J. G. Boswell Co.

National Labor Relations Board - Board Decisions

Sep 29, 1941

35 N.L.R.B. 968 (N.L.R.B. 1941)

In the Matter of J. G. BOSWELL COMPANY, A CORPORATION, ASSOCIATED
FARMERS OF KINGS COUNTY, INC., A CORPORATION, AND CORCORAN
TELEPHONE ETCHANGE, A CORPORATION, and COTTON PRODUCTS AND
GRAIN MILL WORKERS UNION, LOCAL No. 21798, A. F. OF L.
Case No. _ 0,1476.-Decided September 29, 1941
Jurisdiction : cotton processing and telephone industries.
Unfair Labor Practices
In General: employer held responsible for: activities of its "farm advisor,"
"agronomist," "cashier and head bookkeeper," and "storekeeper" in the
formation and administration of a labor organization who although not
strictly supervisory hold positions of such a nature as to identify them
with,the management; anti-union activities of individuals who. although not
having authority, to hire and discharge direct the work of the rank and
file employees in the plant.
Interference, Restraint, and Coercion: anti-union statements; disparaging the
union.
Company-Dominated Union: sponsorship of, and participation in administra-
tion of, by management representatives-support : by employer's acquiesence
and aid in formation of, in light of its openly manifested hostility toward)
the outside organization; payment to organizers of, for time spent away
from plant ; permitting use of office building for organizational meeting.
Discrimination: evictions of union members from mill by force and threats of
violence which company representatives initiated, conducted, and coun-
tenanced ; refusal to reinstate evicted employees-discharges : one employee
absent on account of illness whose notification by registered letter that his
employment was terminated, is held to have placed him in the category of
evicted employees who received similar notices and to have been intended
by the employer to deter him from seeking reinstatement upon recovering
from his injury; another employee who was discriminatorily discharged by
employer's acceding to the desires of a group of local citizens who sought
her discharge because of lier alleged union sympathies and activities-
charges of, dismissed as to several individuals.
Filing Charges under Act: charges of discrimination for, dismissed.
Remedial Orders: disestablishment of dominated organization ordered; rein-
statement and back pay awarded ; employer directed in a cautionary order
to place several individuals as to whom the Board dismissed allegations
of discrimination, upon a preferential reemployment list ; employer ordered
to afford employees at all times reasonable protection in its plant from
physical assault; disability of one employee held not to deprive him of his
right to reinstatement ; workmen's compensation received by said employee
held not to be regarded as "earnings" deductible from the sum payable to
him. '
Practice and Procedure : complaint dismissed as to one of the respondents who
is found not to have engaged in alleged unfair labor practices.
35 N. L. R. B., No. 189.
968
J. G. BOSWELL COMPANY ET AL. 969
- Mr. Frank A. Mouritsen, Mr. William R. Walsh, and Mr. Francis
J. McTernan, Jr., for the Board.
Ropers & Clark, by Mr. Webster V. Clark and Mr.'Jbhn-Painter,
of San Francisco, Calif., for the Associated Farmers.
Sidney J. W. Sharp and M. Wingrove, by Mr. M. Wingrove, of
Hanford, Calif., for the Boswell Company and the Exchange.
Mr. E. F. Prior, of Wilmington, Calif., for the Federal.
Elizabeth W. Weston, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Updh charges and amended "charges duly filed, by Cotton-Products
and Grain Mill Workers Union Local No. 21798, A. F. L., herein
called the Federal,' the National Labor Relations Board, herein
called the Board, by'the Acting Regional Director for the Twenty-
first Region (Los Angeles, California), issued and duly served its
complaint dated March 4, 1939, against J. G. - Boswell Company,
Corcoran, California, herein called the Boswell Company, or the
Company and Associated Farmers of Kings County, Inc., Corcoran,
California, herein called the Associated Farmers. On May 6,
1939, the Board, by the Regional Director for the Twenty-first
Region, issued its amended complaint against the Boswell Company,
the Associated Farmers, and Corcoran Telephone Exchange,
Corcoran, California, herein called the Exchange, alleging that the
Boswell Company, Associated Farmers, and the Exchange, herein
collectively called the respondents, had engaged in and were engaging
in 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, and that
in addition, the Boswell Company had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (2) and
Section 2 (6) and (7) of the Act. Copies of the amended complaint
and accompanying notices of hearing and of the fourth amended
charge were duly served upon the respondents, the Federal, and
J. G. Boswell Company Employees' Association of Corcoran and
i The original charge was filed , on November 23, 1938, by California State,Council of Soap
and Edible Oil Workers , A. F of L., with the Regional Director for the Twentieth Region
(San Francisco, California ). On December 22, 1938, acting pursuant to Article II, Sec-
tion 37 ( c), of National Labor Relations Board Rules and Regulations-Series 1, as
amended, the Board ordered the case transferred to and continued in the Twenty-first
Region. On January 17, February 6, March 4, and May 4, 1939, respectively , amended
charges were filed by the Federal.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tipton, California, herein called the Association, a labor organiza-
tion alleged in the complaint to be dominated and interfered with by
the Boswell Company.
With respect to the unfair labor practices, the amended complaint
alleges in substance as follows :
A. That the Boswell Company (1) discouraged membership in the
Federal by discriminating with respect to the hire and tenure of
employment of 14 of its employees 2 because the said employees joined
and assisted the Federal and engaged in concerted activities with
other employees of the Company for the purposes of mutual aid and
protection; (2) formed, dominated, and interfered with the adminis-
tration of the Association; and (3) by the foregoing and other acts,
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act;
B. That the Associated Farmers and the Boswell Company (1)
on January 30, 1939, by force and violence and ' threats thereof
drove Federal pickets from the vicinity of the Boswell Company
plant; (2) on or about January 20, 1939, and thereafter, circulated
among employers in Kings County, California, blacklists contain-
ing the names of Federal members employed by the Boswell Com-
pany; and (3) by'the aforesaid acts the said respondents and each
of them interfered with, restrained, and coerced employees of the
Boswell Company in the exercise of the rights guaranteed in Section 7
of the Act;
C: That the Boswell Company, the Associated Farmers, and the
Exchange (1) on or about March 2, 1939, discouraged membership
in the Federal by discharging and causing the discharge of Mar-
garet A. Dunn from her employment with the Exchange because
she was suspected of having assisted the Federal in' its activities ;
(2) on or about March 14, 1939, refused to reinstate or permit the
reinstatement of Dunn to her position of employment with the
Exchange because she filed charges of unfair labor practices with
the Board; (3) threatened Dunn with the loss of employment of
various members of her' family if she did not withdraw the afore-
said charges; and (4) by the aforesaid acts, said respondents and
each of them interfered with, restrained, and coerced employees in
the exercise of the rights guaranteed in Section 7 of the Act;
D. That, in the alternative, the aforesaid acts with respect to
Dunn were committed by the Exchange and the Associated Farmers,
acting in the interest of the Boswell Company.
As to the Associated Farmers, the amended complaint alleges
that at all times said respondent has actively opposed and pre-
2 W. R. Johnston , Stephen J. Griffin, Elmer Eller, Eugene Clark Ely, Boyd Ely, Walter
Winslow, Elgin Ely, George J. Andrade , Joe Briley , O. L Farr, R. K . Martin, E. C. Powell,
L. A. Spear, H. N. Wingo
J. G. BOSWELL COMPANY ET AL. 971
vented the exercise by employees of the rights guaranteed in Sec-
tion 7 of the Act, that at all times mentioned in the amended com-
plaint said respondent acted directly and indirectly in the interest
of the Boswell Company, and that said respondent, the Associated
Farmers, is an employer within the meaning of Section 2 (2) of
the Act.
Each respondent filed its answer to the amended complaint ad-
mitting certain allegations as to its corporate existence but deny-
ing that it had engaged in or was engaging in the alleged unfair
labor practices. Each respondent also filed with the Regional
Director a written motion to dismiss the complaint upon the ground
that no act of said respondent or to which said respondent was a
party was in commerce or affected or burdened commerce, and that
the Board has no jurisdiction over said respondent.
Pursuant to notice, a hearing was held at Corcoran, California,
from May 18 to June 16, 1939, before John T. Lindsay, the Trial
Examiner duly designated by the Board. The Board and the re-
spondents were represented by counsel, the Federal by its business
representative; all participated in the hearing.3 Full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues was afforded all parties.
At the opening of the hearing, the Trial Examiner denied the
respondents' aforesaid written motions to dismiss the complaint.
During the hearing, the respondents, by sundry motions and ob-
jections to the admission of evidence, sought dismissal of the
amended complaint in so far as it contains allegations relating to
Margaret A. Dunn, on the ground that the Board did not have be-
fore it, and did not serve upon the respondents, a proper charge
alleging that the respondents had engaged in unfair labor practices
with respect to Dunn.4 The Trial Examiner denied these motions
and overruled the respondents' objections to the admission of evi-
dence bearing on the issues with 'respect to Dunn. The Board's
attorney moved at the hearing to amend the amended complaint by
adding thereto an allegation that the respondent Boswell Company
discouraged membership in the Federal by discriminatorily dis-
charging James E. Gilmore for union activities on or about March
20, 1938, and by refusing to reinstate him on or about July 1, 1938.
8 The Association did not seek to intervene in the proceedings . Samuel Brenes , treasurer
of the Association , called as a witness for the Board on•June 6, 1939 , stated that he did
not desire counsel.
4 The respondents ' counsel argued that the allegations in the fourth amended charge
respecting the discharge of Dunn and the subsequent efforts exerted to induce her to with-
draw charges filed by her with the Board were a nullity , inasmuch as Dunn was not a
member of the Federal , and there was no evidence that she had authorized the Federal
to file a charge in her behalf . These contentions are without merit. Cf. Matter of
Washougal Woolen Mills and Local 127, Textile Workers Union of America , 23 N L. R B. 1.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner granted this motion, granting to the' respond-
ents five (5) days in which to meet the additional allegation. Dur-
ing said five (5) day period the Trial Examiner refused to receive
evidence respecting the discharge of, Gilmore. Thereafter the re-
spondents separately filed their amended answers, denying the alleged
discrimination. These rulings by the Trial Examiner are hereby
affirmed.
At the opening of the Board's case against the Exchange, the
Associated Farmers moved to exclude all evidence adduced in sup-
port of the complaint respecting the Exchange and the Associated
Farmers on the ground that the complaint .fails to allege that the
Associated Farmers acted as an "employer," in the interest of the
Exchange, within the meaning of Section 2 (2) of the Act. The
Trial Examiner received the evidence but did not rule specifically
on the Associated Farmers' motion. The motion is hereby denied.
At the close of the Board's case the Associated Farmers, and the
Exchange separately moved that the complaint against them be dis-
missed for lack of jurisdiction and because of insufficient evidence to
support it. The Trial Examiner denied these motions. His ruling
is hereby affirmed. At the close of the hearing, the Exchange moved
to strike all testimony introduced by the Board in support of the
allegations of the complaint against said respondent, upon the grounds
that the Board has no jurisdiction over said respondent and upon
the further ground that Margaret A. Dunn, since she is not a mem-
ber of any labor organization and has not assisted or attempted to
assist any labor organization, is not entitled to the protection afforded
to employees by Sections 7 and 8 of the Act. The Trial Examiner
reserved ruling on this motion and thereafter denied it in his Inter-
mediate Report. This ruling is hereby affirmed.
During the course of the hearing the Trial Examiner made numer-
ous rulings upon other motions and upon objections to the admission
of evidence, granting, among dthers, a motion by counsel for the
Board to conform the complaint, as amended, to the proof with
respect to dates and the spelling of names. The Board has reviewed
the rulings of the Trial-Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On January 11, 1940, the Trial Examiner issued his Intermediate
Report in which he found that the Boswell Company had engaged
in unfair labor practices affecting commerce within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act;
that the Associated Farmers had engaged, in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and Section
2 (6) and (7) of the Act; and that the Exchange had engaged in
unfair labor practices affecting commerce within the meaning of
Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the Act.
