Anderson Box Co., Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1964

147 N.L.R.B. 647 (N.L.R.B. 1964)

ANDERSON BOX COMPANY, INC. 647
of his activity on behalf of the Union, or for testifying adversely to Respondent at
the unfair labor practice hearing. Either would be a reasonable assumption, and
neither would be rendered more or less reasonable than the other by the mere abrupt-
ness of Hammock's. discharge, for in the mind of employees, immediate discharge.
for adverse testimony would have been as understandable as immediate termination
for activity in the Union, first learned. And, in connection with the latter, it is to be
observed that there is no warrant for a. conclusion that rank-and-file employees were
apprised that Respondent had been aware since March or April 1962 of Hammock's
union membership.
But, in the ultimate, as I view this matter, it little matters that for a very brief,
transitory period rank-and-file employees may have experienced ambivalent reaction
to the discharge of Hammock, or may even have believed Hammock's discharge
resulted from his adverse testimony, for by the time his discharge had been effectu-
ated, employees Tom Gary, M. A. Atwood, and Galen Britt had also appeared as
witnesses and testified adversely to Respondent; other employees had, I find, for the
reasons above discussed with respect to Hammock's testimony, learned of the fact and
nature of their testimony; and, yet, they continued in the employ of Respondent
immediately thereafter and for the 2 weeks following the hearing until they joined
the strike on August 6. Neither Atwood nor Galen Britt was alleged as a dis-
criminatee in the July 1962 proceeding and, thus, employees had no reason to
believe Respondent's circumspection with respect to them was forced. This retention
of rank-and-file employees without retribution could, in my opinion, have no other
reasonable effect than to either completely negative the formation of any belief on
the part of employees that. Respondent would take discharge action against them if
they similarly testified at a Board proceeding; or, so completely dilutes the effects of
any transitory doubt that employees may have harbored on this score immediately
after Hammock's discharge and until the retention of Gary, Atwood, and Britt be-
came apparent, as to negative the actuality of interference or restraint. Of similar
and continuing effect were subsequent and immediate restoration to employment of
Enoch James Britt upon his medical release; and the poststrike rehire of Galen Britt
and M. A. Atwood.
In all of the circumstances delineated, I conclude that under the rationale of
Better Monkey Grip and Dal-Tex a. result different than that reached by the Board
and affirmed by the court there is required in this proceeding; that Hammock's dis-
charge did not cause nonsupervisory employees reasonably to fear that the Respond-
ent would take discharge action against them if they testified against Respondent in a
Board proceeding to enforce their Section 7 rights under the Act. Accordingly,
upon a careful consideration of this additional evidence, I revised the conclusions
reached in my March 29, 1963, Intermediate Report, and recommend.that the com-
plaint be dismissed.
CONCLUSION OF LAW
Oil City Brass Works did not commit an unfair labor practice by discharging John
Hammock, a supervisor , because he gave testimony adverse to its interests at a Board
hearing.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusion of law, and upon
the entire record in this proceeding , Irecommend that the complaint be dismissed in
its entirety. .
Anderson Box Company , Inc. and Earnest G. Wade. Case No.
25-CA-1783. June 24, 1964'
DECISION AND ORDER
On February 11, 1964, Trial Examiner Sidney D. Goldberg issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Decision. Thereafter, the Gen-
147 NLRB No. 77.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral Counsel and the Respondent filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs.
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 Leedom, ]Fanning, ,and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.2
The Trial Examiner found that, although'there were suspicious cir-
cumstances in employee Wade's discharge on July 1, 1963, and in the
subsequent refusal to reinstate, the General Counsel had not estab-
lished by a preponderance of the evidence that the Respondent
violated the Act. We find, contrary to our dissenting colleague, that
the record supports these findings of the Trial Examiner.
The Respondent discharged Wade on the grounds of his insubordi-
nation to Lamont, and Lamont refused to reinstate Wade for reasons
of his own not shown to be illegal under the Act. Our dissenting
colleague agrees that there is insufficient evidence to warrant finding
a'violation in the discharge. Disagreement in this case centers on the
adequacy of the evidence of discrimination in the refusal to reinstate
Wade. Although, as mentioned in the Trial Examiner's Decision,
there were suspicious circumstances in the events surrounding the
meeting to consider reinstatement, the evidence of discriminatory
motivation is remote, scattered, and tenuous. The suspicions raised
do not support an inference of union animus on Lamont's part
directed against Wade.
