Brown Paper Mill Co., Inc.

National Labor Relations Board - Board Decisions

Nov 25, 1941

36 N.L.R.B. 1220 (N.L.R.B. 1941)

In the Matter of BROWN PAPER MILL COMPANY, INC. and INTERNA-
TIONAL BROTHERHOOD OF PAPER MAKERS, AFFILIATED WITH A.
F. OF L.
Case No. C-1869.-Decided November 25, 1941
Jurisdiction : paper and paper by-products manufacturing industry
Unfair Labor Practices
Late?/cicore, Restnaint. and Coercions. advising employees to withdraw from
the union; conditioning advancement of employee to better position upon
withdrawal from the union.
Disarm ivatzons discharges and lay-offs for union membership and activities.
Release of the active union leaders at the height of various union cam-
paigns when viewed in setting of demonstrated hostility to the union dis-
closes a pattern of systematic discrimination by the employer against the
active union leaders named in the complaint.
Testityinzq under the Act: charges of discrimination for, sustained as to four
persons and dismissed as to one person
Remedial Orders : reinstatement and back pay awarded, period between Inter-
mediate Report and Order deducted in view of Trial Examiner's dismissal
of complaint as to one employee.
Practice and Procedure : employee's motion to dismiss complaint because of
inches and bar of limitations held without merit and denied
Messrs. C. P. Barker and Warren Woods, for the-Board.
Mr. L. J. Benckenstein, of Beaumont, Tex., Mr. Edibard W. Ford,
of El Monte, Calif., and Mr. Clyde R. Brown, of Monroe, La., for
the respondent.
Mr. Paul L. Phillips, of Monroe, La., for the Union.
Mr. Sidney L. Davis, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges 1 duly filed by International
Brotherhood of Paper Makers, affiliated with the American Federa-
tion of Labor, herein called the Union, the National Labor Relations
1 The original charge was filed on September 7, 1933 ; the amended charge on October
27, 1939 ; and the second amended charge on November 15, 1940
36 N. L. R. B., No. 250.
1220
BROWN PAPER MILL COMPANY, INC. 1221
Board, herein called the Board, by the Regional Director for the
Fifteenth Region (New Orleans, Louisiana), issued its complaint,
dated November 16, 1940, against Brown Paper Mill Company, Inc.,
Monroe, Louisiana, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (3),
and (4) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint
accompanied by notice of hearing were duly served upon the
respondent and.the Union.
With respect to the unfair labor practices, the complaint alleged in
substance: (1)• that the respondent discharged or terminated the em,
ployment of the following named employees on or about the dates
specified : Alex Beal on, July 29, 1938, L. W. Swindall on August 18,
1938, Joe D. Peavy on September 21, 1938, J. Boyd on April 14, 1939,
and Wilbert Ashley on November 30, 1939, and thereafter refused
to reemploy them, because of their membership in, and activities on
behalf of, the Union and/or because they testified at a previous hear-
ing of the Board; (2) that the respondent discharged or terminated
the employment of Joe Dangerfield on or about July 25, 1938, Clyde
McPhink and G. T. Horrell on or about April 15, 1939, and James
Rhodes on or about November 15, 1939, and thereafter refused to
reemploy them because of their membership in, and activities on be-
half of, the Union; (3) that the respondent has, since February 1938,
discouraged membership in the Union by various and sundry acts,
such as: informing its employees that Beal was discharged for having
testified at a Board hearing; informing its employees that McPhink
was discharged because he was a member of the Union; spying upon
union members; advising its employees to give up their union mem-
bership and offering inducements to them to do so; questioning its
employees regarding their union membership ; interfering with the
distribution of union circulars ; advising its employees that Peavy
and Horrell would not have been discharged if they had not been
members of the Union; advising its employees that union members
who testified at the previous Board hearing would get their "reward";
and advising its employees that the respondent was not hiring union
men and was planning to discharge other union members; and (4)
that by the foregoing acts and each of them, the respondent interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. On December 2, 1940, the
respondent filed an answer in which it denied that it had engaged
in the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Monroe, Louisiana, on
December 2, 3, 4, 5, 6, 9, and 10, 1940, and from January 7 to 10, 1941,
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before W. P. Webb, the Trial Examiner duly designated by the
Chief Trial Examiner. The Board and the respondent were repre-
sented by counsel; the Union by its representative , and all partici-
pated 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 respondent
submitted motions as follows : ( 1) to dismiss paragraphs 8 to 15, in-
clusive, of the complaint for the reason that the causes of action,
if any, arising under these allegations of the complaint , accrued
more than a year before the filing of the complaint , and therefore
were barred by the laws of the United States and the State of Louisi-
ana, and also barred by lathes; ( 2) to strike the testimony of wit-
nesses G. T. Horrell , James Rhodes , and others with respect to the
circulation of a petition to raise money for the benefit of J. E. Boyd;
( 3) to dismiss the entire complaint ; ( 4) to strike the name of C. E.
Green from paragraph 12 of the complaint ; ( 5) to dismiss the com-
plaint in respect to the nine individuals named in paragraphs 8 and
10 of the complaint ; and (6 ) to strike the testimony of witness
Morgan Hill. The Trial Examiner reserved ruling on these 'notions
and in his Intermediate Report denied them.' At,the conclusion of
the hearing , counsel for the Board moved to amend the pleadings to
conform to the proof in respect to dates , spelling of names, and
other minor matters . The motion was granted by the Trial Ex-
aminer. During the course of the hearing , the Trial Examiner
made rulings on other motions and on objections to the admission
of evidence . The Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial errors ; were committed. The
rulings are hereby affirmed.
The Trial Examiner thereafter filed his Intermediate Report dated
April 30, 1941, copies of which were duly served upon the parties.
He found therein that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce, within the meaning
of Section 8 (1), (3), and (4) and Section 2 (6) and ( 7) of the Act
and recommended that the respondent cease and desist therefrom
and take certain specified affirmative action deemed necessary to
effectuate the policies of the Act . He further recommended that the
complaint be dismissed in so far as it related to the alleged dis-
2 We find , as did the Trial Examiner , that there is no merit in the respondent 's conten-
tion that this proceeding n, barred by the statute of limitations of the State of Louisiana
or of the United States The statutes cited by the respondent relate to private suits
The Act does not create private rights or permit suits by individuals thereunder Amal-
gamated Utility Workers, etc, v Consolidated Edison Company of New York , Inc, at al,
309 U S 261, aff'g 106 F (2d) 991 (C C A. 2) We further find, as did the Trial
Examiner , that the respondent 's contention with respect to Inches is without merit. See
Matter of Coi ratio Milling and Elevator Company and Denver Trades and Labor Assembly,
11 N L it. B 66.
BROWN PAPER MILL COMPANY, INC. 1223
criininatory discharge of Wilbert Ashley. On May 29 and June 20,
1941, respectively, the respondent and the Union filed exceptions to
the Intermediate Report, and thereafter both submitted briefs in
support of their exceptions.
