Waples-Platter Co.

National Labor Relations Board - Board Decisions

May 27, 1943

49 N.L.R.B. 1156 (N.L.R.B. 1943)

In the Matter of WAPLES-PLATTER COMPANY and WAREHOUSE AND
DISTRIBUTION WORKERS UNION, LOCAL # 220, AFFILIATED WITH
THE C. I. O.
In the Matter Of WAPLES-PLATTER COMPANY and DISTRICT 50, UNITED
MINE WORKERS OF AMERICA
In the Matter Of WAPLES-PLATTER COMPANY and WAREHOUSE AND
DISTRIBUTION WORKERS UNION, LOCAL #220, 'AFFILIATED WITH
THE C. I. O.
1
Cases Nos. C-2509, C-510, and R-4358, respectively.Decided
May 27, 1943
DECISION
AND
ORDER
Pursuant to a Decision and Direction of Election of the Board,' an
election was held on November,2, 1942, among the employees of the
respondent 2 at its Ft. Worth, Texas, warehouse, to determine whether
or not Warehouse and Distribution Workers Union, Local #220, affili-
ated with the CIO, herein called Local 220, was the majority represen-
tative of the employees for the purposes of collective bargaining.
Having lost the election the Union, on or about November 12, 1942,
filed objections with the Regional Director alleging that the respond-
ent had engaged in certain unfair labor practices which had affected
the outcome of the election. The Regional Director investigated the
objections, reported to the Board that they raised substantial and
material issues, and recommended that a hearing be held. On Septem-
ber 24, 1942, District 50, United Mine Workers of America, filed
charges with the Board alleging that the respondent had engaged in
unfair labor practices. On September 28, 1942, Local 220 filed charges
with the Board alleging that the respondent had engaged in unfair
labor practices. On November 27, 1942, the Board issued an -Order
consolidating the above proceedings and directing that a hearing on
the objections and on the charges of unfair labor practices be held.
1 45 N L R. B., No. 114.
2 Incorrectly designated in the caption and some of the formal papers in Case No. C-2510
as Waples-Platter Company, Inc.
49 N. L. R. B., No. 169. _
1156
WAPLES-.PLATTER COMPANY 1157
On January 16, 1943, the Trial Examiner issued his Intermediate Re-
,port finding that the respondent had engaged in and was engaging
in certain unfair labor practices , recommending that it cease and de-
sist therefrom, and take certain affirmative action as set out in the copy
of the Intermediate Report- attached hereto. On February 2, 1943,
the respondent filed exceptions to the Intermediate Report and a brief
in support of the exceptions. The Board has considered the rulings
of the Trial Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed . The Board
has considered the Intermediate Report, the exceptions and the brief,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner . We make the
following additional findings :
We have considered the advisability of ordering the respondent
to reinstate 'Hilburn and Gilbert, the two employees discriminated
against , with back pay. In our view, there are substantial and real
differences between unfair labor practice strikers and employees who
have been constructively discharged, which warrant denying back
i pay to the former but awarding, it to the latter. We are convinced
and find, in accordance with the consistent prior practice of the Board,
that the purposes and policies of the Act will be best effectuated,by
ordering the respondent-to reinstate Hilburn and Gilbert with back
pay.
The Trial Examiner found that the respondent, by the posting of
a notice on October 30, 1942, interfered with, restrained, and coerced
its employees. In view of the respondent's manifest hostility to the
Union, as evidenced by the interrogation of employees concerning
their union activities, by threats directed against union members, by-
surveillance of the union meeting, and by the discriminatory dis-
charge of two leading union members, we find, as did the Trial Exam-
iner , that the notice of October 30, 1942, was intended to and did
interfere with, restrain, and coerce the employees and thereby pre-
vented the employees from freely expressing their desires concerning
representation for collective bargaining.
Since the record establishes that the respondent engaged in unfair
labor practices prior to the election, we find that the election was
not an expression of the free will of an uncoerced majority and
should therefore be set aside, and we shall so order. However, in
view of the length of time which has elapsed since the election, we
shall dismiss the petition for investigation and certification without
prejudice to the right of the Union to file a new petition if it so
desires.
1158 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby, orders that he respondent, Waples-Platter Company,
Ft. Worth, Texas, it officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in District'S0, United Mine Workers
of America, and Warehouse and Distribution Workers Union, Local
#220, or any other labor organization of its employees, by discharg-
ing or refusing to reinstate any of its employees, or in any other man-
ner discriminating in regard to their hire and tenure of employment,
or any term or condition of employment;
(b) Maintaining surveillance of, or employing any other means
of espionage, for the purpose of ascertaining or investigating the
activities of District 50, United Mine Workers of America, and Ware-
house and Distribution Workers Union, Local #220, or the activities
of its employees in connection with such organizations, or any other
labor organizations;
(c) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the rights to self-organization; to
form, join, or assist labor organizations, 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,Roy Mack Hilburn and Charles M. Gilbert immedi-
ate and full reinstatement to their former or substantially equivalent
positions at Ft. Worth, Texas, without prejudice to their seniority or
other rights and privileges;
(b) Make whole Roy Mack Hilburn and Charles M. Gilbert for any
loss of pay they may have suffered by reason of the respondent's dis-
crimination against them by payment to each of them 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 respondent's
offer of reinstatement, -less his net earnings' during said period;
8 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter of
Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N L- R B. 440 Monies received for
work performed upon Federal , State, county, municipal , or other work -relief projects shall
be considered as earnings See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
I
WAPLES-PLATTER COMPANY 1159
(c) Post immediately in conspicuous places throughout its box fac-
tory and warehouse at Ft. Worth, Texas, and maintain for a period
of at least sixty (60) consecutive days from the date of posting, notices
to its, employees stating : (1) that the respondent will not engage, in
the conduct from which it is ordered to cease and desist in paragraphs
1 (a) to (c) inclusive of this Order; (2) that the respondent will
take the affirmative action set forth in paragraphs (2) (a) and (b) of
this Order; and (3) that the respondent's employees are free to be-
come or remain members of District 50, United Mine Workers of
America, and Warehouse and Distribution Workers Union, Local
#220, and that the respondent will not discriminate against any em-
ployee because of membership or activities in these organizations;
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Order what steps
the respondent has taken to comply therewith.
AND IT Is FURTHER ORDERED that the election held on November 2,
1942, among the employees of the Waples-Platter Company, at its
Ft. Worth, Texas, warehouse, be, and it hereby is, set aside, and that
the petition for investigation and certification of representatives of
employees of Waples-Platter Company, filed by Warehouse and Dis-
tribution Workers Union, Local - #220, affiliated with the CIO, be,
and it hereby, is, dismissed.
MR. GERARD D. REILLY, dissenting in part :
I feel constrained to dissent from that portion of the majority
decision which awards back pay to Hilburn and Gilbert.
This Board has consistently refused to grant back pay to em-
ployees who strike in protest against unfair labor practices directed
against them instead of invoking their appropriate remedy under the
Act. No matter how flagrant an employer's unfair practices might
be, the Board holds that the strikers have voluntarily left their work
and are therefore not entitled to compensation ,for the wages which
they might otherwise have earned.4 This policy rests upon the as-
sumption that the purposes of the Act are best effectuated if em-
ployees are encouraged to resort to the administrative process rather
than to industrial strife in seeking redress of unfair labor practices.