It is significant, in our opinion, that both Stanley, Wade's imme-
diate supervisor, and Tubbs, a higher official of the Respondent, were
favorably inclined to reinstate Wade. Indeed, it appears that even
the president of the Respondent would not have objected if Lamont
decided to reinstate this employee.' 'This evidence mitigates against
the conclusion that it was Respondent's union animus rather than
Lamont's personal hostility against Wade which was the basis for
1 While we agree with the Trial Examiner that Supervisor Tubbs' Inability to perform
his promise to reinstate wade does not justify an inference that Supervisor Lamont
blocked such action for illegal reasons , we note that the stated basis for such finding-
i.e., that Tubbs was subordinate to Lamont-is erroneous . Thus, the Respondent concedes
and the record shows that in fact the two supervisors had equal authority . However, in
view of Lamont's personal involvement in the dispute with wade , we agree with the Re-
spondent 's position that it was reasonable for Tubbs to defer to Lamont on the question of
Wade's reinstatement.
2 Like the Trial Examiner, we are of the view that Stanley 's passing remark as to his
belief concerning the reason wade was fired is entitled to little or no weight , especially in
the absence of other evidence indicating an unlawful motive. However , we do not adopt
the Trial Examiner 's reason set forth in footnote 6 of his Decision.
ANDERSON BOX COMPANY, INC. 649
Wade's failure to secure reinstatement. Our dissenting colleague
relies upon Wade's uncorroborated testimony that Stanley told him
he would have been reinstated but for his union activities. Such testi-
mony would indicate that Lamont alone among all of the Respond-
ent's officials felt so strongly about the Union that he decided and was
permitted to decide, for unlawful reasons, to discriminate against a
union adherent. If this were so, the conclusion that Lamont initially
discharged Wade in violation of the Act would be equally supportable.
Yet our dissenting colleague concedes that the evidence is not sufficient
to warrant such a finding. The above testimony of Wade was not
mentioned by the Trial Examiner and was apparently discredited.
We are satisfied that the totality of the evidence in this case does not
preponderate in favor of a finding that Wade was unlawfully refused
reinstatement.
[The Board dismissed the complaint.]
MEMBER BROWN, dissenting :
I cannot agree with my colleagues' refusal to find that employee
Wade was unlawfully refused reinstatement. In this case the Trial
Examiner failed to mention the most incriminating evidence in the
record. Thus, it is undenied that Foreman Stanley, immediately after
the meeting of the three supervisors to consider Wade's reinstatement,
told Wade that but for his union activities he would have been rein-
stated.' The omitted testimony by Wade was :
And he [Stanley] said that if it hadn't of been for my union
activities, he said that Mr. Tubbs would have got my job back,
or something to that effect.
He said that if it hadn't of been for that, Mr. Tubbs would have
got my job back for me. And he said, "You knew that there is
a law against this sort of thing." He said, "You can take it up
with"-he didn't-I don't remember exactly what he called it,
but he didn't call it the National Labor Relations Board. He said,
"If you need any backing, I'll back you up 100 percent."
This evidence would even suffice without more.4 For, the important
consideration in this case is that Wade was told that he was refused
reinstatement because of his union activities. Under these circum-
stances, in my opinion, discriminatory motivation has been shown
8 Because the Trial Examiner omitted reference to this testimony the majority opinion
would infer that it was discredited . There is no justification for such an inference. For,
the failure of the Trial Examiner to mention uncontradicted , unimpeached evidence does
not preclude its consideration by the Board. See Valley Steel Products Co., 111 NLRB
1338, 1345. Cf. Macon Textiles, Inc., 80 NLRB 1525 , 1526. In fact, it has been held that
testimony similar to that involved herein cannot be disregarded by the Trial Examiner.
N.L.R.B. v. Local 138, International Union of Operating Engineers , AFL-CIO; et at.
