Continental Box Co., Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1940

19 N.L.R.B. 860 (N.L.R.B. 1940)

In the Matter Of CONTINENTAL Box COMPANY, INC. and FEDERAL
LABOR UNION No. 21328
Case No. C-1226.-Decided January 25, 1941
Boo Mainufactoring Industry-Interference, Restraint, and Coercion: anti-
union statements by supervisory, employees-Company-Dominated Union: ex-
pressed opposition to outside union; supervisory participation in soliciting
membership in inside union ; discrimination in favor of inside union in per-
mitting widespread solicitation on company time and property ; recognition of
inside union without adequate check on majority claims ; employer ordered to
disestablish-Discrimination: dicharge of four employees for union membership
and activity; charges of not sustained as to one employee-Regular and Sub-
stantially Equivalent Employment: factors considered-Reinstatement Ordered:
four discharged employees ; refusal of offer of reinstatement without seniority
and back pay made during hearing, no bar to order of reinstatement-Back
Pay: awarded three employees from date of discharge to date of offer of rein-
statement; awarded to one employee from date of discharge to date of Inter-
mediate Report and from date of Order to offer of reinstatement.
Mr. Harry C. Duncan, Jr., for the Board.
Wood and Morrow, by Mr. M. S. McCorquodale, of Houston, Tex.,
and Mr. Paul E. Duzeski, of Chicago, Ill., for the respondent.
Mr. George A. Wilson, for the Federal Union.
Mrs. Mary Telker Iliff, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Federal Labor
Union No. 21328, herein called the Federal Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Sixteenth Region (Fort Worth, Texas), issued its complaint
dated October 31, 1938, against the Continental Box Company, Inc.,'
Houston, Texas, herein called the respondent, alleging that the re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (2), and
Referred to in the complaint and other of the formal papers as the Continental Box
Company, Incorporated.
19 N. L. R. B. No. 92.
860
CON'TINEN'TAL BOX COMPANY, INC. 861
(3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act.
Concerning the unfair labor practices, the complaint alleged in
substance that the respondent (1) fostered, encouraged, sponsored,
dominated, and interfered with the formation, enlistment of mem-
bers, and administration of a 'labor organization of employees at its
Houston plant known as the Employees Aid Association of the Con-
tinental Box Company, herein called the Association, and contributed
financial and other support thereto; (2) discriminated in regard to
the hire and tenure of employment of five employees, namely, Floyd
Coombs, J. L. Heuermann, Theodore Ryan, Ralph Cato, and Bennie
Sampson, because of their membership in and activities in behalf of
the Federal Union, and because they engaged in concerted activities
with other employees of the respondent for the purpose of collective
bargaining and other mutual aid and protection, and thereby dis-
couraged membership in the Federal Union; and (3) by the above-
mentioned activities, by inquiring of certain employees as to their
union membership, by inquiring. of certain employees as to how they
intended to vote in a consent election held by the Regional Office of
the National Labor Relations Board, and by other acts, interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The complaint and accompanying notice of hearing were duly
served upon the respondent and upon the Federal Union. On No-
vember 5, 1938, the Regional Director, on his own motion, extended
the time for filing answer and extended the hearing date in the matter.
The respondent filed an answer to the complaint, dated November
5, 1938, in which it admitted certain allegations thereof but denied
that it was engaged in interstate commerce or that it had engaged
in any unfair labor practices, and averred affirmatively that the five
employees named in the complaint had been laid off because of in-
sufficient work. The answer contained further matter in the nature
of a motion to dismiss the complaint, and a request for a bill of
particulars.
Pursuant to notice, a hearing was held on November 28 and 29,
and December 1, 2, 3, and 5, 1938, in Houston, Texas, before Henry
J. Kent, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel and the Fed-
eral Union by a duly designated officer. All parties participated
in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues. At the opening of the hearing, counsel
for the respondent renewed orally the motion to dismiss the com-
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint contained in the answer, and made a further request for a
bill of particulars. The Trial Examiner denied the motion and the
request except that with regard to paragraph 6 of the complaint
he requested the attorney for the Board to furnish the respondent
more particulars orally at the hearing. This was done. The Trial
Examiner then ruled that the complaint was sufficient to give notice
to the respondent of the issues raised. During the course of the
hearing, the Trial Examiner made other rulings upon motions and
upon objections to the admission ' of evidence. The Board has re-
viewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
On January 16, 1939, the respondent submitted to the Trial Exam-
iner a written brief upon the issues presented.
On March. 24, 1939, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon all parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (1) and (3) and Section 2 (6) and (7) of the Act. He
recommended that the respondent cease and desist from engaging in
the activities constituting unfair labor practices;, that it reinstate
to their former positions Floyd Coombs, J. L. Heuermann, and
Bennie Sampson with back pay; 2 and that it post appropriate
notices. He further recommended that the complaint be dismissed
in regard to Theodore Ryan and Ralph Cato, and as to the alleged
violation of Section 8 (2) of the Act. On April 6, 1939, the respond-
ent filed Exceptions to the Trial Examiner's Intermediate Report,
and on May 2, filed a brief in support of its exceptions.
On October 31, 1939, the respondent moved to reopen the record
in the case to introduce a certified copy of the judgment of divorce
entered by the District Court for Harris County, Texas, in Cause
No. C-259,714, styled Myrtie C. Coombs vs. Charles Floyd Coombs,
wherein the District Court judge decreed that the claim of the
defendant, Charles Floyd Coombs, agadnst the Continental Box
Company for back wages as set out in Case No. C-1226 before the
Board, be set apart to the plaintiff, Myrtie C. Coombs, as her sole
and separate property and that all right, title, and interest in such
claim: be divested out of the defendant, Charles Floyd Coombs, and
vested in the plaintiff, Myrtie C. Coombs. On November 6, Myrtie
C. Coombs filed a petition to intervene in this proceeding, asking
that such back pay as was found to be due to Charles Floyd Coombs
2 The Trial Examiner having found that the discrimination against Bennie Sampson
occurred at the time of the respondent's refusal to reinstate him, the back pay recom-
mended in Sampson ' s case was to run from the date of the refusal to reinstate.
CONTINENTAL BOX COMPANY, INC. 863.
be ordered paid to her, the intervenor. The Board denied the
petition for intervention on November 7. On November 9 the attor-
ney for the Board and the attorney for the respondent entered into
a stipulation setting out the judgment in said Cause No. C-259,714
in the District Court for Harris County, Texas, and agreeing that
the defendant in such cause was the same person as Floyd Coombs
in the present case. On the same date, the respondent requested the
Board for permission to withdraw its application to reopen the
record. On November 14, 1939, the Board entered an order making
the stipulation of November 9 part of the record in this case.
Pursuant to notice, a hearing was had for the purpose of oral
argument before the Board in Washington, D. C., on November 9,
1939. The respondent presented oral argument on its Exceptions.
The Board has considered the Exceptions to the Intermediate Re-
port filed by the respondent and its brief and oral argument in sup-
port thereof and, in so far as they are inconsistent with the findings,
conclusions, and order set forth below, 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 Texas corporation, engaged in the manufac-
ture, sale, and distribution of wood and paper boxes. It operates a
manufacturing plant at Houston, Texas; a warehouse at Dallas,
Texas; and sales offices at Houston, Mercedes, and Dallas, Texas. It
is a wholly owned subsidiary of the General Box Company, a Dela-
ware corporation, having its main office at Chicago, Illinois. We are
concerned here only with the Houston plant.
