Atlantic Co.

National Labor Relations Board - Board Decisions

Jul 30, 1947

74 N.L.R.B. 723 (N.L.R.B. 1947)

In the Matter of ATLANTIC COMPANY and CONGRESS Or INDUSTRIAL
ORGANIZATION S
Case No. 10-C-193.3.-Decided July 30, 1947
DECISION
AND
ORDER
STATEMENT Oil THE CASE
On March 26, 1947, Trial Examiner Martin S. Bennett issued his
intermediate Report in the above-entitled proceeding, finding that
the-respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
I ermediate Report attached hereto. Thereafter, on June 26, 1947, the
Atlantic Company, the Congress of Industrial Organizations, and
William M. Pate, Attorney, National Labor Relations Board, entered
into a stipulation in settlement of the case, subject to approval of the
Board, providing for the adoption of the findings of fact and conclu-
sions of law contained in the Intermediate Report, and the issuance
of an appropriate order by the Board. The parties waived all further
and other procedure before the Board to which they may be entitled
under the Act or the Rules and Regulations of the Board.
The aforesaid stipulation is hereby approved and made a part of
the record herein, and continued before the Board for the entry of a
Decision and Order pursuant to the provisions of the aforesaid stip-
i elation.
Upon the basis of the aforesaid stipulation and the entire record in
the case, the Board hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the basis of the Intermediate Report, the stipulation, and
the entire record in the case, and pursuant to Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
74 N. L R B, No. 128
723
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby orders that respondent, Atlantic Company, Atlanta, Georgia,
and its officers, agents, successors, and assigns shall :
1. Cease-and desist from :
(a) Discouraging membership in Congress of Industrial Organi-
zations, or in any other labor organization of its employees, by dis-
criminatorily discharging any of its employees, or by discriminating
in any other manner in regard to their hire or tenure of employment
or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Congress of Industrial Organiza-
tions, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned
finds will effectuate the policies of the Act:
(a) Offer to the employees whose names are set forth in Appendix
A'of this report immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
or other rights and privileges;
(b) Make whole those employees whose names appear in Appendix
A of this report, by payment to each of them of a sum of money
computed as set forth in the section of this report entitled "The
remedy" ;
(c) Post at each of the 12 ice plants in its Atlanta Division copies
of the notice attached hereto and marked Appendix A. Copies of
said notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by respondent's representative,
be posted by respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by respondent to insure that
said notices are not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Tenth Region within ten
(10) days from the date of receipt of this Order what steps respond-
ent has taken to comply herewith.
IT is FURTHER ORDERED that the complaint be dismissed insofar
as it alleges that respondent has engaged in unfair labor practices by
discriminating with regard to the hire and tenure of employment of
Robert L. Maddox, Willie Brown, Robert Norton, Oscar Dobbins, and
Phillip Dooley.
ATLANTIC COMPANY
APPENDIX A
NOTICE To ALL ED[PLOYEE6
725
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organiza-
tion, to form labor organizations , to join or assist Congress of
Industrial Organizations , or any other labor organization , to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL OFF ER to the employees earned below unniediate
Mid full reiils ( atenrent to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
George Burtz Ollin D. Myrick
Robert R. Jackson Eugene F. Guest
Van Watkins Linton W. Wilson
Allene Maddox Robert T. Pause
John Kimble Earl W. -Meeks
John Byrd H. E. Jordan
James C. Herndon Rebecca Flowers
E. E. Myrick Hardy Bell
All our employees are free to become or remain members of the
above-named union or any other labor organization . We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
ATLANTIC COMPANY,
Employer.
Dated- -------------------- By------------------------------
(Representativ e) (Title)
No,rE.-Any of the above -named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
April 26, 1946:
April 27, 1946:
April 29, 1946:
May 2, 1946
May 7, 1946.
May 9, 1946:
May 17,1946:
May 18,1946:
May 19,1946:
June 6,1946:
June 12, 1946:
James G. Herndon
E. E. Myrick
George Bartz
Robert R. Jackson
Allene Maddox
Van Watkins
John Byrd
John Kimble
Ollie D. Myrick
Eugene F. Guest
Rebecca Flowers
Linton W. Wilson
Robert W. Pause
Earl W. Meeks
Hardy Bell
H. E. Jordan
INTERMEDIATE REPORT
Mr William M Pate, for the Board
Swift, Pease, Davidson, Samson i Chopin an, by Mr W Eduard Swrnson, of
Columbus, Ga., Mr. A. Walton Nall, of Atlanta, Ga, and Mr Charles L. Henry,
of Atlanta, Ga., for respondent.
Messes John J Broianlee, Charles Gillman, and Robert R Jackson. of Atlanta,
Ga , for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on September 9, 1946; by Congress of
Industrial Organizations, herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Tenth Region
(Atlanta, Georgia), issued its coinp]amt dated September 9, 1946, against At-
lantic Company. Atlanta, Georgia, herein called respondent, alleging that re-
spondent had engaged in and was engaging in untair 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 amended charge, together with notice of hearing
thereon, were duly served upon respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged in substance that, respondent. (1) discharged 21 named em-
ployees,2 and refused to reinstate them because they joined the Union and en-
' The original charge was filed April 30, 1946
2 The complaint originally alleged discrimination with respect to the hire and tenure
of 23 named individuals. During the healing, the undersigned granted a motion by counsel
for the Board, without objection , to strike the name of Henry T Jackson as an alleged
discriminatory dischargee, and to dismiss the complaint without prejudice as to Fred P.
Feltham and Rufus Spencer In addition , the undersigned granted a motion by counsel
for the Board , over the objection of respondent , to add the name of H E Jordan as
ATLANTIC COMPANY 727
gaged in concerted activities, (2) from on about April 1, 1946, vilified the Union,
interrogated its employees concerning their union activities, and warned its
employees to refrain from becoming or remaining members of the Union, and
(3) by these acts and conduct interfeted with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act
On September 25. 1946, respondent filed its answer wherein it admitted the
allegations of the complaint with respect to the nature of its business, admitted
that the Union is a labor organization, and denied the commission of any unfair
labor practices. On the same date, respondent also filed a Motion for Bill of
Particulars, which was granted in pai t and denied in part on September 30,
1946, by Trial Examiner William R Ringer, duly designated by the Chief Trial
Examiner. Accordingly, on or about October 3, 1946, counsel for the Board
served a Bill of Particulars upon the parties, and subsequently, on the first day
of the hearing herein, stated further particulars requested by respondent upon
the record.
Pursuant to notice, a hearing was held at Atlanta, Georgia, from October 11,
1946, to October 24, 1946, before Martin S Bennett, the undersigned Trial Exam-
iner, duly designated by the Chief Trial Examinei The Board and respondent
were represented by counsel and the Union by its counsel and representative.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence hearing on the issues was afforded all parties.' During the
hearing, at the request of respondent, the undersigned, together with all the
parties, inspected the premises of one of the plants of respondent. At the close
of the hearing, the motion of counsel for the Board to conform the pleadings to
the proof was granted without objection. At the conclusion of the hearing,
counsel for respondent made a number of motions to dismiss various parts of the
complaint which were denied in part and upon which, in part, ruling was reserved
The latter motions are disposed of hereinafter A date was fixed for the filing of
allegedly discriminated against on June 12, 1946. The remaining 20 and the dates of their
alleged discharges follow
4-26-46 James G Herndon, Oscar Dobbins, Philip Dooley, E E Myrick
4-27-46 George Burtz, Robert R. Jackson, Allene Maddox, Van Watkins
4-29-46 John Byrd, John Kimble
5-1-46 0 D. Myrick
5-4-46 Robert Norton
5-7-46 Eugene F Guest
5-9-46 Rebecca Floweis
5-11-46 Willie Brown
5-12-46 Robert L Maddox.
5-17-46 Linton W Wilson
5-18-46 Robert T. Pause.
5-19-46 E W Meeks.
6-6-46 Hardy Bell.
3 As noted above, respondent objected to the amendment of the complaint adding H E
Jordan as an alleged discriminatory dischargee The motion to so amend was made by
counsel for the Board and granted by the undersigned after the Board rested its case and
during the presentation of respondent's case Jordan testified as a Board witness
during the presentation of its case-in-chief and was examined and cross-examined with
respect to his employment with respondent In addition , respondent examined its own
witnesses with respect to the circumstances of Jordan's employment with it and was
offered the opportunity by the undersigned of recalling any witnesses who had testified prior
to the amendment of the complaint In view of the above, the undersigned considers re-
spondent's objection herein to be without merit. See Consolidated Edison Co. v. N L R B ,
305 U. S 197, Wilson ,f Co. v. N. L. R. B., 123 F. (2d) 411 (C C. A. 8), affirming in this
iespect 26 N. L R B. 273; and Matter of Ford Motor Co., 57 N L . K. B 1814 See
also Section 263 13, Rules and Regulations , Series 4, effective September 11, 1946 -
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
briefs and/or proposed findings and conclusions with Trial Examiner . Thereafter,
briefs were submitted by counsel for the Board and for respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Georgia corporation which maintains its principal offices at
Atlanta, Georgia
It operates approximately 70 plants in the State of Georgia and in various other
States of the United States, where it is engaged in the manufacture, sale, and
distribution of ice, coal, and beer, and in the cold storage of food products. At
all times material to this proceeding, respondent has maintained as an integral
part of its over-all business enterprise in Atlanta Division composed of approxi-
mately 14 plants where, as throughout the remainder of its various plants, it is
engaged in the manufacture, sale, and distribution of ice. coal, and beer, and the
cold storage of food ' All of the plants in the Atlanta Division are under the direct
control and supeiiision of a Division Manager The instant proceeding is con-
cerned, however, with only 7 of the plants of the Atlanta Division.'
In the course and conduct of its business operations in the Atlanta Division,
during the calendar year 1945, respondent pin chased coal valued at approxi-
mately $400,000, gasoline and oil valued at approximately $51.000, and ammonia
valued at approximately $112,000, all of which was shipped to plants in the Atlanta
Division from points outside the State of Georgia During the same period,
respondent's sales of ice in the Atlanta Division were valued at approximately
$1,500,000, of which approximately 27 percent was shipped outside the State of
Georgia, and sales of coal were valued at approximately $500,000, all of which was
sold within the State of Georgia.
During the year 1945, respondent received income for the storage of food iii its
Atlanta Division amounting to approximately $400,000, a substantial percentage
of which was derived from the storage of food received fioin points outside the
State of Georgia. Respondent's annual sales of beer manufactured in the
Atlanta Division are valued at approximately $3,590,000, of which amount
approximately 23 percent represents shipments outside the State of Georgia."
Respondent contends that it is not engaged in interstate commerce at two of
the plants Involved in the instant proceeding, viz. Nelson and Hapeville. The
record indicates that ice is manufactured during part of theyear but sold
throughout the entire year at the Hapeville and Nelson plants Ice sales at the
Nelson plant are made to peddlers and to the public. During the winter months,
almost all of the ice sold at Nelson is manufactured at other plants in the
Atlanta Division whose operations in interstate commerce respondent does not
challenge. In addition, this ice is transported to the Nelson plant in trucks
s Some of these plants are not engaged in the sale of coal and/or do not have cold storage
facilities
These plants are :
North Avenue Central Inman Yards
West End Hapeville
Nelson Brookwood
Beer is not manufactured of sold at any of the seven plants involved in the instant
proceeding
ATLANTIC COMPANY 729
assigned to these other plants Furthermore, the record shows that employees
are transferred among all the plants in the Atlanta Division, that the duties of
some employees are split up when necessary among several plants, including
the Nelson plant, and that employees are transferred from plants in the Atlanta
Division to others operated by respondent in the State of Georgia and in other
States of the United States
In view of the above, respondent's contention herein is rejected and the under-
signed finds that respondent in all of its operations in the Atlanta Division is
engaged in commerce within the meaning of the Act z
H. THE ORGANIZATION INVOLkEi
Congress of industrial Organizations is a labor organization admitting to
membership employees of respondent
III THE UNFAIR LA13OR PRAM ICES
A Introduction
1. Itespondent's supervisory hierarchy
As heretoto•e set forth, respondent operates approximately 14 plants in and
about the city of Atlanta where it manufactures and sells ice and beer, distributes
coal, and maintains cold storage facilities for flood products.
Charles L. henry is assistant vice president and maintains an office at respond-
ent's headquarters iii Atlanta The plants of the Atlanta Division were under
the direct supervision of Division -Manager George IV. Bogman. until approxi-
mnately October 1, 1946, when, according to Henry, Bogman retired from re-
spondent' s enhplo^ >; Bogman's authority did not, however, extend to the brewery
and to the cold storage facilities contained in several of the plants which are
under the supervision of S. B. King.
There is a division of authority beneath Bogman Assistant Division Manager
James B lVem tma, maintains general supervision over the sales departments of
the ice manufacturing plants as well as the plant properties District Engineer
Albert D Lon,es is in charge of the operation of machinery in the ice-making
plants. Lowes has a day assistant, Hiram Guest, and a night assistant , Felton
ilfcsser. Guest and Messer have been in respondent's employ since approximately
1936 and 1931, respectively, and assist Lowes in the supervision of personnel
and operation of plants. Their positions are of equal rank, they make recom-
mendations to Lowes concerning the transfer and discharge of operators of
plants, and on occasion they hire employees
Each of the plants involved herein has a plant manager who has authority
over platform clerks and office and delivery personnel' Likewise, each plant
has an engineer or operator who is nn change of manufacturing equipment
'The Board has piesiously assumed 7unsdiction over another similar operation of re-
spondent . Mattel of Atlantic Company, 65 N. L. It B 1274 See N. L. R B. v. Virginia
Electric & Power Co . 115 F. (2d) 414 (C. C. A. 4), af'd on this point, 314 U. S. 469; N. L
R B. v Schmidt Baking Co., 122 F (2d) 162 (C. C A 4), and Matter of Ford Motor Coin-
pane, 64 N L R B 365
N Henry testified that Bogman was residing in Atlanta Although he plays a prominent
part in the event, which follosi, lie was not called as a witness in the hearing which
opened on Octobei 11 111s position is presently filled by A D Hopkins
"In some instances, two or more plants are placed under one plant manager.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The union organizational campaign 10
There is no evidence of organizational activity among respondent's employees
prior to the events set forth hereinafter. Robert R. Jackson, a route salesman
of ice at the North Avenue plant, became interested in organizing respondent's
employees and contacted State Director Gillman of the Union. They conferred
on or about April 10, 1946, and, on and after that date, Jackson communicated
with a number of employees of the various plants of the Atlanta Division. He
discussed the Union with some of the employees at North Avenue, found that
many of them were interested in a union, and arranged for a meeting on April
26, 1946. Jackson, Route Salesman George Burtz, and Truck-driver Robert
Norton passed the word around that a meeting would be held, and approximately
15 of the North Avenue workers attended the meeting as well as approximately
11 Inman Yards employees 11
Commencing April 26 and continuing through successive clays and weeks, a
number of discharges, alleged to be discriminatory, took place at various of
respondent's plants. These are set forth hereinafter
3. Respondent 's policy towards the Union
01
I-l. E Jordan was clay engineer at, the West End plant since 1331 and had
been in respondent's employ since 15)24, in addition to working for respondent
for a period of time during 1910-1911." Ten to twelve employees were engaged
in ice-manufacturing operations under his supervision, and he was personally
subject to the supervision of District Engineer Loaves
Jordan testified that on or about May 1, 1946, he was summoned to the office
of Division Manager Bogman. He reported there and presently Assistant Vice-
President Henry appeared Henry told Jordan that he, Jordan, had undoubtedly
heard of the union activity going on among respondent's employees. Jordan
admitted that lie had heard something about it, but not of any activity at the
West End plant. Henry- advised Jordan that respondent could not have the
Union in its organization and that "It's Communist stuff and it just don't-fit in.'
