Reynolds & Manley Lumber Co, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1951

97 N.L.R.B. 188 (N.L.R.B. 1951)

188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REYNOLDS & MANLEY LUMBER COMPANY , INC. and INTERNATIONAL
UNION OF MINE, MILL & SMELTER WORKERS. Case No. 1O-CA-1125.
November 30, 1951
Decision and Order
On March 21, 1951, Trial Examiner Peter F. Ward issued his Inter-
mediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1), (3), and (5) of the National
Labor Relations Act and recommending that the Respondent cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter
the Respondent filed its exceptions to the Intermediate Report and
a supporting brief.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
Respondent's exceptions and brief, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
following additions and modifications.
1. On November 18, 1949, the Smelter Workers filed a petition for
certification as the bargaining representative of the employees at the
Respondent's mill. Although the Smelter Workers was at that time,
and is now, in compliance with the provisions of Section 9 (h) of the
Act,' the CIO, the parent federation with which the Smelter Workers
was then afliliated,2 did not come into compliance until December 22,
1949.
In-its objections to the conduct of the election held pursuant to the
Board's Decision and Direction of Election,3 the Respondent argued
that the Board was without authority to conduct an investigation of
the question concerning representation raised by the petition, because
of the CIO's noncompliance with the provisions of Section 9 (h) when
the Smelter Workers filed its petition. However, under its then cur-
The relevant portion of Section 9 ( h) provides :
No investigation shall be made by the Board of any question affecting commerce con-
cerning the representation of employees , raised by a labor organization under subsec-
tion ( c) of this section . . . , unless there is on file with the Board an affidavit executed
contemporaneously or within the preceding twelve -month period by each officer of such
labor organization and the officers of any national or international labor organization
of which it is an affiliate or constituent unit that he is not a member of the Communist
Party or affiliated with such Party, and that he does not believe in, and is not a member
of or supports any organization that believes in or teaches , the overthrow of the United
States Government by force or by any illegal or unconstitutional methods.
2 The petition for certification did not show the affiliation of the Petitioner with the
CIO However, such affiliation , which was unilaterally added to the petition by the
Regional Office, was admitted at the representation case hearing
3 Reynolds t Manley Lumber Company, Inc , 88 NLRB 1300 ( March 20, 1950)
97 NLRB No. 44. 1
REYNOLDS & MANLEY LUMBER COMPANY, INC. 189
rent interpretation of the Act's provisions,' the Board did not require
compliance by the parent federation of international unions. Accord-
ingly, the Board overruled the Respondent's objections and certified
the Smelter Workers as the collective bargaining agent of the Respond-
ent's employees.'
Following the certification, the Respondent refused to bargain upon
the Smelter Workers' request, defending its refusal on the ground that
the Board was without authority to conduct the representation investi-
gation in view of the CIO's noncompliance. Accordingly, it now
argues that the Board's certification of the Smelter Workers as the bar-
gaining representative of its employees did not legally establish the
Smelter Workers' majority status. The Trial Examiner, in finding a
violation of Section 8 (a) (5), concluded that this defense was without,
merit because, as the Board had already determined in the representa-
tion case, the CIO did not have to comply with the provisions of
Section 9 (h).
Therefore, however, in the Highland Park case,6 the Supreme Court
of the United States decided, adversely to the Board, that parent
federations such as the CIO must comply with the provisions of
Section 9 (h) of the Act. Section 9 (h) therefore required compliance
by the CIO before the Board could make an investigation of the
question concerning representation raised by the Smelter Workers'
petition. It follows that the Board's reasoning in overruling the
Respondent's objections to the election was erroneous, and that, as
a result, the Trial Examiner's reliance on this reasoning as a ground
for rejecting the Respondent's defense to the alleged refusal to bar-
gain was not dispositive of that defense.
The Trial Examiner, in his Intermediate Report, nevertheless pos-
tulated that even assuming that the Board was in error in interpreting
the Act's affidavit compliance provisions, the representation proceeding
was valid because no investigation of the Smelter Workers' petition
had, in fact, been made until after the CIO came into compliance.
The Trial Examiner thus anticipated what is now the crucial issue
in this case, but we believe he resolved that issue incorrectly. It has
been well established since early in the administration of the amended
Act that: -
Every step in a proceeding initiated under Section 9 (c)-the
preliminary administrative review of the facts, the hearing, the
Board Decision and Direction, the election itself, and the pro-
ceedings on Challenges and Objections-constitute "investigation"
of the question within the meaning of Section 9 (f) and (h) .7
+ Northern Virginia Broadcasters , Inc, 75 NLRB 11 (1947)
s Reynolds & Manley Lumber Company, 90 NLRB 2112 ( August 22 , 1950).
ON L. R . B v Highland Park Manufacturing Co., 341 U. S. 322 ; 71 S. Ct. 758.
7 7 Rite-Form Corset Company, Inc., 75 NLRB 174.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon receipt acid docketing of the Smelter Workers' petition on
November 18, 1949, the Tenth Regional Office of the Board, following
customary procedure, undertook to obtain information regarding the
effect of the Respondent's operations on interstate commerce, rate of
employee turnover at the Respondent's mill, number of affidavit
cards supporting the Smelter Workers' petition, and other facts
requisite to an issuance of a notice of representation hearing. The
Board's field examiner filed his investigation report containing infor-
mation on these matters on December 15, 1949. There can be little
doubt but that these procedural steps were a "preliminary adminis-
trative review of the facts," and that such action "constituted `inves-
tigation' of the question within the meaning of Section 9 (f) and (h)."
It is therefore clear that the Board's "investigation" was actually
undertaken at a time before December 22, 1949, when the CIO was
not yet in compliance." Because the Board was barred from making
any investigation at that time, we are constrained to find that the
entire representation proceeding, including the post-compliance elec-
tion and certificate, was conducted without authority of law and invalid
from the outset.9
Section 18,1° recently enacted as an amendment to the Act, provides
in the proviso thereto that no liability can be imposed for "failure to
honor" an election or certificate before October 22, 1951, the effective
date of Section 18, where, as here, the election and certificate were
invalid because of the CIO's failure to comply with Section 9 (h)
before December 22, 1949. Under the circumstances of this case, we
find that the Respondent has failed to honor the election and certificate
within the meaning of Section 18, so that no liability can be imposed
therefor. We shall accordingly dismiss the 8 (a) (5) allegation of
the complaint 11
8 We must reject the Trial Examiner 's conclusion that the Regional Director 's issuance of
the notice of hearing in the representation case constituted in effect a refiling of the Smelter
Workers' petition.