( Nassau & Suffolk Contractors ' Assn.), 293 F. 2d 187 , 192 (C.A. 2).
' See, e.g., Drico Industrial Corporation, 115 NLRB 931, 932.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and a violation of Section 8(a) (3) has been established. The Board
has so held, and my colleagues have joined therein. See, e.g., Florida
Steel Corporation. (Florida Steel Products Division), 132 NLRB
1110, 1118. In my view, that case and the instant one are indistin-
guishable. But even if this were inadequate evidence by itself, at the
very least it supports other credited testimony in the case which is
to the same effect.
Stanley's statement is rendered highly significant because it was
made immediately after the meeting to discuss Wade's reinstatement.
Furthermore, in view of the admitted fact that the meeting was held
to discuss Wade's request for reinstatement, Lamont's testimony that
he refused to return Wade to work because he was ". . unaware that
Wade might have demonstrated something to the effect that he wanted
his job back . . ." is totally incredible. As Lamont has offered no
other reason for his own refusal to' reinstate Wade, and as no other
credible reason appears on the record, it is difficult, when due con-
sideration is given the other evidence in the case, to avoid the con-
clusion that the true reason was one proscribed by the Act.s
Accordingly,. I would find that the Respondent violated Section
8(a) (3) and (1) of the Act by its discharge of Wade.
Contrary to the implication by my colleagues , I would find that it was Lamont''s un-
lawful motive , rather than his personal hostility , that was the basis for the refusal to re-
instate Wade , and that this was attributable to Respondent . It is a non sequitur that,
because Wade was discharged lawfully , a fortiori he was lawfully refused reinstatement.
TRIAL EXAMINER'S DECISION
In this proceeding under Section 10(b) of the National Labor Relations Act, as
amended (29 U.S.C. §§ 151-168, herein called the Act), the complaint' alleges-
and the answer denies-that Respondent discharged , and refused to reinstate the
Charging Party because of his union activities and that it thereby violated Section
8(a)(3) and (1) of the Act.
A hearing upon the issues so raised was held before Sidney D. Goldberg, duly
designated as Trial Examiner , at Evansville , Indiana, on October 15 and 16, 1963,
at which all parties were present and afforded an opportunity to adduce evidence,
cross-examine witnesses , and argue upon the facts and the law. Briefs filed by the
General Counsel and by counsel for Respondent have been considered.
For the reasons set forth in detail below , I find that the General Counsel has
failed to prove his case by a fair preponderance of the evidence and, accordingly,
I must recommend that the complaint herein be dismissed.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is engaged in the business of supplying boxes, shipping 'cases, and
:other supplies and equipment to the poultry industry. It has its principal office in
Indianapolis, Indiana, and , in addition to a chain of sales branches characterized as
nationwide ," and several warehouses , it operates manufacturing plants at Omaha,
Nebraska, and Evansville, Indiana. From its plant at Evansville, which is the one
involved in this proceeding , Respondent concedes that it shipped, each year since
1958, "several hundred thousand dollars worth of goods" to points in other States.
The Board, in the representation case hereafter referred to, exercised jurisdiction.
Respondent concedes that it is an employer engaged in commerce within the meaning
of the Act and I so find.
' Issued September 6, 1963 , on a charge filed July 25, 1963.
ANDERSON BOX COMPANY, INC.
H. THE LABOR ' ORGANIZATION INVOLVED
651
United Papermakers and Paperworkers, AFL-CIO, herein referred to as the Union,
is admittedly a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In October 1962, Earnest Wade, the Charging Party, signed an application-author-
ization card for the Union. On the basis of a petition 2 filed by the Union, an
election was held December 13, 1962, at the Evansville plant and Wade acted as the
Union's observer. By a vote of 11 to 9, with two ballots challenged, the Union lost.
The same day, after the result of the election had been announced, James Lamont,
manufacturing and inventory manager of Respondent and its chief official at Evans-
ville, addressed the employees. He stated that there were no hard feelings against
those who had voted for the Union and that the Company wanted to get some things
settled. He invited the employees to write out what they would like in wages and
opportunities and suggested that an employees' committee be formed with one man
from each of the four departments. Wade was chosen as the representative of the
warehousemen and thereafter participated with the others in several meetings with
Lamont.