Pursuant to notice duly served upon all the parties , a hearing
for the purpose of oral argument was held before the Board on July
22, 1941, in Washington, D. C. The respondent was represented by
counsel, the Union by its representative, and both participated in the
oral argument. The Board has considered the exceptions to the
Intermediate Report and the briefs in support thereof, and save as
the exceptions are consistent with the findings, conclusions, and order
set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation duly licensed to do
business in Louisiana . Its principal office and place of business are
located near Monroe , Louisiana , where it manufactures , sells, and
distributes paper and its by-products such as Kraft wrapping and
bag paper , Kraft liner , and corrugated materials . The average pro-
duction of finished products is about 15 ,000 tons a month, approxi-
mately 90 per cent of which is sold and shipped to points outside
Louisiana . The principal raw materials used by the respondent are
pulp wood , alum, sizing , color, and starch. Approximately 20 per
cent of the pulp wood and more than 50 per cent of the raw materials
are obtained outside Louisiana . During 1939 the respondent used
raw materials valued at more than $1,000 ,000 and its sales of finished
products during that year amounted to more than $2,000,000. The
respondent normally employes approximately 1,000 employees at its
plant. The respondent admits that it is engaged in interstate com-
merce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Paper Makers , affiliated with the
American Federation of Labor, is a labor organization admitting to
membership employees of the respondent.
III. TIIE UNFAIR LABOR PRACTICES
A. Baclcground ; inter f ereiwe, restraint , and coercion
In the summer of 1937 the Union began to solicit members among
the respondent 's employees . At the same time, the International
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Electrical Workers, also affiliated with the American
Federation of Labor, was endeavoring to secure members among the
respondent's employees. By January 1938 the Union had approxi-
mately 124 members in the plant, out of an approximate total of
1,000 employees.
In January 1938 the Board issued two complaints and an amended
complaint against the respondent pursuant to charges and amended
charges filed against the respondent by the Union, and the Inter-
national Brotherhood of Electrical Workers, A. F. of L., respectively.
The two case were consolidated. A hearing was held at Monroe,
Louisiana, in February 1938. On December 27, 1938, the Board
issued its Proposed Findings of Fact, Proposed Conclusions of Law,
and Proposed Order. On April 4, 1939, the Board issued its Decision
and Order ,3 in which it found that the respondent had engaged in
and was engaging in unfair labor practices within the meaning of
Section 8 (1) and (2) and Section 2 (6) and (7) of the Act, and ordered
the respondent to cease and desist from engaging in the unfair labor
practices and to take appropriate affirmative action.4 On January 17,
1940, the United States Circuit Court of Appeals for the Fifth Circuit
affirmed the Decision and Order of the Board and issued its decree of
enforcement .5 Certiorari vas denied on June 3, 1940.6 Thereafter the
respondent posted the notices, as ordered by the Board and the
Court, stating that it would cease and desist from interfering with,
restraining, or coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act, and that it would disestablish
the labor organization found by the Board to have been dominated
by the respondent. Among other things, the Board found in its
prior decision that General Manager McDonald had informed or-
ganizers that he would do everything in his power to prevent or-
ganization of his employees into the American Federation of Labor;
and that a number of supervisory employees, including Superin-
tendent Getchell, were instrumental in forming a labor organization
among the respondent's employees, the purpose of which, according
to Getchell, was to keep out the American Federation of Labor
unions.
Soon after the hearing in the prior proceeding, and on other
occasions until December 1939, the Union made various attempts to
organize the respondent's employees. During this period, the respond-
8 Cases Nos C-486 and C-487, 12 N L R B 60
4 The respondent was ordered inter alma to withdraw all recognition from and completely
disestablish Brown Paper Mill Employees Association as the representative of any of its
employees for the purpose of dealing with the respondent concerning grievances, labor
disputes , wages, rates of pay , hours of employment , or other conditions of employment,
and to post certain notices in the plant
6 National Labor Relations Board Y. Brown Paper Mill Co, 108 F. (2d) 867 (C. C. A 5).
310 U S 651.
BROWN PAPER MILL COMPANY, INC. 1225
ent's supervisory employees engaged in anti-union agitation. Robert'
Grant, an employee, testified that in the early part of 1938, John Young,
assistant superintendent, asked him if he belonged to the Union,
advised him to withdraw from it, and told him that the respondent
objected to it. Young admitted having discussed union membership
with Grant early in 1938, but denied having advised him to leave
the Union. The Trial Examiner credited the testimony of Grant.
We concur in the finding of the Trial Examiner, and find that Young
made the statements attributed to him. At about the same time;
according to the testimony of employee T. S. Futrell, Young caused
him to resign from the Union by making Futrell's assignment to a
better job contingent upon revocation of his union membership.
Young did not specifically deny Futrell's testimony.' We agree with
the Trial Examiner, who found as a fact that Young conditioned
Futrell's advancement upon his withdrawing from the Union.
During the first part of 1939, Herbert Steed, a salaried supervisory
employee and head timekeeper, asked Roy Grant, an employee, if
he was a member of the Union, and when Grant replied that he
was not, Steed advised him to join the Brown Paper Mill Employees
Association, herein called the Association, urging that doing So
"would at least keep out the other one." s
In November 1939, employee L. Z. Fitzgerald testified that he in-
quired of W. R. Honea, foreman of the "hourly paid" woodyard,
why he (Fitzgerald) was not promoted to a job for which he had
applied, and that Honea replied, "Fitz as long as you stay in that
union, you will never get no-where." Although Honea denied having
mentioned the Union, he admitted having spoken to Fitzgerald about
the job. We find, as did the Trial Examiner, that Honea made the
above statement as related by Fitzgerald.
We find that the respondent, by the statements and acts of Young,
Steed, and Honea, as described above, and the statements of super-
visory employees referred to below, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
7 At the hearing Young was asked by the respondent ' s counsel to read paragraph 12 of
the complaint which alleged, among other things, that "in the months of March 1938
and February 1939 (the respondent) repeatedly advised employees that they would receive
a promotion if they dropped their union cards and that they would never be promoted
if they remained members of the Union " Young denied having committed any of the
acts alleged in this paragraph of the complaint
'Grant's testimony to this effect Baas uncontradicted by Steed, who admitted that he
could not recall the subject of his many talks with Grant , but "might have asked him if
he was a member of the Union
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discrimination
I
(1) In general
The complaint alleges that the respondent discharged or termi-
nated the employment of Alex Beal on or about July 29, 1938, L. W.
Swindall on or about August 18, 1938, Joseph Peavy on or about
September 21, 1938, J. Boyd on or about April 14, 1939, and Wilbert
Ashley on or about November 30, 1939, and since said dates has
failed and refused to reemploye each of them "because of their
membership in and activities on behalf of the Union and/or because
of their having given testimony as witnesses in a hearing" of the
Board. The complaint further alleges that the respondent dis-
charged or terminated the employment of Joe Dangerfield on or
about July 25, 1938, Clyde McPhink and G. T. Hornell on about April
15, 1939, and James Rhodes on or about November 15, 1939, and since
said dates has failed and refused to reemploy the said employees "be-
cause of their membership and activities on behalf of the Union." The
respondent's answer denied the allegations of discrimination.