9 The fact that the impediment raised by the CIO's noncompliance was removed by the
time the representation case certification and the complaint herein were issued cannot serve
to validate the representation proceeding See N. L. R B. v . Clark Shoe Co, 189 F. 2d
731 (C. A. 1), decided June 19, 1951. Cf . Highland Park Manufacturing Co , supra.
to Section 18 provides : "No petition entertained , no investigation made, no election held,
and no certification issued by the National Labor Relations Board, under any of the provi-
sions of section 9 of the National Labor Relations Act, as amended , shall be invalid by
reason of the failure of the Congress of Industrial Organizations to have complied with the
requirements of section 9 (f), (g), or ( h) of the aforesaid act prior to December 22, 1949,
or by reason of the failure of the American Federation of Labor to have complied with
the provisions of section 9 (f), (g), or ( h) of the aforesaid Act prior to November 7, 1947 ;
Provided, That no liability shall be imposed under any provision of this Act upon any
person for failure to honor any election or certificate referred to above prior to the effective
date of this amendment : Provided , however, That this proviso shall not have the effect of
setting aside or in any way affecting judgments or decrees heretofore entered under sec-
tion 10 ( e) or (f ) and which have become final " Public Law 189, 82nd Cong, Chapt. 534,
1st Sess , approved October 22, 1951.
12 Cf. Union Bus Terminal of Dallas, Inc., 97 NLRB 206.
REYNOLDS & MANLEY LUMBER COMPANY, INC. 191
2. The Trial Examiner found that the Respondent discriminated
in regard to the tenure of employment of Joe Brown on January 11,
1950, in violation of Section 8 (a) (3) and (1) of the Act. In cases
where, as here, an employer discharges or refuses to reinstate em-
ployees for engaging in a strike or other form of concerted activity
which is not per se unlawful or beyond the protective scope of Section
7, and justifies his action on the ground that the employees forfeited
the protection of the Act by engaging in particular misconduct, the
burden is on the employer to establish, by a preponderance of the evi-
dence, the actual fact of each employee's guilt."' We agree with the
Trial Examiner that the Respondent did not sustain this burden with
respect to its contentions that Brown either engaged in strike violence
or was guilty of misconduct in leaving his post on the day of the strike.
3. We also agree with the Trial Examiner that the conduct of the
Respondent's vice president, Shearhouse, in questioning Isaac Jack-
son, Jr., violated Section 8 (a) (1) of the Act. However, unlike the
Trial Examiner, we characterize such questioning as interrogation
which interferes with, restrains, and coerces employees in the exercise
of the rights guaranteed to employees in Section 7 of the Act.13
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Reynolds & Manley
Lumber Company, Inc., its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Mine,
Mill & Smelter Workers, or in any other labor organization of its em-
ployees at its yard in Savannah, Georgia, by discriminatorily refusing
to reinstate them, or by discriminating in any other manner in regard
to their hire, tenure of employment, or any term or condition of
employment.
(b) Interrogating or in any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to self-organ-
ization, to form labor organizations, to join or assist International
Union of Mine, Mill & Smelter Workers, or any other labor organiza-
tion, to bargain collectively through representatives of their own
12 Stewart Die Casting Corp . V. N L R. B ., 114 F. 2d 849 , 859 (C . A. 7), cert. denied 312
U. S 680; Home Beneficial Life Insurance Co. v. N. L R. B., 159 F. 2d 280, 284-285 (C. A.
4), cert. denied 332 U. S. 758 ; Mid-Continent Petroleum Corp., 54 NLRB 912, 933; Porto Rico
Container Corporation, 89 NLRB 1570. See also, Aladdin Industries, Inc., 22 NLRB 1195,
1216-1217; Ohio Associated Telephone Company, 91 NLRB 932. Jefferson Standard Broad-
casting Company , 94 NLRB 1416.
13 Standard - Coosa-Thatcher Company, 85 NLRB 1358.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choosing, and to engage in collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (-a) (3 ) of the Act, as guaranteed in Section
7 thereof.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act.
(a) Offer to Joe Brown immediate and full employment in the
same or substantially equivalent position for which he applied and
which the Respondent refused him on or about January 11, 1950.
(b) Make whole Joe Brown in the manner set forth in the Section
of the Trial Examiner's Intermediate Report entitled "The Remedy."
(c) Upon request make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due.
(d) Post at its plant in Savannah, Georgia, copies of the notice
attached hereto as Appendix A. Copies of such notice, to be fur-
nished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's representative, be posted by it
for sixty (60) consecutive days thereafter in conspicuous places includ-
ing all places where notices to employees customarily are posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material .14
(e) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from' the date of this Order what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges a
refusal to bargain in violation of Section 8 (a) (5) of the Act, be, and
it hereby is, dismissed.
MEMBERS MURDOCK and STYLES took no part in the consideration
of the above Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
14 In the event this Order is enforced by a United States Court of Appeals , there shall be
inserted before the words, "A Decision and Order ," the words, "A Decree of the United
States Court of Appeals Enforcing."
REYNOLDS & MANLEY LUMBER COMPANY, INC. 193
WE WILL NOT discourage membership in INTERNATIONAL UNION
OF MINE, MILL & SMELTER WORKERS, or discourage activity in
support of that organization or any other labor organization, or
discourage any employee from exercising the rights- secured to
him under the National Labor Relations Act by means of dis-
criminatorily refusing to reinstate or discriminating in any other
manner in regard to the hire, or tenure of employment, or any
term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor organizations, to join or assist INTERNATIONAL
UNION OF MINE, MILL & SMELTER WORKERS, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of
the Act, as guaranteed in Section 7 thereof.
WE WILL offer to Joe Brown immediate and full reinstatement
to his former position and make hire whole for any loss of pay
suffered.
