Farmers Co-Operative Co.

National Labor Relations Board - Board Decisions

Jan 13, 1953

102 N.L.R.B. 144 (N.L.R.B. 1953)

144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the above-named
union or any other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the amended
Act. We will not discriminate in regard to hire or tenure of employment or any
term or condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
CHENEY FOREST PRODUCTS, INC.,
Employer.
Dated--------------------- By -------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
FARMERS CO - OPERATIVE COMPANY and AMERICAN FEDERATION OF
GRAIN MILLERS, A . F. OF L . Case No. 18-CA-389. January 13,
1953
Decision and Order
On September 23, 1952, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report, and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner '2 with the following
modifications and additions :
1. We adopt all the Trial Examiner's 8 (a) (1) findings, including
his finding with respect to the statement of Assistant Manager Bolton
to employee Nash that unionization of the Company would probably
mean less take-home pay.-' Considering the unconcealed opposition of
Respondent to the Union, the interrogations, threats of discharge,
warnings about union "attitudes," and the actual discharge of the
chief union advocate, we find that the remarks as to lessened earnings
A Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Houston, Styles,
and Peterson].
2 We reiect as lacking in merit the contention made by the Respondent in its brief that
the Trial Examiner was biased or prejudiced against it.
$ The fact that the statement is couched in the form of an opinion is some evidence
that it is not a threat of economic reprisal, but the Board has found that such evidence
may be far from conclusive in this regard . J. S. Abercrombie Company , 83 NLRB 524.
102 NLRB No. 2.
FARMERS CO -OPERATIVE COMPANY 145
constituted an illegal threat of reprisal , leaving the impression that
the Respondent would use its economic power to retaliate if the
Union was successful in organizing its employees.'
2. We also agree with the Trial Examiner that the Respondent dis-
charged employee Dudley in violation of Section 8 (a) (3) and (1)
of the Act. We conclude, as apparently did the Trial Examiner,
that there is no merit to the Respondent's contention that Dudley's
"lack of coordination," or his unsatisfactory work, or his telling other
employees that they would lose their jobs if they did not join the
Union, were operative factors in the discharge. This is emphasized
by the fact that Respondent's general manager who discharged Dudley
repeatedly testified that Dudley's cursing was the reason for the dis-
charge. Furthermore, in its brief, the Respondent acknowledged
this testimony and argues, ". . . it is all the more probable that on
March 7th [Manager] Thomas discharged Dudley only because he
cursed him . . . ." As to the alleged cursing , however, we agree with
the Trial Examiner for the reasons stated by him that whatever
cursing occurred, followed the discharge. In addition, we note that
in its reports to the Iowa Employment Security Commission soon
after the discharge, the Respondent made no mention of the alleged
cursing. Thomas admittedly reported to that commission, as the
reasons for discharging Dudley, "lack of coordination," troublemak-
ing, and "causing dissension among other employees." Moreover,
the testimony of Thomas and Plant Superintendent Porter, the only
two persons who allegedly heard the cursing, gave such different ver-
sions of what occurred at the time of the discharge 5 that we conclude,
as did the Trial Examiner, that the testimony of Dudley that he did
not curse at the time is the more credible.
In view of all the circumstances, including Thomas' interrogations
of Dudley in connection with his union membership and activities, his
threat to Dudley on March 3, 4 days before the actual discharge, that
Dudley's attitudes placed him perilously near discharge, and his
' Member Peterson would not find that Assistant Manager Bolton's statement constituted
a threat of reprisal. In his view, Bolton was merely expressing an opinion that if the
Union's rumored wage demands were met the Respondent, in order to keep costs within
bounds, might find it necessary to reduce overtime and hire more employees at straight time,
which in turn might result in less take-home pay. Accordingly, he would find that the
statement carried no connotation that the Respondent would use its economic power to
make Bolton's prediction come true if the employees joined the Union.
6 E. g Thomas testified that Dudley cursed him before Porter approached, whereas
Porter testified that the cursing occurred after he had joined in the conversation
8 Like the Trial Examiner, we reject the Respondent's position that the reference to
Dudley's attitude did not concern the Union. This position is refuted by the undenied testi-
mony, credited by the Trial Examiner, that Bolton went to Dudley's home after the
discharge and told him that Bolton did not blame him for trying to get more money, but
that he was going about it the wrong way and displaying the wrong attitude In the light
of all the foregoing, the conclusion is inescapable and we find that both Thomas and
Bolton (who clearly 14 a supervisor, being in full charge of the mill in the absence of
Thomas, and having himself hired two truckdrivers and discharged another) were
concerned with the "attitude" toward the Union.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threat on the same day to discharge the entire crew and start anew
in the event of union organization, we find that Dudley, the chief
union advocate at the mill, was illegally discharged because of pro-
tected concerted activities on behalf of the Union.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Farmers Co-Operative Com-
pany, Creston, Iowa, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the American Federation of Grain
Millers, A. F. of L., or in any other labor organization by discriminat-
ing against employees in respect to their hire or tenure of employment
or terms or conditions of employment.
