Tex-O-Kan Flour Mills Co.

National Labor Relations Board - Board Decisions

Aug 19, 1940

26 N.L.R.B. 765 (N.L.R.B. 1940)

In the Matter of TEx-O-KAN FLOUR MILLS COMPANY (MORTEN
MILLING COMPANY BRANCH) and NATIONAL COUNCIL OF GRAIN
PROCESSORS
In the Matter of TEX-O-IRAN FLOUR MILLS COMPANY (BURRUS
MILL AND ELEVATOR COMPANY BRANCH) and NATIONAL COUNCIL
OF GRAIN PROCESSORS
Cases Nos. C-1483 and C-1484.-Decided August 19, 1940
Jurisdiction : flour milling industry.
Unfair Labor Practices
In General: application of doctrine of respondeat superior to acts of supervisory
employees with and without authority to hire or discharge.
Interference, Restraint, and Coercion: anti-union statements; dissuading employees
from joining or remaining members of the Union; threat to close plant unless
union activity ceased; threats of interference with conditions of employment;
assistance in circulating withdrawal petitions; circulation of "loyalty" petitions;
conducting an election despite protests of its employees; attempt to deal with
employees individually rather than through union organization; suggestion that
employees could have their own organization without outside representation;
interrogation concerning union membership.
Discrimination: discharges, lay-offs, and refusal to reinstate one employee for
union membership and activities; discharge of one employee because of his
suspected activities on behalf of the union, charges of alleged discriminatory
discharges, dismissed as to six employees.
Remedial Orders : reinstatement and back pay awarded; back pay not awarded
from date of Intermediate Report to date of Order as to certain employees.
Practice and Procedure :- complaint dismissed as to employee, alleged to have
been discriminatorily laid off, who failed to appear to testify.
Mr. L. N. D. Wells, Jr., for the Board.
Mr. George 0. Wilson, of Dallas, Tex., for the respondent.
Mr. Earl Dietz, of Oklahoma City, Okla., and Mr. Jack Carter, of
Fort Worth, Tex., for the Union.
Mr. Allan Lind, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon separate charges and separate amended charges duly filed by
the National Council of Grain Processors (A. F. of L.), herein called
26 N. L. R. B., No. 83.
765
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union,' the National Labor Relations Board, herein called the
Board, by the Regional Director for the Sixteenth Region (Fort
Worth, Texas), issued its complaint dated August 3, 1939, against
Tex-O-Kan Flour Mills Company, Dallas, Texas, 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 accompanying notices of hearing were
duly served upon the Union and the respondent. On August 8 and
September 16, 1939, the Regional Director, acting as agent for the
Board, issued separate amendments to the complaint. Copies of
such amendments and an amended notice of hearing were served upon
the parties.
Concerning the unfair labor practices, the complaint, as amended,
alleged in substance: (1) that the respondent, on or about November
1, 1938, called a meeting of its employees at the-Morten mill and urged
them to -bargain individually with the respondent; (2) that the
respondent, between December 1, 1938, and the date of issuance of
the complaint, urged, persuaded, and warned many of its employees
at the Morten mill to refrain from becoming or remaining members
of Local No. 21818 and threatened to close said Morten mill if the
employees retained their union membership; (3) that the respondent
caused anti-union petitions to be circulated among the employees at
the Morten mill on company property and time; (4) that the respond-
ent at the same mill on divers dates from November 7,, 1938, to
June 12, 1939, discriminatorily discharged and refused to reinstate 15
named persons 3 because of their membership in Local No. 21818;
(5) that the respondent, between November 15, 1938, and the date of
the issuance of the complaint, urged, persuaded, and warned many of
its employees at the Burrus mill to refrain from becoming or remaining
members of Local No. 21827 and threatened said employees with
discharge and discrimination for joining or remaining members. of
said organization; (6) that the respondent, on or about December 15,
i Subsequent to the filing of the charges , the title "National Council of Grain Processors" was changed to
"National Council of American Federation of Grain Processors."
2 The separate charges and amended charges involved two mills of the respondent One of the mills,
located in Dallas , Texas, is known as the "Morten Milling Company Branch," herein called the Morten
mill, the other, located in Saginaw , Texas, is known as the "Burrus Mill and Ele% ator Company Branch,"
herein called the Burrus mill. Charges involving the Morten branch were filed by the Union on behalf of its
local, Flour, Feed Mill and Cereal Workers' Union No. 21818, herein called Local No. 21818. Charges in-
volving the Burrus branch of the respondent were filed by the Union on behalf of Flour, Feed Mill and
Elevator Workers' Union No. 21827, herein called Local No. 21827. On May 12, 1939, the Board , acting
pursuant to Article II, Section 37 (b), of the National Labor Relations Board Rules and Regulations-
Series 1, as amended, ordered that the cases be consolidated for the purposes of hearing and for all other
purposes.
8 John Marple, O. H. Kirby, E C Carey, F L Fielding , J. C. Penny, Roy Frank, H. P Baker, Loys
McMurray, Ed Starr, Jim Arnold, Billie Hansell, Robert Stewart , M. L. Brittian, Jimmy Ervin, and
Samuel Vodnick.
TEX-O-KAN FLOUR MILLS COMPANY 767
1938, and thereafter, caused anti-union petitions and petitions of
withdrawal from the Union to be circulated among its employees at
the Burrus mill; (7) that the respondent at its Burrus mill, on or about
December 24, 1938, called a meeting of its employees and urged them
to bargain individually with the respondent; (8) that the respondent
on divers dates from November 13, 1938, to August 9, 1939, dis-
charged and refused to reinstate 19 named persons, 'employed at its
Burrus mill, because of their membership in Local No. 21827.4 On
August 15, 1939, the respondent filed its answer to the complaint in
which it admitted certain allegations of the complaint, denied the
alleged unfair labor practices, and set up certain matters of affirmative
defense.
Pursuant to notice, a hearing was held from September 18 to Sep-
tember 28, 1939, before Mapes Davidson, the Trial Examiner duly
designated by the Board. The Board, the respondent, and the Union
were represented by counsel; 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. During the hearing counsel for the Board moved to amend
the complaint by adding the name of L. M. 'Mitchell to the list of
persons alleged to have been discriminatorily discharged from the
respondent's Burrus mill. The Trial Examiner granted the motion.
Numerous other motions and objections to the admission of evidence
were made and ruled upon by the Trial Examiner at the hearing or
were reserved and ruled upon by the Trial Examiner in his Intermediate
Report. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On January 29, 1940, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties. Therein
he found 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 Act. He
recommended that the respondent cease and desist from the unfair
labor practices so found and that it take affirmative action of a reme-
dial nature, including the reinstatement with back pay of John
Marple, 0. H. Kirby, Loys McMurray, F. L. Fielding, Jim Arnold,
and Billie Hansell. The Trial Examiner recommended, further, that
the complaint be dismissed as to 29 individuals 'whose employment
was terminated by the respondent, he found, for reasons other than
their union membership and activity. Exceptions to the Intermediate
4 Claude Henson, C. 0. Stewart, V. L. Newland, R. H. Tomlin, Jack Burns, H. P. Chisum, H. E.
Smith, Emory Kreidel, R. M. (Manley) Davis, C. M Hardgrove, H. L Hampton, J. H. Atchison, F. M.
Maddux, C C. Wilson, G. W. Smith, J. C. Carroll. C. W. Fidler, Herbert Cowsert, and John Crouch.
The names of several of the above individuals were misspelled in the complaint , as amended.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report were thereafter filed by the respondent and by the Union.
The Union also filed a brief in support of its exceptions.
Pursuant to notice duly served upon the parties, a hearing was held
before the Board at Washington, D. C., on May 28, 1940, for the
purpose of oral argument. The respondent and the Union were
represented by counsel and participated in the argument.
The Board has considered the exceptions filed by the respondent
and the Union and finds them to have merit only in so far as they are
consistent with the findings of fact, conclusions of law, and order set
forth below.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Tex-O-Kan Flour Mills, is a Delaware corporation
authorized to do business in the State of Texas. It operates, among
other enterprises, flour and feed mills in Dallas and Saginaw, Texas.
Prior to 1937 the Morten Milling Company owned the respondent's
mill in Dallas, and the Burrus Mill and Elevator Company operated
the respondent's mill i1I Saginaw. In 1937 these latter corporations
were dissolved and merged with the respondent.
During the fiscal year which ended May 31, 1938, the respondent
processed about 3,395,232 bushels of wheat and other grains in its
Morten mill. The value thereof was approximately $2,985,060.85.
About 20 per cent of the aforesaid grain was shipped into Texas from
points outside of that State. The finished product of the Morten
mill includes flour and feed. During the fiscal year which ended
May 31, 1938, the respondent manufactured at its Morten mill about
561,579 barrels of these products, having a dollar value of approxi-
mately $3,970,569.15. Approximately 30.75 per cent of the afore-
said products were shipped to destinations outside of Texas.
During the fiscal year which ended May 31, 1938, the respondent
processed at its Burrus mill about 3,289,087 bushels of wheat and other
grains, having a dollar value of approximately $3,925,710.50. About
20 per cent of this grain was shipped into Texas from points outside
of that State. The finished product of the Burrus mill includes flour
and feed. During the aforesaid fiscal year, the respondent manu-
factured at its Burrus mill about 715,019 barrels of these products
with a value of approximately $5,711,722.46. Approximately 40.8
pei cent of these products were shipped to destinations outside Texas.
II. THE LABOR ORGANIZATIONS INVOLVED
The National Council of American Federation of Grain Processors,
affiliated with the American Federation of Labor, is a labor organi-
zation exercising jurisdiction over a large number of local labor
organizations, including Locals No. 21818 and No. 21827.
TEX-O-RAN FLOUR MILLS COMPANY" 769
Flour, Feed Mill and Cereal Workers' Union No. 21818 is a labor
organization affiliated with the American Federation of Labor and the
National Council of the American Federation of Grain Processors.
It admits to membership employees of the respondent at its Morten
mill.
Flour, Feed Mill and Elevator Workers' Union No. 21827 is a labor
organization affiliated with the American Federation of Labor and the
National Council of the American Federation of Grain Processors. It
admits to membership employees of the respondent at its Burrus mill.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion at the iViorten mill
During the latter part of October 1938 the respondent ordered a
general wage cut affecting all of its employees in the Morten mill.
This wage cut precipitated the formation of Local No. 21818 among the
employees. On October 30, 1938, a meeting of the employees was
held at Reverchon Park at Dallas, Texas. At this meeting 21 em-
ployees of the Morten mill attended and decided to form a local of the
Union. In conformance with this decision a set of temporary officers
was elected, and it was decided to secure a charter from the American
Federation of Labor. Shortly thereafter a charter was granted to the
Union, and it became Local No. 21818.
Following the first meeting of the employees, the respondent's
supervisory officers began a concerted campaign to dissuade the em-
ployees from joining or remaining members of the Union. The record
is replete with evidence of such activities. The following instances
are but examples of the respondent's activities in this respect.
Ed Starr, an employee, testified that on or about October 30, 1938,
Lee Thompson, the respondent's chief engineer at the Morten mill
and a supervisory employee, asked him whether or not he had joined
the Union. Starr replied that he had not as yet, but that he intended
to. According to the testimony of Starr, Thompson then advised
him not to become a member of the Union, stating that it would merely
get the employees into a great deal of trouble. The testimony of
Starr was not refuted by the respondent.
On or about November 2, 1938, the employees at the Morten mill
were called to a general meeting by the respondent's officers. Blaine
Thompson, general manager of the Morten mill, and W: H. Chambliss,
the superintendent of the Morten mill, presided at the meeting.
According to the testimony of John Marple and E. C. Carey, employees
of the respondent, Thompson announced a general wage increase,
stating that he was glad to take such action and expressing satisfaction
that the respondent and its employees could settle their differences
without the help of an "outside organization." According to the two
employees, Thompson also invited the employees as individuals to
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss problems with him at any time. Called as a witness for the
respondent, Thompson denied the testimony of Marple and Carey
and stated that he had no knowledge of the Union when the above-
mentioned meeting was held in the Morten mi11. The Trial Examiner,
who observed the witnesses, did not credit Thompson's denial.
Superintendent Chambliss did not testify. We find, as did the
Trial Examiner, that the incident occurred as described in the testi-
mony of Marple and Carey recited above.
O. B. Yandell, an employee, testified that on or about November
9, 1938, Carl Lynch, a second miller and a supervisory employee,
told him that if the Union presented a contract, the respondent would
shut down its plant. He further stated, according to Yandell, that
the respondent would never sign a contract with the Union. H. P.
Baker testified that on or about November 11, 1938, Lynch asked
him whether or not he had joined the Union and advised him, "If
I was you I would just let the damned union go; all it does is cause
strikes and causes us all to be out of jobs." Lynch, a witness for
the respondent, did not deny the testimony of Baker and Yandell.
We find that the conversations took place as set forth above.
Yandell testified that on or about November 14, 1938, Lee Thomp-
son, the chief engineer in the respondent's Morten mill, warned him
that if the employees continued their union activities, the mill would
be closed and they would be laid off. This was not denied by any
witness in behalf of the respondent.
Between December 5 and 15, 1938, Frank Van Cleve, a shipping
clerk in the respondent's mill, circulated a petition among the mill
employees on which the signers signified their intention to resign from
the Union. The circulation of this petition during working hours was
overtly aided and abetted by various supervisory officers. For ex-
ample, on or about December 23, 1938, one Smith, an elevator fore-
man in the Morten mill, told two employees who were wearing their
union buttons, M. L. Brittian and John Binson, "Boys you just as
well pull them pins off, everybody in the mill was signing that petition
and the company said they would spend $100,000 to break this up,
and I'd advise you to sign." 5 When Binson agreed to sign the
document, Smith left the place where the two employees were working
and disappeared inside the mill. Within a few moments Van Cleve
appeared with the petition and asked the two employees if they
were ready to sign it. Binson signed the document, while Brittian
refused to sign it.
On or about December 15, 1938, according to the testimony of
Starr, Lee Thompson, chief engineer, again attempted to persuade
him to resign from the Union. Specifically, Thompson told Starr,
"I think you boys ought to pull the buttons off and get out of here.
3 Smith did not testify at the hearing.
TEX-O-KAN FLOUR MILLS COMPANY 771
It ain't going to get you anywhere. It will get your job, and they can
always find an excuse to fire you for it." The testimony of Starr was
not denied by the respondent:
On or about December 16 , 1938, John Coleman, a union member in
the Morten mill, was ordered to leave his job and take the place of
R. E. Stewart , a feed packer who had just been laid off . Coleman
protested the change to Chambliss on the ground that his new task was
harder work . He also asked Chambliss how long he would be obliged
to remain in Stewart's position . Chambliss replied, according to
testimony of Coleman, that he did not know because the respondent
had.just begun the fight. He further stated, according to Coleman,
"How do you think we feel everytime we see one of you fellows got one
of those buttons in our faces . . . If you boys are smart you will
come out of it as quickly as you can . I am not supposed to be talking
to you about it. If you ever say anything about what I am saying I
am going to say it is a he." Chambliss was not called as a witness to
refute the testimony of Coleman.
On or about December 29 , 1938, Fate Moore , au ordinary employee,
circulated a petition which was addressed to the respondent's general
manager and which read as follows:
We the undersigned are taking this means to inform you that
we have been, and are now well pleased with our working condi-
tions at the Morten mill. We have in the past and feel that we
can in the future deal without the help and cost of some outside
organization . Trusting our action meets with your approval, we
are your loyal employees.
This petition was circulated in the mill during working hours. The
circulation of this petition , as in the case of the one previously men-
tioned, was aided by the acts of various supervisory employees of the
respondent. For example , on or about December 31 , 1938, according
to the testimony of James Robertson and R . E. Stewart , two em-
ployees, Joe Hudson , a second miller and a supervisory employee, told
them that they had better sign the petition. According to the testi-
mony of the two above-named employees, Hudsons aid "If you don't,
they are going to close the mill down Monday." Hudson did not
contradict their testimony . Dallas Earnest', an employee , testified
that Hudson came to him on or about December 31, 1938, with the
petition and told him , " Earnest you just as well get your name on this
and get all right; the company has set aside $65,000 to fight you
fellows with and it hasn ' t got a chance to win." Earnest requested
Hudson to ask Chambliss whether or not it would be all right to sign
the document. Hudson then went to see Chambliss and later returned
and told Earnest , " Earnest, the old man is mad as hell. He said be
was going to break this thing up and if he didn't break it up in a week
he is going to shut the mill down and fire every damned one of you,
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but he said he would have to go to jail but he didn't care, the company
had plenty of money and was behind him and he said if you will sign it
you will not get fired." Hudson, a witness for the respondent, did
not deny the testimony of Earnest, although he denied that he ever
told anyone that the respondent had set aside $65,000 to fight the
Union. The Trial Examiner, who observed the demeanor of the
witnesses, found in accordance with the testimony of Earnest. We
find that Hudson made the remarks attributed to him by Robertson,
Stewart, and Earnest substantially as recited above.
