Clearwater Finishing Co.

National Labor Relations Board - Board Decisions

Oct 13, 1952

100 N.L.R.B. 1473 (N.L.R.B. 1952)

CLEARWATER FINISHING COMPANY 1473
appropriate for the, purposes of collective bargaining within the
meaning of Section 9, (b) of the Act : 5
(1) All truck drivers, excluding all other employees and supervisors
as defined in the Act.
(2) All production and maintenance employees, including mechan-
ics, carpenter, and crane operators, but excluding all truck drivers
'all office and clerical employees, and all supervisors 6 as defined in
the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
6 We will not direct an election in an over -all unit, as the Employer requests , because no
union now seeks to represent all the production and maintenance employees on a over-all
basis.
6 The Hod Carriers would exclude the mechanic at the Willow Grove yard . The record
shows that this employee has no power to change the conditions of employment of the other
employees , or effectively to recommend such changes . He assigns work to the employees
only during the brief absences of the yard manager; on these occasions his assignments
are routine in nature. We find that he is not a supervisor within the meaning of the Act,
and he is included in the unit.
CLEARWATER FINISI-IING COMPANY and LODGE No. 713, INTERNATIONAL
ASSOCIATION OF MACHINISTS, A. F. L. Case No. 10-CA-12i52.
October 13, 1959
Decision and Order
On February 27, 1952, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board' has reviewed the rulings made by 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 the entire record in the
case and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the following additions and modifications?
' Pursuant to the provisions of Section 3 (b) of the Act , as amended , the National Labor
Relations Board has delegated its powers in connection with this case to a three -member
panel [Chairman Herzog and Members Styles and Peterson].
2 We agree with the Trial Examiner that the discharges of Hutto and Livingston on
December 15 and 16, 1950 , are not barred from present consideration by the settlement
agreenent of January 14, 1951, in Case No . 10-CA-620. There is no evidence in the record
that these discharges were even considered , much less settled , in the negotiations leading
to the agreement . In fact, as of the date of -the settlement , the Respondent had not been
put upon notice that the Union regarded these discharges as unfair labor practices.
100 NLRB No. 236.
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that, in discharging Hutto and Living-
ston, the Respondent violated Section 8 (a) (3) and (1) of the Act.
We agree as to Hutto but not as to Livingston.
In December 1950, there was pending an unfair labor practice charge
against the Respondent in Case No. 10-CA-620, stemming from a
mass layoff of its employees. Anticipating that the Respondent would
defend these layoffs on the ground that certain maintenance work-
known as "AFE work"-had been discontinued, thereby necessitating
a reduction in force, Hutto, the union treasurer, undertook to obtain
information concerning the AFE work done during the preceding
2-year period. On December 15, 1950, Hutto asked Livingston, the
Employer's departmental clerk, to type up a list showing the number
of AFE jobs performed during that 2-year period. Livingston pre-
pared such a list and gave it to Hutto. Management representatives,
having learned of this incident, promptly retrieved the list from Hutto
and discharged Livingston on the same day, although they had not at
that time been apprised of Hutto's purpose in obtaining the list. The
next day, after eliciting from Hutto his reason for obtaining the list,
the Respondent's general manager discharged Hutto.
Although superficially the cases of Hutto and Livingston might
appear to be similar, we believe there are several important points of
distinction.
It was not shown that Livingston was, or was suspected to be, a
member of the Union. Moreover, at the time of Livingston's dis-
charge, the Respondent had not been apprised by Hutto of his pur-
pose in obtaining the list. Unlike Hutto, Livingston was not a plant
employee, but was a clerk, charged with the proper custody of the
Employer's records. It was clearly inconsistent with the performance
of his duties for Livingston to disclose such records, whether or not
of a confidential nature, to Hutto. Such an indiscretion on Livings-
ton's part might well be deemed by the Respondent to demonstrate his
lack of fitness for his job as custodian of the Respondent's records,
as the Respondent was entitled to have such a position occupied by an
employee in whose discretion it had implicit confidence. In view of
all these circumstances, particularly the lack of evidence that the
Respondent knew, at the time it discharged Livingston, of the purpose
of the list, and the fact that Livingston himself was unaware of its,
purpose, we find, unlike the Trial Examiner, that Livingston was not
discharged for engaging in concerted activities, and that his discharge
did not violate the Act.
