Southern Cotton Oil Co.

National Labor Relations Board - Board Decisions

Aug 6, 1940

26 N.L.R.B. 177 (N.L.R.B. 1940)

In the Matter Of SOUTHERN COTTON OIL COMPANY and AMALGAMATED
' MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA
Case No. C-1854.-Decided August 6, 1940
Jurisdiction : salad oils and shortening manufacturing industry.
Unfair Labor Practices.
Interference, Restraint, and Coercion: anti-union statements; requiring employees
to divulge their union affiliation.
Respondent's granting of raises without consulting union during bargain-
ing negotiations calculated to under cut union's prestige held 8 (1).
Discrimination: discharges for union membership and activities; charges of,
dismissed as to three persons.
Remedial Orders : reinstatement and back pay awarded
Respondent's knowledge, after discriminatorily discharging employee, of
his violation of respondent's rule, no grounds for refusal of reinstatement,
where violation is condoned and where respondent may require violations to
cease.
Mr. Arthur R. Donovan, for the Board.
Waring, Walker ct Cox, by Mr. Sam P. Walker and Mr. Roan War-
ing, of Memphis, Tenn., for the respondent.
Mr. Wilson W. Rowland, for the Amalgamated.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges 1 duly filed by Amalgamated' Meat Cutters
and Butcher Workmen of North America, herein called the Amalga-
mated, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Tenth Region (Atlanta, Georgia),
issued its complaint dated May 22, 1939, against Southern Cotton Oil
Company, Memphis, Tennessee, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1) and
(3). and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint and accom-
panying notice of hearing were duly served upon the respondent and
upon the Amalgamated.
I Original charges had been filed by I. V Hall and T. L. Jarrett
26 N. L. R. B., No. 21.
177
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concerning the unfair labor practices the complaint, as amended
at the hearing, alleged in substance that the respondent discouraged
membership in the Amalgamated' by discharging and refusing to
reinstate five named employees3 because they had joined and assisted
the Amalgamated; and that the respondent by the aforesaid acts, by
coercing its employees not to join the Amalgamated, by threatening
members of the Amalgamated with discharge if they persisted in ac-
tivities in behalf of the Amalgamated, and by other acts, interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On June 8, 1939, the respondent filed its answer to the complaint4
denying that it had engaged in the unfair labor practices alleged
therein, and averring certain affirmative matters.'
Pursuant to notice, and after a postponement, a hearing was held at
Memphis, Tennessee, on June 26, 27, and 28, 1939, before Henry J.
Kent, the Trial Examiner duly designated by the Board. The Board
and the respondent were represented by counsel, and the Amalgamated
by its representative; all participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties. At the close
of the hearing the Trial Examiner granted a motion by counsel for the
Board to conform the pleadings to the proof. The Trial Examiner
made various rulings on other motions and on objections to the admis-
sion of evidence. The Board has reviewed all the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On September 5, 1939, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the respondent and
upon the Amalgamated, wherein he found that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
! On November 17, 1937, employees of the respondent were granted an American Federation of Labor
federal charter under the name of Southern Cotton Oil Employees Union No . 21376. On November 7,
1938, after a dispute concerning jurisdiction over the respondents ' employees was settled in favor of the
Amalgamated , Oil Refinery Workers Local No. 586 was chartered at the respondent 's plant by the Amal.
gamated. Thereafter , the first mentioned organization ceased to exist and all its records, books , and papers
concerning it were transferred to its successor, the Amalgamated Although the complaint alleged that
the respondent discouraged membership in the Amalgamated and otherwise interfered with its activities
at times when the organization at the plant was not known as the Amalgamated , it is clear that the re-
spondent was not thereby prejudiced . The record definitely revealed the name of the organization at the
time when each of the unfair labor practices occurred and the respondent failed to object at the hearing or
in its exceptions to the Intermediate Report to this misnomer . 'Moreover, this variance was cured by the
Board's motion to conform the pleadings to the proof.
3 The original complaint named four employees : L. V. Hall, T. L Jarrett, Wyman Frick , and Brooks
Jones. Upon motion by counsel for the Board the complaint was amended at the bearing without objec-
tion by adding the names of James Glover and W. H. Norwood. At the conclusions of the Board's case
the complaint was dismissed as to Glover , who failed to testify, upon motion of the Board 's attorney.
4 On May 31 , 1939, the Regional Director granted the respondent 's request that the time be extended for
filing an answer.