On or about January 5, 1939, according to the testimony of Yandell,
Lynch, the second miller, advised him that if he did not pull off his
union button he would be discharged. Yandell also testified that on
the afternoon of the same day Hudson asked him why he had not
signed the anti-union petition circulated by Moore. The testimony
of Yandell was not refuted by the respondent.
On December 31, 1938, Blaine Thompson, general manger, in the
presence of Chambliss, then superintendent, talked to James Robert-
son, an employee, while the latter was at work in the Morten mill,
saying, according to Robertson, that "he had a mind to close the plant
down, fire everybody and start over again." Thompson said further:
"If you want work, get to work. You don't have to belong to a Union
to work here, to get work." Another employee, R. E. Stewart, also
heard this conversation and corroborated the testimony of Robertson.
The respondent did not deny the testimony of the two employees.
On or about January 6, 1939, "Red" Hope, a second miller who
exercised supervisory powers, came to Earnest with the anti-union
petition and told him "Earnest, we have got to get this thing broke
up. Some of you just as well come sign it " Upon Hope's insistence
Earnest finally signed the petition. Hope did not testify.
On or about January 6, 1939, Loys McMurray, an employee, was
persuaded by Moore to sign the petition. The petition was then
located in the office of the respondent's shipping clerk. McMurray
went to the office to sign the petiition and upon his entry he was greeted
by Hudson, the second miller, who told him, "I'm glad to see you go
over on the right side." On this occasion Hudson removed the union
button which McMurray was wearing at the time. Later in the day
McMurray obtained another union button, which he wore in plain
sight. Sometime late in the evening of the same day Hudson observed
that McMurray was wearing a union button and asked him what he
meant by such action, saying, "I thought you had signed out of the
union." McMurray explained that he signed the petition merely
for the purpose of expressing his satisfaction with the working condi-
tions in the respondent's mill. Hudson then informed McMurray
that he would regret his decision. On the following day Chambliss,
the superintendent, observed that McMurray was wearing a union
TEX-O-KAN FLOUR MILLS COMPANY 773
button and expressed some surprise, stating that he understood that
McMurray had "signed out" of the Union. McMurray explained
that Chambliss was mistaken in the latter respect. Chambliss then
walked off saying, "Well, I can't tell you what to do but I can tell
you what is good for you." 6
On January 11, 1939, Lynch talked to Yandell. regarding the union
activities in the Morten mill. According to Yandell, Lynch said,
"Yandell, I am worried. I am afraid they are going to shut the mill
down." Yandell inquired as to the reason why the respondent would
want to close the mill. Lynch then said, according to Yandell,
"Anytime they present a union contract they are going to shut the
mill down." Yandell replied, "Mr. Burrus couldn't afford to shut the
mill down," but Lynch insisted, saying, "You will see, he will take
his money and walk out." Lynch then intimated to Yandell that
flour was being manufactured for the respondent in San Antonio in
order to break up the Union. Lynch did not deny the testimony of
Yandell set forth above.
Moore continued to circulate the "loyalty" petition during working
hours in the respondent's mill until on or about January 10, 1939.
During its circulation Moore warned various employees that unless
they signed the petition they would lose their jobs and that the
respondent would shut down its mill. Testifying for the respondent,
Moore insisted that he alone wrote the petition and that he acted on
his own initiative in circulating the same among the employees in the
Morten mill during the regular hours of work. In view of the fact
that Moore was overtly aided in his attempts to secure signatures
to the anti-union document by the various supervisory officers men-
tioned above, we find that the respondent was instrumental in the
circulation of the anti-union petition and that it was circulated for
the purpose of defeating 'the activities of the Union in the plant. In
this connection it is also significant to note that the petition besides
bearing the signatures of a number of employees was also signed by
Chambliss, superintendent; J. B. Warren, foreman; Lee Thompson,
chief engineer; Kinman, warehouse foreman; and Lynch and Hudson,
second millers. The signature of Superintendent Chambliss was
written boldly at the top of the right band column of names.
The petition was presented to the respondent on or about January
10, 1939. On January 14 the respondent acknowledged receipt of
the petition by sending a letter to the individual signers thereof
expressing its appreciation for the expression of confidence in the
management and indicating to the employees that it was for them to
decide whether or not they wished to deal directly with the company.
On February 21, 1939, the respondent continued its efforts to
As noted above, Chambliss did not testify Hudson, although appearing as a witness for the respondent,
did not refute the testimony of McMurray.
323429-42-vol. 26-50
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thwart the Union's growth. According to the testimony of 0. B.
Yandell, Paul Fisher, who had succeeded Chambliss as superintendent
on February 13 of the same year, called a meeting of the employees
in the respondent' s warehouse . Thompson, the general manager, who
was also present , announced that the purpose of the meeting was to
conduct an election for the purpose of determining whether or not
the Union had a majority of the employees as members. Yandell
testified that he protested against the forced election because the
Union had received no notice thereof. Despite this protest Thompson
proceeded to conduct the election. The balloting resulted in 31 votes
for the Union, and 21 against it. Thompson then informed the
employees that he was ready to negotiate with the Union. The
record is devoid of any showing of bargaining negotiations between
the U4iion and the respondent.
We find that the respondent, by conducting the above-mentioned
election, despite the protest of its employees, interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act.7
The respondent contends that the anti-union statements of the
various supervisory employees mentioned above did not result in the
commission of unfair labor practices by it because such employees
either did not have the power to hire or discharge employees, or acted
outside the scope of their authority and without the express permis-
sion of the respondent. In this connection it is pertinent to note
that Chambliss, as superintendent of the Morten mill, and Fisher,
who replaced him on February 13, 1939, as well as Thompson, the
general manager of both of the respondent' s mills, were in positions
of authority so as to directly represent the respondent in its dealings
with its employees. We, therefore, find that the statements attributed
to them represent the policy of the respondent." As to the various
other supervisory employees mentioned above, it appears that the
second millers were in control of production on the various floors of
which they were in charge, and that during the absence of the super-
7 The Board has previously held that it is an unfair labor practice for an employer to conduct an election
among its employees . See Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of
the District Council Office Equipment Workers, 2 N. L R. B. 626, enf 'd National Labor Relations Board v
Remington Rand, Inc , 94 F. (2d) 862 (C. C. A 2), cert. denied 304 U. S. 576, platter of Eagle Manufacturing
Company and Steel Workers Organizing Committee, 6 N L. R. B 492, enf'd National Labor Relations Board
v. Eagle Manufacturing Company, 99 F (2d) 930 (C. C A. 4); Matter of McNeely & Price Company and
National Leather Workers Association , Local No . 30 of the C. I. 0 , 6 N. L. R B 800, enf'd as mod , National
Labor Relations Board v McNeely & Price Company , 106 F (2d) 878 (C. C A. 3).
8 The assertion that the supervisors or company officials who were the actors in the events described above
lacked direct authorization from the respondent to engage in such conduct is irrelevant , since it is well
settled that the principle respondent superior is applicable in proceedings under the Act. See Sunshine
Mining Co v . National Labor Relations Board , 110 F (2d) 780 (C C. A 9), National Labor Relations Board v.
American Manufacturing Co , 106 F. (2d) 61, 67 (C. C. A 2); National Labor Relations Board v. A. S. Abell
Co., 97 F. (2d) 951, 956 (C. C. A 4), National Labor Relations Board v. Virginia Ferry Cc , 101 F. (2d) 103,
106 (C . C A 4), National Labor Relations Board v Planters Mfg Co , 105 F. (2d) 750, 754 (C. C A 4), No-
tional Labor Relations Board v. Goshen Rubber Co ., 110 F . (2d) 432 (C C A 7), Swift & Co. v. National Labor
Relations Board, 106 F. (2d) 87, 93 (C. C. A 10).
TFDX-O-KAN FLOUR MILLS COMPANY 775
intendent of the plant, they were in charge of production. It is also
clear that they issued instructions to the various employees and saw
to it that the orders of the respondent were carried out. The record
also reveals that the employees considered the second millers as super-
visory employees. While such employees did not have the power to
hire and discharge, their recommendations in these matters were
usually considered by the respondent. Under such circumstances
we find that the second millers were supervisory employees, and as
such their statements represented the policy of the respondent.'
We find that the respondent, by various anti-union statements of its
supervisory employees, by the circulation of anti-union petitions,
and by the various other acts outlined above, has interfered with, re-
strained and coerced its employees in the exercise of the rights guar-
anteed to them in Section 7 of the Act.
B. The discharges at the Morten mill
John Marple and 0. H. Kirby. Marple began working for the
respondent sometime in March 1937 and remained in the employ of
the respondent until he was discharged on November 7, 1938. He
was employed as a feed packer. Kirby commenced working for the
respondent on October 20, 1937, and continued to work as a flour
packer until he was also discharged on November 7, 1938. It is clear
from the record that both employees were considered competent by the
respondent. Following a general wage cut in October 1938, Marple
became a leader in the formation of Local No. 21818. He was instru-
mental in arranging for the first meeting of the Union and at the
meeting was elected president thereof. Kirby was elected financial
secretary of the Union at the first meeting in October and was also
active in the formation of the Union.
On or about November 3, 1938, Jasper Meek, chief clerk and
assistant manager of the Morten mill, informed Marple, "If you
don't get out of this thing and get on the other side or show the
manager that you are a company man you are going to lose your job."
Marple inquired whether this meant that he should withdraw from
the Union. Meek replied in the affirmative.10
On November 4 Marple was at work when Carl Lynch, a second
miller, approached him and said, "Boy, what is the matter with you?
I thought you were a better friend to me than this." Marple asked
what Lynch meant and the latter replied, "Getting in this damn union
here and trying to make us all lose our jobs." Marple expressed
i See Matter of T W. I-Iepler and International Ladies' Garment Workers Ln,on , 7 N L. R. B. 255 , Matter
of M. Lowenstein & Sons, Inc , and Bookkeepers ', Stenogi aphers ', and Accountants ' Union Local No 16, etc ,
6 N L. R. B 216, Matter of The Serrick Corporation and International Union, United Automobile Workers of
America, Local No 459, enf 'd in International Association of Machinists v. National Labor Relations Board,
110 F (2d) 29 (C. A. D. C.) petition for cert granted 311 U. S. 72
ii Meek did not testify at the hearing
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confidence that the respondent "will carry on with us all right," to
which Lynch replied, "They won't do it. You will all get fired."
Marple then declared that he would remain with the Union even if he
were discharged. Before the conversation terminated Lynch said,
"I am going to come to your house and try to beat a little sense into
your head tomorrow."
On November 5 Lynch visited Marple at his home. Kirby, then
temporary financial secretary of the Union, was also present on this
occasion. During the course of the conversation, Lynch told the two
employees, "You boys are taking your own course. Here it is in the
middle of winter and close to Christmas. You are going to get us all
fired. If the company don't fire us, they will close the mill down and
we will be out of a job anyhow." Marple answered, "Well, I can't
back out. I started in this Union and I am going to stay in it. If
they are going to fire us they will probably do it anyhow." At this
point Lynch replied, "No, I will guarantee you don't lose your job if
you help break up the Union. The company is backing me in any-
thing I say or do. If you and Red Kirby will go to the mill with me,
Mr. Blaine Thompson or Mr. W. H. Chambliss, either one, will
guarantee they won't fire you if you help break up this Union."
Despite this persuasion, both Marple and Kirby refused to leave the
Union. Lynch did not deny having made any of the foregoing
statements.
On November 6, 1938, Marple presided over a meeting of the
Union. On the following day he reported to work as usual and was
informed by E. C. Carey, the head packer, that he had been instructed
by Chambliss to discharge him. Marple and Kirby, who was also
discharged by Carey, then went to find Chambliss and secure an
explanation for their discharge. The two men found Chambliss, who,
however, refused to give any explanation beyond a statement that
more employees would be discharged on the following day. After
Marple and Kirby had been discharged, Hudson, a second miller,
who had been with Chambliss when the two employees sought an
explanation for their discharge, went to the engine room and told
Yandell not to allow either of the two men to enter the mill. Yandell
inquired as to the meaning of this order and also inquired as to whether
Marple and Kirby had been discharged or merely laid off. Hudson
indicated that the two employees had been discharged. Thereupon,
Yandell inquired, "Well, do you think it is on account of the Union?"
Hudson replied in the affirmative. The respondent did not refute
these facts.
The respondent contends that Marple and Kirby were not dis-
charged but merely laid off because of slack work. This contention is
not borne out by the record. To the contrary, the record shows that
TEX-O-IRAN FLOUR MILLS COMPANY 777
since the discharge of Marple and Kirby, the respondent has hired It
number of new employees." Marple testified that C. L. Masterson,
an employee, was transferred to the position which he held in the
mill, and that a new employee was hired to take over the duties of
Masterson. This testimony was not denied by the respondent. On
May 30, 1939, the respondent recalled Edgar Kennedy, a flour packer
who had been laid off prior to the discharge of Marple and Kirby.
We find that the respondent discharged John Marple and O. H.
Kirby because of their union membership and activities.
E. C. Carey began working for the respondent on July 13, 1931, and
was discharged on November 8, 1939, 1 day following the discharge of
Kirby and Marple. At the time of his discharge, he was employed as
head packer at the Morten mill. Carey testified that during his several
years of employment with the respondent, no dissatisfaction had
ever been expressed in regard to his work. This testimony was not
controverted by the respondent.
On November 3, 1938, Lee Thompson, chief engineer, asked Carey
whether or not he intended to join the Union. Carey replied by saying
that be might join the Union and also told Thompson that he knew of
no reason why anyone should object to employees organizing a union.
He expressed his belief to Thompson that since employers are allowed
to form such organizations as the Chamber of Commerce, and since
doctors and lawyers also organized into various associations, he saw
no reason why anybody should object to employees organizing into a
union. It also appears that some 6 or 7 weeks prior to his discharge,
a union organizer came into the mill and requested Carey's permis-
sion to go through the mill and talk to the employees. Carey informed
the organizer that he had no objection to his going through the mill.
At that time Chambliss was within 20 or 30 feet of where Carey was
11 The pay-roll records introduced by the respondents show that the following new employees have been
hired or recalled by the respondent:
Name Position Date hired
James L Rockins_________________ Laborer------------------------------- February 21, 1939.
C R Helmuth____________________ Sweeper, roll tender------------------- March 8, 1939
R M Donaldson_________________ Oiler ---------------------------------- March 8,1939
J L. Raines_______________________ Sweeper, roll tender___________________ March 8,1939.
Darvm Shearon___________________ Sweeper------------------------------- March 15, 1939
Joe Willbanks_____________________ Spouter------------------------------- March 23, 1939
Willie Evans______________________ Laborer----------------------------- April 10, 1939
Arthur Willis_____________________ Sweeper, millwright helper------------ April 17, 1939
W Morney--------------------- Laborer ------------------------------- April 18, 1939.
E H Daniels_____________________ Laborer------------------------------- May 11, 1939
J W. Hodges---------------------- Sweeper------------------------------ May 15, 1939.
Mark Jones______________________ Bagman assistant --------------------- May 18, 1939
C L Masterson___________________ Laborer ------------------------------ May 26, 1939
William L Burk______________ Elevator helper_______________________ May 30, 1939
Edgar Kennedy___________________ Flour packer-------------------------- May 30, 1939.
Titus Washington_________________ Laborer ------------------------------ July 12, 1939
Johnnie De Vore__________________ Bagman assistant _____________________ August 1, 1939
James Randall____________________ Elevator helper_______________________ August 7, 1939
F. E McCarty-------------------- Sweeper-------- _________ September 9, 1939
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talking to the union organizer . Later in the day Chambliss came over
and asked Carey whether he knew that the person he had been talking
to was a union organizer . Carey replied that he had been "making
some inquiries" but that he did not know who he was. Chambliss
then said , " Well, he was a damn union organizer and I ran [him]
out of here."
On November 8, 1938, Chambliss informed Carey that he was to
be discharged . Carey testified that the discharge came as a shock to
him and that he inquired as to whether there was anything wrong
with his work. Chambliss replied that his work was perfectly all right,
but that the Company had decided to abolish his job in order to take
care of the raise in wages granted the other employees . Carey then
inquired as to whether it was possible for him to be transferred to
some other kind of a job and stated that he was capable of holding
practically any position in the mill . Carey called Chambliss' atten-
tion to the fact that he had seniority over other employees in the mill
who were still working and pointed out that the respondent had em-
ployed new men within the 3-month period preceding his discharge.
