Salmon and Cowin, Inc.

National Labor Relations Board - Board Decisions

Aug 3, 1944

57 N.L.R.B. 845 (N.L.R.B. 1944)

'In the Matter Of,SALMON AND COWIN, INC., MINING ENGINEERS &'CON-'
TRACTORS, AND MINE & CONTRACTORS SUPPLY COMPANY;' INC. and
INTERNATIONAL UNION OF' MINE, MILL AND SMELTER WORI{ERS,
AFFILIATED WITH,CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. 1O-C-1413.-Decided ^ August 3, 1944 . '
DECISION
AND
ORDER
On January 8, 1944, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that-the respondents
had engaged in, and were engaging in, certain unfair labor practices,
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in a copy of the Intermediate
Report attached hereto. Thereafter, the respondents, the Union, and
counsel for the Board filed exceptions to the Intermediate Report and
briefs in support of their exceptions.
The Board has reviewed the rulings on motions and on objections
to the admission of evidence made bythe Trial Examiner at the hear-
ing, and finds that no prejudicial error was committed. The rulings
are hereby affirmed.
'The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire. record, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, except insofar
as they are inconsistent with our findings and order hereinafter set
forth.
Respondent Salmon and Cowin, Inc., Mining Engineers & Con-
tractors, hereinafter 'referred to as the respondent, contends that
Milam should be denied reinstatement, on the ground, among others,
that he is afflicted with a hernia which disqualifies him from con-
tinuing in its employ. The Trial Examiner accordingly recom-
mended that Milam undergo an examination by a doctor, selected by
the respondent and the, Union, or in the event of disagreement, by the
Regional Director, for the purpose of having such doctor determine
whether Milaln has a hernia and, if-so, whether it is of such a nature
as to disqualify him for further employment by the respondent, and
that if such examination discloses that Milam has a disqualifying
57 N. L. R. B., No. 137.
845
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hernia, the respondent shall not be required-, to reinstate him. -The
Union-and counsel for the Board excepted to this recommendation,
contending that Milam should be unconditionally reinstated. The
respondent excepted generally to the Trial Examiner's recommenda-
tion ' concerni n g,, the'= reinstatement- of. Milam. -
We' do not accept the afore-mentioned recommendation of the Trial
Examiner, rind, we shall order Milam unconditionally reinstated.
Aside from the possible objection to the Trial Examiner's recommen-
dation on other grounds, which, in view of our findings below, we
deem it unnecessary to consider, the record establishes, and we find,
that the respondent did not in good faith' invoke Milan's 'alleged
hernia as a, reason for denying 'him reinstatement but merely seized
upon it as, a pretext to avoid responsibilities under the Act.2 Presi-
dent Cowin,knew of Milam's alleged hernia when the conference of
August 27, 1943, was held between Cowin and a Field Examiner for
the Board, at which an attempt was made to settle the matter of
Milam's reinstatement; 3 yet Cowin made no mention of Milam's
hernia -at. that, time, and,,Cowin ,admitted at ,the;, hearing that the'
only reason for not having reinstated, Milam on August 27, 1943, was
his alleged "insubordination." Nor is any reference to the hernia
made in'the respondent's answer which sets forth various grounds for
the denial of reinstatement to Milan, which was filed after Cowin
learned of the alleged disability. Milan's hernia was first invoked
by the respondent as a reason for denying him reinstatement, at the
hearing, when Cowin, while being cross-examined by counsel for the
Board, stated that he would not reinstate Milan because of his hernia.
Cowin at the same time admitted that he did not know whether
Milan's hernia was serious. Yet it'is quite possible that his hernia
was not of the type which would have interfered with the perform-
' In considering whether the respondent's assertion, of Milan's physical disability as a
reason for denying him reinstatement'ia'ii' de in good faith ; we note that another reason
assigned by the respondent for its denial , of reinstatement , namely , that Milan would in
any event have been discharged , shortly after his actual discharge , because of the termi-
nation of the project on which he was employed , is, for reasons amply set forth in the
Intermediate Report , plainly unfounded.
We also note that among the reasons advanced by the respondent for its refusal to rein-
state Milan are Milam ' s activity in attempting to instigate -a work stoppage ( the "no pay-no
work" movement ) and the, respondent 's displeasure with the fact that Milan has claimed
that he was discharged for union activities, both of which constitute invalid grounds for
a denial of reinstatement . On this state of the record ;and in the absence of a showing by'
the respondent that Milam's hernia alone would have induced it to deny him reinstatement,
we are not convinced that , absent Milam ' s' attempt to instigate a work stoppage and his
claim that his discharge was discriminatory , he would not have been reinstated
2 In similar situations where the defense of physical disability was not asserted in good
faith , we have ordered unconditional reinstatement . Matter of Eclipse Moulded Products
Co., 34 N. L. R. B . 785, 807-810, enf'd 126 F. (2d) 576, 582 (C. C. A. 7). Cf Matter of
Armour & Co , 32 N. L. R B . 536, enf'd 129 F (2d) 316 (C. C A. 10).
k While Cowin , at one point , testified that he did not recall precisely when he learned
of the hernia , except that it was some time subsequent to Milan's discharge , it'is clear,
from his testimony as a whole , as well as the entire record, that he knew of the'heima
prior to the conference of August 27, 1943.
SALMON AND COWIN, INC. 847
ante of his duties. In fact, there is some indication in the record that
,Milani was afflicted with the hernia for some time prior to his dis-
charge, of which the, respondent had- knowledge,' and yet his services
were regarded by the respondent as entirely satisfactory.5 -
While,' for, -reasons- set 'forth 'above, we shall ^ order -the -respondent-- -
unconditionally to reinstate Milani- to his former or substantially
equivalent position, we wish to make it clear that such order is not
intended to prevent or interfere with the normal exercise by the
respondent of its right to discharge its employees for any legitimate
cause. If, upon Milam's reinstatement, the respondent finds that his
hernia renders him unfit for work, it may terniinate his employment.
In this connection, it is to be noted that even if his disability were to
render him unfit for the position held by him on the date of -his dis-
charge and for any substantially equivalent position, the respondent
may nevertheless wish to retain -him in its employ by transferring
him to other work for which he might be qualified. Our sole concern
is that the respondent's treatment of Milani be non-discriminatory,
and any- attempt by-the respondent to terminate MMilam's employment
will be \carefully scrutinized by us in order to insure that it was
not induced by his union membership or activities.
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 :
A. That respondent Salmon and Cowin, Inc., Mining Engineers &
Contractors, Birmingham, Alabalna, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from : -
(a) Discouraging membership in International Union of Mine,
Mill,and Smelter Workers, affiliated with the Congress of Industrial
Organizations, or in any other labor organization of its employees,
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 their employment;
(b)' In any other manner interfering with, restraining, or coercing
its employees in,the exercise of the right to self-organization, to form
4 Thus, Foreman Bence testified that Milani "could not lift much " Superintendent
Blocker testified that when Milani urged Mocker to reconsider his decision to discharge
him, •Milam referred to the difficulty which he would have in passing a physical examination
at other plants.
5 In other cases in which it appeared that the employer knew of the dischargee's physical
infirmity but nevertheless retained him in his employ, we have'ordered unconditional rein-
statement Matter of J C Boswell Co., 35,N L. R. B. 968, 1018, enf'd 12 L R R. 655,
136 F (2d) 585 (C C. A 9) ; Matter of Keystone Freight Lines, 24 N. L B. B. 1153, 1170-
75, enf'd as mod 120 F. (2d) 414, 417 (C. C A 10).
848 DECISIONS OF 'NATIONAL LABOR' RELATIONS BOARD
labor 'organizations','to join or assist'International Union of Mine.
