Fulton Bag & Cotton Mills

National Labor Relations Board - Board Decisions

Sep 23, 1948

79 N.L.R.B. 939 (N.L.R.B. 1948)

In the Matter of FULTON BAG & COTTON MILLS and WAREHOUSING,
PROCESSING AND DISTRIBUTING UNION No. 217, AFFILIATED WITH THE
I. L. W. U., C. I. O.
Case No. 17-C-1477.-Decided September 03, 1948
DECISION
AND
ORDER
On September 11, 1947, Trial Examiner Arthur Leff issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the Intermediate Report attached hereto.'
Thereafter, the Respondent filed exceptions to the Intermediate Report
and a supporting brief.2
The Board 3 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed.4 The Board has considered the Intermediate Report,
the exceptions and brief of the Respondent, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, to the extent that they are consistent with the
additions and modifications hereinafter set forth.
' Section 8 (1), (3), and (4) of the National Labor Relations Act, which the Trial
Examiner found were violative , are continued in Section 8 (a) (1), (3 ), and (4) of the
Act as amended by the Labor , Management Relations Act, 1947.
The Respondent 's request for oral argument is denied , inasmuch as the record, the
Intermediate Report, and the Respondent 's exceptions and brief, in our opinion , adequately
present the issues and the positions of the parties.
1 Pursuant to the provisions of Section 3 (b) of the Act as amended, the National Labor
Relations Board has delegated its powers in connection with this case to a three -man panel
consisting of the undersigned Board Members [ Houston, Reynolds, and Gray].
4 The Respondent contends that prejudicial error resulted from the Trial Examiner's
refusal to compel the Board's attorney to produce an affidavit , made by Felix Trujillo and
submitted to the Board in support of the charge filed in this case The affidavit was re-
quested by the Respondent for the use of the Respondent 's attorney in cross -examining
Trujillo . Trujillo did not use the affidavit while on the stand , nor was it referred to by
the Board 's attorney . We find that the Trial Examiner did not abuse his discretion in
denying the Respondent 's request , and we find that there was no prejudicial error in his
ruling. Cf. Goldman v. United States, 316 U. S. 129, 132 , 62 Sup. Ct. 993 ; N. L. R. B.
v. Bank of America, etc., 130 F. ( 2d) 624 (C. C. A. 9), enf'g 26 N. L . R. B 198, cert . denied
318 U. S . 792, rehearing denied 319 U. S. 782; N. L. R . B. V. Phillips Gas and Oil Co.,
141 F. ( 2d) 304 (C C. A. 3), enf'g 51 N. L. R. B. 376; Matter of Standard Oil Company
of Californsa, 62 N. L. R B. 449 , 453; Matter of Columbia Products Corp., 48 N. L R B.
1452, enf'd 141 F. ( 2d) 687 (C. C. A. 2).
79 N. L. R. B., No. 114. 939
'940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances of this case, we find, as did the Trial
Examiner, that the Respondent violated Section 8 (3) and (4) of the
Act. In so finding, we attach particular significance to the failure
.of the Respondent to take any action against Trujillo, other than the
imposition of a relatively mild reprimand, on the occasion of Trujilllo's
failure to return to work on the afternoon of October 9, 1947, at a time
when the Respondent was unaware of the reason for the absence; and
the contrastingly severe lay-off imposed upon Trujillo on the occasion
of his subsequent absence, after the Respondent became aware that he
was away from work in order to give testimony in a Board proceeding.
Equally persuasive, in our opinion, and at variance with the Respond-
ent's contention that its action against Trujillo was disciplinary, was
the failure of the Respondent to inform Trujillo, when he reported for
work on October 21, and thereafter, that a disciplinary lay-off was be-
ing imposed for his absence. Instead, the Respondent advised Trujillo
that there was no available work for him, while at the same time it
hired new employees to perform work of a similar nature to,that which
Trujillo had been performing. Thus, the Respondent's explanation
to Trujillo is not only refuted by the facts, but is also inconsistent with
the reason alleged by it at the hearing for its conduct regarding
Trujillo.
The foregoing factors, considered in conjunction with Trujillo's
,organizing activities among the Respondent's employees, and the
earlier invocation against the Respondent, of the processes of the
Board on behalf of Trujillo, have convinced us that the Respondent
acted against Trujillo because he gave testimony in a Board proceed-
ing, and in order to discourage union membership and activities in
its plant.
In view of the foregoing findings as to the Respondent's motivation
for Trujillo's lay-off, we find it unnecessary to pass upon the validity
,of the Respondent's contention that, under Section 8 (4) of the Act, a
,distinction allegedly exists between the protection accorded employees
against discrimination for giving testimony under the Act and the
protection, if any, accorded employees against disciplinary action for
their absences while giving such testimony. We do not, therefore,
adopt the Trial Examiner's views in this regard.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
,of the National Labor Relations Act, as amended, the National Labor
,.Relations Board hereby orders that the Respondent, Fulton Bag &
Cotton Mills, Denver, Colorado, and its officers, agents, successors, and
assigns shall :
FULTON BAG & COTTON MILLS 941
1. Cease and desist from :
(a) Discouraging membership in a labor organization of its em-
ployees, by discriminating in regard to the hire and tenure of its
employees, or any term or condition of their employment;
(b) Discriminating against any employee because he has given
testimony under the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole Felix Trujillo for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him
from October 21, 1946, to October 31, 1946) by payment to him of a sum
of money equal to the amount he normally would have earned as wages
during said period, less his net earnings during said time ;
(b) Post immediately at its plant in Denver, Colorado, copies of the
notice marked "Appendix A" 5 in the Intermediate Report attached
hereto. Copies of such notice, to be furnished by the Regional Direc-
tor for the Seventeenth Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately
upon the receipt thereof and maintained by it for sixty (60) consecu-
tive days in conspicuous places, including all places where notices to
employees customarily are posted. Reasonable steps shall be taken by
the Respondent to see that the notice is not altered, defaced, or covered
by other material ;
(c) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of receipt of this Order
what steps the Respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Harry L. Browne, for the Board.
Messrs. Kenneth W. Robinson and Robert Swanson, of Robinson and Charlton,
of Denver, Colo., for the respondent.