J. G. ' BOSWELL COMPANY ET AL. 973
The Trial Examiner recommended that the respondents cease and
desist from the unfair labor practices engaged in by them and take
certain affirmative action in order to effectuate the policies of the
Act. The Trial Examiner recommended that the complaint be dis-
anissed in so far as it alleges that the Boswell Company discriminated
with respect to the hire and tenure of employment of Elmer Eller
and Joe Briley, and that the Associated Farmers blacklisted Federal
members. No exceptions were filed to these recommendations. Ex-
,cept as to Briley, Whose case is discussed in Section III, A, 2, infra,
no evidence was introduced in support of these allegations, and they
are dismissed herein. The allegation that the Boswell Company
blacklisted members of the Federal is' also dismissed herein for the
same reason. The Trial Examiner further recommended that the
complaint be dismissed in so far as it alleges that the Boswell Com-
pany and the Associated Farmers engaged in unfair labor practices
within the meaning of Section 8 (4) of the Act; and he did not
find that either the Associated Farmers or the Boswell Company
caused the discriminatory discharge of Margaret A. Dunn from her
position of employment with the Exchange.
On March 15, 1940, the respondents filed exceptions to the Inter-
mediate Report. Pursuant to leave granted to all parties, the re-
spondents filed a brief on March 20, 1940. No oral argument was
.requested.
The Board has considered the respondents' exceptions and brief
and, save as the exceptions are consistent with the findings, conclu-
sions, 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
I. THE BUSINESS OF THE RESPONDENTS
A. The Boswell Company 5
The J. G. Boswell Company is a California corporation having its
principal office in Los Angeles, California. It is authorized to do
business in the State of Arizona as well as in the State of California,
Certain of the facts herein stated with respect to the Boswell Company's business are
derived from a stipulation between counsel for the Board and counsel for the Boswell
Company. At the hearing counsel for the Associated Farmers objected to the introduction
of the stipulation in evidence , on the ground that the stipulation is not binding upon the
Associated Farmers and that it is "not probative of any of the matters set forth in the
stipulation , and is hearsay ." We find no merit in this objection . The stipulation consti-
tutes an admission by the Boswell Company that it ships certain percentages of its products
and raw materials across State lines. This is evidence competent to prove the facts in
issue as against the Associated Farmers as well as against the Boswell Company The
Associated Farmers had opportunity at the hearing , if it so desired , to challenge the
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is engaged, in those States, in the business of growing and
financing the growing of cotton, ginning and baling cotton, extracting
cottonseed oil, selling and distributing cotton, cottonseed oil, and
cottonseed cake and meal, and purchasing, feeding, and selling cattle.
The Company owns and operates seven cotton gins, a cottonseed oil
mill, and a cattle feed yard in the State of California and 10 gins and
a cottonseed oil mill in the State of Arizona.
The Boswell Company's cotton ginning and oil milling operations
at Corcoran, California, are its only operations directly involved in
this proceeding. At its Corcoran plant the Company owns and oper-
ates six cotton gins, an oil mill, and a cattle feed yard. Between
July 1, 1937, and June 30, 1938, the Company ginned and baled at
its Corcoran plant 47,111 bales of cotton, of which 40,138 bales were
owned by it and 6,973 bales were owned by others. All the 40,138
bales owned and processed by the Boswell Company were shipped
by it out of the State of California. During the same period the
Company ginned and baled 5,096 bales of linters, of which at least
862 bales were shipped out of the State of California. During the
same period, the Boswell Company produced 10,000 tons of cotton-
seed cake of which approximately 60 tons were shipped to points
outside the State of California, the balance being sold or consumed
within the State.
All the cotton and cottonseed processed by the Boswell Company
in the above-described operations were purchased or grown by it in
the State of California. In baling the cotton, the Boswell Company
used 52,206 "patterns" consisting of jute from India and steel bands
from the State of Alabama.
B. The Associated Farmers
The Associated Farmers of Kings County, Inc., a non-profit cor-
poration organized under the laws of California, is joined as a re-
spondent in these proceedings upon the theory, stated in the complaint,
that, acting in the interest of the Boswell Company within the
meaning of Section 2 (2) of the Act 6 it interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed in
Section 7 of the Act. The evidence adduced in support of this
contention will be discussed in Section III, B,'infra.
truth of the facts stated in the stipulation . It did not even suggest that it could or
would deny these facts . At the hearing , its counsel stated that he was objecting to the
introduction of the stipulation "for what it is worth for that purpose on the record,
that any matters agreed to between Boswell and the Board with respect to its busi-
ness * * * Isn't evidence against us because we don't know anything about it to be
frank about what Boswell's business is." [Italics added ]
6 Section 2 ( 2) of the Act provides : "The term 'employer' includes any person acting
in the interest of an employer , directly or indirectly, * * *."
J. G. BOSWELL COMPANY ET AL. 975
The Associated Farmers was incorporated on October 18, 1938,
for the stated purposes of protecting American institutions and
fighting the "infiltration of subversive doctrines" which imperil con-
-titutional liberties. Its organizers and incorporators are farmers
and businessmen of Kings County, California. The Associated
Farmers is affiliated with the Associated Farmers of California, Inc.,
herein called the State organization, an organization comprising
approximately 43 county units such as the one existing in Kings
County. The president of the Associated Farmers is a director of
the State organization.
The Associated Farmers admits to its membership "any person,
firm, association or corporation engaged in agriculture, directly or
indirectly." According to a printed notice publicly distributed by
the Associated Farmers, "You are eligible for membership in the
Associated Farmers, * * * if you are an American corporation,
partnership, or individual `Engaged in Agriculture.' You are 'En-
gaged in Agriculture' if you control agricultural lands through lease
or ownership or pack or process products of the farms of California."
Any "person or corporation not actively engaged in farming" is
eligible for associate membership.
The bylaws of the Associated Farmers provide that the organiza-
tion shall be financed by "voluntary contributions based on an equal
unit proration of the various agricultural and horticultural products
of the State of California, such pro-ration to be determined by the
Executive Committee of the Associated Farmers of California, Inc."
The membership dues in 1938-1939 were $1.00 per $1,000 of pay roll,
with minimum dues of $1.00 per person. The organization also re-
ceives financial support from industries dependent upon agriculture.
According to the State organization, "The Associated Farmers
originated as the result of disturbances which had tended to- prevent
the harvesting of crops and their movement to market * * *."
The nature of these "disturbances" and of the organization to which
they gave rise, is indicated by the following excerpts from a pam-
phlet published by the State organization :
The need for the organization of the Associated Farmers was
forced upon the attention of the people of California by riotous
disturbances which occurred in the Imperial and San Joaquin
Valleys in the fall of 1933 and the spring of 1934 * * *. It
was found * * * that the Imperial and San Joaquin Valley
disturbances had been deliberately fomented by agitators who
were less interested in the welfare of the workers than in the
overthrow of our American system of government and society.
This activity was directed to the destructive purpose of crippling
agriculture and driving the individual farmers out of existence
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and not to the end of solving the mutual problems of farmer
and worker so that both might prosper.
* * * * * * *
The Associated Farmers is not a rival of nor in competition
with any other farmer organization. It originated out of neces-
sity to combat the subversive and radical activities which
threatened the very life of agriculture. The basic activities of
the Association are agricultural labor relations and information
and education 7 which will aid in thwarting the activities of
those who are willing or anxious to destroy our American system
of government and society. * * * [Italics added.]
* * * * * * *
Experience, has shown that more than 90 per cent of the labor
disturbances in farming areas of California during the last
several years have been originated or fomented by * *
radical agitators * * *.
California farmers have met this threat by organizing and by
cooperating with peace authorities for the maintenance of law
and order. * * *
The members of the Associated Farmers are willing to meet
with their employees to discuss wages and working conditions,
and are anxious to find solutions to the many problems con-
fronting the farmers and the workers, but will not deal with
radical organizers with destructive purposes. [Italics added.]
Among the several items enumerated in the Associated Farmers'
"Declaration of Policy foi; Agricultural Labor" are the following :
4. That appropriate steps be taken, through legislation, or in
other proper ways to bring about responsibility on the part of
labor organizations, corresponding with that imposed on em-
ployers.
* * * * * * *
12. Membership in any organization is not necessary in order
to work in agriculture either in producing or distributing or
preparing for market of agricultural commodities, and em-
ployees in agriculture should be free to meet with and bargain
with their employers, collectively or individually, whether or
not such employees are members of any organizations.
' J. B. Boyett , president of the Associated Farmers, questioned at the hearing as to
what the organization ' s educational activities in the field of labor relations , tending to,
maintain law and order , consist of , testified :
I feel if a man has a camp on his ranch and a group of men there , those men are
here, no doubt , due to unfortunate circumstances , and they don't have access to the
papers and the public press; and about the only man he (sic ) contacts is a labor
organizer . * * * I might state that in my camp last year, last fall , every Monday
J. G. BOSWELL COMPANY ET AL. 977
C. The Exchange
The Corcoran Telephone Exchange is a California corporation
engaged in the business of furnishing telephonic communication in
the city of Corcoran, where it maintains, 139.9 miles of telephone
wires. Its office and switchboard are located in Corcoran. The
Exchange furnishes the-only telephone service available to the resi-
dents and business establishments of Corcoran." The Exchange has
300 subscribers, the "largest" of these, according to the testimony of
its president, C. H. Glenn, being the Boswell Company. Among its
other subscribers are the Western Union Telegraph Company and the
Atchison, Topeka and Santa Fe Railroad.
Long-distance communication between local telephone stations
operated by the Exchange and stations at points outside the city of
Corcoran or the State of California is offered to the Exchange's
customers through the joint facilities of the Exchange and Pacific
Telephone and Telegraph Company, a Bell System company." Pur-
suant to an "independent telephone connection ' agreement" between
the Exchange and Pacific Telephone and Telegraph Company, the
latter company maintains a cable of telephone wires connected to the
Exchange's switchboard in Corcoran. Incoming and outgoing toll
calls are transmitted over these wires and the charges therefor, col-
lected by the Exchange from its subscribers, are prorated between
the Exchange and the Pacific Telephone and Telegraph Company.
During the year beginning December 21, 1937, the gross income of
the Exchange, after deducting the Pacific Telephone and Telegraph
Company's share of toll charges and taxes collected from subscribers,
was $11,286.11. Of this amount, $1,574.54- represented the Exchange's
share of toll charges collected. During the same period the Ex-
change handled 35,558 toll calls of which 77, yielding an income to
the Exchange of $177.13, were calls to points outside the . State of
California.
The Exchange challenges the Board's jurisdiction, contending that
its interstate business as reflected in the data set forth above is of
morning the C. I. O. organizer pitched a bundle of trashy literature over into my camp
asking those boys to strike ; and immediately after doing so they could get all kinds
of State assistance , Federal assistance, by simply for the asking.
I talked to them and told them that it was subversive They were satisfied with the
work, as were other camps in the community . There was no dissatisfaction. * * n
I feel that the Associated Farmeis can do a great deal in combating that type of
subversive activity , what I call Communistic activity . It is tearing down, not
building up.
Any employee should be permitted to discuss the problem with his employer at
any time.
8 The Pacific Telephone and Telegraph Company maintains telephone stations in Kings
County, the nearest of these being at Angiola, ,California, 6 miles from Corcoran.
8 The Pacific Telephone and Telegraph Company is a directly controlled subsidiary of
American Telephone and Telegraph Company which maintains world-wide communication
facilities.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
small proportions . However, the Exchange furnishes the only me-
dium of telephonic communication available to the business estab-
lishments of Corcoran , California . At least three of its customers
are engaged in interstate commerce. Telephone service, both local
and long distance , is so indispensable to the conduct of ordinary
business affairs that its interruption in a community like Corcoran
would necessarily burden and obstruct commerce . Such burden and
obstruction , stemming from unfair labor practices proscribed by the
Act, the Board is empowered to prevent.
