Novelty Peanut Co.Download PDFNational Labor Relations Board - Board DecisionsJul 31, 194669 N.L.R.B. 1031 (N.L.R.B. 1946) Copy Citation In the Matter of C. C. BENNETT , DOING BUSINESS AS NOVELTY PEANUT COMPANY and INTERNATIONAL LONGSHOREMEN 'S AND WAREHOUSE- MEN'S UNION, CIO, LOCAL 218 Case No. 16-0-1193.-Decided July 31, 1946 Mr. Earl Saunders , for the Board. Messrs. Ho yet Armstrong and James H. Walker, of Dallas, Tex., for the respondent. Mr. Howard Goddard, of Dallas, Tex., for the Union. Mr. George J. Hadjino ff , of counsel to the Board. DECISION AND ORDER On December 13, 1945, Trial Examiner Frederic B. Parkes, 2nd, is- sued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain ufair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except insofar as they are inconsistent with our findings and order hereinafter set forth. 1. We agree with the Trial Examiner's conclusion that the respond- ent has engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. We base our findings to this effect upon the acts and statements of the respondent set forth below. During the organizational campaign of the Union in February 1945, McBee, superintendent of the 1509 plant, and Dunam, chief engineer in the 1409 plant, warned employees that respondent Bennett would close the plant down rather than sign a union contract or have any union repr isentative dictating to him how to run his business, and 69 N. L. R. B., No. 126. 1031 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that their union activities would result in the shut-down of the plant and the transfer of the plant to Kaufman. During the same campaign, supervisors threatened employees with the loss of their employment if they joined the Union or engaged in union activities. Thus, McBee stated to employee Bishop that Bishop might hold his job "longer by not belonging to the Union than by belonging to it." Similarly, McBee attempted to intimidate employee Lee by giving her work physically unsuited to her and by telling her "if you join the Union you may not have a job." Chief Engineer Dunam told the employees, who joined the Union, that they "were going to lose [their] money front the Union, going to get [themselves] fired." Forelady Rush reproached employee Thomas for getting her subordinates to join the Union and threatened that she would "see that [Thomas] got fired." Also, McBee inquired what the employees hoped to obtain through the Union that they could not obtain from the respondent and threatened to discontinue his efforts to obtain a wage increase for them if they joined the Union. On numerous occasions, supervisors interfered with the employees' exer- cise of the right to self-organization by urging union representatives or union members to discontinue their organizational efforts. Thus, McBee frequently asked Vestal why he did not "pull out" of the plant, because Vestal "wouldn't help these people here." Supervisor Hamilton asked employee Thomas, who was active in behalf of the Union, why, "if they didn't like" the employment with the respondent, they "didn't quit and let the rest of them alone that was liking it." On numerous occasions during the union campaign supervisors made dis- paraging remarks about the Union. Thus, McBee told Johnson that he had "belonged to several unions and that he never did see one that was worth a damn." Both, Chief Engineer Dunam and Supervisor Hamilton, "made fun" of the Union by calling it the "O-1-C" instead of the "C-I-O." Hamilton observed that "[the Union] was just a bunch of mix-up . . . if our husbands knew what we were doing about the Union, to stop these jobs, they would probably quit fighting." On the day on which the employees donned their union buttons, Super- intendent McBee instructed Floorlady Coker to compile a list of em- ployees who wore union buttons. On the same day, the respondent posted on a bulletin board at both plants a rule against solicitation which prohibited solicitation during working hours on the respondent's premises. Since the rule was so worded as reasonably to lead em- ployees to believe that they could not solicit on company premises dur- ing their non-working hours, the rule was unduly restrictive of legiti- mate union activities. We find that the foregoing statements and acts of the respondent, as well as its discriminatory discharge of employee Keener as found below, were integral parts of a course of conduct by the respondent NOVELTY PEANUT COMPANY 1033 which interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. We do not agree with the Trial Examiner's finding that Bennett, Smith, and Ford "scrutinized the employees wearing union buttons on the day the buttons were distributed and worn for the first time"; and that Floorlady Coker "attended the park meeting at Bennett's in- structions to find out what occurred therein." We are not convinced that the scrutiny of union buttons actually occurred. The finding is based solely upon the testimony of Alton Johnson. Johnson's testimony was expressly denied by Bennett and Ford, and Board witnesses Rogers and Kane failed to corroborate in its entirety Johnson's testimony in regard to the incident. Smith was not questioned. Rogers testified that "[she] could not tell any dif- ference" in the manner in which the employees were scrutinized before and after they began to wear union buttons. Kane testified that neither Bennett nor Smith came and looked at her button. Nor are we con- vinced that under all the circumstances the scrutiny of the union but- tons, if such incident did occur in fact, amounted to interference, restraint, or coercion within the meaning of the Act. Obviously, the purpose of wearing union buttons generally and during working hours is to advertise the employee's union affiliation to all with whom such employee may come in contact. We perceive no reason why the re- spondent or its supervisors should not look at union buttons, worn by employees, provided that their attitude in doing so is not intimidatory, or coercive. Intimidation or coercion can of course be accomplished by looks as well as words, but there is no suggestion that this accompanied the scrutiny here. The Trial Examiner's finding that Bennett sent Floorlady Coker to spy on the union meeting is based upon an affidavit of employee Lyle given to a Field Examiner, in which she stated that Floorlady Coker told her that Bennett "had sent her to the meeting to find out what was being said and done." At the hearing Lyle at first denied that Coker ever informed her that she was sent by Bennett to attend the meeting, asserting that it was just "hearsay and gossip," and that the affidavit did not convey the true meaning of what she said to the Field Exam- iner; later, however, she conceded that the affidavit correctly reflected what she had said. Floorlady Coker denied that anybody told her to go to the meeting and testified that she went out of curiosity and that she made no report of the meeting to anybody. The meeting was an open one; according to one witness "anybody was permitted to go that wanted to." It is clear from the record that Coker attended the meet- ing at the tacit invitation of Alton Johnson, as did Superintendent McBee and other supervisors. There is also evidence showing that Coker favored the organizational activities of the Union. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, we accordingly conclude, and find, that the respondent's officials did not engage in scrutiny of the employees wear- ing union buttons in violation of the Act, and that Floorlady Coker did not attend the union meeting at the request of the respondent and for the purpose of reporting what transpired at the meeting. 3. We agree with, and adopt, the Trial Examiner's findings and conclusion that employee Keener was discharged by the respondent because of his union membership and activities and that the respondent thereby violated Section 8 (3) of the Act. 4. We do not agree with the Trial Examiner's finding that Della Lyle was demoted from a supervisory to a non-supervisory position because of her union membership and activities. The record is none too clear that prior to her transfer Lyle in fact occupied a supervisory position, and that the change in her status was actually a demotion rather than a shift from one non-supervisory position to another. Lyle testified that she was "hurt" because she was given no reason for the transfer, but that she sustained no pecuniary loss, did not object to the change, and told Superintendent McBee that she "would rather wrap candy" than assist Floorlady Coker, because it was "hard on [her]." Moreover, her activities in behalf of the Union were hardly such as to single her out as an object for discrimination. Her most conspicuous activity was loaning money to two girls to pay union dues. Her successor, Fern Ward, was also a member of the Union. Under all the circumstances we find that, by transferring Lyle, the respondent did not discriminate in respect to the hire and tenure of her employment because of her union activities. 5. We do not agree with the Trial Examiner's conclusion that the shut-down of the 1509 plant on March 9, 1945, followed. by the lay-off of employees on the same day, was in fulfillment of threats that the plant would be shut down if the Union succeeded in its organizing campaign rather than because of economic and business exigencies. It is the respondent's contention that the shut-down of the plant and the lay-off of the employees was due to several contributing fac- tors : the prospective termination of the lease on the plant building, the loss of its sugar quotas for making candy, and a shortage of other supplies. The respondent also contends that the shut-down on March 9 was of a temporary character and that the decision to keep the plant closed permanently was not made until after the receipt of the infor- mation from the Washington office of the Office of Price Administra- tion in May that the respondent's application for restoration of its sugar quotas for candy was denied. In support of these contentions the respondent adduced the following evidence. The respondent's lease on the plant was for the term of 1 year, expiring on March 31, 1945, with no option for renewal. During the latter part of 1944 or the beginning of 1945, the respondent con- NOVELTY PEANUT COMPANY 1035 sidered purchasing the building but agreement on the price could not be reached. Sometime between March 1 and March 4 the respondent was orally informed by one Kline, real estate agent for the owners of the building, that the building was for sale and that the lease would not be renewed? This appears from the letter, dated March 9, 1945, in which Kline, inter alia, wrote as follows: As we have already informed you, the owners wish to dispose of the property and we find it practically impossible to sell mercantile buildings where there is an existing lease. We hope that this will not greatly inconvenience you and hope that you can give us possession at an early date. [Italics supplied.] On March 12, the building was sold to the Regal Manufacturing Company and the deed to the property was executed on March 23. After the expiration of its lease on March 31, the respondent con- tinued in possession of the premises on a month-to-month basis for another 2 months, during which time the building was used as a storage place. The new owners bought the building with the original intention of occupying it, and the respondent knew of such intention. Sam Hellbron, one of the purchasers, testified that they would not give the respondent a term lease on the building because at first they intended to occupy the building themselves and, after the middle of April, because they had decided to resell the property. With respect to the loss of sugar quotas for candy, the record shows that, a few days prior to March 6, the respondent was informed by the district office of the Office of Price Administration that its sugar quotas for candy would be discontinued on March 31. The infor- mation. given to the respondent verbally, was later confirmed by a letter dated March 6. Among other things, the letter stated that "inasmuch as the Novelty Peanut Company has not established a base for the production of candy, this office cannot grant further allotments, unless and until the Washington office has authorized the use of this Company's base in the production of candy. . . . The respondent was also informed that it was unlikely that a transfer of its sugar quota from bakery products to candy would be granted by the Washington office. General Manager Smith testified that on March 9 the respondent had a very limited amount of sugar on hand, that its certificates for the first quarter were already used up, and the ' We do not agree with the Trial Examiner's conclusion that because of certain erroneous statements in Bennett 's deposition which were susceptible of the interpretation that in arriving at the decision to close down the plant on March 9 , he relied upon Kline ' s letter of the same date and also upon the sale of the building to the Regal Manufacturing Company, which could not have come to Bennett ' s knowledge until after the shut -down of the plant, there is no merit in the respondent 's contention that the prospective termintaion of the lease influenced the respondent 's decision to close the plant. These statements were ob- viously a mistake , and, in other portions of his deposition . Bennett clearly indicated that he learned of the landlord 's decision to sell the property and not to renew the lease prior to his decision to shut down the ulant on March 9. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supply was so limited that they knew that unless the quota was renewed they would be without any sugar at all.2 Thereafter, the respondent filed a petition for the transfer of its sugar allotment from bakery goods to candy making, and Smith and the respondent's counsel made trips to Washington in furtherance of the petition. Sometime in May the respondent was informed by Washington that its petition was denied. The record also shows that for some time prior to March 9 the re- spondent experienced considerable difficulty in obtaining peanuts and other supplies used in the manufacture and packing of candies. Be- cause of the shortage of such supplies the plant had been temporarily closed on February 14 and 15 and again on February 21 and 22, and the manufacture of "White Cap" centers was temporarily discon- tinned on February 28. On March 9, the supply of boxes and shipping cases for the "White Cap" bars was exhausted. It was not until March 17, after the shut-down, that a new supply of cartons for the "White Cap" and "Pat's" bars was shipped by the manufacturer to the re- spondent. The supply of peanuts used in the "White Cap" and "Pat's" bars was also depleted on that date. About February 14, 1945, the respondent had been notified in writ- ing by its chief supplier of peanuts that no further orders of peanuts would be filled because of governmental restrictions ; thereafter, the respondent had to rely upon other sources of supply, which were in- adequate for the respondent's current needs. General Manager Smith testified, in effect, that when the respond- ent closed the plant down on March 9 it did not know that the closing would be of permanent duration. The decision to close the plant down on March 9 was made because of lack of materials for immediate continuation of operation. The decision to close permanently was not made until May when the respondent was "definitely informed by Washington that [its] sugar quota was gone, for candy." Ben- nett testified that, although on March 9 he made his decision to close the plant, "[he] had a, thin thread of hope" that the Office of Price Administration in Washington would grant his application to restore his sugar quotas for candy. For this reason, he paid rent on the prem- ises for 2 months after the expiration of the lease so that he could resume operations in the event the sugar quota was restored.3 2 The respondent 's sugar quotas for candy amounted to 189,000 pounds annually ; its quota for the first quarter was 35,329 pounds ; on March 9 , according to the credible testimony of General Manager Smith, the respondent had "a very limited amount of sugar on hand" and also 82 pounds in certificates and 2,666 pounds in redemption certificates. 