Planters Manufacturing Company, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1938

10 N.L.R.B. 735 (N.L.R.B. 1938)

In the Matter Of PLANTERS MANUFACTURING COMPANY, INC. and
UNITED VENEER BOX AND BARREL WORKERS UNION, C. I. O.
In the Matter of PLANTERS MANUFACTURING COMPANY, INC. and
UNITED VENEER BOX AND BARREL WORKERS UNION, C. I. O.
Cases Nos. C-476 and R-448.-Decided December 20, 1938
Basket, Hamper, and Crate Manufacturing Industry-Interference, Restraint,
and Coercion: anti-union statements; threatening bodily harm to union organiz-
ers ; threatening to discharge employees if they did not resign from union ;
offering of wage increase to induce employees to renounce union; causing fear
of bodily harm by displaying and pointing gun at employees while discussing
their union affiliation ; seeking to induce employee to spy on the union ; engag-
ing in provocative acts towards employees because of union affiliation ; attempt-
Ing to arouse racial prejudice between employees to cause them to reject union-
Discrimination: as to tenure of employment : discharges for union membership
and activity to discourage membership in union; inducing belief in employee
of discharge for union activity without affirmatively dissipating such belief,
equivalent of discriminatory discharge; charges of, dismissed as to certain
persons for insufficient or want of proof--Reinstatement Ordered: discharged
employees-Back Pay: awarded : from date of discrimination to date of rein-
statement or offer of reinstatement ; employee not desiring reinstatement, from
date of discrimination to date of obtaining other employment: monies received
by employees for work performed upon Federal, State, county, municipal, or
other work-relief projects to be deducted and paid over to agency which supplied
funds for said projects-Investigation of Representatives: controversy concern-
ing representation of employees : respondent doubts existence of union; sub-
stantial doubt as to majority status-Unit Appropriate for Collective Bargain-
ing: production and maintenance employees, excluding supervisory and clerical
employees-Election Ordered
Mr. Samuel M. Spencer, for the Board.
Rumble & Rumble, by Mr. Gerould M. Rumble and Mr. Francis S.
Thompson, of Norfolk, Va., for the respondent.
Mr. Ray Thomason and Mr. Mont Crum, of Norfolk, Va., for the
Union.
Mr. Edwin L. Swope, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon charges duly filed by United Veneer Box and Barrel Work-
ers Union, C. I. 0., now known as Local Industrial Union No. 485,
10 N. L. R. B., No 61. 735
736 NATIONAL LABOR RELATIONS BOARD
herein called the Union,' the National Labor Relations Board, herein
called the Board, by its Regional Director for the Fifth Region
(Baltimore, Maryland) issued a complaint dated November 8, 1937,
against Planters Manufacturing Company, Inc., Portsmouth, Vir-
ginia, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. A copy of the complaint, accompanied by notice
of hearing, was duly served upon the respondent and upon the
Union.
The complaint alleged in substance that the respondent on or
about August 20, 1937, discriminated in regard to the hire or tenure
of employment of 40 of its employees, named in the complaint,2
because of their union affiliation and organizational activity, thereby
discouraging membership in the Union; that by these and other acts
the respondent interfered with, restrained, and coerced its employees
in the exercise of the right to self-organization and to engage in
concerted activities for mutual aid and protection. On November 16,
1937, the respondent filed an answer traversing generally the material
allegations of the complaint and denying specifically that the
respondent was engaged in, or that its operations affected, interstate
commerce. At the hearing the complaint was amended by the addi-
tion thereto of the name of one other employee alleged to have been
discriminated against by the respondent."
On September 22, 1937, a petition in behalf of the Union was filed
with the Regional Director alleging that a question affecting com-
merce had arisen concerning the representation of employees of the
respondent, and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the Act. On October 4,
1937, the Board, acting pursuant to Section 9 (c) of the Act, and
i Sometime prior to the filing of the charge Local Industrial Union No 485 , was known
as United Plywood and Veneer Workers, Local 485. United Plywood and Veneer Workers,
Local 485 , was chartered by the Committee for Industrial Organization , herein at times
referred to as the C I 0 Subsequent to its organization United Plywood and Veneer
Workers, Local 485 , twice changed its name, viz, to United Veneer Box and Barrel
Workers Union, the name by which it was known at the time of the filing of the charge,
and thereafter , during the hearing, to Local Industrial Union No 485, its present name.
As used herein , Union refers to the union under its various names : United Plywood and
Veneer Workers, Local 485, United Veneer Box and Barrel Workers Union, C I O.
and Local Industrial Union No 485
2 The persons so named are as follows • Floyd Barnes , Floyd Burke, Willie Butts, Viola
Clanton, William Coates, Nina Council, John Covington, Tom Deans, William Dickens,
Burton Ellis , John Evans , R. Evans, Eli Gibbs, Curtis Hardy, Jeff Hardy , Herbert Harrell,
John Harris , Berry Hawkins , William Hawkins , Joe Howard , Willie Jones , Isaiah McCall,
John McCarris , Charlie Nusom , Jr, Charlie Nusom , Eddie Pittman, Charlie Richardson,
Freddie Sexton , William Shine , Eddie Simmons , McKinley Simmons, Gabriel Spreull,
Rudolph Thrower , William Towns, Joseph Wallace , John White, George Williams , Lazarus
Winslow, Bernice Yates, La Nelle Yates
6 The name of this employee is Hattie Williams
DECISIONS AND ORDERS 737
Article III,'Sections 3 and 10 (c) (2), and Article II, Section 37 (b),
of National Labor Relations Board Rules and Regulations-- Series 1i
as amended, ordered an investigation and a consolidation of the two
cases , for purposes of hearing and authorized the Regional Director
to 'conduct the investigation and to provide for an appropriate hear-
ing upon due notice. Thereafter, notice of the hearing in the con-
solidated cases was duly served upon the respondent and upon the
Union.
Pursuant to the notice a hearing was held on November 23, 24, 26,
27, 29, and 30, and December 1, 2, 3, and 4, 1937, at Portsmouth,
Virginia, before Charles E: Persons, the Trial Examiner duly desig-
nated by the Board. The Board, the Union, and the respondent were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
A brief was submitted by the respondent. During the hearing the
respondent' moved to dismiss the proceedings on the ground that the
.employees named in'the complaint, as amended, were not at the time
of the alleged discrimination members of an existing labor organiza-
tion. This motion the'Trial Examiner denied, it appearing that the
employees were at-that time and at all times material members of
the Union now known 'as Local Industrial Union No. 485, formerly
known- as "United Veneer' Box and Barrel Workers Union" ; that
-"United Veneer Box and Barrel Workers Union," as well as "Unitei(,.
Plywood and Veneer Workers, Local'485"'are previous names of one
and the 'same labor organization; Local Industrial Union No 485.4
During the course of the hearing the Trial Examiner made various
other rulings including" rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
-Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
On Match 7, 1938, the Trial Examiner filed his Intermediate Re-
port copies of which_were duly served on all parties, finding that the
r'esp'Sndent had engaged in and was engaging in unfair 1 ,1Sor prac-
tice affecting commerce, within the meaning of Section'8 -6) and (3)
ant^^Section 2 (6) and (7) of the Act, and recommending that .the
pendent cease and desist from its unfair'lsabor practices; reinstate
wi h back pay certain of its employees fours 4 to have been discrimi-
natorily discharged by,,the respondent,' maize whole certain-other
employees 6 -found to, have been discriminatorily laid off, and- take
S See footnote 1.