Mr. Louis Levin, of Denver, Colo., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by Warehousing , Processing and Distributing Union
No. 217 , affiliated with the I . L. W. U., C. I. 0, herein called the Union, the
National Labor Relations Board, herein called the Board, by its Acting Regional
Director for the Seventeenth Region ( Kansas City , Missouri ), issued its com-
plaint, dated June 11, 1947 , against Fulton Bag & Cotton Mills, herein called the
respondent , alleging that the respondent had engaged in and was engaging in
This notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words, "RECOMMENDATIONS OF A TRIAL EXAMINER" and by
substituting therefor the words, "A DECISION AND ORDER " In the event that this
Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted before the
- words, "A DECISION AND ORDER ," the words, "A DECREE OF THE UNITED STATES
CIRCUIT COURT OF APPEALS ENFORCING."
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices affecting commerce within the meaning of Section 8 (1),
(3) and ( 4) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act.' Copies of the complaint accompanied by
notice of hearing were duly served upon the respondent and the Union.
With respect to the unfair labor practices , the complaint alleged in sub-
stance that the respondent on or about October 21, 1946, terminated the em-
ployment of Felix Trujillo, and thereafter refused to reinstate him to his former
or substantially equivalent position of employment , because of his membership
in and activities on behalf of the Union , because he had filed charges against
the respondent, and because he had given testimony under the Act in a case
concerning another employer.
The respondent thereafter filed its answer in which it denied generally the al-
legations of the complaint with respect to the unfair labor practices.
Pursuant to notice a hearing was held on July 7 and 8, 1947, at Denver, Colorado,
before the undersigned , Arthur Leff, the Trial Examiner duly designated by the
Chief Trial Examiner. At the hearing the Board and the respondent were repre-
sented by counsel and the Union by a representative Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
on the issues, was afforded all parties. At the end of the Board's case, the under-
signed denied, with leave to renew at the end of the entire case, a motion by the
respondent to dismiss the complaint for want of proof Decision was reserved
upon a similar motion made by the respondent at the close of the entire case The
motion is disposed of as hereinafter indicated. At the conclusion of the hearing,
counsel for the Board and counsel for the respondent argued orally before the
' All Section references in this report to the Act are those which applied prior to the
amendments made by the Labor -Management Relations Act, 1947 (Public Law 101, 80th
Congress).
2In addition , and by way of "further defense," the respondent 's answer affirmatively
alleged in substance that Louis Levin, who as representative of the Union filed the charge,
was a member of the Communist Party ; that neither Levin nor the officers of the Union
had filed with the Board affidavits disavowing membership in the Communist Party ; that
the charge was not filed in good faith nor for the interests of Felix Trujillo but for the
personal aggrandisement of Levin and to effectuate the objects and designs of the Com-
munist Party ; and that, for the reasons indicated , the filing of the charge constituted an
abuse of the Board ' s process , and the prosecution of the complaint , a contravention of the
public policy of the United States. At the opening of the hearing , the respondent moved,
upon allegations substantially identical to those set forth in its "further defense," for the
dismissal of the "charge" and for the preclusion of "any evidence whatsoever or any in-
vestigation in connection therewith ." In support of its said "further defense" and of its
motion, the respondent relied largely upon the provi,ions of Section 9 (h) of the Act as
amended by the Labor -Management Relations Act, 1947. The undersigned denied the said
motion to dismiss, rejected the respondent ' s offer to prove the allegations of its "further
defense," and declined to grant an application for subpenas in conjunction therewith, all
upon the grounds that the allegations of said "further defense" and motion, even if true, did
not deprive the Board of its jurisdiction to conduct the inquiry and were irrelevant and im-
material to the issue of whether the respondent had engaged in the unfair labor practices
as alleged in the complaint . The basis for the undersigned's ruling was. (1) that Section
9 (h) of the Act as amended had not yet become effective at the time of the issuance of
the complaint or of the hearing , ( 2) that, in any event, Section 9 (h) does not contem-
plate and Congress did not intend that the Board conduct an investigation and make a
determination of any alleged Communist affiliations of a charging union or its officers
where , as here, it appears that that question is not allied to the issue of whether the re-
spondent engaged in the alleged unfair labor practices ; and (3 ) that the motive of the
party filing the charges was immaterial to the issue of unfair labor practices . See Matter
of Mooremack Gulf Lines , Inc., 28 N . L. R. B. 869; Matter of Berkshire Knitting Mills,
17 N. L. R. B. 239 , 243 ; Matter of N. Y. & Porto Rico S. S. Co., 34 N. L R B. 1028, 1044 ;
N. L. R. B. v Donnelly Garment Co., 330 U., S. 219.
FULTON BAG`& COTTON MILLS 943
undersigned Subsequent to the hearing, counsel for the respondent filed a
brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Georgia corporation , licensed to do business in the State
of Colorado . It maintains a plant in Denver, Colorado , where it is engaged in
the manufacture of bags and related products . Only its Denver plant is involved
in this proceeding During 1946, the respondent purchased materials , for use
at its Denver plant, having a value in excess of $50,000 , 75 percent of which was
shipped to its Denver plant from sources outside the State of Colorado . During
the same period the respondent manufactured at its Denver plant products
having a value in excess of $75,000, of which more than 75 percent was shipped
to destinations located outside the State of Colorado. For the purposes of this
proceeding , the respondent admits that it is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
Warehousing, Processing and Distributing Union No. 217, affiliated with the
International Longshoremen's and Warehousemen's Union and the Congress of
Industrial Organizations , is a labor organization admitting to membership
employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction ; Trujillo's employment history; his union activities
At its Denver plant, where Felix Trujillo was employed, the respondent
employs upwards of 50 employees, mostly unskilled, of whom about two-thirds
are women and one-third are men. The precise number employed varies with
the season. Autumn is the busiest season of the year, and it is then that the
respondent 's employment requirements are at their peak Autumn is also the
season when the respondent experiences its greatest manpower difficulties, for
that is the beet harvesting season when laboring peopie at Denver leave the
city for the harvesting fields. That was true in October and November of 1946,
when the critical events leading to Trujillo 's lay-off and eventual termination
of employment occurred . At that time , the manpower situation was, as put by
Foreman Arnold Sathre, "rotten," and it was difficult for the respondent to
obtain necessary factory labor.
