Sifers Candy Co.

National Labor Relations Board - Board DecisionsNov 26, 1947

75 N.L.R.B. 296 (N.L.R.B. 1947)

In the Matter of EARL I. SIFERS , AN INDIVIDUAL DOING BUSINESS AS SIFERS CANDY COMPAN Y and TRI-STATE BAKERS LOCAL UNION 363, AFFILIATED WITII BAKERY AND CONFECTIONARY WORKERS INTERNA- TIONAL UNION OF AMERICA, A. F. of L. Case No. 17-C-1387.-Decided November 26,19./1'7 Mr. Harry L. Browne, for the Board. Mr. Frederick G. Apt, of Iola, Kans., for the respondent. Mr. Boyd Prince, of Joplin, Mo., for the Union. DECISION AND ORDER' On January 2S, 1947, Trial Examiner William J. Scott issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that the respondent cease and desist therefrom and take certain affirmative action, as set forth In the copy of the Intermediate Report attached hereto. Thereafter, excep- tions to the Intermediate Report and a brief in support thereof were filed by the respondent. The respondent requested and was granted permission to argue orally before the Board in Washington, D. C. On October 1, 1947, the Board notified the respondent that it had rescinded its action in granting oral argument, and that in lieu of oral argument, any party desiring to do so would be permitted to file, within 20 days, a supplemental brief or written argument setting forth the matters which would have been covered in the oral argument. No such supplemental brief or written argument has been filed by any party. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The ' The power of the Board to issue a Decision and Order in a case such as the instant one where the charging union has not complied with the filing requirements specified in Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended, was decided by the Board in Matter of Marshall and Bruce Company, 75 N. L. R. B. 90. 75 N. L R. B., No. 39. 296 SIFERS CANDY COMPANY 297 rulings are hereby affirmed. The Board has considered the Interme- diate 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 with the additions and modi- fications noted below.2 1. We agree with the Trial Examiner and find that the respondent, in violation of Section 8 (1) and (3) of the Act, shut down his plant and locked out his employees on April 23, 1946, and thereafter failed and refused to reinstate the employees in question because of their union membership and activities. The respondent asserts in his de- fense that upon the resumption of operations on April 26, 1946, the selection of employees was made on the basis of individual efficiency. The record clearly shows, however, that the employees' union affilia- tion, and not their competence, was the determining factor in the choice of employees reinstated on April 26 3 The evidence discloses that the great majority of the employees not recalled, and denied reinstate- ment, worked on the first shift and that the respondent knew that most of the first-shift employees had joined the Union on April 22 .4 But in resuming operations on a single-shift basis, the respondent deliber- ately broke up the first shift and staffed the day shift with a majority of second-shift employees. The respondent's statement on April 22, that he would shut down the plant until lie determined the identity of the union members, fortifies the conclusion that the real purpose of the shut-down and the failure and refusal to reinstate these employees, was to discourage membership in the Union and eliminate the Union from the plant, as the Trial Examiner found. The respondent contends that he failed to reemploy the employees in question, although he hired many new employees,5 because they failed to make application for reinstatement. There is no merit to this contention, as the Trial Examiner found, for the Union did, in fact, make a request for reinstatement in behalf of all employees on May 14, 1946. The respondent, moreover, was under an obligation to recall and reinstate these employees inasmuch as the respondent had initially discriminated against them by the unlawful shut-clown and lock-out. 2 Those provisions of Section 8 (1), (3), and (5) of the 'Natioal Labor Relations Act, 'which the Tual Examiner herein found were violated, are continued in Sections 8 (a) 1, 8 (a) 3, and 8 (a) 5 of the Act, as amended, Labor Relations Management Act, 1947. 'That lack of qualification was not the reason for denial of ieinstatenent of these employees, also appears from the respondent's admission that Mildied Cianor, one of the locked-out employees, was a competent and satisfactory worker 4 All of the 23 employees refused reinstatement were union member s. Of the 23 eni- ployees reinstated on April 26, only 4 were union members Cf N L R B v. The Sandy Will Iron d Brass 11'o,ks, 165 F. (2d) 660 (C C A 2), enforcing 69 N. L R. B 355. By August 12, 1946, the number of employees had increased to 50, which as 1 none than the employee complement at the time of the shut-down 298 DECISIONS OP NATIONAL LABOR RELATIONS BOARD 2. We also agree with the Trial Examiner's conclusion that the respondent refused to recognize and bargain with the Union in vio- lation of Section 8 (5) of the Act, and that he granted unilateral wage increases in May and July 1946, for the purpose of discouraging union membership and thereby violated Section 8 (1) of the Act. The record reveals that these general wage increases were the first ever given to the employees It is also significant that the respondent granted the increases shortly after learning of the employees' union activity, although he had previously refused to grant such increases on April 17, before any arrangements had been made to hold organ- izational meetings. THE REMEDY The Trial Examiner recommended, in accordance with established policy, among other measures designed to effectuate the policies of the Act,e that the Board order the respondent, upon request, to bargain with the Union as the exclusive representative of the employees in the unit herein found to be appropriate. However, in view of the policy which we have adopted in Matter of Marshall and Brute Company r with relation to bargaining orders under the amended Act, we shall condition this portion of our remedial order upon compliance by the Union with Section 9 (f), (g), and (h) of the Act, as amended, within 30 days from the date of the Order as hereinafter set forth.8 ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, Earl I. Sifers, an individual doing business as Sifers Candy Company, Iola, Kansas, and his agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers Inter- national Union of America, affiliated with the American Federation of Labor, if and when said labor organization shall have complied, within 30 days from the date of this Order, with Section 9 (f), (g), and (li) of the Act as amended, as the exclusive bargaining representa- tive of all employees at the Iola, Kansas, plant, excluding clerical employees and supervisors; The Tirol Examinee inadveitently recommends in Section V that any new employees hired spice April 20, 1946, be discharged, if necessary, in order to effectuate the rein- statement of the locked-out employees. we hereby correct the (late to April 23, 1946. ' 75 N L R B 90 'As to what constitutes compliance in this respect, see Matter of Noe there Virgsnsa Broadcasters , Ine , 75 N L R. B 11. SIFERS CANDY COMPANY 299 (b) Discouraging membership in Tri-State Bakers Local Union 369, affiliated with Bakery and Confectionary Workers International Union of America, affiliated with the American Federation of Labor, or in any other labor organization of his employees, by locking out, discharging, laying off, or refusing to reinstate any of his employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment; and (c) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section 7 