REYNOLDS & MANLEY LUMBER COMPANY, INC.,
Employer.
By -----------------------------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by International Union of Mine, Mill & Smelter
Workers, herein called the Smelter Workers, the General Counsel of the National
Labor Relations Board, herein respectively referred to as General Counsel and
the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia),
issued a complaint dated December 14, 1950, against Reynolds & Manley Lumber
Company, Inc., of Savannah, Georgia. 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 (a) (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act.'
I Said complaint was, with consent of all parties, amended at the hearing and alleged
that the Respondent had engaged in and was engaging in further and other unfair labor
practices affecting commerce within the meaning of Section 8 (a) (3) and (1) and Section
2 (6) and (7) of the Act.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of the charges, the complaint, and notice of hearing were duly served
upon the parties.
With respect to the unfair labor practices the complaint; as amended at the
hearing, alleges in substance and effect that: (1) On or about August 30 and 31
and divers dates during September 1950, Respondent refused to bargain col-
lectively with the Smelter Workers as the exclusive representative of its em-
ployees in an appropriate unit; (2) on or about September 8, 1950, the Respond-
ent, Fred Shearhouse, its vice president, interrogated Isaac Jackson, Jr., an
employee, concerning his intentions to vote in a strike poll to be conducted by
the Smelter Workers and induced said Jackson, by promise of benefit, to
interrogate its employees about their intention to vote in said poll, and to urge
and persuade other employees not to participate in said poll ; (3) on or about
January 11 and 12, 1951, Joe Brown, one of Respondent's striking employees,
applied unconditionally for reinstatement to his former or substantially equiv-
alent position with the result that the Respondent discriminatorily refused to
reinstate said Brown and has continued to refuse to reinstate said Brown to
his former or substantially equivalent position; and (4) by the acts above
described Respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed by the Act.
On or about January 8, 1951, the Respondent filed an answer wherein it ad-
mitted certain affirmative allegations of the complaint but denied that it had
committed the unfair labor practices alleged 2
Pursuant to notice, a hearing was held at Savannah, Georgia, on January 26,
1951, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The General Counsel and the Respondent were represented
by counsel ; the Smelter Workers by an official. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues. At the conclusion of the hearing, the
General Counsel waived an opportunity to file briefs with the undersigned,
but argued orally on the record. Counsel for the Respondent waived oral
argument but filed a brief with the undersigned which has been duly, considered.
At the close of the hearing General Counsel made a motion to conform the
pleadings to the proof. The motion was granted without objection.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Reynolds & Manley Lumber Company, Inc., is a corporation organized under
and existing by virtue of the laws of the State of Georgia. It maintains its
principal office and only plant at Savannah, Georgia, where it is now, and has
been continuously since in or about 1925, engaged in the manufacture, processing,
sale, and distribution of lumber and related products. In the course and con-
duct of its business operations at the Savannah plant during the year ending
December 1, 1950, which period is representative of all times material herein,
the Respondent made purchases of lumber and logs valued in excess of $700,000,
approximately 40 percent of which, in value, was purchased outside the State
2 The Respondent's answer admits a refusal to bargain and affirmatively alleges certain
facts and contentions had in connection with representation proceedings theretofore had
before the Board; and certain other proceedings had by and before the Congress of Indus-
trial Organizations, which the Respondent contends justified its refusal to bargain with the
Smelter Workers. These contentions will be considered further below.
REYNOLDS & MANLEY LUMBER COMPANY, 'INC. 195
of Georgia and shipped in interstate commerce to the Savannah plant. During
the same period, the Respondent sold finished products consisting principally
of pine, hardwood, and cypress lumber, valued in excess of $1,500,000, approxi-
mately 70 percent of which, in value, was sold and shipped in interstate com-
merce to customers outside of the State of Georgia .3
U. THE ORGANIZATION INVOLVED
International Union of Mine, Mill & Smelter Workers is a labor organization
within the meaning of Section 2 (5) of the Act, admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain; interference, restraint, and coercion
1. The appropriate unit
The complaint alleges, in accordance with the Board's finding in its Decision
and Direction of Election, dated March 20, 1950," and the Board's Supplemental
Decision and Certification of Representatives.' that the following employees of
the Respondent constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act :
All production and maintenance employees at the Respondent's sawmill,.
planer mill, and yard at Savannah, Georgia, excluding office and clerical
employees, watchmen, and supervisors as defined by the Act.
In its answer, the Respondent admits such unit is appropriate within the
meaning of Section 9 (b) of the Act, but affirmatively alleges and contends that
the Board was without jurisdiction to hear and consider the petition for certifi-
cation filed by the Smelter Workers under date of November 18, 1949, by reason
of the fact that the Smelter Workers was affiliated with the Congress of Indus-
trial Organizations, hereinafter called CIO, and that the latter organization
was not on November 18, 1949, in compliance with the filing requirements of
Section 9 of the Act. For reasons set forth in detail below, the undersigned
finds that Respondent's contentions in this connection are without merit.
The undersigned accordingly finds that the unit above described is appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act, and that said unit will assure to Respondent's employees the full
benefit of their right to self-organization and collective bargaining and will
otherwise effectuate the policies of the Act.
2. Majority representation by the Smelter, Workers
The record herein discloses without dispute, that pursuant to the Decision and
Direction of Election,' issued on March 20, 1950, an election was conducted April
14, 1950, under the direction and supervision of Acting Regional Director for
the Tenth Region, among the employees in the unit therefore found appropriate
by the Board. Tally of such election disclosed 93 valid ballots were cast for
the Petitioner and 22 valid ballots were cast against the Petitioner, and that
4 ballots were challenged. The Respondent filed timely objections to the con-
6 The findings in this section are based upon the allegations contained in the complaint as
admitted by Respondent 's answer.
4 88 NLRB 1300.
6 90 NLRB 2112
6 See footnote 4, supra
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct of the election and to the conduct affecting the results of the election.
Thereafter and on June 22, 1950, the Regional Director, pursuant to the Board's
Rules and Regulations, issued and served on the parties his report on the elec-
tion and objections to the election and recommendations to the Board. The
Regional Director found that certain objections raised no substantial issues and
should therefore be dismissed, and referred certain other objections to the Board
for its decision. July 10, 1950, Respondent filed exceptions to the Regional Di-
rector's report and recommendation and a supporting brief.