The names of these persons are: W ilhe Butts, Burtozi Ellis , Relyus Evans, Eli Gibbs,
John Hau ls , Willie ' Jones , John
(
McCarris, Freddie Sexton , McKinley Simmons, Rudolph
Thrower, Joseph Wallace, George Williams , and Hattie Williams
The names of these pcrsoas we Cbarl e Nnsom, Jr, and John White
738 NATIONAL LABOR RELATIONS BOARD
other specified action to remedy the situation brought about by, the
unfair labor practices. . -
On, March 17, 1938, the respondent filed exceptions to the Inter-
mediate Report. On July 5, 1938, pursuant to notice, a hearing for
the purposes of oral argument on the exceptions and record was held
before the Board in Washington, D. C. The respondent was repre-
sented by counsel and participated in the argument.
The Board has considered the exceptions to the Intermediate Re-
port and in so far as -they are inconsistent with the findings, con-
clusions, and Order set forth below, finds them 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 corporation engaged in the manufacture and
sale of wooden baskets, • hampers, crates, and other containers used
in the packing chiefly of agricultural products for shipment. Sales
are made to wholesalers, jobbers, retailers, and farmers. The re-
spondent in the conduct of its business operates a manufacturing
plant at Portsmouth, Virginia. Operations at the plant are highly
seasonal and uncertain because of their dependency on agricultural
production and marketing conditions. 7
The raw materials used by the respondent in its manufacture are of
intrastate origin, except for some 2 to 5 per cent thereof, consisting
of-logs, which are brought to the plant from North Carolina. Fin-
ished products manufactured at the plant amounting to from 10 to 20
per cent of the total value of such products, are sold and shipped -
from the plant to customers located outside of the State of Virginia,
mostly in the States adjacent to Virginia.8 The total value of the
finished-,products manufactured at the plant in 1936 was $750,000; the
value of finished products sold and shipped in 1936 from the plant
to customers located outside of the State of Virginia was beteen
$75,000 anit•4$150,000.- It is evident from- the kind of containers plan-
ufactured that the amount thereof thus shipped out t of the State of
Virginia,, "both in nui'nber of individual units' and in. bulk Vis
substantial.
° This uncertainty is reflected in the ' respondent 's sales which - are not for definite
quantities but for such amoumtsasl may be needed by the purchaser . The record shows
that a sudden climatic change as 's frost , or a disturbance in marketing conditions, may
result in an immediate caneelat on of orders
','During the oral argument the respondent 's attorney stated that bet' -een 10 and 20
1-" I
peer cent of the respondent's sal As are made to customers outside of Vii'gmia.1 -1, 1. [if 1 _ i, r
1 1 r
DECISIONS AND ORDERS
II. THE UNION
739
Local Industrial Union No. 485 is a labor organization affiliated
with the Committee for Industrial Organization. It admits to mem-
bership all employees of the respondent, excluding supervisory and
clerical employees.
III. THE UNFAIR LABOR PRACTICES
A. Background of the unfair labor practices
In June 1937 the Committee for Industrial Organization com-
menced organizational activities at the Portsmouth plant. By August
the labor organization, herein called the Union, was formed among the
plant employees, a charter issued to it, and officers elected. Meetings
of the members were held regularly. On September 8 the Union sub-
mitted to the respondent a draft of a proposed contract between it and
the respondent relating to wages and working conditions. Although
some discussion thereafter was had by the parties concerning the con-
tract no agreement ever was reached.
The record establishes that the superintendent of the plant, one
Howard, bore a marked antipathy towards any unionization of the
employees. His attitude is indicated in an incident related at the hear-
ing by two witnesses, both disinterested, employed as hotel clerks at
the New Virginia Hotel in Norfolk, Virginia. Howard, on one occa-
sion, came to their hotel and demanded to see one Crum, an organizer
of the Committee for Industrial Organization, who had been assisting
in the organizational activities. Howard informed the clerks that "he
was going to get him [Crum]," and berated them for affording lodg-
ing to the organizer. Howard stated, "You people are no better than
he is, harboring a man like that." At the hearing Howard denied
ever having been at the hotel. However, he was present in the hearing
room when one of the clerks testified, and was positively identified by
the witness from the stand. As hereinafter shown Howard committed
numerous acts of coercion and intimidation against the employees
who joined the Union, and in other ways displayed an utter disregard
of the rights secured employees under the Act. In the light of How-
ard's determined course of anti-union conduct, as well as the apparent
disinterest of the two clerks, we are unable to place any credence in
Howard's denial.'
Counsel for the respondent stated at the oral argument that the respondent should
not to be held responsible for Howard 's acts. The respondent is in no position to disavow
the anti-union conduct of its superintendent See National Labor Rclattions Board v.
The A. S . Abell Company, 97 F. (2d ) 951 (C . C A. 4th).
740 NATIONAL LABOR RELATIONS BOARD
On August 23 the first of the discharges among the persons named
in the complaint occurred. In the succeeding two weeks 11 more em-
ployees were discharged. The remainder of those named were either
discharged or laid off throughout September, with one discharge
occurring in October.
B. Discharge of union officials
Willie Jones, Willie Butts, and Joseph Wallace, the president,
treasurer, and secretary, respectively, of the Union were discharged
by the respondent on August 31, 1937.
Jones has been in the employ of the respondent since March 1,
1930, and "off and on" theretofore from 1925 to 1930. Within the year
previous to his discharge he was promoted from machine operator
to machine fixer because of unusual ability. On August 19 Howard,
the superintendent, had a conversation with Jones. After commend-
ing Jones' work and stating that he had intended to increase Jones'
wages, Howard asked, "Are you going to stay in the union, or are
you coming out?" Jones did not answer. Howard then said, "Well,
it will mean a whole lot to you, and mean more to you if you will
come out than if you stay in there." On August 31 Jones' foreman
discharged Jones on Howard's instruction.
Jones' foreman was called as a witness for the respondent. He
stated that the main reason he discharged Jones was because Jones
was hard to find during certain hours in the forenoon and afternoon,
and seemed to be devoting too much time to outside activities; that
while he did not know what Jones was doing there were rumors that
Jones was lending money to employees at usurious rates of interest.
Although it appears that Jones had been requested by other em-
ployees to lend them money and on occasion had done so the loans
were not made during working hours. The foreman further testified
that 2 weeks before the discharge he complained to Howard about
Jones' failure to perform certain machine work, but Howard had said
to give Jones another chance before discharging him, that on a subse-
quent day "all the machinery was broken down ... practically all
day," and Howard then had said, "You can go ahead and lay Willie
off." On cross-examination, the foreman admitted that he overheard
Howard questioning Jones some time, before the discharge about his
being president of the Union and that Jones had admitted he was.
The alleged failure to perform the machine work was denied by
Jones.