6The respondent's answer, though filed prior to amendment of the complaint at the hearing , is deemed to
deny the allegations of the complaint , as amended , in so far as they charge the respondent with unfair labor
practices
SOUTHERN COTTON OIL COMPANY 179
coerce, within the meaning of Section 8 (1) and (3) and Section 2 (6)
and (7) of the Act. He also found that the respondent had not en-
gaged in unfair labor practices by discharging W. H. Norwood. He
recommended that the respondent cease and desist from its unfair
labor practices and that it take certain affirmative action, including
offers of reinstatement with back pay to the individuals found to have
been discriminatorily discharged,' and that the complaint be dismissed
as to Norwood.
On October 5, 1939, the respondent filed exceptions' to the Inter-
mediate Report, and on November 6, 1939, it submitted a brief in
support of its exceptions.
Thereafter the respondent lodged with the Board a copy of a col-
lective bargaining agreement executed on December 14, 1939, between
the Amalgamated and the respondent, and filed a written motion re-
questing that this contract be made a part of this record. The respond-
ent affirmed that it had served copies of this contract and motion to file
upon the Amalgamated and upon each of the individuals named in
the complaint except Norwood and Glover. None of the parties filed
objections thereto. The Board hereby directs that'the copy of said
contract be made part of the record as Respondent Exhibit No. 2.
Pursuant to notice, and after a postponement, a hearing was held
before the Board in Washington, D. C., on May 7, 1940, for the purpose
of oral argument. The respondent appeared by counsel and partici-
pated in the argument. The Board has considered the exceptions to
the Intermediate Report, the brief filed, and the argument advanced at
oral argument before the Board and, in so far as the exceptions are in-
consistent with the findings, conclusions, and order set forth below,
finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Southern Cotton Oil Company is a New Jersey corporation, having
its principal office and place of business in New Orleans, Louisiana. It
is engaged in the manufacture and sale of salad oils and shortening.
The respondent operates refining plants at Savannah, Georgia; Chi-
cago, Illinois; Gretna, Louisiana; Bayonne, New Jersey; and Mem-
phis, Tennessee. It also operates crude oil mills scattered throughout
the various southern States. This case concerns only the respondent's
Memphis plant. The respondent purchases annually for its Memphis
plant approximately 200,000 barrels of vegetable oil, of which approxi-
mately 80 percent originates outside the State of Tennessee. The re-
E These individuals are: Frick , Hall, Jarrett , and Jones.
7 On September 18, 1939, the Board granted the respondent's request for additional time to file exceptions.
ISO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's annual production of salad oil and shortening at this plant
varies between 12,000,000 pounds and 30,000,000 pounds, of which
approximately 75 per cent is shipped- to points outside the State of
Tennessee. The respondent employs approximately 140 employees at
the refinery, in Memphis.' The respondent admits that it is engaged in
interstate commerce within the meaning of Section 2 (6) and (7) of
the Act.'
II. THE ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North Amer-
ica is a labor organization affiliated with the American Federation of
Labor. It admits to membership employees of the respondent. At
the respondent's Memphis plant it is the successor to Southern Cotton
Oil Company Employees Union No. 21326, a labor organization char-
tered by and affiliated with the American Federation of Labor.
III. THE UNFAIR LABOR PRACTICES
A. Background of labor relations; interference, restraint, and coercion.
Prior-to November 1, 1937, there was little interest in labor organiza-
tions at the respondent's plant. On or about that date, Melvin Lee, a
colored employee now dead, interested L. V. Hall and T. L. Jarrett,
two other colored employees of the respondent, in union affiliation.
Hall and Jarrett thereupon approached other colored employees in the
plant, while Lee talked to some of the white employees. Shortly there-,
after, as the result of these efforts, Riddell, Fritz, and B. A. Jones,
three working foremen, Wyman Frick, a mtchmist, and several other'
employees met with C. N. Reddick, a special organizer for the Ameri-
can Federation of Labor, herein called the A. F. of L., and planned
the organization of a union among the plant employees. Organiz t-
tional meetings followed and nearly all the employees signed member-
ship application cards. The resultant labor organization was char-
tered by the A. F. of L. on November 17, 1937, as Southern Cotton Oil
Company Employees Union, No. 21376. It is herein called No. 21376.
Riddell was elected president, and Frick, vice president. A committee
consisting of Reddick, Riddell, Frick, and Fritz drafted a proposed
collective bargaining agreement and presented it to the respondent.
The committee had several conferences with representatives of the
respondent in December 1937 and January 1938 but no agreement was
reached.