To award back pay to employees who individually leave their em-
ployment in protest against unfair, labor practices,is manifestly in-
consistent with this policy. Both Hilburn and Gilbert left the re-
spondent's employ rather than accept, the new stations to which the
A Matter of American Manufacturing Co. and Textile Workers' Organizing Committee,
C. 1 0, 5 N. L. R B 443; Matter of Ford Motor Co [Kansas City, Missouri ] and Inter-
national Union, United Automobile Workers of America, 31 N L. R. B 994; Cf Matter of
Western Felt Works and Textile Workers Organizing Committee , Western Felt Local, 10
N. L. R B. 407.
LIFO ' DE'CTSIONS OF NATIONAL LABOR RELATION'S BO'A'.RD
respondent assigned them. Granting that the purpose of the assign-
ment was discriminatory and hence a breach of Section 8 (3), it
cannot bey said that the positions and conditions of employment which
were offered ,these men were intolerable. Under these circumstances
it seems clear that the respondent did not compel them to resign,
but, that the choice of leaving their employment was voluntarily
made. To grant back pay to these employees on the ground that,
they were "constructively discharged," while denying it to unfair
labor practice strikers who quit their employment under similar
circumstances, is to draw a distinction which no relevant difference
in the cases can support. Moreover, had these very employees re-
fused to accept employment similar in character to that which the
respondent offered, the Board would presumably have found that
they had thereby wilfully incurred losses for which the respondent
was under no obligation to compensate them.5 I am therefore of the
opinion that Hilburn and Gilbert are entitled to no more than rein-
statement to their original positions.
INTERMEDIATE REPORT
Mr. Bliss Daffan, for the Board.
Mr. Sidney L. Samuels and Mr. Jesse M. Brown, for the respondent.
Mr. J 7'. Barnett, for District 50, United Mine Workers of America.
Mr Jack Love and Miss Ruth Butcher, for Warehouse & Distribution Workers
Union, Local 220 '
STATEMENT OF THE CASE
Upon charges duly filed on September 24, 1942, by District 50, United Mine
Workers of America, herein called District 50, and on September 28, 1942, by
Warehouse & Distribution Workers Union, Local 220, herein called Local 220,
the National"Labor Relations Board, herein called the Board,,issued an order,
dated November 14, 1942, directing consolidation of the cases, and, by its Regional
Director for the Sixteenth Region, issued a complaint, dated November 14, 1942,
against Waples-Platter Company, Inc., herein called the respondent. The com-
plaint alleged that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint and notice of hearing were duly
served upon the respondent, District 50 and Local 220.
With' respect to the unfair labor practices the complaint alleged in substance
that the respondent: (1) on or about September 23, 1942, discharged Roy Mack
Hilburn ; on or about September 21, 1942, transferred Charles M. Gilbert to its
place of business in Memphis, Texas, from its place of business in Fort Worth,
Texas ; on or about September 28, 1942, discharged the said Charles M. Gilbert ;
and thereafter refused to reinstate said employees, :because they joined or assisted
the Unions, or one of them, and engaged in other concerted activities for the
purposes of collective bargaining or other mutual aid or protection; and (2), by
these acts and, from on or about September 24, 1 1942, to November 14, 1942,
5 See Phelps Dodge Corp . v. N. L. R. B., 313 U. S. 177.
C
WAPLES-PLATTER COMPANY 1161
through its officers, agents, and employees, namely, J. R. Bean, Jack Cosby, H. F.
Garner, T C. Shannon and J. W. Shugart, by vilifying, disparaging, and express-
ing disapproval of the Unions, and each of them ; by interrogating its employees
concerning their union affiliations ; by urging, persuading, threatening, and warn-
ing its employees to refrain from assisting, becoming members of, or remaining
members of the Unions, and .each of them ; by keeping under surveillance the
meeting places, meetings and activities of the Unions, or one of them ; and by
calling the wife of one of its employees on or about September 19, 1942, and
urging her to use her influence in obtaining withdrawal of said employee from
his membership in and activity in behalf of the Unions, or one of them ; and
threatening to discharge said employee if he continued with his union activities ;
and by addressing and publishing a notice on or about October 30, 1942, to the
attention of its employees and bearing the signature of Galen H. McKinney.
Vice-President and General Manager of respondent, interfered with, restrained,
and coerced and is interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
On or about November 25, 1942, the respondent filed two answers, one for Case
No. XVI-C-889 and the other for Case No XVI-C-891. Both answers admitted
certain allegations of the complaint as to the nature of the respondent's business,
but denied that the respondent had committed any unfair labor practices
Pursuant to notice, a hearing was held at Fort Worth, Texas, from November
26 to December 1, 1942, inclusive, before John H. Eadie, the undersigned Trial
Examiner duly designated by the Chief Trial Examiner. The Board, the re-
spondent, and the Unions were represented by counsel. All of the parties partici-
pated in the hearing Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
all parties.
On November 27, 1942, the Board issued an order directing a hearing on
objections filed by Local 220 to the Election Report of the Regional Director for
the Sixteenth Region in Case No R-4358 and consolidating said Case No R-4358
with Case No. XVI-C-889 and Case No XVI-C-891. At the hearing, evidence
on said objections in Case No 12-4358 was adduced by the Board, the respondent,
and Local 220
At the close of the case the Board's counsel moved to amend the complaint to
conform to the proof and the respondent's counsel moved to amend,the respond-
ent's answers to conform to the proof. No objection was made to either motion
Both motions were granted.
At the close of the hearing, the attorneys for the Board and the respondent
argued orally on the record before the undersigned None of the parties filed
briefs although afforded the opportunity to do so.
Upon the entire record in the.case and from his observation of the witnesses,
the undersigned makes the following :
1 FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
W,aples-Platter Company, Inc. is a Texas corporation having its principal
office and place of business at Fort Worth, Texas. It is engaged in the purchase,
sale, and distribution of food products, and maintains offices and warehouses at
Fort Worth, Dallas, Greenville, Denison. Vernon, Memphis, Amarillo, Lubbock,
and Abilene, Texas, Clovis, New Mexico, and Ada, Oklahoma. It is also engaged
in the manufacture and sale of wooden boxes and has a factory at Fort Worth,
1162 DECISSIOINIS OF NATIONIAL LABOR RELATIONS BOARD
Texas, in this connection. During the fiscal' year ending May 31, 1942, in its
grocery business, the respondent purchased products in the approximate sum of
$6,375,000 Of this amount approximately 80 percent came from outside the
State of Texas and into the State of Texas During the same period of time the
respondent's sales approximated $7,500,000 During the same fiscal period,
respondent purchased material for use in its box factory at Fort Worth, Texas,
in the approximate amount of $180,000. Approximately 30 percent of this mate-
rial was purchased outside of the State of Texas and delivered to the Fort Worth
Box Factory within the State of Texas. During the same period of time, the
sales of respondent's box factory approximated $400,000. Of this amount
approximately 35 percent was made to purchasers outside of the State of Texas
and delivered to such purchasers outside the State of Texas.
With respect to the gross sales of $7,500,000 of respondent's warehouse business;
approximately 3 percent of such gross sales were made from the Fort Worth
warehouse to points outside the State of Texas. The box factory and warehouse
of respondent, located at Fort Worth, are the only establishments of the
respondent involved in this matter. At the hearing, the respondent stipulated
and agreed that it is engaged in commerce within the meaning of the Act
II THE LABOR ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America is a labor organization which
admits to membership employees of the respondent, and insofar as this case is
concerned was engaged in organizational activities at the box factory of the
,respondent. Warehouse and Distribution Workers Union, Local 220, affiliated
with the C I 0, is a labor organization which admits to membership employees
of the respondent, and was engaged in organizational activities at the warehouse
of the respondent.
III TIIE UNFAIR LABOR PRACTICES
A. The background
On or about July 15, 1942, Ruth Butcher, a labor representative of Local 220,
first began organization of the respondent's warehouse employees. Charles M.
Gilbert was among the first employees contacted by Butcher. The first union
meeting was held in the last week of July and about 15 employees were present,
including Gilbert. Thereafter union meetings were held each week and during
-a meeting held about the first week in August, officers were elected. Gilbert
was elected temporary chairman. Pictures of officers elected were put in the
C. I. 0 News which was published-one week to 10 days after the election of
officers, and Butcher distributed the C I O. News at the warehouse and vicinity
among the employees at about the same time. On August 17 at 6:45 a. m.,
'Butcher went to the warehouse and gave Local 220 buttons to union members
who wore them into the plant.