Butts worked at the plant as a machine fixer for 14 years. On
August 23 Howard sent for him and inquired whether he was a mem-
ber of the Union and if he was its treasurer. Upon receiving an
affirmative answer Howard told Butts that he should give up his
DECISIONS AND ORDERS 7411
union affiliation and warned him that if he did not do so he would
lose his job. On Saturday August 28 Butts was directed to report to,
the plant for night work. This was the first time Butts had been.
assigned work on a Saturday night, and he did not report because,,
among other things, he had been informed that the foreman planned
to use the occasion to do him bodily injury. The following Sunday-
Howard in discussing this matter with Butts asked Butts if he pro-
posed to attend a union meeting to be held that night, and when Butts.
replied that he did, stated, "I am going to tell you that if you don't
come out of there, I am going to fix you.." At the time Howard was,
wearing a "big" gun. On Tuesday night, August 31, Howard told
Butts while at work that he intended to "get rid" of Butts. Then,,
in the presence of Butts ' foreman and two employees , Howard dis--
charged Butts. Shortly thereafter Howard called Butts and after
locking the door of the shop where they stood, pointed a gun at,
Butts' stomach saying, "I have got a good mind to kill you." How-
ard then instructed Butts to get his tools , and when Butts returned
to the shop with them stated to Butts' foreman and two other em-
ployees who were present , "Well, I am going to leave it to you three
men 'to decide what you want to do with Willie." One of them stated
that Butts should be let free, and Butts then was escorted off the-
plant premises. '
The respondent called several witnesses to testify concerning the,
discharge of Butts. His foreman stated that Butts has been dis-
charged for inefficiency and for breaking parts when making replace- -
ments, that at the time of the discharge no gun was displayed. How- -
ever , another of the respondent 's witnesses , while stating that How- -
ard "didn't threaten anybody," admitted that Howard had drawn the-
gun. One foreman testified that Butts' work during 12 years had _
been satisfactory "until just in the last year or so he had not been
doing his best." Two welders testified that since Butts' discharge
the time required to weld broken parts had been greatly reduced. .
However, these witnesses also testified that no record was ever kept of
the•time'spent in welding; moreover, that the respondent employed
several machine fixers besides Butts.
Wallace ' as employed by the respondent in the summers from 1923
to 1930 while on vacation from school , and was continuously employed -
from ' 1930 until his discharge . Early in ,the evening of August 31
Howard summoned Wallace to the machine shop and inquired whether -
he was a member of the Union and its secretary . Wallace replied -
that he was . Howard then told him that the respondent would notes
permit any union in the plant and that he, Wallace, should resign -
from it. Howard stated "That God damn Thomason and Crum [or- -
ganizers for the Committee for Industrial Organization] are coming--
14 78 4 4-99--vol 10--48
742 NATIONAL LABOR RELATIONS BOARD
here with a contract, and I am not going to have them in here." Then
drawing his gun Howard continued, "I bet this God damn gun that
they don't bring any contract in here." Howard concluded with of-
fering Wallace an increase in wages if he would relinquish his mem-
bership in the Union. About 2 hours later Howard again called Wal-
lace to the machine shop. As he entered the shop Wallace found
Butts leaving. Howard informed Wallace that he was discharged.
The respondent called Wallace's foreman as a witness. He testified
that Wallace had been discharged in connection with a complaint which
he, the foreman, had made to Howard about Wallace's work.
Howard testified generally for the respondent. He denied having
made anti-union. statements; deified threatening Jones, Butts and
Wallace, or drawing a gun.
We entertain no doubt that the respondent discharged Jones, Butts,
and Wallace because of their leadership and membership in the Union.
The long years of service rendered the respondent in the instance of
each employee strongly refutes the claim that inefficiency, or in Jones'
case, an asserted difficulty in finding him, supposedly because of the
loans, in fact induced-the respective discharges of these men.10 The
true reason for their loss of employment is to be found in the inquiries,
warnings, and statements of Howard. We heretofore have indicated
our disbelief in denials made by Howard at the hearing. His testimony
in respect to these employees is entitled to no greater weight. We are
satisfied that he made the threats and statements to these three, on
occasion with show of great force, as above set forth. It is evident that
the respondent through Howard was determined to defeat the Union
which had established itself among the employees and that in pursu-
ance of such decision the leaders were discharged. The coincidence in
the occurrence of the three discharges on the same day is not referable
to mere chance but constituted a device well calculated to give unmis-
takable warning to all other employees who joined the Union.
We find that the respondent discharged Willie Jones, Willie Butts,
and Joseph Wallace because of their union leadership and activities,
thereby discouraging membership, in the Union ; that in and by said
discharges, and each of them, the respondent interfered with, re-
strained, and coerced its employees in the exercise of rights guaran-
teed by Section 7 of the Act.
At the time of the discharges Jones earned 221/2 cents an hour,
Butts $29.70 a week, and Wallace an average of $13 per week. Since
then Jones and Wallace have each earned about $90 at various odd
jobs, and Butts about $2. None of the men has secured employment
10 See Matter of The Kelly-Springfeld Tire Company and United Rubber Workers of
Ameitea , Local No 26 and James M Reed and Monn,e Rank , 6 N L R B 325, enforced in
97 F (2d) 1007.
DECISIONS AND ORDERS 743
since his discharge which was or is regular and substantially equiva-
lent to his respective former position with the respondent, and each
wishes to be reinstated to his former position.
C. Other discharges and attendant acts of interference,
restraint, and coercion
Rudolph Thrower was employed at the Portsmouth plant about
4 years. He worked "off and on," that is, he sought employment else-
where during slack periods when his earnings, computed on a piece-
rate basis, would become too low. When first employed Thrower
worked on the drying machine; thereafter, he was assigned to the
hooping machine and then to the handle machine where his earnings
were higher. Thrower joined the Union in August 1937. He was
discharged on August 31, the same day that the three union officers
were. Thrower testified that at 9: 30 p. m. he was called from the
warehouse, where he was working, to the machine shop ; that Howard
was there; that Howard turned to him and asked, "Do you belong to
the Union?" that upon his,' Thrower's, replying "Yes," Howard said,
"We don't have those kind of God damned fellows working around
here; pay him off, too."
Several witnesses testified for the respondent. Howard stated
briefly that he did not "know" Thrower and had never summoned him
to the machine shop. Kite, Thrower's foreman, stated in general
fashion that he had discharged Thrower; that the reason therefor
was that Thrower "had put up bad workmanship, and also caught him
several times loafing'"; that Thrower affixed "bad handles on good
baskets"; and that he had warned Thrower about this. Upon further
questioning Kite stated that the reason for the discharge was "Be-
cause I had several complaints from Mr. Howard that his [Thrower's]
work wasn't satisfactory. Mr. Howard got after me so therefore I
discharged him [Thrower]." Lane, an assistant foreman, testified
that some months prior to the discharge Thrower had been "laid off"
assertedly for incompetence, but had been reemployed upon requesting
"another chance"; that he, Lane, knew nothing concerning the oc-
currences at the time Thrower was discharged.
We are satisfied, in the light of the record, that Howard sum-
marily discharged Thrower on August 31 because of his union
affiliation. The discharge occurred on the day, indeed the record
indicates within a few minutes, of Butt's discharge. Thrower's testi-
mony of the circumstances surrounding his discharge is precise and
direct, and in view of the events immediately preceding it concerning
Butts invites full credence. Howard's denial that he did not "know"
Thrower hardly squares with the testimony of the respondent's other
744 NATIONAL LABOR RELATIONS BOARD
witness, Kite, that Howard had made "several complaints" about
'Thrower's work and had "got after" Kite about it. Nor are we satis-'
fled with Kite's testimony. It is general and shows little more than
that Howard had pressed Thrower's discharge. While Thrower some
time prior to his discharge may have been "laid off" for inefficiency, a
matter not established by clear and convincing proof, we do not feel
that his discharge was induced by such a cause.
We find that the respondent discharged Rudolph Thrower on
August 31 because of his membership in the Union. At that time.
Thrower was operating a handle machine and was being paid on a
piece-work basis. Since his discharge Thrower has earned about $75.
He desires to be reinstated.
George Williams was employed by the respondent in May 1937. He
first worked at various assignments in the warehouse, and was paid
an hourly wage of 15 cents per hour. Thereafter he was transferred
to the top department, and his wages increased to 171/2 cents per
hour. Williams joined the Union in early August 1937. He was dis-
charged August 23.
On the Wednesday previous to his discharge Williams was sent
for by Howard who inquired whether he was a member of the Union.
