that the reason for Chastain's discharge was a desire on the part of
the respondent to discourage membership in the Federal. An analysis
of the reasons assigned by the respondent for its conduct confirms that
conclusion.
The respondent asserts that an important factor in both the transfer
and discharge of Chastain was his union activity in the plant. This
Activity consisted of his solicitations for the Federal prior to December
23 and the report that he solicited Rhodes after December 23. In view
of the prohibitions placed by the respondent upon Chastain after his
transfer, we are convinced and we find that the primary reason for
his transfer was to place him in a position where he could not suc-
cessfully pursue union activities. No other employee was at this time
prohibited from or disciplined for engaging in union or other activity
in the plant, and, as - we have seen, employees did engage in various
forms of activity during working hours on company premises. Sopher
testified that Chastain's union activities did not cause him to neglect
his work or impair his efficiency. Under these circumstances, the
transfer and discharge of Chastain because he pursued union activity
?' The respondent's officials asserted that they disapproved of Chastaln 's union activity
on company time and property . That their dissatisfaction was with union activity,
rather than with the time and place in which Chastain pursued it, is apparent from our
finding in Section III B that personal activity of all descriptions , except union activity,
was acquiesced in by the respondent and in fact pursued by the respondent 's supervisory
rmq,doyees.
ACME-EVANS. COMPANY 89
-in the plant.prior to December 23 was not a disciplinary measure for
the infraction of 'a generally applied business regulation, but was a
discriminatory penalty because of the particular kind of activity in
which he engaged, namely, union activity, and because he was an out-
standing participant in such activity. Similarly, when the respondent
instructed only Chastain to refrain from solicitation it imposed a dis-
criminatory condition on his employment. We have found that Chas-
tain did not violate that condition by soliciting Rhodes on January 5.
Indeed, if Chastain had solicited Rhodes, his discharge for the infrac-
tion of the discriminatory ruling prohibiting him from doing so, which
was designed by the respondent to punish Chastain for and to discour-
age membership in the Federal, would be in violation of the Act.
Under the circumstances above discussed, the assignment of Chastain'.-,'
union activities in the plant as a reason for his discharge is a clear
admission of discrimination 18
The respondent asserts that another factor in Chastain's discharge
was its belief that he had disclosed confidential information at a Fed-
eral meeting. Chastain denied that he divulged the information.
However, he had access to it in connection with his pay-roll work and
on December 19 or 20 Stout, the respondent's secretary, saw Chastain
jotting down the pay rates of employees on a slip of paper. Chastain
did not explain the latter incident. With respect to the confidential
character of the information, the number of employees in the plant
could not have been considered confidential information since Isaac
Woodard, the respondent's president, disclosed this information to all
the employees at a meeting on December 21. Similarly, the pay' rates
of employees had for many years been kept in the time clocks available
for inspection by everyone in the plant. It is true that about a year
and one-half before the hearing the respondent removed them to the
main office ; however, Chastain denied being instructed that the pay
rates assumed a confidential aspect after their removal from the time
clocks.l9
We do not deem it necessary to determine whether Chastain divulged
this information or whether it was confidential, as the respondent
claims. In the first place, although the respondent was informed of
the alleged disclosure.of information when it transferred Chastain,
we have found from the circumstances attending his transfer, print
>e Matter o f Botany Worsted Mills and Textile Workers Organizing Committee, 4' N. L.
R. B. 292, enf 'd as mod., Botany Worsted Mills V.-National Labor Relations Board, 106
F. (2d) 263 (C. C. A. 3).
>e The respondent offered in evidence an exhibit, numbered 125, being a stenographic
transcript of the conference at which Chastain was discharged , which it claims establishes
that Chastain himself considered this information confidential . The Trial Examiner ex-
cluded this exhibit. His ruling is reversed and it is admitted in evidence for the purpose
for which the respondent offered it . A consideration of the exhibit fails to sustain the
respondent 's position.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
•cipally the precautions taken to curb his union activities, that the re-
spondent transferred Chastain for discriminatory 'reasons. We are
not persuaded that the respondent gave the alleged disclosure of in-
formation any greater consideration when it decided to discharge
Chastain. However, if the respondent's alleged belief that Chastain
improperly disclosed confidential information did, as the respondent
asserts, enter into its decision to transfer Chastain, we cannot believe
that the respondent would twice punish him by discharging him for
the same offense. In the second place, the respondent has admitted
that its discharge of Chastain was based in part on reasons we have
heretofore found to constitute discrimination. Even if Chastain's
alleged disclosure of information played a part in his discharge, the
:fact that the respondent's action was also prompted by other considera-
tions designed to discourage membership in the Federal establishes a
violation of the Act.20
The respondent finally contends that a factor in its determination
to discharge Chastain was a decision, reached about the time of his
discharge, to abolish the position he had occupied in Sopher's office.
After Chastain's transfer Sopher and Beachman took over the tasks
Chastain had performed. The respondent at the hearing announced
its intention to maintain that arrangement in the future. Although
the respondent claims it had long contemplated the desirability of
reassigning the work in Sopher's office in this manner, the evidence
shows that the discriminatory discharge of Chastain furnished the
occasion for its action and that the respondent was not motivated by
any such consideratiofi as it now advances in discharging Chastain.
We therefore find no merit to the assertion that Chastain was
discharged for that reason.
We find that the respondent, by discharging Chastain on January
6, 1939,-.discriminated with respect to his hire and tenure of employ-
ment, thereby discouraging membership in' the Federal, and thereby
interfering with, restraining, and coercing its employees" in the
exercise of the rights guaranteed in Section 7 of the Act.
20Matter of The Louisville Refining Company and International Association of Oil Field.
Gas Well, and Refinery Workers of America, 4 N. L. R. B. 844, enf'd as mod., National
Labor Relations Board v. Louisville Refining Company, 102 F. (2d) 678 (C. C. A. 6).
See also Matter of Hercules-Campbell Body Co., Inc. and United Automobile Workers of
America, etc., 7 N. L. R. B. 431; Matter of American Manufacturing Company, Inc., and
International Association of Machinists, etc., 5 N. L. It. B. 443 ; enf'd as mod., National
Labor Relations Board v. American Manufacturing Company, 106 F. (2d) 61 (C. C. A. 2) ;
Matter of The Kelly-Springfield Tire Company and United Rubber Workers of America
Local No. 26, et al., 6 N. L. R. B. 325, enf'd, The Kelly-Springfield Tire Company v. National
.Labor Relations Board, 97 F . ( 2d) 1007 (C. C. A. 4). See also National Labor Relations
Board v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2), cert. den. 304 U. S. 576, and
National Labor Relations Board v. Stackpole Carbon Company, 105 F. (2d) 167 (C. C. A.
.3), cert. den. 60 S. Ct. 142, where it has been held that an employer must answer for the
consequences of a strike caused only in part by his unfair labor practices.
ACME-EVANS COMPANY 91
2. Moneymaker and Nall
The complaint alleges that Ralph Moneymaker and James Nall
were discharged on January 9, 1939, because they joined and assisted
the Teamsters. The respondent's answer admits the discharges, but
denies that they were in violation of the Act.
Moneymaker and Nall had worked for the respondent about 11 and
7 years respectively. At the time of their discharges they were em-
ployed as truck drivers, earning about $25 a week. Moneymaker
customarily instructed new drivers hired by the respondent concerning
their duties.'
Moneymaker and Nall, together with five of the respondent's nine
truck drivers, joined the Teamsters on December 23, 1938. There-
after, both men actively solicited the membership of Romine and
Gosney, the two drivers who had not joined the Teamsters. As
pointed out in Section III B above, the respondent was fully advised
concerning the activities of Moneymaker and Nall.
Moneymaker and Nall were among the first group to whom Sopher
gave his talk forbidding personal activities on January 3, 1939. After
Sopher's talk, the truck drivers gathered in the garage to prepare
their trucks for the next day's deliveries. While the drivers were
assembled, there, Moneymaker, said that if he lost his job because of
the union he knew two fellows who would go home in an ambulance,
and Nall said "that goes for me too, if I have to go to jail for it."
These statements were not addressed to anyone directly." On the
evening of January 3, Romine, by appointment, visited Lippincott
at his home and reported the occurrence at the plant in full. Romine
,later made a written report of this incident.22 Parson also related
the incident to the respondent in writing, although he had never before
made it a practice to report occurrences in the garage.
On January 9, 1939, Moneymaker reported to work at the usual
time in the morning. After he had finished loading his truck, Clar-
ence McGowan, the garage foreman, told him that Beachman wanted
'to see him. Moneymaker waited in the garage until about 11 a. in.,
when Beachman called him into the respondent's laboratory where
.Sopher and Lippincott were waiting. On a table were his pay checks,
a letter, and his discharge papers. Moneymaker asked why he was
being discharged, and stated that lie had not violated the respond-
ent's instructions forbidding discussion of unions on the premises.
21 Moneymaker and Nall denied making the statements . However , upon the basis of the
record , we find that the statements were made by them.
22 This report, being respondent's exhibit numbered 130, was ' excluded by the Trial
Examiner . His ruling is reversed and this exhibit is admitted in evidence for the limited
purpose of establishing the basis on which the respondent purported to act in discharging
Moneymaker and Nall.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sopher replied that he had violated the instructions. Sopher then-
told Moneymaker to "get his rags and get going." Moneymaker ap-
pealed to Lippincott, asking him if he had been unsatisfactory in
his work. Lippincott replied that his work had been satisfactory-
"up until now." The letter given Moneymaker on this occasion stated'
that he was being discharged for (1) neglecting his work, ( 2) en-
gaging in personal matters in the plant before and after January 3,.
and (3) threatening bodily harm to other employees.
About 5 p. in. on January 9 Nall returned with his truck to the
respondent's garage. McGowan told him that he was wanted in the
main office. When Nall arrived there, he found Sopher 'and Beach
man waiting. Sopher handed Nall a letter, substantially similar to.
the one given Moneymaker, together with his discharge papers and
pay checks. Nall asked Sopher to produce the man he was charged-
with having threatened. Sopher refused to do so.
Clarence McGowan, the respondent's garage foreman, made sev-
eral comments concerning Moneymaker and Nall both- before and
after their discharges. On January 3 McGowan remarked to Otto,
Nall that the plant was like a madhouse because some of the drivers.
were mixed up in a union. On January 9- McGowan told several
truck drivers who inquired as to the discharges of these employees
that Moneymaker and Nall were "talking union too much" and were
"mixed up in the union." In March 1939 McGowan discussed their
discharges with some friends, not connected with the respondent, in
a restaurant in Indianapolis. McGowan said Moneymaker and Nall
were two of the best workers he had ever had, but that they "talked
too much about the unions" and were discharged for that reason.