The principal raw materials used by the respondent in the manu-
facture of boxes at its Houston plant are veneer, lumber, steel wire,
corrugated sheets, nails, and miscellaneous metal products. Of these
raw materials, approximately 50 per cent, amounting in value to
about $370,000 annually, are purchased and transported in interstate
commerce to the Houston plant from States other than the State
of Texas.
Of the products manufactured by the respondent in the year 1937,
approximately 9 per cent, amounting in value to $92,000, were
shipped in interstate commerce to customers outside the State of
Texas. The percentage of interstate shipments of finished products
in 1938 was approximately thO same as in 1937.
The respondent's business, the manufacture. of boxes for fruits
and vegetables, is seasonal in.character. There is a large increase in
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the number of employees in the fall of the year, and a corresponding
decrease in the late winter when the packing season comes to a close.
On December 21, 1937, the respondent employed -approximately. 196
persons in production and maintenance. The number of such em-
ployees decreased to about 73 by May 18, 1938, the reason for the
decline being the seasonal drop in business.
II. THE ORGANIZATIONS INVOLVED
Federal Labor Union No. 21328 is a labor organization affiliated
with the American Federation of Labor, admitting to its membership
certain production and maintenance employees of the respondent.3
The Employees Aid Association of the Continental Box Company,
Inc., is an unaffiliated labor organization, admitting to its member-
ship all employees of the respondent other than those in a clerical,
supervisory, or official capacity.
III. THE UNFAIR LABOR PRACTICES
Early in the fall of 1937, a group of the respondent's employees
approached George Wilson, secretary of the Houston Trades Council,
and asked his aid in forming a labor organization. Some time in
September of that year, a meeting for that purpose was held in the
Houston Labor Temple, which was attended by 75 to 100 of the
respondent's employees. A number of those present at the meeting
signified their desire to form a union, and a charter was thereupon
applied for. On October 26, 1937, the American Federation of Labor
chartered the group as Federal Labor Union No. 21328.
During the period between the organizational meeting and the
receipt of the charter, a temporary organization was set up. Tem-
porary officers were selected and several meetings were held. After
the charter was received, regular officers were elected by the Federal
Union.
Some time after the formation of the Federal Union, Wilson and
another American Federation of Labor representative, acting on
behalf of the Federal Union, called upon the respondent's president,
Talbert. They informed him that they represented a majority of
the employees and requested him to enter into collective bargaining
negotiations with the Federal Union. President Talbert suggested
that an election be held to determine whether or not the employees
did, in fact, desire to be represented by the Federal Union.
8 There is no definite showing in the record as to which classes of the respondent's
employees are eligible for membership in the Union . An agreement between the respondent
and the Union for a consent election covered all production and maintenance employees
except official , clerical, and supervisory employees.
CON'TINTNTAL BOX COMPANY, INC. 865
. Thereafter, the respondent and the Federal Union entered into an
agreement providing for an election, to be held under the super-
vision of the Regional Director for the Sixteenth Region of the
National Labor Relations Board. The respondent therein agreed to
recognize the Federal Union as the exclusive representative of all
eligible employees, provided it received the votes of a majority of
all employees eligible to vote in the election. The election was held
in accordance with the terms of the agreement on December 21, 1937,
the Federal Union receiving a majority of the votes cast.4 It did
not,, however, receive the votes of a majority of the eligible voters,
and the respondent, therefore, did not recognize it or bargain with it.
The Association was organized approximately a month before the
election, and was recognized by the respondent as bargaining agent
for its employees on December 28, 1937. The formation and recog-
nition of the Association are discussed elsewhere in this Decision.'
A. Interference, restraint, and coercion
On December 20, 1937, the night before the consent election was
held, President Talbert called a meeting of all employees in the
plant. He read a prepared statement to them making it clear that
the respondent had already fixed its wages, hours, and other impor-
tant working conditions and that collective bargaining would be un-
necessary and, in fact, futile. He notified the employees, among
other things, that :
It is the policy of this Company not to enter into any agree-
ment which will compel its employees to join, or refrain from
joining any organization in order to get or hold a job with this
Company. * * * Nine hours shall constitute a day's work
and fifty-four hours shall constitute a week's work at all times
except during rush periods * * * The Company is now mak-
ing arrangements to see to it that there shall be at least one day of
rest in seven * * * The Management, and operation of this
plant, and direction of the working forces, including the right to
hire, promote, suspend, transfer from one job to another, or dis-
charge, must remain in the hands of the Management of this
Company. In promotion, in layoffs, and in rehiring, this Com-
pany will give due regard to ability, efficiency, physical condition
A The results of the election were as follows :
Number of eligible employees------------------------------------------ 196,
Number of votes cast________________________________________________ 167
Number of votes cast for the Federal Union-_-- ------------------------ 95
Number of votes cast against the Federal Union_ ,----------------------- 72
5 See Section III B , infra.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and personal habits, and special consideration will also be given to
seniority. * * * We want our employees to clearly under-
stand that the Company is personally interested in their welfare;
that it is the policy of the Company to pay the highest wages
that prevail in our locality, or in the box business, for like work
under like conditions.
This statement purported to set out the "policy and present prac-
tices" of the respondent. Yet this was apparently the first time that
the employees had ever' been summoned to such a meeting, or advised
by any means whatsoever of this "policy." The circumstances
under which it was pronounced-its applicability not to, present but
to future conditions-clearly indicates that the respondent's purpose
in reading this statement was not to advise the employees of the pres-
ent conditions-with which they were already familiar-but . to
notify the employees that the respondent had, by unilateral action,
determined its wages, hours, and working conditions, and that there
was, therefore, no need for a union in the plant to represent them in
collective bargaining.
We find that the respondent, by making the foregoing statement,
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
B. The discharges
Floyd Coombs and J. L. Heueri wan. Floyd Coombs was first em-
ployed by the respondent in the late fall or early winter of 1936.
His work was more or less irregular until the first of the year and
then steady until March or April 1937. At that time the slack season
was beginning and Coombs quit to accept another job. He again
applied for work at the respondent's plant in July 1937. Business
was then slow and he was not taken on until the week of September
9. He thereafter worked continuously until his discharge on October
11, 1937.
Coombs, a charter member, joined the Federal Union in September
1937. He was named temporary president while still in the respond-
ent's employ; was active in soliciting his fellow-workers to join the
Federal Union; and contacted approximately one-third of the em-
ployees for that purpose before his discharge. After the Federal
Union received its charter, Coombs was elected its first regular
president.