Williams replied that he was. Howard asked, "Didn't you hear talk
around here that I said that no man would work in this plant and be-
long to a union?" and then remarked that evidently Williams did
not want to work there, that Howard's only recourse was to discharge;
him. Williams stated that he wished to consider the matter, intimat-
ing that he might resign from the Union. Howard thereupon granted
Williams until 5: 30 p. m. to reach a conclusion, and threatened to dis-
charge him if he decided to remain in the Union but promised a.
promotion and wage increase if he resigned. During the same con-
ference Howard criticized Williams for joining a union that admitted
colored people as members, and stated that a negro had told of Wil-
liams' membership. Williams is white. Howard also asked Williams.
to name the union organizers and directed him : "Tell them that I said_
that they are a pair of God damned `sons of bitches' for coming down.
here and starting something like this," and "tell them to meet me in
any street or road off this plant and I will beat the God damn hell'
out of them." Howard persisted in asking other questions concerning
the Union until Williams stated that he was no "stool pigeon."
Williams went home at 5: 30 p. m. without communicating with
Howard. The following day Howard repeatedly walked through Wil-
liams' department "clearing his throat" and "staring at" Williams.
Williams did not report for work the following day. On the third
day his foreman requested the reason for his having absented himself
without notifying the respondent. Williams explained that he had
DECISIONS AND ORDERS 745
been ill. The foreman then imposed a penalty on Williams of 1 day's
loss of work. Williams protested and expressed the suspicion that
another reason had induced the penalty. The foreman became evasive-
and merely told Williams to return to work the following Monday,
August 23. When Williams returned to work on Monday he found
someone working in his place. He was told that he had been dis-
charged, and was given his time card which bore the notation : "Fired
for staying out without notice."
The foreman was called as a witness for the respondent. He testi-
fied that he discharged Williams for remaining away from work on
two occasions without notifying the respondent. In addition to the
general denials heretofore referred to, Howard testified that he knew
Williams "by testifying here"; that he did not l.now Williams was
a union member.
We are of the opinion that the cause of Williams' discharge was
his decision to remain a member of the Union instead of heeding
Howard's warning to resign from it. We place no credence in How-
ard's disclaimer of acquaintanceship with Williams or of knowledge
of Williams' union affiliation, and the weight to be accorded How-
ard's general denials has been indicated above. If Williams' failure
to notify the respondent of the illness which occasioned his absence,
was of consequence, he suffered fully for it in the loss of a day's work
which the respondent imposed upon him; as above stated Williams'
earnings were computed on an hourly basis. The record does not
show any customary practice for employees to report illness. Indeed,
Williams testified that on one previous occasion when he had tele-
phoned the plant to explain an absence he had been instructed that
it was unnecessary for him to do so.
In its brief, the respondent advances the further theory that Wil-
liams was discharged because of inefficiency, that he was a "green
hand" who had been found incompetent in any work given him. The
evidence does not support this contention. No such reason was indi-
cated on the card given Williams at the time of his discharge. The
record shows, as stated above, that in the 3 months of Williams' serv-
ice with the respondent he had received an increase in wages. Nor
is such theory consistent with Howard's promise of a further wage
increase if Williams resigned from the Union. While Williams may
have been new at his work we attach no significance to that fact, for
the respondent discharged competent employees of many years' serv-
ice because of their union activities.
We find that the respondent discharged George Williams on Au-
gust 23, 1937, because of his union affiliation. At the time of his
discharge Williams was earning 171/2 cents an hour, an average of
about $12 per week. Williams has earned about $60 since his dis-
charge.
746 -NATIONAL LABOR RELATIONS BOARD
Freddie Sexton secured his employment with the respondent in
January 1937, and joined the Union in July of that year. On Sep-
tember 1 he was discharged. His foreman told him that Howard had
ordered the dismissal. Sexton was handed his time card upon which
had been written the statement that his work was unsatisfactory.
Sexton's foreman testified that he discharged Sexton "because
he did not keep his work up"; that Sexton did not loop covers fast
enough and they piled up and congested the plant. He further
testified that Sexton was a competent employee before he was a--
signed to operating the looping machine, but had been unsuccessful
in that work. The evidence shows that Sexton was transferred
to the looping machine in July 1937, that it was his job to attach
loops to the covers produced by those machines, that loops had to
be attached to from 3,600 to 7,200 covers each day, that in order to
attach loops on 7,200 covers Sexton would have to attach one loop
every 3 seconds for 12 hours. In the month preceding his discharge
Sexton worked 70 hours weekly and earned about $12 each week.
We are convinced that Sexton likewise was discharged because
of his union activities. We are satisfied, in the light of the entire
record, that his union affiliation became known to Howard who
then gave the instruction to the foreman for Sexton's discharge.
The evidence establishes that Sexton had had no complaints about
his work prior to his discharge. His foreman commended his opera-
tion of the looping machine telling him that he was looping more
loops than any of the other machine operators. While there may
have been an amount of "piling up" of baskets, a matter under-
standable in view of the requirements of his job, the record is equally
clear, as stated above, that Sexton worked long hours and had won
the approval of his foreman.
At the time of his discharge Sexton was earning 171/2 cents an
hour and was averaging about $11 per week. A month before the
-hearing on November 26, 1937, he commenced working at the South-
ern Railway Docks. He has earned about $26 since his discharge.
He desires reinstatement.
John McCarris was discharged by the respondent on August 25.
He joined the Union about a week previous. A few days before
the discharge Howard called McCarris into his office and in the
presence of his foreman, Kite, offered to increase his wages and
shorten his hours of work if McCarris would spy on the Union and
make reports to him about it. McCarris refused to do this.
Kite testified for the respondent. He stated that he discharged
McCarris for sleeping on the job. However, McCarris denied at the
hearing that he had ever slept or been warned about sleeping at
work. Kite did not testify about the offer made by Howard to
McCarris. Howard in his testimony denied having made the offer.
DECISIONS AND ORDERS 747
We find Kite's explanation of McCarris' discharge general and un-
convincing . We are satisfied that McCarris was discharged for the
reason that he refused to engage in espionage , thereby showing his
sympathy with the Union . We give no weight to Howard 's denial
of his attempt within the week preceding the discharge to induce
McCarris to spy on the Union. We find that the respondent dis-
charged McCarris because of his unwillingness to spy on the Union
and his sympathy with its cause.
At the time of his discharge McCarris earned 15 cents an hour
and averaged about $10 a week. He has since earned $18 for 3
weeks' work which is not regular and substantially equivalent to his
former position . He desires to be reinstated.
Harvey Ellis 11 was in the respondent 's employ for about 2 years.
His wages were increased three times during this period, and he was
promoted from stacking baskets to operation of the "little veneer
dryer." Ellis joined the Union in July 1937 and was discharged by
the respondent on August 25, 1937 . On the morning of his dis-
charge Ellis, while repairing a pulley on the dryer , was ordered by
Howard in abusive language to disregard the pulley and start the
machine. During the course of the morning other similar acts by
Howard occurred . Later in the afternoon , as Ellis was advising an
employee on how to use wood in the dryer, Howard came to the
machine and declared that Ellis was not getting paid to talk but to
work, and added , "You God damned fellows in that Union around
here think that you can do what you want to ." Howard then accused
Ellis of being a union member . Thereafter on four different occa-
sions Howard ordered Ellis to change the wood in the dryer. Finally
Ellis protested, and Howard retorted with the statement , "Just be-
cause you joined that God damned Union you don 't think that you
have got to work. " Toward the end of the day Ellis ' foreman told
Ellis that Howard had ordered him discharged . Ellis then went to
Howard who confirmed the dismissal , stating, "You fellows ain't
worth a God damn who has joined that Union." The next day Ellis,
when returning for his pay, met Howard and asked him if he thought
Howard had treated him right. Howard replied , "God damn it, you
worked, but you can join the God damn Union, too , can't you?"