Hutto, however, was an officer of the Union, and, as found by the
Trial Examiner, this fact was known to the Respondent before his
discharge. Moreover, the Respondent was apprised by Hutto, before
it discharged him on December 16, of his purpose in obtaining the list
CLEARWATER FINISHING COMPANY , 1475-
of AFE jobs. Unlike Livingston, Hutto's conduct in obtaining the
list had no bearing on his future usefulness in his job, which was that
of millwright. The Respondent contends that he was discharged
solely because he procured the disclosure of confidential information.
The Trial Examiner found, however, that this was not the true reason
for Hutto's discharge but that he was, in fact, discharged for engaging
in activity designed to aid the Union to obtain evidence to be used in
the then pending unfair labor practice case (Case No. 10-CA-620).
We agree.
Like the Trial Examiner, we are not persuaded that the Respond-
ent actually regarded the list of its AFE jobs as confidential informa-
tion, or had any business reasons for objecting to the disclosure of such
information. This is underscored by the fact that the same informa-
tion had been posted on plant bulletin boards at various intervals
during that period. There was no evidence, or contention, that this
information was in the nature of a "trade secret," or that the Re-
spondent could have been prejudiced in any way by the release of the
list except for its possible use as evidence in Case No. 10-CA-620. As
the only reason alleged by the Respondent for Hutto's discharge is
not, in our opinion, credible, and as there is no other apparent reason
for the discharge except the Respondent's opposition to his activity on
behalf of the Union in preparing and obtaining evidence in support of
the 1949 charge, we find, like the Trial Examiner, that Hutto's dis-
charge violated Section 8 (a) (3) and (1) of the Acts
Order
Upon the basis of the above findings of fact and the entire record
in the case, and pursuant to Section 10 (c) of the National Labor
Relations Act, as amended, the National Labor Relations Board here-
by orders that Respondent Clearwater Finishing Company, Clear-
water, South Carolina, its agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Lodge No. 713, International As-
sociation of Machinists, A. F. L., or in any other labor organization of
its employees, by discriminatorily discharging or refusing to rein-
state any of them, or by discriminating in any other manner in re-
gard to their hire, tenure of employment, or any term or condition
of employment.
3 The Trial Examiner found that the discharge of Hutto also violated Section 8 (a) (4)
of the Act and the Respondent excepts to this finding . As the policies of the Act will as
well be effectuated by a remedial order based upon a limited finding that the Respondent
in this case violated Section 8 (a) (3) of the Act, we find it unnecessary to determine
whether or not the discharge of Hutto also violated Section 8 (a) (4). Accordingly, we do
not adopt the Trial Examiner 's findings and recommendation respecting the 8 (a) (4)
allegation , but we shall , nevertheless , dismiss the complaint to that extent. Cf. John
Hancock Mutual Life Insurance Company, 92 NLRB 122, 124.
22729a-53-vol. 100-94
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Questioning employees as to their union activity or in any
other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist Lodge No. 713, International Association of
Machinists, A. F. L., or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage 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) (c) 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 Loyal G. Hutto immediate and full reinstatement to
his former or substantially equivalent position without prejudice to his
seniority and other rights and privileges, and make him whole in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) 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.
(c) Post at its plant in Clearwater, South Carolina, copies of the
notice attached hereto and marked "Appendix A."' Copies of such
notice, to be furnished by the Regional Director for the Tenth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, in conspicuous places, including all places where notices to
employees are customarily posted, and maintained by it for a period
of sixty (60) consecutive days. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that Respondent discriminated against
Livingston in violation of Section 8 (a) (3) and (1) of the Act and
against Livingston and Hutto in violation of Section 8 (a) (4)
of the Act.
