Bisbee Linseed Co.

National Labor Relations Board - Board Decisions

Dec 29, 1939

18 N.L.R.B. 993 (N.L.R.B. 1939)

In the Matter of BISBEE LINSEED COMPANY and FEDERAL LABOR
UNION 20223
Case No. C-1191.-Decided December 29, 1939
Linseed Oil and Cake Manufacturing Industry-Interference, Restraint, and
Coercion: anti-union statements ; questioning employees regarding union affilia-
tion and activities-Discrimination: charges of , not sustained.
Mr. Stephen M. Reynolds, for the Board.
Mr. Robert A. Meier, Jr., of Chicago, Ill., and Mayer, Meyer,
Austrian e€ Platt, by Mr. Richard Mayer and Mr. Frank Fowle, of
Chicago, Ill.' 'for the respondent.
Mr. Ben Law, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Federal Labor Union 20223, herein
called the Union, the National Labor Relations Board, herein called
the Board, by Leonard C. Bajork, Regional Director for the
Thirteenth Region (Chicago, Illinois), issued its complaint dated
September 17, 1938, against Bisbee Linseed Company, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and notices of hearing were duly served
upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged
in substance that the respondent had (1) by its officers, agents, and
employees advised, urged, and warned its employees to refrain from
joining or retaining membership in the Union and questioned them
concerning their labor-union affiliations; (2) partially suspended its
operations on May 19, 1936, and locked out and discharged 68 of its
employees because they had joined and assisted the Union; (3) refused
to employ 46 of the 68 discharged employees from May 19, 1936, until
during September 1936, because they had joined and assisted the
18 N. L. R. B., No. 106.
993
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union; (4) at all times since May 19, 1936, refused to employ 22 of
the 68 discharged employees because they had joined and assisted
the Union; and (5) by virtue of the foregoing acts interfered with,
restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On September 23, 1938, the Regional Director issued an order post-
poning the hearing and extending the respondent's time for filing an
answer. On October 10, 1938, the respondent filed an answer to the
complaint, denying the unfair labor practices charged.
Thereafter, pursuant to notice, a hearing was held at Chicago
Heights,. Illinois, from October 13 to 18, 1938, before Martin Raphael,
the Trial Examiner duly designated by the Board. The Board and
the respondent were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. During the course of the hearing the Trial
Examiner ruled upon numerous motions and objections to the admis-
sion of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On February 4, 1939, the Trial Examiner issued his Intermediate
Report, wherein he found that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (3) and Section.2 (6) and (7) of
the Act, and recommended that•the respondent cease and desist from
its unfair labor practices and take certain affirmative action remedial
of their effect. Thereafter, the respondent and the Union filed excep-
tions to the Intermediate Report. The respondent likewise requested
oral argument before the Board and permission to file a brief. On
April 1, 1939 , the respondent filed its brief.
Pursuant to notice, a hearing for the purpose of oral argument
was held at Washington, D. C., on September 19, 1939. The respond-
ent was represented by counsel and participated in the argument.
The Board has considered the respondent's and the Union's excep-
tions to the Intermediate Report and, in so far as they are inconsistent
with the findings, conclusions, and order below set forth, finds them
to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation with its principal place
of business at Philadelphia, Pennsylvania, and branches at Amster-
dam, New York, and Chicago Heights, Illinois. The respondent is
$1.5$EE LINSEED CO'M1?ANY 995
engaged in the manufacture of various kinds of linseed oil and cakes
from flaxseed. The plant at Chicago Heights, which alone is here
involved, is the second largest of its kind in productive capacity in
the State of Illinois. It comprises nine separate buildings and several
interconnected buildings grouped in four sections as follows : the
coke building, the pressroom, the refinery, and the engine room.
.
The principal raw material used by the respondent in its processing
of linseed oil is flaxseed, of which less than 5 per cent is purchased in
Illinois. Over 95 per cent is obtained from North and South Dakota,
Minnesota, and from Argentina and India., During the year 1937,
the respondent purchased and processed at its Chicago Heights plant
700,000 bushels of flaxseed, valued at over a million dollars. During
the same year the Chicago Heights plant manufactured, sold, and
shipped approximately 40,000 barrels of linseed oil, about half of
which was sold and transported into and through States other than
Illinois. About 80 persons, exclusive of supervisory employees, are
normally employed in production work at the Chicago Heights plant.