of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, and upon compliance by the Union with the filing requirements of the Act as amended, in the manner set forth above, bargain collectively with Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, affiliated with the American Federation of Labor, as the exclusive representative of all employees at the Iola, Kansas, plant, excluding clerical employees and supervisors, with respect to rates of pay, wages, hours of employment, or other conditions of em- ployment, and if an understanding is reached, embody such under- standing in a signed agreement ; (b) Offer to the employees listed in Appendix B hereto immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the section of the Intermediate Report entitled "The Remedy" ; (c) Make whole each of the employees listed in Appendix B hereto for any loss of pay that he may have stiff ered by reason of the respond- ent's discrimination, by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period from April 23, 1946, to the date of the respondent's offer of reinstatement, less his net earnings during said period; (d) Make whole each of the employees listed in Appendix A hereto for any loss of pay that he may have suffered by reason of the respond- ent's discrimination, by payment to him of a sum of money equal to the 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount which he normally would have earned as wages during the period from April 23, 1946, to the date of his reinstatement, less his net earnings during said period; (e) Post at his plant at Iola, Kansas, copies of the notice attached hereto and marked "Appendix C." 9 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by him for thirty (30) consecutive days thereafter and also for an additional thirty (30) consecutive days in the event of compliance by the Union with the filing requirements of the Act as amended, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the re- spondent to insure that said notices are not altered, clef aced, or covered by any other material; and (f) Notify the Regional Director for the Seventeenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint, insofar as it alleges that the respondent discriminated against John R. Sifers, within the mean- ing of Section 8 (3) of the Act, be, and it hereby is, dismissed. MEMBERS REYNOLDS and MURDOCK took no part in the consideration of the above Decision and Order. APPENDIX A The following employees were locked out by the respondent April 23, 1946, and were reinstated April 26, 1946, with the exception of Isaac W. Myer who was reinstated on or about August 12, 1946. George Sharp Esther Townsend Ethel Frazell Vera Brundage Clem Allen Simpson Coker Joe Brundage J. R. Sifers Robert Jones Mabel Ashwell J. W. Carpenter Erma Lewis George Spears Verle Briggs Jeanette Schofield Ruth Holman Dorothy Japhet Betty Lockart Joe Bruner Fred Broom Morris Paddock Win. Briggs Forrest Sifers Isaac W. Myer U In the event that this Oider is enforced by decree of a Circuit Court of Appeals, there shall be inserted, before the words, "A Decision and Order," the words, "A Decree of the United States Ciicuit Court of Appeals Enforcing." SIFERS CANDY COMPANY APPENDIX B 301 The following employees were locked out by the respondent April 23, 1946, and have never been reinstated. John L. Burke Merdick J. Carter Russell R. Casteel Earl C. Conner Mildred Cranor Daisy F. Frazier Gladys Gilbert Ulery J. Gilbert Arminta E. Hodges Louie Hodges Charles T. Hopper R. E. Keele Lloyd T. Lanferman Loren A. Mathis W. 0. McFarland Jerry McKarnin Nellie McKarnin Sylvester McKarnin Nellie D. Meseke Ruth E. Moore Johnny L. Ray Cecil C. St. Clair Freda F. St. Clair APPENDIX C 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, I hereby notify my employees that : I WILL NOT in any manner interfere with, restrain , or coerce my employees in the exercise of their right to self-organization, to form labor organizations , to join or assist Tun-STATE BAKERS LOCAL UNION 363, affiliated with BAKERY AND CONFECTIONARY WORKERS INTERNATIONAL UNION OF AMERICA, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. I WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to any seniority or other rights and priv- ileges previously enjoyed, and make them whole for any loss of pay suffered as the result of the discrimination. John L. Burke Gladys Gilbert Merdick J. Carter Ulery J. Gilbert Russell R. Casteel Arminta E. Hodges Earl C. Conner Louis Hodges Mildred Cranor Charles T. Hopper Daisy F. Frazier 302 DECISIONS OF R. E. Keele Lloyd T. Lanferman Loren A. Mathis W. O. McFarland Jerry McKarnin Nellie McKarnin Sylvester McKarnin Nettie D. Meseke Ruth E. Moore Johnny L. Ray Cecil C. St. Clair Freda F. St. Clair I WILL MAKE whole for any loss of pay suffered by them as the result of the discrimination the employees named below. George Sharp Esther Townsend Ethel Frazell Vera Brundage Clem Allen Simpson Coker Joe Brundage J. R. Sifers Robert Jones Mabel Ashwell J. W. Carpenter Erma Lewis George Spears Verle Briggs Jeanette Schofield Ruth Holman Dorothy Japhet Betty Lockart Joe Bruner Fred Broom Morris Paddock Wm. Briggs Forrest Sifers Isaac W. Myer I WILL BARGAIN collectively upon request with the above- named union, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement, provided said labor organization complies within thirty (30) days from the date of the aforesaid Order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. The bargaining unit is: All employees employed at my Iola, Kansas, plant excluding clerical and supervisory employees. MY employees are free to become or remain members of the above-named union, or any other labor organization. I WILL NOT discriminate in regard to hire or tenure of employ- ment or any term or condition of employment against any em- ployee because of membership in or activity on behalf of any such labor organization. Dated-------------------- NATIONAL LABOR RELATIONS BOARD E kRL I. SIFERS, D/B/A SIFERS CANDY COMPANY, Employer. By ----------------------------- (Representative) (Title) SIFERS CANDY COMPANY 303 This notice must remain posted for 30 days from 'the date hereof, and also for an additional 30 days in the event of compliance by the Union with the requirements of Section 9 (f), (g), and (h) of the Act as amended. This notice must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Hairy L. Bi owne, for the Board. Mr. Frederick U. Apt, of Iola, Kans., for the respondent. .Mr Boyd Prmtce, of Joplin, Mo, for the Union. STATEMENT OF THE CASE Upon an amended charge filed on October 17, 1946, by Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, A. F. of L., herein called the Union, the National Labor Rela- tions Board, herein called the Board, by its Regional Director for the Seven- teenth Region (Kansas City, Missouri), issued its complaint dated October 25, 1946, against Earl I Sifers, doing business as Sifeis Candy Company, herein called the respondent, alleging that the respondent had engaged in and is engag- ing in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices the complaint, in substance, alleged that the respondent: (1) on or about April 22, 1946, laid off and locked out certain of his employees and thereafter refused to reinstate them for the reason that -they had engaged in union activities and other activities for the purpose of collective bargaining, and in order to discourage membership in the Union; (2) on or about May 27, 1946, discharged John R Sifers for the reason that he joined and assisted the Union and engaged in other concerted activities for the purpose of collective bargaining and other mutual aid and protection; (3) on -or about May 14, 1946, and at all times thereafter, refused to bargain collec- tively with the Union as the exclusive