Cen-Tennial Cotton Gin Co.

National Labor Relations Board - Board Decisions

Jun 12, 1950

90 N.L.R.B. 345 (N.L.R.B. 1950)

In the Matter Of CEN-TENNIAL COTTON GIN COMPANY and INTER-
NATIONAL ASSOCIATION OF MACHINISTS
In the Matter Of CENTENNIAL COTTON GIN COMPANY and INTER-
NATIONAL ASSOCIATION OF MACHINISTS
Cases Nos. 10-CA-91 and 10-CA-0-Decided June 12, 1950
DECISION AND ORDER
On November 29, 1949, Trial Examiner Henry J. Kent 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 Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint and recommended dismissal of those
allegations. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief, and the Union filed a docu-
ment entitled Submission in Lien of Brief?
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and the supporting brief, and
the entire record in the case and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.3
i This document makes no mention of exceptions to the Intermediate Report. It merely
states in general terms that the entire record in the case supports a finding that the
Respondent discriminatorily discharged the four employees alleged in the complaint. In
view of the issues raised by the Respondent 's exceptions , we have reviewed the entire
Intermediate Report. We therefore find it unnecessary formally to determine whether
the Union 's Submission in Lieu of Brief is acceptable under Section 10 (c) of the Act as
exceptions to the Intermediate Report.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this ease to a three-member panel [ Members Houston, Rey-
nolds, and Murdock].
3 However , we deem it necessary to make the following minor modifications and clarifica-
tions : ( a) In finding that Jernigan was discriminatorily discharged, we place no reliance
upon Jernigan 's testimony, described in the Intermediate Report, as to the remarks of Lonnie
Brown, a rank and file employee, e. g., that Brown had heard some of the "higher ups"
state that Jernigan had joined the Union ; ( b) we also consider it significant in Jernigan's
case that Assistant Superintendent Hindsman admitted that if a welder's job had been
90 NLRB No. 46.
345
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Remedy
We have found, as did the Trial Examiner, that the Respondent
discriminated against W. M. Welch and W. R. Jernigan. Therefore,
as recommended by the Trial Examiner, we shall order the Respond-
ent to offer to each of these employees immediate reinstatement to
his former or substantially equivalent positions without prejudice to
his seniority or other rights and privileges.
However, we shall conform the back pay order recommended by the
Trial Examiner with the formula promulgated this day in F. W.
Woolworth Company, 90 NLRB No. 41, for the reasons stated therein,
by ordering that the loss of pay on the part of Welch and Jernigan
be computed on the basis of each separate calendar quarter or portion
thereof during the period from the Respondent's discriminatory
action to the date of a proper offer of reinstatement. The quarterly
periods, hereinafter called quarters, shall begin with the first day of
January, April, July, and October. Loss of pay shall be determined
by deducting from a sum equal. to that which Welch and Jernigan
would normally have earned for each such quarter or portions thereof,
their respective net earnings,4 if any, in other employment during
that period. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other quarter. We shall also order,,
in accordance with the Woolworth, decision, supra, that the Respond-
ent, upon request, make available to the Board and its agents all
pertinent records. 0
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board.
hereby orders that the Respondent , Cen-Tennial Cotton Gin Company,.
open that day, he would have rehired Jernigan when the latter had applied for reemploy-
ment about 4 months after his discharge for alleged incompetence ; ( e) although we find,
as the Trial Examiner did, that the revised form of application for employment and the
manner in which it was utilized by the Respondent constituted violations of Section 8
(a) (1), we do not adopt the Trial Examiner ' s further conclusion on the basis of such:
evidence that the Respondent evidently considered it was "privileged " to inquire into the
union affiliation and activities of its employees.
4 By "net earnings" is meant earnings less expenses , such as for transportation , room,.
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the Respondent, which would not have been incurred but for the.
unlawful discrimination and the consequent necessity of his seeking employment else
where. See Croaaett Lumber Company , 8 NLRB 440 . Monies received for work performed
upon Federal , State, county , municipal , or other work -relief projects shall be considered'
as earnings . See Republic Steel Corporation v. N. L. R. B ., 311 U. S. 7.
CEN-TENNIAL COTTON GIN COMPANY 347
Columbus, Georgia, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in International Association of Ma-
chinists, or any other labor organization of its employees, by discharg-
ing or refusing to reinstate any of its employees or by discriminating
in any other manner in regard to their hire and tenure of employment,
or any terms or condition of employment;
(b) Interrogating its employees in any manner concerning their
union affiliation, activities, or sympathies;
(c) In any manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor
organizations, to join or assist International Association of Machinists,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer to W. M. Welch and W. R. Jernigan immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges;
(b) Make whole W. Al. Welch and W. R. Jernigan, in the manner
set forth in the section entitled "The Remedy," for any loss of pay
each may have suffered as a result of the Respondent's discrimination
against them;
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and re-
ports, and all other records necessary for a determination of the
amounts of back pay due and the right of reinstatement under the
terms of this order;
(d) Post at its plant in Columbus, Georgia, copies of the notice
attached hereto marked Appendix A.5 Copies of said notice, to be
In the event that this Order is enforced by decree of the United States Court of Appeals,
there shall be inserted in the notice , before the words "Decision and Order ," the words
"Decree of the United States Court of Appeals enforcing."
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places which notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the receipt 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 insofar as it alleges that the Respondent discriminatorily dis-
charged. Wallace T. Rape and James May.
APPENDIX A
NOTICE TO ALL EMPLOYEES
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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL Asso-
cIATION Or MACHINISTS, or any other labor organization of our
employees, by discharging or refusing to reinstate any of our
employees, or by discriminating in any, other manner with re-
gard to their hire and tenure of employment, or any term or con-
dition of employment.
WE WILL NOT interrogate our employees in any manner con-
cerning their union affiliation, activities, or sympathies.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist INTERNATIONAL
AssocIATION Ol, MACHINISTS, 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 col-
lective bargaining or other mutual aid or protection, or to re-
frain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the National Labor Relations
Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and privi-
CEN-TENNIAL COTTON GIN COMPANY . 349
leges enjoyed, and make them whole for any loss of pay suffered
as a result of the discrimination :
W. M. Welch
W. R. Jernigan
All our employees are free to become, remain, or refrain from be-
coming members of the above-named union or any other labor organi-
zation except to the extent that the right to refrain may be affected
by a lawful agreement requiring membership in a labor organization
as a condition of employment. We will not otherwise discriminate
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 organizatior.
CLN-TENNIAL COrrox GIN COMPANY,
Employer.
By ----------------------------------------
(Representative) (Title)
Dated --------------------
This notice mast remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
James IV. Mfacisle, Esq., and William Af. Pate, Esq., for the General Counsel.
William B. Spann, Esq., of Atlanta, Ga., and Samncel E. Kelly, Esq., of Colum-
bus, Ga., for the Respondents.
Mr. Panel Chipman, of Atlanta, Ga., for the Charging Party.
STATEMENT OF TIRE CASE
Upon amended charges duly filed by International Association of Machinists,
herein called the Union, in Cases Nos. 10-CA-91 and 10-CA-92, the General
Counsel of the National Labor Relations Board,' by the Regional Director for the
Tenth Region (Atlanta, Georgia ), on October 1.3, 1948, issued a complaint against
Cen-Tennial Cotton Gin 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 (a) (1) and ( 3) and
Section 2 ( 6) and ( 7) of the Labor Management Relations Act, herein called
the Act. On the same date the said Regional Director issued an order con-
solidating cases and notice of hearing thereon. Copies of the charges, the order
consolidating the cases , the complaint , and notice of hearing were duly served
upon the Respondent and the Union.