4 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
CLEARWATER FINISHING COMPANY
Appendix A
NOTICE TO ALL EMPLOYEES
1477
. Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in LODGE No. 713, INTER-
NATIONAL ASSOCIATION OF MACHINISTS, A. F. L., or in any other
labor organization of our employees, by discharging any of our
employees or in any other manner discriminating against them
in regard to their hire and tenure of employment or any term
or condition of employment.
WE WILL NOT interrogate our employees concerning their mem-
bership in or activities on behalf of the above-named or any
other labor organization, or in any other manner interfere with,
restrain, or coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist
the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in other mutual aid or protection, and to refrain from any
or all of 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.
WE WILL offer to Loyal G. Hutto immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to any seniority or other rights and privileges, and
make him whole for any loss of pay suffered as a result of the
discrimination against him.
All of our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to the hire or tenure of employment or any
term or condition of employment against any employee because of
membership in or activity on behalf of any such labor organization.
CLEARWATER FINISHING COMPANY,
Employer.
Dated ----------------------------- By -----------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
A charge having been duly filed and served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board, and an answer having been filed by the above-named
Company, herein called the Respondent, a hearing involving allegations of unfair
labor practices within the meaning of Section 8 (a) (1), (3), and (4) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act,
by the Respondent, was held in Augusta, Georgia, on December 11, 1951, before
the undersigned Trial Examiner.
In substance the complaint alleges and the answer denies- - (1) That in
December 1950 the Respondent discriminatorily discharged employees Loyal
G. Hutto and Maurice P. Livingston because of their activities on behalf of
Lodge No. 713, International Association of Machinists, A. F. L., herein called
the Union, and because they gave testimony under the Act in Case No. 10-CA-620;
(2) that certain of the Respondent's officers and agents interrogated its employ-
ees concerning the Union; and (3) that by such acts the Respondent interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed
by the Act.
At the hearing all parties were represented, were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence per-
tinent to the issues, to argue orally upon the record, and to file briefs and
proposed findings and conclusions. Briefs have been received from the
Respondent and General Counsel.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a subsidiary of United Merchants and Manufacturers, a
New York corporation, is a corporation organized under the laws of South
Carolina. It has its principal office and place of business at Clearwater, South
Carolina, where it is engaged in the bleaching, dyeing, and printing of cotton
cloth.
During the year preceding the hearing the Respondent purchased raw ma-
terials consisting of raw cotton, supplies, and equipment valued at more than
$1,000,000, about 75 percent of which was bought outside the State of South
Carolina and shipped in interstate commerce to the Clearwater plant. During
the same period the Respondent processed cloth valued at more than $1,500,000,
about 66 percent of which was sold and shipped in interstate commerce to
customers outside the State of South Carolina.
The Respondent concedes that it is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Lodge No. 713, International Association of Machinists, A. F. L., is a labor
organization admitting to membership employees of the Respondent.
CLEARWATER FINISHING COMPANY
III. THE UNFAIR LABOR PRACTICES
A. Background and issues
1479
In order to determine the actual motive for the Respondent's discharge of
employees Livingston and Hutto in December 1950, which is the major issue
in these proceedings, it is necessary to appraise certain background facts. The
Respondent offered small challenge to the accuracy of evidence introduced by
General Counsel, bearing upon such background, and objected only to its ma-
teriality.
Early in January 1949, the Union began organizing mechanics and power-
house employees of the Respondent. Management officials quickly became aware
of this movement and took prompt countermeasures. At the request of at least
3 such officials, including the personnel manager, employee Prentiss Smith at-
tended a union meeting and reported to management occurrences and the names
of those present. It is undisputed that on January 12 or 13, Assistant Master
Mechanic Anderson was asked by Assistant Personnel Director Anderson if he
could get along with a skeleton maintenance crew, since the Company had been
advised by counsel to lay off 15 or 20 men to discourage the others. On Janu-
ary 14 about 18 employees were summarily laid off. Management continued its
campaign to discourage union activity. Early in February J. W. Houth, identi-
fied as vice president of United Merchants and Manufacturers, a corporation
of which the Respondent is a subsidiary, warned an employee on the union
committee that he was the "boss," that "this place will never be organized and
you fellows are just kidding yourselves to think about it," and that he would
guarantee "job security, pay security, and as much overtime as possible" to all
who would withdraw from the Union. Houth further told the employee that
"our Rayon Mill in Connecticut tried to organize and we just shut the plant
down and sold it."