Mill and, Smelter Workers, affiliated with the Congress 'of Industrial
Organizations, or any other labor organization,-to bargain collectively
through representatives 'of their own choosing, and to engage in con-
certed 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 J. P. Milani immediate and full reinstatement to.his
former or substantially equivalent position, without prejudice to his
seniority, and other rights and privileges; ^ ,
(b) Make whole J. P. Milani for any loss of pay he has suffered
by reason of the respondent's discrimination against him, by payment
to him of a sum of money equal to the amount which he normally
would have earned as wages from the date of the respondent's dis-
crimination against him to the date of the respondent's offer of
reinstatement, less his net earnings during' such- period ;
(c) Post--immediately in conspicuous"places at its premises at 930
Second Avenue North, Birmingham, Alabama, and at each of its '
various projects, and maintain' for a period of not less than sixty
(60) consecutive days from the date of posting, notices to its em-
ployees stating : (1) that the respondent will not engage in the con-
duct from which it is ordered to cease and desist in paragraphs A, 1
(a); and (b) of this Order; (2) that the respondent will take the
affirmative action set forth in paragraphs A, 2 (a), and (b) ' of this
Order, and (3) that the respondent's employees are free to become,
and remain members of International Union of Mine, Mill and
-Smelter Workers, affiliated with the Congress of Industrial Organiza-
tions,'and that the respondent' will not discriminate against any em-
ployee because of membership or activity in that organization;
(d)' Notify the Regional Director, for the Tenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
B. That respondent Mine & Contractors Supply Company, Inc.,
Birmingham, Alabama, and its' officers, agents, successors, and as-
signs, shall :
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to self-
,organization, to form labor organizations, to join or assist Interna-
tional Union of Mine, Mill and ' Smelter Workers, affiliated with
the Congress of Industrial Organizations, or any other labor organi-
zation, to bargain collectively through representatives of their, own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection as guaranteed
in Section 7 of the Act.
SALMON AND COWIN, INC. 849
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post immediately in conspicuous places at its premises at 930
Second Avenue North, Birmingham, Alabama, and maintain for a
period of not less than sixty (60) consecutive days from the date of
posting,e notices to its employees stating that'the respondent will not
engage in the conduct from which it is ordered to cease and desist
iii paragraph B,-1 of this Order; ,
(b) 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.
MR. GERARD D.' REILLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. T. Lowry Whittaker, for the Board.
Mr. Horace C Wilkinson, Mr. Borden Burr and Mr. D H. McKamy; of Bir-
mingham, Ala., for the respondents. _
Mr. James P . Mooney, of Bessemer , Ala., for the Union.
STATEMENT OF THE CASE
Upon amended charges duly filed on November 12, 1943, by International Union
of Mine, Mill and Smelter Workers, affiliated with Congress, of Industrial Organ-
izations, herein called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Tenth Region (Atlanta,
Georgia), issued its complaint dated-November 16, 1943, against Salmon and
Cowin, Inc., Mining Engineers and Contractors, referred to herein as Salmon,
and Mine and Contractors Supply Company, Inc, referred to herein` as Supply,
Birmingham, Alabama, and herein jointly called the respondents. The com-
plaint alleged that Salmon had engaged in and was engaging in unfair labor
practices, 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;
and that Supply had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act.
Copies of the complaint, accompanied by notices of hearing thereon, were duly
served upon the respondents and the Union.
With respect to the unfair labor practices, the complaint alleged in sub-
stance: (1) that the respondent Salmon on or about July 24, 1943, discharged,
and lids since refused to reinstate, J P. Milam, because of his concerted activi-
ties and because of his activities on behalf of the Union; and (2) that the
respondents threatened their employees that if they joined the Union they
would lose their jobs ; informed them that if the Union organized The em-
ployees there would be a• general lay off ; inquired of employees and applicants
for,employment whether they had joined the Union; and discouraged activity
among the employees on behalf of the Union and for the purpose of collective
bargaining and other mutual aid and protection.
Pursuant to notice a hearing was held at Birmingham, Alabama, on November
29 and 30, and on December 1 and 2, 1943, before-the undersigned Trial Exam-
iner duly designated by the Chief Trial Examiner. The Board and the respond-
001245-45-vol. 57-55
I
I
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents were represented by counsel, and the Union by its representative All
parties participated in the hearing. The respondents filed separate answers
denying the commission of unfair labor practices, and denying that respondent
Salmon is engaged in commerce within the meaning of the Act. Full oppor-
tunity 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 hearing counsel for the Board moved to conform the
complaint to the proof. Counsel for'the respondents joined in the motion with
respect to the answer The undersigned granted the motion All parties waived
oral argument before the Trial Examiner. None of the parties has filed a
brief.'
On January 5, 1944, counsel for the Board submitted a written motion to
withdraw Board's Exhibit 10 b and to substitute therefor a new exhibit to be
known as Board Exhibit 10 d. On January 8, counsel for .the respondents
`submitted an answer opposing the motion The motion is hereby denied,
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
Salmon and Cowin, Inc., Mining Engineers and Contractors. is an Alabama
corporation engaged in, the business • of mtiniig_ engineering ` and mining ' con-
tracting, and having its principal office and place of business at 930 Second
Avenue North, Birmingham, Alabama - In general , the business of Salmon is
to investigate and'appraise mine properties and to contract for the performance
of various services with respect to mine development and maintenance'
Mine & Contractors Supply Company, Inc, is in Alabama corporation en-
gaged in the sale and distribution of mining supplies and equipment, and also
having its principal office and place of business at 930 Second Avenue North,
,,Birmingham. `
The respondents concede that Supply is engaged in commerce They deny,
however, that Salmon is engaged in commerce
Salmon was established in 1924. From that time until 1940, it carried on
its present business and in addition sold and distributed mining supplies and
equipment. On July 1, 1940, Supply was organized for the purpose of taking
over the merchandising business of Salmon,. The immediate motive for the
separation was to take Salmon out of the jurisdiction of the Federal Wage-Hour
Act Since that time Salmon has confined itself to the engineering and con-
tracting phases of the business.. All of, Salmon's . w; rk.is performed within.the
area surrounding Birmingham , and all within the State of Alabama.
At the time of Supply:s organization, P G Cowin was president of Salmon.
Since that time Cowin has continued to occupy that position. There are no
other officers in either corporation. Upon the organization of Supply,.Cowin
became president of that firm, and has continuously occupied that position.
1 During the course of the hearing the undersigned reserved ruling on motions by counsel
for the respondents to strike certain portions of the testimony of A H Bence and of
J P Mooney. The undersigned hereby giants the respondents ' motion to strike relating
to Bence's testimony and denies the motion relating to Mooney's testimony.
a According to Salmon ' s letterhead , it offers the following sei % ices consulting , reports,
surveys, prospecting , appraisals , mine plant construction , mine development , iock-drilling
and blasting , guniting and .waterproofing , and shaft and slope sinking.
SALMON AND. COWING INC. `851
Cowin owns' 50 percent of the stock in each of the companies. The remainder
of the stock is owned by the heirs of Herbert S. Salmon
Both companies have a common office at the Second Avenue address in
Birmingham, from which place Cowin determines all the policies of both.
The- premises are owned by Salmon. Secretarial, clerical, and accounting work
for the two companies is handled by the same office staff Also situated on the
premises is a warehouse and a shop The shop is used by Supply, which also
uses about half the warehouse space The remainder of the warehouse space
is used by Salmon. In addition, certain equipment belonging to Salmon is-
used by, Supply r
Supply has it separate set of account books, a separate batik account, and its
own stationery With the exception of the clerical salaries, all office expenses
are paid by Salmon Clerical expense is allocated between the two companies
in accordance with the amount of time the particular employee devotes to the
work of each. Supply is charged $6,000 a year by Salmon for the use of Sal-
mon's premises and equipment
Each company makes separate returns for income, franchise and capital stock
taxes. ,
All of the mining equipment and supplies used by Salmon in the conduct
of its business are purchased from Supply, which bills Salmon for them. Supply
will sometimes repair equipment for Salmon. For this work, Supply likewise
charges Salmon.