With respect to the unfair labor practices the complaint as amended alleges;
in substance , that the Respondent : ( 1) Discriminatorily discharged employees
W. M. Welch and Wallace T. Rape on September 24, 1947; James May on Sep-
' The representative of General Counsel at the hearing is herein referred to as the General
Counsel, and the National Labor Relations Board as the Board..
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tember 26, 1947; Charles C. Cowart 2 on October 4, 1947; and W. R. Jernigan
on October 17, 1947, because each of the above-named employees was a member
of or engaged in activities upon behalf of the Union; (2) by certain named
officers and agents interrogated employees concerning union activities, and
threatened or warned employees that they would be discharged unless they
refrained from assisting or becoming members of the Union; (3) on or about
September 30 and October• 21, 1947, granted general wage increases to its
employees to discourage membership in the Union; and (4) by the above con-
duct Respondent interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act.
The Respondent duly filed its answer and an amended answer before the
hearing opened, generally admitting the allegations concerning its business
operations, but denying the commission of the unfair labor practices alleged..
A preliminary moV.on filed by the General Counsel before the hearing opened,
requesting further particulars concerning Respondent's defense to the 8 (3)
allegations, was assigned to Trial Examiner Herman Marx for disposition.
Marx ordered Respondent, on November 5, 1948, to furnish particulars, and
Respondent duly complied with the order.
Subsequently, Respondent filed a preliminary motion requesting further partic-
ulars concerning the 8 (1) allegations in the complaint. Trial Examiner Marx
on November 24, 1948, ordered particulars be furnished. This order had not
been complied with before the hearing and the motion was renewed before the
undersigned, who confirmed the prior ruling of Trial Examiner Marx. On
November 30, 1948, the General Counsel filed an application for special leave
to appeal with the Board from the rulings of both Trial Examiners. There-
after, on December 1, 1948, the Board denied the application for special leave
to appeal from the said rulings. Meanwhile, on the same date, the General
Counsel filed the required Bill of Particulars, before the receipt of the Board's
order.
Pursuant to notice, a hearing was held at Columbus, Georgia, from November
30 to December 10, 1948, before the undersigned Trial Examiner, duly desig-
nated by Chief Trial Examiner. The hearing was thereafter reopened by the
undersigned on April 27, 1949, at Atlanta, Georgia, pursuant to a motion
filed with him by Respondent to receive additional newly discovered evidence
tending to show that one B. F. Linzu, one of the principal witnesses for the
General Counsel, had twice been convicted of felonies, prior to the instant
hearing.'
The Respondent and General Counsel were represented by counsel at the
hearing and the Union by a representative. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence pertinent
to the issues was afforded to all parties. Counsel for the General Counsel and
the Respondent presented oral argument following the close of the testimony.
A brief has been duly received from the Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
2 During the hearing , the General Counsel moved to dismiss the allegations in Cowart's
case without prejudice because Cowart is a member of the Armed Forces and presently
unavailable to appear and testify . The motion was granted and no further disposition of
Cowart' s case will be recommended herein.
'The Respondent ' s motion and other pleading filed in opposition thereto together with
proof of service of such papers have been physically inserted in the Exhibit file for April
27, 1949, by the undersigned and marked as Trial Examiner's Exhibits 1 to 5.
CEN-TENNIAL COTTON GIN COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
351
Respondent is a Georgia corporation engaged at Columbus, Georgia, in the
manufacture, sale, and distribution of cotton gins and related equipment, and
of bodies used on beverage distributing trucks.
In the course of its business operations during the year ending August 1, 1948,
the Respondent purchased raw materials consisting principally of iron and steel
valued in excess of $250,000, of which 90 percent was transported to its Columbus
plant from States of the United States other than Georgia. During the same
period, its sales and distribution of finished products exceeded $1,000,000, in
value, of which approximately 75 percent was sold and shipped to customers out-
side the State of Georgia.
II. THE ORGANIZATION INVOLVED
International Association of Machinists is a labor organization admitting to
memberships employees of the Respondent.
III. UNFAIR LABOR PRACTICES
A. Introductory factual and labor relations background; the issues
The Respondent for many years has been engaged in manufacturing cotton gin
machinery at its plant in Columbus, Georgia. This business was seasonal in
nature due to the fact that cotton gin machinery is only used to a substantial ex-
tent from the latter part of June to the latter part of. September in each year.
Consequently, about 25 percent of the employees engaged in these operations was
customarily laid off for extended and indefinite periods during the month of
September and about another 25 percent was thereafter laid off during the month
of October in each year. Employment started to pick up again during the follow-
ing January to some extent, but the peak employment load was not reached again
until April or May from which time it continued at a high level of about 100
employees until about September when layoffs began again.
In the spring of 1946, the Respondent started to manufacture beverage truck
bodies in one of its plant buildings.' These bodies consist of several floors or
decks welded on a skeleton steel frame. Usually a metal sign is mounted length-
wise over the roof of the body bearing the name of the product dispensed or the
name of the dealer selling it. Respondent asserts that it went into this new line
of product hoping that it could reach a seasonal peak in these operations during
the late fall and winter months, thus keeping its plant and employees working on
a comparatively high production schedule for most of the year, but as shown by
the record this expectation was not realized and the peak production period in
the Body Division coincided to a marked degree with that in the so-called Gin
Division. In the Beverage Body Division the employment records indicate
that the busy period extended from about June to October when an average of
about 55 men were steadily employed. About 80 percent of all these employees
was engaged in welding operations.
" These bodies are mounted on an automobile truck chassis owned by manufacturers of
liquid beverages , such as beer or soft drinks and the entire assembly is used to deliver
beverage products to the customers of the beverage manufacturers.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record further shows that during the year of 1947, the Respondent was
unable to purchase all the sheet steel it required to fill orders it could have taken
and that by reason thereof it lost some business and was forced to curtail
production and start laying off more of the employees in each of the two divisions
during the months of September and October 1947, than would have been the case
had more steel been available on the market for purchase!
The Union commenced to organize the employees in the Beverage Body
Division about the middle of September 1947. An organizational meeting was
held for these employees on September 20. Within 1 week about 75 percent of
the Body Division employees had joined the Union.' A few weeks later the
Union started to organize the employees in the metal shop department of the
Gin Division and held an organizational meeting for these employees on the
night of October 16. About 16 men were employed in the department and nearly
all of them joined the Union.' The metal shop was cut down to 1 mechanic
and a helper on October 18, for the asserted reason that Respondent lacked
materials to continue operations. It is not contended that the shut-down con-
stituted a lock-out.
During the latter part of September 1947 several employees in each of the
two divisions were laid off for the asserted reason that a shortage of materials
or orders required a reduction in force. Of these, the General Counsel contends
and Respondent denies that W. M. Welch, a welder in the Body Division, and
Wallace Rape, a machinist in the Gin Division, were discharged or laid off on
September 24, 1947, because of their union activities, and that on September
26, 1947, James May, a sheet worker in the Body Division, was also discharged
or laid off because of his union activities.
Thereafter on October 17, 1947, according to the contention of the General
Counsel, Respondent discharged W. R. Jernigan because he engaged in union
activities. Respondent admits discharging Jernigan, but asserts that he was
discharged for turning out an excessive amount of poor work.
In addition the General Counsel, in effect, asserts, and Respondent denies
that Respondent interrogated employees concerning union activities and granted
wage increases to its employees to induce them to refrain from assisting, becom-
ing members of, or remaining members of the Union.
B. Interference, restraint, and coercion
1. By Superintendent T. F. McDonald of the Body Division
As noted above the first organizational meeting for the employees of the Body
Division was held on Saturday, September 20, 1947. Counsel stipulated on the
record that the Union by a letter dated September 22, 1947, and received that
e The above findings are based upon records and other evidence submitted by the Re-
spondent which has not been convincingly refuted.