II. THE ORGANIZATIONS INVOLVED
Cotton Products and Grain Mill Workers Union Local No. 21798,
A. F. L., is a labor organization, chartered by the American Federa-
tion of Labor, admitting to its membership employees of the Boswell
Company.
The J. G. Boswell Company Employees' Association of Corcoran
and Tipton, California, is'an unaffiliated labor organization, admitting
to its membership employees of the Boswell Company at its Corcoran
and Tipton plants.
III. THE UNFAIR LABOR PRACTICES
A. The Boswell Company
1. The organization of the Federal; interference, restraint, and
coercion
The Boswell Company employs approximately from 45 to 189 pro-
duction employees in its ginning and milling operations at Corcoran,
California, a small town located in Kings County, in the San Joaquin
Valley. The volume of its production and the number of its em-
ployees fluctuate seasonally, reaching an annual peak in October or
November during the cotton-picking season, and declining to a low
point in April of each year. From 45 to 55 old and experienced
employees occupying key positions are kept on the pay roll doing
repair work and other odd jobs when the gins and the oil mill are
closed, but most of the employees are laid off between seasons. Owing
to a shortage in the cotton crop in 1938, the ginning and milling
season of 1938-39 was a short one. During that season the Boswell
Company operated 4 of its gins only one shift daily instead of running
6 gins 24 hours daily, as it had done during the preceding year and
employed at the peak of the season, during the week ending October
27, 1938, only 86 production employees as. compared with 189 employed
at the peak of the 1937 season. During the 1938-39 season the Com-
pany operated its gins from September 30, 1938, to January 24, 1939,
J. G. BOSWELL COMPANY ET AL. 979
and its mill, for the pressing of seed from cotton picked in 1938, from
October 24 to November 15, 1938, and from January 5 to 12, 1939.
Thereafter until the time of the hearing the mill was operated on
three separate occasions for a total of 9 days. During the preceding
season the gins had been operated until late February 1938, while
the mill had been in operation from September 20, 1937, to March 7,
1938, from May 3 to 17, 1938, and from July 1 to September 27, 1938.
The Federal had its inception during the period between the closing
of the Boswell Company's gins in February 1938 and the commence-
ment of the next ginning season. As early as January or February
1938 James Gilmore, an employee at the Boswell mill, had spoken to
fellow employees about organizing a union. Early in March 1938
E. F. Prior, an American Federation of Labor organizer, interested
O. L. Farr, a Boswell employee, in the possibility of organizing
employees at the Boswell Company's Corcoran plant in a union to be
affiliated with the American Federation of Labor. Prior did not
approach other employees until after the Boswell mill was reopened
in July. On July 13 he held an organizational meeting in the Ameri-
can Legion Hall in Corcoran, to which he invited some 30 Boswell
employees. Only six or eight persons attended. Among these were
Clyde Sitton, a Boswell employee and nephew of Gordon Hammond,
the superintendent of operations at the Boswell Company's Corcoran
plant, Bill Robinson, a supervisory employee of the Company," and
Gilmore.
On September 2, 1938, Prior, in an interview with Louis Robinson,
a director of the Boswell Company and its general manager of opera-
tions in the San Joaquin Valley, Gordon Hammond, the superintend-
ent of the Corcoran plant, and William Boswell, a director of the
Company in charge of farming and cattle operations in the region,
indicated his intention of organizing a union among the Boswell
employees and his desire to avoid any "misunderstanding" with the
Company. In the course of the discussion, Robinson advised Prior
that if he were attempting, like Prior, to organize a union he would
approach the "key men" employed by the Boswell Company rather
than a' few "radical, ignorant, casual ... part-time workers." Ques-
tioned by Prior, Robinson indicated that he was referring to Gilmore
as one of the latter group. On the same day Prior obtained applica-
tions for membership in the Federal from Farr and several other
Boswell employees. During September and October the Federal's
organizing, campaign gathered momentum and the interested em-
ployees held meetings at the homes of Farr and another Boswell
employee. The Federal was formally ° established on November 5,
10 See p . 11, infra
451270-42-vol. 35-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when its charter was installed and officers were elected. L. A. Spear
became president, R. K. Martin, secretary, and Farr, vice president 11
Immediately following the organizational meeting conducted by
Prior in July 1938, the Boswell Company inaugurated a course of
conduct tending to obstruct the formation and growth of the Fed-
eral. The Company's hostility to the Federal was initially expressed
in the form of statements to employees, at the plant, disparaging
the Federal and threatening employees with loss of their jobs if
they adhered to it.
On July 13, the day of Prior's meeting, Boyd Ely, who subse-
quently joined the Federal, remarked to certain fellow employees
at the Boswell plant that he was thinking of attending the meeting
to be held that night. Ely did not attend the meeting, but on the
morning of July 14, as he was entering the plant, Tom Hammond,
a supervisor of operations in the gin, stopped him and asked him if
he had joined the Federal on the previous evening. Ely replied in
the negative, whereupon Hammond remarked that the Federal was
"a no-good bunch trying to run somebody else's business." A few
days later Joe Hammond, a supervisor of operations in the mill, told
George Andrade, who later became a member of the Federal, while
Andrade was at work, that the Company would not tolerate a union,
would not recognize it, and would close the mill if a union gained a
foothold in the plant. He asked Andrade whether the Federal
would feed him after the mill was closed. Joe and Tom Hammond
asked Farr on several occasions whether he was a member of the
Federal. On one occasion Tom Hammond asked Farr who the other
Federal members were, and advised Farr to "go where there was a
union," since the Boswell Company did not want a union at its plant.
During August 1938 Joe Hammond asked H. N. Wingo, who later
became a charter member of the Federal, while the latter was at
work in the mill, if he had joined the Federal. On another occasion,
Joe Hammond asked Wingo "how the union was getting along" and
remarked that if the men desired to belong to a union they should
go to work elsewhere instead of trying to organize a union at the
Boswell plant. In September 1938 just before the seasonal closing
"In addition to the three officers, the following employees were named as members in
the Federal 's charter : H. N. Wingo , George Andrade , Manual Escobedo , and Pete Galvan.
Boyd Ely joined the Federal early in September . Gilmore was a member of the Federal,
but the evidence does not reveal when he joined Elgin Ely, Walter Winslow, E C Powell,
W R Johnston , and Stephen Griffin joined the Federal in November . Eugene Ely, a
brother of Boyd and Elgin , became a member in January . In addition to these 15 persons
whose membership in the Federal is evidenced by their own testimony or by the Federal's
charter, 5 other Boswell employees were mentioned by Board witnesses as being members
of the organization . These were : Joe Briley , Elmer Eller, Lawrence Galvan , Ignacio
Galvan, and Andrew Galvan . Lawrence , Ignacio, Andrew , and Pete Galvan , and Manuel
Escobedo never attended meetings of the Federal.
J. G. BOSWELL COMPANY ET AL. 981
of the mill, Joe Hammond told Farr that he could not "use" either
Farr or Martin in the mill in the future. Farr remarked that he
had always worked in the mill when it operated in the past and
Hammond replied, "But you never belonged to a union before this
time." At about the same time Tom Hammond told Martin that if
a union should gain a foothold among Boswell employees, the Com-
pany would "lock [the plant] up and shut the door."
As stated above, the Boswell Company's oil mill was closed on
September 27, 1938. The gins were placed in operation beginning
on September 30. During the first 2 weeks of October, Spear, Farr,
and Martin, as a committee representing the Federal, called upon
Gordon Hammond to discuss a schedule of working hours for the
coming season. During this conference Spear told Hammond that
prospective Federal members were being intimidated and Hammond
replied that he had not authorized "anything like that." Spear
then asked Hammond if a notice to employees might not be posted
in the machine shop at the plant, stating that the Company would
not discriminate against its employees if they wished to join the Fed-
eral. Hammond declined to allow such a notice to be posted.
On or about October 15 Bill Robinson, a supervisor in the gins,
asked Andrade whether he belonged to the Federal and, upon receiv-
ing an affirmative reply, stated that a union would not help the
employees of the Boswell Company and that if an employee wanted
to belong to a union he should go to a place where a union was
already established. About a week later Robinson stated to Elgin
Ely, who later joined the Federal, that Andrade was "working on
borrowed time" because he was a union member, and that other
employees with whom Ely was acquainted were "in the same boat."
One of these, Robinson indicated, was Martin. On or about Novem-
ber 6 or 7 Tom Hammond asked Stephen Griffin, who joined the
Federal about a week later, whether he had joined the Federal, and
remarked that the Federal was "the worst thing that had ever hap-
pened here." He advised Griffin not to join it. On November 15
Tom Hammond twice remarked to Walter Winslow, a Federal mem-
ber, that the mill was being closed that day "oil account of the union."
The mill, which had been reopened on October 24, was closed on
November 15 and two Federal members, Boyd Ely and Walter
Winslow, were laid off together with other employees in the mill.
On November 17 Prior and a Federal committee consisting of
Spear, Farr, and Martin conferred with Gordon Hammond and re-
quested that he reduce working hours in the gins from 12 hours to
8 in order to spread employment and prevent further lay-offs. Dur-
ing that interview Spear told Gordon Hammond that Tom and Joe
Hammond were discouraging membership in the Federal, and re-
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quested that this conduct cease. Gordon Hammond stated that he
had instructed Tom and Joe Hammond not to talk about the Federal
and that they had no "authority " to engaged in anti-union activities
inasmuch as they lacked the authority to hire and discharge em-
ployees at the plant . Griffin, Johnston , and Elmer Eller, Federal
members then working at odd jobs, were laid off that day. The cir-
cumstances surrounding Griffin's and Johnston 's lay-offs, as well as
those of Boyd Ely and Winslow, mentioned above, are considered
in Section III, A, 2, in f ra.12 -
The Boswell Company does not deny the foregoing facts with
respect to the anti -union conduct of Tom Hammond, Joe Hammond,
and Bill Robinson , but it contends that it is not responsible therefor.
This contention is without merit . Notwithstanding the testimony
of Louis Robinson and Gordon Hammond indicating that no one at
the Boswell Company's Corcoran plant except Gordon Hammond is
given the title of "foreman" or has the authority to hire and discharge
employees , it is clear that Tom and Joe Hammond and Bill Robinson
are supervisors 13 who direct the work of the rank and file employees
in the plant . The employees in the gins and mill are accustomed to
receiving the Company 's orders from these individuals and, in con-
sequence , reasonably regard them as representing the Company in its
relations with its employees . The statements of Tom and Joe Ham-
mond and Bill Robinson , made to their subordinates at the plant
during working hours, indicating that the Company was actively
opposed to the Federal and might punish its employees for engaging
in union activities , necessarily interfered with the employees in their
self-organizational efforts.14 It is immaterial that, as the Boswell
Company claims , Tom and Joe Hammond and Bill Robinson were
not expressly authorized to intimidate and coerce the employees of
the Company with respect to their union activities . In view of the
supervisory positions held by these individuals , the Company is
responsible for their conduct above described 15
"No evidence was introduced as to Elmer Eller, whose case we dismiss herein.
'a For a detailed discussion of the duties of these and other supervisors and their
relationship to the other employees, see Appendix
14 In the respondents' brief supporting their exceptions to the Intermediate Report, the
Company inferentially denies this conclusion, pointing to the fact that all the employees
who testified to the anti-union activity of Tom and Joe Hammond and Bill Robinson were
not deterred thereby from joining or remaining in the Federal . There is no merit to this
argument. Matter of Consumers ' Power Company, a corporation , and Local No 740,
United Electrical, Radio & Machine Workers of America, 9 N. L. R B. 701, enf'd, Con-
sumers Power Company v. National Labor Relations Board, 113 F. (2d) 38 (C. C A. 6) ;
cf. National Labor Relations Board v. Brown Paper Mill Company, Inc ., 108 F. ( 2d) 867,
cert den . 310 U. IS 651, enf'g Matter of Brown Paper Mill Company , Inc., Monroe,
Louisiana and International Brotherhood of Paper Makers, affiliated with the American
Federation of Labor, etc ., 12 N. L. It. B. 60.