However, no ca i pisses back in([' forth between Salmon and Supply.
Charges and credits between the two companies are purely bookkeeping transac-
tions. M
Salmon employs about 70 persons; Supply about 15. There is some trans-
ferring of employees between the companies. Fred Chenoweth, present, super-
intendent of Salmon, was formerly shop manager, or foreman of Supply. In
addition to his duties as superintendent of Salmon, Fred also assists his brother,
Ed Chenowethi, who is now shop foreman of Supply ]Marion Salmon, formerly
a salesman for Supply, was transferred to the Salmon pay roll. J. P. Afilam,
who was hired in February 1043„ to work for Salmon spent the first 7 or 8 days
of his employment working for Supply, but was paid by checks drawn on
Salmon.
Supply does some pnanufactui ing of tools used in mining machines, on equip-
ment owned by Salmon Principally, however, it is a manufacturers' agent,
merchandising mining equipment and supplies. The principal items sold by
Supply are rock drill steel, rock drills, vent tubing, air compressors, pumps,
tubber and suction hose, drill repair parts and rock drill bits During the past
year it purchased supplies costing approximately $280,000, all of which orig-
inated outside the State of Alabama: During the same period Supply sold
materials valued at approximately $300,000, of which from one to five percent
was sold to customers outside the State of Alabama Sales by Supply to Salmon
during this period were approximately $25,000. The remainder of Supply's sales
were made to the United States government, or to government project
contractors.
Salmon is the only firm of mining engineers in the Birmingham' District.
Salmon's chief customer is Tennessee Coal, Iron and Railroad Company, a sub-
sidiary of United States Steel Company engaged in interestate commerce .4 In
' ,Salmon, a former partner , died in October 1941
4 See Tennessee Coal, Iron and Railroad Co, 32 N L R B .375, 41 N L R B. 1364.
852 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
addition, Salmon has performed work for Sloss-Sheffield Steel and Iron Co.,
'and Republic Steel Corporation,' which are also engaged in interstate commerce.
Salmon's work for these companies consists principally of the excavation of
shafts, tunnels and slopes in coal and ore mines as means of egress and ingress,
access to the vein,, air openings, and escapeways. - \
During'the 12 month period preceding the hearing, Salmon was engaged in
the following projects:
Job Company Kind of.work Status
Value of.,
work per-
formed in
past,l2
months
No.5-------- -__ Tennessee Coal Iron & RR 500 ft shaft__________________ Completed---- 7$70,000
Co. 1200 ft slope
2 tunnels-1,100 ft
Short Creek____ Same________________________ 2 slopes, each 900 ft ---------- Under way---' 70,000
Wylam-------- Same________________________ 2 slopes, one 150, and one Underway--__ 30,000
1,300 ft.
No 6----------- Same________________________ 1,200 ft slope ---------------- Under way____ 30,000
Docena-------- Same________________________ 350 ft.slope ----------------- Under.way____ 10,000
"Edgewater-____ Same_______________________ 700 ft.slope ----------------- Underway---_ 5,000
-Bessie ------- Sloss-Sheffield Steel &.Iron 450 ft.shaft_i---------------- Completed-s__ 40,000
Co.
It is evident from the foregoing facts that although there is a corporate sep-
aration between Salmon and Supply, they are in fact one enterprise engaged in
the same industry, having common ownership, a common principal office, clerical
force and managerial control. As is disclosed hereinafter, they also have a
common labor relations policy. The undersigned concludes that, for the purposes
of determining the applicability of the Act, Salmon and Supply constitute one
integrated enterprise.
However, apart from its connection with Supply, Salmon assists in the devel-
opment of mining properties for large steel companies engaged in commerce. It
is the only firm in the Birmingham District engaged in, that business. It is evi-
dent that without the services of Salmon, the functioning of the coal and ore
mines of Tennessee Coal, Iron and Railroad Company would be seriously ham-
pered. • - -
In addition, during the 12 month period preceding the hearing, Salmon'pur-
chased from Supply materials valued at approximately $25,000, representing
over 8 percent of the total sales of .Supply during that period, and all of which
originated from sources outside the State of Alabama. In the opinion of the
undersigned those purchases are substantially in excess of the de mintmus maxim.
-The undersigned finds that Salmon and Supply are engaged in commerce within
the meaning of the Act.'
IL THE ORGANIZATION INVOLVED
International Union of Mine, Mill and Smelter Workers, is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to member-
ship employees of the respondents. ,'
8 See Sloss-Sheffield Steel and Iron Co., 37 N L R. B 134 - - -
6 See Republic Steel Corp , 37 N. L R. B. 134.
7 The entire job required almost 2 years The total price was approximately, a quarter
of a million dollars.
ON. L. R. B. v. Fainblatt 306 U S 601 ; N L R B v. Sunshine Mining Co , 110 Y.
(2d) 780 (C. C. A. 9) ; Consumers Power v. N. L R. B., 113 F. (2d) 38 (C C A •6).
s
SALMON AND COWIN, INC . 853
III. THE UNFAIR LABOR PRACTICES
There is no evidence of labor organization among the respondents' employees
prior to July 8, 1943. On the latter date, James Mooney, a representative of the
Union, met with J. P. Milam and Harley Price, employees of Salmon, for the
purpose of initiating an organizational campaign among the respondents' em=
ployees.i Until July 18 Milam and Price constituted the Union 's organizing, com-
mittee. -On that date Mack Davis, also an employee of Salmon, was added to the
committee. Milam, Price and Davis distributed, union application cards among
the respondent's employees. Milan was the head of the, committee and the most
active Of the union cards which were subsequently signed by employees of the
respondents, Milam secured the majority of the signatures. Milam's solicitation
was carried on at the Birmingham shop and office after working hours, and in
the trucks on the way to the mine 10 ' These activities were carried on openly, and
with no effort at concealment.
On Sunday July 18 the Union held its first group'meeting. On the preceding
Thursday and Friday Milam distributed leaflets announcing this meeting. This
distribution took place in front of the shop and at the mine bath house.
Milani testified that while he stood on the sidewalk in front of the shop dis-
tributing the leaflets, Fred Chenoweth, who was then shop manager of Supply
and a supervisory employee," approached him and said, "You better get out from
here with them damn things" ; that Milam replied, "I am not bothering you, Mr.
Fred; nor nobody else, I am just giving them to the men ;" and that Chenoweth
then stated, "Well, what little that will do, the damn union ain't going to help
oil none."
Chenoweth denied having had such a conversation with Milanin. He testified,
however, that about July 31 Milam was at the gate distributing union cards ;
that he told Milam that he "ought to throw [the cards] away and get to work."
From his observation of the witnesses, and upon the whole record, the under-
signed credits the testimony of Milam"
About July 20, 1943, Howard Mooney, a representative of the Union, telephoned
P. G. Cowin, president of the respondents, and requested a conference concerning
the employees of the respondents who were members of the Union. Cowin
0 Price is no longer employed by Salmon Milam's subsequent discharge , on July 24,
is discussed infra.
10 Milani was employed at the No 5 job,, some distance from Birmingham . The em-
ployees met at the shop in the morning and were transported to the various jobs in
company trucks.
11 Chenoweth hired and discharged employees . In addition to managing the shop for
,Supply, Chenoweth also maintained Salmon's equipment.