After Ellis received his pay Howard said , "Now, God damn you, you
can join all the unions that you want to join. You have got plenty
of money. " Howard then ordered Ellis to get off the premises.
The respondent contends that it discharged Ellis for inefficiency.
One Myer, whom it called as a witness , testified that it was Ellis' job
to supervise the employees who worked at the dryer and that he dis-
charged Ellis "because he was not on the job." Another witness for
the respondent , Hasty, testified that he discharged Ellis once during
u Named Burton Ellis in the complaint,
''748 NATIONAL LABOR RELATIONS BOARD
the summer of 1936 but that he had nothing to do with Ellis' dis-
charge on August 25.
We are convinced that the cause of the dismissal was Ellis' union
affiliation. Throughout the day on which the discharge occurred
Howard by provocative acts and statements showed his animosity
toward Ellis because that employee had joined the Union. There is
no connection between the 1936 discharge and the instant one. The
former discharge was of a few days' duration. The increases in
salary received by Ellis refute the general testimony of Myer con-
cerning Ellis' work. We find that Ellis was discharged' on August
25 because of his union affiliation.
At that time he worked 12 hours a day and received 20 cents per
hour. Since his discharge Ellis has earned only $2, and has not
secured regular and substantially equivalent employment.
McKinley Simmons was discharged August 24, 1937. He had
been regularly employed by the respondent for about a year prior
to his discharge, and theretofore, had worked at the plant during
busy seasons.
Simmons testified that on August 24 he went to Howard's office
after having been told by Churchill, his foreman, that Howard wanted
to see him; that Simmons asked Howard if he wished to speak with
him; that Howard replied, "Get your card, and from now on you
live with the damn white folks, you belong to that Union." Simmons
also testified that during his employment with the respondent he
received no complaints about his work.
Several witnesses testified for the respondent in regard to Simmons'
discharge. Howard denied that he summoned Simmons to his office.
Churchill testified that he discharged Simmons after receiving two
complaints about his work; that the first complaint, made, he be-
lieved, by the night watchmen, had been that Simmons was drinking
whiskey on the job; that the second complaint, made by Howard on
August 24, was to the effect that Simmons was "loafing on the job";
that, he, Churchill warned Simmons after the first complaint and
discharged him upon the second.
The respondent contends in its brief that Simmons was discharged
for drinking whiskey while at work. However, this is inconsistent with
the testimony of its own witness, Churchill, that Simmons was dis-
charged after Howard had complained that Simmons idled. In the
light of the circumstances of this case we are of the opinion that the
testimony of Simmons concerning the circumstances of his discharge
warrants full belief. We have no doubt that Howard made the state-
ment testified to by Simmons. Such incident is in accord with the
entire course of conduct followed by Howard. The statement was one
of clear hostility and indicated that Simmons was being discharged
DECISIONS AND ORDERS 749
because of his union affiliation. We find that the respondent dis-
charged Simmons because of his membership in the Union.
At the time of his discharge Simmons was earning 171/2 cents an
hour. Since then he has earned $12 at employment which is not regu-
lar and substantially equivalent to his former position with the re-
spondent.
Eli Gibbs 12 was in the respondent's employ for 8 years. He joined
the Union in August 1937. Gibbs testified that on or about September
1 Howard said to him, "All of you belong to the C. I. 0., and I am go-
ing to turn all of you off"; that although Gibbs denied his union
membership, Howard insisted, "all of you belong," that Gibbs, believ-
ing that he was being discharged,' asked Howard for his pay. The
following week Gibbs secured other employment with the Southern:
Railway Docks and stated at the hearing that he did not wish to be
reinstated to his former position with the respondent.
Gibbs' foreman testified that Gibbs "walked off the job." Howard
testified that Gibbs told him he was leaving because he secured a job
elsewhere. We do not consider it necessary to determine whether
Gibbs was mistaken in his belief as to his being discharged, or whether
he was in fact discharged. We are convinced that Howard intended to
create an impression in Gibbs that he would be discharged for his union
membership, and Howard's tacit acquiescence in Gibbs' understanding
to that effect is the same as if Howard unequivocally discharged Gibbs.
We accord full weight to the testimony of Gibbs. He had been in the
respondent's employ for many years. His termination of employment
occurred when other members of the Union were being discharged.
We find, therefore, that the respondent discharged Gibbs on or about
September 1 because of his union membership. Gibbs was then earn-
ing 171/2 cents an hour and averaging about $9 a week.
Johan Harris was employed by the respondent for 19 years and
wdrked steadily throughout this period except during seasonal lay-
offs. He joined the Union in July 1937. On August 30 Howard
called Harris to his office and there reprimanded him for joining the
C. I. O. Howard pointed out that Harris had done this despite the
favor Howard had shown him in arranging with the respondent's doc-
tor for services to Harris at reduced rates. Howard stated that since
Harris thought he was so "smart" Howard would show Harris that
he also was smart, that Howard proposed to inform the doctor that
Harris was a "disability" incapable of work, and then would lay Harris
off. On September 2 Harris was told by his foreman that it would be
necessary to lay him off because the doctor had reported that Harris'
condition rendered him incapable of working. Harris immediately
proceeded to the respondent's doctor and secured a certificate stating
that he was fit for duty. He then returned to the plant and showed
"Named Eli Gibbins in the transcript
750 NATIONAL LABOR RELATIONS BOARD
the certificate to the foreman. Thereupon, the foreman admitted that
the doctor had never made any report, that the truth was that
Howard had instructed that Harris be discharged.
Howard testified for the respondent, denying that he had sent for
Harris or made any statements to him regarding his union affiliation.
The respondent takes the position that Harris was not discharged but
voluntarily left the plant on September 2 because of illness. It intro-
duced in evidence a letter dated September 20, 1937, signed evidently
by the respondent's doctor and addressed to Howard stating in sub-
stance that Harris had been receiving treatments at a special rate as a
result of an agreement between Howard and the doctor, that Harris
had received no treatments since August 1937, and that in order for
Harris to be completely cured of his illness it would be necessary for
him to continue with the treatments.
We are not persuaded by Howard's denials as to what transpired.
The doctor's certificate of September 2, which was introduced as evi-
dence, alone affords strong substantiation of the occurrences as set
forth above. The record does not support the respondent's contention.
Indeed, the September 2 certificate, along with the other circum-
stances, establishes the contrary. We find that the respondent dis-
charged Harris on September 2 because of his union affiliation.
At the time of his discharge Harris earned from $12 to $17 a week.
Since that date he has earned $16.50 at employment which is not regu-
lar and substantially equivalent to his former employment with the
respondent.
John White was employed by the respondent for 35 years. He
was discharged on September 9, 1937. He joined the Union in July
and was its assistant treasurer. White testified that shortly before
his discharge Howard accused him of being a member of the Union
and mentioned that he had discharged Willie Butts and Willie Jones
and that he intended to discharge White. On the day before the
discharge White was told by his foreman not to "punch in" the time
clock before 7 in the morning. On the next day White "punched in"
at about 6 a. in., as he had been doing in the past. Later in the day
the foreman asked White why he disobeyed the instruction. White
explained that he evidently had misunderstood, that he thought he
had been told not to "punch out" after 7 p. in., and promised that he
would not again punch in before 7. The foreman then stated that
Howard had complained about White's working too much overtime,
and discharged White. White was paid on an hourly basis and
usually commenced work an hour earlier and finished an hour later
than the regular workday. He has since had other employment with
the respondent.