There can be no doubt that Moneymaker and Nall were discharged'
to discourage membership in the Teamsters. The statements made by
them on January 3 were made after the respondent had addressed
a few of its employees, including Moneymaker and Nall, concerning-
the consequences they could expect for pursuing union activities. This=
warning was preceded by persistent inquiries by the respondent into
the union activities of its employees and efforts by it to learn the
identity of the union leaders. Indeed, shortly before the statements
were made by these drivers, Nall had been questioned at the instance
of Lippincott, the respondent's treasurer, concerning his affiliation
with the Teamsters. The remarks made by Moneymaker and Nall on
January 3 in the presence of their fellow drivers reflected an appre-
hension for their jobs which was the understandable result of, th,,.
respondent's coercive inquiries into, and warning concerning, their-
union activities. By their statements Moneymaker and Nall sought to
forestall further employee reports to the management concerning-
union activities , which they reasonably and correctly expected would-
ACME-EVANS COMPANY 93.
lead to their own discharge. The circumstances which surrounded,
and led to, the January 3 incident were of the respondent's making
and the respondent, being aware of the effect its violations of the Act
rundoubtedly had upon the employees, could not have considered
.such remarks as were made by Moneymaker and Nall.to be of a serious
nature. That the respondent used the January 3 incident as a guise
under which it succeeded in ridding itself of two Teamsters' members
.and thereby discouraged support of the Teamsters is evident from
-the manner in which the respondent investigated the incident. It
Telied solely on the reports of Parson, its agent, and Romine, who
characterized himself as the respondent's stool pigeon. Although
.Moneymaker and Nall were old and extremely efficient and reliable
employees, the respondent gave them no opportunity to explain or
defend their conduct. This was a significant departure from the
respondent's customary practice of warning employees concerning mis-
conduct and permitting them to present their defenses before taking
disciplinary action. Finally, the respondent's garage foreman ad-
mitted that these drivers were discharged because, of their union
.activities. All of these circumstances indicate that the January 3
incident supplied the respondent with a pretext for eliminating two
members of the Teamsters from its employ.
The respondent contends, however, that Moneymaker and Nall
neglected their work and engaged in union activities in the plant both
before and after January 3. The claim that they neglected their work
-finds no' support in the record. The -evidence shows that these em-
ployees, with 11- and 7-year service records, had never been criticized
for neglect of work and that at all times during their employment.
-they were efficient, satisfactory workers. It-is true that they did engage'
in union activities during working hours prior to January' 3. How-
-ever, as has been pointed out above, others also engaged in such activi-
ties and the respondent had placed no prohibition on personal activities
-prior to January 3. As in the case of Chastain, the respondent's assign-
ment of these activities as a reason for the discharges of Moneymaker
and Nall is a clear admission of the discriminatory bases for their
-discharges. The respondent's claim that Moneymaker and Nall en-
gaged in union activities during working hours subsequent 'to January
-3, the date on which personal activities were prohibited, finds no
support in the record.
Upon the record, we find that the respondent discharged Money-
maker and Nall on January 9, 1939, to discourage membership in the
'Teamsters, thereby discriminating with respect to their hire and tenure
of employment and interfering with, restraining, and coercing its
employees in the exercise of the rights .guaranteed in Section 7 of the
Act.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The strike of January 12, 1939
On Monday, January 9, 1939, Gormley, the representative of the
American Federation of Labor for the State of Indiana, arranged to
meet the respondent's officials, Woodard and Harrell, concerning the
discharges of Chastain and Urban Albright,23 members of the Federal.
Gormley invited Joseph Williams and Bruce Travis, officials of the
Teamsters, to accompany him.24 Gormley asserted at the conference
that the respondent had discharged the Federal members because of
their union activities; the respondent's officials denied the accusation-
Woodard informed Gormley that Albright had been merely laid off,
and that Chastain had been discharged for cause. Woodard told
Gormley that the two men would not be reinstated by the respondent
and refused to discuss the cases any further. Before the conference
adjourned, Harrell promised to mention the matter to the respondent's
board of directors and give Gormley a final answer concerning Chas-
tain and Albright on Wednesday, January 11.
While the union officials were conferring with the respondent on
January 9, Moneymaker was being discharged. Nall was discharged
later in the day. Gormley, Williams, and Travis returned to the plant
on January 10 to confer with Woodard and Harrell about the dis-
charges of the truck drivers. The respondent's officials refused to rein-
state Moneymaker and Nall, stating that the Teamsters would not re-
quest their reinstatement if they knew the reasons for the discharges.
Williams asked what the reasons were but his question was not
answered. Gormley -again discussed the cases of Chastain and Al-
bright, but the respondent was adamant in its refusal to reinstate them.
During the discussion Gormley stated that the unions might have to
use their "economical strength" if the respondent continued to dis-
charge employees for union activities.
On January 11 the Federal and the Teamsters held a joint meeting
at which the members of both unions decided to strike in protest
against the discharges of Chastain, Moneymaker and Nall. We find
that the strike of January 12, 1939, was the result of the unfair labor
practices of the respondent and that the employees who went on strike
ceased work as a consequence of the respondent's unfair labor prac-
tices.25
On the morning of January 12 about 55 employees went on strike
and commenced to picket the plant. The strike was attended by vari-
23 Albright is not a complainant in this case.
24 One Friesthuler also accompanied Gormley.
zs The respondent claims that the strike was called by the Federal and the Teamsters=
to coerce it into negotiating an agreement. The evidence shows that no request for an
agreement was addressed to the respondent by either union prior to February 10, 1939.
The respondent 's contention that the strike was called to coerce it into negotiating an
agreement is not supported by the record.
ACME-EVANS COMPANY 95
ous altercations between the striking and non-striking employees: The
most serious encounter occurred on January 14, 1939, in front of Mill
C. Alfred Gosney, one of the two truck drivers who did not strike;
was approached by Moneymaker, Harold Baker, and Clovis Faulk,
who attempted to persuade him to join the pickets. Thereafter, a fist
fight occurred between Moneymaker and Frank Mueller, a non-striking
employee, in which Forest Keifer, a foreman, intervened. Money=
maker and Keifer then exchanged blows until Blake Carter, a -non-
striking employee, separated them. Graphman and a non-striking
employee also engaged. in a fight from which Graphman emerged with
a bleeding arm. Harold Baker also sustained a slight injury. During
this affray, over 35 non-striking employees left their work and sur-
rounded the combatants. There was evidence that numerous non-
striking employees were armed with clubs, iron bars, and knives. Dur-
ing the incident C. Faulk was seen with a club, but there was no evi-
dence that lie used it. Sopher and Beachman were present during the
conflict and took no steps to restrain the non-striking employees. Al-
though this incident provoked angry words from all, participants, no
person sustained serious injury and the respondent's property was not
molested.
During the strike the pickets on several. occasions followed trucks
driven by non-striking employees to places in Indianapolis where de-
liveries were made. On these trips the strikers urged the respondent's
drivers to join the strike and urged the consignees of the flour to refuse
delivery. The following pickets engaged in this or similar conduct :
Robert Graphman, C. Faulk, Walter Seering, Clarence Short, John
Judson, Harold Baker, Charles Baker, Ruel Faulk, Robert White,
Bernard Reed, Raymond Keller, James Nall, Clarence Small, Vern'
Beaver, Marlin Hargis, Charles Bainake, and Ted A. Williamson. On
one of these occasions two of the respondent's non-striking employees
carried iron pipes and one of them was arrested for carrying a con-
cealed weapon. Although the striking and the non-striking employees
often engaged in heated discussions and occasionally in fist fights dur-
ing these encounters, the evidence shows (1) that none of the partici-
pants was seriously hurt, (2) that the respondent's trucks were never
stopped by the pickets, and (3) that none of the respondent's property.
was injured in any way.
Although the strike was still current at the date of the hearing, by
April 1939 a majority of the employees had applied for reinstatement.`
E. Discrimination in reinstatement of strikers
The complaint alleges and the answer denies that the respondent dis-
criminated in reinstating 11 named persons to lesser positions upon
their application because of their support of the Federal and because
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of concerted activities for the purposes of collective bargaining.
Appendix A contains a list of these employees, together with the posi-
tions they occupied before the strike, the pay rates they were receiving
on January 12, 1939, the dates they applied for reinstatement, the
dates of their employment, the positions they occupied at the date of
the hearing, and their pay rates at the time of the hearing. All of the
persons listed in Appendix A were members of the Federal and par-
ticipated in the strike.
The respondent concedes that it refused, upon application, to rein-
state the 11 persons listed in Appendix A to the positions they had
held prior to the commencement of the strike. This refusal was based
on the ground that the positions of these persons had been filled be-
tween January 12 and the dates on which they applied for reinstate-
ment, either by the hiring of new employees, the transfer of non-strik-
ing employees, or the employment of strikers who returned prior to
January 24.
. The record shows that the positions of six of the persons listed in
Appendix A were filled by new employees hired subsequent to the
commencement of the strike.26 The record also shows that these strik-
ing employees would have been reinstated to the positions they held
prior to the strike had the respondent, after application was made,
displaced, if necessary, the new employees hired to fill their positions.
This the respondent failed to do, for the reason, as pointed out above,
that it did not wish to displace the new employees hired subsequent
to January 12.
, Under Section 2 (3) of the Act, the six strikers whose positions were
taken by new employees hired subsequent to the commencement of the
strike, having ceased work in connection with a current labor dispute,
and in consequence of the respondent's unfair labor practices, remained
employees for the purposes of the Act. Where, as here, a strike has
been caused by the respondent's unfair labor practices, the striking
employees are entitled to their former positions upon making applica-
tion therefor.27 The failure of the respondent to reinstate these six
employees to the positions to which they were entitled, by displacing, if
necessary, the persons hired subsequent to the commencement of the
strike, in effect and in result discriminated, and constituted a discrimi-
2' William Bewley's position was filled by J. Schafner ; Albert Wollenweber 's job was
taken by C. Harbaugh. Samuel Morgan was hired to fill the positions formerly occupied
by. strikers Ted Williamson and John Judson . The names of the new employees who took
the positions of Clarence Short and Harry Ludy do not appear in the record.
27Matter of Jeffery-DeWitt Insulator Company and Local No. 455, United Brick and
Clay Workers of America , 1 N. L. R. B. 618, enf'd Jeffery-DeWitt Insulator Company v.
N. L. R. B., 91 F (2d) 134 (C. C. A. 4 ), cert. den. 302 U. S. 731 ; N. L. R. B. v. Remington
Rand, Inc ., 94 F. (2d) 862 (C. C. A. 2), cert. den . 304 U. S. 576; Matter of American
Manufacturing Company at al. and Textile Workers Organizing Committee, C. I. 0., 5
N. L. R. B. 443, enfd as mod., N. L. R. B. v. American Manufacturing Company,, 106
F. ;(2(1) 61 (C. C. A. 2)..
ACME-EVANS COMPANY 97
nation, concerning hire and tenure of employment against such em-
ployees. Such discrimination discourages union membership.28
The positions of three of the persons listed in Appendix A were
filled by the transfer of non-striking employees prior to the dates on
which applications for. reinstatement were made.29 The positions, of
two of the persons listed in Appendix A were filled by strikers who
returned prior to January 24.30 The record shows that these five
striking employees would have been reinstated to the positions they
occupied prior to the commencement of the strike had the respondent,
after application was made, displaced, or shifted to other positions,
the persons employed in their places subsequent to the commencement
of the strike. This the respondent failed to do, for the reason, as
pointed out above, that it did not wish to remove the persons employed
in the places of these five strikers. The record does not show, nor does
the respondent claim, that it could not have transferred the old em-
ployees to the positions they held prior to the commencement of the
strike, thereby making the positions of these five striking employees
available for their reinstatement. That such transfers could have been
made seems clear since the 11 persons listed in Appendix A were given
jobs in the plant and 36 new persons were hired subsequent to January
12. Moreover, the employees retained in the positions of these:.five
striking employees possessed much less seniority than the strikers 31
The respondent offered no evidence, nor does it assert, that the persons
who were retained in the positions these five striking employees had
28 Matter of American Manufacturing Company and Local No. 55, United Brick and Clay
Workers of America, 5 N. L. R. B. 443, enf'd as mod., N . L. R. B. v. American Manufao-
turing Company, 106 F. ( 2d) 61 (C. C. A. 2) ; Matter of Black Diamond Steamship Cor-
poration and Marine Engineers ' Beneficial Association , Local No. 33 , 3 N. L. R. B. 84,
enf'd, Black Diamond Steamship Corp. v. N. L. R . B., 94 F. ( 2d) 875 (C. C. A. 2), cert.
den. 304 U. S. 579; Matter of McKaig.JHatch , Inc. and Amalgamated Association of Iron,
Steel and Tin Workers of North America, Local No. 1139, 10 N. L. R. B. 33; Matter of
Western Felt Works, a corporation, and Textile Workers Organizing Committee , etc., 10
N. L. R. B. 407; Matter of Denver Automobile Dealers Association , at al. and Capitol
Automotive Lodge No. 606, International Association of Machinists , 10 N. L . R. B. 1173;
Matter of Berkshire. Knitting Mills and American Federation of Hosiery Workers, Branch
#10, 17 N. L. R. B. 239; Matter of Theurer Wagon Works, Inc. and International Union,
United Automobile Workers of America, Locals 259 and 374, 18 N. L . R. B. 837.