Fogman also stated that the Union did not fit in, and that respondent could not
have it. He concluded by instructing Jordan to discharge any men who signed
union cards or engaged in union activities.
Jordan further testified that shortly after this incident Bognniun and Henry
came to the West End plant on several occasions and inquired whether he had
heard anything concerning the Union. On one of these occasions, Henry asked
Jordan whether he had a man in the plant whom lie trusted and who could
investigate and ascertain the interest of the other employees in the Union
Jordan was reluctant to follow this suggestion and Henry replied that respondent
had to learn it sometime and that the present time was as good as any.
Henry's testimony was that he first heard of the union being active in the
Atlanta area between April 15 and May 1, 1946, when Lowes, Newman, or
Boginan, or all of them, informed hull that the Union was organizing or had
organized respondent's employees. He then instructed all three supervisors to
11 Findings herein are based upon the credible testimony of Robert R. Jackson
11 Gillman also conducted a meeting of Inman Yards employees sometime between April
10 and 26
12 As appears , hereinafter , Jordan, who is alleged to be a discriminatory dischargee, was
transferred to respondent ' s Hapeville plant for approximately the last 3 weeks of his
employment which terminated on or about June 12, 1946.
ATLANTIC COMPANY 731
maintain an attitude of neutrality towards the Union and to instruct lower
supervisors to do likewise According to Henry , all plant managers were sum-
moned to his office and instructed to say nothing for or against the Union. He
likewise instructed his underlings to pass the word along to pl a nt engineers
Henry admitted , however, that Jordan was summoned to Bogman 's office on
or about May 1 because it had been reported by Lowes or Bogman that Jordan
did not understand the above instructions concerning the proper attitude to the
Union Henry denied Jordan ' s version of the incident but admitted that he
questioned Jordan as to whether he had heard of organizational activity in
some or all of the plants of the Atlanta Division , informed ' him that respondent
was not opposed to the Union , and told him that respondent was interested in
what was going on as it anticipated a request for recognition . Henry confirmed
Jordan 's testimony that Jordan told him he had heard of union activities but not
at West Epd , and admitted that lie instructed Jordan to let huu know if lie
heard of any union activities at West End.
The question is one of credibility between Jordan and Henry. Not only was
the undersigned favorably impressed by Jordan who was a clear and forthright
witness, but, in addition to the partial coiroboration of Jordan by Henry, there
are later circumstances winch support Jordan ' s veision of the incident. On
or about May 20, Jordan , having heal d a rumor the prior evening that he was
to be discharged , and also having been informed that his entire crew had signed
union cards , discharged 4 eniplo^ees constituting all of his clew who were at
work that morning and told them that Bogman had ordered tire' discharge of
anyone signing cads." Jordan s Wither testimony concerning the events which
followed that moi ring is substantially supported by that of Newman and Lowes
who were present at the time. They agreed that Jordan , when asked by them why
lie had discharged three employees , replied that Henry and Bogman had in-
structed him to discharge any employee whom he sound to be engaged in
union activities 14
In the opinion of the undeisigned , it is difficult to ascertain why Jordan
would have made this statement to Lowes and Newmnan , if he had not in fact
been so instructed by Henry and Boginan This incident took place within
3 to 4 weeks after his conference with Bogui in and Henry , while Jordan was
still in respondent 's employ in it supervisory capacity, and he had no motive for
telling other than the truth at that tnne . 16 In addition , as noted above , Bogman,
although available in Atlanta, was not called upon to testify ." In view of the
above, the undersigned credits Jordan's testimony herein.
B. The discharges at the North Avenue plant"
Nine discharges at the North Avenue plant are alleged to be discriminatory
They commenced with 4 on April 27 and the last was on May 12.18 Counsel for
the Board contends that these discharges which occurred within so short a pei rod
of time and at a time when respondent ' s business operations were expanding for
13 Testimony of Jordan supported by that of Hardy Bell, one of the 4.
11 These employees were reinstated by respondent.
15 Jordan did not join the Union until on or about June 12.
10 According to Newman , Bognian denied that he had so instructed Jordan.
17 Upon the recoid as a whole , it appeais there were approximately 30 employees at the
North Avenue plant.
18 It will be recalled that the first union meeting for North Avenue emploi ees was scheduled
foi and he]d on the night of April 26
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the summer season, have a common explanation of discrimination In each ni-
stance, it is the contention of respondent that the individual employee was dis-
charged for cause or voluntarily resigned from respondent's employ 19
George Bus tz 20 who had been employed by respondent in 1941 for approximately
J months as a route salesman at North Avenue and had left voluntarily, was re-
hired by Plant Manager Dye on either April 5 or 7, 1946 He was assigned to
odd jobs by Dye and told that lie would be placed in regular employment if a place
were available. On April 19 or 20 be was assigned to a regular sales route and
was accompanied on his trips by Route Inspector Dial. Sometime between April
23 and 25, Burtz was considered, sufficiently familiar with the route and was
permitted to operate it alone.
Burtz, who attended the union meeting on the evening of April 26. addressed
the employees, and signed a union card, also had a conversation with Plant
Manager Dye that afternoon just after lie, Burtz, finished work for the day
As Burtz was leaving the plant, Dye called him over and stated, according to
Burtz, that despite the fact that respondent had not yet started its summer com-
mission policy for route salesman, he nevertheless would increase Burtz' salary
from $28 to $37.50 per week, effective the following payday and that Burtz' work
had been good.
In the conversation , the subject of the Union came up Dye asked Burtz if he
had heard anything about the Union" Burtz replied that he had heard of the
organizational campaign, but that lie was an A F. of L. member and had nothing
to do with the Union. Dye state(] that lie had been informed that Burtz was
`'riding around with a union man," which Burtz denied. As the conversation
progressed , Burtz stated that if the Union (lid succeed in its organizational cain-
paign, he would join, and that he planned to attend a meeting of the Union that
evening. Dye asked where the meeting would be held and who would attend
Burtz replied "practically everybody."
Dye, who admitted that the conversation took place, admitted in part and
denied in part Burtz' version of the episode He admitted that Burtz ' pay was
increased on that date, that he told Burtz of being informed that Burtz wa s riding
around with a union 'mail, and that Burtz told him he belonged to it union and
there was to be a union meeting that evening. In addition, Dye's interest in
ascertaining the extent of the union organizational campaign is evidenced by the
fact that sometime after April it but before May 5, Dye sought out Employee
Henry Blount, who was then ill at home, asked him if he belonged to the Union.
and said that the Union was not any good as it kept people to the "grindstone'' 22
The testimony of Burtz, a clear and forthright witness, is credited
The morning after the union meeting , April 27, Burtz went out on his route
as usual. Between 9 and 10 a. m., Dye and Assistant Division Manager Newman
drove out to Burtz while on his route and instructed him to return to the plant;
Burtz did so. At the plant, Dye informed Bartz that he had to let him go.
Burtz asked why and Dye replied that there had been complaints concerning
"Respondent does not contend that these discharges were part of a mass clean-out of
inefficient or unsatisfactory personnel.
20 Also appeal ing on the record as M. T. Burtz
21 On a prior occasion, approximately one week or 10 days before April 20, Burtz ques-
tioned Dye conceining his attitude toward unions and informed Dye that he had joined the
A F of I, in 1941 when foiinerly in respondent's employ
22 This finding is based upon the credible and uncontroverted testimony of Blount.
,Blount, although not recalling the exact date of this conversation, did recall that the
Atlanta street car strike was then on The record indicates elsewhere that this strike
terminated on or about May 9.
ATLANTIC COMPANY 733
him. Bartz asked from whom the complaints had come and Dye told him, as
Burtz testified, "Never mind, go around to the cashier and check in your money "
Burtz asked Newman for a separation not ice and Newman referred him to Dye.
Dye replied that he did not know how to fill one out and that the main office would
send it along."
It is respondent's contention that Burtz was dnschauged because lie nearly
ran over a child on the morning of April 27. Dye and Newman testified that a
report was made to them by Cashier Shepherd that Burtz had nearly run over a
child. According to Shepherd, a telephone call was received by his office assist-
ant that morning and he, Shepherd, relayed the information to Dye Newman
remembered positively that truck 708, Burtz' truck, was the one reported; Dye
claimed that the number of the truck was not given According to Dye, however,
the location of the incident was given and he recognized it to be on Bartz' route.
He contended that he then decided to discharge Burtz
Dye also alleged that there had been other complaints concerning Bartz
But Burtz had been alone on the route only since April 2:1 or 255 and some of the
complaints allegedly arising on his route antedated that pei iod, as Dye well
knew'. In addition, as recently as the afteinoon prior to his discharge, Dye in-
creased Burtz' salary, complimented rum on his work, and gave no indication
other than that Bartz was a valued employee. Although Bartz was admittedly
highly esteemed as an employee, no attempt was made to obtain his version of
the incident on the morning of April 27, assuring it took place as telephoned to
Shepherd's assistant, relayed by him to Shepherd, and relayed by the latter to
Dye, although Newman admitted that lie would have asked for Bartz' version of
the incident, had he been in Dye's place Despite that fact that lie was Dye's
superior, lie did not suggest at the tithe that Dye do so, or do so on his own
initiative.
It is also noteworthy that drivers employed by respondent who have no record
of accidents or of reckless driving for a period of one month are awarded a
monthly bonus of $2 Only about 75 percent of the drivers as an average receive
the bonus and no check is made by respondent to ascertain whether or not the
same driver regularly receives or fails to receive the bonus As Dye admitted,
deprivation of the bonus was the punishment for an "accident" or violation of
traffic laws. It is clear that traffic accidents were not viewed by respondent
as serious as Dye's testimony would appear to indicate.
This is further demonstrated by the fact that Cashier Shepherd, who acted in
Dye's place in his absence, knew that drivers drank during working hours and
bad on occasion found liquor on their trucks. Although he had called this to
Dye's attention, Dye failed to instruct him to take any measures with respect
thereto nor does the record show what steps, if any, were taken by anyone in
this regard. Nor, for that matter, did Shepherd recall any discharges for drinking
Further of note is the incident of Walter Ware. Ware, a driver at the plant, was
arrested after driving a company truck under the influence of liquor and wrecking
another car. This took place around Thanksgiving of 1945 Almost 2 weeks
thereafter, Dye procured his release from jail whereupon he resumed his em-
" In discharging Robert Jackson that morning, Dye and Newman similarly refused to
issue a separation notice, and Jackson obtained one only after writing to the State Depart-
anent of Labor In Jackson's case, Dye stated that lie would biing the notice to Jackson's
hone on the following day It is significant that Dye, who had been plant manager since'
1943, gave inconsistent reasons to Bintz and Jackson on the S ame morning Furthermore,
it is not credible that Dye (lid not know how to fill out this simple form.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment with respondent where lie was still employed on the date of Burtz'
discharge.``
It is clear from the above that traffic', iolations and accidents involving respond-
ent's drivers as well as drinking among them were not regarded too seriously by
respondent. Against this background, the abrupt discharge of Burtz during the
work day without prior notice for an alleged near accident stands out in con-
spicuous contrast?' His discharge at a time when, as Dye admitted, respondent
was in need of men for its busy summer season and was expanding its work
force," together with the salary increase and praise of his work on the previous
day and the failure to permit Burtz to give an explanation of this alleged traffic
incident show that the reason advanced by Dye for the discharge was not the
true reason. Respondent's failure to apprise itself of the facts related to Burtz'
alleged offense or to offer him an opportunity to detend himself, under all the
circumstances, and particularly where, as here, respondent's anti-union animus
is established by the record, impels the conclusion that respondent discriminated
with respect to the hire and tenure of Bartz' employment. It is further found
that by the interrogation of Burtz and Blount by Dye, respondent has interfered
with, restrained, and coerced its employees in violation of the Act.
Robert R. Jackson commenced his employment with respondent in February of
1942. He left voluntarily in April 1944, and returned to respondent's employ on
or about June 7, 1945, as a route salesnian at North Avenue As noted above, he
was responsible for the commencement of the union organizational campaign on
or about April 10, 1946, and discussed the union with employees of a number of
the plants in the Atlanta Division. He arranged the union meeting for the night
of April 26 at which he addressed the assemblage His interest in unions as
such was known to Dye who admitted that at the time of these events he knew
that Jackson received periodicals and correspondence at the plant from unions.
Dye was also informed by Driver Burtz, in their conversation on the afternoon of
April 26, that Jackson was a member of the Union.
On the morning after the union meeting, April 27, Jackson reported for work
as usual. He met Felton Messer, assistant to District Engineer Lowes; Messer
had acted as night operator at the plant the prior 'evening. Jackson solicited
Messer's membership for the Union and handed hint an application card Messer
took the card and stated that he would consider the matter and Jackson then
went out on his route 2'
This incident of Jackson's solicitation of Messer on the morning of April 27
is, in the opinion of the undersigned, important It will appear hereinafter that
in the case of a number of other discharges, the refusal of an employee to sign
an :nti-union petition circulated by Messer and Hiram Guest, Lowes' assistants,
or a statement to them of approval of the Union, was followed shortly by the
discharge of that employee.28 Several hours later, at approximately 9 a. in., Dye
24 This finding is based upon the testimony of Robert Jackson According to Jackson,
his information concerning the incident came from Dye himself and from other employees.
His testimony was uncontroverted and no effort was made to rebut it.
27 The discharge of Robert Jackson on the same morning under almost identical circum-
stances will be discussed hereinafter , as well as the discharge of 2 other employees at the
plant that morning
es Respondent ' s busy season started between April 1 and 15.
27 Findings herein are based upon the testimony of Jackson . Messer admitted seeing
Jackson that morning but denied that Jackson solicited his membership in the Union at that
time Not only was the undersigned favorably impressed by Jackson as a witness, but
Messer is hereinafter found to be an unreliable witness
28 In this respect the discharge of Jackson is of a pattern with the discharge of a number
of the engineers , discussed in Section C below.
ATLANTIC COMPANY 735
and NeRm.ia approached Jackson while lie was on his route and instructed him
to take his tinek back to the plant Jadaon did so and. at the plant, Dye re-
munded Jackson that he had previously spoken to Dye couceinmg a position
which had been oilered to him by another ice concern in the area He told Jack-
son that because of his age and condition, he thought that Jackson should accept
this other position and that he had to let Jackson go Jackson then stated that
lie was not accepting the other position and asked why lie was being discharged
Dye replied that there had been too many complaints concerning him 2' Both
Newman and Dye refused to give Jackson a separation notice, although Dye
promised to bring one to his home on the following day Dye did not do this but
Jackson finally obtained one by complaining to the State Department of Labor;
it stated as a reason for the discharge "services unsatisfactory."