representative of his employees within an appropriate unit; (4) on or about August 1, 1945, to date, has vilified, dis- paraged, and expressed disapproval of the Union, has inteu ogated his employees concerning their union affiliation and has threatened to shut down his operations if the Union successfully organized his plant; (5) on or about April 22, 1946, shut down his plant in order to discourage membership in the Union ; (6) on or about May 1, 1946, granted a wage increase to his employees for the purpose of discouraging membership in the Union: and that by the foregoing conduct the respondent interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act and more particularly within the meaning of Section 8 (1), (3), and (5) of the Act. The mespondent filed an answer on or about November 14, 1946, in which the jurisdictional allegations of the complaint were admitted but the commission of the unfair labor practices alleged were denied. Pursuant to notice, a hearing was held at Iola, Kansas, on November 14, 15, and 18, 1946, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by coun- 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sel and the Union by a representative, and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing upon the issues was afforded all parties. Respondent's motions to dismiss the complaint made at the opening of the hearing and also at the close of the Board's case were denied. The same motion was renewed at the close of the hearing and ruling thereon wits reserved. It is disposed of by the findings and conclusions hereinafter made. Motion of the Board's counsel made at the close of the hearing to conform the pleadings to the proof with respect to formal matters was granted without objection. Counsel for the Board and the respondent argued orally upon the record at the close of the hearing. Oppor- tunity was afforded the parties to file briefs None have been received. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Earl I. Sifers, an individual doing business as the Sifers Candy Company, is engaged in the wholesale manufacture of candy at Iola, Kansas. During the year 1945, the respondent purchased raw materials consisting principally of syrup, chocolate and cocoa, valued in excess of $200,000, of which approximately 90 percent was transported to his plant in Iola from points outside the State of Kansas. During the same period, he distributed manufactured candy products valued in excess of $700,000, of which approximately 80 percent was shipped to points outside the State of Kansas. The undersigned finds that the respondent is engaged in commerce within the meaning of the Act. II THE ORGANIZATION INCOL',ED Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the respondent. III. THE UNF A IR LABOR PRACTICES A. Interference, restraint, and coeicioii, 1. Segneiice of events The record does not disclose any substantial union activity on the part of the employees until April 17, 1946. On that date, about 3 p in , the employees held a meeting at the plant for the purpose of discussing procedure for obtaining a wage increase. Approximately all of the respondent's employees attended this meeting. It was decided that Guy Ashwell, who was the plant's production superintendent, was the proper person to convey their demands to the respondent. Superintendent Ashwell was called to the meeting and was informed by the employees that they wanted a wage increase and that they were going to organize unless they obtained one He agreed to take the matter up with the respondent. Shortly thereafter Ashwell held a conversation with the respondent. The re- spondent instructed Ashwell to inform the employees that he [respondent] had no comments to make at that time. Upon being informed the next morning by Superintendent Ashwell as to what the respondent had said, the employees de- SIFERS CANDY COMPANY 305 cided to give the respondent until April 20 to make a decision, in regard to their requests for a wage increase, before contacting the Union. On the afternoon of April 18, employee Conner, who works on the first shift,' requested permission of Superintendent Ashwell to talk to some of the employees on the second shift Ashwell admitted that, at this time, Conner told him that the employees were going to organize a union and that Conner wanted to find out how many of the employees on the second shift were in favor of it. Conner's visit was discussed by Superintendent Ashwell with the respondent later that clay. On April 20, having received no word from the respondent, employees Conner and Lanferman made arrangements with the Union to hold a union meeting on April 22 at 3 p. in. for the first shift and another at 11: 30 p. m. for the second shift. The employees were told in advance about these meetings and the Union was openly discussed by the employees on April 22 at the plant. The employees of the first shift attended the 3 p in meeting on April 22 and a number of them joined the Union. 2. The discriminatory lock-out on April 23, 1946 The complaint alleged that on or about April 22, 1946, the respondent laid off and locked out his employees at the Iola plant and thereafter refused to reinstate some of them.' After the 3 p. m meeting, Conner returned to the plant and requested Super- intendent Ashwell's permission to give notice to the second shift employees that their meeting set for 11:30 p. m. had been postponed until the following day Ashwell asked Conner if the first shift had held their meeting and upon receiving an affirmative reply, lie inquired of Conner as to how many of the first shift had joined the Union and Conner replied "practically all of them." Up until that time no notice had been given that there would be a shut-down of the plant. About 2 hours later, employees on the second shift commenced to receive word from Superintendent Ashwell that the plant would be shut down the next day because of a shortage in malt syrup. About 7 p. in Superintendent Ashwell made a special trip to Conner's home and informed hint the plant would be closed the next day He gave the same information to Lanferman, who also was a first-shift employee, about 8 p in., by telephone. Some employees heard rumors that evening about the shut-down while other employees on the first shift did not hear about it until the next morning when they showed up for work. On April 23, 1946, the plant was shut down and signs posted at different doors at the plant for the purpose of preventing the employees from entering the building. Under the date of April 22, 1946, the respondent sent a letter with pay checks en- closed to certain employees which reads as follows : Due to the shortage of some types of raw materials, it is necessary for us to curtail our operations. We regret to inform you, that under these conditions we will have no present need of your services. Due to the un- 1 The plant was operated with two shifts The first one ended and the second one began at 2. 30 p in. 8 The names of the employees who were locked out April 23, 194G, appear on "Appendices A and B" of this report. The names of the employees who were subsequently reinstated appear on "Appendix A" of this report. The names of the employees who were never reinstated appear on "Appendix B" of this report. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certainty of the time when we will resume operations, you will find enclosed check to cover all wages due you. SIFERS CANDY COMPANY, E. I. SIFERS, Mgr. The respondent testified that this letter was mailed to those employees who were not to return to work The record shows that some of the employees who have not been reinstated (lid not receive this letter On the day of the shut- down the Union held a meeting attended by employees from both shifts and more of them signed authorization cards. A member of the Iola city police force kept the plant under special surveillance during the day but there is no evidence that any disturbance occurred. 