29 The following schedule shows the employees transferred to fill the positions of the
strikers :
Striker Transferee
Ray Forehand Orrin Williamson
Oliver Lowden G. Pope
Paul Miller Hervey Anderson
10 Otis Stinnett was replaced by C. J. Cook and Garold Leslie was replaced by Sydney
Small.
81 Thus , Paul Miller, who had been a receiving clerk for 8 years, was replaced by an
employee who had only worked a short time for the respondent . Ray Forehand, who.
had worked for the respondent 3 years, was replaced by a person with less than 1 year's
seniority. Oliver Lowden , a man with 16 years' seniority , was replaced by an employee
who had worked for the respondent less than one year . Otis Stinnett , a man with 5
years ' seniority , was replaced by a much younger employee in point of seniority . Garold
Leslie, who had worked for the respondent 22 years, had been a head packer for 9 years.
He was replaced by an employee with only 3 years' seniority.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occupied prior to the strike were so retained because of superior skill
or ability. We have found that the respondent's refusal to displace
:upon application of striking employees new employees hired subse-
quent to the commencement of the strike constituted discrimination
against the striking employees. Under the circumstances here pre-
sented, the respondent's refusal to displace or shift to other positions
persons with less seniority employed subsequent to the commencement
of the strike in the positions of these five striking employees, when
the striking employees applied for reinstatement, was equally
discriminatory.32
We find that by the refusal to reinstate the 11 strikers listed in
Appendix A upon application to the positions they occupied before
the strike, the respondent discriminated with regard to their hire
and tenure of employment, thereby discouraging membership in the
Federal, and thereby interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
Independently of the foregoing, we find from the record that
the respondent's refusal to reinstate these strikers to their former
positions, and its conduct toward them subsequent to their applica-
tions for reinstatement, were designed to punish them for their con-
certed activity and thereby discourage membership in the Federal.
When the persons listed in Appendix A applied for reinstatement,
they were interviewed by Ulrey and George C. Dapp, an individual
hired on January 16 to assist the respondent in operating its busi-
ness during the strike. They were informed that their former posi-
tions were filled and that they could choose one of three courses: (1)
wait until, and if, their former positions became available; (2) take
their separation papers; or (3) accept other employment in the
plant at the rate of 40 cents an hour. The 11 persons listed in Ap-
pendix A chose the last alternative. They were then required to
make out applications for employment, after which they were inter-
viewed by Vice-President Reis who told them "if they played ball
with the company, the company would play ball with them." They
were employed subsequent to their applications, at 40 cents an
hour, in the positions and on the dates listed in Appendix A. The
respondent considered all these persons new employees, without
;seniority or other rights incident to their previous employment.33
82 Matter of Stehli and Co., Inc. and Textile Workers Union of Lancaster, Pennsylvania
and Vicinity, Local #133, 11 N. L. R. B. 139T; Matter of Stewart Die Casting Corporation
and United Automobile Workers of America, Local 298, 14 N. L. It. B. 872.
88 Seniority is important in the respondent's plant in two respects : (1) it governs the
selection of persons to be laid off in a general reduction of forces, and, similarly, the
selection of persons to be taken back when forces are increased ; ( 2) it determines the
amount ,of the yearly bonus the respondent pays its employees.
ACME-EVANS COMPANY 99
The respondent claims that on January 24, 1939, it had sufficient
personnel to take care of the business it then had on hand. The
respondent contends that it had no need for the striking employees
who applied after that date, but that it improvised work for them
to do. We find that these contentions are not supported by.the rec-
ord. On January 11 the respondent employed about 178 persons.
The strike reduced the number of employees to 125 on January 13.
Between January 12 and January 24, 16 new persons were hired, 19
strikers were reinstated upon application, and several non-striking
employees were transferred between departments. The record shows
that on January 24, 159 persons were working. Had these been suf-
ficient, it is fair to assume that the respondent would then have
ceased employing new employees. This the respondent did not do.
Between January 24 and the time of the hearing, the respondent
hired 20 new employees in addition to the 11 striking employees.
At the time of the hearing the respondent's personnel totaled 182
persons, a larger number than it employed prior to the strike. Under
these circumstances, we are convinced that the services of the 11
persons listed in Appendix A were required for the operation of the
plant.
All these striking employees had been satisfactory workers and
their seniority ranged from 2 to 22 years. Some of them had earned
as much as 60 cents an hour before the strike. It is unreasonable
to believe that the respondent would have retained less skilled and
experienced persons in their positions, or, on the other hand, em-
ployed them in positions which had to be filled at 40 cents an hour
and with the loss of their seniority and other rights, had the
respondent not been motivated by a desire to penalize them for their
strike activity. That such was the respondent's motive is evident
from Reis' warning at the time of their employment to "play ball
with the company," and from the testimony of Ulrey. His testimony
was as follows :
Q. What would you call it, putting an employee back to work
at 400 an hour and taking his seniority rights and all rights and
privileges he may have enjoyed prior to the coming out on a
strike; what would you call that when you went back to work
and had those things taken away from you?
A. I would consider it the cost of my folly.
Q. The cost of your folly for having gone on strike?
A. Absolutely.
In view of the foregoing facts, and upon the record as a whole,
we find that the employees listed in Appendix A were denied rein-
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement to their former positions and were employed in other posi-
tions as new employees, with inferior wage rates and loss of
seniority and other rights, because of their association with the Fed-
eral and their participation in the strike. By the above acts, we find
that the respondent has discriminated with regard to the hire, tenure,
terms, and conditions of employment of its employees, and has inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in the Act.34
F. Refusals to reinstate and/or discharges of strikers
The complaint alleges and the answer denies that the respondent
refused to reinstate and thereby discharged seven named persons 31.
because of their support of the Federal and because of concerted
activities for the purposes of collective bargaining; and that the
respondent discharged five named persons 36 because of their support
of the Teamsters and because of concerted activities for the purposes
of collective bargaining. We shall consider these complainants in two
groups: (1) strikers refused reinstatement or discharged allegedly
for violence during the strike; and (2) strikers who were refused
reinstatement for other reasons.
(1) Strikers refused reinstatement and/or discharged, allegedly for
violence 37
The altercations in which the striking and non-striking employees
engaged have been discussed in Section 111 1) above. The evidence was
in sharp conflict concerning responsibility for the violence; however,
a consideration of its general nature reveals that it consisted of fist
fights on the picket line and of verbal altercations, none of which
resulted in serious injury to the combatants, or in any injury whatever
to the respondent's property.SB After each encounter the respondent
34 At the time of the hearing Clarence Short and Harry Ludy had 'been assigned the
positions they occupied prior to the strike. *Ted Williamson and Ray Forehand testified
that they did not wish to be reinstated to their former positions . These matters will
be discussed below in the section on remedy.
85 These persons are Dorothy Lewellen, Marlin Hargis , Frank L. Traux, Robert White,
Robert Graphman , Vern Beaver , and Charles Bainake.
3s These persons are Ruel Faulk, Clovis Faulk, Harold ' Baker, Charles -Baker, and
Clarence Peters.
$'' Appendix B contains a list of these strikers with pertinent facts concerning their
employment.
"'We do not deem it necessary to a determination of the issue- of -discrimination to
allocate responsibility for the altercations which occurred during the strike, since, as is
pointed out in the Decision , the altercations were not the actual reasons for the discharges
or refusals to reinstate . Moreover, it is fair to presume that accusations of crimes or
breaches of the peace of any significance were investigated by the local law enforcement
agencies and such accusations should not, under these circumstances , be'tried by the-Board.
See Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9
ACME-EVANS COMPANY 101
obtained affidavits from its non-striking employees.39 Charges of as-
sault and battery were filed against four of the striking employees
considered in this section.40 None of the cases had come to trial at
the time the respondent discharged or refused to reinstate the strikers.
The respondent claims that it refused to reinstate and/or discharged
the strikers listed in Appendix B because of the violence revealed by
its investigation of the strike altercations and because of the charges
of assault and battery filed against the strikers.41
The record shows that the violence which occurred during the strike
was not the respondent's actual reason for refusing to reinstate and/or
discharging these striking employees. Involved in the altercations
which the respondent asserts formed the basis for its action were at
least 15 striking employees. Seven of these were employed by the
respondent upon application without any discipline for their partici-
pation and without any indication of disapproval of their part in
the encounters which the respondent assigns as the reason for termi-
nating the employment of other strikers. Moreover, although numer-
ous non-striking employees also engaged in these encounters, the re-
spondent took no,steps to discipline or restrain their activities; in fact,
the evidence strongly suggests that some of their combats with the
striking employees were condoned, if not actually encouraged, by the
respondent.42 Thus it is evident that all participants in the strike
altercations did not receive equal treatment.43
The manner in which the respondent investigated the strike alterca-
tions casts additional light on its true reason for refusing to reinstate
and discharging these striking employees. Its investigation was en-
tirely ex parte, consisting mainly of affidavits of non-striking em-
ployees. None of the strikers, many of whom had been satisfactory
employees for many years prior to the strike, were allowed to give their
versions of these highly controversial affrays. 'Moreover, the respond-
ent and its attorney in some cases suggested, and in :all cases assisted
N. L. R. B. 219, enf 'd as mod. Republic Steel Corporation v. National Labor Relations
Board, 107 F. (2d) 472 (C. C. A. 3), cert. den. 60 S. Ct. 806.
39 These affidavits , being respondent's exhibits numbered 31 to 69, 106, 131 and 132,
were excluded by the Trial Examiner . His ruling is reversed and these exhibits are
admitted in evidence , not as proof of the truth or falsity of the facts therein contained,
but for the limited purpose of showing the basis on which the respondent purported to
act in discharging , or refusing to reinstate, strikers.
40 These strikers were Charles Bainake, Vern Beaver, Harold Baker, and Robert
Graphman.