J. L. Heuermann had a longer service record than Coombs. He
began work for the respondent in November 1936 and worked con-
tinuously until his discharge on October 11, 1937. Heuer;nann had
CO'N'TINENTAL BOX COMPANY, INC. 867
attended at least two union meetings before his discharge and had
asked other employees to attend such meetings. He had "signed up"
with the Federal Union about 3 weeks before October 11, 1937 .1
On the afternoon of October 9, 1937, Coombs went to the plant
shortly before the time he was to begin work on the night shift..
There he met Heuermann and Joe Gay, two fellow-workers who were
off duty at the time, standing in the shipping entrance to the plant,
smoking.
The three men entered into a conversation about the affairs of the
Federal Union. During this discussion, Trader, a supervisor 7 who
had frequently warned Heuermann to "leave it (the Federal
Union) alone," joined the group and inquired as to how to become a
member of the Federal Union. Gay pointed Coombs out as the man
to see about joining. Trader then walked away, returning shortly
thereafter with President Talbert. As they approached the three
men, Trader, in answer to a question by Talbert, stated that he
thought the men were discussing the Federal Union.
Talbert, approaching the three employees, asked them if they were
dissatisfied, and stated, "Gentlemen, you know these labor men ain't
going to join no union." 8 He also said that if the three men were
not satisfied, he would "pay them off," and, further, that "he would
shut down the place and go fishing before he would deal with the
Union." Coombs stated that Talbert also told them that "the Union
wouldn't do us any good, it would probably give us five cents an hour
more, but it would cut our hours down so it wouldn't make us any-
thing." The three had little to say. Talbert then turned to a truck
driver who was standing nearby, but who was not in the group, and
asked, "Have you got anything to do with this ?" The truck driver
answered in the negative and Talbert then said, "Well, if you have,
I will get you fired too."
President Talbert denied that he had said anything pertaining to
the Federal Union during this conversation on October 9. He stated
that on that occasion he discovered the men smoking in an area where
smoking wag prohibited and accused them of being dissatisfied with
a Heuermann , referring to a paper not identified in the record , testified that he had
joined the Federal Union October 11, 1937. This paper apparently indicated the date
on which Heuermann was initiated or the date on which he paid his fees , as he testified
without contradiction that he had "signed up " with the Federal Union three weeks before
his discharge , although he did not pay fees the first time he "signed something" at the
meeting.
7 While Trader had no authority to hire and discharge , he was in charge of the shipping
department and supervised the work there . On occasion he had as high as 10 to 15
men under his supervision . Employees in the shipping department testified that Trader
gave them their orders and referred to him as "the head of the shipping department."
s This quotation is from the testimony of J. L. Heuermann , whom counsel for the
respondent characterized as "a straightforward man" in discussing this incident in his
oral argument before the Board.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their jobs . The explanation he offered for the accusation was that:
smoking in that part of the plant was punishable by discharge and;
was, therefore , tantamount to a resignation. However, when first
questioned about the incident , Talbert did not claim that he men-
tioned smoking at the time , but said that his only remark to the
men had been, "If you boys are not satisfied with the job you have
got, why don 't you leave?" Later, he changed his testimony some-
what to state that he had told the men to "Put out your cigarettes and
get on the job." Coombs , however, does not smoke and was not
smoking at the time.
Although the respondent indicated on the record its intention to
call Trader as a witness , the latter was never called to the stand and
no explanation was offered for his failure to testify . Nor was the
truck driver , who was present on the occasion of this conversation,
called as a witness. The Trial Examiner, who from his observation
of the demeanor of the witnesses had an opportunity to form a
trustworthy opinion as to their credibility , found that the testimony
of Coombs and Heuermann was "convincing " and that the conversa-
tion occurred substantially as recited above. The testimony of the
three employees , together with all of_ the other factors discussed
above, convinces us that Talbert at no time during this incident on
October 9 criticized the men for smoking, but rather upbraided them
for their union activities alone. We so find.
After the conversation with Talbert , Heuermann completed his
day's work and Coombs reported and worked on the night shift..
Neither worked after that day. While Coombs was at work that
night, Talbert came to his machine and stood there for some time.
Later the same evening when Coombs left his machine to get a drink
of water, ' the timekeeper approached and asked him what he had
done, as Talbert wanted his name and number.
When 'Coombs reported for work on October 10, he was told by
his foreman that the latter had orders to give him no work. At the
foreman's direction , he reported to Superintendent Miller the next
day and was told that his work had been unsatisfactory and his "time
was fixed. " Miller refused to give him any further explanation for
the discharge . When Heuermann reported for work October 11, his
time card was not in the rack. The timekeeper told him he should
get his check at the office . He saw Superintendent Miller in the
plant after getting his check, and the superintendent told him merely
that the company could not use him and that he should come back
some other time.
In its answer the respondent alleged that both Coombs and Heuer-
mann were laid off because of lack of work . No evidence was intro-
duced at the hearing in support of this allegation. As a matter of
CONTINENTAL BOX COMI ANY, INC. 869
fact, the respondent stipulated that in the fall of the year it- begins
its busy season, which necessitates a large increase in the number of
employees rather than a decrease. We must, therefore, reject the
contention that these men were laid off because of lack of work.
At the hearing the respondent urged that it had discharged both
Coombs and Heuermann because of their inefficiency on the rock-
fastener machine. Coombs had worked on this machine several
weeks during the 1936-1937 season and had been placed on it again
about a week before October 11, 1937. Heuermann was also working
on a rock fastener at the time of his discharge. Superintendent
Miller testified that there were an unusual number of cull boxes being
made shortly before Coombs and Heuermann were discharged and
that he made an investigation of this and concluded that Coombs and
Heuermann's crew were to blame for the excessive amount of culls.
President Talbert testified in this connection that Miller had shown
him a record indicating that Coombs was not a capable workman
and produced too many culls." Miller, on the other hand, denied
that the company kept any record of the number of culls.10 No
records were produced by the respondent to show the percentage
of culls turned out by Coombs and Heuermann as compared to the
percentage turned out by other employees performing similar opera-
tions or to show that an excessive number of culls were actually
produced at the time in question.
° The testimony of Talbert on this point was as follows :
.Q. (By Mr. Duncan .) I asked you do you, personally , know of any other act of
inefficiency by Mr. Coombs and the alleged smoking incident?
A. (Talbert). Yes. The record was produced and I stated it and it is still
there at the office and we can still produce it.
Q. Now, was it from that record that you testified a moment ago that Mr. Coombs
was producing culls?
A. Yes.
Q. Is that correct?
A. Yes, from that record.
Q. Is that the reason that he was fired?
A. I did not fire him.
Q. You did not fire him?
A. No.
Q. Do you know why he was fired?
i • # • M t
A. Mr. Miller brought me a record and proved that he was not a capable work-
man and I told him that he knew what to do with those sort of people, to get
rid of them.
Q. Was it by showing you that Mr . Coombs was producing culls that he proved
to you that Mr. Coombs was not an efficient worker?
A. Yes.
10 The testimony of Superintendent Miller was as follows :
Q. (By Mr . Duncan .) Does the company keep any tabulation of the number of
culls produced?