6 Insofar as the record shows there had been no earlier attempt to organize any of the
employees by any union.
IThe Gin Division is comprised of the following departments headed up by a superin-
tendent and assistant superintendent with separate foremen for the various departments,
namely, the machine shop ; the paint department ; the assembly department ; the shipping
and delivery department which serves the entire plant ; and the metal shop. The Body
Division functions under the supervision of its own superintendent and foremen and oper-
ates as a separate integrated department of Respondent's business.
In the Gin Division, the supervisors directly concerned with the events herein were
Frank Sanders, superintendent, John Hindsman, assistant superintendent, J. Frank John-
ston, foreman of the metal shop and Dudley Simmons, foreman of the machine shop. In
the Body Division, T. F. McDonald was a superintendent and Ellis Cosby was the foreman.
CEN-TENNIAL COTTON GIN COMPANY 353
same day, or the following day, requested recognition as the bargaining repre•
sentative of Beverage Body Division employees.
On or shortly after September 22, Superintendent McDonald of the Body
Division entered into discussions with several of his employees concerning
union activities at the plant. According to the credited testimony of employee
Samuel Weaver, shortly after the Union commenced to organize McDonald
asked Weaver if the latter were going to join the Union, and Weaver replied,
in substance, that he knew nothing about unions and was not going to jump
into something he knew nothing about e Weaver further credibly testified
that a few days later McDonald similarly interrogated Weaver again, that
Weaver gave it similar reply to that given McDonald on the first occasion, where-
upon McDonald asked him to mingle with the employees during the lunch
hour and endeavor to learn who were members of the union. Weaver, however,
asserts that he did not do so, and said he quit his job to join the Army a few
months later n Weaver further testified union members in the Beverage Body
Division, who constituted an overwhelming majority of the employees in the
division later started to wear their union buttons while at work in the plant.10
Several other witnesses, called by the General Counsel, namely employee
B. F. Linzy, C. R. Owens, and Hollin Simmons, gave similar testimony to that
related above by Weaver regarding interrogations made of them. concerning
union activities, by McDonald. McDonald asserts that Linzy and Owens volun-
tarily gave McDonald information regarding union activities, but denies that
he ever interrogated any employee concerning the Union 11 Although I believe
that Linzy, Owens, and Simmons were inclined at times to exaggerate and over-
state facts, the record plainly shows, as further developed below in the discussion
concerning the Respondent's application for employment form, that McDonald
mistakenly believed Respondent was privileged to inquire into the union
affiliations of its employees and that he devised this form for the purpose and
with the intent of obtaining such information. Accordingly, since McDonald
admits he had discussions regarding the union with Weaver, Linzy, and Owens,
I deem it unlikely that McDonald would have resisted the temptation to obtain
additional information concerning such matters at the time he was talking with
these employees. Accordingly, I conclude and find that McDonald did interrogate
Weaver, Linzy, Owens and Simmons regarding matters of union concern.
McDonald testified that sometime after October 1, 1947, he prepared the
application for employment form now currently used by the Respondent. The
form previously used for several years had been prepared by the United States
War Department and contained, among other things, this question : "of what
societies or organizations (social or fraternal or military) [emphasis supplied]
"McDonald denied interrogating Weaver concerning union activities, but admitted that
during a conversation with Weaver the latter had told McDonald that he, Weaver did not
belong to the Union. For reasons more fully set forth below I credit Weaver's above
testimony.
0 The Body Division members started to wear union buttons on or about September 29,
1947, according to employee Tade, an employee in the Body Division.
10 Except for Tade's above testimony. the record fails to show the date that union
adherents started to wear these buttons, but there is no dispute that substantially all of
these did so on or about September 29.
11 The undersigned believes that little credence should be accorded Linzy's uncorroborated
testimony. In effect, he admitted that he turned informer because he erroneously believed
Respondent would grant him a wage increase for giving information concerning union
activities. In addition, the record shows that Linzy was convicted in two cases involving
felonies several years ago, and that presently he is confined at the Atlanta penitentiary for
violation of parole in respect to one of these convictions.
903847-51-24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are you a member." In redrafting the form McDonald changed this question to
read as follows :
"Club or organization of which you are a member".
This alteration in the form now used clearly requires employees to state their
union affiliations , whereas the old form did not. Moreover McDonald in explain-
ing his reasons for changing the phraseology of the question relating to member-
ship in organizations clearly states that Respondent wanted such information
for he gave the following testimony on cross-examination.
Q. In devising this form you followed as a guide the form that is in evi-
dence as Respondent's Exhibit 36, did you not?
A. Yes, sir.
Q. And you are familiar with the question that appears near the bottom
of that form, and I quote : "Of what societies or organizations (social,
fraternal or military) are you a member". You, are familiar with that ques-
tion on this form?
A. Yes, sir.
Q. And it was from that question that you copied the question appearing
on the form that is now in use. Is that correct?
A. That is correct, yes, sir.
Q. But in doing so you omitted the words "social, fraternal or military",
did you not?
A. Yes, sir. I believed I said what "clubs or organizations."
Q. Yes, I believe that the form now says "clubs or organizations of
which you are a member".
A. Yes, sir.
Q. Why did you omit those words?
A. No particular reason. I just put down "clubs and organizations". I
didn't have any reason for leaving that other out.
Q. And then after you started using this new form you soon noticed in
answer to that question the applicants were stating their union affiliations,
didn't you?
A. If they were a member of the Union, of course, they put down that
way.
Q. And it was expected that they put that down, was it not?
A. Any organization that they were members of, yes, sir.
Q. And that would include a labor organization, would it not?
A. That is right.
Q. And under the form that had been in use they would not indicate a
labor organization. Is that correct?
A. I don't know. I never had one of those filled out.
Q. You don't know that they put on that?
A. No, sir.
Q. But the form itself did confine to social, fraternal or military, as it
shows itself.
Did you ever tell any of the applicants not to show labor organizations
on this form?
A. No, sir. I didn't tell them one way or the other. I left that entirely
up to them.
Q. And you noticed that they were doing it?
A. Some of them were, yes, sir.
Q. Did you want that information?
CEN-TENNIAL COTTON GIN COMPANY 355
A. We wanted the information on any organization that they were a mem-
ber of, yes, sir.
Q. Why did you want to know whether they were a member of a labor
organization?
A. Well, no other reason than we would want to know if they were a
member of a church. We just wanted the information.
Q. What use would you have for the information about whether an em-
ployee was a member of a labor organization in connection with business?
A. I didn't say that we particularly wanted that information. That was
just one of the questions and that was the way it was answered. We didn't
ask them if they were members of a labor organization. We asked them if
they were members of any organization and they told us they were and we
put it down.
Q. You wanted to know whether they were members of a labor organi-
zation?
A. Not necessarily.
Q. But you asked them?
A. We didn't ask them if they were members of a labor union, no.
Q. But that was one of the types of organizations that was placed in that
place on the application? .