3 Respondent Bennett testified as follows : "We had a thin thread of hope, just like I told you, maybe those boys in Washington * * * decide this little candy plant ought to make candy instead of making bakery products * * * So we thought : Well, we will at least keep the darn thing [the plant] open" * * * pardon me for saying that * * * "We will keep It open and see what happens." NOVELTY PEANUT COMPANY 1037 The Trial Examiner rejected the respondent's explanation that the shut-down of the plant on March 9 was due to economic reasons. He found that the prospective termination of the lease was not a factor which influenced the respondent's decision to shut down the plant, because (a) in his deposition Bennett made the statement, obviously erroneous, to the effect that in arriving at the decision to close down the plant on March 9 he relied upon Kline's letter of the same date; and (b) the respondent could not "be certain on March 9th that it would not be possible to obtain a satisfactory new lease when and if the building should be disposed of." We do not agree. We believe that no undue significance should be attached to Bennett's statement that he relied on Kline's letter of March 9 in deciding to close, because in other portions of his deposition Bennett clearly indicated that he knew, prior to March 9, that the building was for sale and that the lease would not be renewed. General Manager Smith's testimony, as well as Kline's letter of March 9, leaves no doubt that the respondent, in fact, was informed by Kline, prior to March 9, of the owner's de- cision to sell the building and not to renew the lease. We are also of the opinion that reliance on a possibility of obtaining a new lease from a new owner would have been a pure speculation. We cannot say that a reasonably prudent business man, under all the circumstances, would not have been influenced by the expiration of the lease and the absence of reasonable hope of getting another in arriving at the de- cision to close the plant on March 9. The Trial Examiner also found that the loss of sugar quotas was not a factor which influenced the respondent's decision to close the plant, arguing that "at the time the plant closed the matter was still pending and the respondent did not definitely know until some time in May that no sugar would be available for candy making." However, as it appears from the letter of March 6, the loss of the sugar quotas was not prospective merely. The respondent was notified that the district OPA office "cannot grant further allotments unless and until" author- ized by the Washington office. The respondent was also warned at the time that it would be "unusual" for the Washington office to restore sugar quotas for candy. Its supply of sugar on hand was very limited. The Trial Examiner's reliance on his finding that "at the time the 1,509 plant closed, or shortly thereafter, it was discovered that a sugar syrup, known as a refinery syrup, was an adequate substitute for sugar acid that the respondent's products could be made with such syrup without the use of any sugar," as a basis for concluding that the loss of sugar quotas had no material significance in the decision to close the plant, is not warranted. The record clearly indicates that this discovery was, in fact, not made until after the closing of the plant on March 9, and hence could 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not have been given consideration at the time of the decision to close. Nor do we agree with the Trial Examiner's conclusion that if the loss of sugar quotas had been a material factor in the decision to close, Bennett would not have expanded his candy-making interests by participating, to the extent of one-third of the whole interest, in the formation of the Forrest Ford Candies, which commenced operations without a sugar quota on April 1, 1945. Bennett testified that he participated in the formation of the company in order to assist Forrest Ford, his brother-in-law, who had returned from military service a short time before. Forrest Ford testified that plans for forming a partnership in the candy business were made in December 1944, that he began to look for a location for the new business shortly after Christmas, that he made arrangements for a lease on March 1, and signed a 2-year lease on March 15, that the equipment for the plant was ordered during the last part of February or the first of March and that the installation began in April. The record shows that Forrest Ford candies were made of sugar syrup as well as other syrups. Bennett and Ford also testified that the supply of pecans, used in Forrest Ford candies, was plentiful at the time, although peanuts were scarce, and that the Pecan Logs did not require folding boxes and printed wrappers, which were also hard to get. Inasmuch as the respondent was advised of the loss of its sugar quota prior to the shut-down of the plant, its supply of sugar was then dangerously low, there was no adequate substitute for sugar in making its candy, and the chances for a successful outcome of its application to Washington to restore its sugar quotas for candy were slight, we are convinced and find that the loss of sugar quotas was a material factor which influenced respondent's decision to close down the plant. As to the shortage of supplies, the Trial Examiner found that the depletion of supplies would most likely have necessitated only a temporary stoppage of production rather than a permanent closing of the plant. We agree. Although we are of the opinion that the respondent made out a prima facie case for its contention that the prospective termination of the lease, the loss of its sugar quotas for candy, and shortage of peanuts and supplies were the motivating factors in its decision to close the plant at first temporarily and thereafter permanently, we have searched the record carefully for evidence indicating that the controlling reason for the closing of the plant was the Union's success in organizing the respondent's employees rather than the business reasons noted. In this connection several matters merit attention. It has been found that the respondent engaged in unfair labor practices within the meaning of Section 8 (1) of the Act by activities of its supervisory employees and that, in particular, supervisors McBee and Dunam on numerous occasions warned employees that the re- NOVELTY PEANUT COMPANY 1039 spondent would close the plant if the Union succeeded in organizing the employees. Although such statements are attributable to the re- spondent and are violative of the Act, they do not necessarily prove that the respondent in fact closed the plant pursuant to such threats. On the other hand, Bennett's statement in the presence of Board Witness Keener, and in the presence of several supervisors, testified to by Keener, that, "as far as the Union is concerned [he] doesn't give a damn" and that. "[he] hopes that it gets in and gets it over with," is inconsistent with a conclusion that Bennett himself harbored so much hostility to the Union as to close his plant because of it. The respondent's attitude in regard to the reemployment of the laid-off employees, hereafter discussed, is similarly inconsistent with such hostility of the respondent. The Trial Examiner argues that the fact that none of the associated candy companies, in which Bennett had interest, were permanently closed, despite a shortage of materials and the fact that some of them had no sugar quotas, is indicative of the respondent's discriminatory motivation in closing the 1509 plant. In our opinion no great signifi- cance can be attached, under the circumstances, to this fact. Although Bennett, either personally or through the members of his family, had an interest in all of the associated companies, his interest was not controlling; nor was he in a position to exercise an absolute managerial control. Moreover, out of 12 associated companies, 9 had sugar quotas. All 3 companies without sugar quotas used syrup instead, including Forrest Ford Candies, which was formed in the beginning of 1945 principally to provide work for Forrest Ford. Nor do we believe that the shift in production of "White Cap" bars to the Kaufman plant and of "Pat's Bar" to the Ranch Maid Candy Company, subsequent to the shut-down of the 1509 plant, indicates discriminatory motivation. With the discovery that sugar syrup could be utilized to make the "White Cap" bars, there seems nothing unusual in the respondent resuming their production with available facilities at Kaufman after the loss of its lease on the 1509 plant. Nor does the transfer of the equipment from the Dallas to the Kaufman plant subsequent to the shut-down on March 9 and pending determina- tion of the respondent's application for a sugar quota to the Wash- in,gton OPA office, indicate that the shut-down on March 9 was of a permanent and discriminatory character. According to General Manager Smith's credible testimony, the equipment was moved to the Kaufman plant "for the purpose of supplementing the equipment" they already had at that plant for the making of "Rose Marie" rolls and "White Cap" bars and, had the respondent succeeded in restoring its sugar quotas, it could have reassembled its equipment at the Dallas plant within a few days. Smith also pointed out that the bulk of the equipment, including the permanent fixtures of the Dallas plant, 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not moved until the end of May, after the respondent was notified of the denial of its application for restoration of its sugar quota. On the whole record we cannot conclude that there is a substantial basis for finding that the decision to close the 1509 plant was dis- criminatorily motivated, and that the prospective termination of the lease on March 31, the loss of sugar quotas, and the shortage of peanuts and other supplies were only pretexts. Upon the entire record, we are satisfied, and we find, contrary to the finding of the Trial Examiner, that the respondent closed down the 1509 plant and laid off its employees on March 9, 1945, first tem- porarily and then permanentaly, for economic reasons over which it had no control. 6. The Trial Examiner also found that subsequent to the shut-down of the plant and the lay-off of the employees on March 9, the re- spondent "discriminatorily refused to reinstate and employ such em- ployees." We do not concur in this finding. Of the employees listed in Schedule "A" attached to the complaint as having been discriminatorily laid off,.six employees, in fact, were not laid off but were immediately given employment at the respond- ent's peanut plant in Dallas. No charge is made that in selecting these employees the respondent discriminated against union members. In- deed, the record indicates that some of these employees were members of the Union. Between April 15 and July 18, four more employees listed in Schedule "A" were reemployed by the respondent. Two of these employees, who were members of the Union, testified at the hearing that when they applied to the respondent for reemployment they were not questioned concerning their union affiliation. Enz- ployees Derrick and Stroud, who on March 15 applied to the re- spondent for reemployment at the instruction of Union Representa- tive Vestal, were not questioned concerning their union affiliation, were offered immediate employment but refused for what we consider to be insufficient reasons.' Board Witnesses Rogers, Bishop, and Lyle testi- fied that they never applied to the respondent for reemployment; According to Derrick , General Manager Smith at that time allegedly stated : "I can use you today ; if you want to come to work today it will be all right . . . but . . . I want you to be happy and contented and to work for the Novelty Peanut Company only . . . You know what happened down to the other place . We didn ' t take any side on that at all . . . We were out of material , but we didn 't take any sides about that all." Derrick and Stroud decided not to accept the employment in view of the implications carried by Smith's state- ment "to work for the Novelty Peanut Company only." The Trial Examiner found that under the circumstances it was reasonable for these employees to infer that " the respondent did not desire them to continue their Union activities if they accepted the offer of employ- ment." We are not convinced that the Trial Examiner 's finding is correct . Smith's some- what ambiguous statement certainly affords no clear indication of the attachment of an illegal condition to an offer of employment . Standard Oil Company of California case (6i N. L. It. B . 449), cited by the Trial Examiner , where the disehargee was offered reinstate. ment "on condition that the charge [ of unfair labor practices ] be withdrawn ," is therefore not in point. - NOVELTY PEANUT COMPANY 1041 Board Witness Kane was not questioned as to whether she applied for reemployment; Board Witness Lee testified that she merely inquired of an office girl if the respondent was taking any more employees and, having received a negative reply, made no efforts to inquire of any- one in authority. Of the remaining two Board witnesses, Calvin Johnson, a member of the Union, testified that subsequent to the lay- off on March 9, he was employed by the Ranch Maid Candy Company in which Bennett was interested. The other Board witness, Alton Johnson, did apply for reemployment but was refused. Since he was a skilled candy maker and there is no showing that the respondent employed an additional candy maker when the production of "White Cap" bars was resumed at the Kaufman plant, we are not convinced that the failure to reemploy him was discriminatory rather than be- cause the respondent had no suitable work for him. Upon the entire record we are satisfied and find, contrary to the Trial Examiner, that the respondent did not discriminatorily refuse to reinstate and em- ploy the laid-off employees. 7. We do not agree with the Trial Examiner's conclusions that em- ployee Alton Johnson was discriminatorily discharged and employee Rogers discriminatorily laid off in violation of Section 8 (3) of the Act. Because, as the Trial Examiner has found, the termination of their employment was due to shortages of supplies and other condi- tions which resulted in the complete shut-down of the plant on March 9, 1945, and because, as we have found, the shut-down of the plant on that date was not due to discriminatory reasons, we find that the ter- mination of employment of Johnson and Rogers on February 28 was not violative of the Act. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, C. C. Bennett, doing busi- ness as Novelty Peanut Company, Dallas, Texas, and its officers, agents, or successors and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Longshoremen's and Warehousemen's Union, CIO, Local 218, or any other labor or- ganization of its employees, by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in re- gard to their hire or tenure of employment, or any term or condition of employment; (b) Threatening employees with economic reprisal because of their activities on behalf of the above-named or any other labor organization; 701692-47-vol. 69-67 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Interrogating employees concerning their membership or other activities in or on behalf of the above-named or any other labor organization ; (d) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed 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 Billy Keener immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights or privileges; (b) Make whole Billy Keener for any loss he has suffered by reason of the respondent's discriminatory conduct, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period ; (c) Clarify its rule forbidding solicitation during working hours on the respondent's premises, by posting at its plants in Dallas and Kaufman a notice informing employees that such rule does not for- bid their solicitation during their non-working hours on the respond- ent's property. (d) Post at its plants in Dallas, Texas, and in Kaufman, Texas, a copy of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Six- teenth Region, shall, after being duly signed by the respondent im- mediately upon receipt thereof, be posted and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleged that the respondent on March 9,1945, closed down operations of its plant at 1509 South Ervay Street, Dallas, Texas, and discharged and thereafter refused to reinstate employees thereof in violation of Section 8 (3) of the Act, and that the respondent dis- criminated in regard to the hire and tenure of employment of Alton Johnson, Della Lyle, Floy Rogers, and each of the employees listed in Schedule "A" attached to the complaint. NOVELTY PEANUT COMPANY APPENDIX A NOTICE TO ALL EMPLOYEES 1043 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees, that. WE WILL NOT discourage membership in International Long- shoremen's and Warehousemen's Union, CIO, Local 218, or any other labor organization , by discharging or refusing to reinstate any of our employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with economic reprisal because of their activities in behalf of the above-named or any other labor organization. WE WILL NOT interrogate our employees concerning their mem- bership or other activities in or on behalf of the above-named or any other labor organization. WE WILL OFFER Billy Keener immediate and full reinstatement to his former or a substantially equivalent position without prej- udice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist the above -named or any other labor organization , to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of the above-named, or any other labor organiza- tion. C. C. BENNETT DOING BUSINESS AS NOVELTY PEANUT COMPANY, By -------------------- ------------ (Representative) (Title) Dated------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Earl Saunders , for the Board. Messrs. Hoyet Aria.stroiig and James H. Waller, of Dallas , Tex., for the respondent. Mr. Howard Goddard , of Dallas . Tex., for the Union. 