A. (Miller). No, sir ; It never has.
Q. You never have kept an account of how many culls are produced?
A. No, sir.
Q. Or how many are repaired?
A. No, sir.
283030-41-vol. 10-56
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a
Other than the statement of Superintendent Miller that his
investigation disclosed that Heuermann's crew produced a great
many culls, no evidence was offered by the respondent in support of
its contention that Heuermann was inefficient. Even if we were to
accept as true this unsupported testimony of Miller's, we could not
find that Heuermann was discharged for inefficiency in view of the
fact that the record does not indicate that Heuermann was to blame
for the alleged excessive number of culls turned out by the crew.
Nor is there any evidence whatsoever that other members of the
crew were discharged or penalized in any way at the time Heuer-
mann's employment was terminated. Heuermann had had no com-
plaints about. his work within at least 3 months of his discharge on
October 11. As a matter of fact, he remembered only one complaint
during his entire employment at respondent's plant; that, shortly
after he began work.
To support its contention that Coombs was inefficient, the re-
spondent called as witnesses a cull repairman and a part-time super-
visor,ll both of whom testified that there were more culls than usual
at the time Coombs worked on one of the rock fasteners. The cull
repairman further stated that most of these culls came from one
particular machine, where Coombs worked "part of the time." On
the other hand, a third witness called by the respondent, testified
that Coombs had worked as rock fastener behind his machine at
least a week and that he had no "real objections" to his work. He
said further that he had found Coombs a "fairly good" operator
and that the men who were acting as rock fasteners behind his ma-
chine at the time of the hearing, "worked about the same." Coombs,
himself, testified that his work had never been criticized until after
his discharge, when Superintendent Miller told him that he was
unsatisfactory. Upon consideration of the entire record, we find
that it does not substantiate the contention that either Heuermann
or Coombs was an inefficient employee.
The respondent also suggests that the discharge of these men
was brought about, at least in part, by an alleged violation of the
no-smoking rule, on October 9. Yet Coombs, who does not smoke
and was not smoking at the time, was discharged, while Gay, who
was admittedly smoking, was not discharged. In connection with
this defense, it is also important to note that President Talbert said
nothing to the men on October 9 about smoking, nor did Superin-
tendent Miller mention it to either Coombs or Heuermann when
11 This witness , Byrd, worked part time as a supervisor and part time as a machine
set-up man . When acting in the latter capacity he was not in a position to know the
number of culls produced or who was responsible for their production . He was not
always acting as a supervisor during the period that Coombs was on the rock fastener.
CONTINENTAL BOX, CODIPA\ Y', INC. 871
he discharged them. On this showing we cannot accept the con-
tention that the alleged violation of the no-smoking rule was one
of the factors which brought about these discharges.
Heuermann applied for, reinstatement about a- month before the
hearing commenced, but Superintendent Miller refused to reinstate
him. Coombs applied for reinstatement on two occasions, but Miller
told him he was not needed. The respondent contends that it refused
to reinstate Coombs because at the time of his discharge he "threat-
ened" Miller and because on one subsequent occasion when he applied
to Miller for reinstatement he "approached him in a belligerent atti-
tude with his fist clinched" and on another "in an extremely disagree-
able" manner. It is not denied that Coombs engaged in the foregoing
acts.
As stated above Coombs "threatened" Miller on the occasion when the
was discharged; the "threat" being to "get even." Coombs made the
threat after accusing Miller of having discharged him because of his
union activity. We find below that the respondent, in fact, discharged
Coombs because of his union activity. The respondent provoked the
"threat" from Coombs by its unlawful action in terminating his em-
ployment. His actions on the occasions when he applied for reinstate-
ment were also colored by the respondent's prior conduct.
The respondent could well anticipate that Coombs would be resent-
ful and even belligerent as a result of the termination of his employ-
ment in contravention of the Act. Moreover, the respondent has not
in any way indicated its disposition to cease the discrimination against
Coombs which resulted in his discharge. Under all of the circum-
stances we find that Coombs' conduct at the time of his discharge and
when he applied for reinstatement was not the reason motivating the
respondent in refusing to reinstate him.
Upon consideration of the entire record we find that the respondent,
on October 11, 1937, discharged, and subsequently refused to reinstate,
Floyd Coombs and J. L. Heuermann and each of them because of their
membership and activities in the Federal Union, thereby discriminat-
ing in regard to the hire and tenure of employment of the said em-
ployees and each of them, and discouraging membership in a labor
organization; that by said discharges and refusals to reinstate, the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
Bennie Sampson. Sampson, a colored employee, was a charter
member and trustee of the Federal Union. He talked to almost all of
the negroes in the plant about the organization and asked them to
join. He began work for the respondent in November 1933 and
worked continuously until January 28, 1938. Several months after
872 DECISIONS OF NATIONAL LABOR REIATIONS BOARD
he was hired he was given a job on the printing machine and thereafter.
remained at substantially the same work. For at least 11/2 years be-
fore his alleged lay-off he had operated a printing machine with an-
other employee, Mason Johnson. During his 4 years of service with
the respondent, Sampson received several wage increases . There is
no evidence that his work was ever criticized or was unsatisfactory in
any respect..
Two or three days after the consent election in December 1937
Sampson and Mason Johnson were called to the president's office.
There they met Talbert who questioned them about how they had
voted in the election and whether or not they were members of the
Federal Union. Johnson said that he had voted for the Federal
Union but was not a member. Sampson, however, admitted that he
had not only voted for the Federal Union, but was a member and had
paid initiation fees and other assessments . Talbert, on hearing this,
cursed and said, " . . . that mussed you up and mussed me up too."
He went on to say that he could live for a year without working, and
that before he would hire outsiders he would blow the whistle and
shut down, and then asked the men whether they could live for a
month or two without work. He also stated, "We have our own or-
ganization," and suggested that the two employees forget the Federal
Union and join the Association.
Mason Johnson, who was retained on the printing machine after
Sampson's so-called lay-off, testified for the respondent. He was
not questioned about this specific incident but did deny generally
that Talbert had ever talked to him about the Federal Union or that
he had ever heard Talbert talk to any other employees about such
matters. Talbert, himself, denied that he had had such a conversa-
tion with Sampson and Johnson or that he had ever discussed the
Federal Union with the latter. In view of Talbert's similar denial
of the anti-union statements which we have found that he made on
October 9, and in view of the Trial Examiner's refusal to credit the
instant denials, we cannot give credence to his testimony concerning
the above conversation.
On or about January 27, 1938, 46 employees were severed from the
respondent's pay roll because of the seasonal decline in business.
Sampson was included in the group of 46 although he had never been
furloughed in seasonal lay-offs before. There were approximately 34
employees with less seniority than lie retained, while only 1 with
more seniority were laid off. Of these seven, five 12 were like Samp-
son members of the Federal Union. Mason Johnson was retained on
'a These five included Ralph Cato and Theodore Ryan, whose lay-offs were also the
subject of 8 (3) allegations in the complaint and are discussed hereinafter.
CON'TINENTA'L BOX COMPANY, INC. 873
the machine which he and Sampson had operated. He had more
seniority than Sampson, and the respondent claims that he was a
more- efficient employee.