'6 International Association of Machinists, etc. v. National Labor Relations Board,
311 U. S. 729 , reh den. December 9, 1940 , aff'g 110 F. ( 2d) 29 (App D. C ), enf'g Matter
of The Serrick Corporation and International Union, United Automobile Workers of America,
J. G. BOSWELL COMPANY ET AL. 983
Moreover, after the Federal had complained to the Boswell Com-
pany of the activities of its supervisors, the Company failed to take
any effective measures to stop them from interfering with the union
activities of its employees, or dispel the employees' belief that its
attitude toward the Federal was that imputed to it by Tom and Joe
Hammond and Bill Robinson. Although Gordon Hammond testi-
fied that he had "spoken to" Tom and Joe Hammond there is no
evidence that he employed more drastic means to require them to
respect the employees' rights of self-organization. The facts demon-
strate that his claimed reprimands were not taken seriously. As
stated above, Gordon Hammond declined, early in October 1938, to
permit posting of the notice suggested by Spear. Under these cir-
cumstances, the Boswell Company must be deemed to have ratified
the illegal conduct of its supervisory employees.ie
We find that by the foregoing statements and conduct of its super-
visory employees, the Boswell Company interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Discrimination with respect to hire and tenure of employment
Spear, Martin, Farr, Andrade, Wingo, Briley, and Powell
a. The evictions
On November 17, 1938, in the afternoon following the above-
described conference between Gordon Hammond and the Federal rep-
resentatives, Tom Hammond, angrily accused Farr and Spear, who
were at work in the gin, of "trying to get his job" by reporting his
anti-union statements to Gordon Hammond, and remarked to Farr,
"We are going to straighten this out tomorrow."
On November 18 the following Federal members were employed at
the plant: Spear, Martin, and Farr, as ginners; Wingo and Briley,
as pressmen in the gins; Andrade, as a sack sewer, and Powell, assigned
to hauling bales in the plant yard.17 By prearrangement, these em-
Local No 459, 8 N L. R . B: 621; Consumers Power Company v. National Labor Rela-
tions Board, 113 F. (2d) 38 (C. C. A. 6), enf'g Matter of Consumers Power Company, a
corporation, and Local No. 740, United Electrical , Radio & Machine Workers of America,
9 N L R B. 701.
'' See H J. Heinz Company v. National Labor Relations Board, 311 U. S. 514, aff'g
110 F ( 2d) 843 (C. C. A. 6), enf'g Matter of H. J. Heinz Company and Canning and,
Pickle Workers, Local Union No. 325 , affiliated with Amalgamated Meat Cutters and
Butcher Workmen of North America, American Federation of Labor, 10 N. L R B. 963;
Matter of Swift & Company, a corporation and Amalgamated Meat Cutters and Butcher
Worl,men of North America , Local No. 641 and United Packinghouse Workers Local
Industrial Union No 300 , 7 N L. R B . 269, enf'd as mod , Swift & Co. v . National Labor
Relations Board, 106 F (2d) 87 (C. C A. 10), reh. den. 106 F (2d) 94.
17 Pete Ignacio , and Andrew Galvan , employees in the mill who were inactive members
of the Federal , were also apparently working at the plant on November 18. All the other
employees who Mere then Federal members had been laid off prior to November 18.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees wore their union buttons in the plant that day for the first
time. Apparently in response to the Federal 's suggestion, the work-
ing hours had been reduced , and Spear 's gin was 'scheduled to start
at 10 o'clock in the morning instead of at 7: 00,' the customary hour.
At 10 o'clock that morning, the power driving the gins was turned
off and Bill Robinson and others sent the Federal members to the
plant yard for "a little meeting ," an anti-union demonstration in
which a large number of the employees of the Company participated.
Tom and Joe Hammond and Bill Robinson were present, as were
Kelly Hammond , the night supervisor in the oil mill, and Oscar
Busby, the head machinist . Rube Lloyd, another supervisory em-
ployee, loudly demanded that the union men be "thrown out" of
the plant. The Federal members were heckled about their union affilia-
tion and the disturbance culminated in three men seizing Spear, presi-
dent of the Federal, and forcibly propelling him across the road to
Gordon Hammond's office in the Company's office building. Some-
one in the crowd, meanwhile , proclaimed , "The Company is be-
hind us."
Gordon Hammond was not in his office that day. After the crowd
of employees entered the office building , someone demanded that
Louis Robinson discharge the union men. Robinson , who had been
in a nearby office, then appeared momentarily and ordered the em-
ployees in the crowd to return to work, saying that he would
"straighten things out" presently.
The Federal members thereupon returned to their posts, but they
were prevented from working. The power from the main power plant
was not turned on; Kelly Hammond and Bill Robinson , accompanied
by Joe Hammond, entered the gin building and turned off the motors
driving the machine operated by one of the Federal members, and
Robinson ordered another, Martin, not to start his gin. One of the
Federal members appealed for help to Tom Hammond, supervisor
of the gins, but Hammond walked away without assisting him. Bill
Robinson then advised several of the Federal members to leave the
plant, saying that this was a "suggestion" rather than an "order"
and asserting that the other employees had refused to work with
the, union men. Spear , Farr, Martin, Andrade, Wingo, and Briley
thereupon left the plant and went to Farr's house. These six em-
ployees together with Powell , who also left the plant shortly after-
wards under the circumstances described infra, were the only active
members of the Federal employed in the plant that day. Farr tele-
phoned to Louis Robinson and told him what had occurred, inquiring
whether the Federal members should immediately return to work.
Robinson replied in the negative, stating that he would "think the
matter over" and notify the Federal members later of his decision.
J. G. BOSWELL COMPANY ET AL . 985
After the employees had left the plant yard, Powell, who had wit-
nessed the gathering and dispersal of the crowd, was ordered by Bill
Robinson to go into the gin building and take the #4 press job.
Powell discovered that this was Briley's job and told Tom Hammond
that he was unwilling to take it. Hammond then directed Powell to
take the #1 press. Upon ascertaining that that was Wingo's job,
Powell again declined to perform the work, on the ground that he
would be "scabbing." Bill Robinson then told Powell that he had
better remove his union button before the other employees discovered
that he was wearing it and "scattered up the ground with him."
Powell thereupon left'the plant and joined the other Federal members
at Farr's house.
The testimony of the Federal members who described the above
occurrences was uncontradicted.18 The Boswell Company does not
deny that the Federal members were evicted from its plant,19 but it
contends that it is in no wise responsible for the episode, claiming
that its non-union employees, without authority from the Company,
ousted the Federal members, because they resented their presence
and their organizational activities, particularly those which led to a
reduction of working hours on November 18, 1938.20 The facts, as
's At the hearing, and in their exceptions and brief , the respondents impugned the
credibility of Powell , upon whose uncontradicted testimony we base our findings respecting
the circumstances under which Powell himself left the plant . We conclude, upon a con-
sideration of Powell 's entire testimony in the light of the other evidence tending to cor-
roborate or discredit it, that his testimony is substantially worthy of credence . In this
instance , he was believed by the Trial Examiner , who was in the best position to evaluate
his credibility. ,
'9 The Company claims, in its exceptions and brief , that the union men left the plant
voluntarily ; inferentially , it claims that they acted unreasonably in departing without
notifying or appealing to Louis Robinson Without speculating as to what might have
happened if the union men remained longer at the plant , we hold that they acted reason-
ably in leaving the premises and then appealing promptly, as they did, to Louis Robinson.
With the acquiescence and assistance of the Boswell Company 's supervisors , the Federal
members were being subjected to interference which rendered it impossible for them to
work . They had already been confronted with a show of force. Under the circumstances,
Bill Robinson ' s "suggestion" that they leave the plant was necessarily interpreted as a
threat that further interference with their work, if not actual assaults , would ensue if
they failed to comply therewith.
20 There is no evidence to indicate that the non -union employees were actually resentful
of the Federal ' s action in requesting a reduction of working hours Even if we assume,
however , that this was the case , it does not absolve the Boswell Company from responsi-
bility for the eviction of the Federal members, for the reason , among others , that the
Boswell Company by - its conduct described in Section III, A, 1, supra had encouraged an
attitude of hostility to the Federal on the part of its non -union employees . See Clover Fork
Coal Co. v. National Labor Relations Board, 97 F. (2d) 331 (C C A 6) enf'g Matter of
Clover Fork Coal Company and District 19, United Mine Workers of America, 4 N L R. B.
202; National Labor Relations Board v Sunshine Mining Co ., 110 F ( 2d) 780 (C C. A. 9),
cert. den 312 U. S. 678, rehearing den. 312 U . S 714, enf 'g Matter of Sunshine Mining
Company and International Union of Mine, Mill and Smelter Workers, 7 N. L. R B. 1252;
Mattel of General Motors Corporation and Delco-Remy Corporation and International
Union, United Automobile Workers of America, Local No. 146, 14 N . L. R B. 113, enf'd
National Labor Relations Board v General Motors Corporation, 116 F. ( 2d) 306 (C. C. A.
7) ; Matter of Hudson Motor Car. Company and International Union, United Automobile
Workers of America, A . F. of L , 34 N L R . B 815; Matter of Weirton Steel Company
and Steel Workers Organizing Committee, 32 N L R B. 1145.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
revealed by the_uncontroverted evidence, are not susceptible of this
interpretation. Bill Robinson and Kelly Hammond, both supervisory
employees 21 for whose anti-union conduct the Boswell Company is
responsible, were the active leaders of the disturbance and the, prin-
cipal molesters of the Federal members. Tom and Joe Hammond
were present in the crowd which heckled the Federal men in the
plant yard, and they were in the gin building at the time when the
Federal members were prevented from resuming their work. These
supervisors made no attempt to restore discipline, if they did not
actually incite and encourage the attack on the Federal members.
Rube Lloyd, who was present in the crowd and who voiced the sug-
gestion that the union men be bodily ejected, is another supervisory
employee for whose conduct the Boswell Company is responsible .22
It is thus apparent that representatives of the Company initiated, led,
and countenanced the entire anti-union demonstration. The
"ordinary" employees in the plant, in so far as they participated in
the demonstration, acted on the assumption that "the company was
behind them." We think that this assumption was correct.
Louis Robinson, himself, after ordering the employees who crowded
into Hammond's office to return to work, failed to take any measures
to stop the demonstration which was in progress. At the hearing
his only explanation of his failure to "straighten things out" in the
plant was that he learned of the departure of the Federal members
from the plant before he considered it "the proper time" to execute
his alleged pacific intention. At about 2 o'clock in the afternoon of
November 18, Robinson reported the morning's episode to the presi-
dent of the Boswell Company in a letter which depicted his attitude
as one of partisanship against the Federal and sympathetic condona-
tion of the acts of the individuals who had interrupted the operations
of the plant and evicted seven employees.23 Although Robinson
n See Appendix.
See Appendix.