Employed on June 10, 1946, to perform general work, mainly of an unskilled
character, about the plant, Trujillo's work assignments were widely varied in
nature. Among other things, he was called upon to help with shipping and
receiving, to clean and sweep, to handle and pass materials, and to perform
general floor work. After he had been in the respondent's employ about 6 weeks,
he was assigned to assist in the operation of a baling machine; but this was only
a part-time assignment , and he continued to perform his other duties when not
engaged in the machine work. About September 16, 1946, after an efficiency
expert had recommended that only one man, instead of two as theretofore, be
used on the baling machine operation, Trujillo was for a time relieved entirely
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from that assignment. Later, however, on occasions when there was an over-
abundance of baling work, Trujillo was assigned to run another baling machine
which he operated alone, but his time continued to be devoted principally to the
performance of other work of the general character described above. There is
evidence reflecting that Trujillo was slow in the performance of the baling
machine operations. This, however, was but an incidental part of his work, and
the record does not establish that in the performance of his general duties he
was considered an unsatisfactory worker. During his tenure with the respon-
dent, Trujillo's hourly rate was increased from 65 to 70 cents an hour.
Before entering the respondent's employ, Trujillo's most recent employment
by others had been with the Ellis Canning Company, where he had been employed
from August 1945 to February 23, 1946, and with the Great Western Mushroom
Company, where he had been employed for a period of approximately 1 week
beginning on May 31, 1946. At Ellis, Trujillo had become a member of the local
union which is the charging party in this case. Following his termination by
Ellis, a charge had been lodged by the Union with the Board on behalf of
Trujillo and some 50 other Ellis employees, alleging that these employees had
been discriminated against in violation of Section 8 (3) of the Act. A complaint
was ultimately issued on that charge,' and, as later will be shown, Trujillo's
absence from the respondent's plant to attend the hearing in the Ellis case was
the event which immediately precipitated his lay-off by the respondent. Trujillo's
termination of employment by the Great Western Mushroom Company was also
followed by a charge filed by the Union, alleging that he had been discriminatorily
discharged because of his union membership and activities.' When Trujillo was
hired by the respondent, he did not disclose and the respondent did not know
of the pendency of these charges. At the hearing, Superintendent Bernard Naas
expressed uncertainty as to whether he would have hired Trujillo had he known
of the pending charges. "I don't know," testified Naas, "We don't, naturally,
want a trouble maker, if you can call it that."
Trujillo, who had become president of the charging local before entering the
respondent's employ, assumed the leadership in the Union's efforts to organize
the respondent's employees. As a result of his activities, he succeeded, accord-
ing to his testimony, in securing designation cards from about 30 employees.
On August 28, 1946, the Union filed with the Board a petition for certification
of representatives, and this petition was still pending undetermined at the time
of the events narrated below.' It is not disputed that Trujillo's union activities
were known to the respondent's managerial employees. Foreman Arnold Sathre
admitted while testifying that he knew of Trujillo's union activities. "If you
ever worked around a group of women," said Sathre, "you know they will tell
you everything."
Trujillo's interest in the Union was also made known to the respondent in
another way. On September 19, 1946, following Trujillo's removal from the
baling machine as noted above, the Union filed a charge (Case No. 17-C-1463),
3 Cases Nos. 17-R-1339 and 17-C-1383. The complaint in the Ellis case alleged in
substance that after temporarily discontinuing the production operations of its plant in
February 1946, the Ellis Canning Company, upon reopening its plant on April 10, 1946,
required membership in an AFL union as a condition of employment, and refused to
reemploy 51 named employees because of their membership and activity in the CIO union
which is the charging party in the instant case.
4 Case No. 17-C-1412. The record does not reflect whether any complaint was ever
issued on this charge.
" The petition was ultimately withdrawn without prejudice, and the representation
proceeding was closed on December 2, 1946 , because of the charge filed in the instant case.
FULTON BAG & COTTON MILLS 945
of which the respondent was notified, alleging that Trujillo had been discrimi-
nated against because of his union activities by a transfer to more menial work.
The charge in Case No. 17-C-1463 was withdrawn "with prejudice" on October
4, 1947. No claim of discrimination is predicated in the instant case upon the
job transfer adverted to in that charge, although it is contended that Trujillo's
subsequent termination of employment resulted in part from the filing of that
charge.
B. The events leading to Trujillo's lay-off on October 21, 1947
Trujillo's attendance record-in a plant which suffered from considerable
absenteeism-was an excellent one. With the possible exception of 1 day in
July, Trujillo missed no working time whatever from the day he first entered
the respondent's employ until October 9, 1947.
On October 9, Trujillo had an appointment at the Board's Denver office with
the Board's regional attorney who was then engaged in preparing the Ellis case
for hearing. Before the beginning of work that day Trujillo requested Plant
Superintendent Naas' permission to take the day off. In response to Naas'
inquiry as to the reason for the absence, Trujillo stated only that it was for
"personal business." Naas inquired if Trujillo could be back at noon, and
Trujillo replied that he could. Naas thereupon granted Trujillo permission to
leave.'
Trujillo did not return to work at all on October 9. He spent that entire day
at the Board's office where, in addition to conferring personally with the Board's
attorney concerning the case, he acted as interpreter for others involved in the
case, who like him were of Mexican origin.
Appearing for work on the morning of October 10, Trujillo was referred to
Naas who informed him at first that there was no work available for him. There
followed, however, some further conversation between the two. Naas repri-
manded Trujillo for not returning the previous day and again inquired where
Trujillo had been. Trujillo said he had been tied up all day on "personal
business" and volunteered to submit proof later to substantiate his statement.
From that, Naas, according to his testimony, assumed that Trujillo was having
domestic troubles, and at the conclusion of their conversation told Trujillo to
return to his job. This Trujillo did, and he thereafter continued to work without
further incident or absence through October 16.
The Ellis case was set for hearing before a Trial Examiner on Thursday, Octo-
ber 17. Following the close of the work day on October 16, Trujillo, after calling
with the Union representative at the Board office, received from the Board's
Regional Attorney a letter reading as follows :
DEAR Mr. TRUJiLLO: You are hereby directed to appear at a hearing being
conducted by the National Labor Relations Board on October 17th at 10: 00
A M. and you are instructed to make arrangements to remain at that hear-
ing until such time as your services may no longer be necessary. This may
include Friday and Saturday.
Yours sincerely,
ROBERT S. FOUSEK, Regional Attorney.