(b) Interrogating, threatening, or warning employees in connec-
tion with their activity in behalf of a labor organization or in any
other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist the American Federation of Grain Millers,
A. F. of L., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to William L. Dudley immediate and full reinstatement
to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges, and make him whole for
any loss of pay suffered, in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(b) Upon request, make available to the Board or its agents for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other
records necessary or convenient for the analysis of the amount of back
pay due under the terms of this Order.
(c) Post at its mill in Creston, Iowa, copies of the notice attached
hereto and marked "Appendix A."' Copies of such notice, to be
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforeinp lu
Order."
FARMERS CO -OPERATIVE COMPANY 147
furnished by the Regional Director for the Eighteenth Region, shall,
after being duly signed by Respondent's representative, be posted by
it immediately upon receipt thereof and be maintained by it for a
period of sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees customarily are posted.
Reasonable steps shall be taken by Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Eighteenth Region (Min-
neapolis, Minnesota), in writing, within ten (10) days from the date
of this Order what steps the Respondent has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT by interrogations, threats, warnings, or discharge
interfere with, restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor organizations, to,
join or assist AMERICAN FEDERATION OF GRAIN MILLERS, A. F. of L.,
or any other labor organization, 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, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to William L. Dudley immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to his seniority or other rights or privileges, and
make him whole for any loss of pay suffered as a result of the dis-
crimination against him.
All our employees are free to become or remain or to refrain from
becoming or remaining members of AMERICAN FEDERATION OF GRAIN
MILLERS, A. F. OF L., or any labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of member-
ship in or activity in behalf of any labor organization.
FARMERS CO-OPERATIVE COMPANY,
Employer.
Dated------------------- By-----------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed by American Federation of Grain Millers, A. F. of L.,
herein called the Union, the General Counsel of the National Labor Relations
Board issued his complaint dated June 30, 1952, against Farmers Co-Operative
Company, Creston, Iowa, herein called the Respondent, alleging that the Respond-
ent had engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act.
In respect to unfair labor practices, the complaint alleges, in substance, that
from about February 1, 1952, and thereafter, Respondent questioned its employees
concerning their union beliefs and activities, warned them that the workweek
would be reduced if the Union was successful in an organizational attempt, and
on March 7 discharged its employee, William L. Dudley, because he joined and
assisted the Union and engaged with other employees in concerted activities for
the purpose of collective bargaining and other mutual aid and protection.
Respondent's answer, filed before the hearing, admits certain of the facts
upon which the General Counsel premises jurisdiction, while denying that such
jurisdiction exists ; denies the commission of unfair labor practices ; and as-
serts that Dudley was discharged for misconduct, insubordination, and failure
properly to perform his duties.
Pursuant to notice, a hearing was held before the undersigned Trial Examiner
in Creston, Iowa, on July 16 and 22, 1952. The General Counsel and the Re-
spondent were represented by counsel, participated in the hearing, and were
afforded full opportunity to examine and cross-examine witnesses and to intro-
duce evidence pertinent to the issues. At the conclusion of the taking of testi-
mony some discussion in the nature of oral argument was had, and all parties
were afforded opportunity to file briefs. None has been received.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Iowa corporation with its principal office and place of busi-
ness in Creston, Iowa, where it is engaged in the sale of grain, coal, seeds, and
other materials, and in the processing and sale of feeds. During the calendar
year 1951, Respondent purchased corn, beans, wheat, oats, fertilizers, coal, wire,
seeds, and other materials in an amount exceeding $250,000, of which more than
50 percent was purchased and shipped to it from points outside the State of
Iowa. During the same period Respondent's sales exceeded $250,000 in value,
of which more than 50 percent was shipped to points outside the State of Iowa.
I find, contrary to the position of the Respondent, that it is engaged in com-
merce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
American Federation of Grain Millers, affiliated with the American Federation
of Labor, is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
In September 1948, William L. Dudley became Respondent's employee and
remained in that status until his discharge March 7, 1952. Dudley's principal
FARMERS CO-OPERATIVE COMPANY 149
employment was mixing feed and, in common with other employees in the mill-
room, sometimes waited upon the trade and loaded purchases at the dock.