II. THE LABOR ORGANIZATION INVOLVED
Federal Labor Union 20223 is a labor organization affiliated with
the American Federation of Labor. It admits to membership non-
supervisory production and maintenance employees at the respond-
ent's Chicago Heights plant.
III. THE UNFAIR LABOR PRACTICES
A. The background of the unfair labor practices
During the first part of May 1936, Glen Maxwell, John W. Franke,'
O. L. Wilkerson, and John Jones, all employed by the respondent,
started to organize the Union. They quickly succeeded in arousing
the interest of a large number of other employees and between May
3 and 20, 1936, obtained signed application cards from 73 of the 75
to 85 production and maintenance workers then in the Chicago
Heights plant. Prior to the events herein described there had never
been a labor organization among the respondent's employees.
The first union meeting was held on May 14, 1936, at Carpenters
Hall in Chicago Heights with about 50 employees attending. Glen
Maxwell presided as acting president and John Jones was temporary
financial secretary. An organizer for the American Federation of
Labor, one' Schoenberg, spoke concerning rights of the Union, dis-
tributed literature, and signed up members.
To what extent the respondent had knowledge of the Union's activi-
ties during the organizing period is not clear from the record. All of
I Erroneously spelled John W. Franks in the complaint.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the evidence indicates, and the respondent admits, that by the middle
part of May 1936, it at least had information that many of the pro-
duction and maintenance workers were interested in a union. Carl
H. Schinke, manager and highest official of the Chicago Heights plant,
testified, however, that at that time he did not know what union was
involved or who, if any, of the employees had joined.
B. Interference, restraint, and coercion
In view of the fact that the respondent admittedly had only incom-
plete knowledge of the. status of union organization of the plant
during May 1936, its resulting course of conduct is of special signifi-
cance. The evidence indicates that on May 15, 1936, the day following
the first union meeting, Schinke went into the engine room at the
plant where J. W. Snow and others were employed. According to
the testimony of Snow, Schinke asked the group working there, "Do
any of you fellows know anything about this Union?" One of the
men replied that they did not, whereupon Schinke told them, "We
can't tell you not to join the union, but we won't run a closed shop."
At about the same time or a day later Schinke went into the meal
room'where seven or eight men were working. According to Tony
Butz, one of the employees present, the foremen called the men together,
announcing that, "Mr. Schinke wants to see everybody, he is going
to have a speech." Thereupon Schinke spoke, saying that a union is
"like a church" in that the employees could join or not as they saw fit.
Butz testified that Schinke went on to say that the respondent had
run the plant for a good many years, was still capable of doing so, and
if anybody did not like to work for "Bisbee" he should go and get a
job somewhere else; and that he threatened to lock the doors and nail
the windows so that there would be work for nobody. When ques-
tioned by the Trial Examiner as to what he understood to be Schinke's
meaning in the statements above Butz replied, "I don't know, because
that was all I could understand, it was on account of the union. If
they join the union, you know, then they could close up and there
would not be work for nobody." Several of the employees in the
meal room were union members at the time of this incident.
With regard to these talks with some of the employees Schinke
testified that his sole purpose was to explain to them that they were
free to join or not join a union as they might see fit. It seems clear
that this information was volunteered and the talks were initiated by
Schinke. His contention that the employees had requested informa-.
Lion concerning their rights to organize is not supported by the evi-
dence, as will be discussed below. He denied threatening to close the
plant should the men join the Union or saying that the respondent
would not run a closed shop. He admitted saying it had always run
BISBEE LINSEED COMPANY 997
an open shop and explained at the hearing that this meant that
whether the employees joined or did not join a union made no differ-
ence to the respondent. There is no evidence that employees had
requested a closed shop or asked concerning the meaning of an
open shop.