Despite these protestations on the part of Carey, his employment was
terminated . Carey then informed Chambliss that he was going to the
office in regard to the matter . Chambliss advised him that there was
no need of Carey's going to the office because he was "taking care of
the situation ." When Carey insisted , Chambliss said , " Well, if you
insist I rather you wait a few days until this blows over. There is a
telegram up there from the union where O. H. Kirby and John Marple
has filed charges against the Company for discharging them . . . '"
The respondent contends that Carey was discharged because his job
as head packer was abolished . It claims that no one has been hired
to replace Carey as head packer. However, Fisher 's testimony reveals
that one Perkins, another employee, has taken over the duties of Carey.
There is no showing as to why Carey should have been discharged
rather than Perkins. The respondent contends that the salary paid
to Carey was an unnecessary expense. However, in view of Carey's
offer to take a lesser position , which offer was rejected by the respon-
dent, and in view of the fact that the respondent subsequently hired
new employees whose positions Carey could have filled,12 we are of the
opinion that the respondent 's contention in this respect is -without
merit. Our conclusion in this respect is strengthened by the fact that
prior to the discharges in the present case, the respondent generally
followed a policy of seniority in laying off its employees . Carey tes-
tified that during the years of his employment as head packer he had
received instructions from his superintendent to lay off extra men and
to divide the work equally among the regular men when work was
slack. The testimony of Carey in this respect remains undisputed on
12 See footnote 11, supra.
TEX-O-KAN FLOUR MILLS COMPANY 779
the record. It is clear that this policy was not followed in the present
instance, for Carey, who had 7 years' seniority, was discharged whereas
employees who had been with the respondent for no longer than 3
months were retained.
The Trial Examiner found that Carey was not discriminatorily dis-
charged. He based his finding upon the ground that there was no
evidence to show that the respondent knew Carey belonged to the
Union at the time of his discharge. As a matter of fact Carey did not
join the Union until November 13, 1938. However, from the evidence
set forth above, which was not denied by the respondent, it is clear
that Thompson was aware of Carey's intent to join the Union and his
belief in the right of employees to organize into unions. It is also clear
that Chambhss, the superintendent, associated the presence of a
"damn union organizer" in the plant with Carey. In view of the cir-
cumstances surrounding the discharge of Carey, as set forth above,
the fact that both Thompson and Chambliss were aware of Carey's
union leanings; the fact that Chambliss told Marple and Kirby at the
time they were discharged that more discharges were to follow on the
next day; and in view of the strong anti-union attitude displayed by
the respondent upon the inception of the Union, we find that Carey
was discharged because of his suspected activities on behalf of
the Union.
F. L. Fielding, a member of the Union, began to work for the
respondent on January 5, 1937. During his employment he worked
in various capacities, such as feed packer, painter, sweeper, and flour
hauler. On November 1, 1938, he was transferred from the position
of sweeper to the position of feed packer. This transfer was made for
the purpose of relieving Fielding's brother who had gone on vacation
on November 1. Upon the return of Fielding's brother on November
15, 1938, Fielding asked Chambliss whether or not he was to return to
his old sweeping job. Chambliss informed Fielding that since there
was no more work for him to do he would have to lay him off. Field-
ing testified that on the night of November 15, 1938, he was injured
in an accident at his home and remained under medical care until on
or about December 18, 1938. Shortly thereafter he sought reinstate-
ment at the Morten mill, but was not given employment.
The Trial Examiner found that Fielding was not discriminatorily
discharged on November 15, 1938, on the ground that there was no
showing that the respondent knew he was a member of the Union at
that time. Upon a review of the evidence we are in agreement with
the Trial Examiner in this respect. However, on or about November
13, 1938, a petition requesting the respondent to reinstate Marple,
Kirby, and Carey was signed by Fielding as well as by a number of
other union members. This petition was presented to the respondent
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on November 28, 1938. The Trial Examiner concluded that there-
after the respondent was aware of Fielding 's union affiliation. We
are in agreement with the conclusion of the Trial Examiner.
The respondent contended at the hearing that it had no need of
Fielding's services and that it would call him back if a need arose for
the work that lie could handle. The record shows that beginning on
March 8 the respondent hired four new sweepers-Raines on March
8, Shearon on March 15, Hodges on May 15, and McCarty on Sep-
tember 9, 1939 . The respondent offered no reason for hiring new
sweepers rather than recalling Fielding , an employee who had experi-
ence in this type of work . In view of the above circumstances and
taking into consideration the numerous acts of interference, coer-
cion, and restraint committed by the respondent, the Trial Examiner
found that the respondent discriminatorily refused to reinstate
Fielding on and after March 8, 1939 . Upon a review of the entire
record, we are in agreement with the Trial Examiner in this respect.
We find that the respondent discriminatorily refused employment
to Fielding on and after March 8, 1939, because of his union member-
ship and activity.
J. C. Penny, a member of the Union, had been employed by the
respondent as a watchman for approximately 6 months prior to his
discharge on December 28, 1938. Thompson, the general manager,
testified that he was instrumental in obtaining the watchman's posi-
tion for Penny because of his personal friendship with Penny.
Thompson further testified that Chambliss, the superintendent,
-complained of Penny's services almost from the inception of his
employment . In order to alleviate these complaints , Thompson
testified , he transferred Penny from the position of night watchman
to that of day watchman. However, upon being informed by the
respondent 's accountant that the position of day watchman was
unnecessary Thompson dispensed with Penny's services. No one
has been hired to replace Penny as day watchman.
The Trial Examiner found that Penny was not discriminatorily
discharged. The Union excepted. Upon a review of the entire
record, we find that Penny was not discharged because of his union
membership or activity.
H. P. Baker began working for the respondent on November 10,
1936, as a sack cleaner. During his employment he held various
other positions , such as sweeper , meal packer , flour packer , assistant
engineer , and millwright helper. During his employment he re-
ceived several increases in pay and his wage rate varied from 37%
cents an hour at the beginning of his employment to 52%% cents an
hour at the termination of his employment.
Baker was one of the charter members of Local No. 21818, having
joined at its first meeting on or about October 30, 1938. On or about
TEX-O-KAN FLOUR MILLS COMPANY 781
November 11, 1938, Carl Lynch, Baker's immediate supervisor, asked
him if he had joined the Union and paid his $2 initiation fee. Baker
replied that he had not up to that time and that he did not know
when he would. Lynch then said, "If I was you I would just let the
damned Union go; all it does is cause strikes and cause us all to be
out of jobs." Before leaving, Lynch warned Baker to remember what
he had said. Several days later Baker began wearing his union button
while at work. On or about November 28, 1938, Lee Thompson, the
chief engineer, asked Baker whether he had joined the Union. Baker
refused to answer this question. Neither Thompson nor Lynch denied
the testimony of Baker set forth above. On or about December 28,
1938, Fate Moore brought the "loyalty" petition, referred to above,
to Baker and asked him if he had signed it. Moore told Baker that
it was for his own good to sign it and that signing the petition meant
it job to Baker. Nevertheless, Baker refused to sign the petition and
returned it to Moore.
As noted above, Baker started wearing his union button several
days after his conversation with Lynch on November 11, 1938. He
continued to wear his button until his employment was terminated
on February 8, 1939. On the day of the termination of his employ-
ment he was told by Chambliss that he was to be "let out." Baker
asked if he had done anything wrong and Chambliss replied, "No,
we don't need you any longer: we are going to discard your job."
Baker then reminded Chambliss that he was capable of holding a
number of jobs in the plant and that he had seniority over many
men holding other jobs. Baker testified at the hearing that he had
seniority over all the packers at the Morten mill except two.13 This
testimony was not denied. Nevertheless, the respondent terminated
his employment.
The respondent contends Baker was not discharged on February 8,
1939, but merely laid off because the respondent had discontinued the
manufacture of meal and, therefore, had no use for the services of
Baker. Blaine Thompson, the respondent's general manager, testi-
fied that Baker was let out on February 8, 1939, because the respondent
had discontinued meal packing at that time and because there was no
other work for Baker to do without putting him on a job that paid
less. Thompson further stated that this would be a bad policy be-
cause it made an employee unhappy. While it is perhaps true that
the respondent discontinued the manufacture of meal on or about
February 8, 1939,14 the respondent's reason for not retaining Baker
in some other position is without merit. It is clear that Baker had
13 At the time of Baker's discharge there were 10 flour packers and 5 feed packers in the employ of the
respondent.
14 Baker admitted that the respondent had discontinued meal packing prior to his discharge. The pay-
roll record of the respondent shows that no other meal packers, as distinguished from feed and flour packers,
were in the employ of the respondent after the termination of Baker's employment.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority over other packers who were retained and who were being
paid at the same rate as he was. Furthermore, in view of Baker's
request to be retained in some other position, the respondent's con-
tention that he would be unhappy in a lower paid position is fallacious.
It is clear that Baker would have preferred being employed in a lower
paid position than to being without employment.
We are convinced that Baker was laid off or discharged on February
8, 1939, because of his union affiliation and activity. The evidence
showing that Baker was one of the charter members of the Union;
that he had been questioned about his union affiliation by Lee Thomp-
son, a supervisory officer of the respondent; that Carl Lynch, his
immediate supervisor, had warned him not to join the Union; that he
had refused to sign the loyalty petition when requested to do so by
Moore; that Baker was capable of filling several positions in the mill
and that he had more seniority than a number of employees who were
retained when his employment was terminated; together with the
strong anti-union attitude displayed by the respondent, persuades
us, and we find, that Baker was discharged or laid off on February 8,
1939, because of his union affiliation and activity.
The complaint alleges, as we have found above, that Baker was
discriminatorily discharged on or about February 8, 1939. However,
the record reveals that Baker was later recalled on June 19, 1939, and
subsequently discharged on August 30, 1939. Since the facts of this
latter discharge were fully litigated, we shall proceed to determine
whether or not Baker was discriminatorily discharged on August 30,
1939.15
After charges had been filed with the Board alleging that Baker had
been discriminatorily discharged, he was called back to work on June
19, 1939, as a flour packer. In the interval he had earned but $12 in
private employment. On the day he returned to work he had a con-
versation with De Lyle Kinman, warehouse foreman, in which Kin-
man intimated that it would be best if he dropped his union affiliation
and that if he did he could "have a job at the Morten Milling Com-
pany for a long time." Baker replied that he was coming back to work
just as he had left it. Thereafter, Baker continued to wear his union
button while at work and to attend union meetings.
On August 30, 1939, Baker's employment was terminated. The
respondent contends that it was forced to dispense with Baker's
services on August 30, 1939, because of a reduction in force. Fisher,
the superintendent, testified that Baker had been laid off because he
was not a "first-class flour packer; he doesn't take care of his work
15 A motion to conform the pleadings to the proof was made and granted at the hearing . The Trial
Examiner considered the discharge of August 30, 1939, as part of Baker 's case. Full opportunity to cross-
examine Baker and to introduce evidence with respect to the discharge of August 30, 1939, was afforded the
respondent we conclude that the discharge of August 30, 1939, was fully litigated . We shall therefore
consider it. Cf . National Labor Relations Board v. Mackay Radio & Telegraph Co , 304 U. S. 333.
TEX-O-KAN FLOUR MILLS COMPANY 783
properly, and when I cut the force down he was the one let out." On
direct examination, Fisher also adverted to a mix-up on a car of flour
that "caused quite a bit of unloading" and asserted that the fault for
the mix-up lay with Baker. However, on cross-examination Fisher
conceded that he could not recall the particulars of the incident re-
ferred to above and admitted that be could not recall whether he had
mentioned the particular incident to Baker. Fisher also stated that
he had spoken to Baker about his inefficiency when he let him out.
However, when requested to be specific as to what be had told Baker,
Fisher was unable to clarify the matter. On the other hand, Baker
testified that, upon the date of his discharge, Fisher merely told him
his employment was terminated because of a reduction in force and
then offered to give him a recommendation. We credit Baker's
testimony. Indeed, Fisher's testimony is so evasive and incoherent as
to render it incredible. Proof of Fisher's unreliability in this matter
is brought out by the testimony of Blaine Thompson, the respondent's
general manager, who stated that he was familiar with all the respond-
ent's employees and that Baker "was a very good man." Thompson
further testified that Baker was an experienced packer and that the
respondent would take him back if his services were needed. This
testimony is in direct contradiction to that of Fisher, who stated that
Baker was not a "first class packer" and that he did not take care of
his work properly. Furthermore, Fisher testified that he would not
recall Baker except as a sweeper or in some other job in which "he
could produce." This conflict in the testimony of the respondent's
own witnesses casts serious doubt upon the contention of the re-
spondent.
With respect to the contention of the respondent that a reduction
in force caused by a slack in business necessitated the displacement of
Baker on August 30, 1939, the record shows that subsequent to his
discharge a number of the respondent's employees put in a great deal
of overtime work. Dallas Earnest, an employee, testified that on
September 5, 1939, the following employees worked overtime at the
mill: A. Banks, E. U. Hudnall, and F. E. Perkins, flour packers,
worked 8 hours overtime apiece; G. R. Helmuth, a roll tender, worked
8 hours overtime; Bruno Powell, a laborer, worked 7 hours overtime;
that on September 6 the following employees worked overtime at the
mill; Johnny De Vore and Mark Jones, bagmen assistants, worked
7 hours and 3 hours overtime, respectively; F. E. Perkins, flour packer,
worked 1 hour overtime; Fate Moore, a spouter, worked 4 hours over-
time; C. L. Masterson, a laborer, worked 1 hour overtime; that on
September 7 the following employees worked overtime at the mill:
F. E. Perkins, flour packer, worked 3 hours overtime; C. L. Masterson,
laborer, worked 3 hours overtime; that on September 8 the following
employees worked overtime at the mill: Mark Jones, bagman assist-
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ant, worked 432 hours overtime; R. L. Robertson, 18 truck driver,
worked 7% hours overtime; Bruno Powell, a laborer, worked 8 hours
overtime; L. D. Earnest, flour packer, worked 6 hours overtime; that
on September 9 the following employees worked overtime: Bruno
Powell, laborer, worked 2% hours overtime; F. E. Perkins, flour packer,
worked 10 hours overtime; Johnny De Vore and Mark Jones, bagmen
assistants, worked 4 hours overtime apiece; E. U. Hudnall, flour
packer, worked 3 hours overtime; that on September 11 the following
employees worked overtime at the mill: Wm. L. Burk," elevator
helper, worked 5 hours overtime; F. E. Perkins, flour packer, worked
2312 hours overtime; C. C. Forte," flour packer, worked 8 hours over-
time; E. U. Hudnall, flour packer, worked 1 hour overtime; that on
September 12 the following employees worked overtime in the mill:
F. E. Perkins, L. D. Earnest, and E. U. Hudnall, flour packers,
worked 8 hours overtime apiece; Mark Jones, bagman assistant,
worked 7 hours overtime; that on September 13 the following em-
ployees worked overtime at the mill: C. C. Forte, flour packer,
worked 12 hours overtime; A. Banks, flour packer, worked 8 hours
overtime; Wm. L. Burk, elevator helper, worked 8 hours overtime;
L. D. Earnest, flour packer, worked 4 hours overtime; that on Sep-
tember 14 the following employees worked overtime at the mill:
F. E. Perkins, flour packer, worked 8 hours overtime; Mark Jones,
bagman assistant, worked 8 hours overtime; that on September 16
the following employees worked overtime at the mill: F. E. Perkins,
flour packer, worked 1 hour overtime; A. Banks, flour packer, worked
8 hours overtime; C. C. Forte, flour packer, worked 8 hours overtime.
This testimony was not refuted by the respondent. In view of the
facts set forth above we cannot find on the basis of this record that a
slack in production necessitated the discharge of an employee.
Nevertheless, even if business conditions necessitated the discharge
of an employee, we are convinced by the record that this was not the
reason for Baker's selection for discharge.
The evidence showing that Baker was warned by Kinman, the
warehouse foreman, to drop his union affiliation upon returning to
work with the respondent; Baker's refusal to heed this advice and his
continuation of his union activities and membership; the incredibility
of Fisher's testimony in explaining the discharge of Baker; the fact
that Baker had more seniority than a number of employees who were
retained by the respondent;19 together with the strong anti-union
attitude of the respondent, persuades us, and we-find, that Baker was
discharged on August 30, 1939, because of his union activities and
membership.
16 Referred to in the record as R. L. Robinson.
17 Referred to in the record as L. E. Burk.
18 Referred to in the record as C. C. Ford.
10 See footnote 11, supra.
TEX-n-KAN FLOUR MILLS COMPANY 785
Loys McMurray started working for the respondent on July 30,
1937. At the time of his discharge on March 11, 1939, he was engaged
as a feed packer in the respondent's mill. McMurray was one of the
original members of the Union, having joined on October 30, 1938.
He signed the petition requesting the respondent to reinstate Marple,
Kirby, and Carey, and was one of three members of a committee that
presented this petition to the respondent's general manager. In
January 1939 McMurray refused several times to sign the. "loyalty"
petition circulated by Moore and Hudson. However, he finally put
his signature on the document after having been told by Moore that
if the employees failed to sign, the respondent would close the mill.