In April 1938, about 2 months after the hearing in the prior pro-
ceeding, Paul Phillips, an international representative of the Union,
came to Monroe and inaugurated a second campaign for members
among the -respondent's employees. Mass meetings were held, union
handbills were distributed, and in June a dance was held to raise
funds to continue the campaign. On July 27 the Union held a mass
meeting. The campaign for members continued until the latter part
of September, at which time it was abandoned because, according to
Phillips, the respondent had discharged the leaders of the campaign
and thereafter no response could be obtained from the employees in
the plant. Phillips identified Joe Dangerfield, Alex Beal, L. W.
Swindall, and Joe D . Peavy, whose employment was terminated by'
the respondent between July 25 and September 23, 1938, and who are
named in the complaint, as the leaders of this campaign.
The next union drive for membership began in April 1939. A few
days before April 21, when a union mass meeting was to be held,9 the
respondent laid off J. E. Boyd, G. T. Horrell, and Clyde McPhink,
who are also named in the complaint and who, preceding their lay-offs,
were actively engaged in behalf of the Union in this campaign.
About the middle of October 1939, the Union secured a wage in-
crease in all of the Southern Kraft Mills and, using this as an argument,
began another membership campaign-among the respondent's em-
9 Only a " few" persons attended the April 21 union mass meeting Shortly thereafter,
the membership drive was abandoned.
BROWN PAPER MILL COMPANY, INC. 1227
ployees. The respondent released James Rhodes on November 22
and Wilbert Ashley on December 5. Both employees, named in the
complaint, had actively participated in this campaign. According
to Phillips, after Rhodes'.and Ashley's employment had been termi-
nated, campaign efforts were dropped "because our membership had
gotten so low at that time we wanted a few left here when this case
was over, if and when it was ever over. We had filed charges at that
time.""' Union membership in the plant began to decline soon
after the previous hearing in February 1938. It dropped from,about
124 in January 1938 to 17 at the time of the instant hearing 11
It will thus be noted that at the height of each union campaign,
the respondent released active leaders therein and that the respond-
ent had, by the above-described conduct and by other conduct set forth
below, demonstrated its hostility to the Union. These circumstances
disclose and we find a pattern of systematic discrimination by the,
respondent against the active union members named in the'complaint.13
(2) Dangerfield
.foe DaUJerfceld was laid off by the respondent on July 25, 1938.
Prior to his lay-off, Dangerfielcl had been employed in the plant for
more than 5 years. He had worked in the hourly paid woodyard'13
and at the time of his lay-off was working in the pulp mill.
Dangerfield became a member of the Union in 1937 and was one of
the three coolored employees 1' who openly assisted organizer Phillips
during the Union's campaign in 1938, following the previous hearing.
Dangerfield was also one of Phillips' principal "contacts" with other
colored employees and actively encouraged attendance at a special
union mass meeting held on July 27, 1938. During the membership
campaign Dangerfield solicited fellow employees to join the Union.
In April 1938, before his lay-off, Dangerfield was told by his fore-
man, Brumfield, that the " . . . damned union . . . is giving
10 The Union filed amended charges against the respondent on October 27, 1939.
11 The foregoing findings of fact with respect to the organization of the Union are based
upon the undisputed testimony of Phillips
12l3ee North Whittier Heights Citrus Ass'n v. National Labor Relations Board, 109
F. (2d) 76 (C C A. 9), enf'g Matter of North Whittier Heights Citrus Ass'n, etc, and
Citrus Packing House Workers Union, etc, 10 N L R B 1269; Montgomery Ward d Co,
Ino v National Labor Relations Board . 107 F (2d) 555 (C. C. A. 7), mod and enf g
Matter of Montgomery Waid d Co and Reuben Litzenberger, et at, 9 N L R B 536;
Matter of Ford Motor Company, a corporation and United Automobile Workers of America,
Local No 560, C 1 0, 29 N L R B, No 134
13 The respondent operated two w oodyards in connection with the plant. One was called
the "hour lp paid" yard and the other the "contract" yard, and collectively referred to
herein as the Woodyard All of the non-supervisory employees in the Woodyard were
colored men
"The other two were Alex Beal and Joe D Peavy, whose termination of employment
is discussed below.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
us plenty of trouble. One thing I am sure, one thing I know, that
every man is going to get his reward." 15
The respondent contends that Dangerfield was laid off on'July 25
"due to economic considerations necessitating contraction in respond-
ent's labor force." According to Foreman Brumfield, he laid off
Dangerfield and 3 white employees, Spillers, Jordan, and Stennett, at
the same time, in order to reduce the force. We reject Brumfield's
testimony because it is inconsistent with the respondent's own employ-
ment records. The 3 white employees were laid off early in May, and
Dangerfield was not laid off until the latter part of July.
A graph of the respondent's operations prepared by the respondent
and received in evidence-as an exhibit indicates a sharp increase in
operating man days and man hours from the middle of June to
August 1938 not only in the pulp mill but in all departments of the
_plant. The graph also discloses that in August there was a slight
decrease in operating man days but a continuing increase in operating
man hours in the pulp mill. Superintendent Metcalf testified that 22
employees had been laid off from either the pulp m111 or Woodyard
from May 10 to July 29, 1938, allegedly because of curtailment in
operations. With the exception of Dangerfield and Clinton Robin-
son, however, both of whom were employed in the pulp mill and were
laid off on July 25,11 the remaining lay-offs from the pulp mill occurred
on or before May 14.
M. C. McDonald, the rice-president and general manager of the
respondent, testified that business "picked up" during, July and
August. In this connection, it may be noted that E. L. Bamberg,
who was laid off from the pulp mill on May 10 was rehired on July 2,
1938, before the lay-off of Dangerfield, and that L. C. Fletcher,
another employee in the pulp mill who was laid off on May 14, was
rehired on May 25, also before Dangerfield's lay-off. Considering all
the circumstances, we are not persuaded that the alleged decline in
business set forth by the respondent as the impelling factor in the
lay-off of Dangerfield did in fact obtain at the time his lay-off occurred.
Assuming, however, that a decline in business operations did exist
at the time of Dangerfield's lay-off, we find that the respondent's con-
tention as to its reason for selecting Dangerfield to be laid off is
unconvincing. At the time of Dangerfield's lay-off there were more
"This finding is based on Dangerfield ' s testimony. Biumfield contradicted Dangerfield's
testimony and also denied that Dangerfield had ever worked in his garden, where the
conversation allegedly took place Daugeifield's testimony that he had woiked in Bi un-
field's garden was corroborated by Mayshack Fianklin, another colored employee The
Trial Examiner did not credit Brumfield 's denial. We agree with the Trial Examiner and
find that Brumfield made the above statement as testified to by Dangerfield
19 Robinson was not a union member and was employed on a different shift from Danger-
field. Robinson was rehired in November 1938
BROWN PAPER MILL COMPANY, INC. 1229
than 50 employees on his shift; however, he was the only one on his
shift laid off. Metcalf testified that in selecting those to be laid off,
he instructed his foreman to consider the'employees' length of service,
habits, and efficiency. However, Metcalf also testified, inconsistently,
that seniority was not given any weight in determining which em-
ployees were to be laid off. No evidence was introduced at the hearing
to indicate that Dangerfield was an inefficient employee or less efficient
than those retained. On the contrary, Brumfield testified that there
was no complaint about Dangerfield's work. Furthermore, the re-
spondent has not explained why it released Dangerfield on July 25,
instead of Bamberg or Fletcher, although prior thereto it had retained
Dangerfield in preference to either of these employees.