As set forth in the Board's Supplemental Decision and Certification of Rep-
resentatives,7 the Board duly considered Respondent's objections, and on August
22, 1950, issued its Supplemental Decision and Certification of Representatives,
wherein and whereby it certified International Union of Mine, Mill & Smelter
Workers as the bargaining representative for the employees referred to in the
above-described unit.
The undersigned accordingly finds that at all times since April 14, 1950,
the Smelter Workers has been the representative for the purposes of collective
bargaining of a majority of the employees in said unit, and by virtue of Section
9 (a) of the Act, has been, and now is, the exclusive representative of all the
employees in such unit, for the purposes of collective bargaining in respect
to rates of pay,. wages, hours of employment, and other conditions of employment.
3. The refusal to bargain
The complaint alleges that on or about August 30 and 31, and at sundry
and divers dates during September 1950 the Smelter Workers requested
Respondent to bargain collectively with respect to rates of pay, wages, hours
of employment, and other conditions of employment, with it as the exclusive
representative of the employees in the unit hereinbefore described; and that
on or about August 30, 1950, and all times thereafter, the Respondent refused
to bargain collectively with the Smelter Workers as representative of the
employees in said unit.
Respondent in its answer admitted it did refuse to so bargain, and in its
answer and at the hearing herein sought to justify such refusal on the theory
that the Board was without jurisdiction to entertain the Smelter Workers'
petition for certification by reason of the fact that on the date such petition
was filed, the CIO, with which it was then affiliated, was not in compliance
with the filing requirements of Section 9 of the Act.
Respondent further contends that it was justified in its refusal to bargain
with the Smelter Workers by reason of the fact that on February 15, 1950,
the CIO withdrew its certificate of affiliation from the Smelter WTorkers, and
in effect expelled it as,an affiliate of the CIO.
Respondent's exceptions to the Regional Director's report and recommen-
dations on Respondent's objections to the conduct of the election and to conduct
affecting results of the election, hereinbefore referred to, raised the identical
contentions before the Board it now contends for herein. The Board found
in part:
The Petitioner's name as stated in the petition herein is "International
Union of Mine, Mill & Smelter Workers." Its name as stated in the notice
of representation hearing, issued on the petition, is "International Union
of Mine, Mill and Smelter Workers, CIO." At the hearing, a represent-
ative of the Petitioner referred to himself as representing "International
7 See footnote 5, supra.
REYNOLDS & MANLEY LUMBER COMPANY, INC. 197
Union of Mine, Mill and Smelter Workers, CIO." After the hearing,
the CIO revoked the Petitioner's certificate of affiliation and expelled
the Petitioner from the CIO. The Board's Decision and Direction of
Election named the Petitioner as "International Union of Mine, Mill and
Smelter Workers," without the designation CIO, and it so appeared on
the ballot in the election.
In said Supplemental Decision and Certification of Representatives s the Board
found that International Union of Mine, Mill & Smelter Workers had at all
times during the proceedings been in compliance with the filing requirements
of Section 9 of the Act. The CIO, not in compliance at the time of the filing of
the petition herein, came into compliance on December 22, 1949, before the
issuance of the notice of representation hearing on January 20, 195() .'
From the foregoing and upon the entire record it is clear and the undersigned
finds that, other than the fact that it received and filed the Smelter Workers'
petition dated November 18, 1949, on that date, all action taken by the Board
in connection with the Smelter Workers' petition for certification, the holding
of the representation election, the filing of the charge, and issuance of the
complaint herein, were taken at a time when the Smelter Workers was in full
compliance as an international union and as a CIO affiliate with the filing
requirements of Section 9 of the Act.
In other words, no formal acts were taken by the Board toward an, investi-
gation in the representation proceedings until after the CIO had complied
with the filing requirements of Section 9 of the Act on December 22, 1949;
and since the Smelter Workers was, on January 22, 1950, still an affiliate
of the CIO, the Regional Director unilaterally decided to and did add the
letters "CIA" to the name of the Smelter Workers, before the issuance of
the notice of representation hearing on January 20, 1950.
It is clear from the record that at the time of the hearing on the representation
case on February 3, 1950, both the Smelter Workers and the CIO were in
full compliance with the requirements to Section 9; and that after the CIO
revoked the Smelter Workers' certificate of affiliation and expelled it from the
CIO on or'about February 15, 1950, the Board issued its Decision and Direction
of Election 10 wherein it referred to the Smelter Workers without the letters
"CIO" appearing in the title of such decision. The notice of election giving notice
that it would be held on April 14, 1950, setting forth the hours during which
the election would be held and the place thereof, also set forth the form of
ballot which referred to the Smelter Workers as "International Union of
Mine Mill and Smelter Workers" as the union for which the employees
could vote for or against with no reference to the CIO as a part of the Smelter
Workers' name ; and in the Board's Supplemental Decision and Certification
of Representatives, the Smelter Workers' name appeared without any reference
to the "CIO."
From the foregoing and the record, it is clear that at the time the hearing
was held on the representation case, the Smelter Workers and the CIO were
in compliance with the requirements of Section 9 of the Act; at the time of the
election on April 14, 1950, the Smelter Workers was in full compliance with
the filing requirements, as well as the CIO, and at this time the Smelter
Workers was not in affiliation with the CIO. From all of which appears, and the
undersigned finds, that other than the receipt and filing of the Smelter Workers'
See footnote 5, supra.
The hearing for which this notice was given was held on February 3, 1950.
10 See footnote 4, supra.
986209-52-vol. 97-14
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition for certification on November 18, 1949, all formal acts taken by the
Board were had at times when the Smelter Workers was in full compliance
with the filing requirements and the CIO was in full compliance with such
requirements from and after December 22, 1949, to date of the hearing herein.