On February 8, 1949, the Union filed its original charge in Case No. 10-CA-620,
among other things alleging discriminatory discharge of employees on
January 14.
A few days before his discharge in December 1950, Hutto and other employees
met with Attorney Morgan Stanford, of the Board's Regional Office. Although
no complaint had as yet been issued in Case No. 10-CA-620, there had been indi-
cations that the Respondent would defend its discharges of January 1949 by
claiming that certain maintenance work, commonly referred to as AFE work,
had then been abandoned: In fact, as early as January 22, 1949, employee Claude
Metts had sworn before a Board agent' that when laid off on January 14 he had
been told by assembled management officials that the group layoff was due to lack
of work and because AFE work was to be discontinued. Hutto was not among
those laid off at that time. He continued to work throughout 1949 and 1950,
had continued to work on AFE jobs, and was aware that AFE work had not
in fact been abolished. He told Attorney Stanford late in 1950 that he believed
he could obtain information proving the latter point, and offered to obtain from
a clerk the AFE numbers that had been worked upon during the period since
the 1949 discharges. Stanford told him to use his own judgment in approaching
the clerk, but warned him not to take any company property.
During the lunch hour on December 15, 1950, Hutto asked the departmental
clerk, Livingston, if he would type up for him a list of AFE numbers covering
I Counsel for the Respondent conceded that were Metts called as a witness he would have
testified in accord with his affidavit.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such jobs as had been worked upon in 1949 and 1950. Livingston did so, and
by management was seen giving the list to Hutto later that afternoon. Both
Livingston and Hutto were promptly discharged. No charges were filed con-
cerning these two employees until April 1951.
In the meantime the Respondent, in January 1951, entered into a settlement
agreement as to Case No. 10-CA-620, with the Union and the Regional Director,
terms of which included offer of reinstatement to employees involved in that
case making whole such employees for loss of pay "suffered as a result of dis-
crimination," and posting of notices in the plant. On April 10, 1951, the Regional
Director informed the Respondent, by letter, that he was "satisfied that full
compliance has been carried out" in Case No. 10-CA-620, and "therefore the case
has been closed."
On April 24, 1951, a charge was filed in the instant proceedings, Case No.
10-CA-1252, involving the discharge of Livingston and Hutto.
At the hearing counsel for the Respondent moved for dismissal of the com-
plaint upon the grounds, in substance, that it covers matters which occurred
before execution of the settlement agreement and closing of the case in Case No.
10-CA-620. Ruling was reserved. The motion is hereby denied.
The present complaint raises no issue, and the Trial Examiner specifically
makes no legal determination, as to any unfair labor practices disposed of by
the settlement agreement in Case No. 10-CA-620. Charges involving the dis-
charges of Hutto and Livingston were not filed until after closing of Case No.
10-CA-620. Although counsel for the Respondent established, by examination
of Hutto, that Attorney Stanford was aware of the employee's discharge soon
after its occurrence, there is no evidence that his discharge or that of Living-
ston was even considered by the parties during negotiations leading to settle-
ment of Case No. 10-CA-620. Furthermore, it is to be noted that the notice,
posted by the Respondent in January 1951, stating that it "will not discriminate
in regard to hire and tenure of employment," cannot reasonably be urged as a
bar to consideration by the Board of alleged discrimination occurring shortly
before posting of the notice.