3. Respondent's contention with respect to the lock-out The respondent contended that his decision on April 22 to shut down the plant the following day was due to a shortage in malt syrup. The undersigned finds that the preponderance of the evidence does not support this contention The record shows that a carload of malt syrup was expected to arrive the next morning' There is no dispute that the carload of malt syrup was received by the re- spondent, on or before April 25, 1946 Moreover, the record discloses and the undersigned finds that the plant could have continued its operations with the syrups that were available without the receipt of this carload of malt syrup. According to the testimony of employee Lanferman whenever a shortage oc- curred in a particular syrup,' the respondent would change the formulae used in the manufacture of his products so that operations could continue with the ingredients that were available The respondent did not dispute this testimony and it is credited by the undersigned The respondent admitted that there was no shortage in corn or cane syi up or other materials necessary for the plant's opera- tions except that of malt syrup The undersigned credits the testimony of em- ployee Lanferman that there was sufficient syrup and other raw material on hand on April 22 to have continued operations in the plant for approximately 8 more days Conclusions Pion all the record the undersigned concludes and finds that the respondent's decision to shut down the plant was made at approximately the same time he was informed the Union was successfully commencing to organize his employees. There is no substantial showing that the respondent had any intention of closing his plant until after Conner had informed Superintendent Ashwell of the union 3 Employee Daisy Frazier testified Q Did you have a conversation with Mr Guy Ashwell that da.A [April 221 ? A. On the morning, yes, he came to the factory around ten o'clock and I was filling jars, and I stopped and said , "Guy, are we going to have enough material to i un" because I heard them talk about another carload being, on the way, and he said, "Hell yes, plenty, the other car will be switched in the morning." Ashwell did not dispute this testimony and it is credited by the undersigned Employer Conner testified : . . I said , "Is there going to be another carload [malt syrup] In" and he [Superintendent Ashwell] said, "yes, it will probably be in tomorrow " Ashwell did not dispute this testimony and it is credited by the undersigned. The respondent used 3 different types of syrup, corn, cane and malt. SIFERS CANDY COMPANY 307 meeting and that most of the first shift had become members 6 The suddenness of the decision to shut down the plant and its timing indicate that it was the Union's activity that motivated) the respondent in closing his plant.' The re- spondent, Superintendent Ashwell and the latter's wife won ked among the em- ployees and the record is convincing that the respondent was well informed of his employees' union activity Other evidence supports this conclusion There is positive showing that the respondent was opposed to the Union A number of credited witnesses testified to having heard the respondent say that he was not going to permit the plant to become unionized.' Other credited witnesses testified that on the evening of April 22 the respondent stated to employees on the second shift that he was going to shut down his plant until he found out who was joining the Union." These facts together with the finding that the evidence does not support the respondent's contentions for the shut-down, constitute convincing proof that the respondent in closing his plant was motivated by the employees' union ac- tivities and that the said shut-down constituted a lock-out and was for the pur- pose of discouraging membership in the Union. Accordingly the undersigned concludes and finds that the respondent by shutting down his plant and locking out, on April 23, 1946, the employees whose names appear on appendix A and B has interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act 4. The resumption of operations April 26, 19-16 The plant was closed from April 23 to 25, 1946, inclusive On April 26 opera- tions were resumed with 23 of the locked -out employees reinstated and working on a single shift' These employees were notified to return by Superintendent Ashwell, a list of their names having been furnished him by the respondent. According to the respondent these 23 employees were selected by him, without consultation with Superintendent Ashwell , on the basis of their ability to pro- duce in the plant. The production records of the employees were not supplied at the hearing The respondent made no explanation to the other locked-out employees for his failure to reinstate them. 6It is obvious that Ashwell , because of its importance , tiansmitted quickly to the re- spondent the information he received from Conner about 4 p in , April 22 , that the Union had held a meeting and that most of the first shift had joined the Union and that the second shift would meet the next day 8 The undersigned finds that Superintendent Ashwell was not informed regarding the shut-down until after his conversation with Conner which was held about 4 p in on April 22 , as he made no mention of this matter at that time , but about 7 p. in made a special trip to Conner ' s home for the purpose of infoiming lion the plant was closing down . The record shows that on previous shut -downs the employees were given notice in advance during their work day In this instance none of the first shift received notice of the shut -down until several hours after they left the plant . The undersigned concludes and finds that the respondent 's decision to close his plant was made after Conner's con- versation with Ashwell ' Joseph Brunner , Alfred Franze and Mildred Cranoi The undersigned does not credit the respondent 's denial 8 Ulery Gilbert , Sylvester McKarvin , John Burke and Mardick J Carter. The re- spondent 's denial as to this finding is not credited 8 These are the employees whose names appeal on "Appendix A" except foi Isaac Myer who was reinstated on or about August 12, 1946. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5 Respondent's contentions The respondent contended that 3 days prior to the shut-down he had decided to reduce his operations 50 percent because of his difficulties in obtaining raw materials. He claimed that he had no knowledge of the union activity or affilia- tion of any employee ; that the curtailment of his operations was due solely to business reasons and therefore it was necessary that all but 23 of his employees be permanently dismissed. Conclusions The evidence is not convincing that the respondent was compelled to reduce his operations because of business reasons. Admittedly there were sufficient raw materials on hand to operate his plant at full production. There is no showing that the demand for the respondent's products had decreased or that they could be manufactured more economically with a smaller number of employees working on a single shift. The record shows the respondent returned to full production within less than 4 months with his employees increased to the original number before the shut-down. The respondent admitted that the situation in regard to raw materials was substantially the same when the decision to operate with only one shift was made as had existed since he commenced double shift opera- tions in 1945. There is nothing in the record that indicates the respondent con- templated curtailment of his