It would appear that since the Board withheld action on the Smelter Workers'
petition of November 18, 1949, until the CIO was in compliance with the
requirements of Section 9 of the Act, the Board's notice of hearing on the
representation proceedings under date of January 20, 1950, in effect constituted
a refiling of the Smelter Workers' petition for certification and thereafter
both the Smelter Workers and the CIO were, at all times material, in compliance
with the requirements of Section 9 of the Act ; and that the holding in the
Postex Cotton Mills case, cited below, is inapplicable herein.
In its objection to election and recommendations to the Board's Decision
and Direction of Election" the Respondent relied upon the decision of the Court
of Appeals for the. Fifth Circuit in N. L R. B. v. Postex Cotton Mills, 111C., 12 and
in the instant hearing Respondent continues to rely upon the Postex Cotton
Mills case together with Highland Park Mfg. Co.'a This latter Court expressly
follows the decision of the Fifth Circuit in the Postex Cotton Mills case.
The Board, in its Supplemental Decision and Certification of Representatives,"
in evidence, in part states :
The Employer further contends that the Board has no authority to in-
vestigate a question of representation in this proceeding because, at the
time of the filing of the petition, the CIO, of which the Smelter Workers
was then an affiliate, was not in compliance with the filing requirements of
Section 9 of the Act. In support of this contention, the Employer cites the
decision in the Postex Cotton Mills case,a in which an order of the Board
directing the respondent in that case to bargain with a labor organization
affiliated with the CIO was denied enforcement by the court solely because,
when the complaint was issued, the CIO was not in compliance with the
filing requirements of"Section 9.
The court in the Postex case rejected the result reached by the Board in
Northern Virginia Broadcasters, Inc.,4 in which the Board concluded that
Congress did not intend that complying labor organizations affiliated with
federations such as the American Federation of Labor and the Congress of
Industrial Organizations should be denied the processes of the Board be-
cause of the failure of such federations to comply with Section 9. AS
we have stated,' we are constrained, with due respect for the opinion of
the Court of Appeals for the Fifth Circuit, to adhere to our interpretation
of the requirements of Section 9, until the Supreme Court of the United
States has had an opportunity to pass upon the questions
° National Labor Relations Boa, d v Poster Cotton Mills, Inc, decided May 5, 1950
(C A 5)
4 75 NLRB 11.
6 See Bethlehem Steel Company , Shipbuilding Division, and Bethlehem-Sparrows
Point Shipyard, Inc., 89 NLRB 341; J. H. Rutter-Rex Manufacturing Company, Inc,
90 NLRB 130.
° We note the recent decision of the United States Court of Appeals for the District
of Columbia Circuit in West Texas Utslataes Company, Inc. v. N. L. R. B , decided July
10, 1950, upholding our interpretation of the requirements of Section 9.
The undersigned is bound by, and in complete agreement with, the Board's
interpretation of the filing requirements of Section 9 of the Act, referred to
See footnote 4, supra.
12181 P` 2d 919 (C. A. 5).
184 F. 2d 98 (C A. 4).
14 See footnote 5, supra.
REYNOLDS & MANLEY LUMBER COMPANY, INC. 199
above; and is of the opinion and therefore finds that such interpretation is
particularly applicable under the circumstances shown to exist in the instant
case."
The Respondent's admitted refusal to bargain with the Smelter Workers after
certification by the Board, on grounds advanced before and heretofore over-
ruled by the Board, constitutes a refusal to bargain within the meaning of the
Act."
The undersigned therefore finds, on the basis of the entire record, including
the representation proceedings, that, since August 30, 1950, and at all times
thereafter, the Respondent has refused to bargain collectively with Interna-
tional Union of Mine, Mill & Smelter Workers as the exclusive representative
of the employees of the Respondent in the appropriate unit, with respect to
rates of pay, wages, hours of employment, and other conditions of employment,
in violation of Section 8 (a) (5) of the Act, that, by such, refusals has inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1) thereof.
B. The discriminatory refusal to reinstate Joe Brown; interference, restraint,
and coercion
1 Incidents antedating the discrimination
Following the Board's certification of the Smelter Workers as bargaining
agent on August 22, 1950, the Respondent admittedly refused to bargain col-
lectively with the Smelter Workers ; thereafter, pursuant to its constitution
the Smelter Workers, on August 30, 1950, took a vote at the union hall to de-
termine whether a formal strike vote should be authorized. The vote so taken
authorized the taking of a formal strike vote.
The fact that a formal strike vote had been authorized and was to be taken
became generally known throughout Respondent's plant. Fred Shearhouse,
executive vice president of Respondent, learned of the plans for such a vote and
discussed it with employee Isaac Jackson, Jr 17 Shearhouse asked Jackson,
"What do you think about the strike?" When the latter replied that he "didn't
know," Shearhouse said, "Don't I [you] think it would be foolish for the men to
vote for a strike like that," Jackson said he still "didn't know."
Shearhouse then suggested that Jackson contact the other employees and tell
them he (Shearhouse) thought it would be foolish for the employees to vote
for the strike when the matter was submitted to them for decision. Jackson
said, "All right" and then talked to his foreman, Henry J. Smith, and informed
him of his plan to "walk awhile and talk to the men and see how they feel (sic)
about the strike."
Jackson then visited other employees at their places of work and asked how
they felt about the strike. He had a further talk with Shearhouse, in the
latter's office, at which time Shearhouse asked him how he was doing. Jackson
testified : "I told him I was doing all right," and continued to talk with other
employees. According to Jackson, he spent about 2 hours "talking to other
boys about the strike vote that day." Jackson testified without dispute that
he received full pay for the day that he talked to other employees concerning
the strike vote.
ae For example , all material and major acts required to be taken by the Board were had or
taken at a time when both the Smelter Workers and the CIO were in compliance with the
requirements of Section 9.
'ON L R B v. Condon Bros . Mfg Co., 187 F. 2d 329 (C. A. 7).
" Not to be confused with Lehman Jackson , foreman.
`ZOO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shearhouse in this connection testified :
Q. (By Mr. Hitch) There has been a little discussion about your talk
with Jackson. What did you tell Jackson?
A. You mean that morning?
Q. I am talking about Jackson and the strike.
A. Jackson-Isaac Jackson?
Q. Yes, sir.
A. I told Isaac that I thought it was going to be a mistake for them to
strike out there, that the matter was up before the National Labor Relations
Board to get a decision , and that that would be time enough to think about do-
ing something like that and if the men strike out there I thought they would
be making a mistake , and that I thought it would be well for him to talk to
some of the boys and tell them that I said that I thought it was a mistake
for them to strike.