White's foreman testified that White had first been paid on an
hourly basis about a year before the discharge; that prior thereto
DECISIONS AND ORDERS 751
he had been a piece worker; that during his work as a piece worker
White apparently had grown accustomed to long hours of work; that
the foreman recently warned White two or three times not to work
so much overtime; that he discharged White about September 9 for
punching in an hour earlier in disobedience of instructions.
Howard in his testimony denied that he had made any anti-union
statements to White, and in response to interrogation by the Trial
Examiner regarding the discharge stated :
Trial Examiner PEI:SONs. Did you fire him [White] ?
WITNESS. No, sir, I never said a word.
Trial Examiner PERSONS. Did you lay him off?
WITNESS. No, I never laid him off.
Trial Examiner PERSONS. Did you discharge him?
WITNESS. No, I never discharged him. I laid him off.
We cannot believe that the respondent would discharge an employee
who had served it for 35 years, for the reason given by its foreman.
We are of the opinion that Howard directed White's discharge be-
cause of White's union membership and activity. We are satisfied
that Howard made the statement about Butts and Jones, thereby in-
ferring that White would be discharged for the same reason that they
were. Howard's above testimony indicates that it was he, not the
foreman, who caused White's termination of employment. White
was an officer of the Union and his discharge occurred within a few
days after the other union officers were discharged. We find that the
respondent discharged White on September 9, 1937, because of his
membership and activity in the Union.
At the time of his discharge White was earning 20 cents an hour.
The employment he since has had with the respondent has not been
regular employment nor substantially equivalent to his former
position.
Relyus Evans 13 was employed intermittently by the respondent
for a period of many years. His most recent employment began in
June 1937 at the instance of Howard who asked him to return and
promised him regular employment. Evans worked in tho crate de-
partment; he was discharged August 30, 1937.
On August 29 Evans attended a meeting of the Union. As he was
standing in the doorway to the meeting hall Howard passed by and
observed him. The next day Howard came to Evans' machine and
ordered it stopped stating, "That is all." Evans asked Howard for
the reason, Howard replied, "My eye has a bad speck in it."
Howard denied that he had seen Evans at the meeting hall. Evans'
foreman testified that Evans was laid off along with several other
employees in the crate department because of a drop in business.
U Named R . Evans in the complaint.
752 NATIONAL LABOR RELATIONS BOARD
However, while a number of employees in that department were laid
off on August 30, all were later returned to their jobs when business
was restored. Evans was never recalled to work. This, and the
statement of Howard when Evans was discharged, a statement which
we believe was made and had reference to Howard's observance of
Evans the preceding day, convinces us, in the light of the record,
that Evans was discharged for his union membership and activity in
attending the meeting.
We find that the respondent discharged Evans on August 30, 1937,
because of his union affiliation and activity. Evans then earned 25
cents an hour and worked 10 hours a day. Evans has not obtained
employment which is substantially equivalent to his former employ-
ment with the respondent and desires to be reinstated.
Hattie Williams was discharged by the respondent on October 27,
1937. She worked in the crate department on the midnight shift,
from midnight until 8 a. in. Her rate of pay was 10 cents an hour.
At the time of her discharge her foreman informed her that Howard
had ordered her dismissal, and upon being asked the reason said
that Howard had stated that the Union would take care of her.
Williams joined the Union in July 1937.
Williams' foreman testified that he discharged Williams because
"she was not dependable." The witness did not explain his conclu-
sion. The respondent, however, introduced into evidence certain
time cards or records, which it kept, showing that Williams gen-
erally earned less than $5.50 each week. Had Williams worked the
normal 55-hour week her weekly earnings would have been $5.50.
Williams was in the respondent's employ for 2 years. She was
an average worker. Upon the record before us we cannot believe
that dependability had anything to do with her discharge. In view
of the nature of her employment, her failure to complete a 55-hour
week does not impress us as of moment. The true reason for Wil-
liams' discharge was her union membership. We find that the re-
spondent discharged Hattie Williams on October 27, 1937, because
of her union affiliation.
We find that the respondent has discriminated in regard to the
hire and tenure of employment of Rudolph Thrower, George Wil-
liams, Freddie Sexton, John McCarris, Harvey Ellis, McKinley Sim-
mons, Eli Gibbs, John Harris, John White, Relyus Evans, Hattie
Williams, and each of them, thereby discouraging membership in a
labor organization; that in and by said discharges, and each of
them, the respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed them by Section 7
of the Act.
The facts set forth above show that the respondent, through How-
ard, made every effort to combat and defeat the Union in- its organi-
DECISIONS AND ORDERS 753
zation of employees at the plant. We find the respondent in
threatening its employees with discharge if they did not resign from
the Union, in suggesting to some that they would receive increases
in wages and have shorter hours if they relinquished their union
membership, in causing fear of bodily harm by displaying and point-
ing a gun at some employees while discussing their union affiliation,
in seeking to induce an employee to spy on the Union, in engaging
in provocative acts toward employees because of union affiliation, in
attempting to arouse racial prejudice between the white and colored
employees for the purpose of causing some to cease being members
of the Union, in making anti-union statements of coercive effect to
and in the presence of many employees, and in other ways, has inter-
fered with, restrained, and coerced its employees in the exercise of
rights guaranteed them in Section 7 of the Act.
C. The 'lay-offs
Around September 1931 production in the crate department of the
respondent's plant was materially affected by the cancelation of a
substantial number of customers' orders for crates. The consequent
diminution in the amount of available work in that department was
attended by a corresponding decrease of work in the veneer depart-
ment and sawmill.
Herbert Harrell, Curtis Hardy, Berry Hawkins, William Shine,
John Porter, George Copeland, and Bernice Yates were employed by
the respondent in the crate department; Eddie Pittman, Charlie
Richardson, Lazarus Winslow, Jeff Hardy, Joe Howard, and Charlie
Nusom,14 in the veneer department; and John Covington in the lum-
ber yard. All of these employees were laid off by the respondent
either in late August or sometime in September, for periods vary-
ing from 1 to 4 weeks. Each was reemployed at the termination of his
or her respective period of lay-off. Several testified that at the time
they were laid off their foreman told them that the reason was the
lack of work; 15 and some further testified that the work in their
department had in fact become slack.1' Beasor, the foreman, and
Myers, the assistant foreman, of the crate department, stated at the
hearing that upon the cancelation of the orders for crates, they had
been compelled to lay off those above mentioned in their depart-
ment ; and Landers and Churchill, foremen respectively of the ve-
neer department and lumber yard, testified that the drop in produc-
tion in the crate department and the curtailment of work in their
own departments required them to lay off those above mentioned
working for them.
14 Named Charlie Newsome in the transcript
is See testimony of Joe Howard, Eddie Pittman, Curtis Hardy, and Geoige Copeland.
11 See testimony of George Copeland and John Covington
754 NATIONAL LABOR RELATIONS BOARD
All of the employees belonged to the Union. Some testified that
during their lay-offs, they believed that the machines at which they
regularly worked were operated by other employees. 1T However,
that other employees may have operated some of the machines during
the lay-offs of the employees who otherwise would have run them,
does not necessarily establish that the lay-offs were occasioned by the
union affiliation of the employees who were laid off. The foremen of
the three departments testified that at the time they had staggered
the lay-offs in order to spread the work. Such procedure would ex-
plain the operation of the machines. While a few of the employees
testified to the making of anti-union statements by Howard 18 before
their lay-offs, the evidence shows that at the time of the respective
lay-offs of all the employees, except Hawkins and Nusom, no such
statements were made to them by their foremen ; that the lay-offs
occurred upon order of the foremen in the usual course of work.