B. The discharges of Livingston and Hutto
Although there is some dispute in the evidence as to what was said by manage-
ment officials upon discharging these two employees, the testimony is in general
agreement upon the essential facts. Hutto asked Livingston to prepare a list
of AFE numbers worked upon the preceding 2 years, and Livingston gave it,
to him. Engineer L. M. Spruill, in the same machine shop office where Livingston
was employed, saw Livingston hand Hutto a piece of paper, and promptly
reported the fact to General Manager Raymond Warner. Warner had another
management official get the paper from Hutto, as the latter was about to leave
the plant at the close of his shift, and then ordered the office manager to dis-
charge Livingston. The next day Hutto was called to Warner's office and given
the opportunity to resign or to be discharged. Hutto chose not to resign, and
was discharged.
In short, it is the Respondent's contention that Livingston was fired for
revealing and Hutto for obtaining confidential information. It is General
Counsel's position, on the contrary, that the information solicited, prepared,
and transmitted was not confidential, and that the real reason for the Respond-
ent's summary action was resentment toward the two employees for aiding
the Union and the Board agent in preparing for the pending hearing in Case
No. 10-CA-620.
CLEARWATER FINISHING COMPANY 148 1
It appears that the first point for determination is whether or not General
Counsel made out a prima facie case. While there is no showing that Liv-
ingston was a member of the Union, or that management suspected him of
such, Hutto was the union treasurer, announcement of his election to this office
had previously been announced in Augusta newspapers, and it is undisputed
that the foreman had queried him about having been elected It is reasonably
inferred, and found, that management was aware of Hutto's union membership
and activity, at the time of the discharge. It is plain from General Manager
Warner's testimony that before ordering the dismissal of Livingston and Hutto
he was aware not only of the information provided but also the purpose for
which- it was obtained. According to his testimony he was promptly told by
Spruill what Livingston had given Hutto, an was told by Hutto that he was
"interested in the case," (10-CA-620) and that "anything worth having was-
worth asking for." It is reasonably inferred from his own testimony, and is
found despite his incredible denial, that Warner well knew that this information
was pertinent to the issues raised in that case. Supporting this inference is his
testimony that he was, on December 15, 1950, familiar "with the old case,"
and the fact that management had told employees involved, at the time of their
layoff, that there would be no more "AFE" work. Warner, furthermore,
admitted that he had "refused to talk" with Attorney Stanford, shortly before
this occurrence, and had referred him to his counsel. Thus the evidence sup-
ports General Counsel's major contention, and the finding follows unless other
evidence establishes that the Respondent actually dismissed the employees
because of the nature of the information and not because it was obtained for
assistance of the Union and the Board.
The list prepared by Livingston and taken from Hutto is in evidence. Except
for an immaterial note to Hutto it contains only about 44 sets of digits arranged
in 4 columns of unequal length, a few digits acompanied by letters, which,
without explanation freely offered by witnesses at the hearing, are completely
unrevealing and meaningless to the Trail Examiner. Such testimony, and not
the list itself, indicates that each set of digits represents a job number given
to an assigned or authorized piece of work coming under the category of
"authorized financial expenditure," and is referred to as an AFE number.
Over a long period it has been, and is, approved practice at this plant to post
on various bulletin boards all AFE numbers currently being worked upon, in
order that employees performing the jobs can enter such numbers upon their
work reports. The evidence is undisputed and the Trial Examiner finds that
all of the AFE numbers listed on the sheet prepared by Livingston and given
to Hutto had previously been, or at the time of the discharges were then,
posted upon the bulletin boards in the plant. Upon most of the jobs Hutto
himself bad worked during 1949 and 1950. Neither Livingston nor any other
employee was ever told by management that such information was "confidential."