Shortly after the presentation of the proposed agreement to the
respondent, the latter, through its supervisory officials, distributed
ballots to its employees and required each employee to indicate, over
his signature, whether or not he had joined No. 21376. This poll
8 These findings are based upon a stipulation between counsel for the Board and the respondent
SOUTHERN COTTON OIL COMPANY '. + 181
indicated that about ^98 per cent of the employees had joined. The
respondent did not announce the results to the, employees.
The action of the- respondent in requiring its employees to divulge
their union affiliation, and thus to expose themselves to reprisals, was
clearly coercive within the meaning of Section 8 (1) of the Act.'
The respondent's asserted, justification', that it required the informa-
tion sought- in order to 'determine whether or 'not the Employees
Union had been designated by a majority, is without merit. The
respondent had; available other; means of ascertaining the Employees
Union's representative status, and need not have resorted. to the coer-
cive method used by it. The respondent failed 'to avail itself of any
such other means, or even to inquire of the bargaining committee
concerning the union's strength.
In the course of the bargaining conferences Mark A. Hamilton,
superintendent of the shortening department, and Gustave Hoffman,
chief engineer ,at ,the plant, each told' the union conferees that he saw
no, need fora union. Daniels,,the general manager, similarly stated
that there was no need for a union and that a union would not benefit
the respondent's employees.
The proposed agreements embodied, among other things, a general
wage increase. In December 1937, while negotiations over the agree-
ment were pending, the respondent, without consulting the union
bargaining committee, and without granting or rejecting the wage
demand embodied in the proposed agreement, put into effect a wage
increase to all its employees., At this time No. 21376 was the duly
designated representative of a majority of the respondent's employees.
Officials' of the respondent informed some of the employees that the
increase was not granted at the request of No. 21376 or as the result of
its bargainir g'efforts. At a bargaining conference which followed the
granting of the increase a representative of the respondent stated
that, since the respondent had raised wages it saw no need for a union.
The respondent asserts that it had formed the intention of granting
the wage increase prior to the advent of . No. 21376 but that that
organization came into existence before the respondent carried out
its intention. , While, the respondent , may in fact have planned to
raise wages, the timing,of the increase to coincide with the bargaining
efforts of No. 21376, the respondent's failure to consult the union
bargaining committee with which it 'was in negotiation, and the
statements' by: representatives of the respondent which accompanied
the action can have been calculated only to undercut the No. 21376
and to destroy its prestige.10
9 Matter of New Era Die Company and International Association of Machinists , Lodge 243 (A. F. of L ),
at at., 19 N.)L. R B., 227
. to of, Matter of Whittier Mills Company et at , and Textile Workers Organtztng Committee , 15 N.'L R. B.
457, ent'd N. L. R. B. v. Whittier Mills Company , et al, 111 F. (2d) 474 (C. C. A. 5).
323429-'42-vol. 26-13
182 DECISIONS- OF NATIONAL, LABOR, RELATIONS BOARD
We find that the respondent, through its officials and supervisory
employees, by requiring its, employees to divulge their union affilia-
tion; by denying the need for a union and asserting that a union would
not benefit the respondent's- employees ,by granting. a wage increase
without consulting the bargaining, committee of No. 21376, at a' time
when that organization was-the bargaining representative of a majority
of the respondent's employees: and the- respondent was in negotiation
with it' concerning wage- rates; and by, stating to, ,employees- that
such increase was not attributable to No. 21376, interfered with,,
restrained, and coerced its. employees in the exercise of, the' rights
guaranteed in Section 7 ;of the Act.,
B: The disch'arge's
1. Hall and, Jarrett
On April '26, 1938, Hamilton, superintendent ` of the respondeiit,s
shortening department, discharge'd L. V. Hall and T. L. Jarrett, ,two
packers iii that departrnent,'who had'b'eeii 'in'the respondent's employ
for over ' 10 years and who, as we have shown, , we`re instrumental iii
the formation of No. 21376. Hamilton twice'refused, at their request,
to assign reasons for 'the discharge of these men, and their separation
slips stated that they were'laid off for lack of work. On the day
preceding their discharge, however, both men learned that they hid
been implicated in a theft of shortening from the plant.
The respondent contends that Hall and Jarrett we're•discharged'ori
suspicion of stealing shortening. Hamilton's testimony 'at the hearing
regarding the grounds for his suspicion as to Hall's and Jarrett's guilt
niay be summarized as follows: On' the afternoon of April 25, the day
preceding the discharges, Hamilton saw Curley Stokes' and Andrew
Robinson, two other colored employees, leave thc'plant•with a lunch
box.' Their manner aroused Hamilton's suspicion: ' Five minutes'la'ter
Hamilton saw Sim Stokes, also a colored, employee, leave 'the' plant
"hugging" a lunch box. Hamilton stopped Sim Stokes,'looked into
the lunch box, and found an 8-pound carton of `shortening. ` Stokes'
denied ownership of the box,'stating that it belonged 'to Robinson.