Superintendent Miller stated-that-no one had been put on Salnp-
son''s.job to replace him. It does not appear in the record, however,
that any change was made in the method of operating the printing
machine that would enable one man to do the work formerly done by
two. In oral argument the attorney for the respondent claimed that
Johnson and Sampson operated two different machines and that
when business dropped off, one machine was closed down. He ad-
mitted that this was not a part of the evidence in the case. As a
matter of fact, the record indicates that Sampson and Johnson
worked on the same machine and that both had been retained during
the dull season the previous year. Sampson testified that the day
he left he saw an employee, named Ben Ivory, take his former job,
and that both Ivory and Johnson had told him since that time that
the former had his job. Ivory had less seniority than Sampson and
was, as a matter of fact, retained at the time the latter was laid off.
Mason Johnson was not questioned as to whether or not Sampson had
been replaced. Ben Ivory was not called as a witness, although it
appears from the record that he was still in the respondent's employ
at least as late as September 22, 1938. The evidence discussed above
convinces us that Sampson was replaced at the time of his alleged
lay-off in January 1938 and that such "lay-off" was in fact a discharge.
At the time of his discharge Sampson was told by Superintendent
Miller to make sure that the respondent had his right address. He
chid so but was not recalled in the fall of 1938. Around October he
heard that the respondent was taking on men and visited the plant
to apply for work. . Miller told him that they could not hire him.
Between the date of Sampson's discharge and the time of the hearing,
the respondent had recalled 67 old employees and hired 75 new em-
ployees, yet Sampson was never recalled. Upon consideration of all
the surrounding circumstances, we are convinced that President
Talbert's remarks to Sampson shortly before his discharge indicate
the true reason for the termination of his employment.
We find that the respondent, on January 28, 1938, discharged, and
subsequently refused to reinstate, Bennie Sampson because of his
membership and activities in the Federal Union, thereby discrim-
inating in regard to thee hire and tenure of employment of the said
employee and discouraging membership in a labor organization; that
by said discharge and refusal to reinstate, the .respondent interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ralph Cato. Cato began work for the respondent in 1929 and
worked continuously until January 28, 1938. He was employed in
the shipping department.13 He began work at 25 cents an hour and
was making 40 cents an hour at the time of his alleged lay-off. He
joined the Federal Union when it was first organized and attended
several meetings. He talked to other employees about the Federal
Union and asked them to join.
On several occasions during November and December 1937, Trader,
Cato's foreman, questioned him concerning his membership in the
Federal Union. On one such occasion President Talbert passed by
and the foreman pointed Cato out as one of the Federal Union men.
Talbert then asked Cato if he was a Federal Union man, but Cato
denied it. The president then said, "If I thought you were, I would
throw you out of here just like you would throw a fried Irish potato
out." Trader did not take the stand to deny that he had engaged
in this activity. Talbert admitted that he might have made a remark
similar to the one about the "Irish potato" if Cato was not doing his
work, but denied that he had discussed the Federal Union with Cato
at any time.
A day or two after the consent election, Cato was called to Talbert's
office where the latter asked him again if he had joined the Federal
Union. When Cato finally admitted that he had, Talbert told him,
among other things, that he was "cutting his own throat" and that
he, would "shut down" before he would let the Federal Union come
into the plant. The president further stated that he had enough
money to last 2 years and asked whether Cato had enough to stay
on the Federal Union's side for that long. As in the case of his
similar remarks to Bennie Sampson, Talbert denied this conversation
in a general way. In view of Talbert's anti-union attitude as dis-
closed by the entire record and our previous findings as to Talbert's
credibility, we ate constrained to reject his denials with respect to
his conversations with Cato.
Cato's employment was terminated by the respondent on January
28, 1938, together with that of 45 other employees. At the time Cato
was the oldest employee in his department and no one else in the
entire plant having a seniority record equal to his was laid off.
Approximately 49 employees with less seniority than he were retained.
On previous occasions when there had- been no work available for
Cato in the shipping department he had been given work in other
parts of the plant.
13 Cato's work required him to lift bundles weighing from 25 to 100 pounds and load
them in box cars.
CO2NTINE\TAL BOX CO'MPAN'Y, YN C. 875
The respondent contends that Cato was chosen as one of the em-
ployees to be laid off because of his physical condition. Some time
in the summer of 1936 the respondent, upon instructions from Gen-
eral Box Company, its parent corporation, instituted the practice
of requiring its employees to have physical examinations. Superin-
tendent Miller testified thit,'t the respondent's policy with reference to
the examinations was not to employ or reemploy anyone who was
reported unfit. He stated that the rule was not strictly applied as to
old employees, that in the' case of such employees having unfavorable
reports, he and President Talbert took the individual cases under
advisement and did not always discharge a man whose report dis-
qualified him.14 Miller also stated that the report on physical exami-
nation was taken into consideration in making seasonal lay-offs.
In June 1936 Cato cut his hand while working in the plant and
was sent to the Houston Clinic for treatment. During the time that
he was off work with this injury and was visiting the clinic. for treat-
ment, he was given his first physical examination. This was on
July 9, 1936. The recommendation of the doctor who made the ex-
amination was, "Disqualified because of marked varicosities of both
legs." In spite of this report disqualifying him, Cato was returned
to work August 6, 1936, and worked continuously, without lay-off
and without any further physical examination, from August 1936
until January 1938.15 There can be no doubt that his so-called lay-
off on that date amounted to a discharge. A "good many" men were
admittedly hired in the shipping department between January and
December 1938, yet Cato was never recalled. The respondent ad-
mitted that he had been replaced."'
In October 1938, Cato again applied for work at the respondent's
plant. Superintendent Miller, whom he first saw, told him that the
Company was not putting on any hands. Cato later spoke to Presi-
dent Talbert, who told him to go to Miller and get a slip for another
physical examination. When he got the slip from Miller, the latter
14 Charlie Washington , another employee with less seniority than Cato , was not laid
off in January 1938, although the recommendation of the doctor on Washington 's exami-
nation made July 9, 1936, stated that he "Shows moderate varicocele and disqualifying
enlargement of both inguinal rings." Superintendent Miller testified that Washington
was kept on in spite of this report , because he was an exceptionally good man and his
work did not require him to do any lifting over 30 pounds , while Cato ' s work required
him to lift bundles ' weighing from 25 to 100 pounds . There is no medical or other testi-
mony in the record, however , as to what type of work a man in Washington 's condition
could safely perform, nor is there any such testimony as to what could or would result
if either Cato or Washington performed heavy work.
15 It should be noted that Cato was retained during the dull season in the spring and
summer of 1937, although "quite a number" of employees were laid off in April 1937,
according to Superintendent Miller.
1e Superintendent Miller testified that Cato had been replaced by a new man in the
fall of 1938 and that in the meantime men were occasionally transferred to the depart-
ment when it was busy.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him that if the doctor gave him a favorable report he could re-
turn to work . He then went to the clinic for a second examination.
The doctor 's recommendation on this occasion was, "Extreme vari-
cosity of veins of both legs and right thigh. This makes him un-
qualified for heavy work or work requiring much walking or stand-
ing." Superintendent Miller refused top reinstate Cato after this
report, although he had reinstated him in the fall of 1936 after re-
ceipt of a similar report, which disqualified Cato, not for any
particular kind of work , but generally , for work in the respondent's
plant.