12 Two hundred and thirty two pages of the 830 page transcript is devoted to the
examination of Milam, who was called as a witness by the Board. Although able to
sign his name, Milani is virtually illiterate ; he could not "understand the words in
speeches " His wife did his reading for him. Milam's testimony is replete with evi-
dence of his lack of education He was a singularly inept narrator. However, he im-
pressed the undersigned as being a witness anxious to tell the truth. At times his
testimony displayed obvious inconsistencies. These, in the opinion of the undersigned,
after observation of Milam and consideration of all the testimony, resulted from Milam's
lack of education , his deficiencies as a narrator , his failure at times to understand the
questions 'fully, and exhaustive and repetitive examination on the same incident., Where
there wee dispute between Milani and witnesses for the respondent, Milam's testimony
was generally corroborated by theirs up to the point of dispute Where other witnesses
were in a position to testify concerning disputed incidents , their testimony generally
corroborated Milam's. The undersigned is convinced and finds that Milani is a credible
,witness, and that as a whole his testimony reflects the truth of the incidents about
which he testified. Furthermore, as to the specific occurrence related above, Chenoweth's
statements , as related by Milam, are consistent with declarations by Cowin in a letter
to the employees, described hereinafter.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arranged to meet Mooney on Thursday, July 22 However, due to conflicts in
engagements, the parties did not meet until Thursday July 29.
Following his telephone conversation with Mooney, Cowin, with the assistance
and advice of his attorney, composed and gave to the foremen for clisribution
among the employees of Salmon and Supply, and also had posted in the shop
and on the bulletin boards at the various jobs, the following. statement,•dated
July 22."
To ALL EMPLOYEES :
As you probably know, the CIO has requested a conference with me, claim-
ing that it represents a majority of the people employed by this company., I
presume the requested conference has reference to wages, hours and working
conditions.
I think you should be fully and accurately advised about the business and
conditions in which you are interested.
1. This business has been-owned throughout its existence by my late asso-
ciate, Herbert S. Salmon, and myself until his recent death. Mr. Salmon's
widow succeeded to his one-half stock interest in the business when he died.
She has no experience in the business-and takes no'active part in it. The
death of my associate greatly increased the strain I have been under for, some
time. The direction and management of the business calls for extra effort on
my part that I would be delighted to be relieved of. We have more jobs than I
want at the present time. For that reason I have been endeavoring for some-
time to work out a plan to reduce the number of our operations without
jeopardizing the job of any man.
2. I want it distinctly understood that we have always paid all we could
afford. to pay, and we will continue to do so. I also want it clearly and
definitely understood that no employee of this company will get any better
salary, hours or woiking conditions as a result of being a member of a union,
or having a union represent him, than he would receive if he was not a
member of a union
I felt happier than you will ever appreciate when the men in the Shop pre-
sented their request for an increase last December. We applied three times
for this increase and finally got it 0 K ,d, by,the local War Labor Board. In
May of this year it came back disapproved by the National War Labor Board'
We then made up necessary wage charts and applications and I wen to Atlanta
and sat before the Regional Director and worked harder to sell that increase
to him than 1 'ever worked to sell a contract for the company.
The Regional War Labor Boards are getting out brackets of Sound and
Tested Going Rates, according to the news of July 16, 1943 This may give
us an opportunity to request increases beyond the Little Steel formula which
they have held us to heretofore. I will take advantage of every opportunity
to pay the employees of this company all that can be paid under existing con-
ditions and circumstances I will do that without regard to whether they
belong to a union or not, 'or whether they, are represented by a union or not.
But under no circumstances will I• pay any employee any more because he
belongs to a union than I would pay if he did not belong to it. It is for you
to make up your minds and decide for yourselves uu Nether any` i#upposed
advantages of union membership are worth what they will cost you
33 The statement to employees of Salmon was on, the letterhead of Salmon, that to
employees of Supply on the letterhead of Supply The statements, were otherwise
identical .
SALMON AND COWIN, INC. ' 855
3 We are, or have been, sub-contractors on some construction jobs where
the general contractor worked a union 'crew, or was required to do so ,In
those instances we, have encouraged our men to 'get cards and we have
helped them' to obtain cards, only to find that on the next union job they
went on those cards, which cost them from $15 00 to $50 00, were not any
good T. W Green and George Lee have joined a number of times.
4. We have had compressors which we,were.unable to unload because the
truck driver could not operate the truck winch because he was not an engi-
neer, and other nuisances of that kind which do not fit in with the war that
we are interested in winning.
5 The cream of the manpower of this nation is fighting in Europe, -
,Asia and the South Pacific Every man in our employ received on the
average as much in a week as these soldiers do in a month, and during
this emergency the best we can do is to do our part as efficiently as possible.
The war is not won by a long way. We have taken back only in-small
percentage of the territory which Germany and Japan have conquered.
We, as American workmen, are competing with German and Japanese
worknieii and their captured slaves with their inside lines of getting sup-
plies to their soldiers. We have to build and man ships in addition to
meeting the demands for materials of war This reason, more than any
other, has caused me to keep the jobs we have going,' instead of disposing
of some of them, reducing our force, and lightening my load.
6. I have never sought to prevent any man in our employ from joining
any union or any other kind of association, political, social or otherwise, and
I do not propose to undertake to do that now. I will meet with my employees
or any representatives they designate at any convenient time and discuss
any matter they want to discuss. But I want to make it clear that I will
not give any union any better contract than I will give any man in nay
employ who does not belong to a anion.
7 In order to keep this business going I am compelled to devote more
time to its management than I would like to do. I would like to be re-
lieved and take things a little easier 'If I must spend a lot of my time
worrying with representatives of a union, or with employees who are dis-
satisfied, when I am doing the best that can be done under the circum-
stances, nothing remains for me to do but lighten the load on myself and
reduce the number of our jobs and the size of our force. Any job that we
now have can be disposed of to some other contractor and thus relieve
me of the burden of supervising that job.
S. I prefer one job with a small group of men with whom I can work
harmoniously, to -many ,jobs and the responsibility of making a success of
them It is more important to the men employed by this company that
the jobs we have on hand Sand in prospect continue in order to furnish
our employees work than it is that the jobs continue for what I can make
out of them. I can get along if we have to sell all of the jobs that 'we
now have under way, and if any additional strain is placed on-me I will
certainly get rid of enough of them to relieve the strain, and retain only
work that I can handle with a small group of men who will go along with
me fethout placing additional strain on me.
I give you this information in-order that you may makeup your minds
and determine for yourselves whether you think union membership or
union representation will be beneficial to you under existing conditions.
Yours very truly,
P. G. Cowin,
President.
856- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- On July 24, Milani was discharged. His separation notice stated that the
reason for his discharge was "threatening to interrupt work and insubordina-
tion " The circumstances surrounding the discharge are discussed infra.
On July 29 representatives of the Union met with Cowin and Horace C.
Wilkinson, -his, attorney. The Union representatives claimed that Milam'had
been discharged because of his activities on behalf of the Union, and requested
his reinstatement. Cowin or Wilkinson replied that they would investigate
Milam's discharge. In the same conference Howard Mooney stated- that
the Union represented a majority of the employees of both respondents and
asked Cowin to bargain with the Union. Cowin made no response to the latter
request. The meeting was then adjourned to July 31.
On July 30, 1943, Cowin composed the following statement on letterheads
of Salmon and Supply :
$ JULY 30, 1943.
To ALL EMPLOYEES :
The Mine Mill & Smelter Workers Union claims a majority of our men
have authorized the union to represent the men working for us as their
bargaining agent. Many of the men deny that and say it is not true.
Before proceeding further with representatives of the union we should
know the facts. We_feel,that there are two fair and practicable ways of
finding out. One way is for our employees to furnish us the information
without loss of time or interruption of work. The other way is to''call
for an election under the supervision of the National Labor Relations
Board.
In, fairness to you we want to know whether you have selected the
union as your agent. If you have joined the union or want the'union
to represent you, tell us so frankly. If you have not selected the union
as your agent and do not want the union to represent you, give us that
information.