Respondent contends that it discharged Jackson because (1) it received coin-
plaints that he was missing customers, (2) Jackson had been offered a new job,
(3) a replacement, Phelps, had been hired for Jackson's job, (4) Jackson had
said that lie would be unable to handle his position duung the summer season,
(5) Jackson neglected to shave or maintain a tidy appearance, and (6) Jackson
was discharged during the work day because respondent's pay roll was too high.
About 10 or 15 (lays prior to April 27, Jackson discussed with Dye an offer
of a job mail(-- to him by another concern. At that time, Dye hold him to bear
in mind that an official of that concei n had a ,nephew in school who would prob-
ably displace Jackson after graduation. Jackson assured Dye that he would
make no move without notice to Dye According to Dye, Jackson discussed this
position with him again on April 25 Dye told him to check into the matter, to
ascertain whet her the nn oik would be steady, and to see if lie would like the work.
He alleged that lie made this suggestion to Jackson for Jackson's protection
Jackson again told Dye that be would make no move without giving Dye due
notice.
Both Jackson and Dye testified that the latter had advised Jackson to exercise
caution before taking the job and, in fact, Dye attempted to discourage him from
accepting it Were Dye actually interested, as he contended, nn giving Jackson
an opportunity to better himself, he would have given hum all opportunity to
accept another position and would not have discharged him and labelled his
services as unsatisfactory. Furthermore, even as late as April 25, 2 days prior
to the discharge, Dye told Jackson to be certain that the job would be permanent.
He made no statement which even intimated that Jackson's employment with
i espondent was anything but permanent. It is hence obvious that as of April 25,
Dye considered Jackson a permanent employee whom he desired to retain in
i espondent's employ and whom he cautioned against leaving respondent's employ
for a position which might prove temporary. Thus, Dye's conduct and statements
on April 25 show that as of that date, despite the offer to Jackson of other em-
ployment, or despite any other reason. Jackson was a desirable employee.
Likewise , Jackson's physical condition did not cause his discharge. Dye knew
from the time that Jackson first commenced his employment with respondent
that he was a disabled veteran. He admitted that he had never seen anything
which indicated Jackson's inability to handle the job. In addition, as of April
25, as shown above, Jackson's physical condition was not such as to merit
discharge.
SU It will be recalled that George Bartz was discharged that morning by Dye and Newman
under identical cirduinstances. Apparently, Jackson's discharge preceded that of Burtz by
about ao minutes
755420-48-vol 74-4S
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The hiring of Employee Phelps, allegedly to take Jackson' s job, is not sup-
ported by the record. Dye hired extra men each year to take care of the in-
creased summer business, a 33 percent increase On April 27, there were approxi-
mately 12 routes, the usual number in winter, which were in the process of be-
ing expanded to 17, the'usual summer total. Thus, the hiring of Phelps does
not, per se, afford a basis for Jackson's discharge. Dye's contention to this
effect is further rebutted by his testimony that although he originally intended
to permit Jackson to work the entire clay of April 27, he changed his mind be-
cause Newman instructed Jilin to let Jackson get a better job if lie could. Not
only is this inconsistent with the theory that Jackson was let go because Phelps
replaced him, but it is also incompatible with the reason "services unsatisfac-
tory" placed on his separation notice 3° And, as noted above, it is clear that
respondent was in need of new drivers at the time.
Dye further attempted to explain Jackson's abrupt discharge during the morn-
ing of April 27 on the theory that Newman instructed him to reduce his pay roll.
Because of this instruction, he allegedly discharged Jackson during the morning
while on his route rather than wait for him to finish the route in the afternoon
Dye admitted however that both Phelps and Jackson were paid for the entire day.
Hence the discharge of Jackson in the morning did not, as contended by Dye,
reduce the pay roll for the day 31
As another reason for Jackson's discharge, Dye alleged that complaints were
received from customers on Jackson's route that lie had neglected to call upon
them. He admitted, however, that these complaints dated 5 to 7 months prior
to the dischai ge. He testified in different parts of the record, that he slid not
decide to discharge Jackson because of,the complaints, that they were part of
the reason, and that they were the reason. According to Jackson, the call sheet
upon which complaints were recorded listed him no more often than the other
drivers, complaints concerning him were no more numerous just prior to his dis-
charge than previously, and neither Dye nor former Cashier Shepard complained
to him within the last month of his employment Jackson's testimony is sup-
ported by that of Shepard, who testified for respondent According to Shepard,
he received complaints on drivers every clay and Jackson was like all the rest of
them, missing some all the time he worked." He recalled but 2 drivers of the
12 to 17 in respondent's employ with respect to whom he had never received
complaints and added that a driver was not retained very long if many complaints
were received 32 Concerning these two, Fleming and Benton, lie conceded that
calls had been received concerning Fleming from customers who complained that
he had skipped them, and also that he received an average of 2 complaints a week
concerning Benton It is obvious that complaints from customers are a regular
occurrence, and, in the opinion of the undersigned, this reason assigned for the
discharge is not supported by the record.
The testimony of Assistant Division .Manager Newman was offered in corrob-
oration of that of Dye. Newman testified that he was told by Dye on April 27
that the latter did not want Jackson to lose the opportunity for another position
and that be, Dye, therefore decided to discharge Prim. Their actions on that
33 The record does not show that when Dye spoke to Jackson on April 25 and urged him
to be careful in clioosnig the other position , lie made mention of Phelps, although Phelps
was already in respondent's employ Dye alleged that accoidnig to his custom, lie would
not have placed a man on Jackson's route without telling hint
A portion of Jackson's route was apparently assigned to Phelps that day.
32 It will he recalled that Jackson worked for respondent for approximately 26 months
from 1942 to 1944 and since June 7, 1945.
ATLANTIC COMPANY 737
morning, however, were not those of an employer attempting to assist an em-
ployee to obtain other employment The abruptness of Jackson's discharge with-
out warning, while on his route, and the separation notice labelled "services un-
satisfactory," are by no stretch of the imagination the acts of a thoughtful and
solicitous employer but rather the reflection of animosity.
Dye also alleged that lie received complaints concerning Jackson's personal
1ppearance, that Jackson complained concerning the burden of his work, and that
Jackson had difficulties with Cashier Shepherd 4 days prior to April 27 Assum-
ing that these contentions were supported by the record, they were obviously
of no significance to Dye on April 25, 2 days prior to the discharge, in view of his
urging Jackson then not to abandon his permanent position with respondent for
a temporary one with another company
No reasons are advanced for Jackson's discharge which, if they existed at all,
(lid not exist for a substantial period of time before April 27. All arose prior to
April 25 and none was considered cause for Jackson's discharge on that date,
when an attempt was made to dissuade him from leaving respondent. It is ob-
vious that something took place between April 25 and the morning of April 27
which made Jackson an undesirable employee. Dye admittedly had learned on
the evening of April 26 of Jackson's interest in the Union, and Jackson had
revealed his pro-union attitude to Messer the morning of April 27. The only
logical inference, in view of the tuning and the drastic change of attitude toward
.iackson is that it decision was reached after April 25 to discharge Jackson foi
his union activities. The undersigned finds that respondent has discriminated
with respect to the hire and tenure of Jackson's employment.
Van Watkins and Allene Maddox were a team of 2 in the ice crushing room
at North Avenue. Their duties were to operate an ice crusher which crushed
cakes of ice to various desired sizes for use in beverages and for refrigeration,
and to shovel this crushed ice into bags. At the time of their discharge on April 27,
Watkins had been in respondent's employ for over 4 years and Maddox for ap-
proximately 8 months. They both attended the union meeting of April 26, ad-
dressed the assembled employees, and signed union cards The following day,
shortly after noon, Dye and Marvin Harrell, then acting as plant engineer, entered
the crushing room Dye told them to get their money and that there had been
complaints concerning the ice because cigarette butts had been found in it. Wat-
kins and,Maddox each testified that Dye did all the talking and carried out the
discharges, and that Harrell never spoke to them.
Dye and Harrell testified that Harrell discharged the 2 employees and, ac-
cording to Dye, the decision to fire them was made by Harrell. They contended
that complaints had been received from customers that the ice was dirty, that ice
was therefore being returned by customers, and that these complaints had been
reported by them to the 2 employees. Watkins and Maddox denied that Harrell
spoke to them concerning dirty ice or complaints. Maddox denied that there had
been any complaints during the last 3 weeks of their employ but recalled that
Dye had complained on 2 occasions li/•_,, and 3 months prior to April 27. Accord-
ing to Watkins, Dye made 2 complaints during the last 2 weeks of their employ-
ment with respondent.
As noted above. Dye was found to be an unreliable witness. Harrell also
proved himself to be an unreliable witness by a misrepresentation concerning
a material circumstance of the case. When asked if Felton Messer or Hiram
Guest asked him to sign an anti-union petition, lie disclaimed knowledge of the
petition. Guest testified, however, that Harrell signed the petition at his re-
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quest, and W. A Couch, another witness for respondent, testified that he saw
Harrell's name on the petition. While there were slight discrepancies in the
testimony of Maddox and Watkins the undersigned finds them on the whole to
be-credible witnesses.
On the day prior to their discharge, April 26, Division Manager Bognian,
Dye's superior, complimented Maddox and Watkins on the condition of the
crushing room and Bogman gave Watkins 25 cents Watkins told Dye of the
compliment and Dye told him to keep up the good work and' that he was a
good worker.'
It will be noted that these 2 discharges followed the discharges of Burtz
and Jackson by but several hours and that Dve figured in all 4. It is further
of note that these 4 discharges, along with the other discharges in North
Avenue which follow, although affecting a large proportion of the employees
in a small plant, are not alleged by respondent to be a mass discharge for
efficiency reasons; a different reason is assigned in each instance The close
timing of all these discharges, and particularly the 4 already discussed. is
therefore, to say the least, unusual. The abrupt discharges of Maddox and
Watkins reflect a change in attitude as complete and sudden as that in the
cases of Bnrtz and Jackson. The conversations with Bogman and Dye on
April 26 show that no discharges were contemplated at that time, even assuming
the testimony of Dye and Harrell concerning their complaints to Watkins an.l
Maddox to be trues'' The only intervening circumstance is the union meeting
on the night of April 26 which the 2 dischargees attended and addressed These
discharges logically are a part and parcel of respondent's campaign arainsl
the Union in which Dye was an active participant ss
When, as here, the record establishes respondent's hostility to the organiza-
tional activities of its employees, the lack of a plausible explanation for the
discharges, together with the fact that these 2 along with Burtz and Jackson
constituted the 4 outstanding adherents of the Union who were eliminated
from a small plant within a few hours, impel the undersigned to find that their
discharges were discriminatory.
Jolm Kavnble and John Byrd followed the 4 discharges set forth above by 2
days and were discharged on Monday, April 29. On that date, Kimble and Byrd
were separately discharged after each had requested a loan
Kimble commenced his employment with respondent in 1928 as a truck driver
He left respondent's employ for approximately one year in 1938 and then
returned and worked continuously as an ice puller until the date of his discharge
He attended the union meeting on April 26 and signed a union card that night
On the morning of Monday, April 29, 1946, Kimble showed his gas and
electricity bills to District Engineer Lowes, who happened to be at North Ave-
nue that morning, and requested a loan against his wages so that he might be
able to pay these bills s6 Lowes replied that he would see Kimble "after [a]
while." When Kimble finished work that day,' at approximately 4 p in, lie
again noticed Lowes in the engine room and reminded him of his prior request
a' Based on the credible testimony of Watkins and Maddox. As heretofore noted , Bogman
was not called as a witness.
as In this event, it is noteworthy that in Ilarrell's version of effecting the discharges, lie
admitted that he made no inquiry as to their tenure of employment with respondent and
that lie paid no consideration to their past employment record
sr Dye's interrogation , supra, of Bartz and Blount concerning the Union will be recalled
When loins were granted, a voucher was issued by the supervisor and then cashed by
the cashier
ATLANTIC COMPANY 739
Lowey told bum to want for a few minutes and Kimble went outside and sat
down In a few minutes Bogman ind Newman drove up and Lowes entered
the iar and drove off with them Kimble then asked Harrell, the engineer,
if he could arrange for a loan H,irrell replied that he could not and Kimble
,,at down and chatted with 2 other employees. Shortly thereafter, Harrell
spoke to Kimble and stated, as Kimble testified, "John, here [is] your pay.
Mr Lowes said lie was going to have a headache all day " He then gave
Kimble a voucher for whatever wages were due him
lit/rd had been in respondent's employ for appiosnnately 41/z years, and at
the time of his discharge was eniploled as an icepuller He attended the union
meeting of April 26 and signed a card at that time; he also solicited the mem-
bership of another employee in the plant At approximately noon on April 29.
he asked.H:urell for .r loan of 3 dollars in oider to get a uniform back from
the laundry and to purchase some meat IIairoll replied that lie was new at
the plant, as lie was, and would have to see Lowes Harrell did not contact
Byrd during the day, and at approximately 5' 30, when Byrd finished work, he
again spoke to Harrell about the loan Harrell asked Byrd if he desired him
to telephone Lowes When Byrd assented, Harrell went into the office, and,
after a short time, returned He told Bid that Lowes "had this headache all
day-Here is all of your money." He then handed Byrd a voucher for his accumu-
lated wages
13airell admitted that both Kimble and Byrd requested loans that day, but
alleged that they hot Ii quit after lie refused to make the loans. He alleged
that Kimble requested and was refused it loan on 5 separate occasions that day,
and on the last. Kimble asked for his pad ; and also that Byrd requested and
was refused a loan on 2 separate or•casiois that day, and on the latter occasion
asked for his par He denied flout lie discharged either of the 2 men Cashier
Shepherd. called its it witne's for respondent, testified that he beard Kimble say
that he would quit if lie could not borrow money. He added, however, that
Etmble was not addressing anyone in particular at the time, and that Kimble
said this when lie brought in his voucher to be cashed, and tliat he said this
wwlien be came Ilirongh the door to the office and as he was followed by Harrell
It is obvious from the above that Kinmble's ieni,u•k, if made, was made after
be had been giien the voucher by Harrell Shepherd's testimony, hence, is not
oiconsistent with that of Iiinible
Both Dye and Harrell alleged that advances to employees were made on
only one day of the week-to sales employees on Friday, and to manufacturing
eniplovees on Snturd:u- B rid, Kimble, Engineer E E Myrick, and Robert Jack-
son each controverted this testimony and testified that advances were granted
on other days of the week and in some instances regularly so. In fact, according
to Myrick, Boginan would authorize advances after Mytick refused them In
addition, Cashier Shepherd who cashed vouchers signed by Dye and Harrell,
testified that the employees received loans any time after Wednesday and also
were allowed to exceed the $15 dollar limit alleged by Dye to be in force. He
admitted that Jackson had obtained loans every day of the week. He further
testified that he explained this rule to Harrell when the latter first came to
the plant, viz, that the help could obtain loans anytime after Wednesday. In
view of the above, the undersigned rejects the testimony of Harrell and credits
that of Kimble and Byrd
It is clear from the above that it it rule on loans did exist it was honored more
in the breach than In the observance And assuming that a rule did exist, neither
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lowes nor Harrell mentioned the rule when approached for a loan it is not
logical that 2 employees of such long tenure with respondent wo u ld he discharged
for engaging in what was apparently a customaiy practice in the plant , and at a
time when respondent was expanding its plant force It is also noteworthy, that
although respondent assigned as a reason for the discharge of Robert Jackson
the fact that he failed to keep his uniform clean , its attitude in the case of Byrd
who desired to retrieve a clean uniform from the laundry was quite different
It will be recalled that both Kimble and Byt d attended the union meeting of
April 26 and signed cards that evening . in the opinion of the undersigned, the
timing of these 2 discharges , and the absence of a convincing reason for them
fits into the general pattern of the 4 discharges 2 days earlier The rapidity of
these 6 discharges , their ver3 number , and the tenure of the employees involved.
impel the finding that attendance at the Union meeting of April 26 bore a causal
connection to the discharges . The undersigned finds that respondent has dis-
criminated with respect to the lure and tenure of employment of John Kimble
and John Byrd
Robert L Maddox, it brother of Allene Maddox , commenced his employment
with respondent in November 1 945 in the receiving Loom at Nmtb Avenue and
later worked as an ice pulle r He attended the union meeting on April 26 and
signed a union card at that time Sometime around May 2 or 3, Maddox had
trouble with his back and did not report for work " He was absent until May 12
when he was denied reinstatement
There is a conflict of testimony as to the events which transpired unmediately
prior to Maddox' absence from the plant Maddox testified that immediately
prior to his absence he notified Engineer Harrell that lie would be unable to
work because of his hack and was given the litter s permission to be absent.