In view of the pattern of discrimination disclosed, Foreman Brum-
field's threat in substance that the respondent would engage in re-
prisals against union members, and the unsatisfactory character of
the explanation for, Dangerfield's release, we find, as- did the Trial
Examiner, that the respondent laid off Dangerfield because of his
active participation in the organizational campaign of the Union in
the spring of 1938.
Upon the entire record, we find that the respondent, by its lay-off
of Joe Dangerfield on July 25, 1938, and its refusal to reinstate him,
discriminated in regard to hire and tenure of employment, thereby
discouraging membership in a labor organization, and that the re-
spondent, by such discrimination and by the aforesaid statement of
Foreman Brumfield, has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
(3) Beal
Alex Beal was laid off by the respondent on July 29, 1938. Prior
to his lay-off Beal had worked about 3 years in the contract Woodyard
and more than 4 years in the hourly paid Woodyard, where he was
employed at the time of his lay-off.
Beal becanme a member of the Union in 1937 and was one of the
three colored employees who openly aided Philli Ps during the 1938
union campaign. Beal, like Dangerfield, was a principal "contact"
man for the Union. He actively solicited attendance at the July 27
mass meeting and also solicited memberships during the union drive.
Beal testified as a Board witness in the prior hearing in February
1938, with respect to Honea, his foreman, who, the Board subsequently
found, had aided in the formation of the company-dominated labor
organization. Within a few days after the hearing, Honea referred
to this prior testimony as a "damn lie" and told Beal that he did not
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"like" it.14 Honea thereafter informed Beal that he could work on
only one shift and gave him only 1 or 2 clays' work each week. The
respondent offered no explanation for this reduction.18
The day after Beal's lay-off, Jules Sanderson, a millwright and
relief foreman in the plant, told L. Z. Fitzgerald, another millwright,
while they were having hunch together, that Beal was laid off because
he had testified at the previous hearing in February.")
The respondent contends, as in the case of Dangerfield, that Beal
was laid off on account of "economic considerations." Beal was laid
off by Superintendent Metcalf on the recommendation of Foreman
Honea. Although Metcalf told Beal that he would reinstate him as
soon as he had an opening, and although Beal applied for reinstate-
ment a number of times, he has never been reemployed by the
respondent. -.
At the time of Beal's lay-off, two other colored employees. Honey-
cutt and Hill, were laid off from the hourly paid Woodyard allegedly
because of curtailment in business operations. Neither Honeycutt
nor Hill was a member of the Union. Honeycutt was reemployed
within less than 30 days.20 As indicated above, the graph introduced
in evidence by the respondent shows a decided increase in operating
man days and man hours in the Woodyard from June to August 1938.
Although the graph further discloses a downward trend ui operating
man clays and man hours for the month of August in'the Woodyard,
General Manager McDonald, as noted above, testified that business
"picked up" during July and August.21
Foreman Honea, testified that he selected Beal for lay-off because
Beal had less seniority than any other employee then working in the
hourly paid Woodyard. At the time of Beal's lay-off, the respondent
employed 100 men in the hourly paid Woodyard. Beal named at the
hearing 4 of these employees as having less seniority than himself
and who were not laid off. None of these employees was a member
of the Union. The respondent did not introduce any specific evidence
to controvert the above testimony of Beal with respect to his seniority
standing. Thus, the respondent did not produce any records to show
that Beal had the least seniority of the employees in the hourly paid
i' This finding is based on Beal ' s testimony We agree with the Trial Examiner, who
did not credit IIonea's denial of this conversation with Beal On cross-examination Honea
first denied having had the conversation, and then stated that he could not iecall whether
or not lie did have it
19 Honea testified that lie did not "recollect anything about the one day a week shift
fO This finding is based on the testimony of Fitzgerald, which was denied by Sanderson.
We agree with the Ti ial Examinei who credited the testimony of Fitzgerald
20 Beal first applied foi reinstatement about the time that Honeycutt was reemployed
and was told that thine was no woik for hint Hill did not apply for reinstatement nor
was lie offered i eemploi nicnt by the i eepoiident
n nun mg the niontli of September, the graph shows an increase in operating nian clays
and man hours in the woodvaid.
BROWN PAPER MILL COMPANY, INC. 1231
Woodyard. We find in accord with Beal's testimony that Beal did
not have the least, seniority of the employees in the hourly paid
woodyarcl. In view of the pattern of discrimination disclosed, Brum-
field's threat in substance that the respondent would engage in re-
prisals against union members, Honea's expressed antipathy to Beal
for testifying against him at the previous hearing, and the respond-
ent's failure to present a satisfactory explanation for laying off Beal,
we find, as did the Trial Examiner, that the respondent was deter-
mined to rid itself of Beal because of his testimony at the previous
hearing and his union activities.
Upon the entire record, we find that the respondent by laying off
Alex Beal on July 29, 1938, and by refusing to reinstate him, has
discriminated in regard to hire and tenure of employment, thereby
discouraging membership in a labor organization, and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
(4) Swmdall
L. W. Swindall, the Union's corresponding secretary, was discharged
by the respondent on August 9, 1938, shortly after the union mass
meeting above referred to. Swindall had been continuously em-
ployed in the plant for approximately 9 years. He had been steadily
advanced from a helper's job to third hand or_windernian with cor-
responding increases in pay.
Swindall joined the Union in 1937 and was elected corresponding
secretary. He was active in union affairs, especially in the union
campaign which was begun a short time prior to his discharge and
which reached a climax at, the mass meeting on July 27. He testified
as a witness for the Board in the previous hearing in February 1938.
About 2 weeks before Swindall's discharge, his 14-year-old son was
distributing handbills at the plant gate. Steed, head timekeeper and a
supervisory employee, asked him his name, told hint to take the
"damn" handbills to the other side of the street and burn them, and
stated further that he would pay him for doing it. This finding is
based upon the testimony of young Swindall, which was denied by
Steed. Steed admitted that boys frequently passed out circulars at
the plant gate. Steed, as was found in the previous case, was the leader
of the company-dominated Association. Under the circumstances, we
concur in the Trial Examiner's rejection of Steed's denial.