Sometime during February 1963, all of the employees, including Wade, gathered
in the conference room. Lamont came in and, first addressing no one in particular,
asked, "Is this a walkout?" Nobody answered and Lamont repeated his question,
this time addressing it directly to Wade, who answered: "I don't know, we just came
in to get things settled." Lamont, who appears to have known in advance that the
employees were concerned about wages, made a proposal and left the room so that
the employees could discuss it among themselves. They took a vote on the proposal
and accepted it.
B. Wade's discharge
The warehousemen, whose duties appear to be principally loading and unloading
trucks and railroad cars, are under the supervision of William Stanley. There is no
doubt that Wade was a satisfactory employee. He was also the oldest, in point of
service, in the crew. On several occasions during the year preceding July 1, 1963,
Stanley was away from the plant for different reasons and, during his absences, Wade
directed the work.3 On July 1, Stanley was in the hospital, where he had been for
2 weeks, and Wade was in charge of the warehouse crew. One of the regular mem-
bers had been on vacation and had not returned and another began his vacation that
day, their places being filled by temporary employees. The crew had fallen behind
in its work and cargo was piling up.
Early in the morning on July 1, Lamont came out on the dock to talk to Wade
about the work to be performed by the .warehouse crew that day.4 There is no
dispute concerning their conversation: the account of it in the General Counsel's
brief is a fair summary and it reads as follows:
On this day, Stanley and Tubbs, warehouse supervisors, were absent and
Lamont came out to the truck dock to see Wade, who was more or less filling
in for Stanley. Lamont told Wade that he wanted two box cars loaded and
,Case No. 25-RC-2330.
3 It is not seriously contended that Wade was a supervisor within the meaning of the
Act. I. W. Tubbs, Respondent's manager of warehousing, testified that he was not ; Wade's
personnel records identify him as a "warehouseman" ; there Is no claim or evidence that
he had authority to hire or fire or to recommend such action and neither Wade, himself,
nor his coworkers regarded him as supervisor. The work to be done by the warehouse
crew was usually fixed by sets of written orders received from the shipping office and,
even In Stanley's absence, there is no evidence that Wade "responsibly" directed the
small crew. Even on July 1, when both Stanley and Tubbs were in the hospital and the
gap in supervision reached from the crew to Lamont, it must be noted that there were,
presumably, supervisors in the other three departments and, in any event; Respondent's
entire force at the Evansville plant consisted of 22 nonsupervisory employees. (Compare:
The Bama Company, 145 NLRB 1141.) I find that Wade was, at most, a leadman and
that he was not a supervisor within the meaning of the Act.
4 As noted in the preceding footnote, Stanley and Tubbs, who represented the two levels
of supervision between the warehouse crew and Lamont, Respondent's top official at
Evansville, were both in the hospital.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two unloaded , plus two trailers unloaded and loaded back . Wade said, "We
can't do that." Lamont said, "What do you mean, you can't do it?" Wade
said, "Well, we just can't do that. It is asking too much." Lamont said, "Well,
I know you can't do it if you go into it with the attitude that you can't do it
before you start." Wade said, "Well, I have worked here long enough with
these boys to know what we can do in a day and what we can't do, and it's
just asking too much. Do you think you can do it any better?" Lamont said,
"By God, I don't have to do it any better." Wade said, "By God, I don't
either. I am doing the best I can." Lamont said, "Don't get smart with me.
You can punch your card and go home." Wade then left after getting paid.
Both Lamont and Wade, in their testimony, conceded that the conversation became
heated and that several "damns" flew in both directions.
Upon leaving Respondent's plant, Wade went to the hospital where Stanley was,
returned the keys to the warehouse, and told Stanley what had happened. Stanley
promised to "talk to" Lamont and suggested that Wade visit TLibbs. That after-
noon Wade saw Tubbs at another hospital: Tubbs said he had heard Lamont's side
of the story and wanted to hear Wade's. According to Wade's testimony, when he
had finished telling his story, Tubbs said that he knew that Lamont and Wade did
not get along very well but that "if you want your job 'back, you come out there
Monday . . . and you can have it."