Q. You feel you have got a right to do that?
A. I thought I had a right to do that.
On recross examination , Shearhouse testified , "I knew that they were going to
take a strike vote, in a day or so, yes." Shearhouse further testified that when
he made reference to the National Labor Relations Board in his talk with
Jackson, he thought there was an unfair labor practice case pending then or
that he "expected it to be s 18
On September 8, 1950 , the strike vote proper was taken outside the gate at
Respondent 's plant. Ballots were distributed to the employees as they arrived
for work. After marking their ballots, the employees deposited them in a ballot
box located in the car of J P . Mooney, the Smelter Workers ' representative. The
ballots were taken to the union hall and counted by a committee The result
of the tally of ballots was 117 for the strike and 2 against the strike.
2. The strike ; Joe Brown 's activities therein
The record discloses , according to Brown's undisputed and credited testimony,
that between on or about December 1929 and October 5, 1950, he was employed
by Respondent for a total of approximately 13 years and 4 months, as follows :
(1) December 1929 to on or about July 1, 1932 ----------------- 21/2 years.
Off the payroll 11/2 years or until about January 1, 1934
( 2) January 1, 1934, to about July 1, 1940 , as head fireman ----- _ 6% years.
Off payroll 1 year and 8 months or to about March 1, 1942.
( 3) March 1, 1942 , to about November 1, 1945-- --------------. 3% years.
Off payroll about 2 years or to November 1, 1947.
( 4) November 1, 1947, to December 1, 1947-------------------- 1 month.
Off payroll from about December 1, 1947, to about January
1, 1950
( 5) January 1, 1950, to October 5, 195018-------- -------------- 9 months.
Total------------------------------------ 13 years 4 months.
Brown joined the Smelter Workers during February 1950 .20 While he knew
that a strike was to be called as a result of the September 8 vote, he did not know
18 There was no case of any kind then pending before the Board in which the Respondent
and the Smelter workers were involved
18 with the exception of his first employment period, when he worked as a boiler room
helper, Brown was employed as a head fireman.
20 The boiler room shifts were divided into four shifts of 6 hours each Brown's shift,
during his last employment, was from 1 a. in to 7 a. in. Since he had to get up before
midnight in order to be at work by 1 a m , he did not attend many union meetings
REYNOLDS & MANLEY LUMBER COMPANY, INC. 201
in advance just when it would be called. The strike was called for the morning
of October 5, 1950. Brown learned of such fact as a result of a call made to the
vicinity of the boiler room by two members of the Smelter Workers' committee,
namely Little and Green, at about 6: 15 a. in., who called him to the boiler room
yard, informed him that the strike was on, and asked Brown if he was going to
join them in the strike.
Brown replied that he was going to join the strike, but would not do so until
"after my work hours.-I am going to stay on the shift and carry out my orders
of working time." Immediately thereafter, Brown, with the assistance of his
helper, Addis Kitties, began to "cool-down" his five boilers and furnace fires ;
the hot water in the boilers was replaced by cold water; such ashes as were in
the furnaces were pulled and deposited in the ash pit and wet down ; he cut off
the flow of fuel at about 6: 50 a. in.; let the fires burn down normally ; sprinkled
such places as might harbor charred bits of shavings or other pieces of different
types of fuel used in the mill ; and particularly a hole in front of boiler No. 1
which had begun and grown as the cement chipped off as a result of excessive
heat and the application of water used in sprinkling
Shortly before 7 a. in., Brown sent -Kitties to the front gate to see if he could
locate Foreman Lehman Jackson, Brown's immediate supervisor, and have the
latter "send me a release man." Kitties reported after 10 or 15 minutes that
he could not locate Foreman Jackson"
Brown also asked the night watchman to inform Foreman Jackson that he
wished Jackson to send a relief man for Brown. The night watchman agreed
to do so if he saw Jackson. The record does not disclose whether the night
watchman contacted Jackson "
As Brown left the boiler room for the "punch [out] office" he saw Millwright ii
Nix and told him he was going to the punch office, and said , "Will you sort of look
around the boiler room till I get somebody down here a little later on?" Nix
replied, "I will be here for a while."
Brown then left the boiler room and went to the punch room and checked
out, and went out the plant gate and joined the picket line. En route to the
picket line, according to the testimony of Shearhouse, Brown met the former
"a few minutes after 7:00 and, told him he had `cooled the boilers down"';
and that there was no further conversation between him and Brown at that
time.
Shearhouse further testified :
Q. When did it first become apparent to you that there wasn't anybody
down the boiler house?
A. He came to me, Joe Brown, and told me that he had cooled the boilers
down and had left them down.
* * * * * *
Q. What did you do then? '
A. Well, presently I saw Mr. Jackson. [Brown's foreman.] Of course
there was lots of confusion around. I told him that he'd better send
somebody down and see about the boilers.
Q About what time was this?
A. A little after seven o'clock.
Q. A little after seven o'clock?
A. Yes, sir.
21 Kitties, although still an employee, was not called as a witness.
22 The night watchman did not testify.
23 Of whom , more hereafter.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lehman Jackson, foreman, who had direct supervision over the boiler room,
testified in substance that he arrived at the plant on the morning of October 5,
about 20 minutes of 7; as to when he first saw Brown, he said, "I'd say it
was approximately ten minutes after seven, whenever he walked in the picket-
line"; that after he saw Brown, he went to Frank Kelton 24 and asked him if
he wanted to go to work ; and Kelton said he did not know, and "that he was.
afraid."
Jackson and Kelton started into the plant gate-"and some of them [strikers]
said something to Frank," who stopped and did not enter the gate at that time.
Jackson then contacted Millwright Nix. Jackson testified :
So I sent Nix down. I told him to go down and see about the boiler room,
so Nix went down to the boiler room and told me the boilers had water in
them and the fires was pulled. . . _'
Jackson testified that after Nix had gone to the boiler room he succeeded in,
getting Kelton to go to the boiler room about 30 minutes after Nix had gone
there. By the time Kelton arrived, Nix 29 had made his inspection and left.