Swindall was employed on the second shift. About 11 p. in. on
August 8, he set the slitters == for a different-sized cut. By midnight,
when he was relieved by Frank King, winderman on the next shift, he
21 The slitters are used to cut large rolls of pepei into smaller 1 olls
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had wound one set of five rolls and had started another set. Since the
set had already been started, King continued to wind it without check-
ing the slitters. The next day 0. W. Getchell, superintendent of the
paper mill, learned that some of the rolls had been cut wrong the night
before. Getchell accused Swindall of having set all the slitters wrong
and summarily discharged him. Swindall denied the charge and en-
deavored to explain to Getchell that he had cut only one set of rolls
and that it was possible that the slitters had slipped, but Getchell
refused to listen to him.23
When rolls were cut wrong they were customarily held on the floor
until passed upon by Getchell. If the discrepancy between the rolls
and specifications was not too great or if the rolls would fit some other
order, they were approved and shipped.24 If not, they were culled
and sent to the broke beater for reprocessing. F. V. Allison, a shipping
clerk, told Swmdall that two of the rolls in question were shipped out
and two were culled. The respondent's practice was to lay off a winder-
man for a week or 10 days when he was responsible for cutting rolls
wrong the first time. Prior to the discharge of Swindali, two em-
ployees, Kitchens and East, had been laid off for 10 days for such
offense . This was the first time that Swindall had been accused of
cutting rolls wrong. However, he was immediately discharged. Subse-
quent to his discharge, Swindall applied at the plant several times for
reinstatement but was refused.
Swindall was not given an opportunity by the respondent to defend
himself against the charge of negligence although he had long and
satisfactory service with the respondent. The evidence is not clear
that Swindall was at fault in this instance and moreover the rolls that
were said to have been improperly cut might have been produced by
King. Even if Swindall was culpable, it was his first such error and
it was not the policy or practice of the respondent to discharge an em-
ployee for the first offense. In view of these circumstances and the
pattern of discrimination disclosed, and upon the entire record, we
find, as did the Trial Examiner, that the respondent discharged L. W.
Swindall on August 9, 1938, and has since ref used to reinstate him be-
cause of his membership in and activity on behalf of the Union, and
because he gave testimony under the Act, thereby discriminating
against him in regard to his hire and tenure of employment and dis-
couraging membership in the Union, and that the respondent has
23 There were only two ways that rolls could be cut wrong- one by the wmderman
setting the slitters wrong and the other by the slitters slipping after having been set right
It was not an infrequent occurrence for the slitters to slip and thus cause the rolls to be
cut wviong Hence inspectors and sample boys were employed to measure all rolls and
check them with the orders before shipment
2i Slight variations in size between the rolls and orders were allowed, and no complaint
was made by Getchell if the rolls could be shipped
BROWN PAPER MILL COMPANY, INC. 1233
thereby interfered with, restrained, and coerced its employees in the
exercise-of the rights guaranteed in Section 7 of the Act.
(5) Peavy
Joe D. Peavy was discharged by the respondent on September 22,
1938. Prior to his discharge, Peavy had worked continuously in the
hourly paid Woodyard for more than 8 years. During this period he
had never been discharged or laid off.
Peavy joined the Union in 1937 and attended union meetings. He
was one of the Union's principal advocates among the other colored
employees in the hourly paid woodyard.25 Peavy testified as a witness
for the Board at the previous hearing in February 1938. His testi-
mony was principally against Honea, foreman of the hourly paid
Woodyard, where Peavy worked. Honea had solicited members and
collected dues for the Association among the colored employees who
worked under him. Peavy had refused to join the Association, al-
though requested to do so by Honea.
On the day of his discharge, Peavy, in the course of his duties,
went to the motor house because of the slipping of the belt that op-
erated the,bark conveyor chain. He made three separate trips for that
purpose. On the last trip, he decided to sit down in the motor house,
near the motor, in order to watch the belt. While Peavy was seated
in the motor house, Honda came to the door, which was open, and
accused Peavy of being asleep. Peavy denied the charge and ex-
plained to Honea why he was there. Peavy also testified at the hear-
ing that he was not asleep. Honey refused to'accept Peavy's denial
and said to him, "Well, Peavy, as far as I am concerned, you are fired."
T. E. Humphreys, another employee, testified that Honea called his
attention to Peavy; that he saw Peavy sitting just inside the door of
the motor house leaning over with his head in his hands, apparently
asleep. Humphreys further testified that he did not hear any con-
versation between Honea and Peavy. Metcalf, superintendent of the
pulp mill, testified that he discharged Peavy, after talking with Honea
and Humphreys. Metcalf further testified that "if a man is working
on the job and he sits down right by his job and drops to sleep, we
don't discharge him, but if he goes into a shed or makes himself a bed
or something and deliberately sleeps, we discharge him."
Soon after his discharge, Peavy applied to Honea for reinstatement.
Honea refused Peavy's request and stated that he could not rehire
Peavy as the respondent did not approve of the Union and that the
Union was "not worth a damn." This finding is based upon the testi-
25 This finding is based upon the undisputed testimony of Phillips , the union oiganizel
433113-42-vol 36--79
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moray of Peavy which the Trial Examiner credited, although it was
denied by Honea. We concur in the finding of the Trial Examiner.
Peavy's brother, Herbert Peevy,26 a non-union employee, testified
that, about a month after Peavy was. discharged, he asked Honea to
reinstate Peavy; that Honea stated that if Peavy had not belonged to
the Union, Honea might have awakened him and Would have over-
looked this neglect of duty, and that Peavy's testimony at the previous
hearing in February 1938 "threw a dark light on the Company." Al-
though Honea denied having made these statements to Peevy, the
Trial Examiner found that Honea was not a credible witness and did
not credit his denial. We concur therein and find that Honea made
the statements attributed to him by Peevy.
In February 1939 Honea advised Millwright Fitzgerald "to get
out of the union," and said to him, "You see what has happened to
Joe Peavy. If he hadn't belonged to the union,' probably he would
have been working today." 27
In the latter part of 1939, according to Peevy, Foreman Sanderson
told a number of colored employees, including Peevy, that he knew
two men who would not be reemployed in the plant, that one of them
was Peavy, and that the respondent had eliminated all the unioi:
men except two. Sanderson denied this testimony, but we find, as
did the Trial Examiner, that Sanderson made the above statement.
In November or December 1939, according to !Peevy's further testi-
mony, he saw Robert Honea, an employee in the hourly paid Wood-
yard and son of Foreman Honea, caught sleeping on duty by his
father; young Honea was neither laid off nor discharged. Robert
Honea ' did not testify. Foreman Honea denied the testimony of
Herbert Peevy, but the Trial Examiner did not credit this denial.
We concur therein and find that the incident occurred, as testified by
Peevy.
We do not believe that it is necessary to resolve the conflicting testi-
mony as to whether or not Peavy was asleep on the, job. It is clear
that Peavy's presence in the motor house Was in line of duty and
that he did not go there for the purpose of sleeping. Consequently,
according to the respondent's practice, as testified to by Superintend
ent Metcalf, if Peavy had been asleep a lay-off of a few days and not.
discharge, would have been the normal penalty.