A. That is an organization.
2. By Assistant Superintendent Hindsman in the Gin Division
James Perkins, an employee in the metal shop of the Gin Division credibly
testified in substance, as follows : Hindsman during a personal conversation in
the plant with Perkins held several days before the metal shop closed down on
October 18, 1947, remarked, in substance, to Perkins that Hindsman understood
the Union was attempting to organize the metal shop and asked Perkins what
the latter knew about it, that Perkins replied that the only organizing Perkins
had heard discussed was over in the Body Division ; that a day or two later
Hindsman came to Perkins and asked Perkins if the latter had been requested
to attend an organizational meeting of the Union for the metal shop employees,
whereupon he; Perkins replied, "No." According to Hindsman's version of
these incidents, he admitted engaging in one conversation with Perkins regarding
union activities but asserted that Perkins initiated the conversation by asking
Hindsman if the latter had heard about a union disturbance in connection with
organizing the Body Division. In addition, however, Hindsman also admitted
that he then asked Perkins "Why, there is no disturbance [over the Union] in
the metal shop" is there? after first telling Perkins that he, Hindsman was
aware of the union activities in the Body Division. Regardless of which version
is found to be the more accurate, there can be no doubt that Hindsman inter-
rogated Perkins concerning union activities in the metal shop. Hindsman also
admitted, while testifying, that about 2 days before October 18, Linzy, one of
the welders in the Body Division, stopped Hindsman in the plant and told the
latter that the metal shop employees were all going up to the union hall that
night to join the Union. Accordingly, a realistic consideration of all of the
evidence leads me to believe and I find that Hindsman asked Perkins if the
latter was going to attend a meeting of the Union with other employees of the
metal shop, for as indicated by the adoption by the Respondent of the revised
application for employment forms discussed above and below, the Respondent
evidently considered it was privileged to inquire into the union affiliation and
activities of its employees and did not hesitate to do so.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that when employees Burkhalter, Sasser, McClung, and
Perkins, all employees in the metal shop at the Gin Division returned to work on
various dates in December 1947 or January 1948, following the shut-down of the
shop on October 18, 1947, they were all required to sign the revised application
for employment forms adopted by Respondent. The questions appearing in the
forms, except in the case of Burkhalter, were read to them and the replies were
written down by Hindsman or his secretary."
The application forms of Sasser, McClung, and Perkins were received in
evidence. All three of the forms show that these employees gave the IAM Union
as the name of an organization they were affiliated with.
In addition to the above evidence concerning interrogations of employees by
Hindsman concerning union activities, employee Richard Allen related a rather-
full and detailed account of a purported conversation between him and Hinds-
man in the latter's office. Hindsman categorically denied that the conversation
took place. Since Hindsman on the whole appeared to be a reasonably trust-
worthy witness and, at most a finding regarding this incident would be merely
cumulative I deem it unnecessary to resolve the conflict and will make no finding
in respect to it.
Several of the General Counsel's witnesses also gave testimony concerning
purported interrogations or threats by one Lonnie Brown a leadman in the so-
called metal shop's in the Body Division of the plant for the apparent purpose
of showing Brown had engaged in unlawful antiunion threats or interrogations
which may be imputed to the Respondent. Brown categorically denied the testi-
mony given by these witnesses. Moreover, the record shows that Brown was-
merely an hourly paid employee receiving the same top wage rate as many other
rank and file employees, and that over 80 percent of his time was spent at manual-
labor. In addition, it was stipulated on the record that Brown was a rank and
file employee.
The Respondent, in effect, contends that the above-found instances of inter-
rogation are outside the proscription of the Act. I do not agree. The Board
has consistently taken the position that Section 8 (a) (1) of the Act is violated,
when an employer interrogates his employees concerning any aspect of union
activity."
The express purpose of the Act is to protect the "exercise by workers of full
freedom of association, self organization, and designation of representatives of
their own choosing for the purpose of negotiating the terms and conditions of
their employment or other mutual aid or protection."" Consonant with this
objective, Section 7 of the Act declares that employees have the "right" to engage
in organization and association, and Section 8 (a) (1) makes it an unfair labor
12 Burkhalter filled out his own application. Hindsman then checked it over with Burk-
halter . He noted that Burkhalter had failed to answer the question seeking information
regarding "organizations ," whereupon Hindsman then asked Burkhalter , "don't you belong-
to any organization" and when Burkhalter replied, "Yes, to the Union," Hindsman said,.
"Write it in there," and Burkhalter did so.
13 This was merely a small section comprised of from 6 to 8 employees working at one
end of a large open room in which all Body Division operations are carried on under the
supervision of Foreman Cosby of the Body Division. It should not be confused with the
metal shop department of the Gin Division more frequently mentioned in the record as
the metal shop.
"Stan dard - Coosa-Thatcher Co., 85 NLRB 1358 ; Greensboro Lumber Company, 1 NLRB
629, 632 ; Sewell Mfg . Co., 72 NLRB 85, enfd . as modified ( on other grounds ) 172 F. 2d
459 (C. A. 5) ; Ames Spot Welder Co., Inc., 75 NLRB 352, footnote 6; Wytheville Knitting,
Mills, Inc., 78 NLRB 640, enfd . as modified ( on other grounds ) 175 F. 2d 238 ( C'. A. 3.)
Minnesota Mining & Mfg. Co., 81 NLRB 557.
15 Section I of the Act.
CEN-TENNIAL COTTON GIN COMPANY 357
practice for employers to "interfere with, restrain, or coerce" employees in the
-exercise of that right.
The Board, with the approval of the courts, has long recognized this right
to privacy in condemning as unlawful interference such indirect attempts by an
employer to secure information about the union activities of employees as resort
to espionage or surveillance. When espionage is successfully concealed, "re-
:straint" and "coercion" may perhaps be absent, but the conduct is nevertheless
vulnerable on the ground of "interference," if on no other. So it is in the case of
:interrogation. The employer may not legally seek information on those subjects
,which the.statute makes the sole concern of his employees.
Furthermore, the requirement that employees disclose their union affiliation in
the application for employment forms currently used by the Respondent is a clear
,violation of Sections 7 and 8 (a) (1) of the Act."
3. The general wage increases of September 29 and October 20, 1947.
It was stipulated on the record that two general wage increases were granted
by the Respondent to its employees, the first effective as of September 29, and the
second on October 20, 1947.
Respondent asserts that it had always followed a general policy of granting
wage increases to its employees whenever it ascertained that its wage rates were
below those paid by other employers in the area for comparative work. How-
eever, there was no showing made in this. record regarding the current wage scale
of other employees. Moreover, it would seem unusual for an employer to grant
two general wage increases in a period of less than 1 month. Significantly, the
first increase was granted at the height of the Union's organizing campaign in
the Body Division, and the second just after the Union had succeeded in organiz-
ing the employees in the metal shop department of the Gin Division.
In view of the surrounding circumstances and the timing of these wage in-
creases, a fair inference is warranted that Respondent granted them to induce
its employees to refrain from joining or remaining members of the Union.1'
On all of the foregoing and the entire record the undersigned finds that the
Respondent by interrogating its employees regarding matters of union concern,
by adopting and using employment application forms requiring the disclosure by
prospective employees of their union affiliations, and by granting wage increases
with the purpose and for the intent of inducing employees to refrain from
joining or remaining members of the Union, interferred with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation also of Section 8 (a) (1) thereof.
0. The layoffs in September and October 1947
1. GENERAL CONSIDERATIONS
As noted above the Respondent's business is seasonal in character. The busy
period in the Gin Division extended from May until early in September when
approximately 100 employees were carried on its payroll. Customarily about 25
percent of the employees were laid off each year during the fall months and there-
after there was a more or less continuous drop in the employment level until
March in each year when employment picked up again, and by late May or June
the peak payroll was again reached.
1" Fairmont Creamery Co., 73 NLRB 1380; D. W. Onan d Sons, 50 NLRB 195.
n Matter of Wilson t Co., 77 NLRB 959; Lancaster Garment Company, 78 NLRB 935.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employment conditions in the newly established Body Division were substan-
tially the same, except that in a normal year layoffs in this division would prob-
ably not start until the month of October. However, the record convincingly
shows that due to a shortage of steel during 1947 and particularly fabricated
steel sheets available for purchase by industry, the Respondent was unable to
accept and fill all orders that could have been obtained from customers for each
of its products. Consequently, as credibly asserted by the Respondent, it was
forced to curtail production in 1947, and reduce its force somewhat earlier than
otherwise would have been the case.