6 The findings made in this paragraph are based upon a synthesis of testimony of
Trujillo, Naas, and Foreman Sathre who were present at the time. Although Trujillo in
his testimony did not refer to the fact that he promised to return by noon, Naas' testimony
to that effect, which is corroborated by the testimony of Sathre, more closely aligns itself
with the events of the succeeding day, and is here accepted as true.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before the commencement of work on the morning of October 17, Trujillo
called at the plant , saw Naas, and asked if he could be off for a day or two because
he had some business to attend to. Protesting that he needed Trujillo badly,
Naas asked what business was keeping Trujillo from work. Trujillo thereupon
produced and exhibited to Naas the letter which he had received from Fousek
the previous evening, remarking at about the same time that this was the same
business that had kept him out on October 9 . In response to a question put to
him by Naas as to what he was doing, Trujillo said he was interpreting. Naas
inquired whethci Trujillo was being paid for his time , and Trujillo although
actually he was hot, replied that he was . So far as the credible evidence estab-
lishes, Naas did not tell Trujillo that he could not go. Nor did Naas warn
Trujillo that he would be subjected to disciplinary action if he did. On the con-
trary, Trujillo testified without contradiction , and it is found, that Naas told
him, before he left, to report back to work as soon as he got through, which
Trujillo promised to do.'
Shortly after Trujillo left the plant that morning , Naas reported what had
occurred to Assistant Plant Manager J. F. Ryan. Whereupon the latter promptly
repaired to the offices of the respondent 's attorney , Kenneth W . Robinson. The
purpose of his visit, according to Ryan, was to seek Robinson 's advice as to
whether Trujillo had a "legitimate reason" for absenting himself from work that
day. At that time, there was no thought in his mind , Ryan testified , to discharge
Trujillo, only to find out why Trujillo was absent . Ryan admitted that it was
an unusual procedure for the respondent to contact its attorney on a matter of
this kind . Robinson telephoned Howard Kleeb, the Board's examiner -in-charge
of its sub-regional office at Denver , and asked whether it was true that Trujillo
was working for the Board and getting paid for it . Speaking in turn first to
Robinson and then to Ryan, Kleeb advised each of them that while Trujillo was
not working for the Board , he was participating in the Ellis hearing which had
opened before a Board Trial Examiner that morning ; that Trujillo was person-
ally involved in that case ; and that it was necessary for him to be present at that
hearing as a Board witness.
The Ellis hearing was held on October 17 and 18. Trujillo was present through-
out the hearing, and on its second day testified as a Board witness. The plant
was not open on Saturday and Sunday , October 19 and 20 , and Trujillo did not
again report for work until Monday morning, October 21. Because of Trujillo's
absence, it was necessary for the plant foreman to fill in for Trujillo on the
morning of October 17 . That afternoon the respondent hired another employee,
Tony Morra, who was assigned to work which ordinarily would have been
performed by Trujillo!
4 The findings concerning Trujillo's request for time oft are based upon a reconciliation
of the testimony of Trujillo and Naas, to the extent that such testimony, considered against
the backdrop of the entire record, and on the basis of the undersigned's observation of these
witnesses, is deemed by the undersigned to be credible and reliable. The undersigned has
considered the full testimony of each of these witnesses, but has relied on neither entirely.
Such conflicts as exist between their respective versions relate in the main to details not
considered material herein. In the essential respects, as to which findings have been
made above, their testimony is supplementary rather than contradictory, and the findings
are supported by testimony, not specifically denied, of one or the other.
8 Another employee, Benny Rodriguez, was also hired on October 18, and left at the end
of the following week. Undisputed evidence shows, however, that he was employed to man
a machine which Trujillo was not capable of operating.
FULTON BAG & COTTON MILLS 947
C. Trujillo's lay-off on October 21, 1946, and succeeding events associated with
the final severance of his employment
Upon reporting for work on Monday morning, October 21, Trujillo was told
to see Naas who advised him that there was no work available for him at the
time. To Trujillo's inquiry as to whether he had been fired, Naas replied that
he had not, but had just been "temporarily laid off," and suggested that Trujillo
report back in a day or two to see if any work was available for him then. While
the two were engaged in conversation, Foreman Sathre came over, and, according
to Trujillo's testimony which the undersigned credits, stated that he was short
of help. Thereupon, Naas instructed Sathre to take two men from the turning
operation and place them on the line.9
Later that day, Kleeb, on whom Trujillo and the Union organizer had called to
complain about the lay-off, telephoned Ryan concerning; that matter. Ryan advised
Kleeb that the respondent had been compelled to hire two additional employees
because of Trujillo's absence ; that it did not feel that either or both of them
should be laid off in order to make room for Trujillo ; and that when work became
available which Trujillo could do, Trujillo would be employed. After Kleeb
questioned the legality of the respondent's refusal, Ryan referred Kleeb to the
Company's attorney. Robinson, whom Kleeb then called to inquire about Tru-
jillo's lay-off, asserted at first that the respondent considered Trujillo to be a
very inefficient employee. When, however, Kleeb pointed out that the question
of Kleeb's efficiency had not previously been raised, Robinson promised to check
more thoroughly into the matter and call Kleeb back later that day. Robinson
did not call, and on the following day, October 22, 1946, the Union formally filed
its original charge in this proceeding, alleging, inter alia, that Trujillo had been
discriminated against because he had given testimony under the Act. By letter
sent the same day, the respondent was notified of the filing of the charge.
On Tuesday, October 22, Tony Morra, who had been hired the preceding Thurs-
day to fill in for Trujillo, failed to appear for work, and did not at any time
thereafter return to work for the respondent.
Nevertheless, on Wednesday, October 23, when Trujillo reported for work he
was advised by Naas that there still was no work available for him. He was
told at that time to report again the following Monday. On Friday, October 25,
however, the respondent hired two new men, Dawson and Welch, both of whom
worked only that day and then quit. Sathre admitted on cross-examination, and
it is found, that Dawson and Welch were both used that day on work of an
unskilled character of the kind which Trujillo had performed in the past. Sathre
further testified, and it is found, that had Dawson and Welch not quit, they would
have been retained and absorbed in the plant.
During the week following his last mentioned visit, Trujillo called at the plant
and spoke to Naas on three occasions. On Friday, October 25, when Trujillo
called for his pay check, he had a brief conversation with Naas, in which Naas
° Trujillo's testimony in this respect was neither referred to nor denied by Naas. Sathre
admitted approaching Naas and stating that he was "short of help," but testified that he
had reference to female help and that nothing was said about transferring men to the line.