Hamilton immediately discharged Stokes. Thereupon Stokes, in the
presence of J. A. Lyons, a stock clerk whom Hamilton had called to
the scene, said, "Why don't wait and` get the others . ' . Hall and
Tommy [Jarrett],, and the rest 'of them : ' . . all `of them that' had
lunch boxes, they are ' taking it out; t'aking' it to Robinson." Lyon,
testifying at the hearing, corroborated Hamilton's ' version, of, Sim
Stokes' statement.
On April 26 the respondent discharged Curley Stokes and Robinson
as well as Hall and Jarrett
At the hearing Sim Stokes, testifying on behalf of the Board, denied
that he had implicated or mentioned Hall or Jarrett in his conversa-
•SOUTHERN: COTTON 'OIL "COMPANY' '' "' '183
,tion of April 25"with•Hamilton. He denied also that he had stolen any
shortening. Stokes testified that the lunch box with which Hamilton
caught him belonged to Robinson to whose home Stokes was taking it
at' Robinson's request, and in the belief,that`it contained Robinson's
clothing: ' ' ' ' I
, t,
'Upon the entire record we find Hamilton's testimony conccrning'the
incident*in dispute; as partially corroborated by Lyon, more plausible
than that of'Sim' Stokes with' which it'conflicts.' Stokes, upon being
'dis'eharged'for theft;'ihade no immediate effort to clear himself by con-
fronting Robinson, the alleged owner of the box containing the stolen
goods. Several months later Stokes did -see Robinson who, at that time
denied'ownership'of the box., These circumstances 'are inconsistent
with Stokes' contention' that he was an' innocent accessory. We' credit
'Hamilton's version''of Stokes"s'tatement. '
'Hall and Jarrett both'testified that they had never taken or been
accused of taking shortening from the plant. Their testimony does
'not conflict with that of Hamilton who grounded the discharges' not
on direct proof of dishonesty, but rather on reasonable suspicion.
Hamilton explained that because his belief as to the dishonesty of the
two men was based on suspicion he assigned "lack of work" as the rea-
son for, their termination in order to enable them to 'receive unemploy-
ment insurance benefits,and in order not to hinder them from'securing
employment, elsewhere. He admitted that he failed to confront them
with his suspicion, asserting that he feared involvement in a slander
action:
The Trial Examiner, remarking the significant role played by Hall
and Jarrett in the organization of No. 21376 and Hamilton's admission
at the hearing that he was opposed in'principle to a union ih which
both white and colored employees were eligible, was of the opinion'that
the respondent discharged them for their union activities. We are
constrained to observe, however, that at the time of the Sim Stokes
incident the respondent discharged not 'only Hall and Jarrett, but
also Sim and Curley ,Stokes who are not shown to have been partic-
ularly active union members, and Andrew Robinson who is not shown
to have been a member at all. Upon the entire record we credit the
respondent's version of its ,motive for the discharges. We find that
the respondent did not discharge Hall or Jarrett because of their
membership in or activity on. behalf ofthe Employees'Union.
2. Wyman 'Frick
Wyman Frick was first employed by the respondent as a machinist
in 1928, after having served an apprenticeship with the St. Louis and
San Francisco Railroad. Frick started with the respondent at 30 cents
an hour. During his employment he received several wage increases
184 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
and in December 1937 his hourly rate was increased from 6,5 cents,to
78 cents.
Hoffman discharged Frick on May 6, 1938, after having given .him
a preliminary notice on April 14, 1938. Hoffman informed Frick then,
and again stated at the hearing, that Frick's release was due, to; his
faulty repair of a pump •and because Frick's helper. had sustained, an
injury in an accident which Hoffman attributed to Frick's improper
instructions. Frick unsuccessfully, requested, Hoffman, to reconsider
the discharge., -
Frick was one of the charter members of No.,21376 actively partici-
pated in its affairs, and was elected its vice president. In December
1937, when contract negotiations with the.r'espondent were in progress,
Frick, as a member of the unionnegotiating,committee, openly insisted
upon certain concessions which the, respondent refused to grant.. Dur-
ing these negotiations Hoffman asked Frick if,the employees would
accept, a company union; Frick replied that the employees wanted to
be -affiliated with the A. F. of L. In the first part of 1938 Hoffman
taunted Frick about the discharge of Reddick, the organizer, by the
A. F. of L., whereupon Frick mentioned the fact that a union at
"Chickasaw" had held a successful strike.