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon an amended charge duly filed by International Longshoremen's and Warehousemen's Union, CIO, Local 218, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regionaf Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated July 26, 1945, against C. C. Bennett, doing business as Novelty Peanut 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, accompanied by notice of hearing, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint as amended' alleged in substance: (1) that the respondent, on or about the dates alleged, discharged 57 named employees,2 discharged or laid off Alton Johnson, discharged Billy Keener, demoted Della Lyle to a less desirable position, and thereafter refused to reinstate such employees for the reason that they joined or assisted the Union and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection; (2) that the respondent, from February 1, 1945, to the date of the issuance of the complaint, (a) vilified, disparaged, and ex- pressed disapproval of the Union, (b) interrogated its employees concerning their union affiliation, (c) urged, persuaded, threatened, and warned its employees to refrain from assisting , becoming members of , or remaining members of the Union, (d) kept under surveillance the meetings and activities of the Union or the concerted activities of its employees for the purpose of self-organization or improvement of working conditions; (3) that the respondent, on March 9, 1945, closed down operations of its plant at 1509 South Ervay Street, Dallas, Texas, and transferred the equipment and functions of such plant to other plants of the respondent, and (4) that the respondent by the foregoing conduct engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. On or about August 6, 1945, the respondent filed its answer denying that it had engaged in any unfair labor practices and alleging affirmatively that Johnson and the employees listed in footnote 2, above, were discharged or laid off because of economic and business exigencies only, that Keener was discharged because of insubordination, and that Lyle was demoted because of her inability to per- form the duties given her and to work in harmony with subordinate employees. Pursuant to notice, a hearing was held at Dallas, Texas, from August 10 to 1S, 1945, inclusive, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by an official representative. Full I In accordance with a motion to conform the pleadings to the proof with respect to minor variances , the names of the employees alleged to have been discriminated against appear herein as adduced at the hearing , and the respondent 's name has been corrected to read as above. 2 Specifically , Maude Aderholt , Mary Ashworth , James L. Bishop, Euleta Blagg, Mary Blankenship , Thomas Bosh, Nannie Bowers, Velma Brown, Homer Browning , Lena Belle Kane , Bonnie Chesshler, Sadie Cooley , Nora Cranford, Lois Derrick , Ilene Engledow , Jewell Estes , Henry Lee Evans, Mattie Lou Floyd, James Glascoe , M. H. Goss, Sadie Grant, Mattie Gram, Della Harris, Felepa Hernandez , Minnie Blanton , Gertie Braswell, Annie Lee Cow- den, Myrtle Holland, Daisy Lee, Freddie Ivory, Calvin Jackson, John Jackson, Carrie Jen- kins, Navada Jock, Christine Johnson, Isreal Jones , Jr., Della Lyle, Mathew McDonald, Katie Marshall , Willie Morris , Virginia Ramireaz, Winnie Reynolds , Ploy Rogers, Annie Russell, Leona Skiles, Della Smith , Vera Soffey , Ruth Stone , Rena Stracener , Vida Stroud , Catherine Thompson , Charles Watson , Ruth Webb, Mary Pinion, Allene Reynolds, Adeline Scott, and W. W. Simmons. NOVELTY PEANUT COMPANY 1045 opportunity to be heard , to examine and cross -examine witnesses , and to introduce evidence bearing on the issues was afforded all parties. At the close of the Board ' s case , the respondent moved to dismiss the complaint for failure of proof ; ruling thereon was reserved by the undersigned . The motion is hereby denied. Following the introduction of all evidence , the undersigned granted , without objection , a motion by counsel for the Board to conform the pleadings to the proof as to dates and minor variances . Upon the conclusion of the hearing; the undersigned advised the parties that they might argue orally before , and file briefs with , the Trial Examiner . The Board and the respondent participated in oral argument. On August 31, 1945, the undersigned issued an order granting the respondent's application to take the deposition of C. C. Bennett. Such deposition was duly taken on September 21, 1945, at Fort Worth , Texas . Objection made by counsel for the Board to a question propounded by the respondent 's counsel during the examination of C. C. Bennett is hereby overruled . , On September 29, 1945, the respondent filed a brief. Upon the entire record in the case , and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I, THE BUSINESS OF THE RESPONDENT Novelty Peanut Company, owned by C. C. Bennett, presently operates two plants, a peanut processing plant at 1409 South Ervay Street, Dallas, Texas, and a candy manufacturing establishment at Kaufman , Texas , which is some 30 miles from Dallas . Until March 9, 1945, the respondent , in addition , operated a candy manufacturing plant in Dallas at 1509 South Ervay Street. For the year 1944, the respondent purchased raw materials valued at $404,836.52, of which approximately 30 percent was shipped to it from points outside the State of Texas . During the same period , products manufactured and sold by the respondent amounted to $742,986.83 in value , of which approximately 75 percent was shipped by it to points outside the State of Texas. IT. THE ORGANIZATION INVOLVED International Longshoremen 's and Warehousemen 's Union, Local 218, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Background C. C. Bennett , the respondent , has been in the peanut processing business in Dallas since 1930.2 In 1938, the plant at 1409 South Ervay Street, herein called the 1409 plant, was purchased for the purpose of processing peanuts to be sold to the trade in bulk lots and in small packages suitable for the retail consumer . In addition , the respondent manufactured until the latter part of 1943 at another location in Dallas "fig and peach bars," bakery products sold to the confectionery trade. On November 22, 1942, the respondent purchased 8 It 'appears that the respondent was originally Incorporated but such corporation was dissolved in 1842 or 1943 , and thereafter Bennett has been the sole owner of the Novelty Peanut Company. 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Goodie-Goodie Pie Company, which had been engaged principally in the production of small pies retailing at 5 cents, and thereby acquired that com- pany's sugar quota established by the Office of Price Administration, herein called the O. P. A. In May 1943, the respondent commenced its candy manu- facturing operations in a building in Dallas at 2111 South Ervay Street. Later in 1943, when difficulty arose with some bakery equipment and when certain materials necessary for the production of bakery products became difficult to obtain, the respondent determined to discontinue the manufacture of its bakery items and to enlarge its production of candy. Upon application duly made to the local O. P. A. office, the respondent was granted permission to transfer the use of its sugar allotment from the manufacture of bakery products to candy making. At its first candy plant, the respondent originated three types of candy bars, namely, a peanut brittle bar known as "fat's Bar," a peanut roll called "White Cap," and a pecan roll entitled "Rose Marie."' In 1144, the respondent removed its candy operations in Dallas to a building at 1509 South Ervay Street, herein called the 1509 plant, and there continued the mann- facture of the three candy bars' On November 13, 1944, the respondent established a plant at Kaufman, Texas, .30 miles from Dallas. The Kaufman plant originally operated as it department of the 1409 plant, which sent it supplies for the packaging of peanuts and the making of cheese sandwiches. The products manufactured by the Kaufman plant were in turn sent back to the 1.409 plant for marketing. On January 1, 1945, the operations of the Kaufman plant were enlarged somewhat, it was set up as a branch of the respondent with authority to buy materials and market its products, and the manufacture of the "Rose Marie" bar was commenced at the Kaufman plant. About February 1945, production of it large "pecan log" called "Topps All" was started at the Kaufman plant.' 2. Sequence of events-advent of the Union ; opposition of the respondent thereto ; shut-down of the 1500 plant; and transfer of operations elsewhere The movement to organize the employees in the Union was launched the last of January or the first of February 1945, by Alton Johnson, then employed by the respondent as a candy maker at its 1509 plant, when he sought advice from Don Vestal, an international organizer for the Union. Vestal gave Johnson a 4 "Pat's Bar" and "White Cap" retailed for 5 cents each ; "Rose Marie" sold for 10 cents. G The respondent held a lease on the building housing the 1509 plant for the term of one year expiring March 31, 1945. The lease contained no provision granting the respondent the privilege of renewing the lease. 6 The respondent is associated with the following 10 candy companies, formed since 1942, in which Bennett owns a part interest: Texas Candy and Nut Company, McKinney, Texas ; Fort Worth Candy Company, Fort Worth, Texas ; B. & W. Candy Company, Greenville, Texas ; Durant Candy Company, Durant, Oklahoma ; Texarkana Candy Com- pany, Texarkana, Texas ; Bennett and Crews, Waco, Texas ; Hot Springs Candy Company, Hot Springs, Arkansas ; Casebolt Biscuit Company, Fort Worth, Texas ; Ranch Maid Candy Company, Terrell, Texas ; and Forrest Ford Candies, Athens, Texas. Of these companies, all but the latter two and the Texas Candy and Nut Company have, sugar quotas obtained by buying a concern engaged in the manufacture of candy before war time restrictions on the use of sugar were inaugurated. Kenneth F. Smith, general manager of the respondent , acts as coordinator of the associated companies , assisting them in the location of raw materials . The respondent maintains credit and sales departments which assist the various companies in the purchase of materials and in the sales of finished products. Bennett takes an active interest in all the companies. The machine shop in the 1409 plant makes equipment on order for the associated companies and supplies such items at actual cost, as are all other services rendered by the respondent. Conferences of the managers ahd superintendents of all eleven associated companies are frequently held. NOVELTY PEANUT COMPANY 1047 supply of the Union's membership application cards, which Johnson in turn distributed to the employees about February 2, 1945. Johnson was notably assisted in his organizational efforts by Ruth Stone, employed at the 1509 plant, and by Billy Keener and Gertrude Thomas, who worked at the 1409 plant. Within a short time after the commencement of the union's organizational campaign, approximately 70 employees of the 1509 plant and between 13 and 20 employees of the 1409 plant became members of the Union.' Three or four days after the union activities began, John M. McBee, super- intendent of the 1509 plant, as the credible testimony discloses, stated to Vestal in the presence of employees Johnson, Stone, Keener, and Thomas that Vestal had put McBee "on the spot", by organizing the plant in McBee's absence and that although the Union "had done some good in other places, . . . [the Union] would not do any good there because he had had it from Mr. Bennett right straight that this candy division here was just a temporary set-up and Mr. Bennett said lie would close the plant down before he would sign a union contract or have any other union representative in there dictating to Min how to run his business." On another occasion, McBee told Vestal that "the lease was about to be out on the place and Mr. Bennett (lid not plan to renew the lease if the union came in there" and frequently asked Vestal why he (lid not "pull out", because Vestal "wouldn't help these people here."' About February 4 or 5, 1945, McBee told employee James L. Bishop that Bishop was physically unfit for his job and thereupon requested Bishop to move a barrel of syrup, a feat Bishop was unable to do. McBee then stated that Bishop might hold his job "longer by not belonging to the union than by belonging to it."' Not long after the distribution of the union application cards, the Union held its first meeting at the close of the work day in a park across the street from the 1509 plant.'° The meeting was attended by Superintendent McBee, Anna B. Coker, floorlady in the 1509 plant, and Mack Lunam," master mechanic and chief engineer in charge of the machine shop located in the 1409 plant. During the Y The findings in the paragraph above are based upon the mutually corroborative and credible testimony of Johnson and Vestal. Other witnesses for the Board placed the com- mencement of the organizational campaign later in February. In view of the entire record, the undersigned is convinced and finds that the union activities started the last of January or first of February as testified to by Johnson and Vestal. a These findings are based upon the testimony of Vestal, who impressed the undersigned as an especially reliable and honest witness. Except as hereinafter noted, McBee did not specifically deny the statements attributed to him by Vestal and by other witnesses whose testimony will later be considered. McBee merely testified that he could not recall saying anything against the Union and denied generally that he in any way tried to discourage employees from joining the Union and that he had ever told anyone that if the Union suc- ceeded in organizing the employees Bennett would close the plant . In view of the discrep- ancy between McBee's testimony and his affidavit given a Field Examiner of the Board, his failure to deny specifically the making of certain anti-union statements, the undersigned's observation of the witnesses, and McBee's admission that he had "had people to come to me and ask me about [the Union] and I'd give then my opinion and I'd tell them they was 21 years old and they could do as they saw fit," the under.s gned does not credit McBee's testimony but finds that McBee made the statements attributed to him by Vestal and other witnesses. e This finding is based upon Bishop's credible testimony, which was corroborated in part by the testimony of Johnson to the effect that he had overheard McBee tell Bishop that if he joined the "God damned union he'd fire him." McBee denied that he told Bishop that if the latter joined the Union, he would be discharged. For the reasons set forth above, the undersigned cannot credit the denial of McBee. 10 According to Johnson , nearly all employees of the 1509 plant and several employees of the 1409 plant attended the meeting. "Mack Dunam 's name is variously spelled in the transcript , appearing as MeDunam, McDunham , McDunnam , Mack Dunham , and Mack Dunam. 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD course of the meeting, McBee disputed the accuracy of remarks made by Johnson and further stated that "Bennett would close the plant down before he would sign a Union contract." 