41 The respondent sent letters on March 11, 1939, to R. Grapbman , Charles Baker, Harold
Baker , Clovis Faulk , and Ruel Faulk discharging them for their participation in the
alleged violence.
42 As pointed out in Section III D above, Sopher and Beachman ..permitted at least 35
non-striking employees to leave work and participate with weapons in the January 14
incident . Moreover, on another occasion two non-striking employees were armed while
on duty. The arrest of one of these persons for carrying a concealed weapon did not in
any way affect his employment.
43 Compare Matter of Reed & Prince Manufacturing Company , and.Steel Workers Organ-
izing/ Committee of the C. 1. 0., 12 N. L. it. B. 944.
283035-42-vol. 24-8
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in, the filing of assault and battery charges against striking employees.
`The respondent's failure to accord the strikers a hearing, and its par-
-.ticipation in the cases filed against them, lead to the conclusion that
the purpose of its inquiry into these altercations was to find an excuse
for ridding itself of active union members.44
Finally, the record shows that of- all the strikers who engaged in
these encounters, the respondent selected for disciplinary action the
strikers who, apart from the strike incidents involved, were the most
active union members. None of the seven strikers who were rein-
stated despite participation in these altercations was particularly out-
standing in either union. However, two of the Federal members who
were refused reinstatement, namely, Bainake and Beaver, were among
the organizers of the Federal. The four Teamsters' members who were
discharged were all active sponsors of the Teamsters. At the hearing
Sopher admitted that he was opposed to the respondent's truck drivers
belonging to the Teamsters. It is significant, in view of Sopher's ad-
mission, that by March 11, 1939, the respondent had eliminated every
member of the Teamsters from its employ except Clarence Peters, who
was still on strike at the time of the hearing. These circumstances, in
conjunction with the respondent's prior hostility to the unions and
unfair labor practices which caused the strike, persuade us that the
respondent used the strike altercations as a pretext for terminating the
employment of the leaders of these unions.
The respondent, however, maintains that it was free to discharge
or refuse to reinstate persons who engaged in violence or were charged
with unlawful conduct, irrespective of its motives for so doing. As
authority for this position the respondent relies on the case of Na-
sional Labor Relations Board v. Fansteel Metallurgical Corporation 45
This situation is wholly different from that in the Fansteel case in
which the Supreme Court held that an employer could properly dis- `
charge employees because they had seized and held the plant of the
employer and had participated in extreme violence and destruction
of the employer's property. We do not think that the holding in
the Fansteel case, was intended to apply to a situation where the con-
duct of strikers amounted to no more than verbal altercations and
-fisticuffs on the picket line. None of the striking employees had been
convicted of unlawful acts at the time of the respondent's refusal
to reinstate or discharge of them, and the charges against them were
not of a grave nature. Moreover, there was no seizure or destruction
44 Compare Matter of Kentucky Firebrick Company and United Brick and Clay Workers
of America, Local Union No. 410, 3 N. L. R. B. 455 , enf'd. National Labor Relations Board
v. Kentucky Fire Brick Co., 99 F. (2d) 89 (C. C. A. 6).
45 306 U. S. 240. The respondent 's further contention that all members of the Federal
and the Teamsters engaged in an unlawful conspiracy and plan of violence is discussed
in our remedy section below.
ACME-EVANS COMPANY 103
'of, or trespass against, the respondent's property. Encounters be-
,tween striking and non-striking employees such as here occurred have
.been expressly distinguished by the courts from the type of conduct
which the Supreme Court had before it in the Fensteel case.46 Al-
.though we do not condone even minor violence or disorder, it cannot
be said that the conduct in which the persons here involved engaged
during the course of a strike called in protest against the respond-
ent's unfair labor practices in itself forfeited their rights under the
Act or justified refusals to reinstate or discharges under the authority
of the Fansteel case, especially when the respondent did not so
consider it for other employees not active in the unions.
Under all the circumstances, we find that the respondent refused
.to reinstate and/or discharged the persons listed in Appendix B be-
,cause of their participation in the strike and because of their union
membership and activity, thereby discriminating with respect to
,their hire and tenure of employment, discouraging membership in
the 'Federal and the Teamsters, and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
(2) Strikers refused reinstatement for other reasons
Dorothy Lewellen was employed by the respondent continuously
from March 10, 1938, until January 11, 1939, first as a bag patcher
.and later as a bag cleaner. She was doing the latter type of work
when she went out on strike on January 11. She joined the Federal
,on December 19, 1938. Her rate of pay was 38 cents an hour.
On February 1, 1939, Lewellen interviewed Dapp, the person hired
by the respondent during the strike to assist it in its personnel prob-
lems, in connection with her application for reinstatement. Dapp had
her fill out an application blank and told her that Reis, a vice presi-
dent, who was absent from the plant, would decide whether she could
be reinstated. Pursuant to an appointment made by Dapp, Lewellen
wNational Labor Relations Board v. Staekpole Carbon Company , 105 F. ( 2d) 169
(C. C. A. 3), cert. den. 60 S. Ct. 142; Republic Steel Corporation v. National Labor Rela-
tions Board, 107 F. ( 2d) 472 ( C. C. A. 3 ), cert. den ., 60 S. Ct. 806. In the latter case
the court said :
We think it must be conceded , however, that some disorder is unfortunately quite
usual in any extensive or long drawn out strike . A strike is essentially a battle
waged with economic weapons . Engaged in it are human beings whose feelings are
stirred to the depths . Rising passions call forth hot words . Hot words lead to blows
on the picket line. The transformation from economic to physical combat by those
engaged in the contest is difficult to prevent even when cool heads direct the fight.
Violence of this nature , however, much it is to be regretted, must have been in the
contemplation of the Congress when it provided in Section 13 of the Act that nothing
therein should be construed so as to interfere with or impede or diminish in any way
the right to strike . If this were not so the rights afforded to employees by the Act
would be indeed illusory . [ Italics supplied.]
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
returned to the plant in the afternoon of the same day to discuss her
reinstatement with him and Ulrey, the respondent's assistant plant
superintendent. Ulrey informed her that Reis had decided to abolish
the position of bag patcher. Dapp told her that he was sorry that
she had not returned at an earlier date when her job was still avail-
able. Lewellen tried, without success, to explain to Dapp and Ulrey
that her position at the time of the strike had been that of bag
cleaner instead of patcher. Dapp told Lewellen it was necessary for
her to take her separation papers to obtain unemployment insurance..
Lewellen then agreed to accept her papers.
Lewellen encountered difficulty in attempting to secure unemploy-
ment compensation because her separation papers stated that she was
still on strike. She therefore returned to the plant on February 3
or 4 at which time she received separation papers stating that the
respondent had discontinued employing female help. Dapp told
Lewellen on this occasion that the respondent had decided to eliminate
women workers in its mills. The respondent relied on this position
at the hearing to justify its refusal to reinstate Lewellen.
The evidence shows that the respondent had employed but one
female mill worker for several years. For 16 years prior to Lewellen's
employment, Mrs. Hasselburg, Lewellen's mother, had worked for the
respondent as a bag patcher. Lewellen was employed in 1938 when
her mother resigned due to illness. During the first few months of
her employment she patched bags; however, in the fall of 1938 the
respondent ceased repairing bags and thereafter Lewellen worked as
a bag cleaner. Shortly before the strike, when the respondent moved
its bag-cleaning department from one mill to another, Lewellen asked
Beachman if the change would affect her job. Beachman assured her
that it would not, and stated that the respondent intended to continue
her employment as a bag cleaner.
The respondent contends that it had for several years intended to
discontinue the employment of female mill workers because of the
inadequacy of its rest room and other facilities. The facts that the
respondent had employed a female worker in the mill for at least 17
years and had assured Lewellen shortly before the strike of an indefi-,
nite tenure of employment despite the alleged inadequacy of accommo-
dations for her persuade us that the respondent did not deny Lewellen
reinstatement for the reason advanced. We have seen that Lewellen
was initially denied reinstatement for the reason that the job of bag
patcher was to be discontinued. It .was after Lewellen protested that
the work done by her prior to the strike had been bag cleaning that
the, respondent announced its decision to discontinue female help.
These circumstances convince us that the respondent refused to rein-
state Lewellen, not for any business considerations which it now claims
ACME-EVANS COMPANY 105
.existed, but because of her union membership and' participation in the
strike.
We find that the respondent, by refusing to reinstate Lewellen on
February 1, discriminated with respect to her hire and tenure of em-
ployment, thereby discouraging membership in the Federal and inter..
fering with, restraining and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
Marlin Hargis had worked for the respondent for over four years
prior to January 12, 1939, when he went out on strike. At the time
of the strike he was employed as a bag cleaner and grader at 47 cents
an hour. He joined the Federal on January 7, 1939.
Hargis applied for reinstatement on February 28; 1939. Dapp
informed him that his former position had been filled and directed him
to make out an application blank. Hargis was offered and agreed to
take any work available at 40 cents an hour. He was told to report
back on March 6.
On March 6 Hargis interviewed Dapp, Ulrey, and Reis. In looking
over his application, Reis noted that Hargis had lived in Warren
County, Kentucky. Reis told Hargis that he had been involved in
crimes there. Hargis denied the accusation. Reis then told Hargis
that since his job had been filled, he could take his separation papers
or he could wait until his former position became available. Hargis,
being angry because of the accusations made by Reis concerning his
past record, stated that he would take his separation papers.
The respondent thus refused to reinstate Hargis to his former posi-
tion upon application on February 28, 1939. The respondent contends
(1) that Hargis' position was filled on that date,47 and (2), that it is
now under no obligation to reinstate Hargis because he voluntarily
terminated his employment on March 6.
With respect to the first contention, we have found in Section III
E, that the striking employees were entitled, upon application, to rein-
statement to the positions they held before they ceased work as a
consequence of the respondent's unfair labor practices. The record
shows that Hargis would have been reinstated to the position to which
he was entitled had the respondent, when Hargis applied on February
28, displaced, if necessary, the person who had been hired subsequent
to the strike to fill his place. The respondent's failure to do this con-
stituted a discrimination with respect to his hire and tenure of em-
ployment and a discouragement of membership in the Federal. Such
discrimination and discouragement of union membership was in viola-
tion of the Act.48
47 The record does not indicate the name of the employee who was hired to take Hargis'
place.
48 See cases cited in footnote 27, supra.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The March 6 incident does not establish the respondent's conten=-
tion that Hargis voluntarily severed his employment. Reis failed:
to explain at the hearing what he had in mind when he accused Hargis.
of participation in crimes. Ulrey, who was also present, was ignorant
of any knowledge of crimes on the part of Hargis. The total lack of
evidence to substantiate the accusation made by Reis against Hargis.
on March 6 supports the conclusion that Reis spoke as he did to pro-
voke Hargis into taking his separation papers.4° This conclusion is-
strengthened by the fact that Reis did not offer Hargis the alternative-
of taking work in the plant at 40 cents an hour, which was given to the
other striking employees, but, after accusing him of criminal -conduct,
gave him the choice of waiting indefinitely until his former position.
opened up, or of quitting the respondent's employ. We therefore find:
that Hargis did not voluntarily terminate his employment on March 6.
We find that the respondent, by refusing to reinstate Hargis on
February 28, 1939, discriminated with respect to his hire and tenure-
of employment, thereby discouraging membership in the Federal and'
thereby interfering with, restraining, and coercing its employees in,.
the exercise of the rights guaranteed in Section 7 of the Act.