We find that-the respondent's contention as to its reason for dis-
charging Peavy is unconvincing. Honea evinced a dislike for Peavy,
26 Although they are brothers, they spell their names differently Herbert Peevy was
employed at the plant at the time of Peavy's discharge and is still employed by the
respondent
27 This occurred while Fitzgeiald was discussing with Honea a loan from the plant
credit union The latter admitted that lie talked with Fitzgerald about the loan and about
Peavy's discharge, but denied Fitzgerald's testimony upon which this finding rests we
agree with the Trial Examiner who did not credit Hone.i's denial
BROWN PAPER MILL COMPANY, INC. 1235
even prior to the first hearing in February 1938, because Peavy re-
fused to join the Association. That feeling was aggravated by
Peavy's testimony against Honea at the previous hearing. Honea's
antipathy toward the Union and union members was evidenced, and
the true motive behind his summary discharge, of Peavy was indi-
cated, by his statement that Peavy would probably not have been
discharged if he had not belonged to the Union. Moreover, Super-
intendent Metcalf's testimony indicates that a discharge was not the
normal penalty for Peavy's offense, and young Honea was not dis-
charged or otherwise disciplined although his offense was similar to
that of Peavy. In view of these circumstances and the pattern of
discrimination disclosed, we find, as did the Trial Examiner, that
Peavy's discharge was due to his union membership and activity
and to the fact 'that he testified against the respondent in the previous"
hearing, and that Honea used the motor-house incident as a pretext
to discharge Peavy.
-• Upon the entire record, we find that the respondent discharged Joe
D. Peavy on September 22, 1938, and has since refused to reinstate
him because of his membership in and activity on behalf of the Union,
and because he testified under the Act, thereby discriminating in
regard to his hire and tenure of employment, and discouraging mem-
bership in a labor organization, and that by such discrimination and
by the aforesaid statements of Honea and Sanderson, the respondent
has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section-7 of the Act.
(6) Boyd, Horrell, and McPhink
J. E. Boyd, G. T. Horrell, and Clyde McP7tink, were laid off by
the respondent on April 14, 15, and 18, 1939, respectively. 'The re-
spondent contends that these three employees were laid off on account
of the discontinuance of the work in which they were engaged.
In January 1939, a change in the method of handling the paper
stock, from the "batch" system to the "continuous flow" system, was
started in the refinery, also known as the Jordan room,ls and was
completed about the middle of April 1939. The change resulted in
the elimination of the job of mixer. At that time, there were 16
mixers in the refinery. Eight of these were retained in the refinery
on other work. • Three were transferred to other departments of' the
plant. Two were laid off and did not apply for reemployment.
Boyd, Horrell, and McPhink were laid off and were never thereafter
Z" In all there were 26 employees in the Jordan room at the time Boyd, Horrell, and
McPhink were discharged Fourteen had less service in the Jordan room than Horrell
7 less than McPhink; and 8 less than Boyd
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reemployed by the respondent, although they repeatedly requested
reinstatement.
Boyd, prior to his lay-off, had worked in the machine room about
9 months and continuously in the Jordan room for about 4 years.
He joined the Union in 1937 and he was elected third vice president,
which office he held at the time of his lay-off. He was a delegate
to the American Federation of Labor convention which was held in
Monroe, Louisiana, just prior to his lay-off. He was active in union
affairs and he testified as a witness for the Board at the previous
hearing in February 1938.
About a month after this hearing, N. G. Elkins, a Jordan room
operator and supervisory employee '211 told Boyd, according to the
latter's testimony, that Getchell had thought well of Boyd while he
-worked in the refinery, but that since he, Boyd, had joined the Union,
Getchell did not "think much" of him. Boyd testified further that
Elkins also told Boyd that if he did not have a union card, he would
get the -next helper's job, and advised Boyd to resign his union mem-
bership. Boyd refused to do so. About 2 days later, according to
Boyd, Elkins again told him that his promotion to a helper's job could
be arranged, provided that he quit the Union. Although Elkins
denied the foregoing testimony, he admitted that he had been a
member of the Union; that he withdrew just before or just after he
was promoted to operator in the Jordan room ; that Boyd actively
solicited union members in the plant; that Boyd asked him why he
did not rejoin the Union; and that he told Boyd that the Union had
cost him about $18 a year and that he had paid his money "out for
nothing." In view of Elkins' admissions we credit, as did the Trial
Examiner, the testimony of Boyd, and find that Elkins made the
statements attributed to him.
About a month before his lay-off, Boyd was told by Superintend-
ent Getchell that a reduction in force would be made in the refinery
room after the change in machinery had been completed, but that "he
would try to keep the youngest men and transfer the older men to
other departments." However, when the change was completed,
Getchell told Boyd that "he had better look for another job and that
his check was ready for him."
Hovrell, prior' to his lay-off, had been continuously employed in
the Jordan room for more than 5 years. He was a member of the
Union, and in December 1938 was elected first vice president. He
was also a member of the Monroe Trades and Labor Council. He
was active in union affairs, attended meetings, and solicited union
membership among the employees in the plant.
21 The Jordan room operators are in charge of crews, each consisting of one helper and
four men, who take orders from the operator The operator and his helper receive higher
wages than the other members of the crew.
BROWN PAPER MILL COMPANY, INC. 1237
About 6 weeks prior to his lay-off, Horrell asked John Young,
assistant superintendent, what they were going to do about him after
the change had been completed in the Jordan room. Young said:
"I don't know. They might put you somewhere else." Two days
after his lay-off, Getchell told Horrell that he disliked to lay him
off, but that he had to cut the crew. Although Horrell called
Getchell's attention to his seniority over the other mixers, and re-
minded him that no complaint had ever been made of his work,
Getchell refused to change his decision.
About 2 months after Horrell's lay-off, he was'told by Preston
Potier, a Jordan room operator and supervisory employee, while they
were at the municipal swimming pool, that "it wasn't your work
that got you, it was your union." This finding rests upon the testi-
mony of Horrell, which was not denied by Potier. The latter admit-
ted that he had a conversation with Horrell at the swimming pool in
the summer of 1939 and testified further that he did not remember
whether or not they talked about the Union. Potier also testified
that Horrell had worked tinder him, and that he was a good worker.
At the time of his lay-off, Horrell was working under C. S.-Barret,
operator in the Jordan room and a supervisory employee. Barret
testified thatiHorrell's work was satisfactory; that although Horrell
was a "little hard of hearing," and sometimes ran the size tank over,
he had never made any complaint about Horrell to his superiors.
McPhink, prior to his lay-off, had worked continuously in the
Jordan room for more than 4 years. He joined the Union in 1937,
was active in union affairs, and solicited members among the
employees in the plant.
For a week prior to his lay-off, McPhink had not been given any
work, either in the Jordan room or in any other department of the
plant, although he reported for work at the plant several times.
When McPhink reported for work on the night of April 15, 1939,
Potier told him to see Tubbs, a tour boss; Tubbs told him that he
would have to see Young. Pursuant to an appointment, McPhink
met Young at the plant on April 17. Young informed McPhink
that he and Getchell were having a meeting, and suggested that
McPhink return to the plant the following day. Accordingly, Me-
Phink did so and in substance asked Young whether or not he was
still employed. Young replied : "I can't use you now. I might later
on. Well, if I can ever use you, I will get in touch with you and
put you back 'to work." McPhink was never offered reinstatement
by the respondent, although he applied for work at several different
departments of the plant.
About 20 minutes after McPhink was notified by Young that he
was laid off, Preston Potier, operator in the Jordan room and super-
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visory employee, said to J. H. Fuller, an employee working under
him, "I knew that they were going to run McPhink out, because I
heard John Young say so, because he was a union man." 30 Potier
admitted at the hearing that he knew McPhink was going to be laid
off, that he asked Young to let him retain McPhink as he was a good
workman, and that Young replied that McPhink would have to 'go
since he had the least seniority of the employees on Potier's shift.