Upon this occasion Hudson removed a union button from McMurray's
cap, as hereinbefore set forth. Later on the same day, which was on
or about January 6, 1939, Hudson saw McMurray wearing another
union button and after having questioned him about it told him he
would be sorry for wearing it.
On the next day, Chambliss came to McMurray and, referring to
his union button, said, "Say, what are you doing with that button
on?" McMurray replied that he had been wearing it all the time
and expressed surprise that Chambliss had not noticed it before.
Chambliss then indicated that he had understood that McMurray
had "signed out" of the Union. McMurray replied that Chambliss
was under a misapprehension and that he intended to remain with
the Union unless somebody forced him to resign. Chambliss then
said, "Well, I can't tell you what to do but I can tell you what is good
for you." Chambliss then went away but returned within an hour
and accused McMurray of having incorrectly weighed a sack of flour.
Chambliss said, "By God, is that the way you weigh stuff here?"
McMurray retorted that the sack of flour was correctly weighed when
he last looked at it. "By God," continued Chambliss, "You can't
start saying that; you can see for yourself. I can't fire you for one
thing, but I can fire you for weighing something wrong. The Gov-
ernment will back me in that." There followed an extended contro-
versy, during the course of which Chambliss stated that he ought to
discharge McMurray for insubordination. Then Chambliss began
to pat McMurray on the shoulder and said: "You God damn fellows
think you have got something don't you" and McMurray replied:
"I know we have got something." Chambliss continued: "You are
going to find you ain't got a God damn thing. I could whip any six
of you because if I can't-I have got the difference right here in my
pocket." McMurray testified he noticed a rather large bulge in the
superintendent's coat pocket. Despite Chambliss' threats, Mc-
Murray was retained at the time. It was not until March 11, 1939,
that the respondent saw fit to discharge McMurray.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 11 , 1939, McMurray was at the mill when Earnest, an
employee at the mill, told him that he was wanted by De Lyle Kinman,
warehouse foreman in the Morten mill. McMurray found Kinman
in the latter 's office, and the warehouse foreman at once told him that
he had received instructions from Fisher to discharge him. Kinman
said, according to McMurray , "I know you have been expecting this
ever since you boys started this union business here." Kinman did
not deny this testimony . An argument followed regarding seniority,
after which McMurray left the mill. '
At the hearing counsel for the respondent , during his cross-exami-
nation of McMurray , said, "When conditions improve and business
improves and working conditions , we want you to come back "
Thompson testified that McMurray was laid off because of lack of
work and will be recalled if the respondent finds itself in need of his
services. These statements , however, are inconsistent with the
testimony of Fisher who declared that McMurray was laid off for
inefficiency . Such conflicting testimony and statements cast serious
doubt upon the credibility of the respondent 's witnesses . Further-
more, it appears from the undenied testimony of McMurray that Ed
Kennedy, an employee who had formerly been laid off , was recalled
to take his place. Kennedy was not a member of the Union.
The Trial Examiner found that McMurray was discriminatorily
discharged because of his union activities and membership. We
are in agreement with the Trial Examiner , and so find.
Roy Frank , a member of the Union, had been working for the
respondent for approximately 432 years prior to his discharge on March
8, 1939. He was first employed as an oiler and on July 6, 1938, he
was transferred to the position of spouter , which job he held at the
time of his discharge . He became a member of the Union on October
30, 1938, and wore his union button while at work. He testified
that he signed the anti-union petition only upon the insistence of
his foreman , Carl Lynch, that if he signed it he would retain his
position , but that if he did not sign it he would lose his job. Later,
however , Frank requested Moore to withdraw his name from the peti-
tion. The petition shows that this withdrawal was not effected.
Frank testified that on the date of his discharge Fisher, who became
superintendent on February 13, 1939, called his attention to the
fact that he had made a mistake in mixing his flour and told him that
because of this error he would have to be laid off. Frank testified
that he then requested to be put in some other position and pointed
out that he had been in the mill for some time and could handle prac-
tically any job. The record does not disclose Fisher's reply to this
offer. However, Frank was not retained . Frank was offered a job
as a flour packer on June 15, 1939 , but refused it on the ground that
TEX-O-KAN FLOUR MILLS COMPANY 787
he did not understand how to perform the duties of a packer. The
record shows that he declined to give the proffered position a trial.
Fisher, the superintendent, testified that Frank was not an efficient
spouter and that he offered him a job as packer because he believed
that that was the only position that Frank could fill. Fisher testified
that a good spouter could do the work of a flour packer if he had been
employed in the mill for any length of time. It appears from the
record that flour packing requires less skill than the work of a spouter.
The Trial Examiner found that Frank was discharged for reasons
other than his union activities. Upon a review of the entire record,
we are in agreement with the finding of the Trial Examiner. We find
that the respondent has not discriminated in regard to the hire and
tenure of employment of Roy Frank.
Ed Starr, a member of the Union, had been employed by the
respondent for approximately 15 years prior to his discharge on May
13, 1939. At that time he was engaged as an operating engineer in
the engine room of the plant. On March 29, 1939, the respondent
had all of its employees undergo a medical examination for the purpose
of determining whether or not any of its employees were industrial
hazards. As a result of this examination several employees were
discharged upon the discovery that their physical condition did not
warrant their retention. It appears from the medical examination
record of Starr that he suffers from poor vision in both eyes.
Shortly before his discharge, Lee Thompson, the chief engineer,
reported to Blaine Thompson, the general manager, that Starr had
almost made a serious mistake in the engine room-because of his poor
eyesight. According to Thompson, Starr's inability to read a pres-
sure gauge almost caused the explosion of a boiler which might have
resulted in great damage to the respondent's plant. Blaine Thompson
testified that he reported this incident to Fisher who agreed with him
that Starr should be replaced. As a result of this discussion Starr
was discharged. At the hearing Starr admitted that he had very
poor vision in one eye, but testified that since his medical examination
he has purchased glasses and has thus rectified his poor vision to
some extent.
The Trial Examiner found that the discharge of Starr was due to
reasons other than his union activities. Upon a review of the entire
record, we are in accord with the finding of the Trial Examiner. We
find that the respondent has not discriminated in regard to the hire
and tenure of employment of Ed Starr.
Jim Arnold and Billie Hansell were both discharged on June 12,
1939, allegedly for making a mistake in packing flour. Arnold had
been employed by the respondent for approximately 5 years, while
Hansell had been in the employ of the respondent for over 20 years.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hansell and Arnold both testified that they had received no complaints
about their work during.their employment. The two employees were
both members of the Union and wore their union buttons while at
work. Arnold had been elected financial secretary of the Union,
replacing Kirby upon his discharge. It is also pertinent to note that
both Arnold and Hansell refused to sign the anti-union petitions
circulated by Moore and Van Cleve. Hansell testified that the first
week that Kinman was made warehouse foreman,20 he called the four
negroes who were working on the loading gang and said to them,
"I don't know that Mr. Warren has ever told you boys so it falls my
duty to tell you I'd rather you would go and sign that petition right
away and it will look like we are getting somewhere." Despite this
urging, Hansell refused to sign the petition.
Arnold testified that sometime in April 1939 he was told by Hudson,
his immediate superior, "You boys can't go through with this union.
The company is going to beat you out because they have $65,000 to
do it with." Hudson, a witness for the respondent, denied that he
told Arnold that the respondent had set aside $65,000 to fight the
Union. The Trial Examiner did not credit Hudson's denial; nor do
we. The remarks attributed to Hudson by Arnold are in accord with
the respondent's general anti-union attitude and its numerous acts of
coercion. It is also pertinent to note, as set forth above, that Smith,
an elevator foreman, also boasted to Brittian and Binson that the
respondent had a large sum of money to use in its fight against the
Union.
Several weeks after the incident referred to above, Hudson came
to Arnold's home after work and told him, "Well, Jim, I just came up
to tell you that they are trying to get something on you so that they
can fire you." Hudson did not deny having made this statement.
Several days after this warning, Arnold went on his vacation and did
not return until on or about June 7, 1939.
On June 9 Arnold and Hansell packed a quantity of flour which
had been ordered by the Smith Baking Company of Mobile, Alabama.
The two employees both testified that, in accordance with previous
custom, Hansell asked the sack boy, one Jones by name, which sacks
were to be used for that particular order. It appears from the record
that it was the duty of the sack boy to arrange the sacks which were
to be used by the packers. Jones pointed out a group of sacks which
were marked "Smith Baking Company" and the two packers pro-
ceeded to fill the order. It appears that the sack boy made an error
in arranging the sacks and as a consequence the two packers packed
280 pounds of flour in the wrong set of sacks. The respondent con-
tends that the two packers should not have followed the directions of
the sack by, but should have been directed by a "run sheet" which
20 Kinman became warehouse foreman on January 1, 1939.
TEX-O-KAN FLOUR MILLS COMPANY 789
was posted in the mill. The run sheet specified the type of sacks that
were to be used by the packers on the particular order herein involved.
It is clear from the record that the two employees did not follow the
directions posted on the run sheet.
On June 12, 1939, the two employees were notified by Kinman, the
warehouse foreman, that they were discharged because of the error
made in packing the flour. The two employees protested on the
ground that the error was attributable to the sack boy. They demon-
strated to Kinman that they had used the sacks which had been
pointed out to them by Jones. Kinman admitted that he would
"have to get after the sack boy too ," but stated that he would never-
theless have to discharge them since he had been told to do so by the
management . On June 15 , 1939, Arnold saw Blaine Thompson and
explained that the error was the fault of the sack.boy. Thompson
rejected this explanation stating that the employees should have fol-
lowed the "run sheet" which had been posted for their guidance.
Thompson also stated that the error of the two employees was one of
a series of errors and that such mistakes were expensive to the respon-
dent. Before Arnold left, Thompson gave him a check for 4 weeks'
wages in advance.
On June 17 Hansell went to the mill to see Thompson respecting
an error in his check . He testified that he failed to see Thompson but
had a conversation with Kinman who said, "I like all of you boys and
I want to get along with you. I will tell you what to do, don't go
and file no labor charges against me because I want to try and get
you back on the job. In other words, I don't want to get mad with
you." On June 20 Hansell was able to see Thompson . He testified
that Thompson told him during the course of the conversation which
ensued, "I am going to pay you 6 weeks in advance , but I will tell
you to keep that under your nose. Don't say anything to Jim
Arnold about it because I have to have some cause to fire Jim and
I don't want him back on the job. In fact , I am going to fire all of
them and get rid of the whole damned bunch in 6 weeks' time, and
I am going to get rid of all the white anyway. I am going to hire
colored because they are easier to handle, to get along with better.
I have got $65,000 to break that darned union up and we ain ' t going
to have . . . any such damned things [sic ] as a union."
Thompson , while admitting the conversation with Hansell , denied
the testimony set forth above. Thompson testified that Hansell
came in to him and stated that he believed he had been discharged
because of the Union. Thompson testified that he replied that this
was not the cause of Hansell 's discharge , but that he was discharged
because he had committed a serious error in his packing. Thompson
testified further that he then explained that such errors were costly
to the respondent and that it was necessary that the packers pack
323429-42-vol. 26-51
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their orders in accordance with instructions . Thompson also testified
that he told Hansell that he had no objection to negro help and then
asked him how long he had been with the respondent . Upon Han-
sell's reply that he had been employed by the respondent for 20 years,
Thompson stated that he then asked him whether or not he had re-
ceived any severance pay in lieu of notice. Upon Hansell 's reply
that he had not , Thompson saw to it that he received a sum equivalent
to 6 weeks ' pay. Thompson explained that he gave Hansell 6 weeks'
pay while granting Arnold only 4 weeks' pay because Hansell had
been with the respondent for a longer period of time than had Arnold.
Thompson conceded that he told Hansell in a "joking way" not to tell
Arnold about the extra 2 weeks' pay , but testified that he did so
merely to prevent Arnold from being envious.
The Trial Examiner resolved the conflict between the testimony
of Hansell and Thompson by finding in accordance with Hansell's
testimony . Without passing upon the above conflict in testimony,
we are of the opinion that the evidence in the record , exclusive of
Hansell 's testimony with respect to his conference with Thompson,
is of such a nature as to compel a finding of discrimination. As
we have noted above, the record reveals a strong anti -union bias on
the part of the respondent . This, together with the warnings to
Arnold by Hudson that the respondent was seeking an excuse to
discharge him, establishes that the respondent intended to discharge
Arnold because of his union activities . The mistake which provided
the excuse for the discharge of both Arnold and Hansell , while of
undoubted harm to the respondent , was not without mitigating cir-
cumstances . The error occurred not only because Arnold and Hansell
failed to read their "run sheets," but also, and primarily, because the
sack boy, upon whom they customarily relied, was in error. It
should be noted , moreover, that Arnold and Hansell had been em-
ployed by the respondent , without criticism or complaint as to their
work, for periods of approximately 5 and 20 years , respectively, when
the respondent, with full knowledge of the circumstances surrounding
the error , discharged them. Under all of the circumstances, and in
the light of the entire record, we conclude that the error of Arnold
and Hansell was seized upon by the respondent as a pretext for dis-
charging them, and that the real reason for their discharge was their
union activities and membership.
M. L. Brittian , a member of the Union, had been employed by
the respondent for 2 years prior to his discharge on August 4, 1939.
While Brittian was not active in the Union , he made known his
support of the Union by refusing to sign the anti -union petitions that
were circulated in the respondent 's mill. On August 3, 1939, Fisher,
the superintendent , caught Brittian smoking on mill property during
working hours and ordered his discharge . It appears that smoking
TEX-O-KAN FLOUR MILLS COMPANY 791
was contrary to the posted rules of the respondent . It also appears
that a non-union man named Robinson had been discharged for a
similar violation of the respondent 's rules sometime in June 1939.
Blaine Thompson, the respondent 's general manager , testified that
smoking had been prohibited for a number of years in the respondent's
plant, but that the rule had not been strictly enforced under former
managers . He stated that he called Fisher's attention to the laxness
in the enforcement of the rule after some insurance inspectors had
called it to his attention . Thereafter new "No Smoking " signs were
posted in the mill . The posting of these new signs apparently occurred
after Fisher became superintendent of the Morten mill on February
13, 1939. Thompson stated that there was some difficulty in enforcing
the rule and that drastic punishment was provided in order to get
compliance.
In view of the entire circumstances , we find, in accordance with
the finding of the Trial Examiner, that Brittian was discharged for
reasons other than his union activities.
Jimmie Ervin had been in the employ of the ,respondent for 16
years prior to the termination of his employment on August 9, 1939.
He testified that of the negro employees in the "booster gang" he
was the only person on his shift who wore his union button continu-
ously. He also stated that the remaining union members in the gang
had discontinued wearing their union buttons some time prior to
his discharge . The testimony of Ervin was not controverted by the
respondent . It also appears from the record that Ervin refused to
sign the anti-union petitions that had been circulated in the respond-
ent's plant during December 1938 and January 1939.
The respondent contends that a slack in business necessitated a
reduction in force and that Ervin was selected for dismissal because
he was the least efficient of the employees in the "booster gang" where
he was employed. The respondent 's contention that Ervin was dis-
charged because of inefficiency rests upon the testimony of Fisher who
stated that Ervin "was one of the poorest workmen in the crew"
and that he had displayed such inefficiency over a period of time.
Fisher also stated that when it became necessary to reduce the force
Ervin was dismissed because of such inefficiency . Fisher cited no
instances of inefficiency on the part of Ervin to substantiate his
general statement . Furthermore , when requested to be more specific
on cross-examination , Fisher testified as follows:
Q. Now, can you be particular as to what has been wrong with
Ervin's work from your own observation?
A. Well, he just does not do his work; that's all; there is a
number of things when a man is on a job that you could pick
out and see that his work is inefficient; you can dovetail them
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
together; by the time you get through you have a pretty large
sum. _
Q. Well, that is what I am trying to get at, the basic facts that
add up to this big sum?
A. Well, the basic facts, that is, that is work down there,
dovetailing it back is so large that the basic fact is that he is just
inefficient.
Q. And you can't be particular in what respects he is?
A. No; there is a number of them. . . .
Q. What was Ervin's job out there?
A. I think he was-I can't recall all of those-there have been-
I think he was on the table; I am not sure.
Q. You can't recall the job he had; you can't recall what was
wrong with his work, can you Mr. Fisher?
A. Well, there were so many of them that I can't remember
them all; you are going back quite a ways and it is pretty hard
for me to remember all of those definitely.
Q. Well, now Ervin was just fired on August 9th. Wasn't he?
Can you remember any particular inefficiency during the month
of July or August? . . .