J. T. Barnett, a field representative of District 50, began organization of the
employees at the respondent's box factory on or about September 10, 1942:
The employees first contacted by Barnett were unable to get union members.
They referred Barnett to Roy Mack Hilburn, the latter having requested that
Barnett be sent to his house to talk to him. Barnett went to Hilburn's house on
the night of September 17 and Hilburn signed a union authorization card that
night. The next clay, Hilburn got about 15 employees to sign authorization cards,
and these employees met at Hilburn's house that night. At this meeting, Hil-
burn was elected secretary and treasurer of the organization. The,next union
meeting was held on September 21 at Hilburn's house, and about 40 employees
I "I
WAPLES-PLATTER COMPANY 1163
were present . Hilburn distributed union authorization cards at the box factory
before work , and employees came to Hilburn during working hours or while
he was walking through the plant and asked him for authorization cards. On
or before September 23, Hilburn had obtained signatures on authorization cards
from about 80 employees ., At that time approximately 92 persons were employed
in the box factory.
The evidence does not disclose any union organizational activity at the ware-
house or the box factory prior to July 15, 1942, and September 10, 1942,
respectively.
B. Interference , restraint , and coercion
1. The conversation between Bean and Fred Chester Napier
Napier joined District 50 on or about 'September 28. On or about September 30
(1942) he had a conversation with T. R. Bean, plant superintendent of the box
factory, during which Bean said, "Why did you go over to the union meeting and
say that I said I would fire these negro women if they joined the union." Napier
denied making such a statement at the meeting. About 3 days later Napier had
another conversation with Bean in which Bean said "somebody is going to get
their hook hung for calling me and Tommy (Winston) bastards." Napier said he
had not heard anything like that and then Bean said "didn't you know we had
that place wired." In further conversations Bean asked Napier "in a kind of
sarcastic manner" how much it cost to join the Union. Napier told him it cost
$1. Bean then asked what the union promised and Napier replied, a "square deal."
Bean ended the conversation by saying, "Yes, I guess they will get it all right,
in kind of a hard way." A few days later, Bean again talked to Napier and said
"some of the brothers,in the union said they were going to beat the hell out of you
if you don't quit stooging." Napier said he did not believe any employees said
that. During this conversation Bean also said that he had heard the "union was
getting so rotten that all the niggers was selling out," to which Napier replied
that after what had been said between them he did not care to discuss the union
any further with him without proper representation. Bean then said, "As long
as you are working for me, I can say anything to you I want to." 1
The undersigned finds that Bean's remarks to Napier constitute interference,
restraint, and coercion.
2. The conversation between Bean and W. E. Grimes
Grimes at the time of the hearing was still employed at the respondent's box
factory. On or about September 24 in the presence of Donald Dyer, night watch-
man, and another unidentified employee Bean said to Grimes, "How is your union
coming on" to which Grimes replied, "All right, I guess." Bean then said, "Have
you all got 51 percent yet?" and Grimes replied, "I think so." Later on the same
day Bean came to Grimes and asked him why he did not get in a good union like
the one at the warehouse, "like the C. I. O. or,the A. F. L." Grimes answered that
the fees were too high. Bean then said, "You are in the M. W. of A., and that
belongs to John L. Lewis and he never did win one." 2 The undersigned finds that
Bean's remarks to Grimes constitute interference, restraint and coercion. -
I Napier testified to the above conversation and the undersigned credits this testimony.
Bean testified that he did not have the above conversation with Napier
' 2 Grimes testified to the above conversation, which the undersigned credits. Bean ad-
mitted that he had a conversation with Grimes about the union shortly after employees
started to wear District 50 buttons but denied saying anything about the United Mine
Workers or John L. Lewis.
1164 DECISIONS OF NATIONAL LABOR REiLATIONSS BOARD
3 Conversations between Widde and Bean, and Widde and Cosby
At the time of the hearing Widde was still employed at the respondent's box
factory. When hired by Bean , Bean told Widde that "someone" would ask him
to join the union, but that it was not necessary and he did not have to join the
union to work there. On or about October 14 Widde joined District 50 and wore
his union button in the plant. At sometime thereafter Jack Cosby , the yard
foreman at the box factory , said to Widde , "I notice you joined the gold diggers."
The statement attributed to Cosby is uncontradicted 8 The undersigned finds
that Bean 's remarks and Cosby 's remarks to Widde constitute interference, re-
straint, and coercion.
4. The conversation among Herbert F. Garner, Hicks, and Cosby
Garner was employed in the box factory and was a member of District 50. He
wore a District 50 button at the plant . On or about September 24, in the presence
of employees Peterson and Garner , Cosby said to Hicks, "Are you president of
this United Mine Workers ?" Hicks denied knowing anything about it, and said
that Garner was president . In a "joking way to turn it off ," Garner said,
"Don't get that started . . . I resign." Cosby then said , "Well , I would just
love to see the president of the United Mine Workers . He might be all right but
if he is as crooked or dirty as John L. Lewis , I would love to see what he looks
like." This conversation was testified to by Garner and is credited by the under-
signed. Cosby was not called as a witness . The undersigned finds that Cosby's
remarks to Hicks and Garner constitute interference , restraint and coercion.
5. The conversation between George Mitchell , Lynch, and Taylor Rogers
Lynch was a truck driver for the respondent with headquarters at Fort Worth
until he left respondent 's employ on September'10 , 1942: Lynch was a member
of Local 220 and had joined about August 1. Rogers , who was garage foreman,
had a conversation with Lynch on or about September 1. Rogers wanted to know
how the union was getting on and after Lynch told him that he thought a majority
of the employees had signed up, Rogers replied, "You are a good driver and we
hate to lose you, but you know there will be some way they will get you out, . . .
they will find some excuse to let you go if you continue to stay . _.." ° The under-
signed finds that Rogers' remarks to Lynch constitute interference, restraint, and
coercion.
i
6. Surveillance of union meeting
Clara Hilburn is the wife of Roy Mack Hilburn. On Saturday , October 3, Clara
Hilburn was at Storey 's Cafe ( in Fort Worth ) with J . R. Hilburn , Roy Hilburn's
brother. They were sitting in a booth and J . R. Hilburn *as wearing a District
50 button on his cap . Bean came in to the cafe and sat at the counter about 4 feet
away. Bean said to an employee of the respondent who was with him, that he
(Bean ) was going to a meeting "at the lake." Clara Hilburn then said , "Mr. Bean,
they are having a meeting down at this little church around the corner. Why
' The above conversation was testified to by Widde , which the undersigned credits The
conversation , in substance, with Widde was not denied by Bean , but Bean testified that
Widde , when he saw employees wearing union buttons, asked him (Bean ) if it was com-
pulsory to joint the Union, and that he ( Bean ) replied that it was not compulsory but Widde
could join if he wished. '
4 Lynch testified to the above conversation , which the undersigned credits. Rogers de-
nied that he had a conversation with Lynch concerning his (Lynch ' s) union membership.
I
WAPLES-PLATTER COMPANY 1165'
don't you go down there and they would welcome you down there." Shortly after,
Bean left the cafe-5
. _
On October.5 a District 50 meeting was held at this church which is approx-
imately three-eighths of a mile distance from the box factory. While the meeting
was in progress, Winston, manager of the box factory, Bean' and Cosby _drove
by the church and proceeded to the property of the Hubb Furniture Company
which is located about 1 block distant from the church. One part of the Hubb
Furniture Company's property faces on the same street as does the church.