'a In reference to this meeting, employee Della Lyle stated in her sworn and signed affidavit given to a Field Examiner of the Board, "Mrs. Coker told me at my home on Monday evening the first day T was taken off the floor that Mr. Bennett, the owner of the Company, had sent her to the meeting to find out what was being said and done." Lyle, who proved to be an adverse witness for the Board, first testified that Coker's attendance of the union meeting at Bennett's orders for the purpose of surveillance was "hearsay and gossip" and that Coker had not informed her of such instructions. However, Lyle later admitted that the contents of her affidavit quoted above were true and correct. Coker denied that anyone had instructed her to go to the union meeting in the park or that she had talked to General Manager Kenneth F. Smith, Bennett, or Brogdon, Smith's assistant, and insisted that the only reason she attended was that she was "nosey." She further testified that she did not report the details of the meeting to Smith or Bennett or anyone. Bennett, in his deposition, was not questioned with regard to this incident. From the undersigned's observation of the wit- nesses, he does not credit Coker's denials, particularly when viewed in the light of the entire course of events leading to the close-down of the 1509 plant. More- over, other factors revealed by the record lend credence to Lyle's affidavit and testimony. It appears that Coker and Lyle were good friends, Coker being a tenant of Lyle and both living in the same house. Although the complaint alleged that Lyle was discriminatorily demoted, her testimony indicates that she did not regard her change in status as a demotion but rather welcomed it. .The undersigned concludes and finds, in accordance with Lyle's testimony, that Coker attended the park meeting at Bennett's instructions to find out what occurred therein. Shortly after the first park meeting, two other union meetings were held in the same place. At the third meeting, according to the credible testimony of Vestal, a police officer intervened and ordered the meeting disbanded. Vestal testified that when he asked the reason for breaking up the meeting, the officer replied, "You have to have a permit to hold a meeting in the park." Vestal inquired of the officer as to the source of the complaint of the meeting but the officer replied that "he didn't know who had called him ; that he had just picked up the call from the desk sergeant.1n The day following this meeting, Johnson and Stone distributed union buttons to the employees of the 1509 plant and, according to Johnson, by the end of the day all but at most 10 employees were wearing such emblems.14 On the day that the buttons were distributed, the respondent posted a no-solicitation rule on a bul- letin board by the time clock at both the 1409 and 1509 plants. According to the witnesses for the Board, the rule forbade all solicitation "within or without" the 12 This finding rests upon the credible testimony of Vestal and McBee's admission that be "corrected a statement of Mr. Johnson " at the meeting. 33 Johnson ' s testimony was in general corroborative of Vestal 's with respect to the inter- vention of the police in the park meeting. Johnson , however , placed such intervention at the close of the first meeting and stated that the reason given for disbanding the meeting was that the respondent had complained . The undersigned accepts Vestal 's version as to the number of meetings and as to the events occurring therein. % The record does not reveal with definiteness the exact dates of the events occurring In the Union' s organizing campaign , and there are minor discrepancies in the various wit- nesses' testimony as to such dates . To the best of his ability , the undersigned has attempted to reconstruct the sequence of events in the order which seems most logical , viewing the testimony as a whole . In any event , all events described herein occurred in February and the first part of March 1945. NOVELTY PEANUT COMPANY 1049 respondent 's premises . General Manager Smith , however, insisted that the rule merely prohibited solicitation during working hours on the respondent ' s premises. Smith testified that although the rule was still in effect, the notice had been re- moved from the bulletin board and no copy existed at the time of the hearing. It is unnecessary fully to resolve this conflict in testimony ; the rule was at least so worded as reasonably to lead employees to believe that they could not solicit either inside or outside the plant. With regard to events occurring on the morning the union buttons were dis- tributed , Johnson testified as follows: Mr. McBee run back and forth several different times that morning. He would come in and look around and see different ones putting on their but- tons, then he would take off and go up to the main office. Then he would come back . Mrs. Coker made several trips up to the office and back. Sometime during the day . . . Mr. Bennett , Mr. Smith and I believe . . . Mr. Ford" and maybe a Mr. White . . . came down and visited the plant and they walked up to everyone who had on a button, stood in front of them and scruti- nized them very carefully to see if they had on a button and they went from one to the other and they went completely through the plant, stopping at each and every individual. They went up to the floor where Mr. McBee and Mrs. Coker was at, and they had quite a conference up there. Then the gentle- men from the office left and Mr. McBee and Mrs. Coker had a conversation ... Johnson's testimony in respect to the scrutiny of the wearers of union buttons was corroborated by the testimony of the employees Ploy Rogers and Lena Belle Kane. Kane also testified that on the day in question she heard McBee order Coker " to take down the names of all who were wearing the buttons" and that Coker "went to the desk and got a composition book and went to the back near where they cook candy." Johnson testified as follows with regard to Coker's listing of the employees who were wearing union buttons : . . . word got around that Mr. McBee had told Mrs. Coker to take the names of everyone who had buttons on . . . and when I was told this, why I was watching Mrs. Coker and sure enough she was taking the names of people who had the buttons on and when she got up to me I asked Mrs . Coker . . . "What are you doing, taking the names of people who have on buttons?" And she said no, that she was taking the names of the ones who had worked the previous night and I said , "why don 't they-why do they want that infor- mation? They can get it off the piece work or time clock cards" and she said , "Hell, they don 't care nothing about me in the office ; they would rather make me work," and I said , "You mean they want the names of the people who have the button on, don 't you?" And she just laughed and went on her way taking the names of the people who had the buttons on , all over the plant. With respect to the scrutiny of the wearers of union buttons , Smith was not questioned ," but Ford and Bennett denied that they had engaged in such activi- ties. Coker testified that the incident in which she wrote the names of some employees , as testified to by employee Kane , arose from the necessity for several employees to work during a plant close -down in order to clean up the plant and that she was merely listing the names of employees who had a short time before worked overtime in cleaning up spilled syrup. Coker did not specifically deny "Forrest Ford at that time was assistant manager of the respondent. 10 Smith testified that he had never asked Coker to compile a list of employees wearing union buttons and that such a list was never given him. 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that McBee had ordered her to compile a list of employees wearing union but- tons or that she had compiled such a list . At the hearing , McBee admitted that he asked Coker "to count the ones that had buttons on and to count the ones that didn 't have, but the count was never completed ." He denied that he asked her to compile a list of employees wearing union buttons . However , a statement, which was prepared by a Field Examiner of the Board during an interview with McBee and which McBee had signed and sworn to the truth thereof at the inter- view, states , in part , as follows : Mr. McBee says that he did tell Mrs. Coker to take down the names of the employees who had on their union buttons because he wanted to see how near perfect the organization was but that these names were never given to him. Mr . McBee does not recall that the names were taken down by Mrs. Coker but he does know that they were not handed to him. In view of the variance between McBee ' s testimony and the quoted statement from the affidavit as well as his general lack of credibility discussed above the undersigned does not credit the denial of McBee regarding the listing of the wearers of union buttons . Having found above that Coker was an unreliable witness , the undersigned does not credit her testimony in regard to the incident in question , but finds in accordance with the testimony of Kane and Johnson that on the day the buttons were donned, McBee requested Coker to compile such a list and that she (lid in fact compile one . Furthermore , since the no-solicitation rule was posted on the morning the union buttons were distributed , since a list of wearers of union buttons was requested by McBee and compiled by Coker, and since the undisputed testimony reveals the confusion of Coker and McBee and the consultations of management representatives in the plant on the day in question , the undersigned cannot accept the denials of Ford and Bennett with respect to their scrutinizing the wearers of union buttons. It is therefore found, in accordance with the credible testimony of Johnson , Rogers, and Kane, that Bennett , Smith , and Ford scrutinized the employees wearing union buttons on the day the buttons were distributed and worn for the first time. About the same time in February , Dela Lyle was discriminatorily demoted from a supervisory position to a non -supervisory job." Bishop testified and the undersigned finds that about February 11 or 12, 1945, McBee "just come right out and asked me if I'd joined the union and I said that I did, and he said there wasn ' t anything in it for me , that I wouldn ' t get any more money." During the organizational efforts of the Union in February, McBee on numerous occasions told Johnson , "You know I 'm in favor of you boys , but God damn it I hold it against you for organizing . . . while I was gone . . . the company put the bee on me." According to Johnson , he was also asked by McBee, "What the hell do you hope to get out of joining the union ?" After one of the union meet- ings in the park , McBee asked Johnson , "God damn it what do you expect to get out of the union or anybody else, that I cannot get for them ?" and said "Now, I'd be a damned fool to go up there and ask Charley Bennett for a raise for anybody . . . if they think they are so smart to join the union, let them get it themselves ; let the union get it for them." In addition , McBee stated that he had "belonged to several unions and that he never did see one that was worth a damn." On another occasion McBee again asked Johnson , "What can the damned union hope to get? " and stated that "Charley Bennett would closed (sic) the damned plant up before he'd let the damned union dictate to him how to run the plant.i1e The discriminatory demotion of Lyle is hereinafter discussed. is These findings are based upon the credible testimony of Johnson NOVELTY PEANUT COMPANY 1051 Johnson testified without contradiction and the undersigned finds that John- son was temporary chief steward of the Union and received complaints from several employees at the 1409 plant that Iva Rush, floorlady of the third floor of the 14G9 plant, had been "talking . . . against the union" and had slapped a union member. Johnson further testified that when, in his official capacity, lie warned Floorlady Rush that she should not "say a thing against the union," Rush replied that "she worked for . . . Mr. Bennett, not for six others and that he was a very fine fellow and : . . God damn it, that she covered the ground she stood on and God damn it, she was big enough to defend it and by God, Charley Bennett was backing her up," and ordered Johnson to keep his "God damn nose out of her business." Johnson further testified and the undersigned finds that in reply to Johnson's statement that the employees could "talk union all they pleased," Rush said, "By God, they aren't gonna talk union during working hours.14 During the period of the Union's activities in February and shortly after em- ployee Daisy Lee had joined the Union, Lee and McBee had the following conver- sation: McBee asked her if the respondent was obligated to give her a job and she acknowledged that the respondent was not so obligated. Whereupon McBee inquired, "If I was to put you on the center table 2° do you think you could do that work, could stand up to it?" Lee, who was G4 years of age, replied that, being physically unable to stand all day, she could not fill such a position. McBee rejoined, "Well, I may put you there," and stated "if you join the union you may not have a job." McBee then inquired. "Why don't you go out to the North American 22 and try to get a job?" Lee answered that she had applied for a posi- tion there but had "found out 1 was too old." In reply McBee stated, "Yes, we are all too old, you and I, we are too old to hold much of any job." Soon after this conversation McBee transferred Lee from her box-making job 22 to a position of breaking candy bar centers on the center table for half a day and when she requested that she be returned to her former job, McBee said, "You stay where I put you." At the time of Lee's transfer employees younger than she were kept at the box-making position.22 Gertrude Thomas, who was employed as a machinist in the machine shop'at the 1409 plant and who, with Keener, was one of the leaders of the union's organ- izational campaign at the 1409 plant, testified without contradiction and the undersigned finds that the following statements were made and incidents oc- curred : Both Chief Engineer Mack Dunam, Thomas' supervisor, and Alma Hamil- ton, a supervisor on the second floor of the 1409 plant, "made fun" of the Union by calling it the "O-1-C" instead of the "C. I. O." Mack Dunam derogated the Union members by saying that they "were going to lose [their] money from the Union, going to get [themselves] fired." Hamilton similarly derogated the Union by saying, "It was just a bunch of mix-up . . . if our husbands knew what we were doing about the Union, to stop these jobs, they would probably quit fighting." i' Rush was not called as a witness. 20 The centers for candy bars were cut and broken at the center table. Such work re- quired an employee to stand. 21 At that time North American Aviation Company had a large plant near Dallas. 2=' Employees making boxes were seated at a table. 26 These findings are based upon the credible testimony of Lee. Employee Floy Rogers, who overheard the conversation between McBee and Lee, corroborated Lee's testimony in nearly all respects. McBee denied that lie ever told Lee that if she joined the Union she might not have a job and testified that there was nothing extraordinary in transferring Lee to the center table for half a day. He denied that the Union's organizational activities influenced him in transferring Lee. In no other respect did McBee specifically deny the statements attributed to him by Lee and Rogers. Upon the undersigned's observation of the witnesses, and the factors regarding McBee's credibility previously set forth, the under- signed does not credit McBee's partial denial of the conversation with Lee but finds that McBee made the statements attributed to him by Lee. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, Hamilton asked Thomas, "If we didn't like that job, didn't like what we were making, why didn't we quit and let the, rest of them alone that was liking it." On February 16, 1945, Mack Dunam told Thomas and Keener that if they "kept on talking about the Union and were going to get all of those people to join the Union, [they] were going to make a horse's ass out of [themselves] and lose [their] jobs and close down the shop." Also on February 16, 1945, while Thomas was on the upper rungs of a ladder in the course of her work, Floorlady Rush approached and said, "God damn your soul, you think you are smart getting all my boys to join up with the Union." Thomas replied, "No, I don't think I am smart. If they want to sign up it is their business, this is a free country." Rush threatened to shake Thomas off the ladder and asked, "Why don't you leave?" Rush then threatened that she would see General Manager Smith and "see that [Thomas] got fired."' Employee Billy Keener testified without contradiction and the undersigned finds that Mack Dunam, his supervisor, told him not long before February 18, 1945, that the employees "were gonna keep messing around with the union until we closed the whole place down," and that "as far as the union's coming in down there at the candy plant, that Mr. Bennett would move the candy kitchen to Kaufman and other places" but "as far as the union coming in the machine shop that he could close that down because it wasn't putting out war machines." One day during the period of the Union's activity at the 1409 plant, Keener, according to his uncontroverted and credible testimony, was stopped on his way to lunch by Floorlady Rush who said, "Here's one [employee] you haven't talked to . . . yet about joining the union ;" and when he asked the employee to whom his attention was directed if she desired to join the Union, Rush "started cussing [Keener] out," and stated that Bennett "didn't mean for you to come out here bothering the workers while they are working." Keener denied that he had engaged in such conduct but Rush replied, "I know damned well that you do." On February 18, 1945, Keener was discriminatorily discharged 26 On February 19, 1945, the Union filed with the Board a Petition for Investiga- tion and Certification of Representatives, alleging to be appropriate a unit of production and maintenance employees in the 1409 and 1509 plants with the exclu- sion of supervisory and clerical employees. On February 28, 1945, Johnson was discriminatorily laid off or discharged, and Floy Rogers' employment was discriminatorily terminated.26 During the first week of March 1945, Mack Dunam told employee Gertrude Thomas, according to her undenied and credible testimony, that her duties would be changed from those of a machinist to those of a janitor for the entire third floor and that she "would be a janitor as long as [she] stayed there." On the day she was informed of the prospective change in her duties, Thomas left the re- spondent's employ.24 On March 9, 1945, at the end of the work week at 5 p. m., the employees of the 1509 plant were given their pay checks and, without prior warning, were told by Coker, according to the credible testimony of employee Lois Derrick, that "we wasn't going to work any more ; the place was going to close down . . . they were out of supplies and didn't know when they would open up." As a result of 24 Mack Dunam, Hamilton, and Rush did not testify. Thomas impressed the undersigned as an especially earnest and honest witness, whose testimony is entitled to credence. Keener's discharge is hereinafter discussed. 