Each of the four foremen denied having had knowledge of the union
membership of the employees at the time they were laid off.
Upon the entire record we are of the opinion, although some doubt
may exist in a few cases, that the Trial Examiner was correct in
his finding that the respondent in laying off Herbert Harrell, Curtis
Hardy, Berry Hawkins, William Shine, Bernice Yates, Eddie Pitt-
man, Charlie Richardson, Lazarus Winslow, Jeff Hardy, Joe How-
ard, and John Covington did not do so because of their union affi-
liation and activity.1° Accordingly, we will dismiss the allegations
of the complaint in so far as they charge that the respondent dis-
criminated in regard to the hire and tenure of employment of any
of these employees. We also will dismiss the allegations in the com-
plaint charging that Charlie Nusom was laid off or dismissed because
of union activities, as we do not believe this was the primary reason
for the temporary termination of his services.
Thomas Deans 20 was employed in the veneer department and laid
off with the others above mentioned in that department. He never
was recalled to work. Landers, his foreman, testified that Deans was
a good worker and would have been recalled had his address been
known to the respondent. Deans testified that he never returned to
the plant as he expected the respondent to send for him. The con-
siderations which have led us to find that the employees who were
laid'off in his department had not been discriminated against by the
respondent impel us to conclude similarly with respect to Deans.
i' See testimony of John Evans , William Shine , and Eddie Pittman.
1$ See testimony of Berry Hawkins , Bernice Yates , and Charlie Nusom.
m The complaint fails to make any allegations with respect to John Porter and George
Copeland although the parties introduced evidence with respect to their lay -offs. Accord-
ingly, no finding or order will be made in regard to them.
21 Named Thomas Dean in the transcript.
DECISIONS A\D ORDERS 755
John Evans was employed in the crate department. His services
were temporarily terminated between August 30 and September 28.
The record is not clear as to whether he was discharged and later
rehired or laid off during this period, but as a whole the record fails
to show that this employee was discriminated against. The allega-
tion in the complaint with respect to Evans will be dismissed.
Floyd Barnes was employed in the crate department. At the hear-
ing some claim was made that he had been laid off in September, but
his testimony and the record as a whole fails to show that he ever
in fact had been laid off for any period of time. The allegations of
the complaint with respect to Barnes will be dismissed.
William Towns worked in the basket department. It is not clear
from the evidence whether he was discharged in August and then
reemployed 10 days later, or laid off for that period. He testified
that Howard theretofore had made inquiries of him concerning the
Union. His foreman testified that the lay-off had been disciplinary
in character because Towns had been eating on the job and doing
unsatisfactory work. Upon the facts before us we cannot say that
the discharge or lay-off was caused by Towns' membership in the
Union, and therefore shall affirm the, finding of the Trial Examiner
that no discrimination in Towns' case occurred.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, oc-
curring 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 sevei al States, and have led
to and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.21
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we will order it to cease and desist from further
engaging in such practices. Moreover, we will order the respondent
to take certain affirmative action which we deem necessary to effec-
tuate the policies of the Act.
We have found that the respondent has discriminated in regard to
tlie, hire and tenure of employment of Willie Jones, Willie Butts,
Joseph Wallace, Rudolph Thrower, George Williams, Freddie Sex-
ton, John McCarris, Harvey Ellis, McKinley Simmons, Eli Gibbs,
John Harris, John White, Relyus Evans, and Hattie Williams. Ac-
21 See Santa Ci uz Packing Co. v. National Labor Relations Board 303 U. S. 453;
Consolidated Edison Company of New York, Incorporated , and its affiliated companies,
et al. v. National Labor Relations Board, 305 U. S. 197.
756 NATIONAL LABOR RELATIONS BOARD
cordingly, we will order the respondent to offer each of these persons
(except Eli Gibbs) reinstatement to his or her former position with
the respondent, and to make each of them (except Eli Gibbs) whole
for any loss suffered by reason of the discrimination by paying to
him or her a sum of money equal to that which he or she normally
would have earned as wages from the date of discharge to the date of
such offer of reinstatement, less his or her net earnings 22 during such
period. As heretofore noted, Eli Gibbs obtained other employment
and does not wish reinstatement. We therefore will order the
respondent merely to make said Gibbs whole for any loss sustained by
reason of his discrimination by paying to him a sum of money equal
to that which he normally would have earned as wages from the date
of his discharge to the date of his securing such other employment,
less his net earnings during said period.
Thrower was paid on a piece-work basis. The amount of back pay
to be paid Thrower shall, therefore, be computed at the rate he
earned for the 2-week period immediately prior to August 31, 1937.
It appears from the record that some of the above persons to whom
we have directed that an offer of reinstatement be made, may now be
suffering from an illness rendering them unfit for work. Nothing
in our Order shall be interpreted 'as preventing he respondent from
taking steps appropriate to the situation, provided only, that in so
doing no unfair labor practices be committed.
We also have found that the respondent by discharging John White
on September 9, 1937, discriminated in regard to his hire and tenure
of employment, and that while he has since been reemployed by the
respondent he has not been given a position substantially equivalent
to that which he held with the respondent at the time of his dis-
charge. Hence, we will order the respondent to reinstate White to
the position which he held at the time of his discharge, and make him
whole for any loss sustained by virtue of the discrimination by paying
to him a sum of money equal to that which he normally would have
earned as wages from the date of his discharge until the date of such
offer of reinstatement, less his net earnings during said period.
We shall order further affirmative action in manner hereinafter set
forth.
21 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 respondents, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B. 440. Monies re-
ceived for work performed upon Federal, State, county, municipal, or other work-relief
projects are not deductible as "net earnings," but, as provided in the Order below,
shall be deducted and paid over to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which supplied the funds for
said work-relief projects
DECISIONS AND ORDERS
VI. THE QUESTION CONCERNING REPRESENTATION
757
As noted, the Union was organized on August 18, 1937, and on
September 8 commenced negotiations with the respondent -looking
toward the making of a collective bargaining contract . On Septem-
ber 22, 1937 , the petition for investigation and certification of repre-
sentatives was filed on behalf of the Union . The petition alleged
that a question concerning representation of the respondent's em-
ployees had arisen in that the respondent contended that the appro-
priate unit for collective bargaining purposes included all of its
employees whereas the Union claimed that office and managerial em-
ployees should be excluded. During the hearing counsel for the
respondent stated that the respondent had never so contended and the
proof failed to show that it had.
A membership list of the Union was admitted in evidence and
compared by the respondent with its pay roll for September 8. The
pay roll itself was not introduced nor were any membership cards of
the Union offered. There is no evidence as to whether or not super-
visory and clerical employees were included in the pay roll which the
respondent used. Upon the comparison so made, the respondent
reported that of the 509 employees appearing on its pay roll for
September 8, 253 were members of the Union . It further reported
that 229 other persons on the Union's membership list did not appear
on the September 8 pay roll. Thereupon, the parties agreed, in the
light of the evident effect of the highly seasonal character of the
respondent 's business upon employment, that the September 8 pay
roll did not indicate accurately the number of persons who were em-
ployees of the respondent , and that all employees of the respondent
on its pay roll for July, August , and September , 1937 should be taken
for such determination . A compilation of the names on the pay rolls
for these months was admitted in evidence . A comparison of the
names listed thereon with those of the membership list shows that of
the 993 persons employed by the respondent in July, August, and
September , 409 were members of the Union . However, there is no
proof that the names on the compilation excluded supervisory and
clerical employees.