The letter reads , in part, as follows :
For some time a Mr. Pryor representing himself as an organizer for the Vegetable
Oil Workers ' Union of Long Beach has been endeavoring to organize a local chapter
of this union in our plant He and his followers were never able to get enough mem-
bers to form the union and after working several months they began to "put the
heat on" our employees in an effort to force in more members This was done by
offering to accept membership without charge and by threatening to "roll" the em-
ployees for their jobs if they did not join the union . The threat was made that
soon the ginning season would be over that the non-union men fired and the union
men retained in the jobs
This morning at ten o'clock on their own volition , the employees , both union and
non-union , agreed to have a meeting to discuss the matter The three tentative
officers of the local proposed chapter [the Federal] were at the meeting . According'
to the best information I could get , the meeting practically amounted to nothing but
that the non -union men decided that the three tentative officers were making unneces-
sary disturbance and endangering their jobs . They therefore took the three union men
and bodily threw them off the property . The employees then came to see me in a
body and demanded that I fire the union men. They were pretty well worked up
J. G. BOSWELL COMPANY ET AL. 987
asserted in this letter that misconduct on the part of the Federal
members had caused the trouble, and that the 10 o'clock "meeting" was
agreed upon by both union and non-union employees, he was unable to
testify definitely as to the information leading him to make these
statements which, as an impartial inquiry would have revealed, were
not in accord with the facts. Indeed, Robinson admitted at the hear-
ing that he had made no "special investigation" to ascertain the origin
of the disturbance. Nor did he 'discipline the employees who had
staged the anti-union demonstration during working hours. At
the hearing, when asked what action he had taken against the per-
sons whom he described in his letter as having "bodily" 'ejected three
union men, he testified, "I didn't discharge anybody and I didn't
deduct any salary from them but we did register disapproval of that
action." His method of registering disapproval, he testified, was
"by the action of the Company, by talking to the men, and by posting
these notices to show that we didn't approve * * *." He did not
"talk to the men" in any assembly of employees called for the purpose
of delivering a reprimand.24 The "notices" referred to by Robinson
were identified by him as a notice which he posted at the insistence
of an agent of the Board who came to Corcoran to investigate charges
of unfair labor practices filed by the Union on November 23. This
notice reads as follows :
This company will not through its proper representatives or
otherwise, restrain, coerce, intimidate or interfere with our em-
ployees' right to self-organization and, furthermore, will not dis-
criminate with reference to hire or tenure of employment because
of affiliation with the American Federation of Labor or any other
bona fide labor organization, as guaranteed by the National
Labor Relations Act. This notice will be posted for a period of
15 days.
and I endeavored to calm them down and persuaded them to go back to work, but the
non-union men evidently kept a little pressure on the union men and in a few
minutes the union men left their jobs.
* * * About noon one of the tentative union officers called me on the telephone
and told me he wanted to do the right thing and asked for suggestions as to what
he should do I replied that the Company also wanted to do the right thing and
that I would have to give the matter some thought while I was at lunch, this
party called for me again and advised the switchboard operator that he could call
again later in the afternoon Up to this time he has not called
On cross -examination by the Board ' s attorney Robinson testified as follows
Q Did you talk to any single men regarding that incident of November 18, 1938?
A I don't recall any particular conversation , but in talking with the men at times
I let it be known that I did not approve of that action
Q Now , can you give us the name of a single man to whom you registered disap-
proval of the action of November 18, 1938?
A I can ' t give you the name of a single man and tie it to a particular conversation
because I don't remember any specific conversation.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robinson's testimony reveals that his only,purely voluntary act with
reference to this notice was to amend the draft submitted by the
Board's agent by substituting the words "proper representatives" for
the words "supervisory employees." 26 The notice, at most, announced
to employees that the Boswell Company, through whatever agents it
professed to recognize as such, would refrain in the future from vio-
lating Sections 8 (1) and (3) of the Act. In view of the continued
absence from the plant of the ousted employees and in view of Robin-
son's leniency toward the persons who had led the November 18
demonstration this notice cannot have impressed the employees as a
sincere disavowal or condemnation by the Company of the anti-union
activities of its plant supervisors.26
We find that the Boswell Company, by the acts of its supervisory
employees, by its failure to make any reasonable attempt to maintain
or restore discipline in its plant on November 18, 1938, and by its
subsequent condonation of the eviction of the Federal members from
its plant, is responsible for the ouster of Spear, Martin, Farr, Wingo,
Andrade, Briley, and Powell,27 from their employment on November
18, 1938, because of their membership and activities in the Federal,,
and that it thus discriminated with respect to the hire and tenure of
employment of said employees, and discouraged membership in the
Federal. By this conduct, the Boswell Company interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the. Act.
b. The Boswell Company's refusal to reinstate the ousted employees
Following the occurrence of November 18, 1938, none of the ousted
Federal members, except Briley, was reinstated in the employ of the
Boswell Company. Briley was reinstated within a few days after
the evictions upon making application individually to Gordon Ham-
I Robinson testified that he construed "proper representatives" as referring only to
himself and Gordon Hammond.
20 Cf. Matter of General Motors Corporation and Delco -Remy Corporation and. Interna-
tional Union, United Automobile Workers of America, Local No. 146, 14 N. L. R. B 113,
enf'd National Labor Relations Board v. General Motors Corporation, 116 F. - ( 2d) 306
(C. C. A. 7).
27 Although Powell was not subjected to so much personal molestation as were the other
union members , he left the plant under Bill Robinson's threat that he would incur physical
violence if he did not remove his union button . During subsequent conferences , discussed
infra, when Prior sought to have the ousted Federal members reinstated , both the Federal
and the Boswell Company representatives considered Powell as one of the Federal mem-
bers who had been forced out of the plant . Like the others , he received his wages from
the Company for November 18 and the subsequent period during which his job was open.
We do not, therefore , distinguish Powell's case from that of the others on the basis of the
variation as to the circumstances under which he left the plant.
J. G. BOSWELL COMPANY ET AL. 989
mond.-$ Briley did not testify at the hearing. As we have found, the
Boswell Company discriminated with respect to Briley's hire and
tenure of employment on November 18, 1938, but since he was
promptly reinstated and is not seeking relief, it will be unnecessary
to order the Boswell Company to take affirmative remedial action
with respect to him.
Although they were not working at its plant, the Boswell Company
continued to pay to the other evicted employees their regular wages
for the period from November 18 until the dates, a week or two later,
when their jobs ended for the season with the cessation of the Com-
pany's 1938 ginning operations. It then notified them of the termina-
tion of their employment by registered letters, hereinafter described
in more detail. The Company's conduct toward these six employees,
individually and collectively, during the period from November 18 to
the dates of the registered letters not only substantiates our conclu-
sion that it condoned and adopted as its own the acts of its employees
who had staged the demonstration of November 18, 1938, but also con-
stituted further unfair labor practices. The complaint alleges that
the Boswell Company by its refusal to reinstate to their positions the
employees ousted on November 18 further discriminated against them
to discourage membership in the Federal. The Boswell Company
denies this allegation in its answer to the complaint. In its excep-
tions to the Intermediate Report and its brief filed in support thereof
the Boswell Company contends that it was "willing" to reinstate the
ousted employees whenever there was work available for them, but
that none of them applied for reinstatement after November 18, 1938,
or offered to accept employment with the Boswell Company, except
that Prior, on their behalf, "made the conditional offer that they
must all be reemployed, or none of them would return." The Com-
pany also asserts, by implication, that its duty toward the employees
in question was discharged by its action in paying them the sums
which they would otherwise have earned as wages from November
18, 1938, until their jobs terminated for the season.
The Boswell Company is in error in assuming that the evicted em-
ployees were obliged to take the initiative in seeking reinstatement.
Immediately following the anti-union demonstration of November 18,
for which it was responsible, the Company was under the affirmative
duty to offer reinstatement to the employees who had been forced to
leave their work, and to safeguard them by reasonable means against
further molestation in its plant.29 Its action in paying wages to them
On or before November 28, 1938, Briley joined the Association, which we find, infra,
to be dominated and suppoi ted by the Boswell Company
"See Matter of General Motors Corporation and Delco-Remy Corporation and Inter-
national Union, United Automobile Workers of America, Local No. 146; 14 N L R B 113,
enf'd National Labor Relations Board v General Motors Corporation 116 F (2d) 306
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the brief period which remained until the end of the season's oper-
ations, without restoring them to their regular positions of employ-
ment, obviously did not discharge this duty.
The record shows that not only did the Boswell Company fail to
come forward with an offer to reinstate the employees in question, but
also, contrary to its contention , it failed and refused to grant them
reinstatement when they applied therefor . Its dealings with the
Federal , as the collective representative of the evicted employees were
as follows :
When Farr telephoned to Louis Robinson at 11 a. in. on November 18
and asked Robinson whether the Federal members should return to
work, Robinson replied that he wanted time to "think the matter over"
and that he would notify the Federal later of his decision. That
evening Prior telephoned to Robinson and announced his intention of
coming to Corcoran to attempt to "straighten the matter out." Robin-
son replied that he knew very little about the disturbance and that
"before he did or said anything" he would await a report from the
Company's employees, who were holding a meeting that night. This
meeting, as we find in Subsection III A , 3 infra, was the first organiza-
tional meeting of the company -dominated Association.
On the morning of November 19 Prior, Martin, and Spear called
upon Louis Robinson and Gordon Hammond. On that day , and for
at least a week thereafter , there was work for all the ousted employees.
Prior stated to Robinson and Hammond that he had come to discuss
the anti -union demonstration of the preceding day, and to request the
reinstatement of the employees in question . Robinsob indicated that
he would "feel out sentiment" among the employees in the plant, re-
marking that the situation was "tense " and that he must proceed with
care to avoid another "flare-up." Prior requested that Robinson
notify him promptly of his decision respecting the status of the ousted
employees , and Robinson , implying that the matter was one to be
decided by the officials of the Boswell Company at its Los Angeles
office, disclaimed authority to expedite a determination by his superiors.
In only one material respect is the evidence concerning this con-
ference in conflict: Robinson testified that he stated to the Federal
representatives that the ousted employees were at liberty to return to
work at any time, that his purpose in "feeling out sentiment" among
the other employees in the plant was merely to ascertain whether there
was any necessity of furnishing special protection for the evicted em-
ployees, demanded by the Federal , but deemed unnecessary by Robin-
son. Prior , Martin, and Spear denied in their testimony that Robin-
son offered to permit the Federal members to return to work. It is
(C. C. A. 7) ; Matter o f General Shoe Corporation and Georgia Federation of Labor,
5 N. L R B 1005 , consent order enf'd National Labor Relations Board v. General Shoe
Corp., 99 F. (2d ) 223 (C. C A. 5).
J. G. BOSWELL COMPANY ET AL. 991
unnecessary to resolve this conflict, since it is admitted by the Bos-
well Company that Robinson refused to agree to furnish the Federal
members with special protection against further molestation while at
work in the plant, and in view of the events of the preceding day and
Robinson's statements as to the "tensity" of the situation, the evicted
employees were justified in declining to return to work without a
definite guaranty of protection.311 Moreover Robinson's claim that he
offered to reinstate the ousted employees is belied by the Company's
entire course of conduct during the period of approximately 2 weeks
subsequent to the interview of November 19, when work remained
available for at least some of them.
On the afternoon of November 19, not having been notified of any
decision by the Company respecting the status of the ousted em-
ployees, the Federal voted to boycott the Boswell Company's prod-
ucts. On November 23 Prior filed with the Board the original charge
in this proceeding. Within the next few days an agent of the Board
persuaded Robinson to post the notice to employees, disclaiming any
intention to violate the Act, to which we have referred above. On
November 25, 1938, Prior called upon J. G. Boswell, president of the
Boswell Company, in Los Angeles, and informed Boswell that the
Federal desired to settle its differences with the Company. Boswell
stated to Prior that the matter was entirely in the hands of the local
management in Corcoran and that the position of the Company was
expressed in the notice posted at the plant.