The street comes to a dead end at or near the Hubb property. Both the Board's
and the respondent's witnesses testified that the car stopped on the street facing
the church, the Board' s witnesses contending that the car was stopped on the
street for a considerable length of time and the respondent's witnesses contending
that the car was stopped on the street for only a short period of time. The
evidence is clear, however, that the car did leave the street and enter the property
of the Hubb Furniture Company. In this respect, the undersigned credits the-
testimony of Mr. J. S' McRoberts, an officer of the Hubb Furniture Company, to
the effect that Bean, Cosby, and Winston drove into the Hubb property and,
without getting out of their car, asked him concerning the possibility of the Hubb
Company manufacturing dowel pins for the respondent and that they. stayed
5 or 10 minutes. On the other hand, the undersigned credits the testimony of
the Board's witnesses to the effect that the car was parked on the street for a
considerable length of time, facing and a block away from the church, and that
neither Cosby nor Bean got out of the car. The fact that none of the Board's
witnesses mentioned Winston as being in the car is understandable since the
car was a coupe and it would have been difficult to observe him if he had been
sitting,between Bean and Cosby. The question of whether Bean, Winston, and
Cosby drove into the Hubb Furniture Company property before or after stopping
or parking on the street is immaterial. The fact that a meeting wars to be held
at the church was known by Bean who, as previously stated, was told of the
meeting at the church by Clara Hilburn. The respondent contended at the hearing
that Winston, Bean, and Cosby were in the vicinity of the church solely for the
purpose of going to the Hubb Furniture Company. However, the following
testimony of Winston during cross -examination is significant :
Q The only purpose that you had in going in that vicinity was to see this
man about that article that you intended-to manufacture; is that true? -
A That was our only purpose in going to the Hubb Furniture Company.
Q. That was the only purpose you had in being down in that vicinity?
A. No, that,was the only purpose for being on the Hubb Furniture Com-
pany's property.
Q. What other purpose would you have for being down in that vicinity?
A. Well, that was a city street and we had every right to go by there,
I think.
When the employees at the meeting observed Winston, Bean, and Cosby drive
by in their car and then park on the street facing the church, an "uproar" re-
sulted and the meeting broke up As the employees left the church, the car
drove away.
The undersigned finds that Winston, Bean, and Cosby drove by and parked
near the church in order to keep under surveillance the District 50 meeting,
and by such actions the respondent interfered with, restrained, and coerced its
employees.
The above conversation, in substance, was testified to by both Clara Hilburn and Bean.
1166 DECISIONS OF NA'T'IONAL ,LABOR RELATIONS' BOARD
7. The notice to employees posted by the respondent
On October 30, 1942, Galen H. McKinney, a vice-president of the respondent,
posted at three places in the warehouse, namely one on the bulletin board, an-
other on the dock, and the third in the employees' rest room, the following notice:
WAPLES-PLATTER COMPANY
FORT WORTH, TEXAS
OCTOBER 30, 1942
TO ALL FORT WORTH WAREHOUSEMEN AND TRUCK DRIVERS-
'YOU HAVE, NO DOUBT, READ THE ANNOUNCEMENT THAT THERE
WILL BE AN ELECTION IN THE WAREHOUSE ON MONDAY MORN-
ING, NOVEMBER 2ND, THE PURPOSE OF WHICH IS TO DETERMINE
WHETHER OR NOT THE WAREHOUSE AND DISTRIBUTION WORK-
ERS UNION (AFFILIATED WITH THE C. I 0) IS TO ACT AS THE
BARGAINING AGENT TO DISCUSS WORKING' CONDITIONS WITH
THE COMPANY.
THE VOTING IS NOT ON THE ADOPTION OF A CONTRACT BUT
SIMPLY TO SELECT OR NOT SELECT A BARGAINING AGENCY.
WE HAVE NO ADVICE TO OFFER. THE LAW PROHIBITS THE
MANAGEMENT FROM SAYING ANYTHING ONE WAY OR THE OTHER
ABOUT OUTSIDE REPRESENTATION.
AT THE ELECTION THE BALLOTING WILL BE SECRET. THE
UNION WILL NOT KNOW AND THE COMPANY WILL NOT KNOW
HOW YOU VOTE. YOU ARE URGED TO VOTE IN ORDER THAT THE
SENTIMENT OF THE EMPLOYEES MAY BE KNOWN.
IF TIIE VOTE IS IN FAVOR OF THE UNION BECOMING THE BAR-
GAINING AGENT, THEN WE WILL MEET WITH THE UNION AND
DISCUSS A'CONTRACT.
I WISH TO EMPHASIZE THE WELL-KNOWN POLICY OF THE COM-
PANY, THAT WE NEVER HAVE AND WE, NEVER EXPECT TO SET UP
ANY FORM OF EMPLOYMENT THAT WOULD DISCRIMINATE BE-
TWEEN EMPLOYEES. I
I WISH TO THANK ALL OF YOU' FOR CARRYING ON AS YOU HAVE
WHEN WE HAVE BEEN SHORT OF MEN ON THE TRUCKS AND IN
THE WAREHOUSE. THE CONTINUED HELP OF THE OLDER MEN
IN THE SERVICE WITH US IN ASSISTING THE NEW MEN TO GET
FAMILIAR WITH OUR MERCHANDISE AND THEIR DUTES IS
APPRECIATED.
WAPLES-PLATTER COMPANY HAS A GOOD RECORD OF RENDER-
ING EXCELLENT SERVICE TO OUR CUSTOMERS AND WE WANT TO
MAINTAIN THAT RECORD. LET US ALL GIVE CLOSE ATTENTION
TO OUR JOBS AND KEEP THE WORK GOING.
CORDIALLY YOURS,
GALEN H MCKINNEY,
Vice-President and General Manager.
All three copies were signed by McKinney. On or before October 30, a notice
of election had been posted by the Board on the bulletin board. Local 220 had
distributed circulars on or before October 30 and McKinney had read them.
McKinney testified and the undersigned finds that, one purpose in posting the
WAPLE'S-PLATTER COIPAN'Y - 1167
above quoted notice was to answer the pamphlets or circulars distributed by
Local 220 The election was held by the Board on November 2, 1942.
The undersigned finds that , the respondent by posting the above notice prior to
the election interfered with, restrained , and coerced its employees.
0. The discharges
(1) Roy Mack Hilburn.: Hilburn started work at respondent's box factory
in June of 1941. He first stacked lumber in the yard and was then put on the
edger (machine) in the mill. He was the edger operator's helper for about a
week and was then made operator of the edger with a 5-cent do hour increase.
On the night of September 17, Hilburn signed a union authorization card.
The next day Hilburn got about 15 employees to sign authorization cards and
these employees met at Hilburn's house that night. At this meeting Hilburn
was elected secretary and treasurer of the organization. The next union meet-
ing was held on September 21 at Hilburn's house and about 40 employees were
present. Hilburn distributed union authorization cards on respondent's prem-
ises before work and employees came to Hilburn during working hours or while
he walked through the plant, and asked him for cards. On or before September
23, Hilburn had obtained signatures on authorization cards from about SO
employees and he turned these cards over to Barnett. .
On September 22 at about 3: 30 p. in., Hilburn ran out of lumber for his edger
and went out to the yard to get the lumber. Employees Kennedy and Bowman;
who were logging for Hilburn (bringing lumber to the edger) did not have the
lumber ready and Hilburn helped them. While they were unloading the truck,
they were talking about not getting enough money from the respondent and the
shortage of men. Hilburn made a remark that he could get 25 men that after-
noon if respondent would pay 50 cents an hour. When Hilburn made this remark,
the yard foreman, Jack Cosby, was close by. Cosby then talked 'to T. R. Bean,
the plant superintendent. Hilburn took the lumber back in the mill to the edger.
Bean then walked up to Hilburn and said, "Roy; if I was you and I was dissat-
isfied with any job, I believe I would quit." Upon being asked by Hilburn
who told him that, Bean said. "You are starting trouble out in the yard with
Jack's men." Hilburn denied starting trouble and stated he wanted to quit if
his work was not satisfactory. Bean then said, "Roy, your work is all right
and you are doing plenty of work."'