The Trial Examiner did not place full credence in Schinke's testi-
mony. It is amply established that when the respondent closed most
of its plant a few days later on May 19, 1936, a large proportion of
the employees it laid off at that time, including a number who had
worked through previous shut-downs, were convinced that they had
been laid off because they had joined the Union. Whether this belief
was justified or not will be discussed below; but the fact that it
existed is a strong indication that Schinke, rather than making it
clear to the employees that the respondent did not care whether they
joined or did not join a union, conveyed to them quite the opposite
impression. The other evidence in the case supports this view. We
find that, although Schinke may have told the employees that they
had a right to organize on the occasions discussed above, he stressed
that the respondent was opposed to their doing so.
On May 15 or 16, 1936, Earl Maxwell, refinery foreman, notified
Glen Maxwell and John Jones, then acting president and acting
financial secretary of the Union respectively, to go into the plant office.
At the meeting which ensued those present in addition to Glen Max-
well and Jones were Schinke and one Pierce, secretary of the Chicago
Heights Manufacturers' Association, of which the respondent was a
member. According to Jones' 2 account of the meeting, Schinke
opened the conversation by announcing that he had heard talk about
some organization. He asked Glen Maxwell and Jones, "What is it?"
The two men replied that a union was being organized in the plant.
Schinke thereupon separately questioned Glen Maxwell and Jones as
to what each knew about the Union. Jones answered that he "didn't
know anything about the Union." He reports that Glen Maxwell,
however, did admit knowing something about it and that Schinke
thereupon engaged Glen Maxwell in a conversation, the substance of
which he (Jones) could not remember. Jones further testified that
Pierce then read aloud something about the Wagner Act and that
Schinke said that he did not care whether the men belong to a union
or not, but that the respondent had always run an open shop. Before
the meeting ended, Schinke, upon Pierce's suggestion, instructed Glen
Maxwell and Jones to ascertain by general inquiry if the respondent's
employees wished to have their workweek extended from 40 hours to
48 hours.'
Jones was called as a witness by the respondent.
3 The respondent's employees received an hourly wage.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glen Maxwell's account of the same meeting follows :
He [Pierce] said we had a right to organize according to law,
and he read us different extracts from the Wagner Labor Act
* * * I can't remember what they were * * * pertaining
to unionism, and he said that the company had been running for
forty years and hadn't had any dealings with unions and didn't
intend to have any, that it was his business to fight unions in the
company and do all in his power to do so. Then he asked Mr.
Schinke why he hadn't raised their wages, and Mr. Schinke told
him that the company hadn't been able to do so, that they had
been doing a lot of building in order to keep the men at work,
and he asked Mr. Schinke if he didn't think it was possible for
him to do something about the wages. * * * He mentioned
that probably if they could give the men more hours that they
would be satisfied, and Mr. Schinke said that at that time he
didn't see why they couldn't give them more hours without any
raise in pay. He asked Jones and I if we wouldn't go out to
the men * * * Mr. Jones had influence in the press room and
I had in the refinery * * * and talk to the men and see what
we could do about it.
Also during the conversation they brought out that-
Q. [by attorney for the Board] Who brought out?
A. Mr. Schinke, that outsiders were trying to step in and run
the plant, and that wasn't their policy, that we would just get .
a raw deal out of it, that these high officials in these unions were
riding around in fine big cars and had nice homes, and he didn't
see where anything would come to our benefit. That is about all
that happened at that time.
At the hearing Schinke testified that he had called the meeting
because reports had come to him through Fred Fette, plant super-
intendent, and to the best of his memory, through Jones, that the
employees were interested in knowing what their rights were with
regard to union organization. The evidence does not support
Schinke's claim in this respect. Jones stated definitely that he had
never asked Schinke anything about the employees' rights to organize.
Fette testified, but mentioned no occasion when employees had asked
him about their rights or when he had spoken with Schinke concern-
ing them. On the contrary, he disclaimed any knowledge of organ-
ization at the plant, saying, "I don't know anything about the union.
Nobody ever explained anything to me about a union." Moreover,
Schinke himself testified that within a day or two before the meeting
Glen Maxwell had told him that the employees "had plans for some
kind of organization and that all they wanted was to be let alone."