The accident which Hoffman attributed to Frick's carelessness
occurred on Sunday, February 20, 1938, while Frick and an inex-
perienced helper, Johnson, whom the respondent,had assigned to him,
were repairing a machine gear at the plant. The gear, weighing
approximately 75, pounds, was housed on•a,platform 14 feet above, the
-floor level and had to be taken off the platform to the shop. , As
Johnson was carrying the gear from the platform to floor level on a
step ladder, he fell with the gear and, broke his leg., Thereafter
Johnson was out of service until April 11 or 12.
While Johnson was convalescing the respondent obtained some in-
formation from him-concerning the accident, but the record is incon-
clusive as to the extent and nature thereof. However, when Johnson
returned to work Hoffman asked him how the accident occurred.
Johnson, according to ' Hoffman's testimony, stated that Frick in-
-sti•ucted Johnson not to throw the gear off the platform but to carry
it down the ladder and that, as Johnson did so, the ladder fell, thr;ow
ing Johnson with the gear to the floor. Hoffman testified, that several
days after receipt of this information, attributing the accident to
Frick's improper instructions, he notified Frick to obtain other em-
ployment. Hoffman added that the gear should properly have been
lowered by use of a rope and that Frick, an experienced machinist,
should so have instructed Johnson. - ,
In his testimony Frick admitted that he told Johnson not to throw
the gear off the platform but denied that he instructed him to carry it
SOUTHERN 'COTTON" 'OIL' COMPANY ' 185
down the ladder.', Frick testified that lie did not give Johnson any
instructions on lowering•the gear. Johnson denied at the hearing that
he',told 'Hoffman' that'Frick instructed'him to carry the gear down the
ladder: For reasons' appearing hereinafter we do not' consider it
necessary to resolve this conflict of testimony or determine whether or
not Frick used due care in supervising his helper. "
Johnson testified that upon his return to work-at about the time'wben
Hoffmman'questidned hire about'the accident, the latter also interrogated
him; about certain union matters. ' Johnson remembered that Hoffman
asked who had first interested Johnson in the, Union and that he re-
plied, `-'Mr. Frick." • -Johnson testified further that Hoffman later called
him to Daniels' office and in the latter's presence again questioned him
abbut''the accident' and about 'the union. According to Johnson, his
rep'lies;concerning'th'e accident and concerning Frick's first interesting
him -in the Union were typed out by a 'stenographe'r on two separate
papers and signed by him at the request of'Hoffman. At the hearing
counsel•'for the Board requested the respondent to produce these two
statements allegedly • signed by Johnson. ' The 'respondent's "counsel'
produced one'statement dated April 22, 1938, concerning the details
off the accident,'and stated, "'As far as'I'know, this is the only statement
this' man ![Johnson] 'signed." ' The •ddcument which counsel produced
w'a's placed in evidence: Hoffman testified at the hearing,'but failed td•
deny that 'he questioned Johnson about the union or that he caused
Johnson'to'sign a statement'to the effect that Frick first interested him
in the union: ''Neither Daniels,no'r the' stenographer-who typed John-
son's answers was called'to testify. Johnson's-testimony on this matter
stands undenied. The Trial Examiner accepted and we accept John-
son's testimony as 'substantially true. We find that Hoffman asked
Johnson who first interested him in the union, .that Johnson replied
that it was Frick; and that Hoffman thereafter caused Johnson to sign
a'statement 'to'that 'effect.
"The,punip'incident referred to by Hoffman as one of the causes of
Frick's • discharge occurred on April 6, 1938. Frick was assigned' to
rephii 'a leaky centrifugal pump: ' He installed new "sleeves" on the
piimp,but it:continued to leak. The next day further work done on the
pump by Frick and A. E.'Peterson, -tin employee, corrected the leaky
condition. The•evid'ence is'confiicting'concerning Frick's culpability
for` failing to repair the'pump properly in the first instance.