It is therefore requested that you answer the enclosed question and sign
your name to your answers and return them so we may know your position.
Let me'make it plain that no man is required to answer the questions if
he does not desire to do so. It is a matter of you co-operating with us and
us co-operating with you, in an effort to save all of us'time and inconvenience.
Yours very truly,
P. G. CowiN,
Presideht.
Accompanying the letter was the following questionnaire :
Please answer these questions Yes or No
Are you a member of the Mine Mill and Smelter Workers Union or any
other union affiliated with -the C. I. O.
Answer____________
Have you ever authorized the Union to represent you as your bargaining
agent? '
Answer____________
Do you want us to deal with the Union as your agent and make a contract
with it which may affect your wages and your right to continue on -dour job? -
Answer-------------
Name -----------------------------
Juix 30, 1943.
Supervisory employees then distributed , this letter and the questionnaire among
employees of Salmon and Supply , and had them fill out and sign the ques-
SALMON AND COWIN, INC. 857
tionnaire" The supervisors then returned the signed questionnaires to the
office . k
On July 31 representatives of the Union again met with Cowin and Wilkin-
son. At this conference the union representatives were told, in substance, that
investigation had disclosed that Milam was discharged because of insubordina-
tion, and not because of his union activity. Cowin then declined to reinstate
Milam. At the same time the union representatives were informed that "Sal-
mon-Cowin is also advised by a majority of its employees that they are not
members of the Mine, Mill & Smelter Workers Union, and these employees in
writing have indicated that they dp; not want' the union to represent them and
have so instructed the Company." 'g
On September 17 the following statement and questionaire on the letterheads
of the respective respondents was distributed among the employees of Salmon
and Supply :
SEPTEMBER 17, 1943.
Any statement that we have offered to pay Mr. Milam anything is untrue.
We have not and will not offer to pay Mr. Milam one cent and we do not
want our employees misled by any propaganda of that kind.
We are in receipt of a letter from Mr. Howard Mooney, International
representative of the Mine, Mill & Smelter Workers' Union," requesting a
conference with us to discuss recognition of the union and some alleged
grievances of our employees. -What these grievances are we do not, know
and the letter does not state.
What we want to know, and in fairness to you we think we should
know, before we undertake to deal with anybody who wants to have deal-
ings with us that may affect your job is whether you want us to confer
or deal with them. We would, therefore, appreciate your advising us
whether you want us to confer with Mr. Mooney,' as the representative
of the Mine, Mill & Smelter Workers' Union, or with any other, representa-
tive of that union.
You are not required to answer any inquiry this Company addresses to
you, but you have a right to do 'so if you want to cooperate with us. We
will appreciate your advising us whether ydu want us to confer with
representatives of the union. If you want us to confer with the union,
please make an X mark in front of the first, statement below and sign your
name under it.' If you do not want us to confer with the union, please make
an X mark in front 'of the second statement below' and sign your name
under it, and let us have your answer.
Yours very-truly,
P. G. CowIN
19^Clyde Love, then a foreman for Salmon at No 5, gave the questionnaires to his men at
his desk , where they immediately filled them out. Some of the men could not read or
write. Love read the letter to the latter, and signed the questionnaire for several. .
W. L. Blocker, Salmon 's superintendent at No. 5,-and J. E. Lowrey, a foreman at the
same job, distributed the letters and questionnaires to the men along with their pay checks.
The employees filled out and signed the questionnaire in the presence of Blocker and
Lowery and returned them. Fred Chenoweth distributed the questionnaire among employees
of Supply with their pay checks. The men immediately signed them in Chenoweth's
presence and returned them to him.
A stipulation entered into between counsel for the Board and for the. respondents indi-
'cates that the majority of the employees answered "no" to the, auove questions . All the
returns were signed.
- The undersigned assumes , that this statement was intended to encompass the employees
of Supply as well as of Salmon, since the Union had claimed to represent them all, and
letters and questionnaires had been distributed among them all.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I want you to confer with the Union
______ I do not want you to confer with the Union.
------------------------
These letters, were distributed, to the employees and filled out, signed, and
returned in substantially the same manner as the previous letters and ques-
tioniiaires.1'
There is no evidence' in the record of any request for recognition by the Union
other than the request made in July; nor is there any evidence of any "prop-
a fnda" with res ect to Milam "
Milaam
J. P. Milam was employed by Cowin in February 1943. As indicated heretofore,
he was discharged on July 24.
Milam testified that when he applied for work prior to his hiring, Cowin asked
him whether he was a union man ; that he answered that he belonged to a union ; '
that Cowin then said, "Well, I'm going to give you a job, but don't go out there
and cause [a] disturbance amongst the men"; that Milani replied that he would
not, that ',he was "not that kind of a man to start no ruckus" ; and that Cowin then
stated, "Well,, that's good." Cowin denied that he asked Milam whether he be-
longed to a union, and denied cautioning Milani not to cause a "disturbance."
The undersigned credits Milam.
Except for the first 7,or 8 days of his employment, during which he worked for
Supply, Milam operated a mucking machine 10 for Salmon on the No 5 job until
his discharge. Occasionally he did some drilling in the absence of one of the,
drillers His work was satisfactory.20
Milam's leadership in the Union's organizational drive has been related here-
tofore.
The discharge
Prior to June the day shift had been paid at the end of the shift on Saturday.
In June, after complaints had been made by the men to the effect that the
Saturday pay day interfered with week-end shopping, Blocker began to pay the
day shift on Friday. However, on July 10 and 17 some of the men laid off work.
On Wednesday, July 21, Blocker informed the day shift that too many men were
laying off on Saturday, and that he was going to discontinue paying on Friday.
That announcement resulted in statements by the men, Milam among them,
that if they were not paid on Friday they would not work on Saturday
On Friday, July 23, about 9 p. in., Blocker phoned Milani at the latter's home
and told him that he wished to see him at the office the next morning. Milam
went to the -office early the next day and waited' for Blocker until the regular
1e A stipulation entered into between counsel for the Board and for the respondents indi-
cates that the majority of the signatories checked the second question above.
17 The undersigned does not, however, deem this omission to be material to the issues
herein t
18 Milam had joined another local of the Union in March 1942, while employed by the
Moore Mining Company.
"A machine for removing debris, somewhat similar to a steam shovel.
20 Milam first went to work at No 5 on the night shift under Foreman Lowrey In
April or May Lowrey informed Milam that he "didn't need him any more " Superintendent
Blocker immediately put Milam on the day shift. The reason for Lowrey's action is obscure.
Lowrey testified that Milam "wasn't doing his work like I thought he ought to."
Counsel for the respondent stated at the hearing that neither this incident nor the
quality of Milam's work was a factor in his discharge.
SALMON AND COWIN, INC. 859
leaving time. ' When Blocker did not appear Milani boarded,the truck with the
crew, rode to the mine, and went to work. Sometime later in the morning
Blocker called Milani out of the mine and discliarged him. I
There is conflict between the testimony of Milani and -Blocker as to what
Blocker told Milani in discharging him.
Milam's testimony in substance was as follows : When he met Blocker the
latter told hum that "this hillside ain't big enough for Die and you both, one of
us is got to leave ;" accused Milani of initiating a movement-among the employees
to refrain from • working on Saturday if they were not paid on Friday,' and
'of fomenting a strike, told Milani that he was "the ringleader of this damned
union"; that Cowin "has lived always without a union up until, now; and he
is going to continue on living without a union" ; and characterized Milam's
activities in obscene terms and discharged him. Milani denied fomenting a
strike.' He also denied that lie'had'started the "no pay no work" statements
and asked who had told Blocker that he had. Blocker informed Milani that
it was Foreman Bence. Milam stated that he did not believe it and thereupon
went into the mine and brought up Bence. Confronted by Bence, Blocker'said
that he believed that it was Lowrey, and not Bence, who first reported Milam.