C. Respondent's refusal to reinstate Wade
The following Monday, July 8, Wade came to Respondent's plant about starting
time-8 a.m. At.'9:30 Stanley told Wade that he, Tubbs, and Lamont had just had
a ,conference concerning Wade's reinstatement. Stanley said that he had told La-
mont he would like to take Wade back, that Tubbs had pointed'out that he had not
been present the previous Monday and said it was entirely up to Lamont, and that
Lamont said he wanted to think about it and would let Stanley.know his decision
later in the day.5
That afternoon Lamont told Stanley that he had thought about the matter and
had 'decided to "leave well enough alone" and not rehire Wade. Stanley conveyed
this message to Wade.
D. Discussion and concluding findings
As shown above, Wade's account of the clash which preceded his discharge was
couched practically in the words used by the participants and it was substantially
corroborated by Lamont. It contains no indication of union animus on Lamont's
part and, on the basis of the incident alone, appears to be a discharge for cause.
The General Counsel, however, in support of his contention that the apparent in-
subordination was merely a pretext to cover Wade's discharge for protected ac-
tivities cites: (1) the admissions of Supervisors Stanley and Tubbs to that effect;
(2) Tubbs' promise to Wade that he could have his job back; and (3) the insufficiency
of Wade's conduct to constitute insubordination meriting discharge.
1. The "admissions" by Respondent's supervisors
Dewey Boylls, who had worked with Wade in the warehouse, testified that about
a month after Wade's discharge he was discussing it with Stanley, the regular super-
visor of the warehouse crew; that he said that he believed Wade was fired "because
of the union"; and that Stanley said "He thought he was, too." The weight of this
testimony is negligible : Stanley was not present when the firing occurred and there
is no evidence that he had acquired any factual information to serve as a basis for
this unsupported conclusion.6
Ronald Brown and Charles Raven, also former coworkers of Wade, testified-
as did Boylls-that in a meeting with Tubbs about a month ,after Wade's discharge,
5 This account is based upon Wade's testimony of what Stanley reported to him.
Lamont's testimony covering this meeting is generally in agreement with it.
6 While Stanley's supervisory status, under appropriate circumstances, -might make him
an agent of Respondent or render Respondent liable for his acts on the basis of respondeat
superior, it cannot elevate his passing remark into an admission binding on his employer.
Cf. Custom Underwear Manufacturing Company, 108 NLRB 117, 120, where the company
official involved was a partner and the plant manager and his admission supported other
proof of a factual element of the case, i .e., Respondent ' s reason for discharging an
employee.
ANDERSON BOX COMPANY, INC. 653
Boylls asked Tubbs whether Wade was discharged "on account of the union" and
that Tubbs, without answering the question, changed the subject. This testimony
is obviously without substance for the function assigned to it.
In both of the foregoing incidents I have accepted the testimony of the General
Counsel's witnesses . Accordingly, the failure of Tubbs to contradict the Brown-
Raven-Boylls account and the failure of Stanley to testify at all-factors that would
be relevant only in reaching a conclusion as to whether the dialogues occurred as
claimed-can lend no weight to testimony which, even if accepted, is insufficient
for the purpose offered.
2. Tubbs' promise to reinstate Wade
Wade's testimony that Tubbs, on July 1, promised to reinstate him the following
Monday, was not contradicted by Tubbs and I find that the promise was made. This
finding, however, is a . far cry from a conclusion that Respondent's failure to rein-
state Wade constituted discrimination violative of Section 8(a)(3) of the Act. As
Wade knew-and as the General Counsel recognizes-Tubbs was a subordinate
,of Lamont and any promise by Tubbs would be subject to a possible veto by
Lamont. Moreover, the clash which led to Wade's discharge involved Lamont per-
sonally and both Wade and Tubbs must have realized that Lamont would have
definite views of his own on the matter. Accordingly, the mere failure or inability
.of Tubbs to perform his promise to- reinstate Wade cannot, by itself, justify an in-
ference that Lamont must have had an illegal motive in blocking Wade's reinstate-
ment. Appropriately, therefore, the argument of • the General Counsel is that
Lamont's refusal to reinstate Wade was based upon Wade's protected activities.