He further testified that he complained of his back that day to his co-worker,
Walt Divers , and that he told Rivers lie had been given permission by Harrell to
be absent Both Harrell and Rives denied that these conversations took place.
A further conflict arises as to what transpired on May 11, when, according to
Maddox, he telephoned Harrell and was instructed to retuin to work on the
following day. Harrell contended , however, that lie did not have any conversation
with Maddox on or about that date because he left for his vacation on or about
May 6 and , on his return , was assigned to another - plant His testimony was
supported by that of W A Couch, who replaced Harrell , and who testified that lie
relieved Harrell approximately one week prior to Mal 12 The undersigned
credits the testimony of Harrell , winch, although elsewhere found unreliable, is
liefem supported by that of other witnesses.
It is undisputed that on Sunday , May 12, Maddox reported for work " and was
told by Couch that he could - not use hum that morning Walt Riveis and Couch
testified that Maddox' position was then filled On the following day, Maddox
returned to the plant in search of a separation notice, and being unable to locate
Plant Manager Dye, requested one from Cashier Shepherd Shepherd replied
that one would be sent to him, but, insofar as the record indicates , none was
sent Under all the cncunnstances , the undeisigned is of the opi n ion and finds
that the allegations of the complaint with respect to the discharge of Maddox
have not been sustained
J, It is not clear which %%as Maddox last (lay of work He iauously testified that it was
Saturday, April 27, that it was 4 days after Saturday, and that it might have been Saturday,
May 4 A consideration of the entire record leads the undersigned to the belief that his
last day of work was on or about May 2
3S'Maddo,' position was a 7-day job.
ATLANTIC COMPANY 741
Willie Brown coimniemced his eniplo^ment with respondent early in 1945 and.
at the time of his discharge on May 12, 1946,' was employed in the receiving room
at North Avenue He attended the union meeting oil the evening of April 26,
signed a union caid, and thereafter distributed a card to another employee in
I Ile plant.
On or about April 28, Plant Manager Dye entered the ieeeiving room and asked
Brown, "Are you in that too'?" Brown testified that lie understood Dye to be
referring to the Union and replied, "1 sure is " Dye made no further statement
and departed 4'
Saturday. May 11,41 Brown had a strong altercation with Ice Puller Walt Rivers
which, according to respondent, led to Brown's discharge Under the arrangement
at the ice plant, it was Rivers' duty to send ice down from the ice tank to the
receiving room below where Brown worked According to Brown, he accused
Rivers of sending ice (]own too iapidl% for Brown to handle it and of needlessly
burdening his work This condition continued and Brown became angry and
threatened to "beat up" Rivers. who has but one arm, with it pair of ice tongs.
Rivers complained to Engineer Conch and the hitter warned Brown against a
repetition of his conduct.
According to Couch, he thought the inattei over that eveninc and decided to
discharge Brown the following morning According to Brown, Couch at that time
gave him his lrl> and told hum to find other eniplo^ment . Blown asked for no
re,ison for his discharge at that time and Couch gave none
Brown engaged in a serious altercation with it co-worker shorty- before his
discharge and was iiiniediately warned by Conch. His discharge followed by
one day. Even if, as contended by counsel for the Board, this incident took place
on Friday, 2 days betoie the discharge, the undersigned is of the opinion and
finds, although the question is not flee from doubt, that the allegations of the
complaint with respect to the discharge of Brown have not been sustained'
Robert Norton worked mterniittently for respondent for S or 9 years as a
driver of 1 of 2 relay trucks at Nc,rth Avenue The duties of these drivers include
the hauling of large loads of ice to wholesale users. He attended the union
meeting of April 26 and signed a card, He also distributed _i cards among other
employees and collected 4 signed cards
Approximately 2 weeks after the meeting of April 26, Notion's employment
with respondent was terminated There is, however, a conflict of testimony as
to the circumstances thereof According to Norton, lie requested an advance of
$4 on his wages front Plant Manager Dye Dye indicated his approval but left
the plant without arnamging for the loan Norton then requested the advance
from Cashier Shepherd who replied, according to Norton. "The way you all have
been acting, you can get it all " Norton asked what Shepherd meant and the
latter replied "You know" Norton then stated, "It that's the way you feel
about it, you can give me all of it," and Shepherd then gave him all his wages
19 The complaint alleged that Blown was discharged on Man- 11
"'This finding is based upon the testimony of Brown Dye's denial is not credited
41 Brown testified both that this incident took place on Saturday and on Friday The
testimony of Engineer Conch places the incident on Saturday and the undersigned so finds.
4: Counsel for the Board furthei argues that evidence of respondent's discriminatory
motivation heiein may he adduced from Brown's testimony that when lie applied for rein-
statement dui ing the suinnier. Couch asked hint if lie would be willing to do ' the right thing"
it put to woik Brosn allegedly replied "according to what lie would be" and was told
that lie would lie advised in a few days he was not contacted by respondent, however.
Assuming that this incident took place as Brown testified, it does not, in the opinion-of the
undersigned, support the allegations of the complaint conceiving Brown
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Shepherd lie instructed Norton to deliver it load of ice to a cus-
tomer that morning and Noiton objected , alleging that lie was doing more than
his share of the work , and arguing that someone else could make the trip. When
told again to make the trip , Norton replied , according to Shepherd , "I just as
soon have my pay as to go," and Shepherd paid him off Shepherd testified that
Norton had been discharged 2 or 3 times previously for similar insubordination
Inasmuch as Sheplieid 's testimony is, in part , supported by that of Norton, and
as Norton admitted that lie had been in and out of respondent 's employ on
several occasions , the undersigned accepts the testimony of Shepherd and finds
that Norton quit his job and that the allegations of the complaint have not been
sustained with respect to him
C The discharges of the engiiieels
1. The group involved
The complaint further alleges the discharge of S of respondent' s engineers,
taking place on various dates between April 2(i, 1940 and June 12, 1946, to be dis-
criminatory Although some of the ice plants were not in lull operation prior
to June, the record discloses that by June 15, all of the 12 ice plants of the Atlanta
Division were in operation and that each employed 2 engineers , with another
relief man, making a total of 25 engineers in respondent's employ on or about
June 15'3 According to District Engineer Lowes. lie discharged 3 operators
between April 15 and June 15, other than those named ui the complaint. Although
lie further alleged that he had discharged other operators subsequent to Time 15,
1946, and up to the date of the instant hearing, lie did not know how many He
(lid name one who was dischaiged. but was unable to state whether the number
of engineers discharged) during that period was less than 5 or more than 15, or
give any details concerning this topic
.Upon a consuletation of the iaige nunrbei of engureers discharged while the
union campaign was geltnig ender way, the inability of Lowes to even remotely
fi the number of those disch.nged ni a more recent comparable period despite
his precise recollection and testnnon^ concerning the cause for termination of
each of the S discharges discussed hcicia." the smallness of the group involved
and Lowes' admitted alnect contact with theiir, Lowes' admission that lie learned
in April of the union campaign, and upon a consideration of all his testimony and
his demeanor as a witness, :he uuderyrgned concludes that not only was the
number of discharges dining the union campaign disproportionate, but also that
Lowes was unwilling to highlight tills large number by revealing the normal
amount of turn-over in the Atlanta Division,
2. The anti-union petition circulated among the engineers
It has previously been found, in the discussion of respondent's supervisory
hleraichy, that Hiram Guest" and Felton Messer are two long-term employees
of respondent who, at all times material herein, were assistants to District Engi-
43
Thus, the dlischaiges between April 15 and June 15 loom even larger percentage-wise
14 As will appear hereinafter, respondent has assigned a different reason, involving
misfeasance of nonfeasance of duty in connection with the teinunation of each employee
Nor are the discharges alleged by respondent to be part of a mass cleanout of inefficient or
unsatisfactory personnel.
41 Not to be confused with his brother, Eugene F. Guest , whose discharge is discussed
hereinafter
ATLANTIC COMPANY 743
neer-Lower and whose duties were to assist Lowes in his supervision,of the
various lildnts by inspecting them while in operation, checking personnel, hiring
employees, and making recommendations concerning the transfer and discharge
of personnel. Likewise, it was the admitted duty and custom of both to report
to Lowes anything out of the ordinary they observed in the various plants.
Guest testified that he learned shortly after mid-April of the union organization
campaign when he was informed that cards were being distributed and that the
union adherents intended to get rid of him when they acquired a majority in the
plant. He then decided on his own initiative, on the following day, to ascertain
just what the sentiment concerning the Union was among the various engineers in
the hope that a majority would be opposed to it and that he would thus not have
to fear being ousted from the plant. He prepared several copies of a petition
stating that the signer did not desire a union to represent him and signed it him-
self. He exhibited the petition to Felton Messer who stated that he wanted to
sign it and did so. Messer also agreed to circulate a copy of the petition among
some of the engineers at Guest's request. As Guest stated, he wanted to know
"how many will sign this and how many won't."
Each circulated a copy of the petition among the plants of the Atlanta Division,
and, according to Guest, after 2 days signatures were obtained from a majority of
the engineers in the Atlanta Division 40 He then decided that his position was
safe and alleged that he destroyed the petitions without turning them over or
communicating the results thereof to Lowes or any of his superiors.
Counsel for the Board contends that the testimony of Lowes, which has been
found unreliable by the undersigned, as well as that of Messer and Guest, is not
reliable. As will be developed later, at least 7 or 8 employees whose discharges
are alleged herein to be discriminatory either refused to sign the petition or in-
dicated their pro-union attitude to Messer and Guest: In addition, although
Guest was able to recall the names of only 10 of the engineers who signed the
petition, the record reveals that each of them was at the date of the instant hear-
ing still in respondent's employ 91 It is further contended, and the undersigned
finds, that an inspection of the petition would reveal the identity of the pro-union
group because of the absence of their names thereon. It is thus urged that the
only common denominator among the 8 dischargees is their union activity and that
this must, therefore, have motivated respondent in effecting the discharges
It is the position of respondent that the termination or discharge of each of
the eight herein alleged to have been discriminated against was motivated by a
good and sufficient reason wholly unrelated to the affected employees' union
membership or activity. The undersigned will accordingly consider below the
explanations assigned by respondent in the case of each individual complainant
3 The discharges
James C Hel iz,don commenced his employment with respondent in June 1943
and was promoted to engineer approxnnately :;i/, months later He was assigned
to the Nelson Street plant in August or September of 1944, and was employed
there at the time of his discharge on April 26, 1946 During the 1945 season, at
Nelson Street, his production rate ii as high enough to earn the plant employees
4e According to Guest a majority of the 30 to 35 engineers he claimed were in respondent's
employ signed the petition However, as Loaves testified, the undeisigned finds that there
were actually approximately 25 in the group It would thus appear, on the basis of Guest's
testim ony, that almost all if not all but the S whose discharges are herein discussed signed
the petition
17 It also appears that an electrician, Terrell, signed and is still in respondent's employ
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
't bonus on several occasions This plant , as did seveud others, closed its ioanu-
fiicturing operations during the winter nionths , but Herndon, unlike others who
were laid off, was retained in iespondent 's employ during such periods as it
repairman and performed various jobs at other plants A short time poor to his
discharge , Herndon signed a union card . He also distributed cards to three
named employees at the Nelson plant and collected signed cards back from
them.
On the afteinoon of Apiil 24 , Felton Messer clone to the Nelson plant and
informed Herndon that lie had come to talk to hint He asked Herndon point-
blank what he thought of the Union and whether anything had been said to hum
concerning it Herndon replied that he had been spoken to concerning the
Union, and that he had signed it union cud and turned it in Messer pursued
the subject and asked Herndon it he thought lie hall done the right thing by
signing up for the Union : Herndon replied that lie thought lie had. Messei
continued and asked whether Herndon had distributed cards to any of the
other employees and if they had signed up . Herndon admitted that he had
passed out cards to the other employees and had asked them to sign cards if they
desired . Messer then asked whether Herndon would return the cal ds to the
employees involved it ' they desired them and Herndon stated that lie would
At that moment Willie Smith. an ice pullet and one of those tioni whom Herndon
had obtained a signed laid. walked over Messer asked Smith if he wanted
his union card back and tiinith stated that lie did Herndon then asked Smith
to fetch the cards of the other two einploN ees who had signed , Greer and Flowers,"
which Smith did Herndon returned the cards to the three employees and they
destroyed them on the spot in Messer's presence. Messer i enlained at the plant
that afternoon for several hours and discussed the Union with Herndon for al-
most the entire time." *
On April 26 , according to Herndon , Lopes came ont to the plant Herndon
went over to him and staled that lie desned to discuss it personal mutter with
him. Lowes replied that he would discuss the matter with him in a Few minutes
and went over the plant He retui ned in a few minutes and then told Herndon
that his work was uns,itisfactoty because of too much broken and as late ice,'
and that lie was being let gu Lori es testified that lie came to the pliant on April
26, saw Herndon outside in front of the pliant, reminded Herndon that he had
been previously warned igiinnst this practice . and dischaiged him The under-
signed credits Herndon s testimony'"
According to Herndon , this conditions of white ice and of broken ice had ex-
isted since lie returned to Nelson Street early in 1946 , after the winter shut-
clown. He had been unable to discover the causes thereot and had discussed the
matter on several occasions with Loaves and McGee, who managed the West End
plant and also supervised sales at Nelson Sti eet. Neither of the two gave Hern-
11 The case of Flowers who was discharged on May 9 is discussed hereinafter.
"'Findings herein are based upon the clear and torthnglit testimony of Herndon Al-
though Messer flatly denied that he had ever discussed the Union with Herndon, lie was ,t
vague and evasive witness, and, in the undersigned s opinion, unreliable In addition, the
testimony of Herndon as to this incident is supported by that of Floweis Likewise,
according to the credible testimony of E F Guest, Messer told him on the day of Herndon's
discharge of how the cards were destroyed Smith and Gi eer were not called as witnesses
60 Cakes of ice which (lack while being handled at the ice plant wei e referred to as
broken ice white ice is ice which lids not tiozeu to the usual color of ice because of the
failure of air to properly circulate through it while the freezing process is on.