Welch, one of the complainants herein, enlisted the aid of the Union to help
organize the employees about the middle of September 1947, or about the time
Respondent had concluded that it must curtail production.
As the General Counsel admits in his oral argument, the problems presented
for determination before arriving at a decision whether certain of the employees
were discriminatorily discharged or validly laid off during a necessary reduction
in force present complex questions for resolution.
Of some 6 employees, who were laid off in the Body Division from September
24, to October 1, 1947, the discharges or layoffs of only two, namely W. W.
Welch and James May, were alleged to be discriminatory." Likewise, although
the employment records show that about 17 employees were laid off in the Gin
Division from September 24 to October 18, 1947, the complaint only charges dis-
crimination in respect to two of those laid off. namely Wallace Rape and W. R.
Jernigan.
2. Specific considerations as to discriminatory discharges or layoffs
a. W. M. 1]7e!ch
Welch was employed as a welder in the Body Division of the plant: in the
Spring of 3947. He was continuously employed on the same job until he was
laic] off on September 24, 1947, for the asserted reason that a current shortage in
essential materials and falling off in orders required a reduction in force.
Welch was the fourth rank and file employee to be hired when the Respondent
went into actual production of the so-called beverage bodies in the newly estab-
lished Body Division at the plant. At the time of his layoff, he and two other
welders were engaged on the same operations, namely welding up skeleton body
frames in three similar jig forms designed and used to hold the component steel
members constituting a body frame in place until they were welded together.
Welch was primarily responsible for bringing the Union into the plant, for the
record shows that the plans to organize the Body Division employees were ini-
tiated by Paul Chipman, a grand lodge representative of the Union, at a meeting
held with Welch at the latter's home about the middle of September 1947. Fol-
lowing this meeting with Chipman, Welch was primarily responsible for inducing
over 30 employees of the Body Division to attend the first organizational meeting
of the Union on September 20, 1947. Substantially all of the Body Division
employees who attended joined the Union at the meeting."
Superintendent Hindsman, of Respondent's Gin Division, admitted that Linzy,
another welder in the Body Division, called Hindsman on the telephone, at the
Is In addition to these six, two other employees voluntarily quit during this same period,
and no replacements were hired to fill any of the positions vacated as a result of the layoffs.
19 By letter dated September 22, 1947, and admittedly received by Respondent on this same,
or the following day, the Union claimed to represent a majority of all of the Body Division
employees and requested recognition as their bargaining representative.
CEN-TENNIAL COTTON GIN COMPANY 359
.latter's home, one night shortly before Welch's services were terminated and
informed Hindsman that Welch was the leader of an organizing drive in the
Body Division.
The Respondent asserts, and not without convincing support in the record as
found above, that a critical shortage of steel together with a falling off in orders
forced Respondent to materially curtail production and reduce its force during
the latter part of September 1947. According to the testimony of Superintendent
McDonald and Foreman Cosby of the Body Division, they discussed the current
curtailment problem and decided to discontinue operating one of the three body
welding jigs in addition to reducing the number of employees then working on
other operations.20
Cosby asserts that he recommended to Superintendent McDonald that Welch's
jig be shut down, because he, Cosby had observed and frequently reprimanded
Welch for leaving his work during the previous 2 weeks to engage in extended
conversations with other employees.21 On the other hand, Welch categorically
denied neglecting his work at any time during his employment, or that Cosby
had ever reprimanded him for such conduct. Welch's testimony in this respect
was supported by that given by employees O. W. McBride, John Wright and
James Tade all of whom worked near Welch. They testified, in substance, that
Welch never left his work except for brief periods when Welch went to get a
drink of water or to pick up materials lie needed to use in connection with his
work, and that (luring these occasions Welch engaged in no extended conversa-
tions with fellow employees, but merely made some casual remark when passing
by, a practice that had been permitted at all times in the shop.' Cosby also
admitted that the 2 employees working on the other 2 body jigs, and turning out
the same kind of work Welch was doing, had been absent from work for 2 or
3 days on a week-end drunk just before Welch was laid off on September 24, 1947.
Nevertheless, Cosby asserts that when he turned in the above adverse report
on Welch to McDonald he did not mention the fact that the other 2 body welders
retained for work had just returned to work after an absence of several days
because they had kone a week-end drunk."
Shortly before the end of the working day on September 24, Cosby told Welch
that he, Cosby, had to lay Welch off because it was necessary to shut down one
of the body welding jigs, but that Welch would be recalled to work about Janu-
ary 1948. Welch was not recalled but, according to a stipulation in the record,
Welch returned to the plant on February 23, 1948, and filed a new application
for employment as a welder. According to Welch's credited testimony, he handed
the application to Assistant Superintendent Hindsman, who at the time stated
Welch would be notified when the services of welders were required. He has
never been recalled to work.
20 As previously noted six employees in the Body Division were laid off from September
24 to October 1, 1947, in the Body Division, but only two of these layoffs, namely Welch's
and that of James May are alleged to be discriminatory.
21 It is noted that this was during the period when the union activities were at their peak.
22 Basing his conclusion upon his observation of the witnesses and a realistic consideration
of all the evidence in the record, the undersigned concludes that the above testimony given
by Welch, McBride, Wright and Tade is the more reliable and he finds that Welch was not
neglecting his work during this period.
22 The record plainly shows that in addition to receiving reports from Cosby concerning
the work performed by the employees, Superintendent McDonald personally checked the
work of aII`employces in the department one or more times each day. Therefore it is
difficult to understand how McDonald could have been unaware of the delinquencies of
the other two body frame welders who were retained.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A consideration of the foregoing facts, together with all of the evidence,
convinces the undersigned that Welch was discharged on September 24, 1947,
because of his activities on behalf of the Union. Hindsman admitted that he had
been informed that Welch was a leader in the union activities and the record
shows that the Union, by letter received by the Respondent on September 22 or
23, 1947, claimed to represent a majority of all Body Division employees. The
interrogation of employees concerning Union activities found above, together
with the timing of the two general wage increases given during the peak of the
organizational campaigns among the Body Division employees and the employees
in the metal shop department at the Gin Division clearly indicates that Re-
spondent was opposed to union organization among its employees. Consequently
a fair inference arises that Welch was discharged because he was a leader in
the Union activities and not merely laid off for economic reasons, as asserted
by Respondent. His working record as found above was less open to fair criti-
cism than that of two other employees who were doing the same work Welch
was doing, and who were both retained.
On all the above, and the entire record, I find that Welch was discriminatorily
discharged on September 24, 1947, for the purpose of discouraging membership
in the Union in violation of Section 8 (a) (3) of the Act, and that by the said
discharge Respondent has also interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed by Section 7 of the Act.
2. W. R. Jernigan
Jernigan commenced working for Respondent as a welder in March 1944,
and according to Jernigan's uncontradicted testimony, he had been continuously
employed until October IT, 1947, when he was discharged for the asserted reason
that he had turned out too many defective sign bars used on beverage bodies.
For the major portion of his employment at the plant Jernigan worked con-
tinuously as a welder in the metal shop department of the Gin Division. No
substantial complaints had been voiced concerning his work during the several
years he had been working at the plant. Just before the newly established
Body Division was established, Jernigan was selected to assemble and weld
the first three completed beverage bodies manufactured by the Respondent and
he was complimented for this work.
Thereafter, he continued to work as a welder in the metal shop of the Gin
Division until on or about September 3, 1947. At this time, work in the metal
shop was slack due to a shortage in materials and Jernigan was transferred to
the payroll of the Body Division to weld up sign bars for that Division, but
he carried on this work at his usual working station in the welding room of the
metal shop of the Gin Division.