According to Bence's testimony, which is credited, Blocker then told Bence that
Milani was "talking too much."
Blocker's version of the conversation between him and Milani was as follows :
Q. Well, just tell us what conversation there was between you and Mr.
Milani when he came out?
A. Well, I asked; when first Milani came out, I said to Mr . Milanin, "What
kind of thing was that you were trying to deal here yesterday afternoon,
trying to keel) the men from work ?" He said no . I said "Well, why' was
it that you told them that if there was no checks there would be no work?
You knew I was doing that unbeknownst to the boss , for an accommodation,"
or something like that . That is about the words I said. He first said that
he did not say it, and he said, "Well, who told you I said it?" I said, "Well,
all of them, or several of them, " I said. He said, "Well, who was it? I
said, "Well , I don 't know as that makes any difference who.it was. There
was several of them told me." I said, "I just cannot let you work any longer
after this has gone on ," And he says , "Why?" I said, "Well, because,"
I said, "that is just more than I can take , after I was doing you an accom-
modation , then to try to make me do things . I just am not going to let
you work any more The job is just not big enough for you and me both."
He said, "Well , somebody has been reporting to you about the union", or
about him being in the union, or, anyway , there was some little something
said about the union , I don 't know just what that was. I said, "Mr. Milani,
this has nothing ` to do with the union whatsoever, I don't know anything
about the union. If there is any such thing existing , I don't know it. ' This'
is the first time I have heard it." And it was the first time I heard it, about
the, union mentioned.
The undersigned credits the testimony of Milani 22
n Referred to in the record as a "no pay, no work" movement.
22 Blocker 's testimony was that prior to Milam's discharge he "had not heard one word
about [the Union's activityli, in any way. I swear to that." As has been indicated here-
tofore, the Union had asked for a conference with Cowin earlier in the week. Cowin's first
letter to the employees was dated July 22. The testimony, including that of Bence, estab-
lishes that union activity, especially on the part of Milani, had been openly carried on
prior to Milam's discharge, both at the mine and at the office Moreover, Bence testified
that sometime prior to Milam's discharge he and Blocker had had a conversation about the
860, DECISIONS ,OF, NATIONAL LABOR , RELATIONS BOARD
Following the conversation between Blocker and Bence, Blocker, drove Milani
to the office in Birmingham,. where Milam was paid off During the ride to
town, Blocker told Milani that he had intended to make him a shift leader the
nbgt week, and asked why Milani thought that the respondents' employees needed
a union. Milam replied that he thought that a union could improve wage con-
ditions and bring them up to the level' of those at a neighboring, mine. Blocker
also asked Milani how many employees at No. 5 had signed union cards. Milani
answered that practically all had signed. Blocker then repeated his previous
statement to the effect that Cowin had "lived this long" without a union, and
would continue to do so. Blocker denied Milam's testimony. The undersigned'
credits Milam.
According to the further testimony of Milam, which is credited, when he was
paid off, Blocker gave him a copy of the letter of July 22, with the' statemkt
that Milam would see from the letter why the respondents did not want a
union'
About a week after the discharge of Milam, according to the testimony of
Baxter' Hall, a former employee at No. 5, Foreman Lowrey and Hall had a con'
versation about Milam's discharge. In the course. of that conversation Lowrey
told Hall that "If this works," there were two more employees Blocker intended
to discharge-Harley Price and Mack Davis. Lowrey admitted having had a
conversation with Hall concerning Milam's discharge, but denied the' remainder
of Hall's testimony. Lowrey also admitted that Blccker had told him (Lowrey)
that Davis should be discharged, but Lov'rey averred that Blocker's statement
occurred after Lowrey's conversation with Hall Time undersigned credits the
testimony of Hall. '
As has been found heretofore, on July 29 and 31 conferences were held be-
tween representatives of the Union and Cowin aiid Wilkinson in which the Union
sought Milam's reinstatement. At the July" 31 conference Cowin declined to
reinstate Milam.
After his discharge Milam continued to distribute union cards and lite]-"ature
art the gates of the respondents' premises in Birmingham. According to his
testimony, about the middle of September, he handed'a union leaflet to Foreman
Love as the -latter came out of the gate ; Love read it, laughed, and told Mi1'a.m
.that if he would "go around there" and tell Cowin "to hell with the damn Union,"
and apologize, that Milam would get his job back and could go to work that night
with Love. When Milam declared that he would not apologize Love said "Well,
by God, you'll never get nowhere," and walked off Love testified that 1\lilam
gave him a union card one evening about a month after, -.Nlilam's, discharge, but
denied having made the' statements attributed to him by Milam. The under-
signed credits the testimony of Milam." '
Union's activity, during the course of which Blocker remarked that Milam "Seemed to be
working pretty hard at organizing, and he did not see where it would, do him any good "
The undersigned does not'credit Blocker's testimony on this point. -
Za Blocker and Nettie Pitzer, Cowin's secretary, who was present in the office when Milani
and Blocker came in and who paid off Milam, denied that Blocker gave Milam a copy of
the July 22 letter. Pitzer testified that her best recollection was that the July 22 letter
had not yet' been mimeographed on July 24. However, Milam's wife testified that on the
day of his discharge Milam brought home a copy of,,the letter, which he said had been
given him by Blocker ; and that she read the letter to him. James Mooney, the union repre-
sentative, testified that on July 25, Milam brought him a,copy of the letter The under-
signed credits the testimony of Milam, his wife,, and Mooney.
. 24 Love also testified that he saw,some union cards in the watebhouse August; that he
inquired of his employees where they,had secured the cards. The men told him that they
had got the cards from Milam. "I '
SALMON AND COWIN, INC. 861
Concluding Findings
In considering the respondents' conduct, the entire course of events, as dis-
closed by the foregoing facts, must be considered together.
The letter of July 22 was obviously intended to influence the actions of the
employees with respect to self-organization What are the permissible bounds
within which such influence may be exerted, need not here be determined. Suffice
to say that the scope of permissive action falls short of restraint and coercion '
The question to be determined, therefore, is whether the totality of the respond-
ents' conduct, of which the letter of July 22, and the letters and questionnaires
of July 30 and September 17, were but a part, interfered with, restrained, and
coerced the respondents' employees in their self-organizational efforts.
Initially, the respondents' attitude towaid labor organizations among their
employees may be ascertained from Cowin's questioning of 11lilam, when the
latter applied for a job, as to whether Milan belonged to a union, and ' his ad-
monition to Milani not to create a "distuibance amongst the men "
Early in July Milani and others began openly to solicit memberships for the
Union among the respondents' employees. Shortly afterward Shop -Manager
,Chenoweth ordered Milam away from the office gate where Milafii was distributing
union leaflets
During the week of July 18 the Union notified Cowin that it represented a
majority of the respondents' employees and requested a conference. Cowin im-
niediately composed and gdisti ibuted the letter of July 22 to the employees.
While it purported to recognize their statutory right of self-organization, the
letter served warning on the employees that if they designated a collective bar-
gaining representative Coxvin might substantially reduce the working force.
On July 24,2 days after the date of the above letter, Milam, the leader in the
Union's activity, was discharged. The respondents contended that Milani was
discharged, not because of his union activities, but because of insubordination.
It is therefore necessary to examine the testimony as to the facts upon which
the discharge was allegedly based.