On September 23, Hilburn wore a District 50 button in the plant for the first
time. The button was worn in a conspicuous position and Hilburn was the only
employee, possibly excepting Sonny Grimes, to wear one on that day, as Barnett
e Hilburn testified to the above conversation on September 22 with Bean and the under-
signed credits this testimony. Concerning this conversation , Bean testified that be and
T. L Winston, manager of the box factory , saw Hilburn and his 1helper talking. Bean
went to Hilbuin and asked him why he was not working . Hilburn told Bean that the
mill foreman,- Joe Andre, had told him to bold up the work as he was getting too much
lumber ahead . Bean then said that Hilburn should tell Andre to give him (Hilburn)
something to do as he (Bean) did not want to lay off Hilburn. Hilburn went to see
Andre as directed and Bean did not know if the edger continued running that day or not.
Bean specifically denied the conversation as testified to by Hilburn . The undersigned does
not credit the testimony of Bean. It is the uncontradicted testimony of Hilburn that
Andre told him on September 23 that he (Andre ) was short of help in the mill This
evidence is supported byoBean's testimony that he had employed approximately 32 colored
women shortly before or after Hilburn left the respondent's employ, and that he had
hired these women because "men were getting scarce" and "were leaving faster than I
could hire them."
1168 DE CISIONS OF NATIONAL LABOR RE[LA 'TIONS BOARD
did not have buttons before then. On that day Hilburn had the edger running
before the 8 a. m. whistle . Hilburn saw Bean and Joe Andre , assistant super-
intendent in charge of the mill, coming toward him. Willie ( Bill ) DI Helton was
off-bearing for Hilbnin at the time . Andre advised Hilburn that Bean wanted
to see him . Bean then asked Hilburn if he had ever worked at a garage and
Hilburn replied , "Yes, but - I don't like it. Why?" Bean replied , "I think I will
put you over at the garage a while ; I want to put , you where you will be satisfied."
Hilburn again told Bean that he did not care for garage work and that he did
not know " too much about it " Bean ended the conversation by saying , "Well,
you go over there until I can get a man. We are going to close the edger down ;
you are so far ahead , we are going to have to close it down anyhow ""
The garage is in front of the box factory, about 100 yards away. It normally
employs four men, including the garage foreman, Taylor Rogers. Hilburn worked
in the garage that morning until noon and it appears that there was not
very-much work for him to do there . On his way home to lunch, he went through
the mill and an unidentified employee told him that the edger had not been
closed down Hilburn went home to lunch and then "rushed " back to the mill
to see Bean , but Bean was not there at the time . Hilburn then spoke to em-
ployees J. C Kennedy and Willard Bowman, wlio , upon being asked by Hilburn,
also told him that the edger had been running that morning . Whereupon Hilburn
then spoke to Andre and said , "Joe, aren ' t you short in the mill ?" Andre replied,
"Yes Why ?-Well, I would have to see Bean to get you back in the mill""
Hilburn then went out on the clock to wait for Bean, and when Bean arrived in
his car Hilburn approached Bean and told him that the edger had been running
and "- I thought you was going t6-shut it down " Bean replied that there was
one load for the edger and it would then be shut down . Hilburn again told Bean
7 Hilburn testified that he woie the button on September 23 Bean, by implication, denied
that Hilburn wore a button in that Bean testified that he did not see a button on Hilburn
and that he first saw union buttons a day or two after Hilbuin left the employ of the
respondent, at which time many employees started wearing them The undersigned has
heretofore discredited Bean's testimony with respect to conveisations that he had with
employees Napier, Grimes, and Widde In' addition, as will be lieriimafter pointed out,
the undersigned disciedits Bean s testimony in connection with his conveisations with
Hilburn on September 23 Under the circumstances the undersigned is of the opinion
that Bean is not a credible witness and discredits his testimony to the effect that he did not
see Hilburn woar a union button Helton, who was Hilburn's helper on and befoie Septem-
ber 23 and who was called by the respondent as a witness, also testified that Hilburn did
not wear,a union button in'the plant, and. -particularly, not on September 23 It appears
that Helton joined District 50 at about the same time as did Hilburn and that he was still'
a member at the time of the hearing Honeeer, Helton's demeanor as a witness did not
impiess the undersigned Helton had taken Hilburn's job as the edger'operator and was
still in the employ of the respondent at, the time of the hearing. Accordingly, the under-
signed credits Hilburn's testimony in this respect
8 This conveis tion between Hilburn and Bean was testified to by Hilburn and the under-
signed accepts it as tare Bean did not deny that he had a conversation with Hilburn
but in this connection testified that he (Bean) went to Hilburn and asked him if he had
garage experience, that Hilburn said he had; that he (Bean) asked him if it would suit
hurt to work in the garage for a few days, and that Hilburn said "all right." Bean denied
that he had told Hilburn that the edger would be shut down The undersigned does not
ciedit this testimony of Bean J C. Kennedy and Willard Bowman, witnesses for the
Board , testified and the undersigned finds that Hilburn, at about noon, asked them if
the edger had run that morning This testimony, in the opimoh of the undersigned, confirms
Hilburn's version of the conversation.
u Hilburn testified to this conversation with Andre Andre in is testimony admitted a
conveisation'with Hilburn at about 12: 30 p. in and did not specifically deny the remarks
attributed to hini" by FIilbuin. Andre testified that Hilburn said he did not like the job.
at the garage as it was too easy for him and that he was going to quit. Andre also testified
that Hilburn did not state to him that he wanted to go back to work in the mill.
N
WAPLES-PLATTER COMPANY 1169
that he did not like garage work, to which Bean replied, "Well, Hilburn, you will
have to do what I put you to or I. can't use you." Hilburn said he was not a
garage man and "couldn't satisfy them over there," and then said, "Now, Mr.
Bean,. I found out why you were transferring me." Upon being asked why by
Bean, Hilburn said, "Now let's don't try to fool each other, Mr. Bean ; you know
that the boys all get going and I am with them a hundred percent ; however, I
am not the leader of it. I don't want you to accuse me of that because me and
you are good friends and I don't want no hard feelings with you or with the
company." Bean replied, "Yes, Roy, I have always thought a,lot of you; you
are a good worker; but if you want a raise, you should have comp to me
instead -" Bean did not finish the sentence Hilburn told Bean that he felt
he should run the 'edger no matter how many loads were involved, and Beau
countered by saying that Hilburn would get the same money in the garage.
Hilburn again said he was not satisfied with garage work, that he was hired
for mill work and "- why can't I work in the mill?" Once again Bean said,
"Well, if you had wanted a raise you should have come to me -" Bean then
"got mad" and went into the office ; Hilburn followed him. Bean took Hilburn's
time card from the rack, "kind of threw it to the girl" and said (to the office girl),
"Fill out this fellow's time " The office girl asked Bean "is this indefinitely,"
to which Bean replied yes '0
The edger continued to run in the morning and in the afternoon of Septem-
ber 23 It was operated by Helton and an unidentified colored man, on that
day and thereafter." It appears that Helton had been employed by the re-
spondent for only a"short time prior to September 23, 1942. When not operat-
ing the edger, he was kept busy operating or helping to operate other machin-
ery in the box factory after September 23. -
10 This conversation between Hilburn and Bean was testified to by Hilburn. The under-
signed credits this testimony. Bean testified that he and Cosby went to lunch at 12 noon ;
that when they got back, Hilburn was sitting on the front steps of the factory ; that as he
(Bean ) got out of the car Flilbuin "iushed" up and said , "Well, I believe I will quit if that
is all you have got for me to do ;" that upon being asked "what was the matter" (by Bean),
Hilbui n replied, "they ain't got nothing to do over there ; he don't need me over there ;"
that he ( Bean ) replied , " Well, if you stay on the payroll , you will get your money just the
same; and that Hilburn then said, "No, . . . I am going to quit" On cross-examination
Bean further testified concerning this conversation that Hilburn stated that he had a job
that paid more money for driving a truck; and that when he (Bean) told him he bated
to see him quit, Hilburn replied, "I hate to leave you, too . . I have always liked you and
you have-been a good friend- to nie hut . I think I will quit " Bean also testified that
Hilburn did not ask to be put back on the edger , and that he told Hilbuin that it lie would
woik in the garage for the rest of the day, he (Bean) would put him back` in the box
.factory the next day The undersigned does not credit Bean's testimony as to this con-
versation with Hilburn . Bean 's own testimony indicates that Hilburn asked to be put back
in the mill although Bean denies Ililbiirn made such a request Moreover, McMullan and
Helton, witnesses for the respondent, testified that they heard Hilburn say (prior to his
conversation with Bean) that he was going to quit if he was not put back to work in the
mill Both of these witnesses had been fellow employees of Hilburn and wei a still in
the employ of the respondent. Their testimony supports and does not conflict with Hilbuin'6
version of his conversation with Bean Hi burn testified that he did not tell Bean that
he wanted to "quit", but otherwise his testimony as to this conversation with Bean indicated
a refusal to work in the garage and the undersigned so finds
11
A record of monthly sales of beverage boxes, the only production record of the re-
spondent available, shows sales in 1942 as follows : February, $17,455 43; March,
$16,45964; April, $19,24804: May, $16,49251; Juiie, $10,220.22 ; July, $1869421;
August, $21,761.93 ; September, $16,913 24 ; October, $8,193 59 ; and November, $6,323.43.