2' The termination of Johnson's and Rogers ' employment is hereinafter discussed. 11 Counsel for the Board does not contend that Thomas was discriminatorily discharged. NOVELTY PEANUT COMPANY 1053 the close-down of the 1509 plant, all employees 28 were laid off except a few who were retained to clean the plant. On March 8, 1945, "fudge boards"," valued at $70, were sent to the Kaufman plant from the 1x09 plant. On March 11, 1945, 30 "fudge boards", 3 "fire mixers"," 3 furnaces ,31 3 kettles, and 2 "pairs horses", having a total value of $1,350, were removed from the 1509 plant and shipped to the Kaufman plant. Oscar Jones, who worked for a short time at the 1509 plant as a candy maker and then transferred to the Kaufman plant about the first of 1945, testified that when he reported for work on March 12, 1945, the equipment brought from the 1509 plant was on the floor of the Kaufman plant and McBee asked him if he were "surprised" to find the equipment. Jones further testified without contradiction and the undersigned finds that Jones replied that he was not astonished by the transfer of equipment since a friend had told him to expect its arrival, that an argument ensued, that McBee and Plant Manager Elvis Rhodes inquired as to the source of Jones' information, and that when Jones refused to divulge the name of his informant, Rhodes called Jones a "traitor" to the respondent 32 About March 15, 1945, Vida Stroud and Lois Derrick, who had been employed at the 1509 plant until the shut-down, applied with General Manager Smith for reemployment. According to the credible testimony of Derrick, Smith stated, "I can use you today ; if you want to come to work today it will be all right . . . but . . . I want you to be happy and contented and work for the Novelty Peanut Company only . . . You know what happened down to the other place . . . we didn't take any sides on that at all . . . we were out of material, but we didn't take no sides on that at all." At that time Derrick and Stroud neither accepted nor rejected the offer 33 but later upon further consideration and thought of the implications of the condition that they work "for the Novelty Peanut Company only," they decided not to accept the offer of reemployment. About 2 weeks after the shut-down of the 1509 plant, Lee requested reemploy- ment but was told by an employee in Smith's office that no new employees were being hired." Between March 27 and April 26, 1915, the following equipment, valued at $945.20, was transferred from the 1509 plant to the Kaufman plant: 2 pairs of scales, 2 dipping pots, 4 dipping forks, 1 "White Cap" cutter, 1 steel wagon, 10 fiats, 30 small candy trays, 6 small wagons, 4 steel chairs, 1 table, and 2 candy beaters. On April 26, 1945, a boiler, which was valued at $3,522, and which had been ordered originally for the use of the 1509 plant, was delivered to the Kaufman plant. On May 4 and 18, 1945, miscellaneous equipment in the value of $460.45 was shipped to the Kaufman plant from the 1509 plant. About April 10, 1945, Forrest Ford Candies, in which Bennett had one-third interest, commenced its operations at Athens, Texas, making a pecan brittle 29 On March 9, 1945, between 60 and 70 employees were employed at the 1509 plant. 2 1 A fudge board is a slab on which candy is poured to cool. $0 Fire mixers are heavy automatic stirring machines used to prevent the candy from sticking to the container while cooking. 31 Furnaces are stoves over which candy is cooked, 32 Although McBee and Rhodes were called as witnesses by the respondent , they were not questioned with regard to this incident. 33 Stroud ' s testimony was corroborative of Derrick ' s. Smith did not recall that he offered them employment as testified to by Derrick and Stroud. 3i This finding is based upon the credible and u neon tra dicted testimony of Lee. 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bar. Later , it manufactured "pecan logs" in three sizes , siniflar to the "Topps All" bar made by the respondent 's Kaufman plant. About May 10 , 1945 , the Ranch Maid Candy Company commenced to manu- facture "Pat's Bar" on a contract basis for the respondent , which furnished wrappers and boxes of the same type used when the 1509 plant was in operation and was making the "Pat's Bar" identical to that produced by the Ranch Maid Candy Company under the contract agreement. On May 29 and June 1, 1945, the remaining equipment of the 1509 plant was sold to another associated company, the Texas Candy & Nut Company, for $2,350.60. 3. Respondent 's contentions as to the shut-down of the 1509 plant The respondent contends that the 150plant was closed solely because of economic and business exigencies beyond its control. In support of its position, the respondent relies upon the four reasons for the shut-down, discussed seriatim as follows : a. Shortage of supplies Witnesses for the respondent testified that on March 9, 19455. the supply of boxes and shipping cases for the "White Cap" bar was exhausted 35 and that the supply of peanuts used in the "White Cap" and "Pat's Bar" was depleted. Documentary evidence tends to support such testimony. About February 14, 1945, Consumers Cotton Oil Co., chief supplier of peanuts for the respondent, informed the respond- ent that no further orders might be filled because of governmental restrictions. An invoice dated March 17, 1915, from the manufacturer of cartons used by the respondent was introduced in evidence and shows that a supply of cartons for the "White Cap" and "Pat's Bar" was shipped on that date. About March 20, 1945, after the receipt of the cartons, the production of "White Cap" bars was commenced at the Kaufman plant.30 b. Prospective loss of .sv(jar quota In 1941, the respondent had originally been granted by the O. P. A. a sugar quota based upon the output of "fig and peach bars," which were bakery products. As previously noted, in November 1942, the respondent purchased the Goodie- Goodie Pie Co., which had been engaged in manufacturing bakery products, and thereby acquired its sugar quota. The local rationing board permitted the respondent to use the sugar obtained under both quotas for the manufacture of candy. About the first of February 1945, the records of industrial users of sugar were transferred to the O. P. A.'s district office. About the same time, the former owner of the Goodie-Goodie Pie Company complained to the district office that he has not sold his sugar quota to the respondent, but upon production of the bill of sale, it was established that the respondent had purchased the sugar quota. In inspecting the files in regard to this incident, the district office discov- ered that the respondent had originally registered for sugar for bakery products classified as Item No. 1, but that in January 1944 the respondent had duly regis- tered for sugar for candy, classified as Item No. 9. In a conference with the district office a few (lays prior to March 6, 1945, the respondent was informed that ss Although witnesses for the Board testified that they had looked through cracks in the door of the respondent's warehouse at the time of the shut-down and had seen an adequate supply of cartons on hand, the undersigned is not convinced that such cartons were suitable for packaging "White Caps." dB Obviously, by that time, supplies of peanuts must have been obtained from sources other than the Consumers Cotton Oil Co. NOVELTY PEANUT COMPANY 1055 under the rules and regulations of the O. P. A. a sugar quota granted to make bakery products could not be used to manufacture candy, that permission to shift the use of an allotment of sugar from one class of products to another could be granted, upon application, only by the Washington office of O. P. A., but that the district office would recommend to the Washington office that the transfer be allowed, although such transfers generally were denied. This information, given the respondent verbally, was later substantially confirmed in writing by a letter dated March 0, 1945. Thereafter, the respondent filed a petition for trans- fer of the sugar allotment to candy making, and General Manager Smith and the respondent's counsel made trips to Washington in furtherance of the petition. Sometime in May 1945, the respondent was informed by the O. P. A.'s Washington office that the sugar allotments might not be used for making candy, although they were still available for the respondent's use in manufacturing bakery products. c. Prospective loss of lease on the 1509 plant The respondent's lease on the 1509 plant was for the term of 1 year, expiring on March 31, 1945, with no option for renewal. During the latter part of 1944, the respondent considered purchasing the building, but agreement on the price could not be reached. According to General Manager Smith, the respondent was orally informed about March 3 or 4, 1945, that the lease would not be renewed. Confirmation of this information was furnished by the following letter, dated March 9, 1945, from the agent for the owners of the building : Your lease on the property at 1511-13 So. Ervay, 7 for which we are agents, will expire on the 31st day of this month, and this is to advise you that we do not desire to renew the least (sic) at its termination. As we have already informed you, the owners wish to dispose of the prop- erty and we find it practically impossible to sell mercantile buildings where there is an existing lease. We hope that this will not greatly inconvenience you and hope that you can give us possession at an early (late. Regretting that circumstances force us to make this demand, we are Yours very truly, W. E. ALINE & COMPANY. Sam E. Hellbron and Al. C. LeCaste, owners of the Regal Manufacturing Com- pany, executed a sales contract for the purchase of the building in which the 1509 plant was located on March 12, 1945, on the day they first inspected the building, and on March 23, 1945, the deed to the property was executed. Neither the respondent nor the occupant of the upper floors of the 1509 premises as was ever told to vacate the building but about April 1, 1945, the respondent was in- structed both orally and by letter to pay the rent to the new owners. In a conference with Smith, Hellbron told Smith that the rent would be $150 instead of $100, which had been the monthly rental under the lease ; how- ever, Smith did not request or inquire about a lease but stated that the respondent would vacate the premises within 1 to 3 weeks, as it was "thought they would move . . . to some other location . . . to another town." About the middle of April, the new owners decided not to occupy the building.S9 Although Hellbron testified that he would not have given the respondent a lease on the building since it is difficult to sell business property with an existing at The record is not clear as to the exact address of the 1509 plant. In any event, it was the 1509 plant to which this letter referred. ay The lease on the upper floors ran until September 1945. 39 These findings are based upon the credible testimony of Ilellbron. 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lease, his testimony indicates that the respondent might have occupied the building on a month-to-month basis. At the time of the hearing, the space formerly occupied by the respondent in the 1509 plant was vacant.40 d. Economic undesirability of operating two similar plants According to Plant Manager Smith , it would be economically unsound to have two candy companies operating without a sugar quota , because of the duplica- tion of overhead expenses and supervision . Bennett testified that without a sugar quota the respondent could not profitably compete in the post-war period with nationally known manufacturers of candy. 4. Conclusions Immediately after the first indication of the employees' interest in self- organization in February 1945, the respondent expressed its abhorrence of the Union and attempted to thwart its organizational efforts. Thus, Superinten- dent McBee told various employees that they had put him "on the spot" by or- ganizing the Union in his absence and that the Union "would not do any good" because Proprietor Bennett would close the plant before he "would sign a Union contract or have any other Union representative in . there dictating to him how to run his business ," a threat which was repeatedly made by McBee. In addition , McBee inquired what the employees hoped to obtain from the Union's efforts that he could not obtain for them, stated that he would in the future not assist employees in getting increases in pay but would "let the union get it for them," and made various statements in derogation of the Union, as set forth above. On numerous occasions , McBee urged the Union to "pull out " because it "wouldn ' t help these people." In addition , McBee's friendly attitude to the employees changed after the commencement of their union activities and he frequently criticized their work without justification. As previously noted, shortly before employee Bishop joined the Union, McBee told Bishop that the latter was physically unfit for his job and ordered him to perform a task which he was unable to fulfill and, moreover , stated that Bishop might hold his job "longer by not belonging to the union than by belonging to it." After Bishop became affiliated with the Union, McBee inquired as to his union membership and stated that Bishop would obtain no benefits by virtue of such membership. Similarly, McBee attempted to intimidate employee Lee by giving her work physically unsuited to her, by stating "If you join the union you may not have a job," and by inferring that she was too old to obtain work elsewhere. As previously found, Coker had been ordered by Bennett to attend the first meeting and find out what was said and done. At this meeting, McBee inter- ¢0 In his deposition , Bennett testified that the decision was made to permanently close down the 1509 plant on March 9 , 1945 , the date operations of the plant ceased , that be had heard of the purchase by the Regal Manufacturing Company of the building housing the 1509 plant prior to the shut -down , and that his decision to close the plant was based upon information contained in three letters in his possession on March 9 , previously dis- cussed , namely , that of February 14, 1945 , from the respondent ' s chief supplier of peanuts, that of March 6 , 1945, from the O . P. A.'s district office , and that of March 9 , 1945, from the agent of the building's owner . Bennett was obviously in error in this portion of his testimony . The building was not sold until after March 12, 1945 , and since the letter was dated March 9, it is unlikely that Bennett actually had received the letter until March 10 at the earliest . The undersigned so finds. In view of these discrepancies in Bennett's testi- mony and his handling of Keener ' s discharge , as well as the entire course of events and the general tenor of his testimony as a whole , the undersigned finds Bennett 's testimony to be unworthy of credence when at variance with crediable testimony of Board witnesses. NOVELTY. PEANUT COMPANY 1057 vened and again stated that the respondent would close down the plant before it would sign a union contract." On the day on which the employees donned their union buttons, Proprietor Bennett, General Manager Smith, and Assistant Manager Ford visited the plant and scrutinized each employee wearing a union button. On the same day, Floor- lady Coker compiled a list of employees who wore union buttons and a no-solicita- tion notice was posted, which many of the employees reasonably believed forbade solicitation within the plant during their non-working hours. As in the 1509 plant, the respondent interfered with the employees' union activities in the 1409 plant by Chief Engineer Mack Dunam's and Supervisor Hamilton's statements in derogation and in jest of the Union. Like McBee, Mack Dunam told employees that the respondent would close the plant down if the Union succeeded in organizing the employees. Further interference was afforded by Floorlady Rush's colloquies with employees Johnson, Thomas and Keener, set forth above, particularly by her forbidding employees from talking about the Union during working hours and threatening to have Thomas dis- charged because of the latter's union activities. As hereinafter found, Johnson and Keener were discriminatorily discharged and Lyle was discriminatorily demoted because of their union membership and activities in behalf of the Union. The foregoing anti-union statements and activities of McBee, Mack Dunam, Coker, Rush, and Hamilton, all of whom were admittedly supervisory employees, are attributable to the respondent." These statements, activities, and conduct, including the surveillance of union meetings, threats of economic reprisal to be suffered by employees joining the Union, threats of closing down the plants if the Union succeeded in its organizational campaign, and discriminatory dis- 41 No finding is made that the presence of respondent's representatives at the first meeting constituted interference ; McBee had been invited by the Union to attend. 