B%SBE'E LINSEED COMPANY 999
In view of all of the testimony of Fette, Jones, and Schinke we
must conclude, and we find, that the above-discussed meeting was
planned and initiated by the respondent rather than by employees
interested in finding what their rights were with respect to organ-
ization.
The respondent introduced no evidence whatsoever in refutation of
Jones' testimony that Schinke questioned him and Glen Maxwell
concerning their knowledge of the Union during the meeting. We
therefore find that Schinke so questioned Jones and Glen Maxwell.
We have repeatedly held that an employer's questioning of em-
ployees about their union affiliation and activities under circumstances
such as those present here, contravenes the Act.4 The same is true
of questioning concerning the employees' knowledge of a union.
Here, the questioning occurred at a meeting called and arranged by
the respondent. The questions were directed at two officials of a
new union still in the preliminary stages of organization. Such
interrogation under these circumstances constitutes an implied threat
that the employer's economic power and superior position may be
used to the disadvantage of the individual employees disclosed to be
members of or active in the Union, and to the Union itself.
Schipke denied that at the meeting either he or Pierce had made
the anti-union statements attributed to them by Glen Maxwell.
Jones corroborated Schinke to the extent that he declared he did not
hear Schinke or Pierce make the alleged anti-union statements or
any like them. On the other hand, Jones testified that he did not
remember what Schinke said directly to Glen Maxwell or what Pierce
said about employees' rights under the Wagner Act. Pierce did not
testify.
Upon the basis of all the evidence in the case we are impelled to
accept in substance Glen Maxwell's account of the conversation at
the meeting. We find that, although Schinke informed Glen Max-
well and Jones at the meeting in question that the employees had a
right to organize under the Act, at the same time he clearly ex-
pressed the respondent's opposition and hostility to their forming a
labor organization for the purposes of collective bargaining and other
mutual aid and protection.
On May 15, 1936, Earl Maxwell, refinery foreman, told John W.
Franke and O. L. Wilkerson, refinery employees, both of whom
were active in organizing the Union, that they were discharged.
Franke had been employed by the respondent since 1932. He applied
for membership in the Union on May 3, 1936, and subsequently be-
4 Matter o f Foote Brothers Gear and Machine Corporation and United Office and Pro-
fessional Workers of America, No. 24, at al., 14 N. L. R. B. 1045 ; Matter of Harry
tichaoartz Yarn Co., Inc. and Textile Workers Organizing Committee, 12 N. L. R. B.
1139; Matter of Trenton Garment Company and International Ladies Garment Workers
Union, Local 278, 4 N. L. R. B. 1186.
283029-41-vo1. 1$-64
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came its secretary-treasurer. Wilkerson had been employed by the
respondent since 1922. Next to Earl and Glen Maxwell he was the
oldest man in point of service in the refinery, where he had worked
for 7 or 8 years. He applied for membership in the Union on May
4, 1936, and thereafter became one of its "guards." Both Franke
and Wilkerson testified that when Earl Maxwell told them they were
discharged they asked him for his reasons. Wilkerson said that Max-
well replied that it was "orders from the office." Earl Maxwell testi-
fied that he failed to answer them. Wilkerson further testified that
Earl Maxwell said at the time, "Glen will get his at nine o'clock
tonight too," referring to Glen Maxwell. Immediately after the dis-
charges both men went to the plant office and waited over an hour
to see Fette or Schinke, but neither appeared.
It is doubtful whether Earl Maxwell had authority to discharge
employees. Apparently Franke realized this because the following
morning he went to work as usual. Wilkerson, however, first looked
up Earl Maxwell who told him to again go to the office. He did
so and waited until Schinke came in. Wilkerson testified that Schinke
spoke to him as follows :
I understand that you fellows is organizing a union back there.
When I was told it, that you had taken a part in organizing, I
didn't believe it, because you had been here so long. I didn't
believe you would have a hand in anything like that.
I [Wilkerson]. said, "Why, I didn't think there was any harm,
-anything to it, .just- have a union, is there?"