On direct examination, Sathre testified that no men ever worked on the line, but when
pressed upon cross-examination he conceded that while men were not engaged on the line in
sewing and clipping operations as such, men were assigned to the lines for the purpose of
passing work, a job which Trujillo had at times in the past performed. Sathre's partial
denial impressed the undersigned as evasive and is not credited
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked him what his intentions were, and Trujillo replied that he was waiting on
Naas. Reporting, in accordance with Naas' prior suggestion, on Monday, October
28, Trujillo was again advised that there was nothing for him At that time,
according to Trujillo's uncontradicted and credited testimony, Naas told him :
"My advice to you, man to man, is for you to get a job some place else. I know
you are man enough, a good enough of a man, to get a job some place where you
will make more than by working here." Naas suggested, however, that he report
back in a day or two and that he would then give him "the lowdown on whether
we can use you or not." When Trujillo returned the following day, a substan-
tially similar conversation occurred. Again he was told that there was no work
available for him, and again Naas suggested that he look for another job. Naas
at that time said he would send Trujillo a slip showing his total earnings But in
response to Trujillo's inquiry, Naas reiterated that Trujillo was not discharged;
that the respondent simply had nothing for him to do. 0
After this last visit, Trujillo set out to seek another job. He secured placement
with another concern, located adjacent to the respondent's plant, at an hourly
rate 5 cents higher than that paid him by the respondent. He was to begin work
there on the evening of October 31 On Wednesday and Thursday, October 30
and 31, however, before Trujillo began work for his new employer, an effort was
made by the respondent to locate Trujillo to tell him to return to work.30 But the
respondent did not succeed in contacting Trujillo until the evening of October 31.
To continue, in the words of Trujillo :
I first heard it that evening. A couple of fellows who worked there told me
that Mr. Naas was looking for me to go back to work. Later that evening I
met Mr. Ryan in a grocery store and he asked me if I had seen Mr. Naas. He
said Mr. Naas was looking for me and wanted for me to go back to work. I
said, "Well, I understood I wasn't supposed to go to work there any more and
I have already got a job and I am going to start this evening and I won't be
able to go back to work." He asked me to report in the morning and I told him
I wouldn't be able to report for work, that I would be working that night.
Trujillo did not report for work the next morning. About a week later, he re-
ceived a registered letter signed by Naas. In it, Naas adverted to the position
taken by Trujillo in his grocery store meeting with Ryan, stated that the respond-
ent now had work for him, and added that if he did not return within the next two
or three days, the job would be filled and he would officially be recorded as having
quit.11
Upon receipt of this letter, Trujillo notified Naas that he intended to report for
work. He did so on the morning of November 11.
The testimony of Trujillo and that of Naas is somewhat in conflict as to pre-
cisely what occurred that morning. For the most part, however, the variances
concern matters of detail and interpretative coloration rather than basic sub-
stance. The testimony of the witnesses, both on direct and cross, contain suffi-
cient points of agreement from which certain clear outlines emerge, and these
afford a basis for testing the reliability of such material details as are in dispute.
10 There is considerable confusion in the testimony concerning the dates when the respond-
ent attempted to locate Trujillo. The dates set out above are those referred to in a letter
subsequently written by the respondent and are here accepted as accurate . The record
does not reveal the precise date when Trujillo was hired by the other company. Nor is there
any evidence to show that the respondent when it sought Trujillo knew that he had already
secured another job.
11 Naas' testimony that he did not know at the time that a charge had been fi led is
regarded as implausible and is not credited.
FULTON BAG & COTTON MILLS 949
Upon consideration of the full testimony of both these witnesses, particularly
the undenied portions thereof, and without relying alone upon the versions of
either of them, the undersigned is persuaded and finds that substantially the fol-
lowing occurred :
Upon his arrival shortly before the commencement of the work day, Trujillo,
without first reporting to Naas, entered the plant and engaged some employees
in conversation. Naas instructed the foreman to send Trujillo to him. When
Trujillo approached Naas the latter berated him for entering the plant and talking
to the employees instead of waiting for 'Naas in the office vestibule as he had pre-
viously been directed to do. Himself becoming contentious at that point, Trujillo
asked, "Why don't you tell me to get out." "No," replied Naas, "do as I tell you.
Wait for me out there." Naas kept Trujillo waiting in the vestibule for 20 minutes
or more. When he rejoined Trujillo, Naas, as he himself testified, "laid it on
pretty hard." 11 He recalled that when Trujillo had first entered the respondent's
employ, Trujillo had pretended a subservient attitude, and stated that Trujillo
had been "sneaky." He charged that Trujillo's "intentions were not of securing
a job to make a living but for other things " He went on to accuse Trujillo of
talking too much in the plant, and to say that the foreman had complained that
Trujillo was a slacker whose previous work had been unsatisfactory. He added,
in that connection, that he expected Trujillo, if returned to work, to stick closely
to his job and to follow the plant rules. Taking offense particularly to Naas'
statement that his work had been unsatisfactory, Trujillo became angry, resentful,
and antagonistic. He told Naas that he (lid not care to make any promises just
to get his job back. Besides, he said, he did not care to work for anybody who
was dissatisfied, with his work. At that point, with Naas offering no resistance,
Trujillo left angrily.
Several days later, Trujillo received a registered letter from the respondent,
advising him that the respondent was filling the job it had for him and was notify-
ing the Colorado Department of Employment Security that Trujillo had "quit,
refusing work when available." Trujillo has since had no contact with the
respondent.
D. Analysis of the respondent's contentions
Concluding findings
The respondent's position with respect to Trujillo's lay-off and ultimate separa-
tion from employment, as set forth in its verified answer, is as follows :
... on or about October 17, 1946, as a result of a second violation of Com-
pany rules for absence without notice, permission or valid explanation,
it imposed a disciplinary layoff for said Felix Trujillo. That thereafter
at the expiration of the layoff, when respondent notified said Felix Trujillo
to return to work he declined to do so and advised respondent that he had
obtained other permanent employment at a greater compensation. Subse-
quent thereto, respondent again offered employment to said Trujillo which
he declined. Thereafter respondent ceased to regard said Felix Trujillo as
an employee and so advised the Colorado Unemployment Compensation
Commission . . . Respondent further shows that the layoff and subse-
quent termination of employment of said Felix Trujillo was for violation
17 Trujillo testified, and Naas denied , that he was called a "dumb -headed fool." But
Naas admitted that he referred to Trujillo as "sneaky ." He also admitted on cross-
examination that he became annoyed when he saw Trujillo talking to the other
employees.
809095-49-vol 79-61
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its rules after proper warning and in accordance with its regular policy.
That Trujillo had been specifically advised as to the rules and had declined
to give any reason for his absence on both the first and second occasions and
subsequently declined reemploynient by respondent.