operations at any time because of lack of the raw materials until after his employees began their union activities. In view of all the facts the undersigned finds that the curtailment of operations on April 26 was not due solely to business reasons and that it was used as a pretext on the part of the respondent to get rid of union employees. The respondent seeks to justify the reinstatement of the 23 employees in pref- erence to the other locked-out employees on the grounds that they had better production records in the plant but he offered no evidence to support this con- tention. He admitted that lie personally made the selections without any con- sultation with his production superintendent who had personal supervision of the second shift, thus causing grave suspicion that the respondent was motivated by reasons other than the desire to select those employees who had the best pro- duction records. The undersigned finds the evidence does not support the respondent's conten- tion that he had no knowledge as to the union affiliation of any employee. The record clearly shows that the employees made no attempt to conceal their union activity. The record is conclusive that Superintendent Ashwell knew the names of a considerable number of employees who had joined the Union. Conner had informed Ashwell that practically all of the first shift had joined the Union on April 22. Ashwell, himself, between April 22 and 26 had questioned some of the employees as to whether they had joined. As found above, the respondent on April 22 stated that he was going to keep the plant shut until he had ascer- tained who had joined the Union. It should be remembered that not all of the employees who were not reinstated received the letter dated April 22. The undersigned expressly finds, from all the evidence, that the respondent did not on April 22 decide precisely on the entire slate of employees who subsequently were not reinstated. The most significant factor refuting the respondent's contention is the fact that substantially all of the employees who were not reinstated had become members of the Union while only a small percentage of those who were reinstated belonged to the Union. There is positive showing that 24 of the employees not SIFERS CANDY COMPANY 309 reinstated had joined the Union and that 19 of the 23 employees who were reinstated had not joined the Union. The mathematical possibility that the selection of those to be retained bore no relationship to their union activities, but resulted rather from chance is exceedingly remote" And while this possi- bility, however remote, may not be ignored altogether, the mathematical im- probability that union affiliation was disregarded as a relevant factor in the choice, is so great in this case as to cast the burden upon the respondent to come forward with a plausible, adequate and convincing explanation, demonstrating that his action with respect to each aftected employee was based solely upon non-discriminatory considerations" This the respondent has not done. In view of all these facts and the entire record the undersigned is convinced and finds that the respondent's refusal to reinstate certain of his employees on April 26, 1946, was an integral part of his plan to destroy the Union's majority, hereinafter discussed. It is therefore found that the respondent on April 26, 1946, by refusing to reinstate these employees whose names appear in "Appendix B" of this report discriminated with respect to their hire and tenure of employment and the terms and conditions of their employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act 6. The refusal to reinstate certain locked-out employees on August 12, 1946 On August 12. the plant N\ as put back on trill production with the employees increased to 50." On August 9, respondent had an advertisement for help published in an Iola newspaper and be selected his new employees from the applications for work that were received thereafter. He made no attempt to recall any of the 23 locked- out employees whose names appear on "Appendix B- The record shows that 3 of these employees , Ruth Moore , Sylvester McKarnin and Jerry McKarnin made applications pursuant to the advertisement but they have not been reinstated. One locked -out employee, Isaac -Myer , applied and was reinstated about August 12, 1940. 7 Contentions of the respondent The respondent contends that he was under no liability to those employees who did riot apply for work, and in effect , claims that he did not reemploy them because they failed to make proper application for reinstatement Regarding the 3 locked-out employees who did apply , he contends that they were not taken back for the reason that there were other applicants who he considered would make better employees.13 10 At that time 28 of the 49 employees had joined the Union On the basis of pure chance, eliminating all other factors, the mathematical possibility of mdiscuminately selecting only 4 union employees for retention was less than one chance in 100,000,000 31 See Matter of Harold W Baker Co , 71 N L R B 44, N L R B v Chicago Steer Foiid)y Co, 142 F (2d) 306 (C C A 7) , illontgoieeig Ward h Co Inc v N L R B, 107 F. (2d) 555 (C C A 7) , N L R B. v Bachelder, Receiver for Hoosier Veneer Com- pany , 120 F (2d) 574 (C C A 7). 12 The reasons given by the respondent for returning the plant to full production were that lie had been assuied by his supplieis that mateiials were likely to be mote plentiful, a tank of corn syrup had been received and his shipping situation was bad 12 The record shows that when Ruth Moore, Sylvester McKarnin, and Jerry McKarmn applied for reinstatement, the respondent merely infoimed them that they would be sent 760972-48-vol 75 21 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions The respondent does not deny that on and after May 14, 1946, he had positive information that all of the employees named on "Appendix B" had joined the Union on April 22 and 23. The undersigned concludes and finds that there is no merit in the respondent's contention that he should be absolved from liability in respect to any of these employees who did not apply for reinstatement after he advertised for help. When operations were resumed April 26 following the shut-down, the respondent gave a list of those employees he wanted recalled to Superintendent Ashwell, who then gave notice to the employees to return. The record shows that when former shut -downs had occurred the usual practice was for the respondent to have notice sent to the employees as to when he wanted them to return to work. Moreover, the record shows that on May 14, 1946, the employees made an un- conditional application to the respondent through their union representative, and were refused reinstatement at that time. The undersigned concludes and finds under these circumstances that the employees were under no obligation to make any further application " The respondent's entire course of conduct commencing with the shut-down April 23 shows a plan on his part to prevent the Union from obtaining or retaining the allegiance of a majority of the employees. Of the four union employees who for when needed. The respondent's testimony at the hearing reveals that he never intended to send for them. His testimony regarding Ruth Moore and Sylvester McKarnin was as follows Q. Give briefly what reasons you had for not employing the McKarnins A. Well, Sylvester had worked for me prior to his last employment, and he came down one day about ten o'clock in the morning from his work and said, "I am going to quit" and of course help was hard to get and I tried to talk him into staying. He said, "No, I am going to quit. " "Well," I said , "won't you stay until noon" and he said yes, he would stay until noon , and at noon