And then he began to tell me what union would mean. *
He said * * * that they wouldn't have any outsider to in-
terrupt; that they had the plant and they had been running it
for 40 years and they wouldn't have no outsiders to come in and
run the plant. * * * He said, "We won't stand for it. We
will run our own business." .
He told me that according to the Wagner Act * * * he
had read it a few days ago. * * * and he recited some clauses
in the Wagner Act, the privileges the Wagner Act gave us to
organize and the privileges that the company had, not to accept
union, and he said that there had been no union and there never
would be. And from then on he talked and then he turned
to me and said, "If the company boarded up them windows out
there and shut this plant down and boarded up the windows
out there, why, you and I, either one, won't have any job."
And he said, * * * he pointed his finger at me and told
me, "You have influence over these men there, * * * you go
out there and talk to them fellows and tell them * * * we
haven't so far but we could do this because we want to comply
BTSBEIF' LINSEED COMPANY 1001
with the government. It is against the government's wishes to
work over 40 hours a week, but most every shop in town is on
48 hours. * * ' You go out there and tell the men we will
give them 48 hours to leave this thing alone." _
Thereafter Wilkerson returned to his work upon orders from Fette.
He further testified that a short time after the talk with Schinke he
met Earl Maxwell who berated him for not having previously ex-
plained that there was a labor union in the plant and said that he
[Earl Maxwell] could never make the office believe that he had not
known about the Union all along.
Earl Maxwell testified that he had neither orders nor authority to
discharge Franke and Wilkerson, but that he had received many re-
ports through "locker room news" and "gossip" that Wilkerson as
well as others had been loafing and congregating in groups to the
detriment of their work. He said that he discharged Franke and
Wilkerson, "using my own technique to try to put fear in the men to
get my work back on what I called a company paying basis." He
denied having spoken with Wilkerson after the latter's interview
with Schinke.
Schinke testified that when he spoke with Wilkerson in the office
he was unaware that Earl Maxwell had attempted to discharge him
the day before. He said that he told Wilkerson he was free to join
a union if he saw fit; that the respondent had always run an open
shop ; and that a discussion of the 48-hour week had followed. He
denied expressing hostility to the Union.
Wilkerson's account of Earl Maxwell's attempt to discharge him
and Franke and of his subsequent conversation with Schinke was
direct and positive. The Trial Examiner accorded it full credence
and, on the entire record, we credit it. We find that the attempted
discharges and the conversation Schinke had with Wilkerson were
designed to discourage the respondent's employees from continuing to
organize.
We find that the respondent, by the above discussed remarks and
acts of its officers and agents to its employees, questioning them con-
cerning their knowledge of the Union, openly expressing to them its
hostility toward the Union, and by inducing and encouraging them
not to organize, interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
C. The alleged lock-out and discharges
The complaint alleges and the Trial Examiner found that the re-
spondent on May 19, 1936, partially suspended its operations and
locked out and discharged 68 employees named in the complaint
for the reason that they joined and assisted the Union. The respond-
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent admitted the partial suspension of operations, but denied that
it had locked out or discharged the named employees for the reasons
stated.
The record is clear that for many years the respondent had cus-
tomarily suspended operations in the pressroom of not only its
Chicago Heights plant, but of its Philadelphia and Amsterdam, New
York, plants as well, for periods ranging from a week to a few months
during the spring or summer of each year. Such annual shut-downs
were made, according to the respondent, because of business reasons
involving an inter-relation between orders for shipment and quanti-.
ties of oil on hand, and the company's financial ability to carry such
inventory. Repairs that could not be made when the presses were
running were made during these periods.
Evidence concerning the May 19, 1936, shut-down shows that the
respondent stopped operation of its presses at the Chicago Heights
plant early in the morning on orders telephoned to Schinke from the
Philadelphia home office the previous night when he submitted his
weekly plant inventory report. The presses were idle until early in
August 1936, when operations were again started and subsequently
expanded, until by the end of September 1936 production was again
normal. As has been customary in other years, the refinery con-
tinued to operate during the 1936 shut-down in order to refine a
large stock of raw linseed oil then on hand. Also during the shut-
down certain repair work was done.