61 Herndon was it convincing witness and favorably impressed the undersigned Lowes
has pieviously been found evasive and his testimony is elsewhere, as here, rejected
ATLANTIC COMPANY 745
(ion any advice on the situation or took any steps in connection with, and Lowes
merely asked Herndon what was being done to prevent it. The plant had also
been troubled by ice breakage and in fact two representatives of an outside chem-
ical concern had, since March 1946, conducted experiments with chemicals de-
signed to prevent both breakage of ice and whiteace
Lowes testified that he had found Herndon outside the engine room on several
occasions, the last occasion being when he warned him that another such offense
would mean his discharge. Herndon admitted that Lowes had told him on two
prior occasions that lie spent too much time out front, but had no recollection
that he was ever warned against another repetition thereof. Lowes also alleged
that an oil pump had clogged at Nelson Street several weeks prior to the dis-
charge. He admitted, however, that he never discussed this with Herndon and
that. n1though it m(luenced him, lie did not discharge Ilei ndon for this season
EIerndon's unties required him to leave the engine room and enter the office.
In addition, it has been found that when he was discharged mention was made
only of the white ice and of breakage. Not only had Herndon always been a sat-
isfactory operator in the past, but, in addition, the record is silent as to any
difficulties of Herndon at other plants. Nor does the record indicate that Hern-
don was warned with respect to white ice or ice breakage. In fact, when Hern-
don, previous to his discharge, had spoken to Lowes concerning the ice breakage,
Lowes had merely replied. It will break."
It is noteworthy that in a lktrallel situation at the West End plant, where there
was allegedly too much white ice, no disciplinary action was taken against the
engineer Engineer Hogan took over the plant in May in 1946 when the produc-
tion of white ice was about 25 percent. No disciplinary action was taken with
i.espect to Engineer Couch, who was Hogan's predecessor there and in fact,
Couch was later that summer promoted to a position where his duties at night
were on a par with those of Felton Messer At the West End plant, respondent
considered the ice puller. Hardy Bell, responsible.' And although Lowes, who
admittedly had learned of the union campaign in April, testified that he con-
sidered the ice puller at Nelson responsible for white ice, he nevertheless insisted
that it was Heindon's fault No disciplinary action was taken at Nelson Street
with respect to .uiy ice pilllei, insofar as the recoil indicates, because of the
making of white ice
The disparity of the treats rent of Herndon, who had' been an exemplary em-
ployee, and Couch, together with the i easons for discharge given to Herndon at
the time of his discharge, as well as a consideration of his prior satisfactory serv-
ice, persuade the undersigned that the reasons advanced herein by respondent
for the discharge of Herndon are not the true reasons and it is so found.
A, E Afyrrck coonnenced his employment with respondent in the latter pact
of 1937, and since March 1943 has been employed at the Central Plant as da>
engineer. This was the largest plant in the Atlanta Division, and, as Lowes
testified. Myrick was assigned to that position because Lowes considered him the
best qualified man for the lob in view of his work record with respondent. In
April 1945, Myrick was called up for the draft and passed his army physical
cx.imination Shortly theieattei, lie received it deferment fi om military service
because of essential employment, atter Division Manager Bogman told him, on
several occasions, that lie was working on a deferment for him.
Not only was Myrick complimented by Lowes for It piece of work he hall done,
about 3 months prior to his discharge on April 20, 1940, hut in addition, approxi-
c2 Bell's discharge is discussed below
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inately 3 weeks prior to his discharge, when he informed Lowes that his duties
had become onerous and requested a lighter' assignment on the night shift or at
another plant, Lowes replied that there were no complaints concerning his work
and that if Myrick remained on the job, he would provide another man to assist
him. Lowes then assigned a trainee repairman to Myrick.r'
Myrick fist became interested in the Union on or about April 16 when he was
given 12 blank union cards by an oiler at the plant. He distributed these to 12
of the 15 employees on his shift and collected them, signed, within 2 or 3 days
thereafter.
There is a conflict of testimony as to the circumstances of Myrick's dis-
charge. Myrick testified that Lowes came to the plant on April 26, after
Myrick had checked the freezer temperatures in the morning and asked Myrick
to check the freezers with him. Lowes then looked at the temperature or only
several of the 13 freezers, although Klyrick suggested that all be inspected. He
turned to Myrick and said that he had caused hint considerable trouble, that
his work was unsatisfactory, and that he had someone else for the job.
Lowes claimed that on April 26 he received a complaint from S. B. King, in
charge of respondent's cold storage department, that the freezer temperatures
were in excess of the allowable limit. He claimed that lie immediately went to
the plant, checked the freezer temperatures, and discovered that in at least 3 of
the 13 freezers, the temperatures were too high He asked Myrick how this had
come about and Myrick replied that he had been too busy to check them for a few
days. Lowes then stated that in view of this admission together with the fact
that Myrick had been drinking and neglecting his work, he had decided to dis-
charge him.5'
There were several inconsistencies in the testimony of Lowes. He claimed
that King had complained that the temperatures in the freezers were too high
on two separate occasions, on April 26, the day Myrick was discharged, and on
an earlier occasion whose date he was not Certain of.55 He alleged that it was
after receiving King's call on April 26 that lie decided to inspect the plant. How-
ever, not only did King testify that he had complained of the freezer tempera-
tures on only one occasion but also that this one occasion was about one week be-
fore D1yrieli was discharged This also tallies with Myrick's testimony that King
had complained on an occasion a week or 10 days prior to Api it 26 Furthermore,
later in his testimony, and contrary to his version of what he told Myrick on
April 26, Lowes alleged that Myrick was discharged not because of drinking but
because he neglected the refrigeration equipment The undersigned credits the
testimony of Myrick who impressed him as an honest and candid witness.
In view of the above, it is evident that had Myrick in fact neglected the refrig-
eration equipment it was not the real reason for his discharge And it is ques-
tionable if Myrick was responsible for the highness of the temperatures which,
according to King, occasionally went above the proper level. For, as King testi-
fied, the conditions to which he objected might have arisen in the evening when
the night engineer was on duty or on Myrick's day off b6
13 This finding is based upon the testimony , of Myrick and is substantially supported by
that of Lowes
as It will be recalled that Lo es also discharged Herndon on this same date
55 Despite the emphasis laid on the high value of goods stored, Lowes testified that on
this earlier occasion, he did not mention the complaint to Myrick
se when King noticed a temperature which lie considered too high , he would call it to
the attention of the engineer on duty. However , as found above , on only one occasion (lid
he consider it necessary to complain to Lowes concerning a high temperature
ATLANTIC COMPANY 747
Lowes also alleged that he h.nd warned Myrick concerning his drinking on two
occasions during the last week of his employment While Myrick admittedly
drank, he credibly testified that the last time Lowes spoke to him about it was
about 1 month prior to the discharge . There is also testimony in the record
showing that drinking was common in the ice plants of the Atlanta Division.
The testimony of Cashier Shepherd has been set forth above, and as 0. D . Myrick
credibly testified , not only was drinking coninionplace in the Central plant, but
he had on three occasions taken Lowes home while Lowes was under the influ-
ence of liquor and relieved Lowes ' assistant , Hiram Guest , while the latter was
under the influence of lignoi . In the final analysis , as noted above , Lowes ad-
mitted that he had nor discharged Myrick for his drinking It is accordingly
found that the reasons advanced by respondent for Myrick 's discharge ale not
the true reasons theretor , particularly when considered against Myrick ' s employ-
ment record and admitted ability
Ohm n D. JIVrtc71 0' commenced his employ went with iespondent in May 1940 as a
welder's helper and about 2 months later was promoted to engineer . He left
respondent ' s employ for 3 months in 1945 , ieturning September . He was assigned
to the Central plant as night engineer and 3 days before he became ill on April
26, 1946, he was transferred to the North Avenue plant as day engineer. He
became interested in the Union and signed a union card about 10 or 12 days before
his employment terminated on May 2. On April 26 , Myrick became ill while at
work, summoned Lowes' assistant , Hiram Guest , to relieve him, and was absent
from work for 4 days during which lie was visited by his physician
On Wednesday , May 1, which was pay day,68 Myrick returned to the plant in
search of Lowes to inform him that he would be able to return to work on the
following day. Lowes was not then available but Myrick met Hiram Guest and
had a conversation with him. The subject of the Union came up, and Myrick,
who had been informed during his absence from the plant of the number of dis-
charges in the Atlanta Division, then totalling nine, told Guest that he had learned
of the discharges and supposed that he , Myrick, was probably subject to the same
penalty because he also had signed a union card Guest merely replied, "I don't
know." 69
Myrick returned to the plant on May 2, but was discharged by Lowes 80 On
arriving , he went to Lowes ' office and asked lieu what the trouble was between
Lowes and Myrick 's brother who had been discharged April 26. Lowes replied
that he did not like the manner in which the plant had been run and Myrick
commented that he was probably on Lowes ' list also Lowes then stated, accord-
ing to Myrick, "I might as well give you your voucher . . . because . . . you are
going to leave like you did last summer." He gave Myrick a voucher for his pay
and 5 or 6 days later Myrick received a separation notice which contained several
boxes wherein the reason for the separation was to be indicated Although one
of the boxes was labelled "quit," it was not checked ; however, a check had been
6Y A brother to E E Myrick whose discharge is discussed above.
w The iecoid does not disclose whether Myrick communicated with respondent during
his 4-day absence. Nor does it reveal that respondent had any posted or painted rule on
the subject or that the employees were aware of any policy of communicating during
illness , although Lowes testified that engineers were orally instructed to notify the plant
when absent.
59 This finding is based upon the credible and uncontroverted testimony of Myrick
8p Lowes contended that Myrick quit on April 26 and that he was not discharged on
May 2. However, he corroborated Myrick's testimony as to his leaving work on April 26
and returning on May 2, and, in view of his other testimony herein, this contention is
j ejected. In addition, counsel for respondent stipulated that Myrick was discharged
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
placed in the box entitled "lack of if o•k only." and by way of further explananon,
the notice also stated "lack of work at this ttnte" [Italics supplied ]
Lowes alleged that Myrick had been absent for several days or a week in the
spring of 1946, that he reinstated him after warning him against a repetition
thereof and after being assured by Myrick that there would be no repetition of
the incident, and that in his opinion Myrick's drinking had been the cause of his
leaving respondent's employ for 3 months in 1945. It was also respondent's
position that Myrcck was discharged because of his drinking, although, as noted
above, Lowes contended that Myrick had quit
Myrick denied that he was ever warned by Lowes in 1946 about drinking or that
he left respondent's employ in 1945 because of drinking, although lie stated that
Lowes had spoken to him in 1945 about it. He testified that drinking was very
common in the plant, and that he drank occasionally Corroborative of his testi-
mony is an incident which took place approximately 3 weeks prior to his discharge.
On that occasion, Myrick discharged an employee for insubordination and was
accused of dunking by Lowes' assistant, Messer, who put the employee back to
work. The following day, Myrick threatened to quit if the view of the employee
involved were to prevail and Lowes told Myrick to resume work and discharge the
employee if he chose01 Noteworthy also is Lowes' testimony that during the 30-
day period, prior to April 26, lie heard no reports that Myrick was drinking.
Not only is the above persuasive evidence that Myrick was not discharged
because of drinking, but in addition, Lowes' testimony is further rebutted by the
reason advanced for Myrick's discharge on the separation notice That notice
stated that Myrick had been separated for "lack of work only," although ample
space was provided to explain what reasons might exist for the discharge or
termination of an employee Furthermore, even the reason appearing on the
notice is not credible Myrick was discharged, as heretofore found, during the
start of the busy summer season when respondent admittedly was opening plants
which had been closed, recruiting new help, and bringing engineers into the
Atlanta Division from other divisions of the respondent Added to the above is
the fact that other engineers were then being discharged by respondents' with
resulting vacancies, and significantly, on the following day, May 3, Lowes dis-
charged two welders, Griffeth and Hinton, who had been working at the Hapeville
plant and told them that the job was being abandoned because he had no engineers
to operate the plant.' Accordingly, the undersigned credits Myrick's testimony
and rejects that of Lowes.
When these inconsistencies in Lowes' testimony are considered together with
other prior inconsistencies in his testimony, but also independently, the under-
signed is persuaded and finds that the reasons advanced by respondent for the.
discharge of Myrick are not the true reasons therefor.
Eugene F. Guest' worked for respondent as an engineer during 1945 for ap-
proximately 6 months, and insofar as the record indicates, his record was exem-
plary. He then resigned, but returned to respondent's employ in early April 1946
as night engineer at Nelson Street plant with hours from 6 p m. to 6 a. in. During
that month, but prior to April 26, his membership for the Union was solicited
and lie signed a card.
61 Finding as to this incident is based on the credible and uncontroverted testimony of
Myrick
12 Herndon was discharged on April 26 and E E. Myrick on May 1 as well as others
closely thereafter In fact, Eugene Guest was discharged on May 7, the same day that
Myrick received the separation notice marked `lack of work
^'i The credited testimony of Griffeth and Hinton.
11 A brother of Hiram Guest
ATLANTIC COMPANY 749
On the evening of Apiil 26, Fellon Messer came to the plant and spoke co
Guest' He discussed the discharge of James Herndon which had taken place
that day, and after saying that Herndon's work hid been unsatisfactory, told'
Guest of the distribution by Herndon of union cards He then asked Guest, who
together with Herndon constituted the engineering ci ew at the plant, if he had
signed one, and, according to Guest, told him that "the Coil iptcn' " was getting up
a petition to be signed hI those who were opposed to the Union Guest iilormed
Messer that he would not sign the petition' '° Guest was discharged on May 7 by
his brother, Hiram , at Lowes' direction, allegedly foi not reporliug for work on
May 6.
There had been a strike of streetcar operators in the City of Atlanta of some
2 weeks duration which had been settled on the morning of May 6' During the
strike, arrangements were made by IIn amu Guest to transport a group of the
engineers to work in his own car ; this group, which numbered from three to five,
included Eugene Guest, who was generally picked up at his home shortly prior
to 6 p. in On May 6, however, not only did Guest oversleep until 9 or 10 p in
and not report for work but, in addition, his brother, Hiram, slid not call for him
as he had on the previous and prior nights. Accoiding to Hiram he did not
pick up his riders on the evening of May 6 because the strike had been settled.