On November 26 or 27 Prior, accompanied by one or two of the
ousted employees, again called at the Boswell Company's plant in
Corcoran and interviewed Gordon Hammond .31 At that time the
ginning season 'was coming to a close, and the jobs in which Martin,
Andrade, and Powell were employed on the day of the evictions came
to an end on November 26. The Boswell Company did not notify the
three affected employees of these facts, however, until November 28,
when it sent to them registered letters announcing the "termination"
of their "employment." When Prior saw Hammond on November 26
or 27, he renewed his request that the Company reinstate the ousted
Federal members. Hammond indicated, generally, that the Company
u as willing to reinstate the employees in question, but that there was
3° Cf Matter of National Motor Rebuilding Corp . and International Association of Ma-
chinists , District No. 15, A. F. of L, 19 N. L. R B . 503; Matter of Dixie Motor Coach
Corporation and Sunshine Bus Lines, Inc, and Brotherhood of Railroad Trainmen, 25
N L R B 869; Matter of Continental Oil Company and Oil Workers International
Union, 12 N L R B 789 , ent'd as mod, Continental Oil Company v. National Labor
Relations Board 113 F (2d) 473 (C. C. A 10) ; remanded to Board for determination of
another issue , 313 U. S 212 , Mattel of Tveiiton Steel Company and Steel Workers
Organizing Committee, 32 N L R B 1145
31 Prior testified that, accompanied by Spear, he had one conversation with Hammond,
on November 27 Hammond testified to two conversations with Prior and Martin on
November 26 and November 27 The conflict is immaterial.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insufficient work for all of them at that time. He gave the Federal
representatives no specific information as to which or how many of
the six jobs in question were still available. Prior requested some clari-
fication of the status of those employees whose work for the season
might already have ended, and Hammond disclaimed authority to
speak for the Boswell Company in regard to its future policy in this
respect, remarking that he was himself "only a hired hand."
On November 28, Prior called upon Louis Robinson and stated that
1,e had come to discuss the reinstatement of the evicted employees,
remarking that the Federal now believed that a statement by "some-
one in authority" in the Boswell Company that "there was to be no
arguments on the job" would be sufficient to protect the Federal mem-
Lers against molestation by the other employees. Robinson asked
Prior to name the Federal members in question. Prior named Spear,
nd Robinson made a penciled note of Spear's name, remarking that
there might be a few days' work for him from time to time. Prior
then named Martin. Robinson thereupon put down his pencil and
said that Martin's gin had just closed down and that there was no
work for Martin, indicating that his prospects of future reinstatement
were indefinite. As to the precise terms of Prior's rejoinder to this
statement, the testimony of Prior and Robinson is in conflict. Prior
testified that he said that
if that was the attitude in regard to Mr. Martin, that we could
not have some understanding as to him, as well as the rest of
them, there was no need of naming any further,
[Italics added.]
Robinson's version is that Prior said
Well, if you don't have any work for Martin, there is no use to
talk any further. [Italics added.]
Prior then took his departure. Without deciding precisely what
words were used by Prior at the close of the interview, we are con-
vinced, in view of all the circumstances, that Prior's testimony cor-
rectly reflects the substance of his statement to Louis Robinson, and
that both men interpreted Prior's statements as a demand, merely,
for some recognition by the Company of the right of all the evicted
Federal members to be assured of the reinstatement to which they
were entitled. We find that the evidence does not support the Com-
pany's claim that Prior, on behalf of the ousted employees, made a
"conditional" application for reinstatement.
On November 28, subsequent to the interview between Robinson and
Frior,22 and on December 6, the Boswell Company sent to the ousted
32 Robinson testified that he wrote these letters either just before or just after his
talk with Prior.
J. G. BOSWELL COMPANY ET AL. 993
employees- the aforementioned registered letters announcing the
termination of their jobs. In the meantime, during the period when
Prior was engaged in his unsuccessful negotiations with its officials,
the Boswell Company demonstrated to its employees in various ways
its determination to exclude from its employ persons who adhered
to the Federal.
During this period Gordon Hammond interviewed several of the
employees individually. Spear testified that on November 19 sub-
sequent to the conference between Prior and the officials of the Boswell
Company, Gordon Hammond sent for him and said to him, "Now
Lonnie, you see what this union business has led to. You can't hope
to put it over. * * * If you will drop this union business you
can come back to work." According to Spear, Hammond made a
similar offer to reinstate him if he would renounce the Federal, shortly
after Spear received his registered letter of December 6. On both
occasions, Spear rejected the offer. Powell testified that shortly after
November 28, 1938, Gordon Hammond told him that he might have
a job with the Boswell Company whenever he discovered that the
Federal was "all hooey," and "a bunch of fellows claiming something
they couldn't back up," and that he replied that he intended to "string
along" with the Federal. Farr testified that on November 26 he saw
Hammond,and told him that he was ready to return to work, that
Hammond inquired whether his name was still O. L. Farr, and stated,
"Well, under these conditions we can't use you at this time," remark-
ing that he had told Prior earlier that day that he could not "use
those fellows." Farr's job, according to the registered letter sent to
him by the Boswell Company, did not terminate until a week subse-
quent to this conversation. Gordon Hammond denied having the
conversation with Farr to which the latter testified. He admitted
having conversations with Spear and Powell on the occasions to
which they testified, but denied that he had made the conditional
offers of reinstatement which they imputed to him and claimed that
both Spear and Powell indicated to him, in the conversations held
early in December, that they would not accept reinstatement with-
cut Prior's permission. Spear denied that he had made any such
statement to Hammond. Powell, who denied on cross-examination
by the respondents' counsel that he had received any instructions from
Prior as to whether or not he should apply to the Boswell Company
for reinstatement, was not interrogated as to whether he told Ham-
mond that this was the case. Prior himself denied at the hearing
that he had directed the evicted Federal members not to accept rein-
statement or apply therefor. We find the facts as to these various
conversations to be substantially as set forth in the above-described
testimony of Spear„ Powell, and Farr.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meanwhile, between November 18 and 28, the Association was
formed. As we find in Section III, A, 3, infra, this organization,
the formation of which was dominated and interfered with by the
Boswell Company, was organized principally for the purpose of
exterminating the Federal. In the letter describing the evictions and
the formation of the Association, which he wrote to his superiors on
November 18, 1938, Louis Robinson clearly indicated that it was his _
intention to let a committee of the Association determine under what
conditions the evicted Federal members should be permitted to return
to work :
I have suggested to some of the cooler heads that at the meeting
tonight [the organizational meeting of the Association on the
evening of November 18] they appoint a committee to talk with
the union men that were run off the job this morning and offer to
allow them to come back to work on some basis as might be
agreed on at the meeting of the employees tonight.
The record does not indicate whether any action was taken pursuant
to this suggestion. Robinson's conduct with respect. to the Federal's
demands for the reinstatement of its members, however, must be
interpreted in view of his opinion, revealed in this letter, that the
question of "allowing" the evicted Federal members to return to work
plight properly be decided by an organization formed, with the
respondent's support, for the purpose of combating the Federal.
The registered letters notifying,Martin, Andrade, and Powell of
the termination of their jobs were sent to them on November 28.
Registered letters substantially identical in wording were sent to
Spear, Farr, and Wingo on December 6. Each of these letters,
except Powell's stated that on a certain date the operation on which
the employee addressed had been working on November 18 was closed
down. The letters continued : "* * * and your employment by
this Company terminated at that time. Your closing pay check
has been issued and will be delivered to you at the usual place in
our Corcoran office." Powell's letter, alone, contained phraseology
intimating that he might possibly be rehired by the Boswell Com-
pany in the future, stating, "* * * we will not need your further
services at this time." (Italics added) As Louis Robinson admitted
at the hearing, it is not the practice of the Company to employ the
medium of registered letters to notify its employees that they are
laid off or that their jobs have terminated. The Boswell Company
claims that its sole purpose in sending these letters was to convey to
the employees in question the information, not available to them
because of their absence from the plant, that the jobs in which they
had been working on November 18 had come to an end, and Louis
J. G. BOSWELL COMPANY ET AL. 995
Robinson testified generally to this effect. The Company denies in-
ferentially, that the letters were intended as notices of discharge.
We think, however, that it was inevitable that the recipients of these
letters should conclude, as several of them testified they did, that the
letters signified final dismissal. In view of the preceding events,
the Company's failure to make any statement in the letters with ref-
erence to the prospective reinstatement of the employees addressed-
employees who had been ousted from its plant and had since the
ouster unsuccessfully sought reinstatement-necessarily indicated
that the "termination" of their "employment" was final. We find
that, in any event, these letters afforded the recipients reasonable
grounds to believe that further application to the Boswell Company
for reinstatement, would be fruitless. Even if these employees had
previously been subject to some obligation to apply to the Boswell
Company for reinstatement in order to be entitled thereto, the Com-
pany's conduct in sending them the registered letters would have
relieved them, thenceforth, .of such obligation.33
Conclusions with respect to the Boswell Company's conduct subse-
quent to November 18, 1938
In summary, although the Federal members discriminatorily ousted
from their jobs were not bound to apply for reinstatement, but were
entitled to await an offer from the Company, they did make appli-
cation through the Federal, until they were notified by the Company
that their "employment" was "terminated." From November 18 until
the time when the end of the ginning season afforded it an excuse
for declining to restore the employees in question forthwith to their
positions, the Boswell Company parried the Federal's rightful de-
mand that it reinstate the employees in question. By its refusal, on
November 19, to reinstate the Federal members except, as it claims,
under circumstances requiring them to assume the risk of further
molestation at their work, the Company left its duty to reinstate
these employees unperformed. Thereafter, in dealing with Prior, it
employed evasive and dilatory tactics. Robinson claimed that he
needed time to "sound out sentiment," and referred Prior to his
superiors in Los Angeles, who, in turn, informed Prior that the
Corcoran officials of the Company had full discretion. Gordon
33 Although Powell' s case might be distinguished from that of the others on the basis
of the variant phraseology of the letter sent to him , the offer of reinstatement made to
him by Gordon Hammond within a few days subsequent to the date of this letter was a
conditional offer , an act of discrimination in and of itself , which excused Powell thence-
forth from making application for reinstatement See Matter of The Kelly -Springfield Tire
Company and United Rubber Workers of America, Local No 26 , et al , 6 N L R. B 325 ;
Matter of Newark Rivet Works and Unity Lodge No 420 , United Electrical it Radio Workers
of America , C. I. 0 etc 9 N L. R B 498
451270-42-vol 35 64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hammond, on November 26 or 27, withheld specific information as
to any concessions which the Company may then have been prepared
to make. Meanwhile, the Boswell Company at no time came for-
ward with an offer to reinstate the employees in question during the
week when all their jobs remained open. On the contrary, by offering
on November 19 to reinstate Spear, the Federal president, provided
that he would renounce his affiliation with the Federal; by rejecting
Farr's individual application for reinstatement on November 26,
when work was still available for him; by assisting in the formation
of the Association and delegating to it some authority with respect
to reinstatement of the employees; and by declining to make any
commitment with respect to the future employment of those Federal
members whose jobs were ended for the season, the Company mani-
fested its determination to exclude the ousted employees from posi-
tions at its plant so long as they adhered to the Federal.
On November 28 when Prior last discussed the reinstatement of
the evicted employees with Louis Robinson, all these employees were
still entitled to be offered reinstatement, effective immediately or as
soon as work should again become available. This Prior justifiably
demanded. Under the circumstances, Prior's refusal to discuss a
settlement between the Federal and the Company except on the basis
of some redress for all the Federal members who had suffered from
the same act of discrimination gave the Boswell Company no war-
rant to assume that a bona fide offer on its part to perform its reme-
dial duty toward the ousted employees would be rejected by them.