Although not unrelated, the subject matter of this case, logically and con-
veniently, most readily lends itself to treatment in two parts • Was Trujillo's
lay-off for cause, as contended by the respondent, or was it, as contended by
Board's counsel, discriminatory within the meaning of Section S (3) or Section
8 (4), or both? Did Trujillo, following his lay-off, voluntarily refuse to accept
reemployment offered him in good faith by the respondent, or was his refusal
induced, and hence justified, by discriminatory action on the respondent's part?
These two questions will be separately considered below in the order indicated.
I
As noted, the respondent's answer pleads that Trujillo was laid off as a dis-
ciplinary measure for violation of "Company rules concerning absences without
notice, permission or valid explanation " But this was not the reason assigned
to Trujillo at the time of his lay-off Trujillo at that time was merely told that
no work was available for him; and a similar reason was assigned to Kleeb by
Ryan, although not by Robinson, who, speaking to Kleeb the same day, indicated
that Trujillo's lay-off was attributable to inefficiency '3 The allegation in the
answer, that Trujillo's lay-off was disciplinary in character, in itself contradicts
and serves effectively to negate any contention that Trujillo's lay-off was due to a
want of available work for which he was suited. Moreover, the record as a whole
persuasively refutes any such contention Thus, it appears that Trujillo, who had
never been laid off before, was laid off during the busiest season of the year,
at a time when the manpower situation generally was "rotten" and when the
foreman was complaining to the superintendent that he was short of help. True,
Trujillo's job had been filled by a replacement on the first day of his absence-
this, indeed, was the reason which Ryan gave Kleeb, but not Trujillo, for not
putting Trujillo back to work upon his return. But the fact remains that the
replacement quit on the first day of Trujillo's enforced lay-off; yet respondent
extended Trujillo's lay-off for more than a week thereafter, and continued to
advance the same reason. Still more significant, however, is the fact that during
the period when Trujillo was being told that the respondent had no work for
him, the respondent hired two men who performed work of the kind performed
by Trujillo in the past. Because of these circumstances, the undersigned, unable
to credit testimony of Naas and Sathre to the contrary, finds that Trujillo's
lay-off was not in fact attributable to the. unavailability of suitable work.
At various points during the presentation of its case, the respondent sug-
gested other reasons, likewise inconsistent with its pleaded defense, as having
some bearing (although precisely what was left obscure) upon Trujillo's lay-off
and eventual separation from employment Thus, it was asserted that Trujillo
was an inefficient employee and that he had deliberately attempted to slow down
13'Although Naas at one point of his testimony stated generally, without fixing time or
place or furnishing details of his alleged conversation , that he made known to Trujillo that
his lay-off was disciplinary, his testimony in that respect is not credited. Naas' con-
clusionary statement to that effect is not only at variance with Trujillo's undenied testi-
mony as to specific conversations with Naas ; It is also out of harmony with other testimony
of Naas as to the reason for Trujillo's lay-off, let alone the statement of his superior, Ryan,
to Kleeb the same day.
FULTON BAG & COTTON MILLS 951
plant operations." The charge of inefficiency was supported only to the extent
indicated above. The charge that Trujillo deliberately attempted to slow down
operations, denied by Trujillo, was left completely unproved 16 It is clear in any
event from the record as a whole that these added reasons were not contributing,
much less proximate causes, for the lay-off.18 They were obviously asserted as
afterthoughts to indicate why Trujillo might have been laid off, not why he was.
That they were asserted at all only serves to cast a dubious shadow upon the
bona tides of the respondent's pleaded defense, the merits of which will now be
considered.
With regard to absences and notice thereof, the respondent had no fixed,
definite, or published rule in the strict sense, although it was commonly under-
stood that an employee desiring voluntarily to lay off was expected, whenever
possible, to clear with management in advance. For failure to do so, there had
been occasions in the past where employees had been disciplined, but here, too,
the respondent's policy was fluid and flexible both in its interpretation and in
its application. As Foreman Sathre testified :
. . . the rule was never really definite. If a party laid out, maybe laid
out for some good reason, and couldn't call in or let us know he had to be
out, he was just advised the next day, "If by all means you can, let us know
that you are going to be out, so we can make other arrangements." If by
any chance he couldn't let us know and had a real definite reason, there
was nothing done about it.
Each case depended upon its own circumstances. In determining whether an
employee should be disciplined for laying out without permission, numerous
factors were taken into account-the employee's past record of absenteeism,
the volume of work, whether the absence was merely arbitrary or for a nec-
essary reason, among others. Usually employees were first warned before
being disciplined ; but just how many times a man would be warned before
being laid off also depended upon the particular circumstances of each case.
It is true, as the respondent argues, that the question as to proper plant
discipline is a matter for decision of management in its discretion, not for
the Board. What standards are set for employee conduct, and how those stand-
ards are enforced, whether justly or unjustly, are not for the Board to say-
that is provided they do not involve discrimination within the meaning of
the Act. But where, as here, such discrimination is charged, the manner in
which the respondent has applied its own standards necessarily sheds light on
the basic issue of the case, and becomes a relevant point of inquiry.
is"I contend this [the respondent ' s attorney stated at one point ], that the witness
[Trujillo ] was thoroughly inefficient in his work in the baling room. I contend that we
finally found out what was happening to us, that he was merely a plant in there for the
purpose of trying to get something on us, for the purpose of prostituting the functions of
this Board , realizing , when we did finally, what was really happening , that this man had
been a good workman before with the C . F. and I. [a prior employer ] for years , and that
he had been a good workman at the Ellis Canning Company until he joined this so-called
Union over here, and then , when we found that he was filing charges and slowing down
the work and trying to destroy the economy of our plant , we realized exactly what was
happening."
15 No affirmative testimony was adduced by the respondent on that point. And Naas, who
testified that Trujillo was slow in the baling operation , conceded in substance that this was
not due to any wilful action on Trujillo ' s part.
10 Indeed , the respondent 's attorney at another point of the record expressly disclaimed
that Trujillo was laid off because he was inefficient.