On the morning of -lay 7, Hii mm Guest came to Eugene' s home to ascertain
what had happened to Inns. Eugene i nto•nied him that he had expected him to
call on the previous evening Hiram did not apparently consider the offense a
major one because he drove his hi other to the plant and instructed him to relieve
the day operator who had been on duty toi 24 hours At 4 p in , Hiram returned
to the plant and told him that Lowes had oidered his discharge for failing to
i eport for work on the previous evening According to Lowes, be understood
that Guest had tailed to report because lie had overslept, did not consider that
there might have been it misunderstanding concerning his transportation, and
discharged him for this reason
Lowes contended that. Guest should have notified respondent of his intended
absence. However, Lowes knew that this was impossible as Guest had been
asleep during the day on May 6 and also knew that Guest's home was not equipped
with a telephone.°" In addition, not only was Lowes aware that this was the
first time that Guest had been absent without reporting, but he also admitted
that he did not as a set policy discharge engineers for an unreported absence
He had no recollection of the last prior occasion that he discharged an employee
for such a reason.
Although it was obvious to Lowes that the streetcar strike was settled after
Guest had returned home from work on the previous evening and was presumably
asleep after his 12-hour shift, he (lid not consider this a reason for not disciplining
Guest. Furthermore, even had Guest been aware of the strike settlement oil
May 6, the provisions thereof provided, as Lowes probably was aware, a 24-hour
period for the restoration of service, although in fact restoration of service came
a It will be recalled that 2 days previously Messes had questioned James Heindon, the
(tic opciator at Nelson Street. concerning the Union
° Uncontroverted testimony of Guest who was it clear and forthright witness
The parties stipulated this fact and also that the strike settlement provided that service
would be resumed within 24 hours. On the line used by Guest , lion ever, service was
resunied at 1 :,R p in on MIav 6
°" According to Hiram Guest, there ii a telephone in a pitiato home two dooie away fioni
his' brothel ' s home which his brother had used , on occasion
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sooner. There was then no indication that service would be resumed on the
afternoon of May 6
Upon consideration of the above, the fact that Guest was an employee whose
employment record is devoid of any other alleged derelictions, and the fact that
Lowes admitted lie usually considered how capable a man was and his general
attitude when considering him for discharge, the undeisigned is of the opinion
that the penalty of discharge suffered by Guest was uncommonly severe. In a
case where there was natural cause for misunderstanding and when every equity
was in favor of an employee whose past record is spotless, the decision to dis-
charge Guest is too extreme to be accounted for by the reasons given by Lowes
The undersigned finds that the reason assigned for the discharge of Guest was
not the true reason therefor.
Linton W. Wilson, commenced his employment with respondent in March 1941
as an engineer and worked at various plants in the Atlanta Division. After a
few months, lie was transferred to another plant of respondent's at Jacksonville,
Florida, where he spent 16 months and then resigned when he was refused a
transfer back to Atlanta. He immediately returned to Atlanta, and, despite his
resignation at Jacksonville, was hired within a few days by Lowes. He worked
at several plants and in September or October of 1944 was made a relief engineer
which meant that he would regularly rotate among the plants in the Division
About 5 or 6 days before May 17, when his employment was terminated, he was
transferred to Nelson Street as night engineer °' Insofar as the record indicates,
his employment record throughout his entire tenure with respondent was
exemplary.
Approximately 2 or 3 weeks prior to May 17, Wilson signed a union card given
him by E. W. Meeks. He passed out a card to Robert Pause which the latter
signed and returned to Wilson S0 Shortly, thereafter, Felton Messer carne to
Brookwood plant, on an evening that Wilson was assigned there, handed him the
anti-union petition, and asked him to sign it Wilson returned the petition and
stated that he was unwilling to sign it."
One week before May 17, Wilson asked Messer to inform Lowes that he would
have to resign at the end of the week unless he could be assigned to something
other than night work.'2 Messer relayed the message to Lowes who apparently
did not communicate with Wilson. Two or three days later, Wilson reconsidered
and asked, Messer to inform Lowes that he had changed his mind about leaving.
Messer told Wilson to discuss the matter with Lowes, and upon telephoning
Lowes, Wilson was told that other arrangements had been made by Lowes and
Wilson could not remain.
Respondent raises no contention herein with respect to Wilson's ability as an
engineer. Nor, does it contend that it had any policy against transferring
engineers among plants. In fact, in the case of Wilson as well as that of many
others, engineers were customarily shifted from plant to plant and in fact among
various divisions of the Company. The sole contention raised herein is that
Lowes had already arranged to replace Wilson at the time Wilson changed his
mind and, in effect, that it then had no vacancy for him.
81 This was immediately or shortly after Eugene Guest was discharged as night engineer.
TO The discharges of Meeks and Pause are discussed hereinafter.
73 This finding is based upon the credible testimony of Wilson. Messer testified that he
did not recall whether of not he showed the petition to Wilson.
'2 Wilson was having difficulty in finding someone to care for his invalid father, and
respondent had at least as many day as night engineers.
ATLANTIC COMPANY 751
The record is clear, as appears below and hereinafter, that engineers were then
being discharged in such numbers throughout the Atlanta Division that open-
ings were frequent. In fact, respondent was even importing engineers with
little experience from other divisions of respondent and was training new
engineers . B. M. Hogan, an employee whose entire engineering experience was
confined to a portion of the 2-month period preceding May 17, was transferred
from the Rome, Georgia, plant, outside the Atlanta Division, a few days after
May 17, and was made engineer at the large West End plant; another engineer,
Wicker, was similarly transferred into the Division B F Duncan was hired
as a trainee engineer at Central plant on or about May 14 and resigned a few
days later, creating a vacancy. With a few clays after Hogan reported to West
End on May 21, Engineer Pulliam, who had been employed by an independent
ice company in Commerce, Georgia, was placed in the West End plant as night
engineer.
Furthermore, Lowes, because of the lack of engineers and the increased sum-
mer business , had made arrangements to give the plants closer supervision
Around June 1, Engineers Couch and Thomason were selected to assist Lowes in
supervising manufacturing operations, thus vacating their positions 43 And
finally, although Lowes contended that he had made arrangements to replace
Wilson prior to his change of mind, he admitted that he did not consider
Wilson, an engineer with long and satisfactory experience, for the vacancies
which arose at that time at the West End and Brookwood plants
The undersigned cannot conceive that respondent would have failed to retain
Wilson in its employ at a time of such urgency, absent a strong motivation for
eliminating him from its employ. This is particularly so in view of the other
engineers involved herein and discharged at or about this time whom respondent
alleged to be unsatisfactory and negligent in the performance of their duties,
all at a time when respondent's operations were expanding. In view of the
above, the undersigned finds that the reason advanced by respondent for its
failure to retain Wilson in its employ was not the true reason.
Robert 7'. Pause entered respondent's employ in March 1945 He repaired
machinery for 1 month at the Ridge Avenue plant and was then promoted to
engineer at the Hapeville plant during the summer season His record at Hape-
ville was excellent, production being sufficiently high to regularly earn Pause
a bonus and Lowes complimented him on his work there. In November he was
transferred to the Brookwood plant where lie worked on various installations
and repairs and as trainee engineer under the supervision of Engineer Thomason.
Although he was promoted to engineer about 2 weeks later, he continued the
repair work at the plant; Thomason, however, remained there until sometime in
March when he was assigned to another plant 74
As set forth above, during the early part of May, Linton Wilson gave Pause a
union card which he signed and returned to him. About 1 week later, Hirano Guest
visited Pause at work and asked him to read the anti-union petition; he stated
that he desired Pause to join his "union ," but Pause refused to sign.
On May 18, Lowes came to the plant and discharged Pause, stating, as Lowes
testified, that Pause was unable to handle the plant, that he could not manage
13 IV. A Couch so testified The undersigned does not credit Thomason's testimony that
he iemained at the Brookwood plant as engineer all summer save for odd jobs
74 It is not clear exactly when Thomason turned over the plant to Pause The estimates
vary from 2 to 7 weeks prior to May 18 The above figure would seem to be the probable
time and is based upon Pause 's testimony , which is partially supported by that of
Thomason
755420-48-vol 74 49
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the labor force, and that he was unable to perform minor repairs This was the
only occasion that Loaves had ever discussed with Pause his ability as a worker,
and he had never complained to Pause about his work during his entire tenure at
the Brookwood plant.
It is respondent's position that Pause was an unsatisfactory employee who
was unable to perform his duties or handle his employees and that Thomason
had to perform his repairs for him. With respect to Pause's handling of his
employees, this consisted of the discharge by Pause of an employee for insubordi-
nation approximately 3 days before May 18; at the time, he informed Thomason
of what he had done and the latter stated that he would have done the same
thing.76 Pause denied that he had found it necessary to summon Thomason to
the plant to assist him with his repairs, as alleged by Thomason, although Pause
did, on occasion, telephone him for his opinion on a repair Not only has the
testimony of Lowes and Thomason been found unreliable above, but, in addition,
it is significant that they found no fault with his repairs during the appioxunately
6 months he worked on repairs and installations at Brookwood. Furthermore,
assuming the testimony of Lowes concerning Pause's management of the plant
to be true, the treatment afforded Pause is in sharp contrast with that of a
number of the other dischargees. According to Thomason, in the period that Pause
operated the plant alone, the employees refused to work for him, he was unable
to recruit employees, ice production fell off sharply, there was too much white ice,
and Pause on four occasions required his assistance on repairs. And although
these numerous instances of alleged inefficiency were reported to Lowes, accord-
ing to Thomason, Pause was never earned by Lowes or spoken to concerning
these purported derelictions. It is inconceivable that Loaves, who would abruptly
discharge E. E Myrick, E. F. Guest, Wilson, and as latei appears, E W. Meeks
for apparently slight reasons, would permit Pause, were his case as completely
hopeless as Lowes and Thomason made it out to be, to continue on in respondent's
employ without a warning That Pause was not the neglectful and inetheient
tinployee they alleged him to be is demonstrated by Lowes' admission that he
would have retained Pause at the smaller Hapeville plant had it been in opera-
tion and that he considered Pause capable of operating that plant Fui therunore,
it was during this period that the Fapeville plant was closed down, as found
above, for lack of an operator 76
In view of the number of discharges; the importation, hiring, and training of
new engineers to remedy the shortage of engineers. Pause's satisfactory service;
and the inconsistencies in respondent's treatment of Pause. the undersigned finds
that the reasons advanced for the discharge of Pause ate not the true reasons
therefor.
Ear 1 W Meeks' who had worked for respondent trom 1034 to 1936, returned
to its employ in 1940, and was promoted to night engineer of the West End plant
in February 1941. He continued in this post until his discharge on May 19, 1946,
76 The testimony of Pause Thomason had no recollection of this discussion, but alleged
that the employees resented Pause's methods Thomason was an unconvincing witness
with a vague recollection of events and his memory was repeatedly refreshed In addition,
Thomason concealed in his testimony the fact that lie left the Brookeood position during
the summer of 1946, as Couch testified, and thus opened it up to replacement The
undersigned does not credit his testimony herein
16 The undersigned does not credit Lowes' testimony that the Hapeville plant was shut
clown for lack of parts
77 Except where otherwise indicated, the findings below are based upon the cleai and
forthright testimony of Meeks and of William Dixon The undersigned was favoiablv
impressed by the demeanor of Dixon who was subjected to a vigorous cross-examination-
ATLANTIC COMPANY 753
save for a 7-months' period in 1945 when he voluntarily left. He was compli-
mented in 1945 by Lowes for his work and, insofar as the record is concerned,
lie was never criticized by Lowes in connection with his work save on the date of
his discharge.
He signed a union card on or about April 24 and within the next few days signed
up approximately 12 other employees at the plant, constituting about the entire
crew in the manufacturing department, with the exception of the day engineer,
Jordan.
Meeks had two conversations with Felton Messer concerning the Union.78 On
or about the evening of April 29, while in the plant, Messer asked Meeks if he
had heard anything concerning the Union Meeks admitted that he had heaid
of the activity and Messer informed hint that he did not believe in it. On or
about the morning of May 12, Messer again came to the plant ; he handed Meeks
a copy of the anti-union petition and asked if he had signed one, saying that
Hiram Guest was behind it. Meeks refused to sign it, stating that lie had been
instructed by day engineer Joidan not to permit'the circulation of any papers in
the plant. Messer replied that Jordan was in favor of the Union, and, when Meeks
disputed this view, -Messer stateii that Jordan had refused to sign Guest's copy
of the petition.
Meeks was discharged on the evening of May 19 by Lowes who accused him of
being responsible for the burning out of a crane motor on the previous (lay
Although Meeks protested that he was not responsible for the incident, as it had
arisen prior to the time that he had reported for work, Lowes carried out the
discharge
According to Jlevks, lie reported for work on May 18 at about 6 p. in., his
customary reporting time. William Dixon, an ice puller, who had also appeared
for work at that hour, noticed at approximately 6: 10 that a crane motor was
smoking, pushed the control lever to neutral, and inunediatelc notified Meeks.
Meeks went to inspect the crane, turned off. the electric power, and at about 6:17
or 6: 18, in Dixon's presence, telephoned Jorllan and then Terrell, the electrician.
The latter arrived about 1 hour-and inspected the equipment.78
Respondent contends herein that Meeks was discharged because the crane motor
burned out when he was on duty and that he was responsible therefor However,
it is cleat, as found above, that the crane had not been used by the night shift and
that the burning of the crane motor, which admittedly took some little time, took
place on the day shill. And assuming that there was some doubt as to when the
burning had taken place, Lowes admitted that he made no inquiry of Meeks,
whom lie held responsible, of Dixon, who discovered the fire, or of anyone on the
day crew as to how the incident might have occurred He discussed the matter
only with Terrell In the opinion of the undersigned, it is extremely strange that
Lowes would discharge Meeks, a veteran employee of the Company with a spotless
record, without an investigation of the matter or even checking on Meeks' story
Even assuming that Lowes conferred with Terrell, as lie alleged, he also admitted
that he only asked Terrell how the crane motor had burned out and that lie did not
ask who was at fault.
18 These were not denied by Messer.
19 The undersigned does not credit the testimony of Terrell that he was not notified of
this incident until 7 30 or 8 p in. Not only does the undersigned consider Meeks and
Dixon to be completely credible witnesses, but in addition , their testimony is partially
supported by that of Terrell who admitted that no ice had been pulled with the crane
prior to his arrival at the plant , as contended by Meeks and Dixon. Their testimony is
also supported by that of Jordan who was telephoned by Meeks shortly after 6 p in
,754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Lowes later testified that on May 19 he did investigate the crane
incident, his testimony is not supported by the record. He alleged that lie
went to the plant that afternoon to check on the crane and that engineer Wilson
was on duty. Not only was this impossible, because Lowes himself had ordered
Wilson's release 2 days earlier on May 17, but in addition, the day engineer,
Jordan, who was on duty, credibly testified that Lowes did not appear at the
plant that afternoon.