4' On February 23, 1945, Smith sent the following memorandum to McBee, Coker , Hamil• ton, Mack Dunam, Rush, Brogdon, and one Mrs. Schantz ; To All Supervisory Employees: As I am sure you know , an effort has been made and is being made by the union to organize the employees of this plant . In order that each supervisory employee may understand exactly our position in the matter , I am sending you this memorandum, Supervisory employees are, in fact , a part of management and for this reason you should not take part whatever in the discussion of this question with employees. If an employee seeks your opinion as to whether or not they should or should not join the union , you should simply say to the employee that that is a matter each employee must decide for himself and that under the law the management of this company has no right to seek to influence the decision of employees. Please see to it that these instructions are followed. Yours truly, NOVELTY PEANUT CO., (s) K. F. SMITH, General Manager. Smith testified that other than a casual reference to the memorandum "to one or two" of the recipients , he made no investigation to determine whether the supervisory employees were adhering to the instructions . It is clear that the circulation of this memorandum among its supervisory personnel cannot exempt the respondent from the consequences of the anti-union statements and conduct of its supervisory employees . Not only did the respondent fail to publicize to its employees generally its alleged attitude of neutrality with respect to the Union ' s organizational campaign , but no effort was made to enforce the policy among its supervisory staff. Moreover , whatever effect the neutrality statement may have had was completely effaced by the subsequent conduct of the respondent . See Matter of Northwestern Mutual Fire Association , 46 N. L . R. B. 825, enf'd 142 F . ( 2d) 866 (C. C. A. 9 ), cert. den. 323 U. S. 726 ; Matter of Norristown Box Co., 32 N. L. R . B. 895, enf'd 124 F. (2d) 429 (C. C. A. 3), cert. den. 316 U . S. 667; Matter of Peter Pan Co., 21 N. L. R. B. 522. 701592--47--vol. 69-68 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge of Keener and Johnson and demotion of Lyle, scrutiny of the wearers of union buttons by the respondent's officers, and the check of the Union's strength, all evidence an anti-union animus and are part of a pattern of conduct engaged in by the respondent to defeat the Union' s organizational efforts. The under- signed concludes and finds that by such statements and conduct the respond- ent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (1) of the Act. The undersigned cannot accept the respondent's contention that the 1509 plant was closed because of economic necessity. That the shut-down on March 9, 1945, was of a permanent rather than a temporary duration is revealed by Bennett's testimony and by the fact that when employees were informed of the cessation of operations at the 1509 plant, they were not told to expect a resump- tion of operations and by the additional fact that on March 8 and 11, substantial amounts of equipment were removed from the 1509 plant and sent to the Kaufman plant. Viewed in context with the permanent closing of the plant on March 9, 1945, the reasons advanced by the respondent as having motivated the closing are unpersuasive." The argument advanced with respect to the loss of the sugar quotas is not convincing since at the time the plant closed the matter was still pending and the respondent did not definitely know until sometime in May that no sugar would be available for candy making. Moreover, experimentation with various ingredients had been conducted by the respondent over a period of time and about the time the 1509 plant closed, or shortly thereafter, it was discovered that a sugar syrup, known as refinery syrup, was an adequate substitute for sugar and that the respondent's products could be made with such syrup without the use of any sugar. About March 20, 1045, production of the "White Cap" bar was commenced at the Kaufman plant, using sugar syrup and no sugar. Even had this process not yet been discovered on March 9, 1945, the supply of sugar on hand was sufficient to continue operations until March 20 when sugar syrup was substituted for sugar .44 That the respondent's argument regarding the loss of the sugar quotas was an afterthought is shown by the uncontradicted testimony of Sultan Boyd, the Board's Field Examiner who investigated the representation and unfair labor practice cases, to the effect that in a series of conferences held in February, March, and April, the respondent made no mention of the loss of the sugar quota. It is clear that the prospective loss of the sugar quotas was not the determinative reason for the close-down of the 1509 plant. In respect to the lease on the 1509 plant, Bennett's own evidence makes it difficult to sustain his contention that the plant was shut down because, inter alia, he heard that the purchasers of the building sought a considerable increase in the rental for the respondent's premises, or that the purchasers desired immediate possession for their own use. The decision to shut down the plant occurred on or before March 9. It was not until thereafter, however, that the purchasers be- came interested in the building. It was on the 11th when they saw the advertise- ment offering the building for sale. It was on the 12th that they signed the con- 43 In this connection, counsel for the respondent asserted in oral argument that the re- spondent "didn't have to close down on March 9th," that he imagine[d] . . . they could have gone on until May 9th . . . Counsel went on to infer, however, that there was no advantage to the respondent in closing down on the earlier date. Moreover, counsel also contended that such employ ees were not discharged on March 9, but, rather, were merely laid off temporarily. 44 Smith testified that the respondent had certificates for 82 pounds of sugar and redemp- tion certificates for 2,666 pounds. Rhodes, manager of the Kaufman plant , testified that on April 1, the Kaufman plant had 20,200 pounds of sugar on hand. NOVELTY PEANUT COMPANY 1059 tract of purchase. The respondent could not, in any event, be certain on March 9 that it wom:ld not be possible to obtain a satisfactory new lease when and if the building should be disposed of. The undersigned finds no merit in the argument advanced by the respondent respecting the prospective termination of the lease. Nor is the undersigned convinced that the respondent closed its 1509 plant on March 9 because it was economically unsound to operate two plants without a sugar quota or because the respondent could not compete in a post-war economy with nationally known candy manufacturers. In the first place, the closing of the 1509 plant did not effectuate a complete elimination of the operations of the 1509 plant, for the respondent transferred the manufacture of the "White Cap" bar to its Kaufman plant, thereby enlarging such plant's equipment and produc- tion output, and contracted with the Ranch Maid Candy Company to produce for the respondent the "Pat's Bar" formerly made by the 1509 plant. Thus, the respondent is still engaged in the manufacture and sale of the same products as it was before the closing of the 1509 plant; there was little, if any, curtailment of production but merely a shift in the place of production. In addition, as before mentioned, the loss of the sugar quotas was prospective only on March 9, the day of the 1509 plant's closing, and the issue was not settled definitely until in May. It is true that a duplication of supervision and overhead expense resulted from the operation of two plants, but theretofore the plants had operated profit- ably ; and, for that matter, such duplication existed among the other 10 associated companies, in each of which Bennett owned an interest and none of which per- manently ceased operations even though some did not have sugar quotas. On March 9, 1945, the question of post-war competition had not yet arisen, and in view of the continuing rationing of sugar, would seem at the present time to be not of great significance in determining whether such plants should be closed. In any event, had the matter been controlling it seems most unlikely that Bennett would have expanded his interests by participating, to the extent of becoming the owner of a third interest, in the formation of the Forrest Ford Candies, which commenced operations on April 1, 1945, almost a month after the shut-down of the 1509 plant.'6 It thus appears that of the reasons advanced by the respondent for the closing of the 1509 plant only the alleged lack of cartons and peanuts might be considered to have merit. But in that case, the depletion of such supplies would most likely have necessitated only a temporary shut-down of 1 or 2 days' duration,, similar to the temporary cessation of the 1509 plant's operations on February 14 and 15 and again on February 21. and 22, 1945. Assuming that the lack of cartons necessitated the temporary stoppage of production of "White Cap" bars, the respondent could have resumed, and probably increased, its production of "Pat's Bar" upon obtaining more peanuts.''6 The undersigned finds that the respondent seized upon the alleged temporary shortage of supplies as an excuse to close the plant permanently and thereby destroy the effects of the Union's organizational efforts.'' Upon the entire record and in view of the fact that none of the associated companies has been permanently closed, that equipment of the 1509 plant was °° Bennett testified that he participated in the formation of the Forrest Ford Candies in order to assist his brother-in-law who had returned from service in the United States Army a short time before. 46 Smith testified that at the time of the 1509 plant's closing, the respondent had many unfilled orders for the "Pat 's Bar" on hand. 41 As far as the alleged lack of cartons is concerned , Bennett 's own evidence indicates that this was not a motivating factor in the decision to shut down. In his testimony lie referred to "three things" as causing him to make this decision. But in enumerating what these "things" were he did not include the matter of the lack of cartons. 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either transferred to the Kaufman plant or sold to the Texas Candy and Nut Company, that on March 20 the respondent commenced to manufacture its "White Cap" bar at the Kaufman plant and in May contracted with the Ranch Maid Candy Company to produce for the respondent the "Pat's Bar," the under- signed finds the arguments advanced by the respondent for the closing of the 1509 plant to be without merit. The undersigned is convinced and finds that the 1509 plant was permanently closed on March 9 in fulfillment of the repeated threat that the plant would shut down if the Union succeeded in its organizing campaign,98 and that by closing the 1509 plant on March 9, 1945, and by shifting to points outside Dallas the means of production of the two candy bars manu- factured by the 1509 plant, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.' B. The discriminatory discharges 1. Billy Keener Keener was first employed by the respondent about March 1944, but according to his testimony, months later was discharged for "loafing on the job." Late in 1944 he was reemployed. At first, he worked in the peanut roasting department of the 1409 plant and later was transferred to the machine shop, also in the 1409 plant. As mentioned above, Keener became an earnest advocate of the Union early in February and the leader of the organizational campaign in the 1409 plant. He participated actively in its behalf by soliciting memberships, collecting initiation fees and dues, and distributing buttons. Keener testified without contradiction and the undersigned finds that before Keener joined the Union, Bennett visited his department one day and, after re- marking about Keener's earlier dismissal by the respondent, stated, "Well, you're doing pretty good work this time." On the same occasion, Bennett in- quired of the quality of Keener's work from his supervisor, Mack Dunam, who replied that Keener "was doing pretty good work." As heretofore noted, Keener had had an altercation with Floorlady Rush for soliciting employees during his lunch hour and on another occasion Mack Dunam had told him that the employees affiliated with the Union "were gonna keep messing around with the union until we closed the whole place down." Keener and employee Thomas testified without contradiction that on the day before Keener's discharge, Supervisor Hamilton induced several employees to 48 The respondent argues that if it closed the 1509 plant because of its anti -union animus, it would also have closed the 1409 plant. The undersigned finds no merit in this argument since it is established that the Union succeeded in organizing almost all employees of the 1509 plant but at the 1409 plant it enlisted the membership of only 13 or 20 employees. The respondent further contends that its efforts made to obtain the 0 . P. A.'s approval for the use of the sugar quotas to make candy demonstrate the respondent 's good faith in closing the 1509 plant . The undersigned is not persuaded by this argument ; for had the sugar been obtained , it is clear that the respondent would have used it at the Kaufman plant. 49 That the respondent ' s explanation of the cause of the shut -down does not bear up under scrutiny strengthens the conclusion that it was illegally motivated . See N . L. R. B. v. Abbott Worsted Mills, 127 F. (2d) 438 , 440 (C. C. A. 1). In any event, even if it be assumed that, in the transfer of the plant from Dallas to Kaufman the respondent was in part motivated by considerations not violative of the Act (which the undersigned does not believe ), the fact nevertheless remains that a material and substantial part of such motiva- tion was the respondent ' s purpose by this act to defeat the Union . If this removal was motivated by two reasons, one legal and the other illegal , the burden was on the respondent under such circumstances to separate the two ; that is to say , to show that the removal would have in any event taken place absent the illegal motivation . This the respondent has failed to do. The facts , indeed , indicate the contrary . See N. L. R. B. v. Remington Rand, Inc., 94 F . ( 2d) 862 (C. C. A. 2), cert . den. 304 U . S. 576. NOVELTY PEANUT COMPANY 1061 sign a written statement that Keener "had been down on the second floor solicit- ing for the Union." According to Thomas' undisputed and credible testimony, Hamilton brought the paper back to the machine shop and told Keener "I am going to see that you get fired over this." On February 18, 1945, Floorlady Rush Caine to the machine shop and, accord- ing to Keener's micontroverted and credible testimony, shouted "Hurray for the Novelty Peanut Company and Papa Bennett" and called Mack Dunam out of the shop. A few minutes later, Bennett, Mack Dunain, and Rush returned to the machine shop where Keener was working. Rush repeated her shout, "Hurray for the Novelty Peanut Company and Papa Bennett." Bennett ordered Keener to accompany the group to Bennett's office. Bennett accused Keener, on infor- mation furnished by Rush, of rifling desk drawers and files in the office. Keener admitted having opened every morning a drawer to get matches when he lighted a gas heating stove in the office at the request of one Saunders, an elderly jani- tor in the respondent's employ.b0 With no further investigation or delay, Ben- nett discharged Keener forthwith and threatened to call the police. In reply to something said by Rush, Bennett stated, according to Keener, "As far as the union is concerned I don't give a damn about that. I hope it gets in and gets it over with." Bennett then gave Keener "a little talk," in the course of which he stated, according to Keener's undenied and credible testimony, "As far as the union is concerned you never would get in the union the way you're going . . . rambling through.the desk drawers and files and comeing (sic) in and punching out and leaving . . . I hope this don't come up in the Union because I don't know how far it will get." 5' Bennett denied that he knew that Keener was a member of the Union or was aware of Keener's union activities ; the undersigned does not find Bennett's denial worthy of credence, for the reasons heretofore stated. Furthermore, Bennett was not questioned as to whether he received the statement to which Hamilton had obtained, on February 17, signatures of various employees to the effect that Keener had been on the second floor of the 1409 plant soliciting mem- berships in the Union. The undersigned infers and finds that this statement was given Bennett on February 17, the day before Keener was discharged 61 Bennett's investigation of the complaint lodged by Rush against Keener was patently unfair and knowingly incomplete. Bennett immediately credited the accusation of Rush,' who was one of the most bitter opponents of the Union on 5° It is undisputed that the janitor possessed no supervisory authority and that Keener's ordinary work did not bring him to the offices in the 1409 plant. However, Keener was 17 years old and the undersigned finds nothing extraordinary in Keener's obeying the request of the elderly janitor to light fires in the offices as a favor to the janitor. 