A. No, but I could probably dig up some.
The respondent's contention that Ervin was inefficient was not
based upon any specific examples of improper work on his part. In
view of this fact and the fact that Ervin had received no complaints
about his work during his employment, we are convinced that the
charge of inefficiency was not the real reason for the termination of
Ervin's employment. We are strengthened in this conclusion by the
fact that while Ervin had been in the employ of the respondent for
16 years, the record shows that a number of employees in the "booster
gang" who were retained had been employed for but a short period of
time. The pay-roll record introduced by the respondent reveals that
during 1939 the respondent hired three new employees as general
laborers and recalled three additional employees in the same category.
Specifically, the pay-roll record shows that E. H. Daniels, a new em-
ployee, was hired on May 11, 1939; Willie B. Evans on April 10, 1939;
Titus Washington on July 17, 1939. The records of the laborers who
were recalled are as follows: James L. Rockins was employed as a
laborer prior to February 20, 1938. He was laid off on August 3,
1938, and was recalled on February 21, 1939. W. Morney had been
in the respondent's employ as a general laborer prior to February
20, 1938, and was laid off on March 23, 1938. He was recalled on
April 6, 1938, and was subsequently laid off on August 3, 1938. He
was recalled on April 18, 1939, and was still in the employ of the
respondent at the time of the hearing. C. L. Masterson had been
TEX-O-KAN FLOUR MILLS COMPANY 793
employed by the respondent as a general laborer prior to February
20, 1938, and-had been laid off on March 23, 1938. He was recalled
on May 26, 1939, and was in the employ of the respondent at the time
of the hearing.
It seems improbable to us that the newly hired employees should
be considered more efficient than Ervin, who had been steadily em-
ployed by the respondent for 16 years. Furthermore, it seems strange
that the employees who had been previously laid off and were later
recalled should be considered more efficient than Ervin, who, on the
other hand, had been retained throughout. This becomes especially
paradoxical in view of the fact that Ervin had not been criticized for
his work during his employment.
The combination of circumstances showing that Ervin was the
only member of the Union in the "booster gang" who maintained his
identity as a union member; that he refused to lend his aid to the
circulation of the anti-union petitions which activity was carried on
with the overt sponsorship and aid of the respondent; that he was
one of the oldest employees in the respondent's service; that the
respondent hired a number of new employees shortly before his dis-
charge; the incredibility of respondent's explanation for his discharge
when considered in the light of the entire circumstances, lead us to
believe, and we find, that the real reason for the discharge of Ervin
was his union activities and membership.
Samuel Vodnick was also discharged on August 9, 1939, assertedly
for the same reason as Ervin. The Trial Examiner found in accord-
ance with the respondent's contention and the Union excepts thereto.
Vodnick, a member of the Union, had been employed by the
respondent as a bagman assistant for approximately 2 years prior to
the termination of his employment. He testified that he had re-
ceived no complaints about his work during his employment. This
testimony remained uncontradicted on the record. The evidence
shows that there were three bagmen assistants in the employ of the
respondent at the time of the discharge of Vodnick. Of the three,
Mark Jones was first employed in May 1939, while Johnnie De Vore,
the other bagman assistant, was recalled on August 1, 1939, having
been previously laid off on August 3, 1938. Thus it appears that of
the three bagmen assistants, Vodnick had more seniority than the
other two employees. It also appears that neither Jones nor De Vore
were members of the Union.
On or about January 10, 1939, Moore requested Vodnick to sign
the anti-union petition which he was then circulating. Vodnick
refused to sign the petition on two occasions but, under the threat
that the respondent would shut down the mill unless the union men
signed the petition, he signed it on January 12, 1939. Several days
later, however, he requested Moore to strike his name from the peti-
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. It appears from the petition, which was introduced into evi-
dence, that Vodnick's name had been stricken therefrom prior to its
presentation to the respondent.
With respect to the respondent's contention that Vodnick was the
least efficient of the bagmen assistants, Fisher testified that over a
period of time, Vodnick had proved himself inefficient and that he
was unable to get along with other employees. When specifically
asked on cross-examination to explain the inability of Vodnick to get
along with other employees, Fisher was evasive and admitted that
he could not remember ever having reprimanded Vodnick for such an
asserted fault. We are not convinced by Fisher's testimony that
Vodnick was unable to get along with other employees. The only
instance cited by Fisher in support of his testimony that Vodnick was
inefficient was a statement to the effect that he had told the employees
in the packing room that they were not getting the bags out properly.
It is obvious that such a complaint was directed to all the employees
in the packing room and not to Vodnick personally. Blaine Thomp-
son testified that Vodnick was laid off because there were too many
men in the sack room and that since Vodnick's work had become a
"little careless" he was laid off. No specific instance of carelessness
on the part of Vodnick was cited by the respondent in support of
Thompson's testimony.
As in the case of Ervin it seems strange to us that Vodnick should
be chosen as the least efficient of three bagmen assistants in view of
the fact that he had retained his job while De Vore, the other bagman
assistant, had been previously laid off. Furthermore, the fact that
De Vore had been in the employ of the respondent but a week prior
to the discharge of Vodnick renders it doubtful that a valid com-
parison of his efficiency with that of Vodnick could be made. In
view of the entire circumstances, we are of the opinion that the
respondent's contention that Vodnick was discharged because of
inefficiency is without merit.
The combination of circumstances showing that Vodnick was the
only member of the Union among the bagmen assistants; the evidence
showing that he had withdrawn his signature from the anti-union
petition which had been circulated with the knowledge of the re-
spondent; the fact that he had more seniority than the other two
bagmen assistants; the fact that respondent had recalled a new bag-
man assistant a week prior to the discharge of Vodnick, together
with the incredibility of respondent's explanation for the termination
of Vodnick's employment, leads us to believe, and we find, that the
real reason for his discharge was his union activity and membership.
Robert Stewart had been in the employ of the respondent for
approximately a year and 9 months prior to August 9, 1939, the date
of the termination of his employment. He joined the Union on
TEX-O-KAN FLOUR MILLS COMPANY 795
October 30, 1938, and wore his union button while at work. Stewart
signed the petition requesting the reinstatement of Marple, Kirby,
and Carey, and was a member of the committee that presented it to
the respondent on or about November 28, 1938.
On December 16, 1938, Stewart was laid off. He testified that
his foreman, J. B. Warren, informed him of his lay-off and that he,
Stewart, requested an explanation for the lay-off. According to
Stewart, Warren replied that he did not know the reason, but that
it was not because he was not needed. Warren then stated that the
management had requested him to lay off Stewart. The testimony
of Stewart in this respect was not disputed by the respondent.
On or about December 27 Stewart was recalled by the respondent.
He testified that on or about December 31, 1938, Blaine Thompson,
the general manager, came to the table where he and another em-
ployee were working and said, "they had been working around here
without a union and if we want to continue to work there, to go to work
and stop the foolishness; he had a mind to close the mill down Mon-
day and start all over again." Thompson did not deny the testimony
of Stewart. , On the same evening, Hudson, a second miller, came
to Stewart and asked him whether or not he had signed the anti-
union petition then being circulated by Moore. Stewart replied
that he had not. Shortly thereafter, on January 4, 1939, Stewart
was again laid off. He protested his lay-off to Warren, his foreman,
saying that "it seems like the company is taking its spite out on me
on account of going up with that committee" that presented the
petition requesting the reinstatement of Marple, Kirby, and Carey.
Stewart testified that Warren replied, "I guess you are right." War-
ren did not testify.
Following his lay-off, Stewart was recalled to the plant on Feb-
ruary 4, 1939. Upon his recall he was placed in the "booster gang,"
although he had formerly been employed as a stacker in the mill.
Stewart testified that there were six other employees on his shift of
the "booster gang" and that of the six, two were non-union men,
while three others discontinued wearing their union buttons in the
month of July 1939. Stewart stated that he continued to wear his
union button throughout that period. His testimony in this connec-
tion was not refuted.
On July 29, 1939, Stewart was laid off for 2 weeks because of a
reported infraction of the respondent's no-smoking rule. Stewart
testified that after working from 8 o'clock until 6:30 in the evening
of July 26 he stepped out of the plant for a moment and smoked a
cigarette on railroad property which adjoined the respondent's plant.21
11 It appears that on July 26 the employee who was supposed to relieve Stewart became ill and that as a
consequence Stewart had to work from 8 o'clock in the morning until 12 o'clock that night.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He conceded that the night watchman saw him smoking and that
about 10 or 15 minutes later Carl Lynch, a second miller, reprimanded
him for smoking. Stewart testified that he told Lynch that he was
not on company property but that he was on the railroad property.
According to Stewart, Lynch then reprimanded him for smoking on
company time, to which Stewart replied that he had caught up with
his work and that he thought he could take a few seconds off for a
smoke. Lynch did not deny the testimony set forth above. Stewart
testified that nothing was said to him about the smoking incident
until 3 days later on July 29. On this occasion he was informed by
Kinman that he was to be laid off for 2 weeks because of the smoking
incident. On August 9 Stewart was recalled by Kinman and was
told that he was to be discharged because of a reduction in force.
The respondent contends that Stewart was laid off in order to
reduce the "booster gang," or loading crew. Blaine Thompson testi-
fied that there were too many members on the loading crew at the
the time of Stewart's lay-off and that it was necessary to reduce its
number. He testified that at the time there were 18 members on
the loading crew when the respondent had need of only 16. It was,
therefore, decided, according to Thompson, to discharge Stewart.
Thompson testified that if the respondent had need of any more
employees, Stewart would be recalled.
For similar reasons set forth above in the cases of Vodnick and
Ervin, we are of the opinion that the respondent's contention is with-
out merit. 'Stewart was the only one of the six employees in the
"booster gang" who wore a union button continuously. He had also
been actively engaged in union activities. He had been one of a com-
mittee of three who presented the petition requesting the reinstatement
of Marple, Kirby, and Carey, and had refused to sign the anti-union
petition circulated with the knowledge of the respondent. Thus it is
clear that Stewart's union membership and activities were well known
to the respondent. It is also clear that as a result of his activities
Stewart suffered several lay-offs early in 1939. The statements attrib-
uted to Warren, , Stewart's immediate supervisor, which were not
denied, clearly support this inference. The respondent's contention
that a reduction in force necessitated the discharge of Stewart, ex-
plains, if true, only the necessity for eliminating an employee. It
does not explain why Stewart, who had been with the respondent for
a longer period of time than had many of the newly hired employees,22
was chosen for the discharge. No explanation was offered by the
respondent why Stewart should have been chosen rather than some
of the newly hired employees.
22 See footnote 11, supra.
TEX-O-KAN FLOUR MILLS COMPANY 797
In view of the entire circumstances we find that the respondent
discharged Robert Stewart because of his union affiliation and
activities.
In summation, we find that the respondent discriminated in regard
to the hire and tenure of employment of John Marple, O. H. Kirby,
E. C. Carey, M. L. Fielding, Loys McMurray, H. P. Baker, Jim
Arnold, Billie Hansell, Jimmie Ervin, Samuel Vodnick, and Robert
Stewart. We find that by such discrimination the respondent has
discouraged membership in Local No. 21818 and has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
We find that the respondent has not discriminated in regard to the
hire and tenure of employment of J. C. Penny, Roy Frank, Ed Starr,
and M. L. Brittian, within the meaning of Section 8 (3) of the Act,
and the allegations in the complaint with respect to them will therefore
be dismissed.
C. Interference, restraint, and coercion at the Burrus mill
On October 24, 1938, the respondent ordered a general wage cut
affecting the employees in its Burrus mill at Saginaw, Texas. Within
3 days thereafter, Herbert Cowsert, Finis" Hardgrove, and several
other employees went to see A. E. Howse, packing and warehouse
superintendent of the Burrus mill, to protest against the decrease in
wages. In reply to their protest, Howse stated that he had done
everything within his power to prevent the decrease in wages. Cow-
sert then expressed the opinion that if the employees had an outside
organization working in their behalf the respondent might counter-
mand the decrease. Howse then said, "Cowsert, I wouldn't do
anything drastic."
Following this interview the employees began to talk of forming a
union and plans were laid to hold a meeting for that purpose in the
American Federation of Labor hall at Fort Worth, Texas. On
November 4, 1938, the respondent called a meeting of the employees
in the broadcasting studio located in the general office building of the
respondent. Upon this occasion J. Paul Smith, general manager of
the Burrus mill, addressed the workers and informed them that the
wage cut had been due to a misunderstanding of the provisions of the
new Wage and Hour Law,23 and that the respondent now proposed to
give the employees an increase in wages. Having made this announce-
ment, Smith went on to observe that there was a lot of unrest among
the employees and stated that inquiries directed to older employees
would reveal that the respondent had always dealt fairly with the
workers. Smith concluded by saying that the door of his office was
always open to employees who had grievances to discuss. It is clear
2 The Fair Labor Standards Act (52 Stat . 676), commonly referred to as the wage and Hour Law, became
effective October 24, 1938.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the tenor of Smith's statements that the respondent was aware
of the union activities then going on within its plant and that Smith
was inviting the employees to deal with him personally rather than
through a union organization.
Despite the statements of Smith, the employees held their first
meeting on November 6, 1938, and formed Local No. 21827 of the
Union. Following the inception of the Union various supervisory
officers of the respondent began a concerted campaign to thwart its
growth. The following instances are examples of the attempts on
the part of various supervisory employees of the respondent to prevent
the employees from joining or remaining members of the Union.
On or about November 15, 1938, L. M. Mitchell urged a fellow
employee, one Huctor, to attend meetings of Local No. 21827. Huctor
answered that he could not do so and continue to hold his job with the
respondent. At this moment, according to Mitchell, one Steinbauer,
chief engineer in the Burrus mill, walked up and said that no union
man could work for him. Huctor was one of his subordinates in the
engine room where the conversation took place. Steinbauer did not
appear as a witness for the respondent.
Mitchell further testified that on or about November 22, 1938,
Fisher, the superintendent of the Burrus mill as well as the Morten
mill, asked him whether or not he belonged to the Union. Upon
receiving an affirmative answer, Fisher expressed the opinion that the
employees were making a mistake, although he denied having any
personal feeling against the Union in the matter. Fisher then sug-
gested, according to Mitchell, that the employees could have their
own organization without outside representation. Upon this occasion
Fisher also stated, according to Mitchell, that he had a way of finding
out who were members of the Union and that the names of the em-
ployees who belonged were known to him. Fisher denied the testimony
of Mitchell set forth above and stated that the only conversation he
had with Mitchell concerning the Union was on one occasion when
Mitchell came into his office and told him that he had dropped out of
the Union. According to Fisher, Mitchell also asked about forming a
company union, to which Fisher replied that he could do just as he
pleased about the matter, that the decision rested solely with Mitchell.
The Trial Examiner, who had an opportunity to observe the demeanor
of the witnesses, did not credit the testimony of Fisher. We find, as
did the Trial Examiner, that Fisher made the remarks attributed to
him by Mitchell substantially as related above.
On or about December 10, 1938, Jack Boyle, a loading foreman in
the Burrus mill, talked to James L. Scogin about the Burrus Union.
The conversation was held just outside of the office of Howse. At first
Scogin asked Boyle: "Are you all working today?" And Boyle
replied: "Yes, Tuck Turner called us and told us to come to work.
TEX-O-KAN FLOUR MILLS COMPANY 799,
I guess you can see now who is taking care of us around here, Mr.
Fisher and Mr. Howse." Then Boyle added: "You better keep
your mouth shut and stay away from that damn Union. You will be
better off." Boyle did not testify.
On or about December 15, 1938, R. E. Neal had a conversation
with Joe Johnson, a supervisory employee who was in charge of the
employees in the bag room at the Burrus mill, regarding the Union.
The conversation was held in the mill during working hours. Accord-
ing to the testimony of Neal, which was undisputed, Johnson said,
"You boys aren't getting anywhere with this union. I would like to
offer a suggestion that we get up a petition and have it worded and all
sign it-we don't know just how to word it but we could get it worded
in the office-and get the boys to sign this petition and probably we
can get more work. They have been shifting a bit of stuff to King-
fisher, Oklahoma.24 You know how the bags have been going out.
We might hold that business here if we all get right." Later the same
day Neal saw Johnson circulating a petition addressed to J. Paul
Smith, manager of the Burrus mill. This petition was dated Decem-
ber 15, 1938, and read as follows:
Dear Sir:
We, the undersigned, are taking this means to inform you and
the Burrus Mill that we are and have been well pleased with our
working conditions at Burrus Mill. We have in the past and
feel that we can in the future deal with you without the help and
cost of some outside organization.
Trusting that this will meet with your approval, we remain
Your loyal employees,
The petition was circulated throughout the mill during working
hours by Johnson and Jack Boyle, a loading foreman. The following
are typical examples of the attempts of Johnson and Boyle to obtain
the signatures of the employees to the petition.
On or about December 15, 1938, Boyle met A. L. Hampton, an
employee, in the washroom of the Burrus mill during working hours
and asked him whether or not he wanted to get out of the Union.