Lowes also claimed that he had learned from his assistant, Messer, that
Meeks had been found asleep at work. In the undersigned's opinion, the testi-
mony of Lowes and Messer, which is denied by that of Meeks, is not credible
and as above is also rejected here 80 Furthermore, assuming it to be true,
Meeks was not reprimanded by Lowes, who admitted that he had heard of these
incidents several weeks prior to May 19 and that he made no decision at that
time to discharge Meeks because of them In view of the above, Meeks' long
and satisfactory employment record with respondent, the failure to investigate
who was responsible for the burning of the crane motor, and the lack of evi-
dence indicating any dereliction of duty on the part of -leeks, the undersigned
finds that the reasons assigned by respondent for the discharge of Meeks are
not the true reasons therefor
H. E. Jordan commenced his employment with respondent in 1924 and in
1931 was promoted to day engineer of the West End plant where he remained
until May 20, 1946; on that date, he was transferred to the Hapeville plant
where his employment was terminated on June 12 Insofar as the record
indicates, his employment record with respondent was exemplary.
Although Jordan did not join the Union until sometime between June 11
and 13, he was visited by Hiram Guest during the early part of May, and
refused to sign his anti-union petition. Likewise, Felton Messer was aware
of Jordan's vies toward the petition, and told E. M. Meeks on or about May 12
that Jordan had refused to sign it.
As heretofore found, Jordan was. told by Vice-president Henry and Division
Manager Bogman on or about May 1 that respondent could not have the Union
in its organization and was instructed by Bogman to discharge any men who
signed union cards or engaged in union activities. On the evening of May 19,
the night engineer Meeks 81 informed Jordan that his entire crew had joined
the Union The following morning Jordan, in compliance with his instructions,
discharged four employees of the plant and informed them as well as Lowes
and Assistant Division Manager Newman that he had been ordered to discharge
them. Lowes and Newman stated that he could not do this but ignored Jordan's
offer to get the men back, although the men were apparently called back by
Lowes shortly thereafter. That same day, Lowes informed Jordan that he was
being transferred to the Hapeville plant because the health of Engineer Couch
would not permit him to go there, and to get it running se Jordan reported
at the Hapeville plant and, as had been the case during the entire tenure with
respondent, there was no criticism of his work.
80 In fact , Meeks found Messer asleep at the plant on one occasion when the latter was
on duty.
81 Meeks was discharged that evening , as discussed above.
82 It will be iccalled that in addition to Meeks' discharge on May 19 , Pause was discharged
on May 18 and Wilson was terminated on May 17.
ATLANTIC COMPANY 755
When Jordan reported there, he found that an ice-puller' was on duty, and
this individual continued on and reported for work on the morning of June 12,
which turned out to be Jordan's last day. After Jordan had noticed that Newman
and Henry had visited the plant during the morning, Manager Barksdale of the
plant then came over and spoke to Jordan. He informed him that he had been
ordered to cease providing him with an ice-puller. Jordan, who was then 54
years old, protested that he was too old to start performing the heavy work of
an ice-puller and that he was not physically able to pull the ice. Barksdale
insisted that he had to carry out his orders and assigned the ice-puller to other
duties at the plant.' That afternoon, Lowes questioned Jordan concerning the
pulling of ice. Jordan informed him that it was unfair to require an engineer of
25 years' experience to work as an ice-puller, whereupon Lowes discharged him.
It was respondent's position that it had decided to operate the Hapeville plant
without ice-pullers and Jordan was discharged for his reluctance to do this work.
However, this was the peak season when operations were approaching or were at
their yearly high and an ice-puller had been employed at the plant since prior to
Jordan's arrival there. That it was an unusual move to remove the ice-puller at
this point is further demonstrated by the fact that Robert Pause, who had been
employed as engineer at Hapeville for some time previous and during comparable
periods, was provided with an ice-puller. Assuming however that the respondent
was actually desirous of operating the plant without an ice-puller, the under-
signed cannot conceive that it would in the normal course of business operations
take an employee of Jordan's proven ability, blameless record, and long experience
in the operation of a large plant and relegate him to work entailing unskilled
duties of this nature at this season of its business operations. That an improper
motive existed in the transfer of Jordan and his relegation to different work is
further shown by the fact that the work he was expected to do on June 12 was
customarily reserved by respondent, insofar as the record indicates, for unskilled
colored employees. I
In view of the above, the seasonal influx of business, and Jordan's long record
with respondent, the undersigned finds that the transfer and subsequent discharge
of Jordan were motivated by reasons other than that advanced by respondent and
that he was discharged because he refused to comply with an unquestionably
discriminatory change in the nature of his employment 8'
4. Conclusions as to the discharges of the engineers
It has previously been found that the reasons advanced by respondent for the
discharges of the engineers herein involved are not the true reasons in that in
no instance has respondent come forward with a reason which is persuasive and
also supported by the record.' It is also readily apparent that the only common
as This position which respondent apparently fills only with uneducated Negroes is an
unskilled one and requires heavy physical exertion . According to Loaves , ice-pulling duties
at the Hapeville plant require 4 to 5 hours work daily. The engineers are all white
84 The above findings are based upon the testimony of Jordan which , as above , is also
credited herein. Barksdale , although apparently still in respondent ' s employ , was not
called as a witness.
85 Furthermore , in the opinion of the undersigned , Jordan would have been justified in
quitting respondent s employ, in the face of this conduct by respondent See N. L R B.
v. East Texas Motor Freight Lines , 140 F (2d) 404 (C C A. 5), enf'g 47 N. L R B 1023,
and N. L. R B. v . Chicago Apparatus Co., 116 F. ( 2d) 753 (C. C. A 7).
86 Assuming that the reasons for the discharge were supported by the record, the con-
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denominator which exists among this group of eight employees, namely that they
refused to sign the anti-union petition circulated by Hiram Guest and Messer or
otherwise indicated their support of the Union, looms as the most significant
factor in appraising respondent's motive herein.' By the same token, the parallel
conclusion is inescapable that the only common denominator which exists among
the majority of the approximately 25 engineers then employed by respondent and
who were not discharged, is the fact, as found above, that they did without
exception sign the petition '
Respondent took the position that while it admitted that an anti-union petition
had been circulated by Messer and Guest, neither Lowes nor the higher officials
of respondent had any knowledge of this activity. According to Guest, after
being informed that the Union intended to eliminate him from the plant when it
attained a majority, lie prepared the petition on his own initiative purely for
the purpose of ascertaining the sentiment among the engineers so that he could
determine whether his own position was safe, and after learning that a majority
of the engineers were opposed to the Union, he felt safe and destroyed the peti-
tion. Messer allegedly assisted Guest for 1 or 2 days in the circulation of the
petition and did nothing further in connection therewith.
Not only does the perfect correlation between the refusal to sign the petition
or expression of a pro-union view and the subsequent discharges raise a strong
implication that the union activity of the dischargees have a relationship to the
discharges, but, in addition, the testimony of Lowes, Messer, and Guest, which
has previously been shown to be unreliable, is further demonstrated to be un-
reliable and respondent's position herein must be considered in that light.
Thus, although Guest alleged that he had circulated the petition for only 2
days around May 1, and then had destroyed both copies of the petition, this testi-
mony was rebutted by other witnesses called by respondent. Terrell, respondent's
electrician, recalled that Guest had presented the petition to him in June or
July and that at the time it bore no other names.89 Couch testified that he signed
the petition presented by Guest in the latter part of June. It would thus appear
that other petitions were circulated by Guest in addition to these two or that
its circulation was a far more intensive affair than Guest chose to indicate in
his testimony. Also, in describing the circumstances of the `discharge of E. W.
Meeks, Guest went to great extremes to tell a story which would be favorable
to respondent. He alleged that on the night Meeks was discharged all the other
employees present were about to walk off their jobs after being spoken to by
elusion is still inescapable , when the record is considered in its entirety, that these reasons
were not the motivating factors behind the discharges
87 The record does not indicate whether E E Myrick or 0 D. Myrick were approached
with the petition E. E Myrick was, however, very active in the union campaign and
distributed and collected cards from 12 of the 15 employees on his shift In addition,
Felton Messer made a statement, 3 days after Myrick's discharge, to E. W Meeks which
approximated an admission that Meeks was discharged for his union activities After start-
ing a conversation about the Union with Meeks, Messer said that he did not like the Union
and did not believe in it. He then immediately added that he supposed that Meeks knew
that Myrick had been fired for carelessness . The only reasonable conclusion to be drawn
from this statement is that Messer knew that Myrick had been discharged for his union
activity . In the case of O. D. Myrick , it will be recalled that he informed Hiram Guest
that he had signed a union card
88 See N L R. B. v Vail Manufacturing Co , 158 F (2d) 664 (C C A 7), and Matter
of Harold W. Baker Co , 71 N L. R. B. 44
89 Both Guest and Messer claimed that they had signed their respective copies before
circulating them.
ATLANTIC COMPANY 757
Meeks. This was credibly denied by both Meeks and William Dixon, then on
duty.
With respect to Messer , the most significant factor is his lapse of memory
when asked to recall the names of any who signed or refused to sign the petition,
although the group involved was a small one . Although Messer contended that
he had merely circulated the petition for 2 clays at Guest 's request , his true
interest in the petition is demonstrated by the fact that he interrogated Herndon
and Meeks concerning the Union and in fact instigated the destruction of some
cards which Herndon had distributed . In addition , indicative of sponsorship
higher removed in the supervisory hierarchy than Hiram Guest, was Messer's
statement to E F. Guest that "the company" was circulating the petition.
As in the case of Messer , Lowes evacjed the giving of figures on the basis of
which a comparison might be drawn, in that he also suffered a lapse of memory
concerning discharges among those employees under his direct supervision in a
period of time immediately preceding the instant hearing. He claimed that he
investigated the burning out of the crane motor on May 19 before discharging
Meeks and that Wilson was then on duty, although Lowes himself had been
responsible for the termination of Wilson's employment 2 days earlier. In
addition , 0. D. Myrick was discharged by Lowes allegedly for lack of work at a
time when Lowes was releasing welders at the Hapesville plant because no
engineer was available . Significant also is the fact that the reporting of the
results of their survey to Lowes and to higher management , was entirely com-
patible with the customary duties of Messer and Guest whose duty it was to
report to Lowes their observation of the performance of the employees and
conditions in the plant.
Finally , the circulating of this petition is exactly what Henry attempted to
have Jordan do, as found above Both Bogman and Henry repeatedly questioned
Jordan, as to whether he had heard of the Union at his plant and on one occasion
Henry asked Jordan to find a trusted man who would investigate and ascertain
the extent of employee interest in the Union . The Messer -Guest petition is
obviously in striking parallel to the course of conduct Bogman and Henry had
urged upon Jordan
Not only do the reasons for the discharges and terminations of employment,
as well as the respective versions of the circulation of the petition , standing alone
lack credence , but when the record is viewed in its entirety and in the light of
respondent ' s previous expressed antipathy towards the Union, the undersigned
is convinuced and finds that respondent circulated the anti-union petition for the
purpose of determining which of its employees were supporters of the Union and
that , as part of a design to eliminate the Union , it discharged those employees
who refused to sign the petition as well as those whose pro -union sentiments or
union activities it had discovered.
Respondent contends in its brief that the Union was organizing supervisory
employees , the engineers , and rank and file employees in an inappropriate unit
and that respondent should not be held responsible for the termination of the
engineers ' employment . It will be recalled that the employment of each of the
S engineers in question was terminated for reasons allegedly involving mis-
feasance or nonfeasance of duties , except in the case of Wilson who allegedly
resigned , and the present contention was not raised at the time of the discharges
or at the hearing herein. Assuming without finding that respondent , in order
to preserve its neutrality , was justified in discharging supervisors for activity
in-behalf of a rank and file union, the entire record shows that respondent was
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not interested in preserving its neutrality but, on the contrary , attempted to
defeat the union organization of its employees regardless of classification. It is
accordingly found that respondent 's contention herein lacks merit 00
It is found that respondent , by terminating the employment of James C.
Herndon and E. E. Myrick on April 26 , 1946, O. D. Myrick on May 2, 1946 , Eugene
F. Guest on May 7, 1946 , Linton W. Wilson on May 17, 1946 , Robert T. Pause on
May 18, 1946 , E. W. Meeks on May 19, 1946, and H . E Jordan on June 12, 1946,
discriminated with respect to their hire and tenure of employment and the terms
and conditions of their employment , thereby discouraging membership in the
Union and interfering with, restraining , and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
5. Other discharges
Rebecca Flowers commenced her employment with respondent on or about April
20, 1944, and was employed at various plants. At the time of her discharge by
Hiram Guest on May 9, 1946, she had been employed since January 1946, at the
Nelson Street plant. Her employment record was exemplary, but for the incident
which respondent alleges took place on May 9.
It will be recalled that on or about April 24, Felton Messer visited the Nelson
Street plant, questioned Engineer Herndon about the Union, asked Herndon if
he had distributed cards to any of the employees there, and asked Herndon to
return the cards to the employees involved Flowers was one of three to whom
Herndon had passed out cards and upon being informed of what was taking place,
she too destroyed her card in Messer's presence.
On May 9, Hiram Guest, who was then training a new engineer for the Nelson
plant, informed Flowers as she was at work that he found it necessary to dis-
charge her because respondent was discontinuing the employment of women at the
plant. As she left, she overheard Guest say to an employee that he was going to
"break up" something. Contrary to what Guest had told her, however, Flowers,
who passes the plant every morning, noticed the next morning and on successive
mornings that a new girl was employed at the plant and was performing Flowers'
former duties of pulling ice rods from the ice tanks "1
The undersigned finds that in view of the patent falsehood assigned Flowers on
the date of her discharge respondent was motivated by considerations other than
that given to Flowers. Upon consideration of the fact that respondent had
learned on April 24 that Flowers was interested in the Union and that no valid
reason has been assigned for her discharge, the undersigned is of the opinion, and
it is so found, that respondent, by terminating the employment of Rebecca Flow-
ers on or about May 9, has discriminated with respect to the hire and tenure of her
employment, thereby discouraging membership in a labor organization It is
further found that respondent has thereby interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed in Section 7 of the
Act.
Oscar Dobbins commenced his employment with respondent in 1929 in another
division of the Company and worked on and off until 1942. He was then dis-
80 See Matter of E Anthony & Sons, Inc., 70 N. L. R. B 717; Matter of Climax Engineering
Co., 66 N L. R B. 1359; and Matter of lVells, Inc., 68 N. L. R B. 545.
01 The above findings are based upon the clear and forthright testimony of Flowers who
impressed the undersigned favorably . Guest has heretofore been found an unreliable wit-
ness and the undersigned does not credit his testimony, denied by Flowers, that Flowers
was insubordinate on May 9 by refusing to pull tubes and asked for her pay when
admonished by Guest.