Frank L. Traux worked for the respondent continuously fronv
September 10, 1938, until he went out on strike on January 13, 1939.
On the latter date he was employed as a floor sweeper at 43 cents an
hour. Traux joined the Federal on December 22, 1938.
Traux applied for reinstatement on February 28, 1939. He was-
interviewed by Dapp and Ulrey, and given the choice of the three-
courses we have discussed.5° Traux agreed to take whatever work the.
respondent would give him, and made out an application. He was.
told that there was no work available at that time.
The respondent asserts that the position Traux had occupied prior
to the strike was filled by a new employee hired subsequent to January
12, and that Traux was informed of this fact and was instructed to'
report back on March 6 for other work. Traux denied that he had
been so instructed. He had not been reemployed by the respondent
at the date of the hearing.
We find it unnecessary to determine whether Traux was in fact
instructed to return on March 6. The respondent refused to displace
or shift to other positions the person it had hired subsequent to the
commencement of the strike to take Traux's place. Such a refusal
discriminated against him in regard to his hire and tenure of employ-
ment at the time he applied for reinstatement.61 The fact that the
40 Compare Matter of Art Crayon Company, Inc., etc ., and United Artists Supply Workers,
7 N. L. R. B. 102.
"These courses were : ( 1) to take his separation papers ; ( 2) to wait until his former
job became available ; or (3) to take work at 40 cents an hour.
61 See cases cited in footnote 27, supra.
ACME-EVANS COMPANY 107'
respondent may have told him to apply again at a later date does not
make its refusal to reinstate him at the time of application any less
a discrimination, nor is it a reason for our not ordering his reinstate-
ment now. Once the respondent discriminatorily denied Traux rein-
statement it thereafter rested with the respondent to offer him rein-
statement if it desired to mitigate the consequences of its unfair labor'
practices.52
We find that the respondent, by denying Traux reinstatement on..
February 28 to the position he had held prior to the strike, discrimi-
nated in regard to his hire and tenure of employment, thereby discour-
aging membership in the Federal and thereby interfering with, re-
straining, and coercing its employees in the exercise of the rights,
guaranteed in Section 7 of the Act.
Robert White was employed by the respondent on July 15, 1936. He-
was employed. in the packing and loading department of Mill C at
47 cents an hour. He went on strike on January 12, 1939. He was
a member of the Federal.
White applied for reinstatement on February 15, 1939. Ulrey took;
his application but told him that he could not be employed until the,
respondent had investigated rumors of violence on his part during
the strike. He was .denied reinstatement again on March 8 for the-
same reason. White obtained other employment during the strike but.
he informed the respondent that he was not satisfied with it.
In its amended answer the respondent asserts that White did not
apply for reinstatement. The record clearly refutes that allegatioi:.
The respondent assigns no other reason, except the one given White
when he applied, for its refusals to reinstate him on February 15 and
March 8. Although White was present during some of the strike alter-
cations, the respondent's failure to allege or contend at the hearing
that White was refused reinstatement because of that presence clearly
shows that it played no part in the respondent's refusal to reinstate
him when he applied. Nor did the respondent contend that its inves-
tigation of the rumors of violence which Ulrey mentioned to White
on the dates he applied for reinstatement developed any grounds for
refusing to reinstate him. Irrespective of this, the respondent at no
time informed White that his record was clear, nor did it ever offer
him reinstatement. We find that the respondent refused White rein-
statement on February 15 and March 8 because of his participation
in the strike. By such refusal, the respondent discriminated with re-
gard to his hire and tenure of employment, thereby discouraging mem-
bership in the Federal and thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
52 Matter of Berkshire Knitting Mills and American Federation of Hosiery Workers,
Branch #10, 17 N. L. R. B. 239.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record indicates that White and other employees considered
in this section accepted their separation papers prior to the time they
were discriminatorily refused reinstatement or discharged. This was
done to enable them to secure other employment for the duration of the
strike. Such papers were also necessary for obtaining unemployment
insurance benefits. Other employees accepted their papers for the
same reasons after they were discriminatorily refused reinstatement
or discharged. The record clearly shows and we find that the ac-
ceptance of such papers was not considered by the respondent or the
employees as a voluntary severance of employment.
Clarence Peters had been employed by the respondent about 10 years
as a truck driver. He joined the Teamsters on December 23, 1938, and
went on strike January 12, 1939.
Although the complaint alleged that Peters had been discharged by
the respondent, the record reveals that Peters was still on strike at the
date of the hearing and that he had not been discharged. The re-
spondent stated that Peters would be reemployed upon application.53
We therefore find that the respondent has not discriminated with
respect to the hire and tenure of employment of Clarence Peters.
G. The re fwsal to bargain collectively
1. The appropriate unit
The complaint alleges and the Teamsters contend that an appropri-
ate unit for the purposes of collective bargaining consists of all truck
drivers of the respondent exclusive of production and maintenance
employees, supervisory officials, foremen, and clerical help. The re-
spondent takes the position that the truck drivers, production and
maintenance employees, and clerical employees should be embraced
in one unit. There is no dispute concerning the exclusion of foremen
and supervisors.
We have heretofore noted the general character of the respondent's
operations. 54 There are three mills which manufacture, process, pack,
and load the products produced by the respondent. Employed in these
mills are persons who operate machines which are used in the various
steps necessary to the manufacture of flour and grain, the milling of
corn, and- the production of cereals and other products. In addition,
car loaders or truckers, packers, maintenance men, and general laborers
53 The Trial Examiner found that the respondent refused to reinstate Peters by virtue
of the fact that his name was included in the respondent's supplemental answer of May
2, 1939, as one of the strikers the respondent was under no obligation to reinstate because
be allegedly participated In an illegal plan of violence . The respondent excepts to this
Interpretation of its answer . In view of the fact that Peters had not applied for rein-
statement and in view of the fact that the respondent stated at the hearing that he was
eligible for reemployment , we do not agree with the Trial Examiner 's finding.
54 See Section III B.
ACME-EVANS COMPANY 109,
are employed in connection with the operations of the mills. All em-
ployees working in each mill operate as a unit and are engaged in
one line of production at the same time. The respondent also employs
a staff of clerical workers, which is physically located in the respond-
ent's mills.
In addition to the mill workers, the respondent maintains a truck-
ing department in which are employed 9 or 10 drivers. These drivers
deliver the respondent's products mainly to customers in the city of
Indianapolis. After the drivers route the deliveries assigned to them,
they load their trucks at the various mills with the assistance of the
mill workers. The drivers have no other contact with the mill work-
ers. They take no part, in the operations of the respondent's mills,.
although when orders are slack some of them are occasionally assigned
to work in the warehouses to enable them to obtain their full week's;
time. The truck drivers must be employees of particular integrity
since they often handle as much as $350 of the respondent's money in a
day. The drivers spend most of their days away from the plant and
receive, on the average, a higher hourly rate of pay than the mill
workers.
It thus appears that the respondent's truck drivers are differentiated
from the mill workers in the character, locus, and responsibility of
their work, and in the wages they receive. In addition, the truck
drivers are eligible to membership in the Teamsters which does not
admit the mill workers or clerical employees. The mill workers and
the clerical employees are organized in the Federal. Under these
circumstances, we are of the opinion that the respondent's truck drivers
constitute a. unit appropriate for collective bargaining.
We find that all truck drivers of the respondent, exclusive of pro-
duction and maintenance employees, supervisory officials, and clerical.
help, at all times material herein constituted and that they now con-
stitiite a unit appropriate for the purposes of collective bargaining,
and that said unit insures to the employees the full benefit of their,
right to self-organization and to collective bargaining, and otherwise
.effectuates the policies of the Act.
2. The representation by the Teamsters of a majority in the appropriate,
unit
On December 23, 1938, the respondent employed nine truck drivers..
Seven of these drivers joined the Teamsters on that date and were still
members at the date of the hearing.55
The respondent contends that the events which occurred subsequent
to December 23 altered the majority designation of the Teamsters.
55 At the hearing , the seven drivers who belong to the Teamsters testified as to their
membership therein.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not concur in this argument. The discharges of Moneymaker
and Nall on January 9 did not operate to alter the Teamsters' desig-
nation. Such discharges were discriminatory and therefore did not
render Moneymaker and Nall ineligible to be counted in our deter-
mination of a representative. Moreover, even if, contrary to our find-
ing, Moneymaker and Nall were excluded from the computation, it
would not affect the majority status of the Teamsters. Similarly, the
fact that all but two of the truck drivers went on strike on January 12
did not deprive those persons of their employee status or of their right
as employees to designate a representative for collective bargaining.
The persons hired to fill their places are not eligible to participate in
the selection of bargaining representatives.68
On March 11, 1939, the respondent discharged four of the truck
drivers who were then on strike. However, these discharges occurred
subsequent to the time the respondent refused to bargain with the
Teamsters and therefore did not alter the Teamsters' majority desig-
nation at the time.of such refusal. As is heretofore found, such dis-
charges were discriminatory. Therefore, the persons so discharged
are still eligible to be counted in the determination of a representa-
tive, for to hold otherwise would allow the respondent's unfair labor
practices to change the bargaining representative previously selected
freely by a majority of employees in the. appropriate unit.67
We find that on December 23, 1938, and at all times thereafter, the
Teamsters was the duly designated representative of the majority of
66 We have often held that strikebreakers may not participate in the designation of a
bargaining representative while a strike is still current . Matter of A. Sartorius d Co.,
Inc. and United Mine Workers of America, District 50, Local 12090, 10 N . L. R. B. 493;
Matter of Horace G. Prettyman and Int. Typographical Union, 12 N . L. R. B. 640;
Matter of Easton Publishing Company and Easton Typographical Union No. 258, affiliated
with International Typographical Union, 19 N . L. R. B. 389 . In the Sartorius case we said :
The hold of individuals who, during the currency of a strike , occupy positions vacated
by striking employees is notably tenuous. To accord such Individuals , while the
strike is still current , a voice in the selection of. the bargaining representative of the
employees in the appropriate unit would be contrary to the purposes of the Act and
the ends contemplated by it, since It might effectively foreclose the possibility of the
settlement of the labor dispute , whether by the return of the striking employees to
their jobs and the displacement of the individuals occupying those jobs during the
strike, or by some other settlement agreement , a possibility which the Act con-
templates should not be foreclosed during the pendency of a strike.
Where, as here , the strike which is still current is the result of the respondent 's unfair
labor practices , an additional reason appears for preventing strikebreakers from participat-
ing in the selection of the bargaining representative , since the respondent must displace,
if necessary , all strikebreakers to reinstate the striking employees when they apply. See
cases cited in footnote 27, supra.
67 See Matter of Williams Manufacturing Company, Portsmouth, Ohio and United Shoe
Workers of America, Portsmouth, Ohio, 6 N. L. R . B. 135. See also Matter of Trenton-
Philadelphia Coach Company and Amalgamated Association of Street , Electric Railway
and Motor Coach Employees of America , 6 N. L. R. B. 112 ; Matter of Mcfaigh-Hatch,
Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of North America,
Local No. 1139, etc., 10 N . L. R. B. 33.
ACME-EVANS COMPANY 111
the employees in the appropriate unit for purposes of collective bar-
gaining, and that pursuant to Section 9 (a) of the Act was the exclu-
.sive representative of all the employees in such unit for purposes of
collective bargaining.