Thus Hutto neither asked for, nor did Livingston provide, any information
which had not already been posted and publicized upon orders of management
itself. Down through the months of 1949 and 1950 Hutto had, in effect, already
been given , with management approval and in detail , all that he sought in sum in
December 1950. Likewise Livingston merely gave Hutto, on a single piece of
paper , a. compilation of information which in piecemeal fashion it had been his
duty to supply all employees during the 2-year period . In short, the evidence
does not support the Respondent's contention that the information was in fact
"confidential." Since it was not in fact confidential , there is scant foundation
for a finding that the Respondent in good faith believed , and in good faith acted
upon the belief , that the information was confidential.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In summary, the Trial Examiner concludes and finds, on the preponderance of
credible evidence, that the real reason for the discharge of Livingston and Hutto
was that the Respondent believed them to be actively engaged on behalf of the
Union in preparing and obtaining evidence to be used in Case No. 10-CA-620,
thereby (1) discouraging membership in the Union and violating Section 8 (a)
(3) of the Act; (2) violating Section 8 (a) (4) of the Act; and (3) interfering
with, restraining, and coercing employees in the exercise of rights guaranteed
by Section 7 of the Act.
C. Other interference
It is undisputed that about a month after the notice was posted by the Re-
spondent in Case No. 10-CA-620, Personnel Manager Pope Cameron asked em-
ployee Hubert Anderson how a scheduled union meeting "came out." Anderson
said he did not attend. Cameron asked why. Anderson said that he had left
"that boat," and was in the "middle of the stream," and was no longer partici-
pating in the Union. Cameron then asked the employee if he could "quote" him
on that statement.
The Trial Examiner concludes and finds that under the circumstances then
existing-a notice informing employees that the Respondent would not interfere
with union membership and activity-this conduct of management's top official
in personnel matters constituted interference, restraint, and coercion.
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 its operations 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
Trial Examiner will recommend that it cease and desist therefrom and take cer-
tain affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent has discriminated in regard to the hire
and tenure of employment of employees Livingston and Hutto. It will therefore
be recommended that the Respondent offer to each of them immediate and full
reinstatement to his former or substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and that he be made whole
for any loss of pay he may have suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to that which he normally
would have earned as wages from the date of the discrimination to the date of
the offer of reinstatement, less his net earnings 3 during that period. The back
pay shall be computed in the manner established by the Board, and the Re-
spondent shall make available to the Board, payroll and other records to facilitate
the checking of the amount due .8
The character and scope of the unfair labor practices engaged in by the Re-
spondent indicate an intent to defeat self-organization of its employees. • It will
therefore be recommended that the Respondent cease and desist from in any
manner interfering with, restraining, and coercing its employees in the exercise
of Tights guaranteed by the Act.
' Crossett Lumber Company, 8 NLRB 440
F. W. Woolworth Company, 90 NLRB 289.
C. & H. FOODS, INC. 1483
Upon the basis of the above findings of fact and upon the entire record in the
.ease, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. Lodge No. 713, International Association of Machinists , A. F. L., is a labor
organization within the meaning of Section ( 2) (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Loyal
G. Hutto and Maurice P . Livingston , thereby discouraging membership in the
Union, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a) (3) of the Act.
3. By discharging Loyal G. Hutto and Maurice P. Livingston because they gave
testimony under the Act the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (4) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of 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.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
C. & H. FOODS, INC. ; DIETRICHS MARKET AND FOOD LINES , INC. ; ANG
KAISER'S MARKET, PETITIONERS and RETAIL CLERKS INTERNATIONAL
AssocIATION, LOCAL 1612, AFL. Cases Nos. 19-RM--83,19-RM-84,
and 19-RM-85.' October 13, 1952
Decision and Direction of Elections
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before Albert L. Gese,
hearing officer . The hearing officer 's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock , and Styles].
Upon the entire record in this case, the Board finds :
1. The three Petitioners, C.'& H. Foods, Inc., Dietrich Market and
Food Lines, Inc., and Kaiser's Market, own and operate five retail
grocery stores at Richland and North Richland, Washington. Both
towns are located in a United States reservation devoted to the devel-
opment of atomic energy. The annual purchases of C. & H. Foods,
Inc., are approximately $1,400,000; of Dietrich 's Market and Food
Lines, Inc., approximately $750,000; and of Kaiser 's Market approxi-
mately $250,000. An estimated 80 percent of these approximate an-
nual purchases, although not shipped directly, originates from points
outside the State. The total annual sales are $1,750,000, $870,000, and
100 NLRB No. 171.