The respondent contends that production on beverage boxes was cut considerably due to
priority orders of boxes from concerns with Government contracts . Bean testified that
during September the edger was operated only one-third of the (working) time From
this evidence it is clear that the edger was not in 'normal or average operation on beverage
boxes on of about September 23 and the undersigned so finds.
1170 ^DECISIONS OF NATIONAL IeABOR RiEiLA'l ONS, BOARD
As stated above prior, to September 23, Hilburn, had obtained signed au-
thorization cards from about 80 employees. Although Philip Moore was selected
chairman during the early stages of union organization, Hilburn was later
elected president of the organization. All the evidence conclusively shows that
Hilburn was the most active employee in organizational efforts. The evidence
also shows that the' respondent was aware of Hilburn's organizational activi-
ties, as shown by the episode occurring on September 22 when, as found above,
Cosby overheard Hilburn talking to employees in the lumber yard, and Bean's
subsequent conversation with' Hilburn. In addition, the undersigned has found
that Hilburn first started to wear a District b0 button on the morning of-
September 23. Accordingly, the undersigned finds that the respondent had
knowledge of Hilburn's organizational activities on behalf of District 50, prior
to the transfer on September 23.
The respondent contends that Hilburn resigned his position of his own free
will. In this connection, Bean testified that Hilburn was not to receive a
cut in pay by being transferred from the box factory to the garage, and was
being transferred to the garage for only a short period of time in order to
help out until a permanent employee could be found for garage work Bean
also testified that the garage foreman had advised him that a man was needed
to help out at the garage. On the other Band, from' Illlburn's testimony it
appears that there was very little work for him to do at. the garage during
the morning of September 23 It is significant that, although the garage
foreman, Taylor Rogers, was called as a witness by the respondent, he failed
to testify as to a shortage of help at the garage on September 23 and thus
to substantiate Bean's testimony in this respect. Accordingly, 11-he 'under-
signed finds that there was not a shortage of men at the gam age on September
23, and that the respondent discriminated against Hilburn by transferring him
to the garage because of his union activities at the box factory. The conversa-
tions between Bean and Hilburn on September 22 and September 23, as noted
above, during which, Bean said that if he were Hilburn he would quit if he was
dissatisfied with his job in the mill and, when advising Hilburn of his transfer'
to the garage said that he (Bean) wanted to put Hilburn where he would be
satisfied, convinces the undersigned that there was not a shortage of help at
the garage and that the transfer was discriminatory. It will be later dis
cussed as to whether the discriminatory transfer together with Hilburn's
resignation constituted a discharge. I
(2) Charles M. Gilbert: Gilbert started work with .respondent on or about
October 1, 1929. He was a truck driver for the respondent for almost his
entire period of employment. For a considerable period of time he drove
what is known as a "country truck" with headquarters at Fort Worth, that
is, he always returned to Fort Worth,at the end'of each trip
Gilbert became a member of Local 220 when organizational activities at
the warehouse were first started in July 1942. Gilbert was the most active
employee in organizational activities. During a union meeting held about the
first week in August, Gilbert was elected temporary chairman Pictures of
officers elected were put in the C. I. 0 News which was published one week
to 10 days after the election of officers, and which was distributed at the
warehouse and vicinity among the employees at about the same time On
August 17, Gilbert, together with other union members, first started to wear
in the warehouse Local 220 buttons during working hours. The button was
about-the size of a half dollar, and Gilbert wore it continuously and conspicu-
ously, first on his shirt and then on his cap
1
i
a WAPLE'S-PLATTER COMPANY 1171
The "country" truck drivers made regular trips to points outside of but in the
general vicinity of Fort Worth. Upon occasion, there were special trips which.
required the services of the Fort Worth drivers It was customary for the drivers
to ask Taylor Rogers the garage foreman, to recommend them for these special
trips.' Sometime prior to September 21, it is apparent that the drivers knew of
one such trip to Clovis, New Mexico. Ernest Gooch, a truck driver, asked Rogers
to let him (Gooch) make this trip On September 22 about noon, a shipping clerk
told Gilbert "you are due a run out today from your regular run-But Mr. Wand
and Johnny Lancaster has both given me instructions not to send you out of town
today." About 1:00 or 2:00 p. in. ooi the same day, Lancaster told Gilbert that
his regular truck had been sent to the garage and that he was supposed to drive
to Clovis. Wand, superintendent of the warehouse, then came by and Gilbert
asked him where he was going on the trip. Wand replied, "I don't know-you will
see Orville Thompson in the front office; he knows something about loads you
are supposed to pick up the line somewhere. I will bring you some expense
money in a few minutes " Wand appeared not to know much about the trip
and did not discuss it with Gilbert. It was usual for him to go into detail con-
cerning such trips with the drivers Thompson told Gilbert he was to•take a load
from Fort Worth to Vernon, Texas, where he was to pick up 800 cases of beans
for Lubbock and Clovis, New Mexico Thompson then said, "When you get out
to Lubbock, they will tell you what to do out there. I don't know just exactly
what you will have to do." Neither Wand nor Thompson mentioned Memphis,
Texas to Gilbert. Gilbert left on the trip the next morning, September 23, at
6:00 a. in. At Lubbock, the warehouse manager, Files, told Gilbert to take the
same truck to Clovis. Files then said, "We have a' truck here that is from Mem-
phis . . . you are going to take this truck that you have on over to Clovis and
leave it and pick up our truck which is at Clovis and bring it back here and pick
up this truck, No. 102, t'hich belongs to Memphis, and take it over there." Gilbert
followed directions and arrived at Memphis at about 1: 00 a. in on September,
25. Memphis is about 270 miles from Fort Worth. Ottie Jones, the Memphis
warehouse manager, came to the hotel where Gilbert was staying for the night
and Gilbert asked him, "Have you got another truck for me to take back to Fort
Worth?" Jones replied, "No . . . Mr. Shugart has wired me that you would stay
up here and help us out a while " Gilbert said, "Mr. Jones, I haven't made
arrangements to stay up here; I am sorry, I just can't do it, but I will stay up
here today and tomorrow and help you and go in Saturday, it that will help you
any." Jones did not appear satisfied but did say "Well . . That will help."
J. W. Shugart is vice-president and sales manager of the respondent, with head-
quarters at Fort Worth. The conversation between Jones and Gilbert continued
during which Jones said that there was not a driver available at Memphis for
handling a trailer truck, that he (Jones) wanted Gilbert to drive the truck with
his headquarters at Memphis, and that ""Mr. Shugart said you would stay up
here." Gilbert replied, "Well, I just can't stay up here now; , the condition of
my family . . my wife isn't well and I just can't stay up here." Jones then
returned to the warehouse. When Gilbert brought the truck to the warehouse,
Jones told him that he had phoned Shugart and that Shugart had directed that
Gilbert "stay up here." Gilbert again insisted that he couldn't stay and Jones
suggested that Gilbert talk to Shugart. Gilbert phoned Shugart and explained
that he would have to go back to Fort Worth. Shugart agreed to Gilbert's com-
" This custom was testified to by Gilbert and E. L. Gooch . The undersigned credits
this testimony . Gooch was still in the employ of the respondent at the time of the hearing.