A comparison of the treatment accorded to Cato by the respondent
before and after he joined the Federal Union is enlightening. The
respondent rehired Cato in the fall of 1936 after receipt of an un-
favorable physical report disqualifying him for work . When the
time came for the seasonal lay-off in the spring of 1937 , Cato was
retained in spite of this report. All of this occurred before he joined
the Federal Union. Turning to an examination of the treatment
which Cato received after joining the Federal Union, we find that
he was discharged in January 1938 allegedly because of this same
physical report and was refused reinstatement in the fall of that
year allegedly on the basis of a second report which was similar
to the first but suggested that Cato could be hired for lighter work.
The record fails to disclose any reason for the respondent 's changed
attitude toward Cato other than that contained in President Tal-
bert's threats to get rid of him if he engaged in any activity in
behalf of the Federal Union.
In the light of the entire record, we find- that the respondent, on
January 28 , 1938, discharged, and subsequently refused to reinstate,
Ralph Cato because of his membership and activities in the Federal
Union, thereby discriminating in regard to the hire and tenure of
employment of the said employee and discouraging membership in
a labor organization ; that by said discharge and refusal to reinstate,
the respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
About 13 weeks after his discharge , Cato obtained a week's work
.at $2.00 a day cleaning out a lumber yard. Later, he was hired for
4 days at 40 cents an hour digging an excavation for the foundation
of a house . Other than this, he had had no employment up to the
time of the hearing. He desires reinstatement.
Theodore Ryan . Ryan was first employed by the respondent in
the fall of 1933. He worked continuously until the spring of 1936,
when he was laid off along with other employees because of the
.seasonal decline in business. After that time he worked during the
busy seasons in 1936-1937 and 1937-1938. He was again laid off on
CONTINENTAL BOX COMPANY, INC. 877
January 28, 1938, with the group of 45 other employees referred to
above. Ryan had never had any complaints about his work, but his
hourly rate of 23 cents was never raised during his 5 years of
service.
Ryan joined the Federal Union in November 1937 and attended
three of its meetings. Occasionally he would ask other employees
to join as they walked home from work. Both President Talbert
and Superintendent Miller denied that they knew of Ryan's mem-
bership in the Federal Union at the time of his lay-off.
As set out above, Ryan was laid off on January 28, 1938. There
were approximately 36 employees with less seniority retained, while
only 2 with more seniority were laid off. However, this was the
third straight season that Ryan had been among those chosen for
the lay-off.. Ryan applied for reinstatement on two occasions but
was told that there was no work for him that fall.
We find that the lay-off of Theodore Ryan and the subsequent
refusal to reinstate him were for reasons other than his union
activities.
C. Domination of and interference with the formation and admin-
istration of the Association
About a month before the consent election in December 1937, some
of the older employees in the respondent's plant organized the Asso-
ciation. One of these men, Peter Thiesen, admitted that his purpose
in doing so had been to fight the Federal Union. The founders of
the Association circulated petitions and solicited the signatures of
those who were interested in joining.
The treatment accorded the Association by the respondent from
the time of its inception was in sharp contrast to that accorded the
Federal Union. We have already pointed out how Coombs and
Heuermann were soundly rebuked and then discharged merely for
engaging in a quiet conversation about the Federal Union on their
own time. Yet the Association was permitted to carry on wide-
spread solicitation for members on company property. Many of
the respondent's own witnesses testified that they had "signed up"
for the Association in the plant, some even admitting that they
had done so during working hours. It is inconceivable that such
general solicitation could have gone unnoticed, yet apparently no
steps were taken to stop it. On the eve of the consent election the
respondent had warned its employees that solicitation of union mem-
bership on company property would not be tolerated.17 Yet this rule
"President Talbert's statement to the employees that night read in part, "This Com-
pany will insist that there shall be no solicitation of union membership on the Company's
premises."
878 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not applied to the Association. In defense of the allegation that
the respondent permitted widespread solicitation in the plant by
that organization, the answer stated that "Respondent has made no
effort to interfere with activities of its employees in labor organi-
zations either during or after working hours ; . . . respondent has
not prevented its employees from discussing labor organizations
during working hours and signing their names to instruments relat-
ing thereto."
As hereinbefore mentioned, President Talbert, who berated sev-
eral of the Federal Union men for their activities on behalf of the
outside organization, urged Bennie Sampson to join the Association.
Supervisor Trader, who had questioned employees about their mem-
bership in the Federal Union and advised them to "leave it alone"
apparently felt no such animosity toward the Association, as the
record indicates that he was himself a member of that organization.
G. H. Rowald, who was in charge of the shipping department at
night, was also a member of the Association. W. R. Byrd, who
identified himself as a supervisor,18 admitted that he also had solici-
ted employees to join the Association.
A day or two after the consent election a group of employees who
belonged to the Association called on President Talbert and asked
him to recognize them as the bargaining agency for the employees.
Talbert told them that they had to get organized and get a lawyer
before he would think about it. The Association followed his sug-
gestions. A few days later it hired a lawyer, held a meeting, and
elected officers.
The respondent's favoritism towards the Association was also evi-
denced in its speedy recognition of that organization as bargaining
agent for its employees. We have already pointed out that the
respondent insisted on an election before it would recognize the
Federal Union, and that prior to the election it interfered with its
employees' right of self-organization by attempting to persuade its
employees that collective bargaining with it would be futile and
that there was no need for a union in the plant. On December 28,
1937, a week after the election,19 a committee of 9 members of the
Association approached Talbert and claimed that 111 employees had
joined the Association. They presented a petition bearing 111 sig-
natures. President Talbert testified that they also presented signed
membership cards and that after checking the signatures on the cards
and the petition and finding them to be authentic, he recognized the
group. Cox, president of the Association, who was on the committee,
testified, however, that at that meeting only the petition was pre-
18 Byrd directed the work in the plant but had no authority to hire or fire.
19 See footnote 4 for the results of the election.
CONTINENTAL BOX, COMPANY, INC. 879
rented, and that Talbert "just looked at it" and said he would recog-
nize the Association . The respondent introduced in evidence a copy
of a letter dated January 10, 1938, which was identified by Talbert
as a communication addressed to him by the Association asking for
a meeting to discuss a contract . In its letter the Association claimed
to represent more than 60 per cent of the employees and stated that
it would exhibit to Talbert the signed membership cards at any time
he desired to see them. The evidence is undisputed that the Com-
pany recognized the Association about 2 weeks before January 10,
1938. In view of this letter offering to show Talbert the cards 2
weeks after he claimed he had seen them , and in view of the testi-
mony of the president of the Association set out above , we do not
place any weight in Talbert's contention that he saw the membership
cards and checked the signatures thereon before recognizing the As-
sociation . Any check that he may have made on December 28 must
have been very casual , and recognition was given the Association
almost immediately.