Hampton's reply was in the negative. Boyle then showed him the
petition referred to above, and said, "We are trying to get the boys
to sign this. We are going to get better conditions if we can get
this thing squelched." Hampton refused to sign the petition. When
Hampton remarked that he intended to stay in the Burrus Union,
Boyle said: "I joined the Union and I got out. I have a family to
support." Hampton retorted: "I have too, but I don't intend to get
out." Boyle was not called as a witness for the respondent.
On December 15, 1938, W. H. Nichols was packing flour when
$4 The respondent also operates a flour mill at Kingfisher, Oklahoma.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson asked him to sign the anti-union petition. Johnson said
that if the employees signed the petition and sent it to the office
working conditions would improve and the employees would not have
to contribute to an outside organization. On the same day Johnson
talked to C. NN. Fidler, an employee, about the petition and said,
"If I can get you boys to sign this petition I can get you better work-
ing conditions, such as smoking, working more hours." Johnson
also said that the respondent at that moment was sending business
elsewhere but that if the employees placed their name on the petition
matters would improve. Fidler declined to sign the petition. This
conversation took place in a freight car at the Burrus mill while E. K.
Wilson, a loading foreman, was present. Neither Johnson nor
Wilson appeared as witnesses.
On or, about December 17, 1938, Boyle and Johnson met Emory
Kreidel, an employee, near the latter's home, and asked him to sign
the anti-union petition, telling him, "We have 68 men that have
already signed." Kreidel declined to sign the petition, stating that
he would have to consult his fellow workers first. Whereupon
Johnson remarked, "Well, you know the reason you are not getting
any more working time is on account of the Union. And the reason
we haven't got any more business out there is because they are sending
the business other places in order to freeze out the Union." It
appears that Johnson should have been working at the Burrus mill
at the time he was importuning Kreidel to sign the petition.
During the same period mentioned above Johnson circulated
another petition which was also dated December 15, 1938, and which
read as follows:
Dear Sir:
We the undersigned employees of Burrus Mill Elevator Com-
pany of Fort Worth, Texas, herewith tender our resignations to
A. F. of L. Local Lodge.
This petition was also circulated during working hours.
On or about December 17, 1938, S. J. Hall, an employee, was in
bed at home when E. K. Wilson, a loading foreman, and Boyle made
their appearance with the first anti-union petition mentioned above.
Wilson asked Hall whether or not he belonged to the Union and after
receiving an affirmative answer suggested that Hall might wish to
withdraw from the Union in order that the employees might have
more work. Hall said he would do anything to get additional working
time and.signed the petition. On or about December 19, 1938,
Hall also signed the petition resigning from the Local. He was
given this petition by Boyle during the regular hours of work at the
Burrus mill. Boyle was his foreman at the time.
Numerous other instances of attempts by Boyle and Johnson to
persuade the employees to resign from the Union and to sign the
TEX-O-KAN FLOUR MILLS COMPANY 801
anti-union petition referred to above are set forth in the record.
However, the respondent's activities in this respect are not confined
to the acts of the various supervisory employees mentioned above.
The following instance clearly reveals that officers of the respondent
who were in positions of greater responsibility also attempted to
dissuade the employees from joining or remaining members of the
Union.
Late in December 1938 Mitchell paid a visit to the office of J. Paul
Smith, the manager of the Burrus mill, for the purpose of securing a
loan of $12 from the respondent. Mitchell testified that while he
was there Smith exhibited the first anti-union petition referred to
above, and requested him to sign it. Mitchell did so, and was then
given the $12 which he sought. Upon the same occasion, according
to Mitchell, Smith asked him whether or not he was a member of
the Union, and after receiving an affirmative reply, Smith said that
he thought the employees were making a mistake. Mitchell testified
that as he was preparing to leave, Smith asked him for the names of
the employees who would leave the Union. According to Mitchell,
he protested that the question was unfair. Whereupon Smith said,
according to Mitchell, "Mitchell, if the Labor Board gets hold of
this it is a damn lie. I never said it." In conclusion, according to
Mitchell, Smith said that non-union employees would work even if
he had to post guards at the Burrus mill for their protection.
Smith denied the testimony of Mitchell set forth above. He
testified that in the latter part of 1938 or the early part of 1939
Mitchell came to him and stated that he was worried for fear that
Smith "might hold it against him because he joined the Union."
According to Smith, he told Mitchell that he did not know whether
or not he belonged to the Union. Mitchell then stated, according
to Smith, that he had joined the Union only because of pressure
exerted upon him by other employees but that he was now out of
the Union and that he was not going to have anything to do with
it from then on. On cross-examination Smith denied that Mitchell
signed any petition in his presence. However, Smith was unable to
explain why Mitchell's name appeared on the original of the petition
which was introduced into evidence by the respondent and not upon
a photostatic copy of that petition which was introduced into evidence
by the Board. While the record does not reveal when the photo-
static copy was made it is clear that Mitchell signed the anti-union
petition sometime thereafter. This evidence substantiates the testi-
mony of Mitchell and tends to discredit the testimony of Smith.
However, aside from this evidence, the Trial Examiner, who had an
opportunity to observe the demeanor of the various witnesses, found
that the testimony of Smith in this and other particulars was not
credible. Upon a review of the entire record we are in agreement
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Trial Examiner in his determination as to the credibility of
Smith. We find in accordance with the testimony of Mitchell set
forth above.
Late in January 1939 Hall asked Joe Johnson , who was in charge
of the employees in the bagroom, why the respondent was shipping
so many bags to its mill in Kingfisher , Oklahoma. Specifically he
asked Johnson why the respondent could not run a certain type of
bag in the mills so that the employees could get more time. Johnson
replied, "We could if there was less union men than there was at
Kingfisher, if they would pull off their buttons they would get to
run the bags here." Hall then inquired whether it would cost more
to ship the bags from Kingfisher than from the respondent's plant
in Saginaw. Johnson replied, "No the rate is the same. If there
was less union men at the mill than at Kingfisher, if the boys would
wake up, there would be more work running them here."
James Scogin, an employee, testified that he shipped about 2500
bags from the Burrus mill to the Kingfisher mill on March 30, 1939;
that Johnson told him while he was working in the bagroom the day
after 18 men were laid off on March 29, 1939,25 that he shipped 11,053
to the Kingfisher plant the evening before and that Johnson lamented
and said, "We should have clone this job here if things had been like
they should have been." As noted above, Johnson did not appear as a
witness for the respondent.
On or about February 15, 1939, H. E. Smith, an employee, was at
work in the Burrus mill when Wilson, his foreman, said to him, "If
you boys don't get out of the Union you are going to lose your jobs."
Several other employees also testified that Wilson had made similar
statements to them. Wilson did not appear as a witness for the
respondent.
It is clear from the evidence set forth above that the respondent,
through its supervisory officers and agents, attempted to discourage
membership in Local No. 21827. Proof of the respondent's success in
this matter may be found in the fact that membership in Local No.
21827 dwindled from 72 members in November 1938 to approximately
13 members in September 1939.
We find that by the aforesaid activities of its supervisory employees
and by other acts the respondent has interfered with, restrained, and
coerced its employees in the exercise of the right to self-organization,
to form, join , or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining and other
mutual aid and protection.
2 These lay-offs are discussed below.
TEX-O-KAN FLOUR MILLS COMPANY 803
D. The discharges at the Burrus mill
Claude H. Henson. Henson had been in the employ of the respond-
ent for slightly more than 5 months prior to November 19, 1938, the
date of the termination of his employment. He was one of the first
men to join the Union on November 6, 1938. During the term of his
employment Henson worked as a sweeper and also in the millwright
crew. He testified that he had received no complaints about his work
during his employment. On November 19, 1938, A. J. Ball, the
millwright foreman, told Henson that his services were no longer
needed. Henson then saw Fisher, who said he would support what-
ever action Ball had taken. Henson then returned and asked Ball
for an explanation of his discharge, to which Ball replied, "You are
just too slow for me."
Fisher testified that Henson was discharged because of his ineffi-
ciency. He stated that Henson was hired as a sweeper and could not
perform the job satisfactorily. He was-then transferred to the mill-
wright department as a helper.26 According to Fisher, Ball, the mill-
wright foreman, complained of Henson's services on several occasions,
stating that he could not get Henson to do his work properly. Fisher
testified as to several specific incidents where he had personally ob-
served that Henson was inefficient. On one occasion Henson was
detailed to paint the locker room in the mill. According-to Fisher, he
went down to the locker room to see how the job was coming along
and observed that Henson was not doing the job as it should be done,
"he was getting paint all over everything . . . and wasn't doing much
painting at that." Fisher stated that he then told Ball to take Henson
off the job. On another occasion Henson was sent to tighten some
"bolters" on the seventh floor of the mill. According to Fisher, this
was a job that any ordinary employee could finish in an hour, but that
Henson was on the job for 4 hours and was not able to finish it even
then. Fisher further testified that Henson was also inefficient as a
sweeper, "he didn't get around and keep the mill clean and get between
the elevator legs." Because of the complaints of Ball regarding
Henson's work and in the light of his own personal observation, Fisher
testified that he ordered Henson's discharge. While Henson denied
that he ever received any complaints about his work, he did not con-
trovert Fisher's testimony set forth above.
We find that Henson was discharged for reasons other than his union
activities and membership.
V. L. Newland, 0. 0. Stewart, and R. H. Tomlin were all employed
as feed packers in the respondent's Burrus mill and were all discharged
on November 21, 1938.
26 During the vacation of one of the sweepers Henson was temporarily transferred to this position and
later transferred back to the millwright crew.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. L. Newland had been in the employ of the respondent for a year
prior to his discharge . He testified that up to the time of his discharge
no dissatisfaction had been expressed with regard to his work. He
became a member of the Union on November 13, 1938, and was dis-
charged on November 21. Newland testified that on the day of his
discharge he was engaged in packing 140-pound bags of flour. He
stated that he had packed such bags all morning and that when he
returned from lunch he packed about 50 bags before noticing that his
scale had been tampered with during his absence in the lunch period
and that as a consequence the 50 bags were 6 pounds overweight.
Newland reported the error to his foreman , Finis Hardgrove, who in
turn consulted with Howse, the superintendent of the warehouse and
packing operations of the respondent . Hardgrove returned to New-
land and informed him that he was discharged because of his error.
Newland then went to see Howse and requested permission to correct
the error on his own time, stating to Howse that this was the first
mistake he had made since he was employed . Howse refused this
request. According to Newland , at least four other employees had
made similar mistakes in packing flour prior to his discharge and had
been allowed to correct the error on their own time. Howse , a witness
for the respondent , at first denied that the respondent had adopted
such a policy . However, on cross-examination , he conceded that he
had used that method on some occasions but stated that he could not
recall any particular case. Howse's testimony in this respect is of
such an evasive nature as to render his testimony valueless . We find,
on the basis of the record , that prior to Newland 's discharge the
respondent had allowed packers to correct errors on their own time.
The respondent contends that Newland was discharged solely for
the reason that he had made the error referred to above. On direct
examination Howse testified that Newland was discharged because
of bad weights and that the error resulted in a shipment of flour
missing its boat connections at the port of its delivery and thus
delaying the completion of the order . On cross-examination Howse
conceded that the failure to make the proper boat connections was
not the real reason for Newland 's discharge but that the inaccuracy
was the primary factor involved.
The Trial Examiner found that Newland was not discriminatorily
discharged on the ground that there was no evidence in the record to
show that the respondent knew Newland belonged to the Union at
the time of his discharge other than the general statement of Fisher
that the names of the union members were known to him . The Trial
Examiner concluded that since this statement was not made until
November 22, 1938, the respondent was unaware of the union affilia-
tion of its employees until that time. We are of the opinion that the
respondent was aware of the union activities of its employees almost
TEX-O-KAN FLOUR MILLS COMPANY 805
from the inception of such activities. This fact is clearly indicated
by the statements of Smith to the employees as early as November 4,
1938, to the effect that he'was aware of the unrest then existing among
the employees. Furthermore, the record shows that as early as
November 15, 1938, the respondent, through its supervisory officers,
indicated its opposition to the activities of the Union. Then, too, it
is entirely probable that Fisher was aware of the union membership
prior to the date on which he told Mitchell of his knowledge, and we
so find.
In view of the entire circumstances we find that the respondent
was aware of Newland's membership prior to his discharge. This
fact, the circumstance that Newland's discharge closely followed the
advent of the Union in the plant, the refusal of the respondent to
follow its usual procedure and allow Newland to correct his error on
his own time, together with the anti-union attitude displayed by the
respondent, indicate that the error attributed to Newland was a mere
pretext used by the respondent in its attempts to rid the plant of
union men. We find that the respondent discharged Newland
because of his union membership and activities.
G. 0. Stewart started working for the respondent as a sweeper on
or about November 15, 1926. During his employment he was
promoted to the position of oiler, then to the position of feed packer,
which job he held at the time of his discharge. He had been engaged
as a feed packer for 8 years prior to his discharge. Stewart had more
seniority than any other feed packer in the respondent's employ at
that time. He was one of the original members of the Union, having
joined on November 6, 1938.
On November 21, 1938, Stewart was summoned to the office where
Howse, Wilson, and Boyle were test weighing the feed of two packers
on the shift. According to Stewart, about seven or eight sacks which
he had packed appeared to be 3 to 5 ounces overweight. Upon the
completion of the test Howse told Stewart that he was discharged
because of the errors made. Stewart testified that he protested on
the ground that he had been with the respondent for 12 years and had
never previously been singled out for such an error. Stewart also
testified that he requested Howse to reweigh the bags on the old type
beam scales that Stewart had originally used in weighing the bags.
Stewart claimed that the scales that he had been using might be
inaccurate and that could have been the reason for the discrepancies
in weight. Howse refused this request, stating that the scales would
not vary.
Howse, a witness for the respondent, testified on direct examination
that Stewart was discharged because of "bad weights." Howse also
testified that Stewart's weights were "uneven," that is to say they
were irregular, some of the bags being overweight and the others being
323429-42-vol. 26-52
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
underweight . On cross-examination Howse could not recall how far
Stewart's weights were off. He stated that all he could remember was
that the weights were variable, being both over and under. This
contrasts with Stewart's testimony in which he stated that his weights
were not more than 3 to 5 ounces overweight. We find in accordance
with Stewart's testimony . Howse further testified that prior to the
time that Stewart and Tomlin were discharged he had cautioned the
men in the plant to be careful about their weights on numerous occa-
sions; however, he stated he had no record and did not know how long
it had been since he personally tested the weights of the particular
men in the plant. Furthermore, while Howse stated that the check-up
on weights was made in the ordinary "course of events during a
periodical check-up," he could give no definite date or time as to when
these so-called "periodical check -ups" were made , stating that they
were made at his choosing. Howse conceded that no particular com-
plaint had been made which might have served as a reason for making
the "check-up" at this particular time. Howse admitted that the
misweighing of flour was not always a dischargeable offense, but stated
that after a man was warned and thereafter continued to have had
weights he was discharged. Stewart testified that he had never
previously been singled out for such an error. Howse conceded that
he could not remember having singled out or cautioned Stewart in this
respect. We therefore conclude that this was the first offense of
Stewart with respect to misweighing flour. Finally , it is clear from
the record that on prior occasions where such mistakes occurred the
respondent allowed the packers to repack the flour on their own time.
This privilege was not accorded Stewart.
The Trial Examiner found that Stewart was not discriminatorily
discharged on the ground that no proof was offered to show that
Howse knew of Stewart 's union membership . In view of the strong
anti-union attitude displayed by the respondent and in view of the
facts set forth in our discussion of Newland upon this point, we can-
not agree with the Trial Examiner in this respect. In view of the
entire circumstances we are convinced that Howse, as well as the other
supervisory employees of the respondent , were well aware of the fact
that Stewart was a member of the Union and that he had participated
in union activities at the time he was discharged.
The circumstances showing that Stewart had been in the employ
of the respondent for over 12 years, that during his employment he had
never been seriously criticized for his work, that the error ascribed to
Stewart was his first offense in the matter, that the check-up on
weights occurred shortly after the inception of the Union without
apparent cause therefor, that Stewart was not accorded the privilege
of correcting the error on his own time, that Howse refused to check
the weights on the scale that Stewart had been using , even though
TLX-O-KAN FLOUR MILLS COMPANY 807
requested to do so by Stewart, when viewed in the light of the general
anti-union attitude displayed by the respondent, convince us that the
error attributed to Stewart was a pretext designed to cloak the real
motive of the respondent for discharging him. We find that the
respondent discharged Stewart because of his union membership and
activity.
R. H. Tomlin had been working for the respondent as a feed packer
for 2 years prior to his discharge on November 21, 1938. He had
been in the employ of the respondent for, approximately 5 years. He
testified, without contradiction, that during his employment his work
had never been criticized. Tomlin was a member of the Union at the
time of his discharge.