Nor, after sending the registered letters of November 28 and Decem-
ber 6, can the Boswell Company justifiably claim that the failure of
the ousted employees thereafter to apply for reinstatement signified
a voluntary surrender by them of their employment. Its offers of
reinstatement made to Spear and Powell shortly after the registered
letters were dispatched, were conditional offers, the rejection of which
did not affect the remedial rights of Spear and Powell.34
We find that by its conduct following the evictions the Boswell
Company refused to reinstate Martin, Farr, Spear, Andrade, Wingo,
and Powell because of their membership in the Federal, thus further
discriminating with respect to their hire and tenure of employment
and discouraging membership in the Federal. By this conduct, the
Boswell Company interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
u Matter of Carlisle Lumber Company and Lumber and Sawmill Workers' Union,
Local 2511 , Onalaska, Washington and Associated Employees of Onalaska, Inc, Intervenor,
2 N L R B. 248 , enf'd, National Labor Relations Board v. Carlisle Lumber Company, 94
F (2d) 138, (C. C. A. 9) cert. den. 304 U S 575, and 99 F (2d ) 533, cert . den 306
U. S 646.
J. G. BOSWELL COMPANY ET AL. 997
Elgin Ely
The amended complaint alleges, and the Boswell Company's
answer denies, that the Boswell Company discriminated with respect
to the hire and tenure of employment of Elgin Ely by reducing his
pay from 40 cents to 35 cents per hour, on or about November 3,
1938, and by refusing to reemploy him on or about December 2. Ely
was first employed by the Boswell Company in the fall of 1936 and,
with intermittent lay-offs, worked thereafter at various positions,
both in the gins and the mill until November 15, 1938. After one
lay-off he was rehired on October 24, 1938. Ely testified that he
earned 40 cents per hour in October 1938, but the Boswell Company's
records indicate that he actually worked for 1 day, October 24, as a
press helper, at 35 cents per hour, then worked from October 25
through November 1 as the head pressman, at 40 cents per hour,
resuming the press helper's job at 35 cents per hour on November
3. Gordon Hammond testified that Ely took the head pressman's job
for 1 week because of the temporary absence of Joe Briley, the regu-
lar incumbent; that Ely went back to his regular job upon Briley's
return; and that in each job he received the usual rate of pay for
the job. There was no evidence to contradict Hammond's explan5-
tion of Ely's reduction in pay. We find, as did the Trial Examiner,
that the Company did not discriminate against Ely by reducing his
rate of pay on November 3, 1938.
Ely joined the Federal on November 11. On November 12, when
he was paid for the week ending November 10, he discovered the
above-mentioned reduction in his rate of pay and asked Tom Ham-
mond, his supervisor, the reason for this. Hammond remarked to
Ely, "Maybe the union had something to do with it . . . Maybe you
should get your committee together and go up to the office and 'see
if they couldn't find out something about it." On or about Novem-
ber 5, while at work, Ely had received an injury to his thumb. An
infection set in, and he was advised by his physician not to work
until he recovered. On November 16, Ely reported this to Tom
Hammond, who excused him from work. Ely was released for work
by his physician on or about December 2, 1938. He did not then
apply to the Boswell Company for reinstatement, however, because he
had received from the Company a registered letter dated November 28,
telling him that the No. 4 gin, on which he had been employed prior
to November 16, had been closed on November 26, and that his "em-
ployment by this Company terminated at that time." This letter was
identical with those sent by the Boswell Company on November 28
and December 6 to the Federal members who had been ousted from
the plant on November 18. The Boswell Company introduced no
evidence to show that it had ever before employed the medium of
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
registered mail to notify employees absent from work on account of
illness that they were laid off for the season. Nor did the Boswell
Company have, in Ely's case, the pretext for sending such formal
notice which it advanced to explain the other registered letters,
namely, that the recipients were drawing, their wages, although
actually performing no work at the plant.35 The Company, by send-
ing Ely such a letter, indicated that it considered Ely to be in the
same class , and to merit identical treatment with the other Federal
members whom it had ousted from its plant and thereafter refused
to reinstate. In view of the entire background, the Company's acts
of discrimination against the ousted employees, and its general
antipathy to the Federal, we conclude that the Boswell Company
intended, by its letter to Ely, to deter him from seeking reinstatement
upon recovering from his injury. The letter had this effect.
The Boswell Company claims that it did not, as the Trial Examiner
found, "discharge" Ely on November 26, because Ely would in any
event have been laid off on that date, when the No. 4 gin was closed.
Although it appears that Ely would probably have been laid off on
November 26 in the normal course of events, it is clear that, in the
absence of a purpose to deprive Ely of the expectancy of reemploy-
ment which he would normally have had, following an ordinary
seasonal lay-off, the respondent would not have chosen the peculiar
medium which it employed to notify him that his job had ended.
Regardless whether the Boswell Company considered its letter to Ely
a notice of discharge, it deliberately conveyed to Ely the impres-
sion that, as a member of the Federal, his employment by the Boswell
Company was "terminated"-finally. We do not distinguish such a
"lay-off" from a discriminatory discharge. We find, as did the Trial
Examiner that on November 26, 1938, the Boswell Company discrim-
inated with,respect to the hire and tenure of employment of Elgin
Ely, and thereby discouraged membership in the Federal and inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
James Gilmore
The complaint, as amended, alleges that the Boswell Company dis-
charged James Gilmore on or about May 17 36 and refused to reinstate
him on or about July 1, 1938, because he attempted to form a labor
organization among its employees. The Boswell Company denies
ai Ely's letter stated, as did the other letters, that his closing pay check had been
issued and would be delivered to him at the office, but his Social Security record indicates
that his last pay check was for the week ending November 17, 1938.
36 The amended complaint originally alleged that this discharge occurred on or about
March 20, 1938 The allegation was amended with respect to this date by the motion made
by counsel for the Board to conform the pleadings to the proof.
J. G. BOSWELL COMPANY ET AL. 999
this allegation in its amended answer. The Trial Examiner found
that the Boswell Company discriminated against Gilmore by refusing
to reinstate him.
Gilmore was first employed by the Boswell Company in 1928 and
worked for it, with intermittent lay-offs, until July 1930. At that
time he obtained other employment, then returned to the employ of
the Boswell Company in September 1931. He continued to work for
the Company until 1938, again with occasional lay-offs, in the mill
and at various odd jobs in the plant. • During the first 3 months of
1938 Gilmore was steadily employed in the oil mill. He was laid off
on March 19, subsequent to the closing of the mill, and was reem-
ployed during the next operation of the mill from May 2, to 17, when
the mill was again closed,- and he was laid off together with other
employees. Gilmore was not thereafter rehired, although the Boswell
Company reopened its mill on July 1, 1938.
The Boswell Company contends that Gilmore never applied for
employment subsequent to his lay-off in May. Gilmore testified
without contradiction, however, that a day or two before the mill
was reopened in July, he spoke to Julius Hammond, a supervisor
employed by the Boswell Company in the mill, whom he had been
accustomed to consult, to "find out when we were going to start back
to work . . ." and that Hammond asked him what he was "going
to do" for a job and stated that the Boswell Company had no work
for him. Gilmore also testified that shortly after the mill reopened
in July, he spoke to Gordon Hammond, who told him that his work
had been satisfactory, -but that there was no work available for him.
Gilmore admitted, at the hearing, that he saw Gordon Hammond
twice subsequently, during the summer of 1'938, and that on neither
occasion did he ask Hammond for work. I
During the winter and spring of 1938 Gilmore had attempted to
interest fellow employees of the Boswell Company in the formation
of a union. During July he gave Prior some assistance in organizing
the Federal and became a member of that organization 87
As the Trial Examiner found, the evidence does not indicate that
Gilmore's lay-off on May 17, 1938, was discriminatory. Although the
evidence -affords some ground for the suspicion that his failure to
obtain reinstatement in July was due to his union activity, we are
not convinced that this was the case. It appears from Gilmore's
own testimony that he was told by both Gordon and Julius Hammond,
at or about the time when the mill was reopened, that there was insuf-
e"Gilmore testified that in June 1938 Gordon Hammond , w hom he encountered near the
Boswell plant , accused him of "sneaking around " for the purpose of "signing up" em-
ployees in a union Hammond, in his testimony , gave a contradictory version of this con-
versation. we find it unnecessary to resolve the conflict
1000 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
ficient work available to afford him employment, and there is no
evidence to indicate that these statements were not true. Later,
Gilmore failed to ask Gordon Hammond for work on several occa-
sions when he had opportunity to do so. As we find in connection
with the cases of Boyd Ely and Winslow, discussed infra, it is not
clear that the Boswell Company customarily recalls its employees
to work, upon resuming operations at its plant, in the absence of
application by them. In view of the inconclusive character of the
evidence, and the fact that the Boswell Company had rehired Gilmore
in May, subsequent to the period when he first attempted to arouse
interest in organizing a union, we find that the Boswell Company did
not discriminate with respect to the hire and tenure of employment
of Gilmore.
Boyd Ely and Walter Winslow
The employment of Boyd Ely and Walter Winslow with the Bos-
well Company terminated with the closing of the mill, where they
were working,,on November 15, 1938. The complaint alleges, and
the Trial Examiner found, that they were then locked out and were
refused reemployment when operation of the mill was resumed on
January 5, 1939, because of their Federal membership' and activities.
Boyd Ely was first employed by the Company as a hay cutter in
July 1936. In February 1937 he received an increase in pay and was
transferred to the mill. In May 1937 he quit his job and obtained
employment elsewhere for 2 or 3 months. In September 1937 he
was rehired by the Boswell Company and was steadily employed
thereafter until the middle of March 1938. He was again employed
by the Company from the week of April 14 until the mill was closed
in May. He was reemployed in the mill during the first week of July
1938, and was laid off on September 28, when the mill was again
closed. On or about October 15 Ely was rehired in the mill, at an
increased rate of pay, and worked until November 14. Ely reported
for work on the night shift on November 14 and found the mill closed.
He asked Joe Hammond, the supervisor of oil-mill operations, what
was wrong, and Hammond replied that he did not know. Ely
applied to Joe Hammond for work on the following day, but was
not rehired.
Ely joined the union on September-5,1938. The Boswell Company
knew of his Federal affiliation at ,the time when it reemployed him
in October 1938.
Winslow was first employed by the Boswell Company as a hay
cutter, in September 1935. He worked for the Company until 1938,
with intermittent lay-offs, performing various jobs in the cattle corral,
seed house, oil mill, warehouse, and plant yard. In 1938 he was
J. G. BOSWELL COMPANY ET AL. 1001
steadily employed until the mill was closed in March, and he was
again employed during May and July. During the summer months
he was employed only part time, chopping weeds in the plant yard.
He was again employed steadily in September ; after about 2 weeks'
work in the gins, he was transferred to the mill, where he worked
until November 15. On that day he was laid off by Joe Hammond.
Winslow applied for membership in the Federal on November 9
and attended a Federal meeting on November 11. On or about
November 15 Tom Hammond asked him whether he belonged to the
Federal and he replied in the affirmative. On November 15 Tom
Hammond told Winslow "It looks like the mill is going to have to
shut down on account of the boys joining the union." Later in the
day he said to Winslow, "We are shutting the mill down tonight .. .
on account of the union. Where are you going to place your
card at any other place but here? We can't use you here at this
,plant and no place else."
We have found in Section III, A, 1, supra, that Tom Hammond's
remarks'to Winslow on November 15 constituted an unlawful inter-
ference by the Company with the rights of its employees guaranteed
in Section 7 of the Act. Ordinarily we would regard such state-
ments as these, addressed to a union member immediately preceding
his lay-off, as persuasive evidence that the lay-off was discriminatory.
We are not convinced, however, that either Winslow or Ely was laid
off because of his membership in the Federal. It is undisputed that
the mill was closed and that other employees were laid off on
November 15, 1938, when these two individuals were laid off. There
is no definite schedule for the operation of the mill. The Boswell
Company introduced evidence indicating that whether it mills cotton-
seed for the production of oil or stores it uncrushed, depends largely
upon the condition of the market for cottonseed oil. With the excep-
tion of Tom Hammond's statements to Winslow 3' there is no evidence
to indicate that the closing of the mill on November 15, 1938, was
other than a periodic closing normally incident to the Company's
intermittent operations. As a result of previous closings, Ely and
Winslow had each been laid off seyeral times before. Although the
Boswell Company first discovered Winslow's affiliation with the Fed-
eral shortly before it closed the mill on November' 15, it had known
for some time that Ely and other employees who worked in the mill
had joined the Federal and had nevertheless reemployed Ely and the
others in October when the mill was reopened for 3 weeks, giving
ss Although Tom Hammond is a supervisory employee in the gins , the 'evidence does not
indicate that his position with the Boswell Company is such that he would participate in
a decision as to when to close the mill , or would be authoritatively informed as to the
reasons for such decision.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ely an increase in pay at that time. Under all the circumstances,
we think that the evidence is insufficient to prove either that the shut-
down of the mill on November 15, 1938, was a lock-out to discourage
membership in the Federal or that the lay-off of either Ely or Wins-
low at that time was discriminatory.