On, the very night of this meeting or , at the latest, the next day,
the respondent placed a notice on its bulletin board , advising its
employees that the Association was recognized as the representative
of a majority of its employees . The notice contained a list of those
whose signatures appeared on the petition which had been submitted
to Talbert . The speedy recognition of the Association after a hasty
check of its majority claims is in sharp contrast to the respondent's
insistence on an election before dealing with the Federal Union.
The evidence unquestionably shows that the respondent favored the
Association as against the Federal Union, and did not hesitate to
make this preference known to its employees.
No records of the Association were produced at the hearing.
Thomas Doyle , one of the originators of the organization, had all of
its records in his possession . He was no longer in the respondent's
employ at the time of the hearing , and no one knew where he could
be reached. Doyle had arranged for the use of the meeting hall for
the organization and had obtained the membership cards which it
used , but there was no evidence to indicate who paid the expenses
which he incurred . The bylaws of the Association provide for dues
of 10 cents a week , but no dues were ever collected and there was no
money in the treasury at the time of the hearing . The secretary of
the organization stated that she did not know who paid the expenses.
We find that the respondent dominated and interfered with the
formation and administration of the Employees Aid Association and.
contributed support to it, and thereby interfered with , restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial 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.
V. THE REMEDY
It is essential in order to effectuate the purposes and policies of the
Act that the respondent be ordered to cease and desist from certain
activities and practices in which we have found it to have engaged.
Further to effectuate the purposes and policies of the Act, and as a
means of removing and avoiding the consequences of the respondent's
unfair labor practices, we shall, in aid of our cease and desist order,
order the respondent to take certain affirmative action, more par-
ticularly described below.
We have found that the respondent in many ways has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed them by the Act, and we shall, therefore, order
the respondent to cease and desist from any such practices.
We have found that the respondent discriminatorily discharged,
and subsequently refused to reinstate, Floyd Coombs, J. L. Heuer-
mann, Bennie Sampson, and Ralph Cato because of their union mem-
bership and activity. We shall, therefore, order the respondent to
offer them reinstatement to their former positions without prejudice
to their seniority and other rights and privileges. The respondent
contends that Coombs was refused reinstatement because of his con-
duct at the time he was notified of his discharge and at the subse-
quent times when he applied for reinstatement. We have previously
considered this contention and found that Coombs was refused rein-
statement because of his union membership and activity. Even in
the absence of this finding we do not believe that Coombs' conduct
was such as to bar him from reinstatement. 21, We hold that the
effectuation of the policies of the Act requires that Coombs' dis-
criminatory discharge be remedied by his reinstatement.21 As here-
tofore set forth, the respondent asserted that Cato was refused
reinstatement because of his physical condition. We have found,
however, that he was refused reinstatement because of his member-
20 See Republic Steel Corporation v. National Labor Relations Board, 107 F. (2d) 472
(C. C. A. 3), enf'g as mod. Matter of Republic Steel Corporation and Steel Workers
Organizing Committee, 9 N. L. R. B. 219.
-Matter of Harnischfeger Corporation and Almagated Association of Iron, Steel and
Tin Workers of North America, Lodge 1111,, 9 N. L. R. B. 676.
CONTINENTAL BOX COMPANY, INC. 881
ship and activity in the Federal Union. In so finding we did not
hold that Cato did not suffer from the condition reported by the
doctor who examined him. As a result of his examination the
doctor concluded, "This makes him unqualified for heavy work or
work requiring much walking or standing.". He also reported to
the respondent that Cato was "fitted for light work." In view of
these. facts, we shall not require the respondent to reinstate Cato
to his former position in the shipping department, but shall provide
that. it may, if it so desires, carry out our order to reinstate him by
placing him in a substantially equivalent position involving "light
work." 22 We shall further order the respondent to make whole
Coombs, Heuermann, and Sampson for any loss of pay they have
suffered by reason of their respective discharges by payment to each
of them of a sum equal to the amount which he normally would have
earned as wages from the date of his discharge to the date of the
offer of reinstatement, less his net earnings during said period .28
We shall order the respondent similarly to reimburse Cato. Since
the Trial Examiner did not recommend the reinstatement of Cato,
however, we shall, in accordance with our usual practice, limit such
reimbursement in his case to the periods (1) from the date of his,
discharge to the date of the Intermediate Report, and (2) from the
date of this Order to the offer of reinstatement.2'
The respondent contends, however, that Coombs, Heuermann, and
Sampson have secured regular and substantially equivalent employ-
ment elsewhere and, therefore, are no longer employees, within the
meaning of Section 2 (3) of the Act; that, since they are not em-
ployees, the Board has no power to reinstate them. While we do not
adopt the view that the obtaining of other regular and substantially
equivalent employment deprives the Board of power to reinstate in-
dividuals who have been discharged for union activities and desire
reinstatement, 25 the employment -records of these three men since the
22 See .Matter of Harnischfeger Corporation and Amalgamated Association of Iron, Steel
and Tin Workers of North America, Lodge 1114, 9 N. L. R. B. 676.
23 By "net earnings" is meant earnings` less ' expenses, such as for transportation, room,
and board incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
termination of employment and the consequent necessity of his seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America, Lumber and Sawmill Workers, Local 2590, 8 N. L. R. B. 440.
Monies received for work performed upon Federal, State, county, municipal, or other
work-relief projects are not considered as earnings, but, as provided below in the Order,
shall be deducted from the sum due the employee, and the amount thereof shall be paid
over to the appropriate fiscal agency of the Federal, State, county, municipal, or other
government or governments which supplied the funds for said work-relief projects.
2 Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North
America, Local No. 6, 1 N. L. R. B. 760.
25 Matter of Eagle-Picker Mining & Smelting Company, a corporation, and Eagle-Picker
Lead Company, a corporation and International Union of Mine, Mill & Smelter Workers,
Locals Nos. 15, 17, 107, and 111, 6 N. L. R. B. 727.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of their discharges would not in any event justify the applica-
tion of the rule for which the respondent contends.21
Floyd Coombs. Coombs had several temporary jobs after he was
discharged by the respondent. He worked 4 days as an "extra"
employee for Trappey & Son, distributors of canned goods; 10 days
for the Postal Telegraph Company as a messenger during the Christ-
mas season; and 3 weeks as an-extra helper on a rush order for B. A.
Reisner, a small structural steel concern. On March 1, 1938, he ob-
tained employment with Myers-Spalti Furniture Company. He
began work there at 27 cents an hour and' was making 35 cents an
hour at the time of the hearing. He worked a 40-hour week and
had earned, on the average, about $13.00 per week. Coombs received
33 cents an hour while working for the respondent. Although
Coombs received a higher hourly rate at Myers-Spalti, his weekly
earnings were greater when he worked for the respondent. His work
at the time of the hearing consisted of finishing and staining boats.
At the time he was discharged by the respondent, Coombs was op-
eratiing a rock-fastener machine. He testified that he "liked machine
work best." He testified that, if granted his seniority, he would
rather work for the respondent than Myers-Spalti even though at a
lower hourly rate, and that he believed that in a year he would be
making more at the respondent's plant than at Myers-Spalti. We
find that Floyd Coombs has not obtained regular and substantially
equivalent employment.