Tomlin testified that when he came to work on November 21, 1938,
Stewart, whom he relieved, told him that he had been discharged
allegedly for, short weights, but in reality because of his union affilia-
tion and warned him to be very careful about his weights. As a
result of this warning Tomlin testified that he was particularly careful
about his work. However, about 5 'clock Tomlin and Chisum, the
other feed packer, were called to the respondent's office where Howse
was test-weighing the bags that the two feed packers had packed.
Tomlin testified that Howse demonstrated that only one bag that
he had packed was 1/2 pound underweight and that the remainder
appeared to be correctly weighed. On the other hand, Howse
testified that the bags Tomlin had packed varied in weight from 12
ounces underweight to 8 ounces overweight. We find in accordance
with Tomlin's version of the error. It seems improbable to us that
Tomlin, who had been warned that a mistake on his part would result
in his discharge, would be as careless as Howse's testimony seems
to indicate.
The Trial Examiner found, as in the case of Stewart and Newland,
that the respondent was not aware of Tomlin's union membership at
the time of his discharge and therefore dismissed the complaint as to
him. For the reasons set forth above in the cases of Stewart and
Newland, we cannot agree with the Trial Examiner's conclusion. In
view of the entire circumstances we are convinced that the respondent
was aware of Tomlin's union affiliation and activity, and so find. As
in the case of Stewart, this was the first offense of Tomlin in mis-
weighing feed. He testified that he had never been singled out for
bad weights on any previous occasion. Howse admitted that he
could not recall having singled out or cautioned Tomlin on any pre-
vious occasion. Furthermore, Howse conceded that the misweighing
of flour was not always a dischargeable offense. It seems strange
that both Tomlin and Stewart should be discharged upon their first
offense, especially after having served the respondent for such a long
period of time without previous mishap.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent discharged Tomlin because of his
union activities and membership.
Jack Burns had been in the employ of the respondent slightly more
than 3 months prior to January 6, 1939, the date of the termination of
his employment. He joined the Union on or about November 13,
1938, and began to wear his union button about December 15, 1938.
Sometime in December 1938 Burns refused to sign the anti-union
petition then being circulated by Johnson.
On January 5, 1939, during the course of his work, Burns loaded
the wrong kind of flour in a freight car. Burns testified that on the
day in question E. K. Wilson, the loading foreman, verbally instructed
him to load a certain type of meal in the car and that he did so. It
appears that Burns should have followed the written instructions
which were posted for his benefit. However, Burns testified that in
accordance with previous custom he followed the verbal instructions
of his foreman. On the following day Wilson informed him that he
had loaded the wrong type of meal do the car and was therefore dis-
charged. Burns testified that he protested on the ground that he
had followed Wilson's instructions. Wilson did not appear as a
witness for the respondent. We find, therefore, that Wilson mis-
informed Burns as to the type of flour that was to be loaded and that
as a consequence the error was committed.
Howse, a witness for the respondent, testified that his investigation
of the matter revealed that Burns had loaded the car where. the mis-
take was made and that he therefore ordered his discharge. Howse
admitted that he made no investigation to find out whether Burns or
Wilson was responsible for the error.
The Trial Examiner found that Burns was discharged for reasons
other than his union activities. We are not in agreement with the
finding of the Trial Examiner in this respect. The respondent's
hostile attitude toward the Union, the circumstances surrounding
the discharge of Burns showing that it was the fault of Wilson that
caused the error complained of, when considered together with the
evidence indicating that the respondent was aware of Burns' union
activities and membership, convince us, and we find, that Burns
was discharged because of such membership and activities.
H. P. Chisum had been in the employ of the respondent for approxi-
mately 1 year and 10 months prior to the termination of his em-
ployment on March 17, 1939. Chisum joined the Union on November
13, 1938, and wore his union button while at work. He testified that
Howse warned him on several occasions that he was going to "get
him after a while," and that the last occasion occurred on the night
of Tomlin's discharge on November 21, 1938. Howse, a witness for
the respondent, did not deny Chisum's testimony in this respect. It
also appears that sometime in December 1938 Jack Boyle, the load-
TEX-O-KAN FLOUR MILLS COMPANY 809
ing foreman, requested Chisum to sign the anti-union petition which
was then being circulated in the mill. Boyle told him that his job
would "last longer" if he signed the petition. Despite this threat
Chisum refused to sign.
On March 14, 1939, Chisum became ill and requested a fellow
employee, Hall, to notify the respondent that he would not report
for work because of his illness. Three days later Chisum returned
to work and was told by Howse that he was discharged for failing
to report his illness. Chisum testified that he told Howse that he
had asked Hall to report his illness to the respondent and that he
called Hall into the office to corroborate this statement. According
to Chisum, Hall informed Howse that he had reported Chisum's
sickness to Willis, the head miller, and that Willis had obtained a
substitute for Chisum. According to Chisum, Howse then told him
that he was not discharged but merely laid off. Chisum was never
recalled by the respondent. Howse, a witness for the respondent,
did not deny the testimony of Chisum in the above respect. We
therefore conclude that Chisum's version of the incident is correct.
The Trial Examiner found that Chisum was discharged for reasons
other than his union activities. Apparently he based his conclusion
on the supposition that Chisum could not be depended upon to appear
for work. This finding was based upon the testimony of Fisher who
made such a statement, and on the basis of Chisum's testimony
wherein he stated that sometimes illness obliged him to remain at
home. It appears, however, that Chisum's testimony in the above
regard was made solely for the purpose of demonstrating that on
previous occasions when he had become ill lie had reported his illness
through another employee.
The fact that Chisum's absence was clearly excusable, since his
illness was reported to the respondent in accordance with the usual
procedure, when viewed in connection with Howse's threats to "get"
Chisum, leads us to believe that his absence from work was seized
upon as an excuse for getting rid of a union employee. In view of
the entire circumstances we find that Chisum was discharged because
of his union membership and activities.
On or about March 29, 1939, the respondent terminated the em-
ployment of 18 employees including the 13 complainants who are
named below. The following is a brief summation of the duties,
length of service, and union activities of these complainants.
H. E. Smith started working for the respondent in January 1936.
At the termination of his employment he was employed on the ware-
house loading gang. Smith joined the Union on November 10, 1938,
and wore his union button at work. He testified that on or about
February 15, 1939, E. K. Wilson, the warehouse foreman, told the
loading gang, "If you boys don't get out of the Union you are going
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to lose your jobs." This , testimony was not denied by the respondent.
Smith ' s name does not appear upon either of the anti -union petitions
circulated in the respondent 's mill. -
C. W. Fidler, also a member of the loading gang, began working
for the respondent on October 5, 1938. He was a member of the
Union and wore his union button while at work. He testified that
in January or February 1939, E. K. Wilson told the loading gang
that "we might as well get out of the Union, that the company had
too much money, we couldn't fight them, they would whip us. He
said that Jack Burrus would shut that mill down and not run it any
more and he would do that before he would have the Union run it."-
This testimony was undenied . Fidler also testified that on or about
December 15, 1938, Johnson approached him during working hours
and said, "If 1 can get you boys to sign this petition I can get you
better working conditions , such as smoking , working more hours."
Johnson also stated, according to Fidler, that the respondent was
sending its business elsewhere and that business would get better if
the employees would sign the petition . Fidler refused to sign the
petition . Johnson did not testify for the respondent.
G. W. Smith, also a member of the loading gang , began working
for the respondent on October 15, 1938. He joined the Union on
November 6 , 1938, and wore his union button while at work. He
refused to sign the anti-union petition circulated by Johnson about
the middle of December 1938. He testified that Wilson told the
loading gang sometime in February 1939 that the "Union didn't
have a chance ." This testimony remained uncontroverted on the
record.
F. M. Maddux worked steadily for the respondent as a sweeper
and on the loading gang from 1929 until March 1939 . He joined the
Union on November 20, 1938, and wore his union button while at
work. His name does not appear on either of the anti-union petitions.
C. C. Wilson began -working for the respondent on September 20,
1937. He was working on the loading gang at the termination of his
employment. He became a member of the Union on November 10,
1938, and was a member of the executive board for the Union. He
displayed his union button while at work. His name does not appear
on either of the anti-union petitions circulated in the plant.
He7bert Cowsert began work as a trucker for the respondent in
October 1936 and ended as a car loader. During his,employmant he
received two raises in pay. Cowsert was one of the group of em-
ployees who protested to Howse about the reduction in wages that
the employees received on or about November 1, 1938, and was told
by Howse not to do .anyt'h ng drastic when Cowsert suggested that
the employees might do better with an outside organization working
on their behalf . He became a member of the Union on November'
TEX-O-KAN FLOUR MILLS COMPANY 811
6, 1938, and was elected financial secretary of the local. He did not
sign the anti-union petition circulated by Johnson.
C. M. Hardgrove began working for the respondent in 1930 and
was engaged as a flour packer upon the termination of his employment.
He joined the Union on November 6, 1938, and wore his union button
while at work. He refused to sign the anti-union petition circulated
by Johnson. He testified that during the period of his employment
the respondent usually laid off the most recently hired employees
when a reduction in force became necessary. This testimony was not
denied by the respondent. Hardgrove had seniority over a number
of packers who remained in the employ of the respondent.
Emory Kreidel began working for the respondent on January 7, 1937:
At the time of the termination of his employment he was engaged as a
trucker in the warehouse. He was a member of the Union and wore
his union button while at work. Kreidel testified that Johnson and
Boyle met him near his house on December 17, 1938, and asked him to
sign the anti-union petition, Johnson stating, "We have 68 men that
have already signed." When Kreidel refused to sign the petition,
Johnson said to him, "Well, you know the reason you are not getting
any more working time is on account of the Union and the reason we
haven't got any more business out there is because they are sending the
business other places in order to freeze out the Union." Neither
Johnson nor Boyle appeared as witnesses to deny the above statements.
R. M. (Manley) Davis was first employed by the respondent on De-
cember 2•, 1919. He was engaged as a flour packer and had 20 years
seniority. He testified that several weeks prior to his discharge he
and his partner made a record in packing flour and were complimented
by Jack Burrus, the president of the respondent. This testimony was
not denied. • Davis joined the Union on November 10, 1938. His
name does not appear on either of the anti-union petitions.
A. L. Hampton began working for the respondent in January 1937.
He was engaged as a flour packer at the termination of his employment.
Hampton joined the Union at its second meeting and wore his union
button while at work. On or about December 15, 1938, Boyle, the
loading foreman, attempted to persuade Hampton to sign the anti-
union petition, saying, "We are trying to get the boys to sign this.
We are going to get better conditions if we can get this thing squelched."
Hampton refused to sign the petition.
J. C. Carroll had been in the respondent's employ as a flour packer
for 24 years prior to the termination of his employment. He joined
the Union on November 16, 1938, and displayed his union button
while at work. His name does not appear on either of the anti-union
petitions.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. H. Atchison began work for the respondent April 22, 1937, as
a feed packer. He joined the Union on November 6, 1938, and dis-
played his union button while at work. His name does not appear on
either of the anti-union petitions. Atchison testified that sometime in
January 1939 he had a conversation with A. J. Ball, head millwright at
the mill, in which he told-Ball about the unrest at the mill and about
having read in the paper that 143 men had been ordered back to work
at some other plant and had been paid $185,000 in back pay. Accord-
ing to Atchison, Ball replied, "Burrus wouldn't. They will buy that
fellow Elliott off." 27 Ball did not testify for the respondent.
John Crouch did not appear to testify on his own behalf and there
is no evidence in the record concerning him. We shall therefore
dismiss the complaint as to him.
The respondent contends that the above-named employees were laid
off because business conditions necessitated a reduction in force. The
respondent offered no statistical data showing a reduction in business
to justify such a lay-off. As a matter of fact the number of overtime
hours put in by the respondent's employees since the reduction in
force indicates that the respondent's business has increased rather
than decreased since the lay-off, especially during the month of Sep-
tember 1939. Since March 29, 1939, and up until September 20, 1939,
the employees in the warehouse department have put in approxi-
mately 1,903 hours of overtime, while the employees in the loading
department have put in approximately 2,666 hours of overtime. In
both instances the respondent has paid the employees who have put
in such overtime, time and a half for their overtime work. Further-
more, since March 29, 1939, the respondent recalled 4 of the 18 em-
ployees 28 laid off and has hired 12 new employees. The positions and
date of employment of the individuals who were hired are revealed in
the table set forth below.
Name Duties Date of firstemployment
A H Balch------------------------------- Warehouse-------------------------------- 9-13-39
J J Krauss ----------------------------------- Warehouse------------------------------- 4-26-39
Lawrence Livingston-----_ ----------- Sweeper----------------------------------- 6-28-39
Eldon McClellan----------------------------- Sweeper--------------------------------- 9-20-39
Bill Russell- --------------------------------- Sweeper----------------------------------- 6- 7-39
Ira Woodard ---------------------------------- Unloader---------------------------------- 6-28-39
William Summers----------------------------- Warehouse-------------------------------- 3- 8-39
Ben Williams ----------------------- Warehouse-------------------------------- 29 1-31-38
In addition to the above employees the record reveals that since
March 29, 1939, the respondent hired four new negro employees to
i7 Edwin A. Elliott is the Board's Regional Director at Fort Worth, Texas
28 Two of the employees who were recalled were union men while two were non-union employees. Of
the two union men , one, S. J Hall, had signed both of the anti-union petitions referred to above.
22 Williams was transferred from the respondent 's Corsicana , Texas, warehouse to the Burrus mill some-
time after March 29, 1939
TEX-O-KAN FLOUR MILLS COMPANY 813
do clean-up work around the plant, which type of work had formerly
been done by the loading gang.
The position and duties of the complainants are set forth in the
table below:
Name Duties
Date of first
employment Laid off
Emory Kreidel ----------------------- Trucker------------------------------- 1- 7-37 3-28-39
H E. Smith-------------------------- Warehouse--------------------------- 1- 1-36 3-28-39
C W. Smith-------------------------. Warehouse ----------- --------------- -- 10-15-38 3-28-39
. M (Manley ) Davis ---------------R Flour packer ---------- ------------ ---- 12- 2-19 3-28-39
C. M Hardgrove --------------------- Flour packer -------------------------- 9-29-30 3-28-39
A L. Hampton---------------------- Flour packer -------------------------- 1- 7-37 3-28-39
F Maddux--------------------------- Sweeper------------------------------- -29 3-28-39
J. C Carroll -------------------------- Flour packer -------- ------------------ 8-15-38 3-29-39
C W. Fidler-------------------------- Warehouse ---------------------------- 10- 5-38 3-28-39
H. H Cowsert------------------------ Trucker------------------------------- 10-15-36 3-28-39
John Atchison------------------------ Feed packer --------------------------- 4-22-37 3-28-39
C. C. Wilson------------------------- Warehouse--------------------------- 9-20-37 3-28-39
It is clear from a comparison of the two tables set forth above
that the respondent in hiring the new employees had, in several
instances, replaced the complainants. For example, four warehouse
employees were laid off while subsequent thereto four new warehouse
employees were hired. No reason was offered by the respondent for
not recalling the laid-off employees when positions of the type they
were capable of filling became available. We deem this particularly
significant in view of the oft repeated statements of the respondent's
counsel that if and when employment of the nature that the com-
plainants were capable of performing became available, they would
be recalled.
While it is true that the respondent did not in every instance hire
new employees to take the identical place of the complainants, it
did shift its force in such a manner as to effectively replace most of
the complainants. W. H. Nichols, an employee, testified that since
March 29, 1939, Krauss,30 one of the new employees, was shifted
from the position of sweeper to that of trucker. The record shows
that Maddux, one of the complainants, was a sweeper while Kreidel
and Cowsert were both truckers. No reason was offered by the
respondent for preferring the services of Krauss, a new employee, to
that of the above-named employees. Nichols further testified that
Hogger and Williams, sweepers, were transferred from the positions
they were originally hired for to fill in on the loading gang sometime
after March 29, 1939. It was also testified that other transfers were
made within the plant. These transfers together with the hiring of
new employees make it evident that the respondent was replacing
the complainants either by hiring new employees in their places
directly or by transferring old employees to their places and substi-
tuting new employees in the places of the transferees. The testimony
30 Also referred to in the record as Crouse.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Nichols in this and analogous respects was not disputed by the
respondent.
It should be noted, moreover , that the respondent offered no
reasonable explanation of the manner in which it selected the persons
to be laid off . A. E. Howse, superintendent of the warehouse and
packing departments , who was instrumental in choosing the com-
plainants for the lay-off, was repeatedly requested by Board's counsel
to explain why the complainants were chosen for the lay-off rather
than other employees . Howse was vague and indefinite in his testi-
mony. The following are typical examples of the reasons offered by
Howse for choosing the complainants':
Q. What factors did you take into consideration in determin-
ing what men you would lay off, Mr. Howse?