he drew his check and left and came back, I believe for employment again the next year. The reason I didn't employ him back was because I could hire help, I felt was more certain to stay on the job, and, well, for that reason I just didn't think I should take him back when I could get better help to my way of thinking. Q. Now, what about Mrs. Moore, you mentioned 9 A. Well, Mrs. Moore was a little hard of hearing, and was up fairly well in years, and I just thought that possibly it would be-I had better applicants for the work than she was. Q Did you at that time require, or inquire of any of the applicants whether they were affiliated with any organization, union, or other organization? A. No, I did not. I had-Mr. Prince [the union representative] had already shown me the applications. Respondent made no explanation at the hearing as to why Jerry McKarnin was not reinstated The evidence shows that the incident referred to above when Sylvester Mc- Karnin quit the respondent's employ occurred May 8, 1944 , that McKarnin was1reemployed April 8, 1945 and that he continued in the respondent's employ until the Lock-out on April 23, 1946. There is no substantial evidence that during that time McKarnin's work was not satisfactory. The evidence shows that Ruth Moore was employed In August 1944 and that she re- mained in the respondent's employ until the lock-out April 23, 1946. The evidence is convincing that her work was satisfactory during that time The undersigned does not credit the respondent's testimony regarding his refusal to reinstate Ruth Moore and Sylvester McKarnin, and in the light of all the facts finds that it was because Ruth Moore, Sylvester McKarnin and Jerry McKarnin [son of Sylvester McKarmn] had joined the Union and engaged in union activity that they were refused reinstatement by the respondent 14 See Matter of Capital City Candy Company, 71 N. L. R. B. 447. SIFERS CANDY COMPANY 311 applied for work, only one was accepted 16 The three others were rejected, as has been previously found, because of their union affiliation . It is also found that the respondent did not send for the others or consider their application on May 14 for the same reason. The record shows and the undersigned finds that the work of these employees was satisfactory up until the time they engaged in their union activity, and the respondent's failure to furnish any satisfactory explanation for having employed inexperienced employees when substantially the same number of experienced employees were available indicates that the union affiliation of the experienced employees was the motivating cause which prevented their reinstatement. Because of all these circumstances and the entire record the undersigned is convinced and finds that the respondent on or about August 12, 1946, refused to reinstate those employees whose names appear on "Appendix B" because of their membership in and activity on behalf of the Union. It is therefore found that the respondent on or about August 12, 1946, by refusing to reinstate those employees whose names appear on "Appendix B" of this report discriminated with respect to their hire and tenure of employment and terms and conditions of their employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing his employees in the rights guaranteed in Section 7 of the Act. B. The refusal to bargain 1. The appropriate unit The complaint alleges that all employees of the respondent at his Iola plant, exclusive of supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The above-described unit is composed of the production and maintenance em- ployees of the respondent. In view of the operations of the respondent at his plant and the Board's findings and decisions in respect to appropriate bargaining units, such a unit is clearly appropriate for bargaining purposes. Accordingly, the undersigned finds that the above-described group of em- ployees constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. Representation by the Union of a majority in the appropriate unit The record shows that there were 49 eligible employees on the respondent's pay-roll on April 23, 1946, and that 28 of these employees were members of the Union on that date.'" The respondent took the position that 24 of the 28 union members were not employees as they had not been reinstated and that the Union without them did not have a majority when it requested the respondent to bargain on May 14, 1946.17 "The courts have repeatedly held that an inference of discrimination is not necessarily rebutted by a showing that an employer has not discriminated against other union member s. See Kansas City Power and Ltight Company v. N. L. R. B., 111 F. (2d) 340 (C. C A 8). 11 No other Union seeks to represent these employees. "So far as the record shows, the same 23 employees Rho were reinstated on April 26 were in the respondent's employ on May 14. Four of the 23 were members of the Union; 24 of the 26 not reinstated were members ; the record is silent as to the remaining 2 and the Board did not seek their reinstatement. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record shows that the undersigned has found that these 24 employees were locked out on April 23, 1946, and that the respondent since that time had dis- criminatorily refused to reinstate them. For that reason there is no merit In the respondent's position.18 It is found that on April 23, 1946, and at all times thereafter, including May 14, 1946, the Union was, and now is the exclusive representative of all the employees in the said appropriate unit within the mean- ing of Section 9 (a) of the Act, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment 10 3. The refusal to bargain On May 14, 1946, the Union, by its duly authorized representative, presented 28 union authorization cards, signed by the respondent's employees, to the re- spondent and requested that it be recognized as the bargaining representative for his employees in the aforesaid appropriate unit. The respondent refused to recognize the Union claiming, as stated above, that it did not have a majority. His position has been found above to be without merit. The undersigned finds that on May 14, 1946, and at all times thereafter, the respondent has refused to bargain collectively with the Union as the exclusive representative of his employees in an appropriate unit, in respect to rates of pay, wages, hours of employment, and other conditions of employment and has thereby interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Further interference, restraint, and eoei cion In addition to the respondent's interference with, restraint, and coercion of his employees as shown by the facts set forth in Section III, above, he gave a unilateral wage increase to his employees in i\ ray and again in July 1946. In the light of the respondent's entire course of conduct and the entire record, the undersigned concludes and finds that it was done for the purpose of discouraging membership in the Union. D. The alleged dzscrvininatory discharge of John. R. Szfers 20 The record shows that Sifers was discharged about June 1, 1946 He had been employed by the respondent as a fireman, since about March 1943. His principal duty was to take care of the boiler but as this (lid not require all of his time he was expected to perform odd jobs about the plant On May 29, 1946, the plant shut down and remained closed May 30 [Memorial Day], 1946. On May 31, operations were resumed Sifers did not report for work on that day. He testified that his failure to do so was because he had no notice that the plant was to operate. The undersigned does not credit this testimony. The other employees knew that the plant was reopening and the undersigned con- cludes and finds that Sifers' failure to report for work, on May 31, was due to his own negligence. On the morning of May 31, while on his way to a fishing trip, Sifers encountered the respondent and, from the ensuing conversation, con- 18 Loss of majority by unfair labor practices does not impair the Union's status Palm Beach Broadcasting Corp., 63 N. L R. B 597. 