51 There is no substantial conflict in Bennett's and Keeper ' s testimony with respect to Keener's discharge. Bennett admitted that he told Keener on February 18, "you are fired. John L. Lewis or nobody else would let you go in and steal ," but Bennett also stated in his deposition , "I don' t want to make a direct statement that [Keener] stole , because I don't have the evidence that he stole but there has been lots of stuff missing." 53 In any event, it is clear .that both Master Mechanic Mack Dunam, who was present at the discharge of Keener, and Floorlady Rush, who instigated Keener's discharge, both had knowledge of Keener's union activities in view of the respective statments heretofore set forth made by them to Keener. 53 In this regard , Bennett testified as follows . . . Iva Rush call me down to the shop Sunday afternoon and said she had some- thing she wanted to tell me : so I just went down there and listened. She said that this boy Billy Keener had been coming in, in the morning, and rifling the drawers in the office, going through them and besides that he would go out to the time clock and look at the time cards and make some notes. So, when she told me that, there was but one thing for me to do and that was to go up and find the young man and dismiss him immediately if he admitted it. So, we went up there and I asked him if he had been going through those desk drawers . He stuttered around for a few minutes and 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent's supervisory staff, whom Bennett characterized as "poor old Iva," and who, according to Bennett, "was always griping" and "talked [on Feb- ruary 18] about a bunch of other stuff. Very little of that stuff I listen to." Bennett made no attempt to investigate the veracity of Keener's explanation .that Saunders, the janitor, had asked him to start the fires in the offices as a favor to Saunders and that, in compliance with Saunders' request Keener opened one desk drawer to obtain matches contained therein. In fact, so far as the record shows, Bennett did not even interview Saunders. In view of the respondent's anti-union animus revealed by the record, Hamilton's circulation of the statement on February 17 and her threat that she was going to see that Keener was discharged, and the unfair and incomplete investigation of Rush's complaint against Keener, the undersigned concludes and finds that Keener was discriminatorily discharged in violation of Section 8 (3) of ',the Act because of his membership in the Union and ardent activities expended in behalf of the Union. The undersigned further finds that by thus discriminating against Keener, by Supervisor Hamilton's circulation of the statement that Keener had solicited union memberships, and by her threat to utilize such statement in order to obtain Keener's discharge, the respondent has discouraged membership in the Union and interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. 2. Alton Johnson Alton Johnson was employed by the respondent on November 9, 1944, at the 1509 plant as a candy maker at $1 an hour, the highest rate paid such classifica- tion. About mid-January 1945, McBee offered Johnson a position at the Kauf- man plant at $75 a week "to run that place down there."` Fearing that the ex- pense of moving and the difficulty in finding suitable living quarters would offset the increase in pay, Johnson declined the offer. As previously mentioned, John- son inaugurated, early in February, a movement to organize the respondent's employees and he became the leader thereof. After the union activities com- menced, McBee told Johnson, according to the latter's uncontroverted and credible testimony, that Johnson was a "damned fool * * * I'll guarantee you it wouldn't have been a year until you would have been the manager of one of Charley Bennett's plants because you're a damned good boy and you know a lot about the candy business * * * You've just messed yourself up." On February 28, 1945, Johnson was laid off at the close of the work day because of an alleged lack of shipping containers. McBee told him to return in a few clays and he might possibly be given reemployment. A few days later, Johnson applied for reinstatement but was told by McBee that Johnson "was completely out of a job." Thereupon, Johnson inquired if his joining the Union was the reason for his discharge and McBee replied, according to Johnson's credible and uncontroverted testimony, "No . . I like you all right . . . You finally said, "well, I did once." I said, "Maybe you had better come on and go down with me." . . . So we just went on down to the office. I asked him again . . . "Now, Billy, did you do this, did you go through these desk drawers'," He stammered around and finally said, "Well, yes, sir, I did." He said, "the only thing I was doing, I was looking for matches . . . to light the fire." . . I fired him off. I would fire him again and I would fire anybody else who would do the same thing. Thus. Rush's complaint of Keener's activities, according to Bennett, was on two grounds, namely, rifling the desk drawers and inspecting cards at the time clock. And although Bennett stated that upon receeiving such complaints he determined to discharge Keener only if the latter "admitted it," be questioned Keener merely with regard to his alleged rifling of the desk drawers and discharged Keener forthwith despite his denial of Rush's accusation. NOVELTY PEANUT COMPANY 1063 know why you are being laid off . . . It is nothing about me . . . You know why you are being laid off. If you want to talk to them about it, go up to the main office. It is nothing between you and I." Johnson returned after his lay-off several times to seek employment. He testified without contradiction and the undersigned finds that on one of these occasions when he stated that he would organize all the plants in which Bennett was interested unless he were offered reemployment, McBee said, "If you go to Kaufman and try to organize the place down there, you will find yourself in the damned jail house. They have a city ordinance prohibiting anybody from organ- izing in Kaufman." Johnson further testified that he asked McBee if the latter believed that a city ordinance "superseded a government order saying a person had the right to organize anywhere in the United States" and that McBee replied, "I don't know anything about that but by God you had better not go down to Kaufman and try to organize that place . . . According to Johnson's credible testimony, upon his lay-off, the respondent closed down the line producing "White Cap" and "Rose Marie" bars and trans- ferred the other employees who made that candy, except those who quit, to the line making "Pat's Bar" or to other positions in the plant; "in other words they increased the production on the Pat Bars." Oscar Jones, who was employed as a candy maker at the Kaufman plant, testified without contradiction and the undersigned finds that after Johnson's lay-off Jones was informed by McBee that "Johnson wouldn't never work in another of Mr. Bennett's shops as long as Bennett had anything to do with it" because "Johnson cost him too much money . . . around ten thousand dollars . . . [the respondent] was cleaning out eight and nine boxes and sometimes ten down there before we closed down." The respondent contends that Johnson was laid off because of the shortage of cartons for the packaging of the "White Cap" bar, and explains that Johnson's lay-off preceded the March 9 shut-down by several days because it would take employees dipping centers and wrapping the completed candy bar several days to work up the candy bar centers prepared by Johnson. In view of the above statements of McBee, that Johnson had "messed" himself up organizing the Union and that the respondent would never again employ Johnson because his union activities had cost the respondent much money, as well as McBee's threat of arrest if Johnson attempted to organize the employees of the Kaufman plant and in view of the fact, previously found, that the respond- cut seized upon the claimed temporary shortage of supplies as an excuse dis- criminatorily to close the 1509 plant, the undersigned cannot credit the reasons advanced by the respondent for Johnson's discharge but concludes and finds that the respondent discriminatorily discharged Johnson in violation of Section 8 (3) of the Act, because of his membership in the Union and his extensive efforts and activities in behalf of the Union. The undersigned further finds that by thus discharging Johnson and by the statements of McBee, above set forth, the respond- ent has discouraged membership in the Union and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. Floy Rogers Floy Rogers testified that she joined the Union in February, attended a park meeting of the Union, and wore a union button at work. As previously noted, McBee unwarrantedly found fault with Rogers' work after she affiliated with the Union. Rogers further testified that following the temporary shut-down of the 1509 plant on February 21 and 22, she remained at home a few additional 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days before returning to work, because of the illness of her husband and that upon her return to the 1509 plant, about February 28, 1945, to resume her duties, Coker informed her that "there wasn't nothing to do . . . they were not making anything but Pat candy at the time and they were not making any white caps at all . . . they had run out of materials and [were] short of things. They were going to have to close clown . . . " Whereupon, Rogers turned in her uni- form, received the deposit she had made thereon, and asked for her health card. No further evidence was adduced at the hearing with regard to the severance of Rogers' employment. It thus appears that, as in the case of Johnson, Rogers' employment was terminated by the respondent in anticipation of the shut-down of the plant, which subsequently occurred on March 9. Sine_^ it has been found, however, that the closing of the 1509 plant was discriminatory, such excuse for the termination of Rogers' employment cannot avail the respondent for refusing to employ Rogers about February 2S. Upon the entire record, the undersigned finds that the respondent refused to give Floy Rogers employment on or about February 28, 1945, because of her membership in and activities on behalf of the Union, and that the respondent by thus refusing to employ Rogers, discriminated in regard to her hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4. Employees laid off upon closing of the 1509 plant Having found that the respondent closed its 1509 plant because of the Union's organizational campaign, the undersigned further finds that the employees listed in Appendix A, who were employed at the 1509 plant at the time of the shut-down, were discriminatorily discharged and that by such discharge the respondent has violated Section 8 (3), of the Act and has discouraged membership in the Union and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act ' C. The discriminatory demotion of Della Lyle Della Lyle was employed by the respondent from February 17, 1944, until the 1509 plant was closed on March 9, 1945. She first worked in the candy making operations but, on about September 18, 1944, was transferred to the position of assistant floorlady under Coker.55 Lyle joined the union, wore a union button at work, and attended two of the park meetings of the Union and several other union meetings. At one of the park meetings she loaned money to a few employees to pay their initiation fees and in doing so was observed by both McBee and Coker. The Monday following the meeting at which she made these loans, some- 54 General Manager Smith testified that Gertie Braswell , Mary Pinion, Annie Lee Cowden, and Adeline Scott, who were alleged in the complaint to have been discriminatorily dis- charged on March 9, 1945 , in fact have never been discharged by the respondent and have "lost no time." Braswell, Pinion , and Scott , according to their testimony , have continu- ously been employed at the 1409 plant. Smith further testified that Allene Reynolds and Myrtle Holland, also alleged in the complaint to have been discriminatorily discharged on March 9 , 1945, remained in the respondent ' s employ until April 5 and 20 , 1945, respec- tively. Counsel for the Board adduced no evidence respecting the employment status of these employees . The undersigned will accordingly recommend that the complaint be dis- missed insofar as it alleges that these six employees were discriminatorily discharged in violation of Section 8 (3) of the Act. 55 Lyle assisted Coker by keeping records of the piece work production of employees, sup- plying employees engaged in the candy making operations with material , and in Coker's absence assuming Coker 's duties. It is clear that employees regarded Lyle as the assistant floorlady to Coker and in such position as occupying a supervisory status. The undersigned finds that the assistant floorladyship held by Lyle was a supervisory position. NOVELTY PEANUT COMPANY 1065 time in February, a notice was posted at the time clock informing the employees that Mary Castetter would in the future be assistant floorlady. Without prior warning, or explanation, Lyle was forthwith transferred from her position as assistant floorlady to that of candy wrapper. Castetter testified that she never was a member of the Union and that she held the position of assistant floorlady for only 1 day, being at her request transferred back to her former position. Thereafter, Fern Ward, who was a union member but apparently not particularly active in the Union since she wore her union button only a few days, was given the position of assistant floorlady. Although Lyle suffered little if any monetary loss from, and did not object to, the transfer, she testified that she was "hurt" because she was given no reason for the transfer. In addition, it is clear that by the demotion she was deprived of certain factors inherent in the supervisory status such as prestige and standing. As previously mentioned, the respondent in its answer alleged that Lyle was demoted because of her inability to discharge the duties given her and to work in harmony with subordinate employees. At the hearing, McBee insisted that such were the reasons for the transfer and that Lyle was neither promoted nor demoted as the result of the transfer, being changed merely from a position of checker to one of wrapper. Coker, however, testified that Lyle was her assistant floorlady, that Lyle was a good worker, and that Lyle's relationship with subordinate employees was always harmonious. In view of the conflicting evidence adduced by the respondent with respect to Lyle's status and ability, as well as the method followed and the strategic time chosen to effect her change in status, the under- signed finds no merit in the reasons urged by the respondent for her demotion. Upon the entire record, the undersigned finds that Della Lyle was demoted from a supervisory to a non-supervisory position in February 1945 because of her membership in the union and activities on behalf of the Union, and that the respondent, by thus demoting Lyle, discriminated in regard to her hire and tenure of employment, thereby discouraging membership in the Union and inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Effectuation of the policies of the Act is achieved by restoration insofar as possible of the status quo existing before the commission of the unfair labor practices. The undersigned has found that the respondent closed its 1509 plant to discourage membership