052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under the respondent's own policy, mere absence without notice, especially
if for a valid reason, did not necessarily result in the invocation of a disciplinary
penalty. Trujillo's attendance record in the past had been, on the whole, a
good one. Contrary to the assertion in the respondent's answer, Trujillo did
give notice of his proposed absence, albeit short notice. And while Naas did
protest that he needed Trujillo, he did not, after the letter from the Board
attorney was exhibited to him, tell Trujillo that he could not leave. Nor did
he warn Trujillo that if he did leave he would lay himself open to disciplinary
action. On the contrary, there was implicit in Naas' request of Trujillo to
report back to work as soon as he got through, permission to leave and the
assurance that he would not be subjected to disciplinary action for doing so.17
In any event, it is clear that Trujillo's conduct in taking leave on short
notice on this occasion was not, standing alone and without more, the deciding
factor in the respondent's decision to lay him off. Ryan virtually conceded
as much by testifying that when he later called on the respondent's attorney,
he had no thought in mind of disciplining Trujillo, but that he did so only to
find out why Trujillo was absent and whether that reason was a "legitimate"
one. Thus, according to the respondent's own version, it was not until after
the respondent learned from Kleeb that Trujillo was a necessary witness in a
Board proceeding in which he was personally involved, that it first decided to,
and thereafter did, lay off Trujillo.
In short, then, it appears, on the basis of the respondent's own version, that the
respondent, although it might have considered some other reason excusable, did
not regard the necessity of giving testimony under the Act as a "legitimate" one.
Absent a governing statute, it would, of course, have been for the respondent
alone to determine whether this was, or was not, a proper excuse for absence.
But here there is such a statute. Section 8 (4) of the Act expressly makes it
illegal for an employer "to discharge or otherwise discriminate against an,
employee because he has filed charges or given testimony under the Act." A clear
objective of that section is to protect the Board's administrative process by remov-
ing, in the interest of securing full and adequate hearings, the impediment of
employee fear of reprisal from the Board's access to evidence which it requires
to make the requisite determinations which Congress has entrusted to it. That
objective would readily be thwarted if an employer were permitted, in the first
instance, to impose restraints upon an employee's right and ability to testify.
It is mere sophistry to declare, as the respondent suggests, that although an
employee may not be punished because he gave testimony, it is not violative,
of Section 8 (4) to punish him because he absented himself for the purpose of
giving testimony. The invasion of the employee's right and the impairment of
the administrative process is in the one case no less than in the other 38 Nor is
it controlling that the respondent had no interest in the proceeding in which
Trujillo was called to testify, or that no formal Board subpena was served upon,
IT Trujillo's regrettable lack of candor in misrepresenting to Naas his connection with,
the Board hearing has not been overlooked in the undersigned's appraisal of the situation.
Although Trujillo's conduct in that respect is not to be condoned, the undersigned is
convinced that it was not this circumstance which led the respondent to lay off Trujillo. It
was not the reason given to Trujillo or to Bleeb at the time of the lay-off, and it is not the
reason now pleaded in the respondent' s answer.
- Is That is not necessarily to say that an employer is required to reinstate the absent
employee if there is no work available for him upon his return, or to discharge a replace-
ment secured during and as a result of his absence. That situation is not involved in the
instant case where the record establishes that work was available for Trujillo during the
period of his lay-off, and that his replacement quit on the first day of his lay-off.
FULTON BAG & COTTON MILLS 953
Trujillo. Section 8 (4) is not so limited as to require that the testimony be given
in a proceeding in which the employer is directly involved. And employees are
not deprived of their right to give testimony under the Act, and to be protected
against disciplinary action therefor, by virtue of the fact that they choose to
testify willingly, rather than under the compulsion of a Board subpena.'B
Nor is a showing of discriminatory motive wanting in the instant case. The
shifting, contradictory, and implausible reasons advanced by the respondent fail
adequately to explain Trujillo's lay-off upon a non-discriminatory basis. Clearly
no rational basis appears for the respondent stating a false reason at the time
of the lay-off, or for its reticence at that time in disclosing the inconsistent reason
upon which it now relies, if in fact the respondent was motivated by a lawful
reason, or by no reason at all. The key to the respondent's motive must be sought
elsewhere. It can only be found, the undersigned is persuaded, in the antipathy
which the respondent harbored against Trujillo because of his leading role as
union organizer in the plant, and because he had previously filed charges against
the respondent. Naas' testimony reflects that the respondent looked upon
Trujillo as a "troublemaker" for filing charges. Moreover, it is evident from
Naas' diatribe against Trujillo on November 11, when Naas charged, among other
things, that Trujillo's "intentions were not of securing a job to make a living
but for other reasons," that the respondent believed (and resented) that Trujillo
was a Union "plant" in its shop, placed there solely to carry out the Union's
organizational objectives.20 The respondent's decision to lay off Trujillo, fol-
lowing as it did its discovery that his absence was due to his involvement in a
Board proceeding, is reasonably susceptible of explanation only on the basis that
this discovery accentuated the respondent's feeling that Trujillo was a Union
"plant" and "troublemaker," and led it to give vent to its resentment against
him for that reason.
Upon the entire record, the undersigned is persuaded, and he finds: (1) that
Trujillo was not laid off for the reasons assigned by the respondent; (2) that the
respondent laid off Trujillo from October 21 to October 31, 1947, because, having
absented himself for that purpose, he gave testimony under the Act; (3) that
contributing factors influencing the respondent's action in that respect were
Trujillo's union activities in the plant and the fact that he had filed charges
against the respondent in Board Case No. 17-C-1463; and (4) that by such
conduct the respondent engaged in discrimination against Trujillo within the
meaning of Section 8 (3) and (4) of the Act, thereby also interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
II
There are present in this record circumstances suggesting that the respondent's
lay-off of Trujillo was part of a broader plan, discriminatorily designed to induce
Trujillo to quit his employment. Among other circumstances consistent with
that hypothesis are : the false reason given Trujillo for-his lay-off ; the state-
ments made to him by Naas during the period of his lay-off, expressing un-
certainty as to whether the respondent would again be able to use him and
suggesting that he attempt to get a better job elsewhere; and the tongue lashing
meted out to him by Naas when he reported back for work following the receipt
19 See Matter of Reliance Manufacturing Company, 60 N. L R. B. 946.
20 That the respondent considered Trujillo a Union "plant ," and therefore an undesirable
employee , is also reflected in the statement of respondent 's counsel quoted in footnote 14,
above.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the registered letter, a letter obviously sent for the purpose of "making a
record." Yet, the fact remains that the respondent did, on October 31, 1946,
invite Trujillo to return to work, and that Trujillo declined because he had
secured another job. Whether this offer was made because the respondent,
with knowledge that a charge had been filed, desired to limit its liability, or
because of pressing labor requirements, or for some other reason, is unimportant.