Following the organizational campaign by the Union at Respondent's Body
Division during the latter part of September 1947, the Union commenced to
organize the employees in the metal shop of the Gin Division. In connection
with these activities Jernigan and several other employees from the metal shop
went to the Union's headquarters at Columbus, Georgia, on October 11, to attend
an organizational meeting there. When they arrived there, a Union representative
A These sign bars are used to designate the name of the owner, or the product, on beverage
bodies manufactured by Respondent. They are mounted lengthwise on the top of the
bodies and consist of 2 long rectangular steel strips and 4 so-called end pieces. All of
these six pieces are welded together to form a complete sign bar and the ends are thereafter
welded to the tops of the body.
CEN-TENNIAL COTTON GIN COMPANY 361
requested them to return a week later, because the meeting on that night was
being held for other employees. Jernigan and 8 or 10 other metal shop employees
thereafter attended another meeting held in the Union's hall on the night of
October 16, 1947, and on this occasion all of them joined the Union.
Meanwhile, according to the testimony of Superintendent McDonald of the
Respondent's Body Division, McDonald had been informed by an employee named
Owens that the metal shop employees in the Gin Division were going to. join
the Union 22 Likewise, Assistant Superintendent Hindsman of the Gin Division
also testified that several days before October 18, 1947, he was told by employee
Linzy, in the presence of Superintendent McDonald, that substantially all of
the metal shop employees were going to join the Union. Hindsman asserts he
paid little attention to Linzy's statement because the Respondent had decided
several weeks earlier that it would have to substantially close down operations
.in the metal shop, because of a lack of available materials and that pursuant
to these conditions the department was indefinitely shut down on October 18,
except for one employee and a helper, who were retained to take care of any
orders for miscellaneous repair parts that might come through.
Jernigan credibly testified that 2 or 3 weeks before he was discharged, his
foreman, Frank Johnston, came into the welding room and asked Jernigan
if the latter had heard that the Body Division was organizing ; that Jernigan
admitted he had heard about it; that Johnston then remarked he, Johnston,
heard rumors that the Union was attempting to organize the entire plant and
told Jernigan at the.time that the latter need not fear talking freely with
Johnston concerning Union activities because Johnston favored union organiza-
tion ; and that he, Jernigan then told Johnston that Jernigan also was in favor
of the Union.te
According to further testimony by Jernigan, which I credit, employee Lonnie
Brown of the Body Division passed by Jernigan's welding booth on the next
morning after Jernigan had gone to the Union hall to join the Union. Jernigan
testified that on this occasion Brown threw up his hands and said, "goodbye
'Buck'" and then remarked that he, Brown, had heard some of the "higher ups"
state that Jernigan had joined the Union??
Just before quitting time on this same day, October 17, Foreman Johnston
approached Jernigan and told the latter that he Johnston, had been ordered to
discharge Jernigan because of complaints concerning Jernigan's work voiced by
the Body Division.
In support of Respondent's contention that Jernigan had been discharged for
turning out an excess amount of defective work on sign bars lie had been making
for the Body Division, Foreman Cosby, of the Body Division and Johnston,
Jernigan's foreman, testified in sustance that Jernigan had turned out about
twenty sign bars which were discarded as junk. They each further testified that
25 Owens, an employee in the Body Division , was laid off on or about September 26, 1947.
Since the above conversation was held in the plant during the time Owens was still working
there, McDonald received this information late in September 1947.
26 Johnston asserts that he did not remember ever engaging in such a conversation with
Jernigan and further asserted that he never discussed the Union with any employee . Basing
his conclusion upon his observation of the witnesses together with all of the evidence in
the record , the undersigned accepts Jernigan 's above testimony as the more credible and
accepts it as being true.
27 Brown denied having made such statements to Jernigan , but basing my conclusion
upon my observation of the witnesses and in view of what later transpired as further dis-
cussed below I credit Jernigan 's above testimony.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jernigan's work on this product had been unsatisfactory ever since lie took over
the operation in early September, that Cosby had occasion to voice complaints
almost daily to Johnston, regarding Jernigan's defective work, that each of them
on such occasions went to Jarnigan to reprimand him concerning his poor per-
formance, and that each sign bar junked caused a loss to Respondent of approxi-
mately $34. According to President Swope, Superintendent McDonald com-
plained to Swope about the defective work just before Jernigan was discharged,
and that he, Swope, then ordered Superintendent Sanders of the Gin Division to
immediately discharge Jernigan.
On the other hand Jernigan categorically denied that any plant supervisor
had complained or reprimanded him concerning unsatisfactory work on the sign
bars until Johnston summarily notified him that he, Jernigan was discharged.
He further testified that while lie was working on the sign bar job, 3 or 4 of
these bars had been returned by customers, because they had not been ordered by
the customer, and that he, Jernigan, reworked these cars in order that they might
be used on other bodies.
O. W. McBride, a welder in the Body Division also testified that from early
in September until after October 18, 1947, lie mounted and welded all sign bars
turned out by Jernigan on the beverage bodies. McBride further testified that
substantially all of Jernigan's work had been good, and that lie only had to
cut 2 or 3 inches out of and then reweld one bar before mounting it and grind
off it little excess metal on 2 others before mounting and welding these 2 bars
on the bodies 28
Significantly, employee John McBride, the mechanic retained for work after
the major layoff in the metal department on October 18, testified without sub-
stantial contradiction, that Johnston had told McBride, Jernigan was one of the
best welders who had ever worked for Johnston. Likewise, employee Noah Buck-
halter, who was recalled for work in December 1947, testified, without contra-
diction, that Johnston had remarked to Buckhalter after the latter returned to
work in December 1947, following his layoff on October 18, that he, Johnston
wished he could get Jernigan back on the job because Jernigan was the best welder
that ever worked in the department.
The record further shows that on February 24, 1948, Jernigan went to the
plant and applied to Assistant Superintendent Hindsman for reemployment. Ac-
cording to Jernigan's credited testimony, Hindsman told Jernigan at the time, "I
will put you on just as quick as I can," it may be a week or in thirty days. Hinds-
man admitted that had a welders job been open on this day, he would have
hired Jernigan. Jernigan was never recalled for work at the plant.
In view of Jernigan's, long record as a satisfactory employee and upon con-
sideration of the foregoing testimony by several witnesses mentioned above,
the undersigned does not credit Respondent's assertions regarding the excessive
amount of poor work turned out by Jernigan on sign bars. It is inconceivable
that any employer would allow an employee to remain on a job in the face of
such an assorted poor showing for so long a time as Jernigan did. Respondent
had many other welders on its payroll in the Body Division and I cannot be-
lieve that Foreman Cosby and Superintendent McDonald would have permitted
28 Cosby, the Body Division foreman, testified on rebuttal that McBride had only mounted
sign bars for 1 or 2 days during this period, and asserted that he, Cosby , had then assigned
another employee whose name was not stated by Cosby to do this work. Basing my con-
clusion upon my observation of the . witnesses , together with a consideration of all the
evidence, concerning Jernigan' s work performance , I accept McBride 's above testimony as
the more reliable.
CEN-TENNIAL COTTON GIN COMPANY 363
Jernigan to continue doing this work for about seven weeks before replacing
hint had his work been as unsatisfactory as was asserted . To my mind, it is
significant that Jernigan a competent' welder with several years tenure should
have been discharged the day after he joined the Union.
Accordingly, I find that Jernigan was discriminatorily discharged because of
his membership and activities on behalf of the Union in violation of Section
S (a) (3) of the Act, thus also in violation of Section 7 thereof.