The respondent's contention that McPhink was released because
he had the least seniority of the employees on Potier's shift is uncon-
vincing in view of the respondent's position at the hearing that it
was not committed to any definite policy of seniority. Moreover, it
may be noted that McPhink as well as Horrell and Boyd had morn
seniority than other of the employees in the Jordan room. Further=
more, the record does not disclose that the respondent considered
the mixers whom it retained as more desirable employees because
of greater efficiency or because of other lawful reasons. In view of
these circumstances, Elkins' endeavors to procure Boyd's resignation
from the Union by promises of advancement, Potier's admission that
he attempted to prevent McPhink's release and his statements that
McPhink and Horrell were discharged because of union activity,
the manner in which McPhink was released and notified thereof,
and the pattern of discrimination above set forth, we find, as did
the Trial Examiner, that the respondent selected Boyd, Horrell, and
McPhink for release, in order further to curtail the efforts of the
Union to organize the plant in the spring of 1939.
Upon the entire record,* we find that the respondent laid off
J. E. Boyd; on April 14, G. T. Horrell on April 15, and Clyde
McPhink on April 18, 1939, and has since refused to reinstate-them
because of their membership in and activities on behalf of the Union,
and because Boyd testified under the Act, thereby discriminating in
regard to the hire and tenure of employment of these employees and
discouraging membership in a labor organization, and that by such
discrimination and by the statements of Elkins and Potier, the
respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
(7) Rhodes
James Rhodes was laia off by the respondent on, November 22,
1939. In its answer to the complaint, the respondent contends that
he was laid off because of the discontinuance of the work in which
° This finding is based upon the testimony of Fuller . Potier testified that Fuller worked
on his shift , and that lie frequently talked to him , but lie denied Fuller 's testimony m
respect to llcPhink Potier 's denial is not convincing, and we credit , as did the Tilal
Examiner , the testimony of Fuller
BROWN PAPER MILL COMPANY, INC. 1239
he was engaged. Prior to his discharge, Rhodes had been continu-
ously employed in the-plant for approximately 9 years. He had 6
or 7 years' experience as a paper maker before the respondent hired
him. He began working for the respondent as a back tender, and
was later advanced to machine tender on a cylinder machine. He
joined the Union in 1937, attended union meetings, and was a mem-
ber of the Union's welfare committee. He was actively engaged in
the organizational campaign initiated by the Union in October 1939.
In September 1939 the respondent operated one cylinder and three
Fourdrinier machines in the pulp mill. For the purpose of increas-
ing production, the respondent replaced the cylinder machine with
a new Fourdrinier machine. The change was begun in September
and completed in the latter part of November. Pursuant to this
change four felt checkers were transferred to the clean-up gang.
Rhodes was the only non-supervisory employee laid off in connection
with the discontinuance of the cylinder machine. Rhodes, Conrad
'Maus, E. L. Wrenn, and L. W. Boyce were the four machine tenders
on the cylinder machine. Although Rhodes was laid off, the other
three were retained as machine tenders for the new Fourdrinier
machine. These three employees were not members of the Union
and were members of the company-dominated Association. None of
-the four machine tenders had, ever operated a Fourdrinier machine.
Rhodes was as well qualified to operate the Fourdrinier machine as
either Mans, Wrenn, or Boyce. Since the Fourdrinier machine also
required 4 machine tenders, Rhodes was replaced by another employee.
The circumstances surrounding Rhodes' lay-off show clearly that
the respondent's alleged reason for laying him off is not the real rea-
son.' The change from the cylinder machine to the Fourdrinier
machine did not reduce the non-supervisory force. Rhodes, the only
non-supervisory employee laid off, was replaced by another employee.
The three machine tenders who were transferred from the cylinder
to the Fourdrinier machine were members of the company-dominated
Association. One of them, Maus, was vice president of this organiza-
tion. Rhodes was the only union member among the machine tenders.
We are of the opinion and find that following its previous pattern of
discrimination, the respondent laid off Rhodes because of his active
participation in the membership drive of the Union.
Upon, the entire record, we find, as -did the Trial Examiner, that
the respondent laid off James Rhodes on November 22, 1939, and has
a' At the hearing, the respondent contended for the first time that Rhodes was laid off
for the further reason that he frequently changed shifts without permission and became
intoxicated on several occasions These alleged derelictions of duty occurred more than
2 years prior to the lay -off of Rhodes As noted above , the respondent ' s answer alleged
only that Rhodes was laid off because of the discontinuance of the work in which he was
engaged . It is cleat that the further reasons above set forth were afterthoughts, and
did not motivate the respondent in laying off Rhodes.
1240 DECISIONS OF NATIONAL LABOR RELATION'S BOARD,
since refused to reinstate him, because of his membership in, and activ-
ity on behalf of the Union, thereby discriminating in regard to his hire
and tenure of employment, discouraging membership in the Union,
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
(8) Ashley
Wilbert Ashley was discharged by the respondent on December 5,
1939. Prior to his discharge lie had been employed in the plant for
more than 7 years, most of which vas spent in the hourly paid wood-
yard where he was working at the time of his discharge. He joined
the Union in 193'7 and was active in the organizational campaign con-
ducted among the respondent's employees in the fall of 1939.
In November 1939, as a result of the shut-down of the cylinder ma-
chine in the pulp mill, apparently in connection with its replacement
by a Fourdrinier machine, Foreman Honea instructed Lannis Hatten,
assistant foreman of the hourly paid Woodyard, to divide the available
work among all the employees. On November 30, Hatten repeated the
substance of this instruction to Ashley and informed him that as he
had made his full time the Week before, he could work only 3 or 4
days during the then current week. Hatten then assigned another
employee to the job that Ashley had been working on and laid Ashley
off for that day. Ashley complained of the lay-off to Hatten but
blamed it on IIonea.n Hatten then instructed Ashley to "punch out"
and told him that he did not need him any more.
The next day Honea told Ashley that he had been laid off for 2 weeks
and that if he did not "like" it, he could quit. Before the expiration of
the 2 weeks, Honea informed Ashley that he had been discharged by
Superintendent Metcalf. It appears-from Hoiiea's testimony and we
find that Superintendent Metcalf decided to and did discharge Ashley
upon Honea's recommendation. Honea testified that he recommended
Ashley's discharge because of his "talking back that way" to Hatten.
Honea further testified that he also took into consideration when he
recommended that Ashley be discharged, and had called Metcalf's
29 Hatten testified that Ashley, when told of the lay-off, replied : "that is a hell of a
way to work men I don't mean you, Mr Lannis (IIatten), I mean that damn old man "
Honea, the immediate supervisor of Flatten, and who was ultimately responsible for the
discharge of Ashley, testified that Hatten reported to him that when he told Ashley to
leave, Ashley replied, "I know it ain't you, Mr Hatten ^ It is old man Bob." Ashley
testified that he did not mention IIonea in his conversation with Hatten but that he told
Hatten "That is a poor system to lay the old men off and let the young men work." The
Trial Examiner credited Flatten 's version of the above incident . We believe that the Trial
Examiner erred in this finding . If Ashley had made a disrespectful reference to Honea
in this conversation with Hatten , we believe that Honea would have so testified Under
the circumstances , we find that the statement which Ashley made was that testified to
by Honea.