Kelton testified that when he got to the boiler room he found a fire on a "pile
of stud" that had been run up in front of boiler No. I to be used to "get up
steam with." Foreman Jackson testified that when he got to the boiler room
following Kelton, the latter had the hose on the fire, "he didn't have it completely
out when I got down there."
On January 4, 1951, the Smelter Workers discussed the matter of calling off the-
strike; on January 8, 1951, the strikers voted to call the strike off as of January
9. Under date January 9, 1951, the Smelter Workers wrote Respondent as
follows :
JANUARY 9, 1951.
GENTLEMEN : As representatives of your employees you are advised that
the strike of said employees is being called off effective at the end of the
above date, and said strikers are reporting for work unconditionally,
Very truly,
INTERNATIONAL UNION OF MINE, MILL
AND SMELTER WORKERS,
(S) J. P. Mooney,
J. P. MOONEY,
International Representatzve.
3. The refusal to reinstate Brown
All of the strikers returned to the plant for reinstatement on January 10 or
11,27 1951, and all were reinstated except Brown. Brown first contacted Shear-
house, who said, "Well, Joe, I don't know as we are going to use any but I will
tell you what you can do.-You talk to Mr. Manley [Respondent's president]-,"
which Brown did, at about 8 a. in. Manley asked Brown if he then had a job.
The latter replied that he had a temporary one. Manley then said, "Well, Joe,
I don't know, you don't have a steady job-we probably will find something
around here for you to do-we are putting back practically all the men that
went out on strike to work-you can go today, (which was Thursday)-You come
24 Kelton was Brown 's replacement and should have relieved Brown at 7 a in. that day.
ss Nix's visit to the boiler room and his subsequent report to Jackson is discussed in fur-
ther detail below,
20 Nix was not called as a witness.
27 The record is not entirely clear as to whether the strikers returned on January 10 or
January 11 . From Brown's testimony it would appear that the 11th was the date of return.
REYNOLDS & MANLEY LUMBER COMPANY, INC. 203
back out here in the morning, and I will get in touch with Mr. Jackson and see
can't (sic) we figure out some way for you to get down on your shift."
Brown returned to the plant the next morning at 7 o'clock and waited about
until he could see Manley. When he did, Manley said he would get hold of
Jackson pretty soon and see how he "could figure out down there for you."
Manley told Brown to wait outside until he could get hold of Jackson. An
hour or so later Brown was called into Manley's office. Both Shearhouse and
Jackson were also present. During this session, Shearhouse asked Jackson
to tell Manley how Brown left the boilers on the morning of the strike. Jackson
said, "Joe Brown left the boilers in fairly well (sic) condition. He left a full
gage of (cold) water and everything in perfect shape except down in front of
No. I boiler," he said, "there was a fire sprung up there." Slearhouse for his
part contended on this occasion that Brown sh'uld have remained in the boiler-
house until relieved. Brown stated that lie had remained until a little after
his hours with the boilers cooled down-"because I wasn't going to stay down
there and everybody on the outside." After further discussion, Brown was told
to step outside. He did so and was called back about an hour and a half later.
In substance Manley told Brown that he did not think it would be a good idea
to reinstate Brown. The boiler room had a crew. And during the strike some
shooting had taken place and a fireman had been hit; and since Brown worked
as fireman at night, was the only fireman to join the strike, the employees might
suspect that he (Brown) knew something of the shooting. Manley then stated
for "that" reason he would not put Brown back in the boiler room. Manley
suggested to Brown that he come back to the plant from time to time, about
every 2 or 3 months; when everything would quiet down, he would put Brown
back to work. He added, however, "But I won't put you back to work now." 26
Contentions ; Issues ; Conclusions
The Respondent contends in substance and effect that (1) its refusal to rein-
state Brown was justified by reason of the fact that during the strike certain
violence had taken place and that Brown's reinstatement might cause a re-
currence of violence; and (2) Brown had no right to cool down the boilers
in any event without orders from his foreman ; and the fact that he left the boiler,
room before a relief fireman appeared.
As to contention (1) Shearhouse testified in response to a leading question
that on October 10, 195550, a fireman named Burke 29 had been shot during the
strike ; and that a truck with 18 men in it was ambushed on or about October
13, 1950, with the result that 2' men lost the sight of an eye and several were
in the hospital for a time. Other than Shearhouse's statements above, no testi-
mony concerning violence was offered ; and no attempt to connect Brown or any
other person with the acts of violence was made on the record herein.
At the close of the direct examination of Shearhouse, the undersigned asked the
following questions :
Trial Examiner WARD. May the Examiner inquire into the purpose of
this type of testimony about the shooting?
Mr. HITCH. I would be very happy to state it. The purpose of it is this :
That it has come out in the testimony that Mr. Manley was fearful that
28 The foregoing findings with reference to Brown's efforts are made on Brown's undisputed
and credited testimony Manley was not called as a witness and the record does not show
that he was unavailable . From the record it would appear that Shoarhouse was the
one who insisted on Brown's termination, otherwise Manley would not have had Brown
return the second day as set forth above.
11 The record does not indicate that Burke was killed.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if Brown was put back, they might have a recurrence of violence , and that
that was one of several reasons that he did not.." That is the testimony.
Trial Examiner WARD. Is the purpose of it to show that complainant
Brown is responsible for the shooting?
Mr. HITCH. From his testimony , to my way of thinking-Mr. Manley is
the president of the plant-and he could have that as one of the reasons
in his mind why he didn 't wish to reinstate this man:
If he had a reasonable suspicion it was implication he did not want any
more violence in his plant and that is the reason that we offer it.
Under the facts as shown by the record herein neither a reasonable suspicion
or a good-faith belief that Brown had participated in any wa1 with the violence
claimed herein will justify Respondent 's refusal to reinstate him. Since the
discharge or iefusal to reinstate an employee who has engaged in a strike caused
by an unfair labor practice , as is the fact in the instant case , is in itself viola-
tion of the Act unless such violence is affirmatively proved, not that the Respond-
ent-Employer in good faith believed that the striker ( Brown ) engaged in
misconduct , but had in fact done so .n
Since there is not a scintilla , an iota, or a shred of evidence upon which to base
a finding that Brown engaged in any violence during the strike referred to
herein above, the undersigned concludes and finds contention ( 1) to be without
merit.