A. Well, it would be hard to definitely state; in other words,
it is merely a judgment that a man in that position , that men
would have to go about in making those decisions , like you would
in the regular course of any business.
Q. Did you take into account the length of service the men
had had there?
A. Various and sundry reasons and facts.
Q. All right. I want to know what those various and sundry
reasons were.
A. Well, there is nothing definitely that I could speak of.
Q. Just name the factors you took into account?
A. Trying to give every man, as far as I could see , a square
deal as is humanly possible, and we couldn't keep all of them.
Q. When individual lay-offs were made, ability being equal,
you followed seniority as closely as possible, did you not?
A. Well, as closely as possible, yes.
Q. Why then did you lay off Mr. Carroll with 27 years seni-
ority?
A. I don't remember what our reason was. I don't recall.
Under further cross-examination Howse stated that the manage-
ment considered the lay-offs for some time prior to the actual occur-
rence, but that he "couldn ' t recall what discussion went on with
regard to these men , or why we picked this one or why we picked
that one."
In view of Howse's testimony and the entire record it is clear that
the respondent did not choose the persons to be laid off upon the
basis of their ability or service. Indeed, Howse admitted that all of
the laid-off employees were as competent as the men retained. The
record reveals that in most instances the complainants had more
seniority than certain employees who were retained.
TEX-O-KAN FLOUR MILLS COMPANY 815
We cannot find, on the entire record, that a reduction in force was
necessary for business reasons at the time the 12 complainants were
laid off. But even if this were true, as the respondent contends, we
are nevertheless convinced that the criterion used by the respondent
in selecting the complainants as the persons to be laid off was their
union activities and membership. The facts showing that out of 18
persons laid off all but 2 were union men; that both of the non-union
men were later reinstated, while only 1 union 31 man out of 16' was
reinstated; the failure of the respondent to offer any valid reasons for
selecting the particular persons to be laid off; the fact that the respond-
ent hired new employees subsequent to the lay-off of the complainants
and by shifting its force actually replaced many of said complainants;
the fact that subsequent to the lay-offs it required its employees to do
considerable overtime work; together with the general anti-union
attitude of the respondent as it is revealed in the record, leads us to
conclude, and we find, that the respondent selected for lay-offs and
laid off Emory Kreidel, H. E. Smith, G. W. Smith, R. M. (Manley)
Davis, C. M. Hardgrove, A. L. Hampton, F. M. Maddux, J. C.
Carroll, C. W. Fidler, H. H. Cowsert, John Atchison, and C. C.
Wilson because of their union membership and activities.
L. M. Mitchell had been in the employ of the respondent for approx-
imately 2 years prior to his discharge on August 31, 1939. He joined
the Union in November 1938 and wore his union button while at work.
As we have noted above, on or about November 22, 1938, Paul Fisher,
the superintendent of the mill, asked Mitchell if he was a member of
the Union. When Mitchell replied that he was, Fisher, while dis-
claiming any opposition to the Union, stated that he was afraid the
employees were making a mistake and suggested that they have an
inside organization rather than having "outsiders" represent them.
Fisher further stated that he knew who, among the employees, were
members of the Union; that he had ways of finding out such matters;
and that the dues paid by the employees went into the pockets of the
organizers.
In the latter part of December 1938 Mitchell went to see J. Paul
Smith, the manager of the Burrus mill, for the purpose of securing a
loan of $12., While he was there Smith asked him if he was a member
of the Union and upon receiving an affirmative reply, Smith said,
"Well, I'm afraid you boys are making a mistake, I don't have any-'
thing against the Union, but I believe you are making a mistake."
During the course of the conversation which ensued Smith asked for
the names of the employees "that would pull out of the Union."
When Mitchell protested that this was unfair, Smith stated, "Mitchell,
if the Labor Board gets hold of this it is a damn lie. I never said it."
31 S. I. Hall, the other person reinstated , having signed the anti-union petitions thereby, in effect, resigned
from the Union.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith further stated that the employees "who stayed out of the
Union and stuck to the mill would work if he had to put guards out
there and guard them ." Before Mitchell was able to secure his re-
quested loan of $12, Smith had him sign the anti-union petition which
expressed satisfaction with the working conditions and a feeling that
the employees would deal with the respondent " without the help and
cost of some outside organization." -
Mitchell was discharged on August 31, 1939. His discharge came
about under the following circumstances : It is the custom of the
respondent to sell old bags to a junkman or to any of its employees
who may wish to purchase the same for home use or resale. Prior to
August 31 , 1939, Mitchell had been in the habit of buying bags of
this type from the respondent . On August 31, 1939, he was a party
to one of these transactions . J. Paul Smith ,, general manager of the
mill, testified that on or about August 31 a friend of his in the milling
business called up by telephone and informed him that Mitchell had
brought some jute bags and wanted to sell them to him . It appears
that the respondent used jute bags in its business and that ordinarily
it did not sell them as junk. Smith testified that he immediately
told Howse to find out how Mitchell got the bags . Howse testified
that upon investigation he discovered that Mitchell had obtained the
bags without going through the normal procedure of obtaining the
consent of the bagman as to the particular type of bags he was to
take. It also appeared that among the bags purchased by Mitchell
as junk burlap were several bags of good material which the respondent
could have used in its business . Howse accused Mitchell of having
wrongly graded the bags and thus obtained the good bags. According
to the respondent this led to the discharge of Mitchell.
On the other hand, Mitchell testified that on or about August 30,
'1939, he asked Joe Johnson , the bagman , if he could purchase a pile
of old bags that were going to be discarded . According to Mitchell,
Johnson agreed and stated that he could have the bags. On the
following day Mitchell testified that.he was going to get the bags
but that he was unable to do so because Johnson was out of the plant.
According to Mitchell he counted out the bags and determined how
many were there and whether there were any of good quality. He
then sought the advice of Brinkley , the assistant bagman, as to
whether he could take the bags. According to Mitchell , Brinkley
said it was all right providing he obtained Johnson's consent. Mitch-
ell then went to the office to discover where Johnson could be located.
It appears that Johnson had been excused from work that day so that
he might move his belongings from one place of residence to another.
According to Mitchell , he thereupon went to the home of Johnson
and specifically asked him whether he could have the bags at the
TEX-O-KAN FLOUR MILLS COMPANY 817
price quoted to the junkman. According to Mitchell, he told Johnson
that there were some good bags in the group, but that Johnson stated
that these bags were "weegi}y" and that he could have them as junk.
Mitchell then returned to time plant, took the bags and made arrange-
ments with the office to pay for them out of his check. - Neither
Johnson nor Brinkley appeared as witnesses for the respondent. We
find that Mitchell's version of the bag incident is correct.
Howse conceded on cross-examination that Mitchell acted with
complete honesty in the matter. Howse further admitted that
Mitchell had informed him of the procedure he had gone through in
obtaining the bags. However, Howse stated that Mitchell should
have waited until Johnson returned to the plant so that he could
have graded the bags and thus prevented Mitchell from getting the
bags which the respondent believed were good bags. Although
Mitchell did not accomplish the purchase of the bags on this occasion
in the customary manner, the respondent was fully aware of the fact
that he had acted in accordance with the instructions given to him
by his foreman and without any intention of defrauding the respondent.
In view of the strong anti-union hostility displayed by the respond-
ent, particularly with reference to Mitchell, in view of the fact that
Mitchell's action was clearly excusable, and that the respondent was
aware of the entire situation at the time of his discharge, we conclude
that the respondent seized upon the alleged error of Mitchell as an
excuse to discharge him and that the real reason for his discharge
was his union membership and activities.
In summation, we find that the respondent discriminated in regard
to the hire and tenure of employment of G. 0. Stewart, V. L. Newland,
R. H. Tomlin, John Burns, H. P. Chisum, H. E. Smith, Emory
Kreidel, R. M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton,
J. H. Atchison, F. M. Maddux, C. C. Wilson, G. W. Smith, J. C.
Carroll, C. W. Fidler, Herbert Cowsert, and L. W. Mitchell. We
find that by such discrimination the respondent has discouraged
membership in Local No. 21827, and has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
We find that the respondent has not discriminated in regard to the
hire and tenure of employment of Claude Henson and John Crouch
within the meaning of Section 8 (3) of the Act, and the allegations
in the complaint with respect to them will, therefore, be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substantial
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom and to take
certain affirmative action which we find necessary to effectuate the
policies of the Act.
We have found that the respondent has discriminated in regard
to the hire and tenure of employment of John Marple, 0. H. Kirby,
E. C. Carey, M. L. Fielding, Loys McMurray, H. P. Baker, Jim
Arnold, Billie Hansell, Jimmie Ervin, Samuel Vodnick, and Robert
Stewart at its Morten mill; and has discriminated in regard to the
hire and tenure of employment of G. 0. Stewart, V. L. Newland,
R. H. Tomlin, Jack Burns, H. P. Chisum, H. E. Smith, Emory Kreidel,
R. M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton, J. H.
Atchison, F. M. Maddux, C. C. Wilson, G. W. Smith, J. C. Carroll,
C. W. Fidler, Herbert Cowsert, and L. M. Mitchell, at its Burrus
mill. In order to effectuate the policies of the Act we shall order the
respondent to reinstate the above-named employees to their former
positions or, if these are not available, to substantially equivalent
positions. Where necessary, we shall require the respondent to dis-
place employees who have succeeded to these positions, or to positions
which either because of seniority or the practice of the respondent
should have been offered to one of the above-named employees. We
shall also order the respondent to make each of the above-named
employees whole for any loss of pay he may have suffered by reason
of such discrimination by payment to each of them of a sum equal to
the amount which he normally would have earned as wages from the
date of the discrimination to the date of the offer of reinstatement,
less his net earnings32 during such period.33 However, since the
Trial Examiner dismissed the complaint in so far as it alleged that the
respondent discriminatorily discharged E. C. Carey, H. P. Baker,
Jimmie Ervin, Samuel Vodnick, Robert Stewart, and G. 0. Stewart,
32 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, Lumber and Sawmill Workers Union, Local 8590, 8 N. L R B 440. Monies received for
work performed upon Federal, State, county, municipal, or 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 be 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 Matter of
Republic Steel Corporation and Steel Workers Organizing Committee , 9 N. L R B 219, enf'd as mod as to
other issues , Republic Steel Corporation v. N. L. R. B , 107 F. (2d) 472 (C. C A 3), cert granted as to this
issue, May 20, 1940
33 The date of the discrimination as to M. L. Fielding occurred on March 8 , 1939, when the respondent
hired a new employee rather than recalling Fielding for a position which he could have filled.
TEX-O-KAN FLOUR MILLS COMPANY 819
V. L. Newland, R. H. Tomlin, Jack Burns, H. P. Chisum, H. E.
Smith, Emory Kreidel, R. M. (Manley) Davis, C. M. Hardgrove,
A. L. Hampton, J. H. Atchison, F. M. Maddux, C. C. Wilson, G. W.
Smith, J. C. Carroll, C. W. Fidler, Herbert Cowsert, and L. M.
Mitchell, we will exclude from the computation of back pay for each
of the above individuals the period from the date of the Intermediate
Report, January 25, 1940, to the date of this order.34
Since we have found that the respondent has not discriminated in
regard to the hire and tenure of employment of J. C. Penny, Roy
Frank, Ed Starr, M. L. Brittian, Claude Henson, and John Crouch,
we will order that the complaint be dismissed in so far as it alleges
that the respondent has engaged in unfair labor practices by dis-
charging these individuals.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. National Council of American Federation of Grain Producers,
affiliated with the American Federation of Labor; Flour, Feed Mill
and Cereal Workers' Union No: 21818; and Flour, Feed Mill and
Elevator Workers' Union No. 21827, are labor organizations, within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of John Marple, 0. H. Kirby, E. C. Carey, M. L. Fielding,
Loys McMurray, H. P. Baker, Jim Arnold, Billie Hansell, Jimmie
Ervin, Samuel Vodnick, Robert Stewart, G. 0. Stewart, V. L. New-
land, R. H. Tomlin, Jack Burns, H. P.' Chisum, H. E. Smith, Emory
Kreidel, R. M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton,
J. H. Atchison, F. M. Maddux, C. C. Wilson, G. W. Smith, J. C.
Carroll, C. W. Fidler, Herbert Cowsert, and L. M. Mitchell, thereby
discouraging membership in Local No. 21818 and Local No. 21827
of the Union, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its 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.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section' 2 (6) and (7)
of the Act.
ai See Matter of E R. Haffelfinger Company, Inc . and United Wall Paper Crafts of North America, Local
No. 6,1 N. L. R. B 760, 767; Matter of Colorado Milling & Elevator Company and Denver Trades and Labor
Assembly, 11 N L. R. B. 66, Matter of C G. Conn , Ltd. and Metal Polishers International Union, Local No.
77, 10 N. L. R. B. 498.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The respondent has not discriminated in regard to the hire and
tenure of employment of J. C. Penny, Roy Frank, Ed Starr, M. L.
Brittian , Claude Henson, and John Crouch, 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 the
respondent , Tex-O-Kan Flour Mills Company , Dallas, Texas, and
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Flour, Feed Mill and Cereal
Workers' Union No. 21818 and Flour, Feed Mill and Elevator Work-
ers' Union No. 21827, or any other labor organization of its employees,
by laying off , discharging , or refusing to reinstate any of its employees
or in - any other manner discriminating in regard to their hire and
tenure of employment or any terms or conditions of their 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 activities for the purpose of collective bargaining or other
mutual aid or protection as guaranted in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to John Marple , O. H. Kirby, E. C. Carey, M. L. Fielding,
Loys McMurray, H. P. Baker, Jim Arnold, Billie Hansell, Jimmie
Ervin, Samuel Vodnick, Robert Stewart , G. O. Stewart , V. L. New-
land, R. H. Tomlin, Jack Burns, H. P. Chisum, H . E. Smith, Emory
Kreidel, R. M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton,
J. H. Atchison, F. M. Maddux, C. C. Wilson, G. W. Smith, J. C:
Carroll, C. W. Fidler, Herbert Cowsert, and L. M. Mitchell, immediate
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges,
displacing , if necessary , any employees who may have succeeded to
their former positions or to any other position which because of
seniority or the practice of the respondent should have been offered
to any of the above-named employees;
(b) Make whole John Marple, O. H. Kirby, M. L. Fielding, Loys
McMurray , Jim Arnold, and Billie Hansell for any loss of pay they
may have suffered by reason of the respondent 's discrimination in
regard to the hire and tenure of their employment and the terms and
conditions of their employment by payment to each of them of a sum
of money equal to that which each would normally have earned as
TEX-O-KAN FLOUR MILLS COMPANY ' 821 ,
wages from the date of such discrimination to the date of the offer of
reinstatement, less his net earnings 35 during the said period; deducting;
however, from the amount otherwise due to each of said employees,
monies received by said employees during said period for work per-
formed upon Federal, State, county, municipal, or' other work-relief'
projects; and pay over the amount so deducted to the appropriate
fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief
projects;
(c) Make whole E. C. Carey, H. P. Baker, Jimmie Ervin, Samuel
Vodnick, Robert Stewart, G. O. Stewart, V. L. Newland, R. H.
Tomlin, Jack Burns, H. P. Chisum, H. E. Smith, Emory Kreidel, R.
M. (Manley) Davis, C. M. Hardgrove, A. L. Hampton, J. H. Atchison,
F. M. Maddux, C. C. Wilson, G. W. Smith, J. C. Carroll, C. W. Fidler,
Herbert Cowsert, and L. M. Mitchell, for any loss of pay they may
have suffered by reason of the respondent's discrimination in regard
to the hire and tenure of their employment by payment to each of
them of a sum of money equal to that which each would normally
have earned as wages from the date of such discrimination to the date
of the offer of reinstatement, excluding therefrom the period between
January 25, 1940, and the date of this Order, less his net earnings 36
during said period; deducting, however, from the amount otherwise
due to each of said employees, monies received by said employees
during said period for work performed upon Federal, State, county,
municipal, or other work-relief projects; and pay over the amount so
deducted to the appropriate fiscal agency of the Federal, State, county,
municipal, or other government or governments which supplied the
funds for said work-relief projects;
(d) Post immediately in conspicuous places throughout its Morten
mill and its Burrus mill, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that
the respondent's employees.are free to become or remain members of
Flour, Feed Mill and Cereal Workers' Union No. 21818 and Flour,
Feed Mill and Elevator Workers' Union No. 21827, and that the
respondent will not discriminate against any employee because of
membership or activity in either of said organizations;
(e) Notify the Regional Director for the Sixteenth Region in writing
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply therewith.
33 See footnote 32, supra.
36 See footnote 32, supra.
323429-42-53
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AND IT IS FURTHER ORDERED that the complaint 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
with respect to J. C. Penny, Roy Frank, Ed Starr, M. L. Brittian,
Claude Henson, and John Crouch.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.