Late in the afternoon of July 23, according to Blocker and Lowrey, after
Blocker had paid the day shift crew, Lowrey reported to Blocker that as the
crew came out of the mine, Milani had said, "If there is to be no checks today, no
work tomorrow Blocker testified that two negio employees and the hoisting
engineer also told him that Milani had made the statement About 6: 30 that
evening, according to Blockei and Bence, Blocker phoned Bence and asked
whether he had heard Milani's remark. Bence replied ."Yes, I have heard
them all say it" According to Blocker and Cowin, Blocker then phoned the
latter, told him of the incident, and said that either he (Blocker) or Milani would
"have to go;" and that Cowin told Blocker that the latter was running the job
and should use, his own judgment. It was then, according to Blocker, that he
phoned Milani to meet him at the office the next'morning This conduct of Milam's
according to`Cowin and Blocker, was "insubordinate," and the' reason for his
discharge.
However, the credible testimony reveals that it was Milam's attempt to orga-
nize a union , 'rather than his alleged' provocation of a work stoppage, which
caused his discharge. Thus, when Blocker discharged Milam, he characterized
him as the "ringleader" of the Union, questioned him as to the need for a union
%
25 3 L R B. v Trojan Powder Co., 135 F. (2d) 337 (C C A. 3), Cert Den 320 U S
768; Jacksonville Paper Co v N. L R. B, 137 F (2d) 148 (C C. A 5). Cert Den : 320
U S. 7,68; N. L. R. B. V. Virginia Electric & Power Co, 314 U. S. 469; cf. N L R.'B v
A,he'ioan Tut c'Beiidiuq Co., 134 F (2d) 993 (C C. A. 2), cert. den. 320 U S 768.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and as to his success in securing designations at the mine; asserted that Cowin
had "lived this long" without a union and would' continue to do so ; and stated
that Milan would see-from the July 22 letter why the respondents did not want
a union. Following the discharge, Lowrey declared to Hall that if it "worked,"
Price and Davis, the other two members of the Union's organizing committee,
would also be discharged; 6 and in September Love told Milam that if he•would
repudiate the Union and apologize to Cowin he could go back to work that- very
night, but that otherwise he would "never get nowhere."
Moreover, the circumstances of the discharge are more consistent with the
inference that its cause was Milan's efforts on behalf of the Union, rather than
his exhortation not to work unless'the men were paid on Friday Thus, the July
22 letter plainly warned the employees that if the Union achieved the status of
a bargaining representative, their jobs were endangered. Within two days
thereafter, the spearhead of the organizational campaign was discharged. Fur-
thermore, the information upon which Blocker supposedly based the discharge,
while it identified Milam as one' of the participants in the "no pay no work"
talk, established little else Bence's statement to Blocker plainly disclosed that
other employees had also been involved in the remarks As Bence told Blocker,
he had "heard them all say it." But only Milan was discharged. No interest,
was evinced in the others. The singularity of Milan's treatment can he ex-
plained only on the basis of his prominence in the organizational campaign. In
addition, the letters of September 17 to the employees clearly indicate that the
respondents considered the questions of Milan and the Union campaign to be
elements of the same common problem.
Upon the entire record, the undersigned therefore finds that Milani was in
fact discharged because of his attempt to organize the respondents' employees,
and that his participation in the "no pay no work" statements merely provided
the pretext for the discharge.27
The exact meaning of the various letters and questionnaires is illuminated
by the foregoing facts. It is therefore unnecessary to determine whether- the
July 22 letter, standing by itself, constituted an unfair labor, practice „ That
letter was part of a whole pattern of conduct; it was the opening gun in a co-
ordinated campaign against the Union. It served notice upon the employees
that Cowin would meet their designation of bargaining representatives with
counter measures on the plane where the employees were most vulnerable-
job security. The discharge of Milan made clear that this was no idle threat.
Thereafter, when the Union made a definite claim that it represented the em-
ployees, Cowin required the men to state their individual affiliations Against
the background of union antagonism already evidenced, these inquiries were
plainly calculated to, and unquestionably did, induce repudiation ot.the Union.
However, irrespective of the background, the letters and questionnaires of July
30 and September 17 were, by themselves, an unwarranted intrusion of the
respondents into an affair that was strictly the employees' business Inquiries
x Davis is still employed. Lowrey testified that after Milani's discharge, Blocker told
him that if Davis "didn't work regularly, to get shed of him." According to Lowrey, lie
told Blocker that he could not spare Davis. Price ceased to work for the respondents
on September 15.
z7 However, the discharge of Milani for the reason asseited h3 the respondents would be
equally a violation of the Act An employer's pay procedure is a team or condition of
employment and a proper subject for conceited activity. It is an unfair labor practice for
an employer to discriminate against an employee for proper participation in legitimate
concerted activity, or for pioperly and peacefully persuading his fellow workers to engage
therein o
SALMON AND COWIN, INC. 863
by an employer directed to particular employees as to whether they belong to a
labor organization or desire it to represent them, are a violation of the Act.
Congress has delegated to the Board, and not to the respondents, the duty to make
such investigations. Where the employer is in doubt as to whether a labor
organization represents his employees, he can refer the organization to the
Board for a determination of the question. That the respondents were fully
aware of that fact is evident from the letter of July 30.
Upon the entire record the undersigned finds that Milam was discharged on
July 24 and that he was thereafter, refused reinstatement because of his activ-
ities on behalf of the Union,; and that the respondent Salmon thereby discrim-
inated in regard to the hire and tenure of Milan's employment, discouraged
membership in the Union, and interfered with, restrained and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
The undersigned further finds that by Cowin's,questioning of Milam as to his
union affiliations , Fred Chenoweth's statements to Milani, the letters and ques-
tionnaires of July 22, 30 and September 17, the activities of Love, Blocker,
Chenoweth, and Lowrey in connection with the distribution of the letters and
questionnaires of July 30 and September 17, the statements of Blocker to Milani
on the day he discharged the latter, the statements of Lowrey to Baxter Hall,
and-those of Love to Milani, and by Love's inquiry among the employees as to
where they had secured the union cards, the respondents Salmon and Supply
have interfered with, restrained and coerced their employees in the exercise of
the rights guaranteed in Section 7 of the Act. ' i
IV THE EFFFCT OF TIIE UNFAIR LABOR PRALCrICES UPON COMMERCE
The activities of the respondents set forth in Section III above, occurring in
connection with the operations of the respondents described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, arid commerce
among the several States and tend to lead 4to labor disputes burdening and`
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in unfair labor practices, the
undersigned will recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act. .
The respondent Salmon's answer stated that 2 weeks after Milam's discharge,
the No. 5 job was "holed through ;" that Milam's employment would then have
terminated, and lie would not thereafter have been in the respondents' employ.
Evidence was introduced in` support of the assertion in the answer.
Except for some equipment which has not yet been hauled away, the work at
No. 5 was completed on November 12, 1943
The evidence of the respondent was to the effect that when-the tunnel at No 5
was "holed through" 'there was no more need for the mucking machine and
therefore no further need for Milam's services ; and, that there has been no
opening since that time at, which Milam could have been used The undersigned
does not, however, regard the cessation of machine operation as determinative
of the question whether Milan's services would have been utilized thereafter.
The respondent Salmon's answer averred that "the crew of lien, including Milani,
who were working on the-[No. 5] job were to do that particular job and when
the job was completed their services with respondent'Salmon terminated
However, an exhibit introduced by the respondents, and Cowin's testimony,
disclose that during the pay-roll period ending`July'21!7there were, exclusive of
864 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
Milam;'32 employees on the No 5 job. Of these, 20 were thereafter transferred
to other jobs; 4 quit while employed at No 5; one was inducted into the army
from No 5;-2 were hospitalized as of the time of hearing, but will be reemployed;
3 are listed as having "left," "from" or "after" No 5; and 2 are described as
"not working." -
There is no evidence that any of the 5 men described as having "left" or "not
working," were laid off for lack of work It is therefore apparent that there is
no support whatever in the evidence for the assertion in Salmon's answer that
the services of the No. 5 crew were terminated at the completion of that project.