3. The refusal to bargain collectively with the Teamsters
On February 10, 1939, Joseph E. Williams, secretary-treasurer of the
'Teamsters, met with Vice-Presidents Harrell and Reis in the office of
Kurt Pantzer, the respondent's attorney. Williams stated that he de-
sired to negotiate an agreement for the respondent's truck drivers.
Pantzer demanded that Williams show his credentials which entitled
him to speak for the drivers. Williams replied that he was an official
of the Teamsters and the record shows that Pantzer was aware of this
fact. Pantzer then stated that he would not advise the respondent to
negotiate until Williams had established that the Teamsters repre-
sented a majority of employees in the plant. Williams replied that he
was speaking for the truck drivers only, and that the Teamsters repre-
sented a majority of them. Williams offered to submit the Teamsters'
membership cards to the Regional Office of the Board for an informal
check, but his offer was rejected. Williams tried to show Harrell and
Reis a copy of an agreement customarily used by employers who had
contracts with the Teamsters, but Pantzer refused to allow them to look
at it. Pantzer stated that before the respondent could consider any
agreement, three matters had to be settled: (1) what was the appro-
priate unit; (2) whether the Teamsters represented a majority in
such unit; and (3) whether all the employees in such unit who were
members of the Teamsters were eligible to be counted.
On February 13 Williams wrote to Pantzer on behalf of the Team-
sters, again requesting that the respondent bargain collectively and
:submitting a copy of a proposed agreement. On February 18 Pantzer
returned the copy of the proposed agreement to Williams in a letter
which stated that the respondent would not bargain with the Teamsters
until the three matters discussed above had been settled. In this
communication Pantzer asserted that it was not to the respondent's
liking to sit down and bargain with the Teamsters because certain of
its members had been guilty of violations of law. The Teamsters did
not make further attempts to negotiate on behalf of the respondent's
truck drivers.
The respondent admits that it refused to enter into negotiations
with the Teamsters on February 10 and 18. It asserts that it was
under no duty to do so until the Board had determined the appropriate
unit and the majority designation of the Teamsters. In discussing a
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
similar contention, the court in National Labor Relations Board v.-
Piqua Munising Wood Products Co.,-'s stated :
The Act assumed the existence of a quasi or constructive contract
whereby a legal obligation was imposed on the employer, even
against his intention, to deal with an appropriate unit of his-
employees, through their chosen representative, concerning the-
matters referred to in the Statute and the Board is without juris-
diction until the employer has violated his obligation and a com-
plaint has been lodged with the Board pursuant to 10 (c) of the.
Act. The employer acts at his peril in refusing to recognize a
duly selected bargaining agency of an appropriate unit of his
employees unless the facts show that in the exercise of reasonable-
judgment he lacked knowledge of the appropriateness of the unit
or the selection of the majority representatives.
Similarly, in National Labor Relations Board v. Remington Rand,.
Inc.,-" the court, in discussing the respondent's claim that a doubt as to.
the union's designation excused a refusal by the respondent to bar-
gain, stated that when there is a "real doubt . . . the employer need
not decide the issue at his peril . . . but from that immunity it does.
not in the least follow that he need be.satisfied with no evidence except
the Board's certificate; it may be entirely apparent from other sources
that (the union) really represents a majority." 80
The circumstances surrounding the refusal of the respondent to,
deal with the Teamsters reveal that the respondent was not motivated
by a real or reasonable doubt concerning the unit or the designation of
the Teamsters. With respect to the unit, we have already noted the
factors which differentiate the work of the truck drivers from that of
the mill and office employees. Irrespective of these differences, the
respondent in its,exceptions asserts that it took into account the fact
that some of its employees consider themselves "one large family" and
do not wish to be organized in two unions. It is true ,that several of
the respondent's witnesses; including its plant superintetldent, :so,
testified at the hearing. However, at the time the respondent allegedly
doubted the appropriateness of the unit sought by the Teamsters, a
great many of its employees had indicated a contrary desire by form-
ing and joining two unions. The employees who testified that they
sa 109 F. (2d) 552 (C. C. A. 6) enf'g Matter of Piqua Munising Wood Products Com-
pany and Federal Labor Union Local 18787, 7 N. L. R. B. 782.
c094 F. (2d) 862.(C. C. A. 2)„cert. den. 304 U. S. 576.
w See also N. L. R. B. V. Lund, et at., 103 F. (2d) 815 (C. C. A. 8 ), enf'g and remand-
ing Matter of C. A. Lund Company and Novelty Workers Union, etc ., 6 N. L. R. B. 423;
N. L. R. B. v. National Motor Bearing Company, etc., i05 F. (2d) 652 (C. C. A. 9),
enf'g as mod. Matter of National Motor Bearing Company and International Union,
United Automobile Workers of America, Local No. 76, S N. L. R. B. 409; N. L. R. B. v.
Biles-Coleman Lumber Co., 98 F. (2d) 18 (C. C. A. 9), enf'g Matter of Biles-Coleman
Lumber Company and Puget Sound District Council of Lumber and Sawmill Workers,
4 N. L. R. B. 679.
ACME-EVANS COMPANY ' 113
preferred but one organization had taken no steps toward selecting
.a representative for collective bargaining. We feel convinced that the
respondent's alleged doubt as to the unit was not based.. on the wishes
.of its employees but rather upon its desire to interfere with self-
,organization of its employees, who had organized themselves in sepa-
rate unions. The differences in the character of the work performed
in the plant, and the fact that the employees who were organized
-desired separate units for collective bargaining, certainly indicated to
the respondent the propriety of the unit sought by the Teamsters.
With respect to the designation of the Teamsters by a majority
-in the unit, the record shows that seven of the nine truck drivers em-
ployed on December 23 joined the Teamsters. Between December 23
..and January 12 the respondent learned the names of the Teamsters'
leaders. On January 12 the seven Teamsters" members. went out on
strike. These facts indicate that the designation of the Teamsters
was known to the respondent at least by January 12. Moreover, when
Williams claimed that the Teamsters represented. a majority of em-
ployees on February 10 the respondent did not request proof of that
.assertion. Williams' offer to submit to an informal check of the
'Teamsters' membership by the Regional Office of the Board' was re-
jected by the respondent. These circumstances persuade us that the
respondent did not entertain any reasonable doubt concerning the,
'Teamsters' designation when it refused to bargain on February 10
and 18.
Moreover, a consideration of the entire record in this case leads in-
revitably to the conclusion that the respondent's purported doubts about
the appropriateness of the unit sought by the Teamsters and the
designation of the Teamsters were not genuine but were based on a
determination to evade its duty to deal with the selected representa-
tive of its truck drivers. We have already noted the program of intimi-
dation, restraint, and coercion, the respondent directed against its em-
ployees to discourage membership in the Teamsters. This program
consisted of coercive inquiries into, and restrictions upon, Teamsters'
activities, surveillance of Teamsters' meeting places, and discriminatory
discharges of truck drivers who sponsored the Teamsters. In addition
to these overt acts, the respondent has revealed its hostility towards
the Teamsters in numerous other ways. Thus, in the letter its attorney
wrote to Williams on February 18 the respondent declared that it was
not to its liking to sit down with the Teamsters. The respondent's
,officials in their testimony at the hearing disclosed a strong antipathy
toward this organization and in its brief the respondent asserts that
the members and officers of the Teamsters are "personally obnoxious"
and "odious" to the respondent. Sopher, the, respondent's plant super-
intendent, admitted at the hearing that he was opposed to the truck
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers joining the Teamsters. Possessed of such a dislike for the
Teamsters, the respondent and its attorney advanced every conceivable
objection at their disposal to avoid dealing with the representative of
the employees. Thus, the respondent's attorney questioned Williams'
authority, although he knew that Williams was -an officer of the
Teamsters. The unit sought by the Teamsters, and its majority desig-
nation, were challenged, although facts in the respondent's possession
manifestly suggested the validity of both. And the respondent ques-
tioned the eligibility of the members of the Teamsters to select a bar-
gaining representative, although, as pointed out below, the claim of
ineligibility lacked foundation in fact. Under these circumstances,,
it seems clear that the respondent did not in good faith and in the
exercise of reasonable judgment doubt the appropriateness of the unit
or the designation of the Teamsters. We therefore find no merit to
the respondent's claim that it was not obliged to negotiate until the
Board had determined the appropriate unit and the designation of
the Teamsters.
As pointed out above, the third objection to negotiating that the,
respondent posed in its discussion with Williams on February 10 was
the question of whether the truck drivers who belonged to the Team-
sters were eligible to participate in the selection of a bargaining. repre-
sentative. In its brief and exceptions the respondent insists that these
persons were ineligible to be counted in the determination of the Team-
sters' membership as of February 10 because they violated the Sherman
Anti-Trust Act and various State laws. This contention is discussed
in Section V below and there found to be without merit. The respond-
ent also urges that its striking truck drivers lost their employee status
by engaging in some of the altercations during the strike. We cannot
concur in this argument. The respondent had not interrupted their
employee status on the dates it refused to bargain. Its subsequent
termination of the employment of some of the drivers, for the alleged
reason that they engaged in the strike altercations, was in violation of
the Act. Under these circumstances, we find that the respondent's
assignment of this ground as an excuse for its refusal to bargain was a
further attempt to avoid its obligation under Section 8 (5) of the Act.
The respondent finally contends that it was under no obligation to
bargain with the Teamsters because it disliked the past history and'
reputation of the Teamsters, its officers and members. To establish
such history and reputation, the respondent offered evidence which
was excluded by the Trial Examiner.61 We find that evidence of the
81 This evidence, embodied in numerous offers of proof , consisted of oral testimony and
the proceedings in the cases of Peats V. State, 12 N . E. 270 ( 1938 ), Crickmore v. State,
12 N. E . 266 (1938), and the certified transcript of the complaint and entry by the Marion
County, Indiana, Circuit Court in the case of Penny v. Craig et al., and was offered to
show the respondent ' s knowledge of the Teamsters ' activities and the general reputation
of the Teamsters among businessmen in Indianapolis.
ACME-EVANS COMPANY 115
past history and reputation of the Teamsters was properly excluded
in so far as it was offered as a defense to the respondent's refusal to
bargain. We find no merit in the respondent's contention. As was
stated by the court in National Labor Relations Board v. Remington
Rand, Inc.,62
Though the union may have misconducted itself, it has a locus
poenitentiae; if it offers in good faith to treat (with the em-
ployer), the employer may not refuse because of its past sins.63
We find that on February 10 and 18 the respondent refused to
bargain collectively with the Teamsters as the representative of its
truck drivers in respect to rates of pay, wages, and hours of employ-
ment, and thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III,
B to G, above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom, and in aid
of such order and as a means of removing and avoiding the conse-
quences of such practices, we will order the respondent to take certain
affirmative action, more particularly described below, designed to
effectuate the policies of the Act. ,
We have found that the respondent discriminated with regard to
the hire and tenure of employment of Lowell Chastain, Ralph Money-
maker and James Nall .64 These employees were never offered rein-
statement by the respondent. Although they picketed the respondent's
plant during the strike, the record does not show that they would not
have accepted reinstatement subsequent to their discharges had it been
offered. We shall, therefore, order their reinstatement to their former
or substantially equivalent positions with full seniority and other
rights and privileges and with back pay as hereinafter set forth.