Dudley's left arm is amputated below the elbow, but he wears a prosthetic device
which apparently enabled him to perform his tasks to the satisfaction of his
Employer. In late fall 1951, according to the testimony of Frank Bentley,
Respondent's president, a number of complaints were voiced to Respondent's
board of directors, resulting, according to Bentley, in the recommendation by
the directors to Manager Harold F. Thomas that Dudley be discharged. The
nature of the complaints appears principally to have been that feed mixes were
not being properly made and that customers were not receiving the courteous
service that the directors desired. Manager Thomas testified that he recalled
the recommendation of the directors and that in consequence he called all the
mill employees together to tell them that their work must improve but that he
did not single out Dudley for criticism. Plant Superintendent James Homer
Porter testified that Dudley was "grouchy" in his approach to customers and
that he had complained of this attitude to Manager Thomas on a number of
occasions. Thomas. testified that he had received such complaints from Porter,
but that he had always found Dudley to be cooperative and did not raise the
matter with Dudley.
In late February 19:52, Dudley and another employee decided to investigate
the possible advantages of union representation and in furtherance of their
inquiry spoke to an organizer for the American Federation of Labor who was
occupied in such work at a nearby plant. Dudley secured a number of blank
cards from the organizer which, from the somewhat confused evidence about
them, I conclude were designed to enable some union to petition the Board for
an election at Respondent's plant. According to Dudley, on February 24 he
secured the signatures of 6 or 8 of Respondent's employees to the cards. Dudley
testified, as indeed did Manager Thomas, that on March 3 the latter asked Du ]ley
if he was heading the Union's organizational effort in the plant. Dudley denied
that he was. Thomas went on to say, according to the testimony of both par-
ticipants in this conversation, that if the Union "came in" Thomas would quit,
that he would not work in the plant if a union was chosen. The conversation
continued for about an hour and during the course of it, according to Dudley's
version, Thomas told him that he was discharged, that in the event of union
organization Thomas would discharge the entire crew and start anew. Finally,
however, Dudley went back to his work and the threat of discharge was not
carried out. Two days later Superintendent Porter, as he admitted in his
testimony, told Dudley that if Dudley wanted a uni')n he was going about it
the wrong way ; that he first should talk to Thomas about it. Later in the day,
according to Dudley, Porter told him in the presence of 2 other employees, that
if the Union came in Dudley would be fired.' That evening 5 of the employees
met with a representative of the Union in a Creston hotel and all signed designa-
tion cards. On March 6 Dudley secured the signature of another employee in
the plant and on the 7th still another, who, however, reclaimed his card about
30 minutes later. About 2 o'clock that afternoon Dudley was approached by
Manager Thomas, who asked him if he had told any of the employees they
would be discharged if they did not join the Union. Thomas testified that he did
indeed ask this question of Dudley, but from this point the versions of the par-
ticipants in the colloquy differ sharply. According to Dudley he denied to Thomas
that he had made such representations and went on to tell of Porter's advice that
he should talk to Thomas first about a union. Thomas asked, according to
P Porter denied uttering such a threat . I do not credit his denial for the evidence
convinces me that Respondent 's representatives first employed such tactics to discourage
union activity before resorting to actual dismissal.
250983-vol. 102-53-11
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dudley, if that was still his attitude ,° and Dudley answered , "Yes !" that he
was in the Union and intended to remain there. It was then, according to
Dudley, that Thomas told him he was discharged . A few minutes later Dudley
told Thomas, "I hope to hell you know what you are doing, Mr. Thomas, because
I am going to cause you some trouble over it ." The two then proceeded to
Thomas' office where , with the latter 's permission , Dudley telephoned a repre-
sentative of the Union in Des Moines to report his discharge. That evening
Assistant Manager Bolton came to Dudley's house to get some keys which
Dudley had taken with him. According to Dudley's undenied and credited
testimony , Bolton said that he did not blame Dudley for trying to get more
mone but that Dudley was going about it the wrong way and displaying the
wrong attitude. Bolton went on to say that had he been running the plant
Dudley would have been the foreman of the mill crew as he had a good memory,
was good with figures, and was a good worker . Dudley denied that he had
told any employee he would be discharged if be did not join the Union, but
conceded that he had told one individual , Russell Hardisty , that If he did not
join "the other boys would make it so hard on him that he'd either join or
quit.,9
Manager Thomas testified that on March 3 Dudley had responded to his Inquiry
about who was organizing the Union In such a fashion as to Indicate that he was.