The respondent moved at the hearing that the petition be dismissed
on the ground that the labor organization which had filed the peti-
tion in this proceeding was not the same labor organization which
represented its employees ; that the organization appearing as pe-
titioner was not in existence . In its exceptions, the respondent
contends that Local Industrial Union No. 485 , C. I. 0., is of "doubt-
ful existence." As heretofore mentioned , it is the same labor organi-
zation as United Veneer Box and Barrel Workers Union, C. I. 0.,
147841-39-vol 10--49
758 NATIONAL LABOR RELATIONS BOARD
and United Plywood and Veneer Workers, Local 485. The organiza-
tion has merely twice changed its name.
It is evident from the character of evidence introduced in regard
to number of employees and union membership, that doubt exists
as to whether the Union represents a majority of the employees of
the respondent within the unit claimed appropriate. It further is
evident that the respondent is reluctant or unwilling to -recognize
Local Industrial Union No. 485, C. I. 0., as collective bargaining
representative of its employees because of the uncertainty it has, felt,
and continues to feel, concerning the identification of this organiza-
tion as the one representing its employees. We find that a question
has arisen concerning representation of the employees of the re-
spondent.
VH. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the re-
spondent described in Section I above, has a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
The Union claims that the unit appropriate' for the purposes of
collective bargaining consists of all production and maintenance
employees of the respondent, exclusive of supervisory and clerical
employees. The respondent does not object to the unis contended
by the Union to be appropriate. All of the employees within such
unit are eligible to membership in the Union.
We find that the production and maintenance employees of the
respondent, excluding supervisory and clerical employees, constitute
a unit appropriate for the purpose of collective bargaining and that
said unit will insure to employees of the respondent the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
It appears from the facts set forth in Section VI, above, that the
membership claimed by the Union is a substantial number of em-
ployees of the respondent; that because of the highly seasonal char-
acter of operations in the respondent's plant the selection of a single
DECISIONS AND ORDERS 759
weekly pay-roll list to serve as a basis for eligibility in case of an
election would be undesirable; and that all parties, therefore, agree
that a list including all employees found on the pay rolls of July,
August, and September, 1937, will be an acceptable basis for eligi-
bility of employees to vote in an election.
We find that the question concerning representation which has
arisen can best be resolved by holding an election by secret ballot
to determine the proper representatives for collective bargaining,
and because of fluctuations in employment in the respondent's plant,
we find that it is proper to determine eligibility to vote in the elec-
tion on the basis of the weekly pay rolls for the months of July,
August, and September, 1937, and that any person employed by the
respondent, in any pay-roll period in any of said months, except
supervisory and clerical employees, and those who have since quit
or been discharged for cause shall be eligible to vote. The eIn-
ployees to whom we will hereinafter order that an offer of rein-
statement be made shall be considered in the same position as if
they had not been discharged by the respondent, as above set forth.
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the - Board makes the following :
CONCLusIONs OF LAW
1. Local Industrial Union No. 485, C. I. 0., is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to hire and tenure
of employment and thereby discouraging membership in a labor
organization, has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of the
Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. A question affecting commerce has arisen concerning the repre-
sentation of employees of Planters Manufacturing Company, Inc.,
Portsmouth, Virginia, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the Act.
6. The production and maintenance employees of the respondent,
excluding supervisory and clerical employees, constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act.
760 NATIONAL LABOR RELATIONS BOARD
ORDER
. Upon the basis of the findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Planters Manufacturing Company, Inc., and its officers, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Local Industrial Union No. 485,
C. I. 0., or any other labor organization of its employees, by dis-
criminating in regard to hire or tenure of employment or any term
or condition of employment;
(b) 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.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Willie Jones, Willie Butts, Joseph Wallace, Rudolph
Thrower, George Williams, Freddie Sexton, John McCarris, Harvey
Ellis, McKinley Simmons, John Harris, Relyus Evans, and Hattie
Williams immediate and full reinstatement to their former posi-
tions, and to John White immediate and full reinstatement to the
position which he held when he was discharged on September 9, 1937,
without prejudice to their seniority rights and other rights and
privileges; and make each of said persons whole for any loss of
wages suffered by reason of his or her discharge, by payment to
each of them a sum equal to the amount which he or she normally
would have earned as wages during the period from the date of such
discharge until the date of the offer of reinstatement, less his or
her net earnings, during such period ; deducting, however, from the
amount otherwise due to each of them, monies received by him or
her during said period for work performed upon Federal, State,
county, municipal, or other work-relief projects, and pay over the
amount so deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(b) Make whole Eli Gibbs for any loss of wages suffered by rea-
son of his discharge, by payment to him of a sum equal to the amount
which he normally would have earned as wages during the period
from the date of the discharge until the date of his obtaining the
employment referred to in his testimony, less his net earnings during
DECISIONS AND ORDERS 761
such period; deducting, however, from the amount otherwise due
to Eli Gibbs, monies received by him during said period for work
performed upon Federal, State, county, municipal, or other work-
relief projects, and pay over the amount so deducted to the appropri-
ate fiscal agency of the Federal, State, county, municipal, or other
government or governments which supplied the funds for said work-
relief projects;
(c) Post immediately, and keep posted for a period of at least
thirty (30) consecutive days from the date of posting, copies of
this Order in conspicuous places throughout its plant together with
a statement by the respondent that it will abide by and comply with
this Order;
(d) Notify the Regional Director for the Fifth Region within ten
(10) days from the date of this Order what steps the respondent
has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the complaint
with respect to Floyd Burke, Viola Clanton, William Coates, Nina
Council, William Dickens, William Hawkins, Isaiah McCall, Charlie
Nusom, Jr., Eddie Simmons, Gabriel Spreull, La Nelle Yates, John
Evans, Herbert Harrell, Curtis Hardy, Berry Hawkins, William
Shine, Bernice Yates, Eddie Pittman, Charlie Richardson, Lazarus
Winslow, Jeff Hardy, Joe Howard, John Covington, Charlie Nusom,
Floyd Barnes, William Towns, and Tom Deans, be, and the, same
hereby are, dismissed.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Planters Manufacturing Company, Inc., Portsmouth, Virginia,
an election by secret ballot shall be conducted within thirty (30)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Fifth Region, acting in this
natter as agent for the National Labor Relations Board and subject
to Article III, Section 9, of said Rules and Regulations, among the
employees of Planters Manufacturing Company, Inc., employed in
any pay-roll period in either the month of July, August, or Septem-
ber, 1937, excluding supervisory and clerical employees and those
who have since quit or been discharged for cause, but including those
762
NATIONAL LABOR RELATIONS BOARD
employees whose reinstatement was ordered by the above Order, to
determine whether or not such employees desire to be represented by
Local Industrial Union No. 485, C. I. 0., for the purposes of col-
lective bargaining.
[SAME TITLE
AMENDMENT TO DIRECTION OF ELECTION
January-20, 1939
On December 20, 1938, the National Labor Relations Board, herein
called- the Board, issued a Decision, Order and Direction of Election
in the above-entitled proceeding, the election so directed to be held
within thirty (30) days therefrom under the direction and super-
vision of the Regional Director for the Fifth Region (Baltimore,
Maryland). The Regional Director having requested that said elec-
tion be postponed pending compliance by the respondent with said
Order of the Board, the Board hereby amends the Direction of Elec-
tion issued on December 20, 1938, by striking therefrom the words
"within thirty (30) days from the date of this Direction" and sub-
stituting therefor the words "at such time as the Board may in the
future direct."
10 N. L. R. B., No. 61a.