02 94 F. ( 2d) 862 (C. C. A. 2), cert. den. 304 U. S. 576.
3 See also N. L. R. B. v. Carlisle Lumber Co ., 94 F. (2d) 138 (C. C. A. 9 ), cert. den.
304 U. S. 575; Republio Steel Corporation V. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3),
cert. den . 60 S. Ct. 806.
04 The respondent 's claim that Moneymaker and Nall engaged in conduct which should
bar their reinstatement is discussed below and found to be without merit.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that the persons listed in Appendices A and B and
Dorothy Lewellen, Robert White, Marlin Hargis, and Frank L. Traux
ceased work as a result of the respondent's unfair labor practices and
that the respondent discriminated regarding their hire, tenure, and/or
terms and conditions of employment. We shall, therefore, order the
:respondent to offer each of them except Short, Ludy, Williamson, and
Forehand, listed in Appendix A, reinstatement to their former or
.substantially equivalent positions, With full seniority and other rights
.and privileges, and with back pay as hereinafter set forth. With re-
gard to the four employees last named, Short and Ludy had been
reinstated to the positions to which they were entitled at the time of
the hearing, and Williamson and Forehand had been reinstated to
other positions and do not wish reinstatement to their former positions.
Our order shall direct, therefore, that these four persons be restored to
their seniority and other rights and privileges, with back pay as
hereinafter provided.
Even were we to assume, as the respondent contends, that the re-
spondent did not engage in unfair labor practices within the meaning
• of Section 8 (3) of the Act with respect to the persons listed in Appen-
dices A and B and Dorothy Lewellen, Robert White, Marlin Hargis,
and Frank L. Traux, since the strike was caused by the respondent's
unfair labor practices we would nevertheless under the circumstances
in this case order the respondent to restore them to their status quo
with back pay in the manner herein set forth in order to remedy the
respondent's unfair labor practices and thus effectuate the policies
.of the Act.65
Since the strike was caused by the respondent's unfair labor prac-
tices, we shall also, in accordance with our usual practice, order the
respondent, upon application, to offer reinstatement to their former
or substantially equivalent positions to those employees who went out
on strike, including Clarence Peters,6 and have not since applied for,
or been fully reinstated, with back pay as hereinafter provided. This
provision in our order shall apply to all strikers, whether or not their
--names appear in the complaint.
es See Matter of American Manufacturing Company et al. and Textile Workers Organiz-
ing Committee , C. I. 0., 5 N. L. R. B. 443, enf 'd as mod., National Labor Relations Board
--v. American Manufacturing Company, 106 F. (2d) 61 (C. C. A. 2) ; Matter of Western
Felt Works, a corporation and Textile Workers Organizing Committee, 10 N. L. R. B. 407,
448, for the application of a similar remedy.
16 The record shows that subsequent to the commencement of the strike the respondent
replaced all its striking truck drivers with new employees . In its exceptions the respond-
ent argues that it is under no obligation to reemploy Peters In his former position because
::such position is now occupied by a new employee . For the reasons set forth in Section
III E , we find that Peters is entitled, upon' application , to reinstatement to the position
-.-he occupied at the time he ceased work in protest against the respondent 's unfair labor
practices . We find that the policies of the Act will best be effectuated by ordering the
respondent to reinstate Peters, upon application, to the position he occupied prior to
-,,the strike.
ACME-EVANS COMPANY 117
The respondent asserts. that the Board is without power to remedy
the unfair labor practices because the striking employees violated the
Sherman Anti-Trust Act and certain of the laws of Indiana, and en-
gaged in an illegal conspiracy to commit acts of violence against the
respondent's employees and property. The respondent was permitted
to adduce evidence concerning the activities of the striking employees
during the strike and charges or convictions of violation of law. The
Trial Examiner refused to allow the respondent to introduce evidence
which it claimed would establish violations by the strikers of Federal
and State laws, where there were no convictions or prosecutions to show
that the laws in question had in fact been violated .'117 We have affirmed
his ruling. We do not believe that the policies of the Act would be
effectuated were we to constitute ourselves a tribunal to receive evi-
dence, and render judgment, concerning alleged violations of other
Federal or State laws. Moreover, even were we to give full weight
to the respondent's offers of proof on the excluded evidence, which it
claims establish the illegal conspiracy, the record would show no more
than that the employees conspired to strike in protest against the re-
spondent's unfair labor practices. Their right to do so is fully pro-
tected by the Act. We find no merit to the respondent's contention
that the Board lacks power to remedy the unfair labor practices for
the reasons advanced.
The respondent contends that certain of these striking employees,
namely, the persons-listed in Appendix B and Moneymaker and Nall,
should not be reinstated because of their conduct-during the strike.
We have heretofore considered the general nature of the strike alter-
cations in so far as they were relevant to the question of whether
the respondent discriminated against certain employees by refusing'
to reinstate or discharging them. We consider now the effect of this
evidence on the order which should be made to remedy the effect of
the respondent's unfair labor practices.
As pointed out above, the sum of the violence which occurred during
the strike amounted to fisticuffs and verbal altercations between strik-
ing and non-striking employees. There resulted no serious injury
to persons and no injury, whatsoever to the respondent's property.
Charges of assault and battery were filed against several employees.
The case against Moneymaker was tried in January 1939 and resulted
in a finding of guilty. The court, however, withheld judgment.
Cases involving Bainake, Beaver, Graphman, and H. Baker were tried
07 To establish the alleged violation of the Sherman Anti-Trust Act and the alleged illegal
conspiracy to commit acts of violence against the respondent's employees and property, the
respondent offered evidence concerning the past history of the Teamsters (see footnote 61,
supra), the occurrences at several meetings of the unions, including the meeting at which
the strike was voted, and a list of all the strikers who picketed the plant during the
strike. The respondent also offered certain laws, and bills then pending before the
Indiana legislature, concerning the stoppage in transit of perishable products.
283035-42-vol. 24-9
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on April 16, 1940. These persons were found guilty of assault and
battery and each was fined $5 and costs. The fines and costs, how-
ever, were suspended by the court. H. Baker was also tried in con-
nection with a second charge of assault, found guilty and fined $1
and costs, both the fine and costs being suspended. Nall was charged
with assault but the charges were dismissed by the Court.68
We cannot concur in the respondent's contention that the evidence
discussed above warrants us in denying reinstatement to any of the
persons involved who would otherwise be ' entitled to reinstatement
under our order. The Board's power of reinstatement is discretionary
in nature, to be exercised in the light of all the circumstances of the
case and in the manner best calculated to effectuate the purposes ' of
the Act. The strike, altercations, and the cases of assault and battery
involving certain of the employees, grew out of a strike caused by
the unfair labor practices of the respondent. We do not find that
any one of the persons involved in such altercations is not a suitable
employee or that his reinstatement would tend to encourage violence
in labor disputes.69. We are mindful, in arriving at.this determina-
tion, that the respondent itself reinstated persons who also engaged
in conduct similar to that for which it now would deny other striking
employees reinstatement and further that the respondent did not take
any disciplinary action against non-striking employees who engaged
in the strike altercations. Without condoning the disputes and `en-
counters which occurred during the strike, in order to effectuate the
purposes of the Act we hold that none of the persons against whom
the respondent discriminated with respect to their hire and tenure
of employment engaged in conduct during the course of the strike
which constitutes a bar to his reinstatement under our order.
The reinstatement of Chastain, Moneymaker, and Nall, the persons
listed in Appendix A 70 and Appendix B, and Lewellen, White, Har-
gis, and Traux, shall be effected in the following manner : All persons
hired after January 12, 1939, the date of the commencement of,the
strike, shall be dismissed if necessary to provide employment for
those to be offered reinstatement to their former or substantially
equivalent employment. If, after this is done, there is not, by reason
08 We take judicial notice of the outcome, set forth above, of the charges of assault
and battery filed against the employees named above. See Republic Steel Corporation V.
National Labor Relations, Board, 107 F. (2d) 472. (C. C. A. 3), cert. den. 60 S. Ct. 806.
10 The conduct of the striking employees here considered comes within the rule defined
by the court in the Republic Steel case, cited footnote 68 above, where it was held that
conduct such as here occurred in connection with a strike caused by the respondent's
illegal conduct cannot bar employees from the possibility of reinstatement. ' See also.
National Labor Relations Board v. Carlisle Lumber Company, 94 Fed. (2d) 138 (C. C. A.
9), cert. den. 304 U. S. 575; National Labor Relations Board v. Kiddie Dover Manufactur-
ing Company at al., 105 F. (2d) 179 (C. C. A. 6).
70 This does not include Short, Ludy, Williamson, and Forehand for reasons explained,
supra.
ACME-EVANS COMPANY 119
of a reduction in the force of employees needed, sufficient employment
immediately available for the remaining employees; including those
to be offered reinstatement, all available positions shall be distributed
among such remaining employees, in accordance with the respond-
ent's usual method of reducing its force, without discrimination
against any employee because of his affiliation with, or activities -on
behalf of, the Federal or the Teamsters, following the system of
seniority to such extent as has been heretofore applied in the conduct
of the respondent's business. Those employees, if any, remaining
after such distribution, for whom no employment is immediately
available, shall be placed upon a preferential list prepared in accord-
ance with the principles set forth in the preceding sentence , and shall,
thereafter, in accordance with such list, be reemployed in their former
or substantially equivalent positions as such employment becomes
available and before other persons are hired for such work.
The respondent shall make payment to Chastain, Moneymaker,
and Nall, respectively, an amount equal to that which each would
have earned as wages during the period from the date of his discharge
to the date of the offer, of reinstatement or placement on the prefer-
ential list,41 less his net earnings72 during that period, had he not been
discriminatorily discharged.
The respondent shall make payment to each of the employees listed
in Appendix A except Short, Ludy, Williamson, and Forehand, of an
amount equal to that which he would have earned as wages had he not
been refused reinstatement to his former position during the period
from the date of the respondent's refusal to reinstate him to his former
position to the date of the offer of such reinstatement, or placement
on the preferential list, less his net earnings 73 during that period.
The respondent shall make payment to Short and Ludy, Williamson
and Forehand, an amount equal to that which each would have earned
as wages had he not been refused reinstatement to his former position
41 This will include the period of - the strike which was caused by their discriminatory
discharges . See Matter of Atlas Mills, Inc. and Textile House Workers Union No. 2269,
etc., 3 N. L. R. B. 10; Matter of Star Publishing Company and Seattle Newspaper Guild,
Local No . 82, 4 N. L. R. B. 498 , enf'd N. L. R. B. v. Star Publishing Company, 97 F. (2d)
465 (C. C. A. 9) ; Matter of Lindeman Power and Equipment Company and International
Association of Machinists, 11 N. L. R. B. 868.
72 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by such employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America.
Lain her and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for
work performed upon Federal , 'State , county, municipal, or other work-relief projects are
not considered as earnings , but, as provided below in the Order , shall be deducted from
the sum due the employee ; and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal, State , county, municipal , or other government or governments
which supplied the funds for said work-relief projects.
,3 See footnote 72, supra.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the period from the date of the respondent's refusal to rein-
state him to his former position to the date of his reinstatement to
such position, in the cases of Short and Ludy, and to the date that
he testified that he did not desire reinstatement to his former position
in the cases of Williamson and Forehand, less his net earnings 73a
during such period.