Milani was not hired to operate the mucking machine According to Cowin,
he was hired as "a kind of yard roustabout." - He had had experience 'at 'drilling,
and wide experience at various other operations with the Moore Mining Com-
pany;" He was uniformly described' in the record as a "good" man. - In=view
of liis qualifications, the'general purposes for which lie was hired, and the fact
that virtually all the employees at-No. 5 wlio'did not quit voluntarily were-trans-
ferred to other jobs, the undersigned infers and finds that had Milani' not been
discriminatorily discharged he would have been transferred to other employ-
ment, upon completion of the No 5 project. Supporting that conclusion is Love's
statement to Milam in September, which has been related heretofore, to the
effect that if Milani would repudiate the Union he could go to work that night 4D
In any event, the burden of proving that Milani's employment would have ter-
minated in the regular course of events if he had not been discriminatorily
discharged, rested upon the respondent 30 Upon the facts disclosed here, the un-
dersigned cannot find that such burden has been sustained. -
'At the hearing Cowin testified that he learned sometime after Milam's dis-
charge that Milam had a hernia, and asserted that he would also have dis-
charged him, and that he would not rehire him, for that reason. Cowin was un-
able to state, however, when he ascertained that such a condition existed.
Whether the condition, if existent,.is of such a nature as to bar Milani from suit-
able employment by the respondents, cannot be determined from the record. The
undersigned therefore makes no finding with respect thereto.
Since Milani was discharged because of his union activities, the normal remedy
would be to recommend his immediate unconditional reinstatement to his former
or a substantially equivalent position without prejudice to his seniority or other
rights and privileges. However, since it is contended that Milam's physical con-
dition bars his further employment, the undersigned' will recommend that Salmon
offer him immediate reinstatement to his former, or a substantially equivalent po-
sition without prejudice to his seniority or other rights and privileges, subject,
however, to Milam's undergoing a medical examination by a licensed and 'im-
partial doctor to determine whether he has a hernia, and,,if so, whether it is of
such nature as to disqualify him for further employment by Salmon. Such
doctor shall be selected by agreement between the Union and Salmon, and his
fees and expenses shall be borne equally between them. If Salmon and the Union
are unable to agree upon a doctor, the Regional Director for the Tenth Region
28 Moore, Milam's previous employer, testified that Milani was a "utility man" ; and a
good nian and that "we used him for very near everything "
- 0 The undersigned also finds that, in any event, Milam's employment as a mucking ma-
chine operator at No 5 would' have continued for more than 2 weeks after July 24 When
Milani was discharged, J. H Bence, a brother of Foreman Bence, was hired to operate the
inucking machine Foreman Bence's testimony, which is credited, was that J H. Bence quit
on August 19 The record does not disclose whether the mucking machine was operated
thereafter Foreman Bence quit at the same time, but was subsequently reemployed.
C. J Hayes, the other mucking machine operator at No. 5 w as given Bence ' s job when the
latter quit.
30 Commonwealth Telephone Company, 13 N. L R. B. 316 at 332.
SALMON AND COWIN, INC. 865
shall appoint one .for such purpose. If the medical examination discloses that"
.Milain has a hernia which disqualifies him for further employment by Salmon,
the undersigned recommends that'Salmon not be required to reinstate him.
The undersigned further recommends that Salmon make Milam whole for any
loss of pay accruing from the discrimination by payment to him of a sum of
money, equal to that which lie normally would-have earned as wages from the
date of the discrimination against him to the date of the offer of reinstatement,,
less his 'net earnings during said period.31
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 Aline, Mill and Smelter Workers, affiliated with the
Congress of Industrial Organizations, is a labor organization within the mean-
ing of Section 2 (5) of"the Act.
2 By discrinnnating in regard to the hire and tenure of employment of J. P.
Milam, thereby discouraging membership in International, Union of Mine, Mill and
Smelter Workers, affiliated with the Congress of Industrial Organizations, the/
respondent Salmon has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing their employees in the exer-
cise of-the rights guaranteed in Section 7 of the Act, the,respondents Salmon
and Supply have engaged in and are 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.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that Salmon and Cowin, Inc, Mining Engineers & Con-
tractors, its officers, agents, successors, and assigns, shall:
I Cease and desist from : _
(a) Discouraging membership in International Union of Mine, Mill and Smelter
Workers. afhhated with the Congress of Industrial Organizations, or any other
labor organization of its employees, by discriminating in regard to the hire and
tenure of their 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, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual ardor protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will effectu-
ate the policies of the Act.
11 By "net earnings " is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent, which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking employment elsewhere See Matter of Crossett
Lumber 'Company and United Brotherhood of Carpenters and Joiners of America, Lumber
and Sawmill Workcrs.Union, Local 2590, 8 N L R. B. 440. Monies received for work per-
formed upon Federal , State , county, municipal , or other work -relief projects shall be
-considered as earnings. See Repnblic Steel Corporation v. N. L R. B. 311 U. S 7.
601248-45-vol. 57-56
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1, (a) Offer to J. P Milam immediate and full reinstatement. to his former of
substantially equivalent position, without prejudice to his seniority or other
rights and privileges in the manner provided in the Section entitled "Remedy",
above. -
(b) Make whole J. P. Milan: for any loss of pay he may have suffered as the
result of the discrimination against him, in the manner provided in the
Section entitled "Remedy", above
(c) Post immediately in conspicuous places at its premises at 930 Second
Avenue North, Birmingham, Alabama, and at each of, its various projects,
and maintain for a period of itt least sixty (60) consecutive days from the
date of posting, notices to its employees stating. (1) that it will not engage
in the conduct from which it is ordered to cease and desist in paragraphs 1
(a) and (b) of those recommendations; (2) that it will take-the affirmative
action set forth in paragraph 2 (a) and (b) of these recommendations; and
(3) that its employees are free to remain or become members of International
Union of Aline, Mill and Smelter Workers, affiliated with the Congress of
Industrial Organizations, and that it will not discriminate against any em-
ployee because of his membership in or activity on behalf of that organization;
(d) Notify. the Regional Director for the 'tenth Region in writing within
ten (10) days-from,tlie date of the receipt of thing Intermediate Report'ivliat'
steps it has taken to comply herewith
The undersigned further recommends, upon the basis of the above findings of
fact and conclusions of law, that Mine & Contractors Supply Company, Inc, its
officers, agents, successors, and assigns, shall:
1 Cease and desist fiom:
(a) In any manner interfering with. restraining or coarcing its employees
in the exercise of the right to self-organization, to form, join or assist labor
organizations, to bargain collectively through representatives of their -own
choosing, and to engage in concerted activities for the purpose of collective
bargaining 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
(a) Post immediately in conspicuous places at its premises at 930 Second
Avenue North, Biimingham, Alabama, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its employees stating
that it will not engage in the conduct from which it is ordered to cease and
desist in paragraph 1 of the above recommendations respecting respondent
Supply
(b) Notify the Regional Director for the Tenth Region in writing within ten
(10) days from the date of the receipt ,of this Intermediate Report what steps
the,respondent Supply has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondents notify said Regional
Director in writing that they will comply with the foregoing recommntendations,
the National Labor Relations Board issue an order requiring the respondents
to take the action aforesaid
As provided in Section 33 of Article II of the Rules and Regulations of the
\ational Labor Relations Board, Series 3-effective November 26, 1943-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 ill, of said Rules and Regulations, file -with' the `Board, Rochambeau
I uilding, Washington, D. C., an original and four copies of a statement in
SALMON AND COWIN, INC. 867
writing setting forth such exceprions to the Intermediate report or to any
other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of a
,brief in support thereof 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 other 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 •witliin ten.,(10) days from the date of the order trans-
ferring the case to the Board.
CHARLES W. SCHNEIDER,
Trial Examiner.
Dated January 8, 1944.
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