As to the interrelated factors which it contends were the immediate
causes of the May 19, 1936, shut-down, the respondent introduced the
following evidence.
Schinke testified that the respondent's capital was insufficient to
enable it to operate without banking accommodations. Its custom
was, he said, to curtail production in the spring or summer of each
year in order, by liquidating inventories at that time, to render a
favorable statement to the banks so as to secure credits to finance
operations during the succeeding year. The respondent's fiscal year
ended on August 31. It introduced an affidavit prepared by its
accountant showing the total of commercial paper, acceptances and
notes payable to banks on May 1 and August 31 for the years 1931
through 1936 as follows :
May 1 August 31
1931----------------------------------- $1,160,220.54 None
1932----------------------------------- 1,425,000.00 None
1933----------------------------------- 1,505,758.63 None
1934----------------------------------- 2, 631, 481. 59 None
1935----------------------------------- 2,119,344.94 $500,000
1936--- -------------------------------- 3,163 , 814.55 700,000
BISBE LINSEED COMPANY 1003
Schinke testified that for over a month prior to May 19, 1936, there
had been a steady decline in shipping orders from the Philadelphia
office. At the same time stocks of stored oil of various grades on
hand at the Chicago Heights plant had been mounting. The storage
capacity of the tanks owned by the respondent at Chicago Heights at
this time was 4,799,633 pounds. On May 18, 1936, the actual amount
of oil on hand was 6,086,800 pounds. The oil represented by the dif-
ference in the two figures was stored in 13 tank cars leased by the
respondent. On no previous occasion had it leased so many tank cars
for this purpose. Schinke testified that at 7: 00 a. m. on May 18, 1936,
there was room for the storage of only 78,444 pounds of raw oil. On
that day the plant processed 70,480 pounds of raw oil and shipped
48,741 pounds, leaving room for 56,705 pounds of new raw oil. At
that time the respondent was producing about 70,000 pounds of oil
a day.
Schinke alleged that the relationship between production and
orders had never before been so unfavorable. Summing up, the
respondent pointed out that on May 1, 1936, its indebtedness was
unusually high, that at the same time orders had declined and stocks
of unsold oil at the plant were so large that storage facilities were
taxed to capacity. The respondent contends that it was necessary
then, as in previous years under similar conditions, to liquidate the
inventory of stored oil in order that, by reducing its indebtedness,
it could obtain credit to finance operations for the following fiscal
year. Furthermore, as noted above, repairs were needed which
could not be made while the presses were running. We credit the
respondent's testimony as to these matters, since no substantial evi-
dence to discredit it was introduced at the hearing. Accordingly,
even though prior to May 19, 1936, the respondent discouraged union
organization among its employees, we do not feel that the evidence
supports a finding that the respondent shut down its presses on that
date because most of its employees had joined and assisted the Union..
Two questions still remain for consideration. First, did the re-
spondent use an otherwise legitimate shut-down as a means of dis-
criminatorily ridding itself of some union members who ordinarily
would have continued to work? Second, after the shut-down did
the respondent fail to reinstate certain employees because they had
joined and assisted the Union?
As to the first question, it is clear that during the shut-down
between 20 and 25 employees, including a number of foremen, con-
tinued to work. About 10 of these were employed in the refinery
prior to the time repairs were completed. The others were engaged
in repair and maintenance work. Witnesses testifying for the Union
stated that the respondent hired a number of new employees during
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the shut-down to do work which ordinarily would have been done
by union members allegedly laid off. Just which employee worked
during the shut-down and how many new ones were hired after May
19, 1936, is not clear because no pay rolls covering any part of the
period here involved were introduced in evidence.
Of the 18 employees testifying for the Union it appears that a
group of eight or nine was engaged in work of such nature that they
would ordinarily be retained by the respondent during shut-downs.