Hoffman testified''that the Peak was caused' by worn glands which,
should have been observed, and replaced' by Frick when he first at=
tempted to repair 'the pump and that when new glands were subse-
qu6htly installed 'the pump stopped leaking. Frick denied that the
glands were worn or that new ones were installed. He stated that the
leak was stopped by using a harder packing. ' Peterson, who assisted
Frick in repairing the pump, testified that Frick's failure to stop the
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leak on his first attempt was not his fault. ; Peterson also denied the
statement attributed to him by, T. C. Smith, an, employee, that he,,
Peterson, told Smith that Frich;had done a bad job on the pump.,, For:
reasons hereinafter appearing we do not deem it necessary, to deter,-
mine whether Frick in, the first instance,failed to exercise proper
skill in repairing the pump.
The respondent contends,that Frick was discharged for, general in-
competency, for careless, repair,of, the,pump, and because his helper;
sustained an injury attributable to ,Frick's improper. supervision.
While the respondent may have had, proper, cause to discharge. Frick,
the issue of whether his union activity was the cause or one of, the con-
tributing causes of his discharge still ,remains; fort , if Frick's union
activity motivated the, discharge in whole or in part, then„ regardless
of other reasons, the respondent committed an unfair labor practice.!'
,, Assuming that Frick was careless as charged by the respondent e:
are not, satisfied that it would have penalized ,Frick by discharge for
that reason alone. During the 10. years of his employment Frick was
given several substantial wage increases and his ability and efficiency
had never been questioned prior to,the advent of No. 21376. ' He was
recognized by his fellow workmen as a.competent ^mechanic..,At; no,
time,until after the advent'of the union in December 1937, did -Hoffman,.
who admitted that Frick .was, a, fai,r, workman, :unduly ; criticize his
work.or warn him that'his,job,at;the,plant was.in jeopardy. , In the,
light of Frick's service record we do not believe that the respondent,
would have given Frick summary notice of ; discharge without prior
warning or have refused his request, for, reconsideration, if the respond-
enthad not been motivated by reasons.other than those here, asserted;
On the other hand, Frick's prominence in No. 21376 was great. His_
influence over, the, employees and his official activities as vice president,
and member of the union bargaining committee stamp him as one, of its
most militant members. The respondent's recognition of his leader-
ship among the employees and in the union ,is demonstrated by,the
fact that Hoffman ,sought Frick's opinion concerning the formation'
of •a company union in lieu of the affiliated union. then active at the
plant., Frick's insistence upon the continuation of No. 2,1376 and his,
efforts to foster its growth rendered him a logical person.for-discharge
by the respondent, in furtherance of its anti-union policy.
Moreover, the circumstances, surrounding Johnson's statement to
,Hoffman concerning Frick's union activity are suggestive of the real
cause of Frick's discharge. ' Hoffman's elicitation from Johnson of the
fact that Frick first interested him in the Union and Hoffman's action.
in subsequently causing the statement to be reduced to writing and
signed by-Johnson, indicate that Hoffman was concerned about Frick's
11 Matter of The Kelly-Springfield Tire Company and United Rubber Workers of Ainerica; Local 'No 1281
and James M Reed and Minnie Rank, 6 N. L ,R B. 325.
.SOUTHERN COTTON OIL COMPANY, 187
union activities. The significance,of these facts lies not in the circum-
stance that Hoffman was then apprised of Frick's union activity, which
he already well knew,. but, that contemporaneously with Frick's, dis-
charge Hoffman attributed importance to such activity by Frick.
Upon'the entire record we find, as did the Trial Examiner, that the
respondent discharged Frick,because of his membership' and activity
in No. 21376, and that the respondent thereby discriminated in regard
to his hire and tenure of employment, discouraged-membership-in No.
2137 ,6 and in its successor, the Amalgamated, and'interfered,with, ^re-
'strained•, and coerced, its employees in the exercise of the rights guar-
anteed in Section 7,of .the Act.
3. Brooks Jones
Brooks Jones was hired in 1935 as a laborer at 2232 cents an hour.