Rogers denied the custom and testified that he did not have' anything to do with the
assignment of drivers.
531647-43-vol. 49-75
1172 DECISIONS OT- NATIONAL LABOR RELATIONS' BOARD
ing back to Fort Worth if he stayed at Memphis until Saturday, but stated,"
I expect you to be back (at Memphis) Monday morning." To this Gilbert
replied that he would stay at Memphis until Saturday night, but not any longer
and Shugart then said, "I think if you will think this matter over, you will stay
up there and help us out." Gilbert worked at Memphis until noon on Saturday
In the meantime, Jones "kept insisting" that Gilbert stay or come back to Mem-
phis Gilbert told Jones that he couldn't come back and said, "I see that the
position- looks like it might be permanent, if I come up here and work
a while it might be permanent ... I am not in a position to make this a
permanent position up here" At some point during one of the conversations
this a permanent position up here." At some point during one of the conversations.
between Jones and Gilbert, Jones said, '`Well, it might be temporary, but still .. .
if everything works out it might be permanent." Gilbert was not advised in any
of these conversations with either Jones or Shugart as to any definite period of
time or as to how long he was supposed to "help out" at Memphis. Gilbert re-
turned to Fort Worth on Saturday, and phoned Shugart on Sunday, September
27. Gilbert told Shugart that he would not go.back to Memphis on-Monday and
. . I thought I would call you and give you a little time, maybe you could
find someone else to send." Gilbert also said that his wife was not well" Shu-
gart said, "I think if you will think this matter over, you will go back up there
Monday morning and be there to report to work." Gilbert said he was sorry he
couldn't do it and "I guess by that, I am fired then " . Shugart replied, "Well, we
need you in Memphis," to'which'Gilbert said, "You mean that I can't work in
the house here (warehouse) at Fort Worth any more?" Shugart again replied,
"We need you in Memphis." In the conversation Shugart claimed that Memphis
was behind on work, to which Gilbert replied that Fort Worth was further behind
Shugart replied, "Yes", but that is our business,, though, we run our business like
we want to." Gilbert went to the warehouse on Monday, September 2S,. He
first met Wand and gave him his time card. Wand figured out Gilbert's time and
asked a pay clerk to make out a check for Gilbert. Gilbert then said to Wand,
"Do you know anything about this?" Wand denied knowing about it and said,
"I haven't anything to do with this deal " Gilbert then asked, "Are you going to
fire me?" and replied, "No . . . I don't have anything. to do with this" Gilbert
then asked, "Can't I conic back to work in this warehouse?" to which Wand
replied, "Well . . . I haven't got any more to do with it; you will have to talk
to Mr. Shugart about it." Gilbert then saw Shugart and asked him if he could
work in the warehouse at Fort Worth, ' and Shugart replied, "We need you in
Memphis " Gilbert said, "Mr. Shugart, did you say that I am fired?" to which
Shugart replied, "No, I didn't say that." Gilbert then said, "Well it looks like I
am fired then " To this Shugart again replied, "I didn't say you were fired"
Gilbert again asked if lie could work at the Fort Worth warehouse and Shugart
again replied that he was needed at Memphis. Gilbert then said, "Well then,
if that is all you have for me . . I will just have to go on my way, but
remember I am still willing to work in this warehouse." This ended the con-
versation and Gilbert went to see Wand, and again asked him if he could work at
the warehouse (Fort Worth). Wand said, "This is all over my head .'. . I can't
say. That is up to you and Mr. Shugart about that." Gilbert replied, "Well . . .
remember, I told him and 'I am telling you that I am ready and I am willing to,
go to work back in this warehouse right now." Gilbert then went home.
ie Shugart denied that Gilbeit at any time told him his wife was sick.
iJ
I
WAPLES-PLATTER 'COMPANY -1173
Gilbert again returned to the warehouse on Wednesday of the same week, and
had, in substance, the same conversations with Wand and Shugart."
On at least one occasion T. C. Shannon,16 who has charge of the respondent's
claim department at the Fort Worth office, had conversations with Gilbert dur-
ing which he attempted to persuade Gilbert to give up his union activities.
Shannon was considered by Gilbert to be'a representative of management. This
conversation took place on or about August 17, 1942. Although Shannon does
not have power to hire and fire employees, he supervises some of the work of
and is the "foreman" over certain office employees consisting of several book-
keepers and a stenographer The undersigned finds that Shannon was a repre-
sentative of management In connection with his claim department duties, he
frequently communicates with Shugart. Shannon came to Gilbert while the
latter was working in the warehouse and, upon asking Gilbert how the Union
was getting on and upon being told, "all right," said to Gilbert, "This union is
all right, but : . . I think you boys, if you want more money I think you are
going about it in the wrong way ... you boys are going wrong in going with
this union activity " Gilbert walked off and Shannon followed him and said,
"If you would see Mr. Shugart ... He will give you most any job you
wanted . . . He has some salesmen's jobs . . . I am sure you could get one of
them or a job down in the front office " Gilbert replied to the effect that he
did not want such a job as he had been employed there 13 years and did not
want to ask for it. Shannon then said, "Well, I have done all I can do." On
the same day Shannon phoned Gilbert's wife and talked to her on the office
phone from about 3: 30 p in to about 5 p. in In the conversation he urged
Mrs Gilbert to influence Gilbert to resign from the Union. He stated that he
had talked to Gilbert but that he could not get anywhere, and that he hated to
see what would happen to Gilbert if he "went ahead as he had started as head
of the Union " He also said that if Gilbert would not "bother about other
boys" he was sure Gilbert would get a job he wanted, such as a salesman or
"anything else."
Shannon told Mrs Gilbert that he had talked to Shugart about Gilbert and
that Shugart was pleased with Gilbert's work and liked him. During the con-
versations with Mrs. Gilbert, Shannon indicated that Gilbert might be, black-
listed with other concerns." , -
The evidence conclusively shows that the respondent had knowledge of
Gilbert's organizational activities in behalf of Local 220 prior to September 22,
the date on which Gilbert was first advised that lie was to be sent out of
Fort Worth on a special trip, and the undersigned so finds. The fact that
Gilbert, had been wearing conspicuously a Local 220 button on the job since
August 17, the fact that, as found above, the C. I. O. News, announcing the
election of union othcers, was distributed indiscriminately to employees at and in
the vicinity of the warehouse at about the same time, and the conversations
that took place, also on or about August 17, between Shannon and Gilbert and
between Shannon and Mrs Gilbert, substantiate this finding
"Gilbert ' testified to the above conversations with Shugart . Shugart was called as a
witness-by the respondent and, in substance, his, testimony was the same as Gilbert's as to
these conversations
15 Gilbert and Shannon had been friends for years , but this association had not been as
close since Shannon started to work " in the office ." At the time of the bearing Shannon
had worked in the office about 6 years.
"The above conversations between Shannon , Charles Gilbert and Mrs. Gilbert are in
accordance with the testimony of Charles Gilbert and Mrs. Gilbert . Shannon , who was
called by the Board as an adverse witness, did not deny the substance of these conversations.