The evidence supporting this argument consists of: (a) Wade's having acted as the
Union's observer at the Board election in December 1962 and as the representative
of the warehousemen in subsequent dealings with Respondent , and (b ) Wade's
testimony that, in March 1963, Stanley told him that Lamont had said that, since
the Union had lost "There were going to be some new faces around there." 7
In my opinion, neither of these items constitutes substantial evidence: Wade's
service as the Union's observer had occurred more than 6 months earlier, the
Union had lost, and, except for the remark attributed to Lamont by Stanley, there
was no evidence that Lamont harbored any resentment against the Union's ad-
herents. Stanley's account of Lamont's remark concerning "new faces"-accepted
at its full value-does not mention Wade, is so vague, and occurred so long before
July 8 that I find it without substance as proof on this point.
As further evidence that Lamont's refusal to reinstate Wade was based upon union
animus, the General Counsel offered various bits of indirect testimony to establish
that Lamont had had a telephone discussion about Wade with John Holton, presi-
dent of Respondent, and that Holton had left the decision up to Lamont because
Lamont knew Wade's "dealings with the Union." Assuming the conversation to
have been established as set forth by the General Counsel, it fails to show union
animus. As Respondent's counsel points out in his brief, Holton's statement is
equivocal: The reference to Wade's "dealings with the Union" might as well have
been a reminder to Lamont that, in reaching a decision with respect to Wade, he
should keep in mind the possibility that, if not reinstated, Wade might file a charge
of unlawful discrimination under the Act.
Without substance, also, as proof of discrimination against Wade is Respondent's
refusal to reinstate him is the testimony concerning the discharge and reinstate-
ment of other employees. In neither of the instances mentioned was there any
-evidence of protected activity. In each of the cases the employee was discharged
for a specific reason and, after making amends, succeeded in obtaining reinstate-
ment. Analysis of this argument, therefore, reduces it to a contention that the'
disparity of treatment was due to Wade's protected activities. This element, as
above noted, has not been established on this record.
3. The insufficiency of Wade's conduct to justify his discharge
The General Counsel's statement of facts in his brief concerning the "impossible
nature of Lamont's demands" is not followed by a legal argument based thereon.
7It is not certain, from Wade's testimony, whether it was Lamont who referred to the
Union's loss of the election before making his prediction or whether Stanley added that
element. For the purpose of this discussion it is assumed that the reference to the
union's defeat was Lamont's.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The "pretext" argument was separately made and has been discussed above; no
citation of authority is required for the proposition that an employer may discharge
an employee for a good reason, a poor reason, or no reason at all, so long as the
terms of the Act are not violated. Accordingly, further discussion of this subject
seems unnecessary.
Summing up, it appears that Wade and Lamont clashed over a matter involving
the operation of Respondent's business and that Lamont discharged Wade. It also
appears that, despite the efforts of Tubbs and Stanley, Lamont chose, for reasons
of his own not shown to be illegal under the Act, not to reinstate Wade. The record
contains, in my opinion, no substantial evidence that union animus was a factor in
either of these decisions by Lamont and I cannot find that Respondent's discharge
of Wade or its failure to reinstate him constituted discrimination violative of Section
8(a)(3) or (1) of the Act. Accordingly, I shall recommend dismissal of the
complaint.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material to the issues in this
proceeding, an employer within the meaning of Section 2(2) of the Act, engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The evidence fails to establish that Respondent discharged or refused to rein-
state Earnest Wade for union or concerted activities in violation of Section 8(a) (3)
and (1 ) of the Act.
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.
The Horn & Hardart Company and Bakery and Confectionery
Workers' International Union of America , Local 3, Petitioner.
Case No. 2-RC-13147. June 24, 1964
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) (1) (A) of the
National Labor Relations Act, a hearing was held before Hearing
Officer Haywood E. Banks. 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 [Chairman McCulloch and Members Leedom and
Brown].
Upon the entire record in this case, the Board finds:,
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert jurisdic-
tion herein.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
147 NLRB No. 88.