On December, 16, 1937, as the result of a general increase his wages
were increased to 30 cents an hour. 'Jones was a member of No. 21376
and is a charter member of its successor, the Amalgamated. ' In the
latter'part'of November or'first• part'of December 1938, Jones won'a
two' dollar p'rize' given by Wilson W. Rowland, Almagamated repre-
sentative, for brii ging'the largest delegation of the respondent's em-
ployees 'to an Amalgamated, meeting. This' incident was generally
known at the plant. Shortly'thereafte'r'on December'8, 1938, Jones
was'k id off by'Foreman Fritz.' After his lay-off, when Jones unsuc-
cessfully applied for work a 'the plant, he saw an employee who had
not been working 't the time of Jones"lay-off doing work similar to'
that which he had 'done. ` '
Jones testified without'contr'adiction that shortly after'he'wori the
prize for bringing employees to the meeting, Foreman B. A., Jones
told him, "You are going keep on running up there [to the Amalga-
mated] 'until the boss is'going to find it out and fire` you"'; that Fore-
man Fritz, after inquiring as to Jones' attehdance•at union meetings,
stated, "`You are going to keep on running up there to those God Damn
butchers '[Amalgamated] there until you' will be out of a job"; and
tlia,t several days before Jones was, laid off Foreman Fritz said to him,'
"Just keep on going up there [to union 'meetings] you just keep on
going up there-I done told you, once." We credit this testimony of
Jones. '
Foreman B. A. Jones, a witness subpoenaed by the'Board, testified
without contradiction that at the time when Brooks Jones was laid'dff
Foreman Fritz stated, "This is what the union gets you into-it would
be a cold day in June when he [Brooks Jones] gets back to. work
again." We accept this testimony of Foreman Jones as substantially
true.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contends that Jones was an irregular employee ,who
"was simply laid off and not called back to work" and that " there was
no special reason for discharging Brooks Jones nor is there any special
reason for putting him back to work." It is,clear from.the statements
of Foreman Fritz made at the time of Jones' separation,that the latter
was not laid off but was in fact discharged because - of, his union
activity. ' '
We find that respondent discharged Brooks Jones because of his
membership in and activity on behalf of No. 21376 and the Amalgam=
ated, and that it thereby discriminated in regard to his hire and
tenure of employment , discouraged membership ''in;the Amalgamated,
and interfered with , restrained , and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
4.' W.'H. Norwood ''
W. H. Norwood was employed by the respondent iii 1928 as a labora-
tory helper. Two years later he was made a stock clerk . 141936 Nor,-
wood was transferred, at his request to. the centrifugal department.
Norwood joined No. 21376 in November 1937 and served as its finan-
cial secretary . On July 21, 1938 ,, after having been given 2 weeks'
notice he was discharged when the position he held was abolished. No
one has been subsequently hired to fill this job.
The Trial Examiner in his Intermediate Report , found that , Norwood
was not discharged for union activity . We agree with this finding of
the Trial Examiner. Since no exceptions were filed to , this • finding of
the Trial Examiner, we shall not discuss further,, the dischargc of
Norwood, , but shall dismiss the complaint as to him.
IV. THE EFFECT OF THE UNFAIR 'LABOR PRACTICES UPON' COMMERCE"
We find that the activities of the respondent set forth in Section,I11
above, occurring ,in connection with the operations of the respondent
described in Section I above, have a close , intimate, and substantial
relation to trade, traffic , and commerce among the , several States; and
tend to lead to labor disputes , burdening and, obstructing commerce
and the free flow of commerce. , • 1-1
THE REMEDY`!"'
Having found that the respondent has engaged in certain-unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action•which.we deemmecessary to effectu-
ate the policies of the Act.
We have found that the respondent .discriminatorily discharged
Wyman Frick and Brooks Jones. Although the respondent does not
urge it as a reason for Frick's discharge it asserts that it has since
learned that prior to his discharge ,Frick had been soliciting orders
. SOUTHERN COTTON OIL COMPANY. 189
for coal, and lending, money among the employees during working
hours and in violation of company rules, and that he is therefore not
a desirable employee and should not be returned to work. Frick
admitted 'that he had, engaged in these activities but denied that it,
impaired; his,efficiency. Leonard L., Lingo, Hoffman's assistant, was
aware of the conduct of which the respondent complains, but failed to
report it to Hoffman or to warn Frick to desist therefrom. Even if
such practices were in violation of the company rules, which are not in
evidence or otherwise satisfactorily proven, we believe that Lingo con-
doned"their or'considered them inconsequential. In any event, it is
within 'the''resporident's power to' require Frick to cease from' such
practices: ' We see no'reason on this account for withholding our usual
remedy. We 'shall 'ol'der the respondent to offer Frick and Jones
immediate and full reinstatement to their former positions and to
make them whole for any loss of pay they have suffered by reason of
the respondent's discrimination against them by payment to each of
them of'a sum of moiiey'equal to the amount which he would normally
have earned'as'wages'from'the date'of the termination of his employ-
ment' to the date'of'the respondent'ss offer of reinstatement , less his
net earnings 12 during said period.
'Upon, the foregoing findings of 'fact and upon the entire- record in
the''case the Board-'makes the following:
CONCLUSIONS OF. LAW
1.' Amalgamated 'M'eat Cutters and Butcher Workmen of North
America is it lalior organization within"the meaning of Section 2 (5)
of the Act.