All of this group were union members. None was employed during
the shut-down starting May 19, 1936. The respondent did not at-
tempt to show why each of them individually was not retained. As
to three of them, however, Glen Maxwell, Wilkerson, and Franke,
it contended that they could have continued to work at their usual
jobs in the refinery, but that on the morning of the shut-down all
three mistakenly assumed that they were locked out and did not
even try to go through the plant gates. This contention is not
entirely convincing under all the circumstances, but the evidence does
show that all three failed to speak directly to either Schinke or
Fette the morning of the shut-down or for some time thereafter. It
is accordingly impossible for us to conclude that they would have
been refused employment had they made prompt application.
The respondent also showed that during the shut-down it had
certain repairs made which enabled it to operate the refinery with
3 or 4 men where it had previously required 9 or 10. There is no
convincing showing in the record that the respondent selected the
three or four men who were retained, on a discriminatory basis.
We cannot, therefore, find that any of the refinery workers who had
been employed through previous shut-downs, but who did not work
after May 19, 1936, were laid off because they had joined and assisted
the Union.
As to the three or four maintenance and repair workers whose
testimony indicated that they ordinarily had worked through pre-
vious shut-downs, but who were not employed after May 19, 1936,
we do not feel that there is sufficient evidence that they would have
continued to work but for their union membership to warrant a
finding that they were discharged because they had joined and
assisted the Union. At least two union members continued to work
during the shut-down.
. With respect to those employees not reinstated after May 19, 1936,
the evidence is incomplete. According to the complaint, as con-
formed to the proof, 44 of the 68 union members laid off at the time
of the shut-down were subsequently rehired and 24 were not. Due to
the absence of pay rolls at the hearing, the accuracy of these figures
is not certain. Of the 24 'persons, however, who, according to the
conformed complaint, were not reinstated after the shut-down, 10 did
BISBE'E LINSEED COMPANY 1005
not testify. The evidence does not show that these 10 men applied
for their former jobs when the plant resumed normal production, or
that the respondent failed to request them to return to work, or that
they were at such time available for work with the respondent. In
the absence of more complete information concerning the 10 men not
testifying we do not find that they were refused reinstatement
because they had joined and assisted the Union.
Of those persons not reinstated, 14 men, including 7 of those pre-
viously discussed, testified at the hearing. Here again the respond-
ent did not attempt to show why each of the 14 men had not been
reinstated. It contended that when it resumed operation of the
presses in August 1936, it gradually employed more men as needed
during a month and a half thereafter. The respondent's custom,
according to both Schinke and Fette, when additional employees
were required was simply. to go to the plant gate and hire from
among persons who might be waiting there. No substantial evidence
to the contrary appears in the record. Hence, it is not established
that the respondent, in hiring employees was obligated to seek out,
at places other than the plant gate, those previously engaged and to
request them to return to work. The record is barren of evidence
as to whether or not the 14 men under discussion have applied for
work since the plant reopened, and at a time when employees were
being hired.
On the basis of the entire record, we find that the respondent did
not lock out, discharge, or refuse to reinstate any of its employees in
violation of Section 8 (3) of the Act. The allegations in the com-
plaint charging the respondent with having discriminated against
certain of its employees in violation of Section 8 (3) of the Act
will be dismissed.
]V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON. COMMERCE
The activities of the respondent set forth in Section III B above,
occurring in connection with the operations of the respondent de-
scribed 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 com-
merce and the free flow of commerce.
THE REMEDY'
Having found that the respondent has interfered with, restrained,
and coerced its employees in their exercise of the rights guaranteed
in Section 7 of.the Act, we shall order it .to cease and desist there-
from and to post appropriate notices in its plant.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Federal Labor Union 20223, affiliated with the American Fed-
eration of Labor, is a labor organization, within the meaning of
Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
their exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
4. The respondent has not engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Bisbee Linseed Company, Chicago Heights, Illinois, and
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
Interfering with, restraining, or coercing its employees in the exer-
cise of their rights to self-organization, to form, join, or assist Fed-
eral Labor Union 20223, affiliated with the American Federation of
Labor, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid and protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Immediately post notices in conspicuous places throughout its
plant, and maintain such notices for a period of at least sixty (60)
consecutive days, stating that the respondent will cease and desist
in the manner aforesaid ;
(b) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (3) of the Act.