And it is idle to speculate whether the respondent may have previously learned
of Trujillo's new employment at a higher wage rate and have offered him the
job with the expectation that he would decline. There is no such proof in the
record; nor is there other substantial evidence from which an inference may
fairly be drawn that the offer was made in bad faith. Trujillo's declination
of the offer clearly constituted a voluntary seveumce of employment and a
refusal to accept reinstatement.
True, the respondent, if only for the purpose of placing itself on record, chose
tp disregard Trujillo's declination of the October 31 offer, by sending him the
registered letter the following week. The verbal attack Naas unleashed at
Trujillo when he reported for work in response to that letter, and the respondent's
.antipathy to Trujillo's union activities, reflected by Naas' remarks at that time,
are consistent with a hypothesis that the respondent was acting with dis-
criminatory purpose at the time. But that alone is not enough. The record
facts are not necessarily inconsistent with the respondent's position, that Naas
was merely "laying it on" to impress upon Trujillo that he would be expected to
stick to his job and follow orders, and that the respondent would have re-
employed Trujillo had he not walked out in a huff because his past work
performance had been criticized. "When the evidence is consistent with either
of two inconsistent hypotheses it establishes neither." Ri Naas' remarks to
Trujillo cannot reasonably be interpreted as imposing illegal conditions upon
Trujillo's return to work. Clearly, an employer has a right to demand of a
new or an old employee that he adhere to his job and obey the rules. And,
while Naas' remarks may fairly be viewed as implying that Trujillo would be
expected to curb his union talk, it cannot be said, on the state of this record,
,that the restriction was intended to extend beyond working time. Nor is the
undersigned otherwise fully convinced that Trujillo-who had previously secured
another job at a higher rate, had already once declined reinstatement, and had
himself displayed a somewhat hostile and contentious attitude in his interview
with Naas-refused on this occasion to accept employment solely because of a
justifiable belief that he would be subjected to unbearable and discriminatory
treatment if be accepted the job. For the foregoing reasons, the undersigned
is not persuaded that the Board has maintained its burden of proof on this
aspect of the case.
It is found that Trujillo voluntarily refused to accept reinstatement offered
him by the respondent on October 31, 1946, and that the respondent did not
at any' time thereafter discriminate against him with respect to his hire or
tenure of employment.
IV. THE 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
21 N. L . R. B v Standard Oil Co., 124 F . (2d) 895, 903 (C. C. A. 10).
FULTON BAG & COTTON MILLS 955
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
v. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take the
following affirmative action which it is found will effectuate the policies of the
Act.
Since it has been found that the respondent discriminated in regard to the
hire and tenure of employment of Felix Trujillo by laying him off from October
21,19 ' 46, to October 31, 1946, the undersigned will recommend that the respondent
make him whole for any loss of pay he may have suffered by reason of the
respondent's discrimination against him, by paying him a sum of money equal
to the amount he normally would have earned as wages during the period of
discrimination as hereinabove found,22 less his net earnings during such period.
. Except for the single incident upon which the finding of unfair labor prac-
tices has been based, the record does not disclose that the respondent had
engaged in any other conduct proscribed by the Act. For that reason, and because
the respondent offered Felix Trujillo reinstatement, the undersigned is not per-
suaded from the record of this case that a danger has been shown that the
respondent in the future may commit other unfair labor practices proscribed
by the Act which are not directly related in kind to the unfair labor practices
which it has been found to have committed in the past. Under the circumstances,
it will not be recommended that the Board issue the usual broad cease and
desist order used where the commission of such unfair labor practices is rea-
sonably apprehended. It will be recommended, however, that the respondent
be ordered to cease and desist from engaging in conduct of the specific kind
found unlawful herein.
Upon the basis of the above findings of fact and upon the entire record of
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Warehousing, Processing and Distributing Union, No. 217, affiliated with
the International Longshoremen's and Warehousemen's Union and the Congress
of Industrial Organizations, is a labor organization within the meaning of
Sectjon 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Felix
Trujillo, and thereby discouraging membership in Warehousing, Processing
and Distributing Union, No. 217, affiliated with the I. L. W. U., C. I. 0., the
respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the Act.
. 3. By discriminating against Felix Trujillo because he filed charges and
gave testimony under the Act, the respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (4) of the Act.
4. By said acts, the respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has thereby engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act.
22 Matter of Crossett Lumber Co., 8 N. L. R. B. 440, 497-498.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law
and upon the entire record in the case, the undersigned recommends that Fulton
Bag & Cotton Mills, Denver, Colorado, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in a labor organization of its employees, by
discriminating in regard to the hire and tenure of its employees, or any term
or condition of their employment ; -
(b) Discriminating against any employee because be or she has filed charges
or given testimony under the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Make whole Felix Trujillo for any loss of pay he may have suffered
by reason of the respondent's discrimination against him from October 21,
1946, to October 31, 1946, by payment to him of a sum of money equal to the
amount he normally would have earned as wages during said period, less his
net earnings 23 during said time ;
(b) Post immediately at its plant in Denver, Colorado, copies of the notice
attached hereto marked "Appendix A." Copies of said notice, to be fur-
nished by the Regional Director for the Seventeenth Region, shall, after being
duly signed by the respondent's representative, be posted by the respondent
immediately upon the receipt thereof and maintained by it for sixty (60) con-
secutive days in conspicuous places, including all places where notices to em-
ployees customarily are posted. Reasonable steps shall be taken by the re-
spondent to see that the notices are not altered, defaced, or covered by other
material;
(c) Notify the Regional Director for the Seventeenth Region in writing within
ten (10) days from the date of receipt of this Intermediate Report what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies the said Regional
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, Series 5, effective August 22, 1947, 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, Rochambeau Building, 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.
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 Sec-
28 See footnote 22, supra.
FULTON BAG & COTTON MILLS 957
tion 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 and exceptions thereto shall be deemed
waived for all purposes.
ARTHUR LEFF,
Trial Examiner.
Dated September 11, 1947.
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, we hereby notify our employees that :
WE WILL NOT discriminate in regard to the 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 labor organization.
WE WILL NOT discriminate against any employee because he or she has
filed charges or given testimony under the National Labor Relations Act.
WE WILL make Felix Trujillo whole for any loss of pay suffered by him
as a result of the discrimination.
All our employees are free to become or remain members of any labor organi-
zation.
FULTON BAG & COTTON MILLS,
Employer.
By ---------------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.