2'. Soutl rn'Cotton Oil Company'Erhployees Union, No. 21376, was
a labor organization within the meaning of Section 2 (5) of the Act.
!;'3. 'The'respondent, by'descriminating in regard to hire and tenure
of''diti loyment of Wyman Frick and Brooks Jones and thereby dis-
couraging membership in Amalgamated' Meat Cutters and Butcher
Wo'rkriienl.' of ''No•'rth' America and Southern Cotton Oil Company
Employees'Union;'No. 21376, has engaged in and is engaging in unfair
Tabor prac'tices' within the meaining'of'Section 8 (3) of the Act.
`4':'Th'` respondent, by''interfering with, restraining, and coercing
its emiiloyees'in'the' exercise of rights guaranteed in Section 7 of the
Act,' lias' enga&d in' and is engaging in unfair labor practices, within
this ni'cani'ng'of' Section 8' (1) of thcYAct.
ii 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 and United Brotherhood of Carpenters
and Joiners of America ; Lumter and Sawmill Workers , Local 2,590, 8 N. L. R . B 440 Monies received for
work performed upon Federal, State , county, municipal , of other work -relief projects are not considered
as earnings , but as provided below in the Order , shall be deducted from the sum due the employee and the
amount thereof shall he 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.
T90 DECISIONS OF'NATIONAL' LABOR RELATIONS BOARD
'5. The, aforesaid unfair labor practices ' are unfair labor practices
affecting commerce within the meaning ' of-Section 2r (6) and (7) of the
Act.
6. The respondent, by terminating the employment of W.' H•. Nor-
wood, L. V. Hall,'and T. L. Jarrett, has not engaged'in unfair labor
practices , within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to, Section ,10 (c),of the National Labor - Relations Act,
the. National Labor Relations Board hereby orders that Southern
Cotton Oil Company , Memphis, , Tennessee , and its officers , agents,
successors , and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in Amalgamated Meat Cutters and
Butcher , Workmen of North America, or any other labor ,organization
of its employees , by discharging or, refusing to reinstate any of its
employees or by discriminating in any other manner in regard to hire
or tenure of employment;
(b) In any other manner interfering with, restraining ,,or coercing
its employees in the exercise of their 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 ac-
tivities ,, for the purposes of collective bargaining or other , mutual aid
or protection , as guaranteed in Section 7 of the National Labor, Rela-
tions Act. -
2. Take.the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Wyman Frick and Brooks Jones immediate and full
reinstatement to their positions without prejudice to their seniority
or,other rights . and privileges;,
,(b) Make , whole Wyman Frick and Brooks Jones for any loss of
pay they may have suffered by reason of the respondent's discrimina-
tion in regard,to their hire and tenure of employment by, payment to,
each of them of a sum of money equal to that which each would have
normally earned as wages during the,period from the date of such dis-,
crimination against him to, the date of the respondent's offer , of rein-
statement, less his net earnings "during said period; provided ;that the
respondent shall deduct from the amount otherwise due to each of the
aforesaid employees a sum equal to that received by him ' for work
performed upon Federal , State, county, municipal ', or other work -relief
projects during the period ` for,which the back'pay is due him under,
the terms of this Order, and shall pay any such amount deducted to
13 See footnote 12, supra.
SOUTHERN COTTON OIL COMPANY 191
the appropriate 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 in conspicuous places in its plant at Memphis,
Tennessee, and maintain for a period of.at least sixty, (60) consecutive
days, notices to its employees, stating: (1) ,that the respondent will not
engage in conduct from which it is ordered to cease and desist in para-
graphs 1 (a) and (b) 'of this Order'; (2) that 'the,respondent will take
-the affirmative action set forth in paragraphs 2 (a) and (b) of this
Order; and (3) that the respondent's employees are,free to become or
remain members of Amalgamated Meat Cutters and Butcher, Work-
men of North America, and the, respondent, will not discriminate
against any' employee because of 'membership' 'or 'activity' in that
organization;
(d) Notify the Regional, Director for the Tenth Region in writing
within ten, (10) days, from the date of, this, Order, what . steps the
respondent has taken to comply herewith. : , , • , ' ' , ,
AND IT IS FURTHER ORDERED that the complamt.be, and,it hereby is,
dismissed in so far ;as it alleges that, the respondent has engaged in
unfair labor practices within- the meaning of Section 8 (3) of the
Act by discharging W. H. Norwood, L. V. Hall, and T. L. Jarrett.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Order.
I