BROWN PAPER MILL COMPANY, INC. 1241
attention to the fact that Ashley had been previously laid off on two
occasions, once for "impudence" and once for neglecting his work.
On, July 12, 1937, Ashley had been laid off for 10 days for being
impudent to Foreman Sanderson. Also on September 27, 1939, about
2 months prior to his discharge, Ashley had been laid off for a week
for neglecting his work. According to Hatten, Ashley was always
"grouchy.*" Hatten also testified that because Ashley continually com-
plained about his work, Hatten had frequently changed his work in
order to pacify him. However, Hatten admitted that during the 6
or 7 years that Ashley worked under him, he had "gotten along" with
hnn and "put up" with his grumbling. Honea also admitted that
Ashley was a good worker.
Although we are not convinced from the record, and therefore do
not find, that Ashley was discriminatorily laid off on November 30,
we are of the opinion and find that his subsequent discharge during
the lay-off period was due to his active participation in the member-
ship campaign of the Union which was initiated in October 1939.
Hosea was aware of Ashley's prior derelictions when he notified Ashley
on December 1 that Ashley was laid off for two weeks. If Honea had,
intended to recommend to Metcalf that Ashley be discharged for in-
subordination, he would have so informed Ashley at this time. More-
over, Ashley's reference to Honea as "old nian Bob" was no more, if
not less, serious than his prior grumblings. For 6 or 7 years, Honea
had admittedly "put up" with such conduct. In view of these circum-
stances, the pattern of discrimination set forth above, and Honea's
implication in other discriminatory discharges, we find that Honea
and Metcalf used the November 30 incident as a pretext for disposing
of the last of the most active union members among the respondent's
employees.
Upon the entire record, we find that the respondent discharged
Wilbert Ashley on December 5, 1939, and has since refused to reinstate
him, because of his membership in and activity on behalf of the Union,
thereby discriminating in regard to his hire and tenure of employ
anent, discouraging membership in the Union, and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of theAct.
While it is true that Ashley testified against the respondent at the
previous hearing in February 1938, he was not discharged until a
year and a half later. Upon the entire record, we find that Ashley
was not discharged by the respondent because lie testified under the
Act.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act.
Having found that the respondent discriminatorily terminated the
employment of and subsequently refused to reinstate Alex Beal, L. W.
Swindall, Joe D. Peavy, and J. E. Boyd, because of their union
activity and also because they gave testimony under the Act in Febru-
ary 1938, and having found that the respondent discriminatorily
terminated the employment of and subsequently refused to reinstate
Joe Dangerfield, Clyde McPhink, G. T. Horrell, James Rhodes, and
Wilbert Ashley because of their union activity, we shall order the
respondent to offer the afore-mentioned nine individuals immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or, other rights and
privileges, and make them whole for any loss of pay they may have
suffered by reason of the respondent's discrimination against them
by payment to each of them of a sum of money equal to the amount
which each normally would have earned as wages from the. date of
the respondent's discrimination against him to the date of the offer
of reinstatement, less his net earnings during said period.33 -
Inasmuch as the Trial Examiner failed to find that Ashley's dis-
charge was discriminatory within the meaning of the Act; the re-
spondent ,, in accordance with our usual rule,34 will be relieved from
33 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber 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
shall be considered as earnings See Republic Steel Corporation Y. National Labor Rela-
tions Board, 311 U. S 7.
34 Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North
America, Local No. 6, 1 N. L. R. B. 760
BROWN PAPER MILL COMPANY, INC. 1243
paying him back pay during the period from the date of the receipt
of the Intermediate Report to the date of our order herein.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of" Paper Makers, affiliated with the
American Federation of Labor, is a labor organization, within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ
ment of Alex Beal, L. W. Swindall, Joe D. Peavy, J. E. Boyd, Joe
Dangerfield, Clyde McPhink, G. T. Horrell, James Rhodes, and.
Wilbert Ashley, thereby discouraging membership in International
Brotherhood of Paper Makers, affiliated with the American Federa-
tion of Labor, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (3) 'of the
Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Alex Beal, L. W. Swindall, Joe D. Peavy, and J. E. Boyd
because they gave testimony under the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (4) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. The respondent has not discriminated in regard to the hire, and
tenure of employment of Wilbert Ashley, within the , meaning of
Section 8 (4) of the Act.
ORDi R ,
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Brown Paper Mill Company, Inc., Monroe, Louisi-
ana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) ' Discouraging membership in International Brotherhood of
Paper Makers, affiliated with the American Federation of Labor, or
any other labor organization of its employees, by laying off, discharg-
ing, or refusing to reinstate any of 'its employees, or in any other
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition of employment because of their mem-
bership or activity in International Brotherhood of Paper Makers,
affiliated with the American Federation of Labor, or any other labor
organization;
(b) Discharging, laying off, refusing to reinstate, or otherwise dis-
criminating against any employee because he has given testimony
under the National Labor Relations Act;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the National Labor Rela -
tions Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Alex Beal, L. W. Swindall, Joe D. Peavy, J. E. Boyd,
Joe Dangerfield, Clyde McPhink, G. T. Horrell; James Rhodes, and
Wilbert Ashley, immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
and other rights and privileges;
(b) Make whole Alex Beal, L. W. Swindall, Joe D. Peavy, J. E.
Boyd, Joe Dangerfield, Clyde McPhink, G. T. Horrell, and James
Rhode's, for any loss of pay they may have suffered by reason of the
respondent's discrimination in regard to their hire and tenure of
employment, by payment to each of them respectively, of a sum of
money equal to that which he normally would have earned as wages
from the date of such discrimination against .him to the date of the
offer of reinstatement, less his net earnings during said period;
(c) Make whole Wilbert Ashley for any loss of pay he may have
suffered by reason of the respondent's discrimination in regard to his
hire and tenure of employment, by payment to him of a sum of money
equal to that which he normally would have earned as wages from the
date of such discrimination to the date of the receipt of the Inter-
mediate Report, and from the date of this Order to the date of the
offer of reinstatement, less his net earnings during said period;
(d) Immediately post notices in conspicuous places throughout its
plant at Monroe,, Louisiana, and maintain such notices for a period of
at least sixty (60) consecutive days from the date of posting, stating:
(1) that the respondent 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), and (c) of this Order; and (3)
BROWN PAPER MILL COMPANY, INC. 1245
that the respondent's employees are free to become or remain members
of International Brotherhood of Paper Makers, affiliated with the
American Federation of Labor, and that the respondent will not
discriminate against any employee because of membership or activity
in that organization;
(e) Notify the Regional Director for the-Fifteenth Region (New
Orleans, Louisiana) in writing 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 complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent discriminated
against Wilbert Ashley, within the meaning of Section 8 (4) of the
Act.
MR. GERARD D . REILLY took no part in the consideration of the above
Decision and Order. -