3. Wallace Rape
According to Rape, he worked in the metal shop of the Gin Division for a few
weeks during the busy season of 1939 or 1940, and was not again employed at
the plant until December of 1945, when he was again hired for work in the
metal shop. Rape said he was transferred to a job in the machine shop, also in
the Gin Division of the plant, sometime in 1946. Rape continued to work on
this job until laid off on September 24, 1947.29
Simmons testified that Rape was not a skilled journeyman machinist, but
could operate a lathe, drill press, and some other types of machine tools with
reasonable satisfaction when the job was set up for him by Simmons. In addi-
tion, Simmons testified without contradiction that Rape frequently left his
machine running when he left to go to the toilet or for a drink of water, that
this was contrary to plant rules because if something went wrong on the job
during the operators' absence substantial damage to the machine might happen,
and that Simmons reprimanded Rape for such delinquencies more frequently
than he did other employees. Simmons further testified that on.or about July 19,
1947, during the busy season, Rape quit because of a refusal by Respondent to
give him a wage increase, but that Rape subsequently called up on the telephone
stated that he, Rape had been unable to secure other work and requested that
lie be reemployed, and that after losing 1 day's employment at the plant Rape
was rehired, solely because this happened at the height of the busy season and
during a scarcity of available replacement employees . Simmons, in effect,
asserted that this last incident was one of the matters considered in connection
with the subsequent layoff, because it indicated that May was dissatisfied with
his job and that sooner or later he would be liable to quit again at a time when
his services were needed.
Rape testified that lie was unaware that the Union was attempting to organize
any of the employees until the morning of September 22, and that he did not
join the Union until September 25, 1947, the day after he was laid off. Insofar as
the record shows, the Union apparently confined its organizational efforts to
the Body Division employees during September 1947.
On the morning of September 22, Rape met James May, an employee of the
Body Division, while both men were on their way to work. Rape testified that
May told Rape on this occasion that substantially all of the Body Division
employees had attended a meeting at the Union's hall in Columbus, Georgia,
on the preceding Saturday, that they had all joined the Union, and that the
Union was going to send a letter to Respondent requesting recognition of the
Union as bargaining representative for the Body Division employees.
29 Foreman Simmons of the machine shop testified that the metal shop had a surplus of
employees at the time of Rape 's transfer and that Rape was taken as a fill -in man in the
machine shop . The employment record of Rape was not offered in evidence , but Simmons
credibly testified without contradiction that Rape was the last employee hired in his
department and that Rape was only assertedly working in the department for a few
months before Simmons laid Rape off, because of lack of work in the department.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rape said he related this information on the same morning to some of the
Gin Division employees in the locker room. of that Division who were present
there changing their clothes before going into work. Among those present at
the time was Foreman Otts of the Assembly Department. Otts asserts that he
did not hear Rape mention any Union activities at the time but, in effect, testified
that he only heard Rape state that Respondent's president, Swope, would
probably "hit the ceiling" when he received a certain letter.ao
Customarily, the Respondent holds meetings of the plant supervisors each
morning soon after the working day starts to discuss production problems..
When Otts reported for the meeting he told Assistant Superintendent Hindsman,
of the Gin Division about the remark Rape had made concerning a purported.
letter to Swope. When Simmons, Rape's foreman appeared Hindsman told
Simmons to request Rape to come to Hindsman's office. According to Rape,
Hindsman, and other supervisors present in Hindsman's office, Hindsman asked
Rape, when the latter appeared, who had told Rape about the letter 31 and asked
Rape what the letter purportedly stated. Rape, in substance, stated he did not
wish to make trouble for any employee and refused to tell Hindsman from whom
be, Rape, received the information. Hindsman thereupon told Rape to return
to his job.
Rape further testified that during the lunch hour on this same day, Hindsman
met Rape outside the plant and again requested Rape to name the person who
had mentioned the Swope letter to Rape. Rape said he refused to do so,
whereupon Hindsman then requested Rape to point out the person who had
given the information to Rape, which request Rape asserts he also refused to
comply with. Hindsman categorically denies this last incident ever happened,
but admitted the earlier interrogation of Rape at Hindsman's office and ex-
plained he, Hindsman, was concerned because he, feared the letter might contain
a threat. of violence directed at. Swope. Hindsman, impressed the undersigned
as being an intelligent and reasonably trustworthy witness. He frankly made
admissions that to some extent weakened Respondent's case. Accordingly
Hindsman's denial that he interrogated Rape a second time concerning the
letter is credited.
Respondent asserts that on September 24, 1947, Rape and another employee
in the machine shop. named Gardiner were laid off because there was insufficient
work on hand to keep the machine shop employees busy.33 Simmons asserts
without contradiction that Rape was the last employee added to the machine
shop payroll and that in selecting the employees for layoff he attempted to
retain those men who were the most efficient and with the broadest experience.
By November 1, 1947, the Gin Division payroll had dropped from a peak of
nearly 100 employees to about 52 and it did not pick up again substantially
until about the middle of March 1948, when 90 employees were then on the pay-
roll.
30 Rape asserts that he did not mention May's name as his informant. Other than Rape
and Otts, no other witnesses gave testimony concerning the locker room incident except one,
Yarborough , whom Rape asserted was present in the locker room. Yarborough denied he
was present there and further denied that he ever heard Rape say anything aboui the
letter or the Union.
31 It was stipulated in the record that Swope received a letter from the Union demanding
recognition as representative of Respondent's Body Division employees later on that same
day or on the following day.
11 The record shows that three other machine shop employees were later laid off on
October 4. 16. and 18. None of the layoffs of these other employees are alleged to. be
discriminatory.
CEN-TENNIAL COTTON GIN COMPANY 365
Rape testified he did not apply for reemployment until the latter part of
May or early in June 1948. At this time the normal peak force of employees
were on Respondent's payroll. In addition, Rape testified that on or about
July 1, 1948, he received a Civil Service appointment as a mail carrier for the
United States Post Office Department, and that he did not wish to be reinstated
by the Respondent.
While a suspicion may be aroused that Rape's initial layoff may have been
grounded to some extent on a belief by Respondent that Rape was a union
adherent, the undersigned has not been convinced by a preponderance of the
evidence that such is the case. Accordingly, he will recommend that the alle-
gations in the complaint regarding alleged discriminatory treatment of Rape be
-dismissed.
4. James May
According to May he was hired by the Respondent in April 1947 when the
newly established Body Division started to go into production. He was assigned
to operate a power brake to form sheet metal into parts used in constructing
beverage bodies. Because there was no power brake installed in the Body
Division May worked on a power brake in the metal shop of the Gin Division
for the first several weeks of his employment until a power brake was purchased
and installed in the Body Division, at which time he was moved in to the Body
Division building. He continued to work on this operation until he was laid off
on September 26, 1947. The Respondent makes no contention that May was
an unsatisfactory employee and the record indicates that his services were
satisfactory.
He attended the organizational meeting called by the Union on September 20,
1947, to organize the Body Division employees and joined the Union at this
meeting together with most of the other employees in this division, but he took
no outstanding part in the union activities during his employment at the plant.
May asserts that on his way to work on the morning of Monday, September 22,
he met Wallace Rape, whose case has been discussed above, and told Rape that
the Body Division had organized, and that the Union was going to send a
letter to Respondent requesting recognition as bargaining representative for
the Body Division employees.33
May further asserts that shortly after he started to work on this same morn-
ing, Assistant Superintendent Hindsman of the Gin Division requested May to
leave his work and step outside of the building, that he, May, did so, whereupon
Hindsman , according to May, asked the latter if he, May, knew anything about
union activities at the plant, that May then told Hindsman rumors were cir-
culating that organization was going on, but denied he, May, had joined one
when Hindsman asked May if he had done so. Hindsman categorically denied
ever holding such a conversation with May. Hindsman further asserted that
he had no authority to call a Body Division employee away from his work in
that department and had never done soon any occasion. As previously found,
Hindsman impressed the undersigned as a truthful witness.. Accordingly, I
accept his -denial especially in view of the fact that there was no corroborating
direct evidence tending to support May's testimony.