J. L. Heuermann. About 1 or 2 months after his discharge Heuer-
mann obtained part-time work with the Pullman Company which he
still had at the time of the hearing. He worked an average of 2 or
3 days a week in the molding department and earned from $3.36 to
$4.50 a day: He had made as high as $18.00 to $19.00 a week there.
The record does not disclose Heuermann's hourly rate at the respond-
ent's plant. At the time he was discharged he was doing the same
work as Coombs, who received 33 cents an hour. Heuermann, how-
ever, had a longer service record with the respondent. At the hear-
ing Heuermann indicated his desire to return to work. We find
that J. L. Heuermann has not obtained regular and substantially
equivalent employment.
Bennie Sampson. About 6 months after his discharge Sampson ob-
tained employment with Elizabeth Moody, doing farm work. His
work consisted of caring for cows, hogs, and chickens. He was paid
$2.00 a day. When discharged by the respondent Sampson was earn-
ing from 33 to 38 cents an hour. After 11 weeks he. quit this farm
job because he was afraid of Elizabeth Moody, who "cursed" and-
2e Cf. Matter of Mooresville Cotton Mills and Local No. 1221, United Textile Workers of
America, 15 N. L. R. B. 416.
CONTINENTAL BOX COMPANY, Iac. 883
"talked about using a gun." At the time of the hearing Sampson was
loading rice at the Federal Warehouse. He had had the job only
about 2 months, and made 8 cents an hour less than he had made
when working for the respondent. He worked only when there were
orders to fill, and in the month before the hearing got only a few
scattered days of work. Sampson desires reinstatement. We find
that Sampson has not obtained regular and substantially equivalent
employment.
The respondent also maintains that Heuermann should. not be
reinstated because he refused an offer of reinstatement made at the
hearing. During the course of the hearing counsel for the respond-
ent offered to reemploy Heuermann without back pay and without
his seniority rights. He was asked on the record, ". . . does he
desire to drop this controversy and accept his job?" Heuermann
was given only a few hours to decide. He was not represented by
counsel and it is clear from the record that he was confused as to
his rights in the matter. When the attorney for the Board attempted
to advise Heuermann of his rights he was met by vigorous objections
on the part of the respondent's counsel. Heuermann agreed to
return to work if given his old job with full seniority and back pay,
but this was not the respondent's offer. Taking into consideration
the circumstances under which it was made and the substance of the
offer itself, we do not believe that Heuermann's rejection of this
proposition should affect in any way the remedy which we would
ordinarily order in his case.
We have found that the respondent dominated and interfered
with the formation and administration of the Employees Aid Asso-
ciation of the Continental Box Company, Inc., and contributed sup-
port to it. Because of such domination and interference, the Em-
ployees Aid Association cannot serve the respondent's employees as
a genuine agency for collective bargaining. We shall order the
respondent not only to cease and desist fron such domination and
interference, but also to withdraw all recognition from, and com-
pletely disestablish, the Employees Aid Association as the repre-
sentative of any of its employees for the purpose of collective bar-
gaining with it in respect to wages, hours, and other working
conditions.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Federal Labor Union No. 21328 and Employees Aid Associa-
tion of the Continental Box Company, Inc., are labor organizations,
within the meaning of Section 2 (5) of the Act.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of employ-
ment of Floyd Coombs, J. L. Heuermann, Bennie Sampson, and
Ralph Cato, thereby discouraging membership in Federal Labor
Union No. 21328, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (3) of the
Act.
3. By dominating and interfering with the formation and adminis-
tration of the Employees Aid Association of the Continental Box
Company, Inc., and by contributing support thereto, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act.
4. 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 prac-
tices, within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. By laying off Theodore Ryan on January 28, 1938, and refusing
to reinstate him, the respondent has not engaged in unfair labor
practices, within the meaning of Section 8 (3) of the Act, as alleged
in the complaint.
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 re-
spondent, Continental Box Company, Inc., Houston, Texas, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Federal Labor Union No. 21328
or any other labor organization of its employees, by discharging or
laying off its employees or any of them, or in any other manner dis-
criminating in regard to hire or tenure of employment of its
employees;
(b) Dominating or interfering with the formation or administra-
tion of the Employees Aid Association of the Continental Box Com-
pany, Inc., or any other labor organization of its employees, or
lending financial or other support thereto;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
v
CONTINENTAL BOX COMPANY, INC. 885
mutual aid or protection , as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Floyd Coombs, J. L. Heuermann , and Bennie Samp-
son, immediate and full reinstatement- to "their former positions, and
to Ralph Cato immediate reinstatement to his former position or to
substantially equivalent employment , without prejudice to their
seniority and other rights .and privileges;
(b) Make whole Floyd Coombs, J. L. Heuermann , and Bennie
Sampson and each of them for any loss of pay they have suffered by
,reason of their respective discharges , by payment to each . of them
of a sum of money equal to the amount he normally would have
earned as wages during the .period from the date of his discharge to
the, date _of..the offer . of reinstatement , less his net earnings 27 during
.said ; period ; deducting , however, from . the amount otherwise due. to .
each of the said employees monies received -by .said. employees .during
said period for work performed upon Federal , State, county , munic-
ipal, or other work-relief projects; and pay over the amount so de-
ducted to the appropriate fiscal agency of the Federal , State, county,
municipal, or other government or governments which supplied the
funds for said work-relief projects;
(c) Make whole Ralph Cato for any loss of pay he has suffered by
reason of his discharge , by payment to him of a sum of money equal
to the amount he normally would have earned as wages during the
period from the date of his discharge to March 24 , 1939, and during
the period from the date of this Order to the date of the offer of
reinstatement , less his net earnings 28 during said periods ; deducting,
however, from the amount otherwise due to the said employee, monies
received by said employee during said periods for work performed
upon Federal, State, county , municipal , or other work -relief projects;
and pay over the amount so deducted to the appropriate fiscal agency
of the Federal , State, county , municipal , or other government or-
governments which supplied the funds for said work -relief projects;
(d) Withdraw all recognition from the Employees Aid Associa-
tion of the Continental Box Company , Inc., as the representative of
any of its employees for the purpose of dealing with the respondent
concerning grievances , labor disputes , wages, rates of pay , hours of
employment , or other conditions of work, and completely disestablish
the Employees Aid Association of the Continental Box Company, Inc.,
as such representative;
27 See footnote 23, supra.
28 Ibid.
283030-41-vol. 19--57
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Immediately post and keep posted, in conspicuous places in and
about its plant at Houston, Texas, for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating that it will cease and desist in the manner set forth in para-
graphs 1 (a), (b), and (c) of this Order, that it will take the affirma-
tive action set forth in paragraphs-2 (a), (b), (c), and (d) of.this
Order; and that the respondent's, employees are free to become or re-
main members of Federal Labor Union No. 21328 and that-the respond-
ent will not discriminate against any employee because of membership
or activity in that organization;
(f) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondent has taken to comply therewith.
AND IT Is FURT--HER ORDERED that the complaint be , and it hereby is,
dismissed in so far as it alleges, with regard to Theodore Ryan, that
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act.