Whereupon Thomas told him that his attitude was wrong and that his conduct
provided a source of considerable embarrassment to Thomas In that Thomas
had failed to follow the directors ' recommendation of discharge . Thomas agreed
that he said that the advent of the Union would mean he was leaving ; that be did
not want to work "amongst a bunch of trouble." According to Thomas, Dudley
pleaded for his job , saying he had a house to pay for and owed payments on his
car, to which Thomas replied, "Well, Bill, if you will get your attitude straight-
ened out and go back to work and get things straightened out, we will forget
about it ." Thomas denied that this admonition had any connection with the
Union . On March 7, according to Thomas , he was Informed by Superintendent
Porter that Dudley had been threatening employees with discharge If they did
not join the Union. Thomas then questioned Dudley in that connection, with
the result, according to Thomas, that Dudley, instead of answering, shouted,
"God damn it , I knew I was going to get the blame for It, but you sons of bitches
can't get by with it. I know my rights." Superintendent Porter testified that
he was nearby at the time , heard Dudley explode as Thomas testified , and that
Dudley's discharge followed. Despite this provocative outburst Thomas re-
sponded quietly, he testified, with, "Bill, if your attitude is like this, I am going
to give you your check." This evoked, according to Thomas, an assertion by
Dudley that Thomas couldn't fire him, that Dudley knew his rights, and that
Respondent would "get into a hell of a lot of trouble." Thomas testified that
the reason for the discharge was the "cussing" he received from Dudley.
There is perhaps some substance to the assertion that Dudley did not always
service customers in a fashion entirely satisfactory to the directors. But I do
not credit the testimony of President Bentley or Manager Thomas that the
directors in the fall or winter of 1951 recommended Dudley's discharge. The
conduct of Thomas following this alleged recommendation Is entirely inconsistent
with Its having been made . I do not doubt that complaints in regard to customer
service were the subject of discussion by the directors and that Thomas was
aware of it. This would fully explain his warnings to all the employees in late
January that they should improve in that respect. It fails utterly to establish
that Dudley was a particular target for criticism . Thomas 's testimony im-
Apparently , that such matters were not Thomas ' concern.
FARMERS CO-OPERATIVE COMPANY 151
pressed me as that of one struggling to tell the truth to the extent possible while
protecting what he conceived to be the interest of his employer. He did testify
that Dudley was a competent worker and that he found him to be cooperative.
Thomas's deep concern lest Respondent 's employees designate a union to repre-
sent them , is fully apparent in his testimony that he would resign his position
rather than work where such an arrangement existed. Dudley's testimony that
on March 3 Thomas at first told him he was discharged ' and later relented, fits
rather neatly into Thomas ' admissions that he told Dudley on that occasion
to "go back to work and get things straightened out, we will forget about it."
I do not credit Thomas' rather strained explanation that this warning had to do
with Dudley's work performance. However, I am convinced by the testimony
of employees Hardisty, McKinney, and Olso that Dudley did tell them that failure
to join the Union would or might result in their discharge. Dudley's denial
that he did so is perhaps literally true, but his admission that he told Hardisty
that things could be made so difficult that he would either join the Union or quit
his job, Is sufficiently of the same piece of cloth as to persuade me that those
individuals named above reasonably interpreted his remarks as they testified.
This conduct, coming to the ears of Thomas, of course, stimulated him to approach
Dudley about the latter's activity. Now of course the Act throws no cloak of
protection about the shoulders of one who finds himself discharged because
be has voiced threats of this character and if Dudley had been discharged for
that reason, the General Counsel's complaint would fall. However, In the
context of events illumined by the evidence here, it is clear that Thomas' concern
was not with the threat but with the continuation on the part of Dudley of his
efforts to secure members for the Union among Respondent's employees.
Thomas' testimony concerning his conversation with Dudley on March 3 leads
me to conclude that he hoped, first, by a threat of discharge and then with the
admonition to get his attitude straightened out, that Dudley no longer would
be the focus of Infection in such matters . The report of Dudley 's continued
activity of course signalized the failure of the earlier threats and warning.
Hence Dudley's discharge. In arriving at this conclusion I have, of course,
discredited Thomas 's testimony that Dudley cursed him before the discharge.
I regard Thomas' testimony in that connection to be so highly improbable and
so entirely uncharacteristic of the friendly relationship theretofore existing
between the two as not to merit belief . I find that whatever cursing occurred
followed the announcement by Thomas of Dudley's discharge.