Superintendent McDonald of the Body Division testified that about the middle
of September Respondent's president, Swope told McDonald that the latter was
"As previously noted above, Rape denied telling any person that May had given him
this information.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carrying too many employees on the payroll in view of the shortage of materials
and lack of prospective future orders and ordered McDonald to reduce the force..
McDonald asserts that pursuant to these instructions, he discussed the ques-
tion of curtailing the force with Foreman Cosby and that as a result of this dis-
cussion they decided that Brown, the leadman of the sheet metal workers, with
some of the helpers could effectively handle the balance of the production pro
gram in the sheet metal section of the Division and decided to lay off May.
On September 26, 1947, McDonald asserts he told May that he, McDonald was.
obliged to layoff May because of a shortage of materials. McDonald further
testified without contradiction that no new employee was hired to take over the
work May had been doing until the busy season started again in 1948. May
asserts that at the time McDonald laid him off he, May, accused McDonald of
laying May off because he had joined the Union, but said McDonald denied it.
May further testified that shortly after McDonald laid him off, Lonnie Brown,
the leadman, approached May and remarked that Brown did not know May had
joined the Union until McDonald had told Brown about it. In view of the fact
that this statement was made by Brown after May had told McDonald that he
was a member of the Union, this remark, if made by Brown, does not conclusively
show that.McDonald had knowledge regarding May's adherency to the Union
before the layoff.
McDonald aserts without substantial contradiction that on several occasions
shortly after the layoff May called McDonald on the telephone to ask for re-
employment, but that all of such requests were made at times when no jobs were
available. The record shows that the Respondent had no policy of recalling
laid off employees for work, when job opportunities picked up, but customarily
expected employees who had been indefinitely laid off to apply for work at the
plant when jobs were available.
On the record made, the undersigned is not convinced that May's layoff was
based upon his adherence to the Union, or that he was discriminatorily refused
reemployment.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as has been found to be unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violat-
ing Section 8 (a) (1) and (3) of the Act, the undersigned will recommend that
it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire
and tenure of employment of W. M. Welch and W. R. Jernigan, the undersigned
will recommend that the Respondent offer to each of them immediate and full.
reinstatement to their former or substantially equivalent positions," without
3, 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 and if such position is no longer in existence then to a substantially equivalent
CEN-TENNIAL COTTON GIN COMPANY 367
prejudice to their seniority and other rights and privileges. The undersigned
also will recommend that the Respondent make them- whole for any loss of pay
they may have suffered by reason of the Respondent's discrimination against
them by payment to each of them of a sum of money equal to the amount they
would have normally earned as wages from the date of their discharges to the
date of the Respondent's offer of reinstatement, less their net earnings during
such period."
The scope of the Respondent's illegal conduct discloses a purpose to defeat self-
organization among its employees. Such conduct, which is specifically violative
of Section S (a) (1) and (3) of the Act, reflects it determination generally to
interfere with, restrain, and coerce its employees in the exercise of the right to
self-organization, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or pro-
tection, and presents a ready and effective means of destroying self-organization
among its employees. Beeause of the Respondent's unlawful conduct and since
there appears to be an underlying attitude of opposition on the part of the Re-
spondent to the purposes of. the Act to protect the rights of employees generally,30
the undersigned is convinced that if the Respondent is not restrained from com-
mitting such conduct, the danger of their commission in the future is to be antici-
pated from the Respondent's conduct in the past, and the policies of the Act will
be defeated. In order, therefore, to make effective the interdependent guarantees
of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and
thereby minimize industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, the undersigned will recommend that the
Respondent cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.
Sonce it has been found that the evidence does not support the allegations of
the complaint that Wallace Rape and James May were discharged by the Re-
spondent in violation of the Act, the undersigned will recommend that the allega-
tions of the complaint with respect to Rape and May be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the ease, the undersigned makes the following :
CoxcLusions or LAW
1. International Association of Machinists is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the 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
S (a) (1) of the Act.
By discharging and discriminating in regard to the hire and tenure of
employment of W. M. Welch and W. R. Jernigan, thereby discouraging member-
ship in International Association of Machinists, the Respondent has engaged in,
and is engaging in, unfair labor practices, within the meaning of Section 8 (a)
(3) of the Act.
position ." See The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Brooch , 65 NLRB 827.
See Crossett Lumber Co., S NLRB 440.
ac See May Depart mint Stores Compan:if, etc., v. N. L. R. B., 326 U. S. 376.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The.aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
5. By discharging or laying off Wallace Rape and James May, the Respond-
ent did not violate the Act as alleged in the complaint.
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the Respondent,
Cen-Tennial Cotton Gin . Company, its officers, agents , successors , and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in International Association of Machinists,
or any other labor organization of its employees , by discharging or refusing to
reinstate any of its employees or by discriminating in any other manner in regard
to their hire and tenure of employment , or any term or condition of employment ;
(b) In any 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 International Association of Machinists , or any other labor organ-
ization, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all of such activities , except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized in Sec-
tion8 ( a) (3) oftheAct.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to W. Al. Welch and W. R. Jernigan immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges ;
(b) Make whole ' W. M. Welch and W. R. Jernigan for any loss of pay each
may have suffered by reason of the Respondent 's discrimination against him
by payment to each of them of a sum of money equal to the amount which he
normally would have earned as wages from the date of his discharge to the
date of the Respondent 's offer of reinstatement , less his net earnings , during
such period;
(c) Post at its plant. in Columbus , Georgia, copies of the notice attached
to this Intermediate Report marked Appendix . A. Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall , after being
signed by the Respondent 's representative , be posted by the Respondent, and
maintained 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 the Respondent to insure that said notices
are not altered , defaced, or covered by any other material ;
(d) Notify the Regional Director for the Tenth Region in writing, within
twenty ( 20) days from the date of the receipt of this Intermediate Report, what
steps the Respondent has taken to comply therewith.
It is further recommended that the allegations of the complaint with respect
to discrimination against Wallace Rape and James May be dismissed.
It is further recommended that unless on or before twenty (20) days from
the receipt of this Intermediate Report, the Respondent notified said Regional
CEN-TENNIAL COTTON GIN COMPANY 369
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the
date of service of the order transferring the case to the Board, pursuant to
Section 203.45 of said Rules and Regulations, file with the Board, Washington
25, D. C., an original and six 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 six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of
a brief in support of the Intermediate Report. Immediately upon the filing
of such statement of exceptions and/or briefs, the party filing the same shall
serve a copy thereof upon each of the other parties. Statements of excep-
tions and briefs shall designate by precise citation the portions of the record
relied upon and shall be legibly printed or mimeographed, and if mimeo-
graphed, shall be double-spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section
203.85 . As further provided in said Section 203.46, 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.
In the event no Statement of Exceptions is filed as provided by the afore-
said Rules and Regulations, the findings, conclusions, recommendations, and
recommended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 29th day of November 1949.
HENRY J. KENT,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
AVE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS, 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 or protection, or to refrain from
any or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section S (a) (3) of the Na-
tional Labor Relations Act.
903847-51-vol. 90-25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE wILL orvna to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges enjoyed, and make them
whole for any loss of pay suffered as a result of the discrimination :
W. M. Welch
W. R. Jernigan
All our employees are free to become, remain , or refrain from becoming mem-
bers of the above-named union or any other labor organization except to the ex-
tent that the right to refrain may be affected by a lawful agreement requiring
membership in a labor organization as a condition of employment . We will not
otherwise discriminate 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.
CnN-TENNIAL COTTON GIN COMPANY,
Employer.
Dated -------------------- By ---------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.
0