We shall order the respondent to pay to Dorothy Lewellen, Robert
White, Marlin Hargis, and Frank L. Traux and each of the employees
listed in Appendix B 74 an amount equal to that which each would have
earned as wages had the respondent not discriminated against him
during the period from the date of the discrimination to the date of
the offer of reinstatement or placement upon the preferential list, less
his net earnings 75 during that period.
We shall likewise order the respondent to make whole the other em-
ployees, including Clarence Peters, ordered to be reinstated, and who
have not applied for reinstatement or been fully reinstated, for any
loss of pay which they will have suffered by reason of the respondent's
refusal to reinstate them, upon application, following the issuance of
the order, by payment to each of them, respectively, of a sum of money
equal to the amount which he would normally have earned as wages
during the period from five days after the date of such application
for reinstatement to the date of the offer of employment or placement
on a preferential list as described above, less his net earnings 76 during
said period.77
We have found that the respondent refused to bargain collectively
with the Teamsters on February 10 and 18. We shall, therefore, in
order to effectuate the policies of the Act, order the respondent, upon
request, to bargain collectively with the Teamsters.
We have found that the respondent has not discriminated with re-
gard to the hire and tenure of employment of Clarence Peters. We
will therefore dismiss the complaint as to him.
VI. THE PETITION
In view of our findings in Section III G above, as to the appropriate
bargaining unit and the designation of the Teamsters by a majority
of the respondent's employees in the appropriate bargaining, unit, it is
73. See footnote 72, supra.
74 As appears in Appendix B, Robert Graphman was refused reinstatement on February
3, 1939, and was discharged on March 11, 1939. His back pay shall run from the date
of the respondent's refusal to reinstate him.
76 See footnote 72, supra.
7a See footnote 72, supra.
77 Matter of Oregon Worsted Company and United Textile Workers of America, Local
8485, 3 N. L. R. B. 36, enf'd N. L. R. B. v. Oregon Worsted Company, 97 F. (2d) 193
(C. C. A. 9 ) ; The M. H. Ritzwoller Company v . National Labor Relations Board, 114 F. (2d)
432 (C. C. A. 7) enf'g as modified, 15 N. L. R. B. 15.
ACME-EVANS COMPANY 121
not necessary to consider the petition of the Teamsters for certification
of representatives. Consequently, the petition will be dismissed.
Upon the basis of the foregoing findings of fact and the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Federal Labor Union No. 21873, affiliated with the American
Federation of Labor, and International Brotherhood of Teamsters &.
Chauffeurs, Stablemen and Helpers, Local Union 135, affiliated with
the American Federation of Labor, are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure and/or terms
or conditions of employment of Lowell Chastain, Ralph Moneymaker,
and James Nall, the persons listed in Appendix A and Appendix B,
and Dorothy Lewellen, Robert White, Marlin Hargis, and,Frank L.
Traux, thereby discouraging membership in the Federal and the
Teamsters, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
3. All truck drivers of the respondent, exclusive of production and
maintenance employees, supervisory officials, and clerical help, at
all times material herein constituted and now constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
4. International Brotherhood of Teamsters & Chauffeurs, Stablemen
and Helpers, Local Union 135, affiliated with the American Federa-
tion of Labor, is the exclusive representative of all the employees in
such unit for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
5. By refusing on February 10 and 18 to bargain collectively with
the Teamsters as the exclusive representative of all its employees in
such unit, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (5) of the Act.
6. 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 unfair labor practices within the meaning
of Section 8 (1) of the Act.
. T. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
8. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act with regard to Clarence
Peters.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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,
Acme-Evans Company, Indianapolis, Indiana, and its officers, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Federal Labor Union No. 21873
or International Brotherhood of Teamsters & Chauffeurs, Stablemen
and Helpers, Local Union 135, or in any other labor organization of
its employees, by discriminating with regard to the hire or tenure of
employment or any other term or condition of employment of its
employees;
(b) Refusing to bargain collectively with International Brotherhood
of Teamsters & Chauffeurs, Stablemen and Helpers, Local Union 135,
as the exclusive representative of its truck drivers, exclusive of pro-
duction and maintenance employees, supervisory officials, and clerical
help;
(c) In any other manner interfering with, restraining, or coercing its
employees in the exercise of their rights 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 purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Lowell Chastain, Ralph Moneymaker, and James Nall;
offer to the persons listed in Appendix A, except Short, Ludy, Wil-
liamson, and Forehand; offer to the persons listed in Appendix B;
offer to Dorothy Lewellen, Robert White, Frank L. Traux, and Marlin
Hargis; and, upon application, offer to those employees who went out
on strike on January 12, 1939, and thereafter, including Clarence
Peters, immediate and full reinstatement to their former or substan-
tially equivalent positions, and restore to them their former wage
rates, without prejudice to their seniority or other rights and privi-
leges, in the,manner set forth in the section entitled "The remedy"
above; placing those employees for whom employment is not immedi-
ately available upon a preferential list in the manner set forth in
said section, and thereafter, in said manner, offer them employment
as it becomes available;
(b) Restore to Clarence Short, Harry Ludy, Ted A. Williamson,
and Ray Forehand their seniority and other rights and privileges;
ACME-EVANS COMPANY 123
(c) Make whole Lowell Chastain, Ralph Moneymaker, and James
Nall, the employees listed in Appendix A except Clarence Short, Harry
Ludy, Ted Williamson, and Ray Forehand, the persons listed in Ap-
pendix B, and Dorothy Lewellen, Robert White, Marlin Hargis, and
Frank L. Traux, for any loss of pay they have suffered by reason of
the respondent's discriminatory acts, by payment to them, respectively,
of a sum of money equal to that which each would normally have
earned as wages during the period from the date of their discharges
or refusals of reinstatement, to the dates of their reinstatement or
placement upon a preferential list,'required by paragraph (a) above,
less his net earnings during said period; deducting, however, from the
amount otherwise due to each of the said employees monies received
by said employees during said period for work performed on Federal,
State, county, municipal, or other work-relief projects, and pay over
the amount so'deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which,
supplied the funds for said work-relief projects;
(d) Make whole Clarence Short, Harry Ludy, Ted Williamson, and
Ray Forehand for any loss of pay they have suffered by reason of
the respondent's discriminatory acts, by payment to them, respectively,
of a sum of money equal to that which each would normally have
earned as wages during the period from the date of his refusal of rein-,
statement to his former position to the date of such reinstatement,
in the cases of Short and Ludy, and to the date that they testified
that they did not desire such reinstatement, in the cases of Williamson
and Forehand, less his net earnings during said period;
(e) Make whole the other employees ordered to be offered rein-
statement and who have not applied for reinstatement or been fully
reinstated, including Clarence Peters, for any loss of pay they will
have suffered by reason of the respondent's refusal to reinstate them,
upon application, following the issuance of this Order, by payment
to each of them, respectively, of a sum of money equal to that which
each would normally have earned as wages during the period from
five (5) days after the date of such application for reinstatement to
the date of the offer of employment or placement upon a preferential
list, required by paragraph (a) above, less his net earnings during said
period;
(f) Upon request, bargain collectively with International Brother-
hood of Teamsters & Chauffeurs, Stablemen and Helpers, Local Union
135, as the exclusive representative of the employees in the unit found
appropriate;
(g) Post immediately in conspicuous places in its mills, and main-
tain for a period of at least sixty (60) consecutive days' from the date
of posting, notices to its employees, stating: (1) that the respondent
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
will not engage in the conduct from which it is ordered to cease and
desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the
respondent will take the affirmative action set forth in paragraphs
2 (a), (b), (c), (d), (e), and (f) of this Order; and (3) that the
respondent's employees are free to become or remain members of In-
ternational Brotherhood of Teamsters & Chauffeurs, Stablemen and
Helpers, Local Union 135, and Federal Labor Union No. 21873 and the
respondent will not discriminate against any employee because of mem-
bership in either union;
(h) Notify the Regional Director for the Eleventh Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the complaint that
the respondent has discriminated with regard to the hire and tenure
of employment of Clarence Peters, and the petition for investigation
of representatives be, and they hereby are, dismissed.
APPENDIX A
mN
Employment prior to strike
Hourly
wage
rate
Date of
applica-
tion for
Date of
employ-
Employment at date of hearing
Hourly
wage
rate ata e
Jan. 12, reinstate- ment time of
Department Position '39 ment Department Position hearing
Bewley, William --------- Mill C-packing & loading -------- Car loader____________ 48 2/1/30 2/6/39 Mill B-packing & loading-------- Trucker ------- 48
Forehand, Ray ---------- Mill C-packing & loading -------- Floor man ------------ 50 1/30/39 1/30/39 Mill B-packing & loading-------- General labor- 48
Judson, John ------------ Mill B-manufacturing-__-_______ Night miller or feed 47 2/20/39 3/6/39 Mill B-packing & loading -------- Trucker_______ 47
grinder. '
Leslie, Garold___________ Mill H-packing & loading -------- Head packer ----------- 58 1/26/39 1/27/39 Mill B-packing & loading________ Packer -------- 47
-------Lowden, Oliver -- Sack______________________________ Printer ---------------- 47 1/25/39 1/26/39 Sack cleaning --------------------- Cleaning Bags- 46A-
Ludy, Harry____________ Mill B-packing & loading -------- General labor --------- 47 2/23/39 3/6/39 Mill B-packing & loading -------- General labor- 47
Miller, Paul_____________ Sack ------------------------------ Receiving clerk or 55 1/27/39 1/30/39 Mill B-manufacturing--------_-_ General labor- 53
working foreman.
Short, Clarence__________ Mill C-packing & loading -------- Packer_______________ _ 50 1/26/39 1/27/39 Mill C-packing & loading -------- Trucker ------- .50
Stinnett, Otis -------- ____ Grain Elevator____________________ General labor --------- 53 1/26/39 1/27/39 Mill B-packing & loading -------- Trucker ------- 48
Williamson, Ted_________
1
Mill B-manufacturing-__________ Night miller or feed 50 2/3/39 2/6/39 Mill C-milling dept______________ General labor- 50
grinder.
Wollenweber, Albert_____ Maintenance______________________ Electrician ------------ 60 2/14/39 2/21/39 Laboratory________________________ Tester_________ 50
APPENDIX B
Date of
application
Name Union affiliation Position at time of strike waag
go r
e rate
for, and
refusal of,
Date
discharge
reinstate-
ment
Bainake, Charles----------------------------------- Federal--------------------- Tinsmith---------------------------------------------------
60 2/24/39
Beaver, Vern______________________________________ Federal --------------------- Mill C-packing & loading dept ----------------------------- 48 2/16/39
Graphman, R______________________________________ Federal --------------------- Mill C-packing & loading dept ----------------------------- 43 2/3/39 3/11/39
Baker, Charles------------------------------------- Teamsters------------------- Truck driver------------------------------------------------ 52 ------------
3/11/39
Baker, Harold Teamsters------------------- Truck driver------------------------------------------------
. 49 - 3/11/39
Faulk, Clovis--------------------------------------- Teamsters------------------- Truck driver------------------------------------------------ 52 ------------
3/11/39
Faulk, Ruel--------------------------------------- Teamsters------------------- Truck driver-----------------------------------------------
52 ------------ 3/11/39