As to contention (2) wherein Respondent contends that Brown should not
have cooled down the boilers in any event or left the boiler room until relieved.
By such contention Respondent would deny Brown the right guaranteed to him
by the Act to join in the strike. The facts found above disclose that Brown took
every reasonable precaution to leave the boilers, furnaces , and boiler room in a
safe condition ; that he did not leave his post until after the expiration of his
shift hours ; ' and had made several attempts , as found above , to get word to
his foreman to send relief . The record discloses that after both Shearhouse
and Foreman Jackson learned that he left the boiler room, it was some 30
to 50 minutes before they sent anyone to look after the boiler room. The
significant fact in this connection is that management in effect contends that
,Brown was required to use greater care and diligence than other employees
assigned to the boiler room. As found above, Foreman Jackson sent Millwright
Nix to check the boiler room some 30 to 40 minutes after Brown had left it. Nix
checked the boiler room and found nothing amiss , and then, instead of waiting
for relief, left the boiler room After which Kelton , who should have relieved
Brown, finally arrived to find that the shavings , etc , left to start a fire with had
become ignited.
On the foregoing and the entire record the undersigned concludes and finds
that Brown used reasonable care and diligence in putting the boilerhouse,in
30 It should be noted that Manley did not testify . The only testimony that Manley might
have feared recurrence of violence was given by Brown in his relation of Manley 's state-
ments to him
31 Porto Rico Container Corporation , 89 NLRB 1570 ; Standard Oil of California, 91 NLRB
783; Mid-Continent Petroleum Corp , 54 NLRB 912 , 933-934.
The Respondent does not contend that it discharged Brown because of a good -faith,
although mistaken , belief that they had engaged in misconduct
22 Brown impressed the undersigned as a witness who desired to testify truthfully and
did so. His testimony covering 69 pages of the record was consistent . The only incon-
sistent statement that the undersigned noted, as did counsel for Respondent ( who in his
brief contends that Brown was "wholly discredited" on one point ), was testimony to the
effect that he left the boileihouse at about 7 : 35 a in ., in one instance , and "pretty close to
8 o'clock" in another instance , whereas his time card showed that he checked or "punched"'
out at 7 , 12 a in.
REYNOLDS & MANLEY LUMBER COMPANY, INC. 205
proper shape to leave it; and that he had every right to leave and join in the
strike. Contention (2) is without merit.
In view of the foregoing and the record which discloses that Respondent
refused to reinstate Joe Brown on January 11, 1951, because he engaged in con-
certed strike activity, it is hereby found that by such conduct the Respondent
discriminated in regard to his hire and tenure of employment to discourage
membership in the Swelter Workers, in violation of Section 8 (a) (3) of the Act,
thereby interfering with, restraining, or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1)
thereof.
It is further found that by the conduct of Fred Shearhouse, the Respondent's
executive vice president, by inducing employee Isaac Jackson, Jr., during working
hours, to call on other employees in an attempt to induce such other employees
to vote against the calling of a strike theretofore authorized to be voted upon,
the Respondent 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 (a) (1) thereof.
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 designed to effectuate the policies of the Act.
Having found that the Respondent has failed and refused to bargain with the
Smelter Workers as the exclusive representative of its employees in the appro-
priate unit, it will be recommended that upon request the Respondent bargain
collectively with the Smelter Workers.
It has been found that the Respondent discriminated in regard to the hire
and tenure of employment of Joe Brown. It will be recommended that the
Respondent offer to him immediate and full reinstatement to his former or sub-
stantially equivalent position,33 and make him whole for any loss of pay he
may have suffered as a result of the discrimination against him by payment
to him of a sum of money equal to that which he would have earned as wages
from January 11, 1951, to the date of offer of reinstatement. Loss of pay shall
be computed on the basis of each separate calendar quarter or portion thereof
during the period from the Respondent's discriminatory action to the date of
a proper offer of reinstatement. The quarterly periods, herein called quarters,
shall begin with the first day of January, April, July, and October. Loss of
pay shall be determined by deducting from a sum equal to that which he
would normally have earned for each such quarter or portion thereof, his net
earnings,S4 if any, in other employment during that period. Earnings in one
particular quarter shall have no effect upon the back-pay liability for any other
' The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65
NLRB 827.
14 Crossett Lumber Company , 8 NLRB 440 , 497-8.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quarter 35 In accordance with the Woolworth decision, it will be recommended
that the Respondent, upon reasonable request, make available to The Board and
its agents all records pertinent to analysis of the amount due as back pay.
The unfair labor practices found reveal on the part of the Respondent such
a fundamental antipathy to the objectives of the Act as to justify an inference
that the commission of other unfair labor practices may be anticipated. The
preventive purposes of the Act may be frustrated unless the Respondent is
required to take some affirmative action to dispel the threat. It will be recom-
mended, therefore, that Respondent cease and desist from in any manner
interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed by the Act.
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 Union of Mine, Mill & Smelter Workers is a labor organization
`within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the Respondent's sawmill,
planer mill, and yard at Savannah, Georgia, excluding office and clerical
employees, watchmen, and supervisors, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
3. International Union of Mine, Mill & Smelter Workers was on April 14, 1950,
and at all times since then has been the exclusive representative of all employees
in said unit for the purposes of collective bargaining within the meaning of Sec-
tion 9 (a) of the Act.
4. By failing and refusing to bargain collectively with the Smelter Workers
as the exclusive representative of its employees in the appropriate unit, the
Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Joe
Brown, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
6. By such discrimination and by interfering'with, restraining, and coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
The aforesaid unfair labor practices" are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
15 F W Woolaoorth Companny, 90 NLRB 289.
UNION Bus TERMINAL OF DALLAS, INC. and TRANSPORT WORT ERS UNION
OF AMERICA,- CIO. Case No. 16-CA--28. November 30, 1951
Decision and Order
On February 21, 1951, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding.finding that
97 NLRB No. 47.