19 Twenty-eight union authorization cards were received in evidence at the hearing. These cards were identified either by the signers or by the employees who saw them sign. The respondent made no attempt to dispute the genuineness of the signatures thereon As related below, on May 14, 1946, these cards were shown to the iespondent for his examina- tion by a union representative. 10 Sifers is a cousin of the respondent. SIFERS CANDY COMPANY 313 sidered that he had been replaced by another employee. On the following day the respondent, in effect, gave him his discharge over the telephone?' The record shows that Sifers ' work had become unsatisfactory. Sifers admitted that he had left the plant during working hours without permission and that a few days before his discharge he did not sweep out the office as directed by the respondent's wife The Board supplied no adequate proof that the respond- ent had knowledge of any union activity or affiliation on the part of Sifers 12 Sifers was evasive as to when he joined the Union. The undersigned was not impressed with Sifers' testimony and from all the record concludes that he was discharged because his work was not satisfactory. Accordingly, the undersigned finds that John R. Sifers was not discharged because of his membership in or activities on behalf of the Union and will recom- mend that so much of the complaint as alleges his discriminatory discharge be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor prac- tices within the meaning of the Act, it will be recommended that he cease and desist therefrom and take certain affirmative action which the undersigned finds will effectuate the policies of the Act. It has been found that the respondent from May 14, 1946, and all times thereafter has refused to bargain collectively with the Union as the exclusive representative of his employees in the aforesaid appropriate unit. It will therefore be recommended that the respondent upon request, bargain collec- tively with the Union as the exclusive representative of all his employees within the said unit. It has been found that the respondent on April 23, 1946, locked out and thereafter refused to reinstate the employees listed on "Appendix B" for the reason that they joined and assisted a labor organization and engaged in con- certed activities for the purposes of collective bargaining or other mutual aid or protection It will therefore be recommended that the respondent offer them immediate and full reinstatement to their former or substantially equivalent positions 23 without prejudice to their seniority or other rights and privileges, discharging if necessary, any new employees hired since April 20, 1946. It will be further recommended that the respondent make them whole for any loss of 21 Respondent testified that as Sifers was his cousin he didn't want to fire him outright so he suggested that Sifers get a job where he could have steady work. 22 The record shows that Sifers did not join the Union until sometime after the other employees and his card was not shown to the respondent at the time the union representa- tive attempted to obtain recognition for the Union 23 In accordance with the Board ' s consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wher- ever possible , but if such position is no longer in existence, then a substantially equivalent position " See Matter of The Chase National Bank of the City of New York , San Juan, Puerto Rico , Branch, 65 N. L. R B. 827. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay they may have suffered by reason of their discriminatory lock-out by payment to them of a sum of money equal to the amount they would normally have earned as wages during the period from April 23, 1946, to the date of the re- spondent's offer of reinstatement, less their net earnings 24 during such period. It has been found that the respondent on April 23, 1946, locked out the em- ployees whose names appear on "Appendix A" and that all of them except Isaac W. Myer were not reinstated until April 26, 1946, and that Isaac W. Myer was not reinstated until on or about August 12, 1946, for the reason that some of his employees joined or assisted a labor organization and engaged in concerted activities for the purposes of collective bargaining or other mutual aid and protection. It will therefore be recommended that the respondent make them whole for any loss of pay they may have suffered by reason of their discriminatory lock-out by payment to them of a sum of money equal to the amount they normally would have earned as wages during the period irom April 23, 1946, to the date of their reinstatement less their net earnings u during that period. Since it has been found that the respondent has not, in violation of the Act, discriminated in regard to the hire and tenure of employment of John R. Sifers, it will be recommended that the complaint be dismissed as to him. Having found that the respondent has engaged in conduct violative of Section 8 (1), (3), and (5) of the Act, the undersigned will recommend that the re- spondent cease and desist not only from engaging in such conduct but also from in any manner interfering with, restraining, or coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act because the re- spondent's whole course of conduct discloses a definite purpose to defeat self- organization among his employees and to interfere generally with the rights of the employees as guaranteed by the Act 2° Moreover, the discriminatory lay- offs of said employees "goes to the very heart of the Act." "' Because of the re- spondent's unlawful conduct and its underlying purposes, the undersigned is con- vinced that the unfair labor practices found are persuasively related to other unfair labor practices proscribed by the Act and that danger of their commis- sion in the future is to be anticipated from the respondent's conduct in the past 28 The preventive purpose of the Act will be thwarted unless the remedy is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and to minimize industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, the undersigned will recommend that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and the entire record in the case, the undersigned makes the following : "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 elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company, 8 N. L R B 440 Monies received for work performed upon Federal , State , county, municipal , or other work -relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 26 See footnote 24, supra. 20 See May Department Stores Company v. N. L. R. B., 326 U. S. 376. 27 N. L. R. B. v. Entwistle Mfg. Co., 120 F. (2d) 536 (C. C. A 4). 28 See N. L. R. B . v. Express Publishing Company, 312 U. S. 426. SIFERS CANDY COMPANY CONCLUSIONS OF LAw 315 1. Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All employees of the respondent employed at his Iola, Kansas, plant ex- cluding clerical and supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of employees or ef- fectively recommend such action, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, affiliated with the American Federation of Labor, was on April 23, 1946, and at all times thereafter has been, the exclu- sive representative of all the employees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on May 14, 1946, and at all times thereafter, to bargain col- lectively with the Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, affiliated with the Amer- ican Federation of Labor, as the exclusive representative of all his employees in the aforesaid appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of the employees listed in "Appendices A and B," thereby discouraging membership in Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, affiliated with the American Federa- tion of Labor, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and 7 of the Act. 8 The respondent has not discriminated against John R. Sifers in respect to his hire and tenure of employment or any term or condition of employment, within the meaning of Section 8 (3) of the Act. RECOMME NDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, Earl I. Sifers, doing business as the Sifers Candy Company, and his agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, affiliated with the American Federation of Labor, as the exclusive representative of all his employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours of employment, or other conditions of employment ; (b) Discouraging membership in Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affiliated with the American Federation of Labor, or any other labor organiza- tion of his employees by discharging or refusing to reinstate any of his employees, or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employment ; (c) In any' other.` manner interfering with, restraining, or coercing his, employees in the exercise of the rights to self-organization, to form labor organi- zations, to join or assist Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Tri-State Bakers Local Union 363, affiliated with Bakery and Confectionary Workers International Union of America, affiliated with the American Federation of Labor, as the exclusive representative of all employees of respondent employed at his Iola, Kansas, plant, excluding clerical and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; (b) Offer the employees listed in "Appendix B" immediate and full rein- statement to their former or substantially equivalent position' without prejudice to their seniority or other rights and privileges in the manner set forth in the section entitled "The Remedy" ; (c) Make whole the employees listed on "Appendix B" for any loss of pay they may have suffered by payment to each of them of an amount equal to that which they normally would have earned as wages during the period from April 23, 1946, to the date of the respondent's offer of reinstatement, in the manner set forth in "The Remedy," less their net earnings 30 during such period ; (d) Make whole the employees listed in "Appendix A" for any loss of pay they may have suffered by payment to each of them of an amount equal to that which they would normally have earned as wages during the period from April 23, 1946, to the date of their reinstatement, in the manner set forth in "The Remedy," less their net earnings 31 during said period ; (e) Post at his plant at Iola, Kansas, copies of the notice attached hereto marked "Appendix C " Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by a repre- sentative of the respondent, be posted by the respondent immediately upon receipt thereof and maintained by him for sixty (60) consecutive clays there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (f) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of receipt of this Intermediate Report S0 See footnote 23, supra. 30 See footnote 24, supra n See footnote 24, supra. SIFERS CANDY COMPANY 317 what steps the respondent has taken to comply with the foregoing recom- mendations. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that he will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the complaint, insofar as it alleges that the respondent discriminated in regard to the hire and tenure of employment of John R. Sifers, be dismissed. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochambeau Building, Wash- ington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof, and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further provided in said Section 203 39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. WILLIAM J. SCOTT, Trial Examiner. Dated January 28, 1947. APPENDIX A The following employees were locked out by the respondent April 23, 194G, and were reinstated April 26, 1946, with the exception of Isaac W. Myer who was reinstated on or about August 12, 1946. George Sharp Esther Townsend Ethel Frazell Vera Brundage Clem Allen Simpson Coker Joe Brundage J. R. Sifers Robert Jones Mabel Ashwell J. W. Carpenter Erma Lewis George Spears Verle Briggs Jeanette Schofield Ruth Holman Dorothy Japhet Betty Lockart Joe Bruner Fred Broom Morris Paddock Wm. Briggs Forrest Sifers Isaac W. Myer 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B The following employees were locked out by the respondent April 23, 1946, and have never been reinstated. John L. Burke Merdick J . Carter Russell R. Casteel Earl C. Conner Mildred Cranor Daisy F. Frazier Gladys Gilbert Ulery J. Gilbert Arminta E . Hodges Louie Hodges Charles T . Hopper R. E. Keele Lloyd T. Lanferman Loren A. Mathis W. 0. McFarland Jerry McKarnin Nellie McKarnin Sylvester McKarnin Nellie D. Meseke Ruth E. Moore Johnny L Ray Cecil C. St Clair Freda F. St. Clair APPENDIX C NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, I hereby notify my employees that : I WILL NUT in any manner interfere with, restrain , or coerce my employees in the exercise of their right to self-organization , to form labor organizations, to join or assist TRI-STATE BAKERS LOCAL UNION 363, affiliated with BAKERY AND CONFECTIONARY WORKERS INTERNATIONAL UNION OF AMERICA , affiliated with the American Federation of Labor, 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. I WILL OFFER to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions , without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as the result of the discrimination. John L. Burke Merdick J. Carter Russell R. Casteel Earl C. Conner Mildred Cranor Daisy F. Frazier Gladys Gilbert Ulery J. Gilbert Arminta E. Hodges Louie Hodges Charles T . Hopper Lloyd T. Lanferman Loren A. Mathis W. 0. McFarland Jerry McKarnin Nellie McKarnin Sylvester McKarnin Nettie D. Meseke Ruth E. Moore Johnny L. Ray Cecil C. St. Clair Freda F. St. Clair E. Keele SIFERS CANDY COMPANY 319 I WILL MAKE whole for any loss of pay suffered by them as the result of the discrimination the employees named below. George Sharp Esther Townsend Ethel Frazell Vera Brundage Clem Allen Simpson Coker Joe Brundage J. R. Sifers Robert Jones Mabel Ashwell J. W. Carpenter Erma Lewis George Spears Verle Briggs Jeanette Schofield Ruth Holman Dorothy Japhet Betty Lockart Joe Bruner Fred Broom Morris Paddock Wm. Briggs Forrest Sifers Isaac W. Myer I WILL EARCAIN collectively upon request with 1RS-STATE BAKERS LOCAL UNION 363, affiliated with BAKERY AND CONFECTIONARY WORKERS INTERNA- TIONAL UNION of AMERICA, affiliated with the American Federation of Labor, as the exclusive representative of all employees in the bargaining unit de- scribed herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All employees employed at my Iola, Kansas, plant excluding clerical and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. MY employees are free to become or remain members of TRI-STATE BAKERS LOCAL UNION 363, affiliated with BAKERY AND CONFECTIONARY WORKERS INTER- NATIONAL UNION OF AMERICA, affiliated with the American Federation of Labor, or any other labor organization, I WILL NOT discriminate 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 on behalf of any such labor organization. Dated-------------------- EARL I. SzFERs, d/b/a, STEERS CANDY COMPANY, Employer. By ----------------------------- (Representative) (Title) NoYE.-Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.