ATLANTIC COMPANY 759
charged by Division Manager Bogman while working at the Ridge Avenue plant,
as Dobbins admitted, for "fooling around with a woman . . . and having a
little trouble with the law " He was rehired in 1943, but quit once and was dis-
charged once during 1945 On each occasion he returned to respondent's em-
ploy, the last time being in February of 1940, when he was rehired by Lowes
as a truck driver He continued in this post until he was discharged by E. E
Myrick at Lowes' instructions, on April 24, this being approximately 2 days after
Dobbins joined the Union; on this occasion, Lowes told Myrick that Dobbins
had been bothering him too much in connection with advances against his wages
and that he was tired of "messing with him," as Myrick testified
According to Dobbins, Lowes stopped him on the night of April 23 as he left
work. After sitting in Lowes' machine for a short time, they drove about for
a while, drinking from a bottle in the machine 92 Lowes, according to Dobbins,
then asked him what lie knew of the Union and asked where he had taken E E.
Myrick on the previous evening 93 Lowes denied that this incident had taken
place.
The record discloses that although almost all the employees took loans as
advances against their wages, Dobbins had repeatedly abused this privilege. In
fact, 2 or 3 months prior to Dobbins' discharge, Myrick himself had complained
to Lowes that Dobbins was continually borrowing in excess of his earnings.
He had also taken loans from a number of the operators which had never been
repaid and at the time of his discharge was overdrawn.
Dobbins also had the habit of disappearing when sent on errands and appear-
ing at other plants of the Division where he had not been sent to For some time
prior to his discharge he had appeared at the Brookwood plant, when not sent
there, and had attempted to get dates with an ice puller, Marion Paschal, as
she credibly testified Paschal was warned by Engineer Thomason against talk-
ing with Dobbins on these occasions, on penalty of discharge, and, finally, in
fear of losing her job, she complained to Thomason. Dobbins' conduct in this
respect was reported to Lowes by Thomason either on or shortly before April 24
Not only did Dobbins give questionable testimony concerning a message pur-
portedly left at his home just prior to his testifying in this proceeding and which
dealt with his testimony, but he could not be found when asked to bring in more
information concerning this message. Furthermore, he testified that on the day
of his discharge he overheard Bogman telephone Lowes and instruct him to dis-
charge Dobbins According to Dobbins, lie was in a room adjoining the plant office
at the North Avenue plant, where lie had been sent on an errand, and overheard
the conversation through open windows in the wall. He also testified that he
heard the conversation by pushing a connecting door slightly ajar A view of
the plant premises indicated, as counsel for the Board conceded, that there are
no windows in this wall which separates the anteroom from the office.
As appears above, the testimony of Dobbins contained a number of discrepancies
of a material nature and the undersigned does not accept his testimony. It is
accordingly recommended that the allegation of the complaint with respect to him
be dismissed.
Pliallip Dooley commenced his employment with respondent in 1943 as an leer
of railroad cars at the Inman Yards plant. He attended the first meeting of the
Union. signed a card, and collected signed cards from 18 employees at the plant.
92 Dobbins ' testimony was self,-contradictory in that he claimed both that lie and Lowes
drank . together in the car and did not drink in the car.
93 On the prior evening, according to Dobbins , lie had driven Myrick to and from several
plants . Myrick did not testify concerning this point
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dooley was discharged by Plant Manager Parrott on April 26 for leaving work
without permission, although 8 days later he was sent for by Parrott and re-
instated to his former position with no change in the conditions of his employment
and is still in respondent's employ.
Sometime during the month of April, Parrott instituted an arrangement where-
by car-icers, who had previously worked daily from 7 a. in. to 7 p. in., might
leave several hours early on alternate days. Dooley admitted that on the after-
noon of April 25, although it was not his turn to be off, he left early without
notifying anyone of this fact or requesting permission to do so. This was reported
to Parrott and on the following day he discharged Dooley, telling him that this
was the reason for the discharge °1 According to the uncontroverted testimony
of Parrott, not only had he discharged others for this same offense, but he had also
received a complaint about 2 weeks prior to April 26, had then personally observed
Dooley leaving the plant when it was not his turn, and had warned him against
a repetition of the incident.
Although Parrott's testimony that he did not learn of the Union until after the
discharge of Dooley was contraverted by other testimony,'' it is clear that Dooley
was discharged immediately after he violated a working rule, which, insofar
as the record indicates, was generally enforced, after being previously warned
by Parrott against a repetition of the offense. Although the circumstances are
suspicious, the undersigned is of the opinion and finds that the allegations of the
complaint with respect to Dooley have not been sustained
Hardy Bell, who at the time of the instant hearing was 68 years of age, had
been in respondent's employ for approximately 36 or 37 years at the time of his
discharge on June 6, 1946. On that date, he had been employed in the manu-
facturing department at the West End plant for approximately 7 years at various
jobs which included ice-pulling and the care and installation of tubes through
which air is circulated into the water as it freezes ' Exclusive of the alleged
incidents which respondent contends were the motivating factors for his dis-
charge, his lengthy employment record is silent as to any prior criticism of his
work. Bell signed a union card during May and solicited the signatures of three
other employees in the plant. He was one of the four employees whom H. E.
Jordan had discharged on May 20 because, as Jordan advised Lowes and New- °
man, they had joined the Union, and who were later reinstated.
Bell was discharged on June 7 by G. M. Hogan, who on or about May 22 had
been appointed day engineer at the West End plant, replacing H E Jordan, whose
transfer and discharge has heretofore been found to be discriminatory. Accord-
ing to Hogan, after being assigned to the plant, he was informed by Plant Manager
McGee w that too much white ice was being produced 99 Hogan, who contended
that white ice then amounted to 25 percent of total production, allegedly warned
Bell several times about this condition before discharging him for this reason on
June 6. He-claimed that Bell neglected to place the tubes necessary to the circula-
tion of air into the freezing water, although plenty of these tubes were available,
and that on June 6, as a result of this-neglect one dump of ice, consisting of seven
cans, was defective or white.
94 According to Parrot , Dooley denied on April 26 that he had sneaked off on the previous
day. Dooley alleged that he had admitted the offense to Parrott
es According to Employee Elzie Linder, about 2 weeks prior to Dooley 's discharge, Parrott
stated to Linder that he had heard Dooley was organizing a union at the plant.
91 The credible testimony of Bell.
97 McGee did not testify
Is See footnote 50.
ATLANTIC COMPANY 761
Bell testified that Hogan had never complained to him concerning the perform-
ance of his duties, and that on June 6, no tubes were available to be inserted into
the tanks because Hogan had neglected to perform a minor adjustment which is
admittedly requited prior to their use. In addition, he stated that this particular
batch of ice was the fault of the employee who filled Bell's job on the night shift.
As Hogan admitted, this particular incident on June 6 produced one dump of
white ice, out of the total of 288 dumps in the plant. This was below the 1 or 2
percent of white ice which was customarily produced.in the plants, as Assistant
Division Manager Newman testified, and far below the 25 percent Hogan alleged
was being produced at the plant. Significant also is the fact that Bell was
admittedly experienced for many years in the application and use of these tubes
whereas Hogan was in inexperienced engineer whose entire experience in engi-
neering was limited to work in another plant during a portion of the 2-month
period prior to his transfer to West End It is extremely unlikely that Bell, who
had been functioning without criticism for so many years, would have stopped his
usual custom of caring for the tubes had Hogan in fact prepared them for him
as was Hogan's job. Supporting Bell's testimony is the fact that although Hogan
alleged white ice was being produced in extreme quantities before his arrival at
the plant, there is no evidence that any complaint along these lines was made to
Bell or anyone else Hogan's arrival at the plant coincided with the departure
of Jordan for reasons, according to respondent, wholly unrelated to the quality of
the ice there, and there is nothing to show that Bell's performance was anything
but satisfactory then It is thus apparent that Hogan's testimony that white ice
was being produced in large quanities prior to his arrival is unsupported by the
record and that Bell's allegation that Hogan was negligent in failing to provide
the tubes is the more likely
There were, however, further inconsistencies in Hogan's testimony. Although
another employee at the plant was also at fault in the making of white ice and
had been warned by him on several occasions,-Hogan admitted that Bell was the
only employee at the plant whom he had ever discharged, and that Bell had the
ability to do his work.
Furthermore, in one place in his testimony, Hogan stated that the night engi-
neer, a supervisory employee, was responsible for any defective ice produced on
the night shift, and not the night employee whose position corresponded to that
of Bell, but later testified that lie considered Bell responsible for any errors made
by the night man.
Upon a consideration of the above, the inconsistencies of Hogan's testimony,
Bell's long and favorable record with respondent , and the fact that the under-
signed was not favorably impressed with Hogan 's demeanor on the witness stand,
the undersigned rejects Hogan's testimony herein and credits that of Bell. It
is accordingly found that the reason assigned for Bell's discharge was not the
true reason therefor Inasmuch as Bell was active in the Union and respondent
had knowledge of that fact, the undersigned is of the opinion and finds that re-
spondent discharged Bell because of his union activities , thereby discriminating
with respect to the hire and tenure of his employment" It is further found that
"It may be argued that inasmuch as Bell was reinstated by respondent , after being
discharged by Jordan on May 20 for his union activities , respondent did not intend to
disciiminate against him and did not on this later occasion . In the opinion of the under-
signed this contention is not persuasive , in view of the circumstances of Bell ' s later dis-
charge . Furthermore , in view of the flagrant manner of the earlier discharge and its
obvious motivating factors, it seems more probable that it was decided to reinstate Bell
and await some pretext to eliminate him from the plant
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent has thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of respondent set forth in Section III, above, occurring in con-
nection with the operations of respondent described in Section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that respondent has engaged in certain unfair labor practices.
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action deemed necessary to effectuate the policies of the Act.
It has been found that respondent discharged and thereafter refused to rein-
state the employees whose names appear in Appendix A of this report, thus
unlawfully discriminating with regard to their hire and tenure of employment.
It will accordingly be recommended that respondent offer these employees imme-
diate and full reinstatement to their former or substantially equivalent posi-
tions 100 without prejudice to their seniority or other rights and privileges, and
that respondent make whole these employees for any loss of pay they may have
suffered by reason of the discrimination against them by payment to each of the
employees of a sum of money equal to that which he or she would normally have
earned as wages from the date of the discrimination against him or her, to the
date of the offer of reinstatement, less his or her net earnings 10} during that
period The date of discrimination as to all those named in Appendix A will be
found in Appendix B of this report
The record indicates and the undersigned finds that respondent, by the actions
of its officials and the discrimination against 16 employees, has engaged in a
campaign designed to defeat the self-organization of its employees and has
manifested an attitude of general opposition to the Act and to the rights guaran-
teed under Section 7 thereof. It will therefore be recommended that respondent
cease and desist from in any manner infringing upon the rights guaranteed in
Section 7 of the Act.102
As noted above, respondent operates 12 ice plants in and about the City of
Atlanta as component and integrated parts of its Atlanta Division. The record
does not disclose whether the organizational attempts of the Union have spread
to all plants in the division, but it is clear, as found above, that employees are
transferred among the respective plants and that all plants are subject to the
1°° In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto 'Rtco Branch, 65 N. L . R. B. 827.
101 See Matter of Crossett Lumber Company, 8 N L. R B. 440
101 See N. L. R . B. v. Express Publishing Company, 312 U. S. 426 , May Department Stoo es
Company v. N L. R. B , 326 U. S. 376
ATLANTIC COMPANY 763
same top supervision both as to sales and manufacturing operations. The
undersigned will therefore recommend that the notice appended to this report
and marked Appendix A be posted in each of the 12 plants of the Atlanta Division.
This recommendation is predicated upon the fact that these plants have a com-
mon employer and the same individuals, or some of them who have been found
to have demonstrated their opposition to self-organization of their employees in
violation of the Act, supervise the operations of all the plants, together with the
fact that all the plants are in close physical proximity to each other. It would
be unrealistic to assume, under these circumstances, that the unfair labor prac-
tices directed to the 6 plants involved herein did not quickly become well known
to the employees of the other 6 plants, and it is in order to remove the effect of
this deterrent that it is necessary that these employees be assured and notified
of respondent's compliance with the Act.10'
CONCLUSIONS OF LAW
1. Congress of Industrial Organizations is a labor organization within the
meaning of. Section 2 (5) of the Act.
2 By discriminating in regard to the hire and tenure of employment of those
employees whose names appear in Appendix A of this report, thereby discourag-
ing membership in a labor organization, 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 exercise
of the rights guaranteed in Section 7 of the Act. 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 aie unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5 Respondent has not discriminated with regard to the hire and tenure of
employment of Robert L 1[addox, Willie Brown, Robert Norton, Oscar Dobbins,
and Phillip Dooley.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this, case, the undersigned recommends that respondent,
its officers, agents, successors, and assigns shall:
1 Cease and desist from:
(a) Discouraging membership in Congress of Industrial Organizations, or in
any other labor organization of its employees, by discriminatorily discharging
any of its employees, or by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of-employment;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Congress of Industrial Organizations, or any other labor
organization, 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.
103 See Matter of Schramm and Schmieg Company, 67 N. L R B. 980.
764 DECPSIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to the employees whose names are set forth in Appendix A of this
report immediate and full reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority or other rights and privileges ;
(b) Make whole those employees whose names appear in Appendix A of this
report, by payment to each of them of a sum of money computed as set forth
in the section of this report entitled "The remedy" ;
(c) Post at each of the 12 ice plants in its Atlanta Division copies of the
notice attached hereto and marked Appendix A. Copies of said notice, to be fur-
nished by the Regional Director for the Tenth Region, shall, after being duly
signed by respondent's representative, be posted by respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by respondent to insure that
said notices are not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Tenth Region within ten (10) days
from the date of receipt of this Intermediate Report what steps respondent has
taken to comply herewith.
It is further recommended that the complaint be dismissed insofar as it
alleges that respondent has engaged in unfair labor practices by discriminating
with regard to the hire and tenure of employment of Robert L. Maddox, Willie
Brown, Robert Norton, Oscar Dobbins, and Phillip Dooley.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, respondent notifies said Regional Director
that it has complied with the foregoing recommendations, the National Labor
Relations Board issue an order requiring respondent to take the action aforesaid
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board pursuant to Section 203.38 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington
25, 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 ; and any
party or counsel for the Board may, within the same period, file an original and
four copies of a brief in support of the Intermediate Report Immediately upon
the filing of such statement of exceptions and/or briefs the party or counsel for
the Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203 65 As further provided in said Section 203.39, should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of service of the
order transferring the case to the Board.
MARTIN S. BENNETr,
Trial Examiner.
Dated March 26, 1947.
ATLANTIC COMPANY
APPENDIX B
765
April 26, 1946: James G. Herndon
E. E. Myrick
April 27, 1946: George Burtz
Robert R. Jackson
Allene Maddox
Van 'Watkins
April 29, 1946: John Byrd
hn KimblJ
May 2, 1946:
o e
Ollin D. Myrick
May 7, 1946: Eugene F. Guest
May 9, 1946: Rebecca Flowers
May 17, 1946: Linton W. Wilson
May 18, 1946: Robert W. Pause
May 19, 1946: Earl W. Meeks
June 6, 1946: Hardy Bell
June 12, 1946: H. E. Jordan