in the Union. The respondent, however, has continued the production of the candy bars manufactured at the 1509 plant before its closing by transferring equipment to the Kaufman plant and there enlarging its operations to a sufficient extent to produce an adequate supply of the "White Cap" bar to meet its requirements and by contracting with the Ranch Maid Candy Company to manufacture for the respondent the "Pat's Bar." The undersigned has found that under the circumstances herein set forth such removal of the operations of the 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1509 plant itself constituted an unfair labor practice. The circumstances of the case indicate the following four means whereby the respondent might, as closely as possible, restore the status quo: (1) resume operations of its 1509 plant in Dallas, Texas, and at such plant offer reemployment to Alton Johnson, Floy Rogers, Della Lyle, and the employees listed in Appendix A;` (2) offer such employees equivalent employment at its 1409 plant in Dallas, Texas; (3) offer such employees employment at its Kaufman plant and compensate them for any expenses incurred by their daily commuting from Dallas to Kaufman over and above comparable expenditures they may have borne while working at the 1509 plant; or (4) offer such employees employment at its Kaufman plant and compensate them for all reasonable expenses entailed in the transportation and moving of their families from Dallas to Kaufman. The undersigned will thus shape his recommendations So that the respondent may, at its election expressed in writing to the Regional Director, reinstate Alton Johnson, Floy Rogers, Della Lyle, and the employees listed in Appendix A at a Dallas plant where the operations of the 1509 plant are resumed, at the 1409 plant if comparable employment is there available, or at the Kaufman plant. If the respondent elects not to resume the operations of the 1509 plant in Dallas and a sufficient number of positions are not available at the 1409 plant to reinstate the above-named employees, the undersigned will recommend that the respondent offer the employees who are not reinstated at the 1409 plant employment at the Kaufman plant and pay them either for any extra expenses incurred by daily commuting from Dallas to Kaufman over and above comparable expenditures they may have borne while working at the 1509 plant, or for the reasonable ex- penses entailed in the transportation and moving them, and their families, from. Dallas to Kaufman. The undersigned has found that the respondent discriminatorily closed the 1509 plant on March 9, 1945, and thereby discriminatorily discharged the em- ployees working in such plant and listed in Appendix A. The undersigned has further found that the respondent thereafter discriminatorily refused to rein- state and employ such employees." The undersigned will recommend that the respondent offer these employees immediate and full reinstatement to their former positions "e without prejudice to their seniority and other rights and "U Since the respondent accomplished its illegal ends by the removal from Dallas, it would be appropriate that it bear the burden of rectifying its wrong by returning thereto. See Matter of Sehieber Millinery Co., 26 N. L. R. B. 937. 54 Although employees Derrick and Stroud were offered employment at the 1409 plant about March 15, 1945, the offer was conditioned upon their working for "the Novelty Peanut Company only." The reasonable inference, under the circumstances, was that the respondent did not desire them to continue their union activities if they accepted the offer of employment. The employees were under no obligation to accept such a conditional offer of reinstatement. In any event, there was no showing that the employment was substan- tially equivalent to that from which Derrick and Stroud were discriminatorily discharged by the closing of the 1509 plant. See Matter of Standard Oil Company of California, 62 N. L. It. B. 449. "s The respondent contends that certain of the employees listed in Appendix A were not discharged, or at least "lost no time" after March 9, 1945, and that others have been em- ployed at the 1409 plant since the closing of the 1509 plant. The record establishes that Braswell, Pinion, Cowden, and Scott have been continuously employed at the 1409 plant and were never on the employment roster of the 1509 plant ; Reynolds and Holland re- mained in respondent's employ to April 5 and 20, respectively. The undersigned accord- ingly will recommend that the complaint be dismissed insofar as it alleges that they were discriminatorily discharged in violation of Section 8 (3). As to other employees whose employment status since March 9 the respondent questions, there is no showing that their new employment was regular and substantially equivalent to that from which they were discriminatorily discharged . Even had they received regular and substantially equivalent employment, the fact would not have barred reinstatement under the Act. See Matter of Continental Box Company, Inc., 19 N. L. R. B. 860, enf'd 113 F. (2d) 93 (C. C. A. 5). NOVELTY PEANUT COMPANY 1067 privileges, discharging such persons hired by the respondent at the Kaufman plant or the 1409 plant after March 9, 1945, as may be necessary to provide said, employment for those to be offered reinstatement. If, after this is done, there is not by reason of reduction in force sufficient employment immediately available for all persons to be offered reinstatement, all available positions shall be distributed in accordance with the respondent's usual method of reducing the force as applied in the conduct of the respondent's business prior to the shut down of the 1509 plant, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has been applied to the conduct of the respondent' s business prior to the closing of the 1509 plant. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list, prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent positions as such employment becomes available and before other persons are,hired for such work. The undersigned has found that the respondent has discriminated in regard to the hire and tenure of employment of Alton Johnson, Della Lyle, Floy Rogers, and Billy Keener. The undersigned will therefore recommend that the re- spondent offer Johnson, Rogers, and Lyle immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, under the conditions above stated with respct to the employees listed in Appendix A, and that the respondent offer Keener immediate and full reinstatement to his former or substantially equivalent position at the 1409 plant, without prejudice to his seniority and other rights and privileges. The undersigned will further recomrnentl that the respondent make whole Billy Keener, Alton Johnson, Della Lyle, Floy Rogers, and the employees listed in Appendix A for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a suns equal to the aulount which he normally would have earned as wages from the date of the discrimination against him, to the (late of the offer of reinstatement, less his net earnings 30 during such period.80 The undersigned has found that after the commencement of the Union's organi- zational campaign, the respondent promulgated a no-solicitation rule kvhich was so unclearly drafted that some employees reasonably believed it to forbid them engaging in solicitation of union memberships daring their non-working hours on the respondent's premises, a practice which is well settled to be a legitimate union activity. The undersigned will accordingly recommend that the respond- ent clarify its no-solicitation rule in such manner that the employees may have 00 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Cros.4ett Lumber Company, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 80 The respondent questioned most of the discriminatorily discharged employees who tes- tified at the hearing with respect to the efforts each had made to secure comparable em- ployment following their discharge, either registering promptly after their discharge with the United States Employment Service or individually seeking employment. Employee Rogers spent some time following her discharge caring for an ill relative but upon her re- turn to Dallas made various applications for employment. The undersigned finds that all discriminatorily discharged employees made a reasonable effort to obtain other employment in compliance with the policy enunciated by the Board in Matter of Ohio Public Service Company , 52 N. L . R. B. 725. 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no doubt as to the scope of the rule and to its non-infringement upon their legitimate union activities during their free time on the respondent's property. Since the undersigned has found that the respondent did not discriminate with regard to the hire or tenure of employment of Gertie Braswell, Mary Pinion, Adeline Scott, Annie Lee Cowden, Myrtle Holland, and Allene Reynolds, within the meaning of the Act, he will recommend the complaint be dismissed as to them. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following. CONCLUSIONS OF LAW 1. International Longshoremen's and Warehousemen's Union, CIO, Local 218, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Billy Keener, Della Lyle, Floy Rogers, and Alton Johnson and of those em- ployees listed in Appendix A employed at the 1509 plant on March 9, 1945, thereby discouraging membership in International Longshoremen's and Ware- housemen's Union, CIO, Local 218, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By shutting down its 1509 plant and by otherwise interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaranteed in Sec- tion 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. 5. The respondent has not discriminated with respect to the hire and tenure of employment of Gertie Braswell, Mary Pinion, Adeline Scott, Annie Lee Cow- den, Myrtle Holland, and Allene Reynolds, within the meaning of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the undersigned recommends that the respondent, C. C. Bennett, doing business as Novelty Peanut Company, Dallas, Texas, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Longshoremen's and Ware- housemen's Union, CIO, Local 218, or any other labor organization of its em- ployees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to Join or assist International Longshoremen's and Warehousemen's Union, CIO, Local 218, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : NOVELTY PEANUT COMPANY 1069 (a) Either ( 1) resume in Dallas the operations of its 1509 plant and restore to Dallas as nearly as now possible , the business of the respondent 's 1509 plant as it would have been had not the 1509 plant been closed down , the equipment thereof transferred to Kaufman plant or sold , and the making of the "Pat's Bar" been contracted out to the Ranch Maid Candy Company ; or (2) offer reinstate- ment at the 1409 plant or the Kaufman plant to Alton Johnson, Della Lyle, Floy Rogers, and those employees listed in Appendix A, and offer payment either for any extra expenses incurred by daily commuting from Dallas to Kaufman over and above comparable expense which they may have borne while working at the 1509 plant or for the reasonable expenses entailed in the transportation and moving of such employees and their families to Kaufman from Dallas ; (b) Offer reinstatement and employment to, and effect insofar as possible the reinstatement and employment of, Alton Johnson , Della Lyle , Floy Rogers, and those employees listed in Appendix A, to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, in the manner provided above in the section entitled "The remedy" ; (c) Offer to Billy Keener immediate and full reinstatement to his former position without prejudice to his seniority and other rights or privileges; (d) Make whole Alton Johnson , Della Lyle , Floy Rogers, and the employees listed in Appendix A for any loss of pay they may have suffered by reason of the respondent 's discriminatory conduct 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 against him , to the date of the offer or reinstatement or employment or placement on the preferential list, as provided in "The remedy," less his net earnings during such period ; (e) Make whole Billy Keener for any loss of pay he has suffered by reason of the respondent 's discriminatory conduct, by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of his discharge , February 18, 1945, to the date of the respondent 's offer of reinstatement , less his net earnings during said period ; (f) Clarify its rule forbidding solicitation during working hours on the respondent 's premises , by posting at its plants in Dallas and Kaufman a notice informing employees that such rule does not forbid their solicitation during their non-working hours on the respondent 's property ; (g) Post at its plants in Dallas, Texas , and in Kaufman , Texas, and send to Alton Johnson, Della Lyle, Floy Rogers, and each of the employees listed in Appendix A, copies of the notice attached hereto, marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the respondent 's representative , be posted and mailed by the respondent immediately upon receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the respondent to insure that said notices are not altered , defaced, or covered by any other material; (h) It is further recommended that the complaint be dismissed insofar as it alleges that the respondent has discriminated in regard to the hire or tenure of employment of Gertie Braswell , Mary Pinion, Adeline Scott, Annie Lee Cowden, Myrtle Holland, and Allene Reynolds. (i) Notify the Regional Director for the Sixteenth Region in writing within ten (10 ) days from the receipt of this Intermediate Report what steps the respondent has taken to comply therewith. 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National LaboeRelations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceedings (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. FREDERIc B. PARKES, 2nd, Trial Examiner. Dated December 13,. 1945. Maude Aderholt Mary Ashworth James L. Bishop Euleta Blagg Mary Blankenship Thomas Bosh Nannie Bowers Velma Brown Homer Browning Lena Belle Kane Bonnie Chesshier Sadie Cooley Nora Cranford Lois Derrick Ilene Engledow Jewel Estes Henry Lee Evans Mattie Lou Floyd James Glascoe M. H. Gloss Sadie Grant Mattie Gram Della Harris Felepa Hernandez Minnie Blanton APPENDIX A Daisy Lee Freddie Ivory Calvin Jackson John Jackson Carrie Jenkins Navada Jock Christine Johnson Isreal Jones, Jr. Mathew McDonald Katie Marshall Willie Morris Virginia Ramireaz Winnie Reynolds Annie Russell Leona Skiles Della Smith Vera Soffey Ruth Stone Rena Stracener Vida Stroud Catherine Thompson Charles Watson Ruth Webb W. W. Simmons NOVELTY PEANUT COMPANY APPENDIX B NOTICE TO ALL EMPLOYEES 1071 Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organ- izations, to join or assist International Longshoremen's and Warehouse- men's Union, CIO, Local 218, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions at a Dallas plant where we are resuming the operations of our former 1509 South Ervay Street plant, or at our plant at 1409 South Ervay Street, or at our Kaufman plant, without prejudice to any seniority or other rights and privileges pre- viously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination and for any expenses incurred in either commuting or moving from Dallas to Kaufman. Alton Johnson Thomas Bosh Nora Cranford Mattie Lou Floyd Minnie Blanton Jewel Estes Virginia Ramireaz Rena Stracener Mathew McDonald James L. Bishop Lena Belle Kane Floy Rogers Mattie Grain Bonnie Chesshier James Glascoe Della Smith Carrie Jenkins M. S. Goss Nannie Bowers Lois Derrick Euleta Blagg Daisy Lee Isreal Jones, Jr. Della Harris Freddie Ivory Katie Marshall Vera Soffey Calvin Jackson Maude Anderhold Velma Brown Charles Watson Winnie Reynolds Vida Stroud W. W. Simmons Annie Russell Catherine Thompson Ilene Engledow Mary Blankenship Ruth Webb Henry Lee Evans Felepa Hernandez Navada Jock Willie Morris Ruth Stone Della Lyle Mary Ashworth Homer Browning Christine Johnson Sadie Grant Sadie Cooley Leona Skiles John Jackson WE WILL OFFER to Billy Keener immediate and full reinstatement to his former or substantially equivalent position at our plant at 1409 South Ervay Street without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. Our rule forbidding solicitation on our premises applies only to the time employees are at work. All employees are free to engage in legitimate union activities on our premises during non-working hours. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hire or tenure of employment or any term of condition of employment against any employee because of membership in or activity on behalf of any such labor organization. C. C. BENNETT, DOING BUSINESS AS NOVELTY PEANUT COMPANY By ------------------ ------------ (Representative) (Title) Dated------------------------ NOTE : Any of the above -named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. 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