1174 DECISIONS OF NATIONAL LABOiR ',RELA'T'IONS BOARD
As in the case of Hilburn, the respondent contends that Gilbert resigned his
position of his' own free. will. -In support of this contention the respondent
adduced evidence to the effect that a truck driver was needed for its ware-
house located at Memphis, and that the respondent, was unable to• hire an
experienced driver in the vicinity of Memphis. The fact that another employee.
from the warehouse at Fort Worth was sent to Memphis to fill this vacancy
after Gilbert left the employ'of the respondent substantiates the respondent's
proof in this connection. The undersigned therefore finds that a truck driver
was needed for the warehouse at Memphis, and that the respondent was unable
to employ, at the time in question, an experienced truck driver in the vicinity
of Memphis. On the other hand, the undersigned believes that the fact that at
least one other truck driver at the Fort Worth warehouse, namely as stated
above, Ernest Gooch,' had asked for this special trip out of Fort Worth is
significant in the undersigned's opinion as to the motive in transferring Gilbert
,to Memphis. Also, it does not appear from the record that the respondent
made any attempt whatsoever prior to September 28. the date when Gilbert
left the employ of the respondent, to transfer any other employee at the ware-
house to fill the vacancy at Memphis. Although it is undisputed that Gilbert
was not to receive a cut in pay by being transferred to Memphis, the under-
signed does not believe that this point is conclusive in view of the purpose of
the respondent in effecting the transfer. Accordingly, the undersigned finds
that the respondent, by transferring Gilbert on September 23 from Fort Worth
to Memphis, discriminated'again st Gilbert by reason of his union activities in
behalf of Local 220.
CONCLUSIONS
.4
The respondent contends that these employees resigned their positions of
their own free will. In the undersigned's opinion this position is untenable,
since the evidence shows that they merely refused to be transferred to new
positions, that there was no necessity shown by the evidence for the respond-
ent to persist in transferring these particular employees, that these employees
were ready and willing to work for the respondent at their old positions, that
the transfers were effected in order to segregate these union leaders and to
prevent their organizational activities in their ,respective plants, and that the
transfers were for the purpose of discouraging membership in the unions.
In both cases it has been conclusively established by the Board that the re-
spondent had knowledge of the union activities of Hilburn and Gilbert prior
to the transfers. Both Hilburn and Gilbert were the most active employees
engaged in organizational activities for District 50 and Local 220, respectively.
It is significant that the respondent attempted to transfer these'two employees
on or about the same time, namely, September 21 to 23, 1942. The fact that
neither Hilburn nor Gilbert was to receive a cut in pay by being transferred
is not conclusive since the undersigned finds that the transfers were discrimi-
natory. 'In addition, the evidence shows that the respondent hired Hilburn for
mill work and the evidence fails to establish the necessity for the transfer from
mill work. In the case of Gilbert the evidence shows not only that he owned
a home at Fort Worth and that a °transfer to Memphis, which is 276 miles
away, would have caused considerable inconvenience and'expense, but also that
his wife was sick, of which fact he advised both Jones and Shugart.
It is also significant that the facts in both cases are almost identical,
namely, both Hilburn and Gilbert were told that they would be transferred
for an indefinite period of time in order to "help out" In the case of Gilbert
the evidence more than indicates that the transfer might have developed into
1
WAPLE'S-PLATTER COMPANY 1175
a permanent position at Memphis. It is uncontradicted that there was a
shortage of men at the box factory and likewise a shortage of truck drivers at
Fort Worth. Moreover, it appears that 'other employees with the necessary
experience were available to the respondent for the so-called trausfers,17 but the
respondent made no effort whatsoever to discover employees willing to accept
the transfers, as had been the custom previously, at least in the warehouse.
The fact that Helton, who was Hilburn's helper and who had been employed
by the respondent for only a short time, operated the edger together with an
unidentified colored helper on the day of Hilburn's discharge and thereafter
has been kept busy operating or helping to 'operate other machinery in the
box factory since that time, to a great extent refutes the respondent's conten-
tion that Hilburn was transferred to the garage for the reason that there was
not enough work for him at the box factory.
Accordingly, the undersigned finds that the transfers were constructive dis-
charges is and that Hilburn was discharged on September 23, 1942 and Gilbert
was discharged on September 28, 1942 because they joined District 50 and
Local 220, respectively, and engaged in union activities ; and that, by their
discharges, and the refusal to reinstate them to their former positions, the
respondent 'has discriminated in regard to' their hire and tenure of employ-
ment, thereby discouraging membership of its employees in the respective labor
organizations
The undersigned finds that the respondent, by the discharges of and the
refusal to reinstate Hilburn and Gilbert, and by the statements made by
Shannon to Gilbert and to Gilbert's wife, has interfered with, restrained and
coerced its employees in the exercise of their rights guaranteed in Section 7
of the Act.
1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent discriminated in regard
to the hire and tenure of employment of Roy Mack Hilburn and Charles M.
Gilbert. The undersigned will recommend therefore that the respondent offer
immediate and full reinstatement to said employees to their former or sub-
stantially equivalent positions, without prejudice to their seniority or other
rights and privileges, and that the respondent make them whole for any losses
of pay they have suffered by reason of the discrimination against them, by
payment to each of them of a sum of money equal to that which he normally
would have earned as wages from the date of such discrimination to the date
"Hilburn testified that his brother had experience as a mechanic and when first em-
ployed by the respondent , had asked for garage work . Gooch testified that he had asked
Rogers for the Clovis trip.
is Continental Oil Company v N. L. R. B., 113 F. (2d) 473 (C. C. A. 10). -
I
1176 DECISIONS OF NATIONAL LABOR RELATIONS, BOIAdD
of the offer of reinstatement, less his net earnings 1D during said period. As
stated above, the dates of said discrimination were September 23, 1942, in the
case of Hilburn,, and September 28, 1942, in the case of Gilbert.
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. District 50, United Mine Workers of America, and Warehouse & Distribu-
tion Workers Union, Local 220, affiliated with the C. I. 0, are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment' of
Roy Mack Hilburn and Charles M. Gilbert, and each of them, and thereby
discouraging membership in the labor organizations, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
3. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (1)'of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act
RECOMMENDATIONS
t
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondent, Waples-Platter Company,
Inc., its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in District 50, United Mine Workers of America,
and Warehouse & Distribution Workers Union, Local 220, or 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 and
tenure of employment, or any term or condition of employment ; ,
(b) Maintaining surveillance of, or employing any other.means of espionage,
for the purpose of ascertaining or investigating the activities of District 50,
United Mine Workers of America, and Warehouse & Distribution Workers Union,
Local 220, or the activities of its employees in connection with such organizations,
or any other labor organizations;
(c) In any other manner interfering with, restraining, or coercing its employees "
in the exercise of the rights to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choos-
ing, 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-effec-
tuate the policies of the Act :
10 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 2590 , 8 N. L. R. B. 440 Monies
received for work performed upon Federal , State , county, municipal, or other work -relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
WAPLES-PLATTER COMPANY 1177
(a) Offer to Roy Mack Hilburn and Charles M. Gilbert immediate and full rein-
statement to their former, or substantially equivalent positions at Fort Worth,
Texas, without prejudice to their seniority or other rights and privileges;
(b) Make whole Roy Mack Hilburn and Charles M Gilbert for any losses of
pay they have suffered by reason of the respondent's discrimination against them
by payment to each of them 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
respondent's offer of reinstatement, less his net earnings,20 during said period;
(c) Immediately post notices to all its employees in conspicuous places in and
about its box factory and warehouse at Fort Worth, Texas, and maintain said
notices for a period of at least sixty (60) consecutive (lays. stating: (1)' that the
respondent will not engage in the conduct from which it is recommended that it
cease and desist in paragraph 1 (a) to (c), inclusive, of these recommendations;
(2) that the respondent will take the affirmative action set forth in paragraph 2
(a) and (b) of these recommendations; and (3) that the respondent's employees
are free to become or remain members of District 50, United Mine-Workers of
America, and Warehouse & Distribution Workers Union, Local 220, and that the
respondent will not discriminate against any employee because of membership or
activities in these organizations ;
(d) File with the Regional Director for the Sixteenth Region on or before ten
(10) days from the receipt of this Intermediate Report, a report iii writing
setting forth in detail the manner and form in which the respondent has complied
with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this- Intermediate Report, the respondent notify said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15)'days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Shoreham Building, Washington,
D. C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or
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. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefore must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to•the
Board.
JOHN H. EADIS
Trial Examiner
Dated January 16, 1943.
20 See footnote 19, supra