The situation presented here is not dissimilar to that which frequently arises
in cases coming to the Board of an individual being discharged for engaging in.
union activity in a plant where the evidence shows the activity to have occurredl,
during work time. An employer, it need hardly be reiterated, is entitled under
normal circumstances to restrict communications between his employees on such
matters to nonwork periods and hence may lawfully discharge one for violation
of such a restriction. But where, as here, the discharge is made not for the vio-
lation of any rule or, as here, not because of the character of the union activity,
but actually because it was union activity, it then clearly is a reprisal for hav-
ing exercised rights guaranteed by Section 7 of the Act. Perhaps it is clearer
to say that the unprotected threats uttered by Dudley did not deprive him of the
protection of the Act for his other and legitimate activity. As I am convinced
that it was the totality of his conduct as a union sponsor which caused his dis-
charge, I find that by the discharge Respondent discouraged membership and
0 Chronologically, this threat of discharge follows closely Porter 's recommendation to
Thomas in late February that Dudley be fired . Despite Porter 's denial I am convinced
that Dudley 's organizing activity provided the motivation.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity in behalf of a labor organization in violation of Section 8 (a) (3) of
the Act.
Assistant Manager Bolton testified that in late February or early March an
employee, Claude Nash, said that Respondent 's wages were too low and that in
the conversation which this remark evoked the Union was mentioned. Nash, ac-
cording to Bolton, asked the latter what he thought about a union and Bolton
answered that he could not see how it would do any good, that it probably would
mean less take-home pay for the employees. Bolton explained to Nash that if
the probable wage demands of the Union were met it would be impossible for the
Respondent to continue giving them 54 hours work each week. Nash was not
available to the General Counsel as a witness. So-called expressions of opinion
and comment on probabilities are often made in such a context as actually to
constitute to the ears of the listener an authoritative prophecy of what will hap-
pen, I am satisfied that the exchange between Bolton and Nash constituted a
threat by Bolton of decreased earnings in the event of union organization.`
By the discharge of Dudley, by the interrogation of Dudley in connection with
his union membership and activity, by the threat of Thomas to Dudley on March
3 that his attitude placed him perilously near discharge, by Bolton's prediction
of lessened earnings, and by Porter's prophecy that Dudley would be discharged,
I find that Respondent interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act and that Respondent
thereby violation Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations described in section I, above, have a close, inti-
mate, 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 Respondent has engaged in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act, it will be recommended
that it cease and desist therefrom and take certain affirmative action in order
to effectuate the policies of the Act. Having found that a discriminatory moti-
vation operated in connection with the discharge of William L. Dudley, it will
be recommended that the Respondent offer him immediate and full reinstatement
to his former or substantially equivalent position and make him whole for any
loss of pay suffered by payment to him of a sum of money which otherwise he
would have earned from March 7, 1952, to the date of offer of reinstatement,
less his net earnings during such period. Having found that Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act, it will be recommended that Respondent cease
and desist from such conduct.
Loss of pay shall be computed on the basis of each separate calendar quarter
or portion thereof during the back-pay period. Quarters shall begin with the
first day of January, April, July, and October. Loss of pay shall be determined
by deducting from a sum equal to that which Dudley normally would have earned
for each quarter or portion thereof his net earnings, if any, in other em-
ployment during that quarter. Earnings in one particular quarter shall have
no effect upon the back-pay liability for any other quarter. It will also be
' Geigy Company, Inc., 99 NLRB 822.
ACME EQUIPMENT COMPANY 153
recommended that the Respondent be ordered to make available to the Board
upon request payroll and other records to facilitate the checking of the amount
of back pay due.
Upon the basis of the foregoing findings of fact and upon the entire record
of the case, I make the following :
CONCLusIONs OF LAw
1. American Federation of Grain Millers, A. F. of L., is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in respect to the hire and tenure of employment of Wil-
liam L. Dudley, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination and by interrogating, threatening, and warning
employees in connection with activity in behalf of the labor organization, the
Respondent has interfered with, restrained, and coerced employees in the exercise
of rights guaranteed by Section 7 of the Act and has thereby violated Section 8
(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
FRANK P. SLATER , AN INDIVIDUAL , D/B/A ACME EQUIPMENT COMPANY
and MILLWRIGHTS UNION LOCAL 102, UNITED BROTHERHOOD OF CAR-
PENTERS & JOINERS OF AMERICA, AFL
INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE 68 and
MILLWRIGHTS UNION LOCAL 102, UNITED BROTHERHOOD OF CARPEN-
TERS & JOINERS OF AMERICA , AFL. Cases Nos. 2O-CA-628 and
2O-CB-215. January 13,1953
Decision and Order
On June 19, 1952, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached thereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
'Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National
Labor Relations Board has delegated its powers in connection with this proceeding to a
three-member panel [Chairman Herzog and Members Styles and Peterson].
102 NLRB No. 19.