On January 5, 1939, the Boswell Company reopened its mill for a
period of 1 week,; thereafter, until the time of the hearing it operated
the mill on three occasions for periods aggregating 9 days. It did
not, on January 5 or subsequently, rehire either Ely or Winslow.
However, neither applied to the Company for work subsequent to
November 15, 1938. While they may have assumed with some war-
rant, in view of the evictions of November 18 and the Company's
refusal to reinstate the evicted Federal members, that such applica-
tion would be fruitless, their failure to obtain reemployment cannot
be attributed to the Boswell Company in the absence of some specific
act of discrimination against them. The evidence does not justify,
a conclusion that the Company's failure to offer them jobs on Janu-
ary 5 or thereafter was such a discriminatory act. Some, of the
Federal members employed by the Boswell Company testified that
the Company had recalled them to work, from time to time, upon
resuming its operations following the periodic shut-downs, but others
testified to having secured reemployment after lay-offs by applying
therefor to Gordon Hammond or one of his subordinates. As to
certain of these employees, the practice had varied. Upon the basis,
of this evidence we cannot find that it is the Boswell Company's es-
tablished practice to notify its laid-off employees when work is avail-
able for them. Absent proof of some such custom obviating the
necessity of applying for work after temporary lay-offs, since neither
Ely nor Winslow applied to the Boswell Company for work subse-
quent to the shut-down of November 15, 1938, there is insufficient basis
to conclude that they were discriminatorily refused reemployment
when the mill reopened. We find that the Boswell Company did not
discriminate with respect to the hire or tenure of employment of Ely
or Winslow.
Stephen Griffin and W. R. Johnston
The amended complaint alleges and the Trial Examiner found that
the Boswell Company discharged Griffin and Johnston on November
17, 1938, because of their Federal membership and activities. In its
answer, the Boswell Company denies this allegation and alleges that
Johnston and Griffin were laid off due to a seasonal decline in its
operations. -
Griffin was first employed by the Boswell Company, at hay baling
and cattle feeding, in the summer of 1932. He worked for the
I
J. G. BOSWELL COMPANY ET AL. 1003
Company, except for intermittent lay-offs, until 1936, when he pur-
chased a hay baler from the Company.89 For the next three seasons
he baled hay as an independent contractor, working principally for
the Boswell Company. In August 1938 he was rehired by the Boswell
Company at the Corcoran plant for 2 days, cutting hay and feeding
cattle. During the week of October 13 he was again hired by the
Company, and worked steadily at the plant until November 17, 1938,
when he was laid off. During this period he worked at various jobs,
in the main at hauling planting seed.
Griffin joined the Federal on November 15 or 16, 1938. Tom
Hammond, who had advised Griffin about 10 days previously to "stay
out" of the Federal, learned on November 17 that Griffin had dis-
regarded his advice. On that same day, Gordon Hammond laid off
Griffin, stating that there was no more work, and remarking, "Some
of the boys is getting it in their head that you boys are being laid
off on account of the union, but there is nothing to that."
Johnston was first employed by the Boswell Company in the fall
of 1937. He worked as a bale hauler until the end of January 1938,
when he received an injury to his leg which incapacitated him for
some time. In October he was rehired by the Company. He worked
for 1 day in the branding pen, for about 7 days as a press helper,
and during the last 2 weeks that he was employed, he sewed and
sacked planting seed and hauled bales. He also was laid off on
November 17 by Gordon Hammond, who told him that the lay-off
was necessitated by the shortage of the cotton crop and lack of work,
remarking that Johnston was not being laid off for union activity.
Johnston applied for membership in the Federal on November 7
and was initiated at a meeting held on the evening of November 16.
Gordon Hammond testified that he laid off Griffin and Johnston
on November 17 because there was no more work for them. Evidence
,introduced by the Company showing that on November 17 all the
cotton from which seed was to be saved for planting in the follow-
ing spring had been picked, and that a large part of the planting
seed had been sacked and hauled, tends to substantiate Hammond's
testimony as to the reason for these lay-offs, inasmuch as both Griffin
and Johnston had been engaged in handling plant seed during their
last period of employment. Neither Griffin nor Johnston applied
for reinstatement subsequent to November 17.
While, under all the circumstances, we do not consider Gordon
Hammond's disclaimers of discrimination, in his conversations with
Griffin and Johnston on November 17 as evidence that the Company
had no discriminatory motive for laying them off, neither do we
find, in view of the evidence supporting the Boswell Company's
31 This purchase was financed by a loan from the Boswell Company.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explanation of their lay-offs, adequate proof that the lay-offs did
result from anti-union discrimination . We find that the Boswell
Company did not discriminate with regard to the hire or tenure of
employment of Griffin or Johnston.
Eugene Clark Ely
The complaint alleges and the Trial Examiner found, that Eugene
Clark Ely was discharged by the Boswell Company on January 30,
1939, because of his Federal membership . In its answer , the Bos-
well Company alleges that Ely was neither laid off nor discharged,
but that he left its employ "of his own free will and accord."
Ely, a brother of Elgin and Boyd Ely, was first employed by the
Boswell Company in September 1937. After a lay-off in March
1938, he was rehired in May, and worked for 2 or 3 weeks "running"
plant seed . He was then again laid off and was rehired for 2 weeks
in July, baling straw. Early in October he was hired again, and
worked steadily until December operating a cotton drier in the gin.
His rate of pay was increased within a few days after he was rehired
in October . In December , when the gins were closed, Ely was trans-
ferred to the construction gang, and worked under Rube Lloyd's
supervision on various construction jobs until the end of January
1939. On Saturday , January 28 , he reported for work, but asked
Lloyd for permission to take the day off because of pains in his
shoulder . Lloyd granted this request , telling Ely to report on Mon-
day and remarking that since it was raining there "wouldn 't be much
doing" that day. On Monday morning, January 30 , Ely reported
to Lloyd, who told him that there was no work for him, that "they"
were "all through ." About half an hour later Ely reported to
Gordon Hammond that Lloyd had laid him off . Hammond told
Ely that there might be some work for him to do "after awhile."
Ely stayed at the plant for another hour and a half and then left.
There is no evidence indicating that Ely ever thereafter applied to
the Boswell Company for work.
Ely had joined the Federal on January 2. He had previously
joined the Association when it was formed, and attended several of
its meetings . He testified that on Sunday , January 29 , the day
before he was laid off , he was seen by W. W. Boswell, a director of
the Boswell Company, standing in front of an Amerman Federation
of Labor hall in Bakersfield, together with Martin , Johnston, Elgin
Ely, Prior , and other Federal men. Boswell , in his testimony,
denied that he had seen Ely on that occasion , that he had ever known
Ely's identity prior to the hearing, and that he had ever noticed
that there was an American Federation of Labor hall in Bakersfield.
I
J. G. BOSWELL COMPANY ET AL. 1 005
We find it unnecessary to resolve the conflict in the evidence.
Even assuming the truth of Ely's testimony , there is insufficient
evidence to convince us that Ely was laid off because of his Federal
membership . The testimony of Ely indicates that Lloyd had no
work for him on January 30. Ely 's departure from the plant fol-
lowing his conversation with Gordon Hammond, despite the latter's
statement that there might be some work for him , appears to have
been voluntary . Under the circumstances , we find that the Boswell
Company did not discriminate with respect to Ely's hire or tenure
of employment.
3. DOMINATION OF AND INTERFERENCE WITH THE FORMATION AND
ADMINISTRATION OF THE ASSOCIATION
On November 18, 1938, within a few hours of the above-
described eviction of the Federal members from the Boswell Com-
pany's plant the Association had its inception . In his letter of No-
vember 18 addressed to the president of the Company , referred to
in Section III, A l 2, supra, Robinson , after describing the evictions,
stated :
The non-union men then appointed a committee and the corn
mittee went to the District Attorney for instructions as to the
best method of procedure for them to follow. It is my under-
standing the District Attorney advised them that up to
date they were in the clear and suggested that they think the
matter over carefully and determine on the best possible method
of handling the matter and that in the meantime , he would
give the problem thought and continue to advise them. * * *
The non-union men have now called a meeting for tonight.
Their thoughts seem to be running to the formation of a Com-
pany union as a protective union in preventing them from being
forced into the A . F. L. or the C . I. O. The Caminol Company
and the Lucerne Creamery of Hanford have both had the same
trouble and this is the method they use in handling same. This
is also true of the San Joaquin Light & Power Corporation.
I have suggested to some of the cooler heads that at the meeting
tonight they appoint a committee to talk with the union men
that were run off the job this morning and offer to allow them
to come back to work on some basis as might be agreed on at
the meeting of the employees tonight. That they take no action
in forming a Company union but appoint a committee to inves-
tigate such a proposal and make recommendations back to a later
meeting.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In amplification of the facts narrated in his letter, Robinson testi-
fied that at some time shortly after the union men had left the plant
Rube Lloyd, Gordon Hammond's nephew, Clyde Sitton, and another
employee carne to see him in his office and asked him to advise them
what they "should do in connection with the disturbance that had
taken place." Robinson told them that they would have to seek
advice elsewhere. Shortly after luncheon that same day Lloyd and
Sitton, accompanied by Oscar Busby, the head machinist, told Rob-
inson that a committee including Lloyd and others had been in con-
sultation with the District Attorney of Kings County,- who had ad-
vised them to investigate the employees' associations which had been
formed at the Caminol Company and the Lucerne Creamery.
That evening a meeting attended by over 50 Boswell employees was
held in the Company's office building at the plant. Eugene Clark
Ely, who attended this meeting, was informed of the meeting in the
afternoon of November 18 by Tom Hammond, supervisor of operations
in the gins, where Ely was employed. Hammond told Ely that he,
Busby, Sitton, and "Yankee" Roberson, a clerical employee, had gone
to Lemoore 41 that day to consult an attorney about forming a "com-
pany union."
At the meeting, Busby made a speech in which he stated that the
Lemoore attorney believed that there was no reason why a "company
union" would not "work" at the Boswell Company plant. The persons
present at the meeting then signed their names on two blank sheets
of paper. Among those who signed were Kelly Hammond and Bill
Robinson, supervisors at the plant. Supervisors Tom and Joe Ham-
mond also were present at the meeting.
While the meeting was in progress, one Parrish, an employee, ac-
costed Elgin Ely in Gordon Hammond's presence at the Boswell
plant, and told him to "go in the office and sign that paper" to "keep
this God-damned A. F. of L. union out of here."
Louis Robinson admitted at the hearing that on November 18 he
knew that Lloyd, Sitton, and Busby had called a meeting of employees
to be held in the plant that evening and that these three employees
had absented themselves from 'work to consult the district attorney.
He testified, on cross-examination, that he did not expressly give his
permission to Lloyd, Sitton, and Busby to leave their work that day,
but that he would have given such permission if they had requested
it, and that he did not reprimand them or order any deductions from
their pay for taking time off from duty.
41 The district attorney's offs ' a is in Hanford, California , approximately 17 miles from
Corcoran . Rand McNally World Atlas, 1936.
41 Lemoore is approximately 25 miles from Corcoran . Rand McNally World Atlas, 1936.
J. G. BOSWELL COMPANY ET AL. 1007
On November 28, at another meeting of Boswell employees, held in
the American Legion Hall in Corcoran, the Association was formally
organized and a constitution and bylaws were adopted. Seventy-six
persons present at this meeting, including supervisors Tom, Joe, and
Kelly Hammond and Bill Robinson, signed the' constitution. At this
meeting, also, the following officers of the Association were elected :
president, J. W. Hubbard, the Boswell Company's "farm advisor" in
Corcoran ; vice president, Oscar Busby,, head machinist at the Cor-
coran plant; secretary, "Yankee" Roberson, a clerical employee of
the Company; treasurer, Samuel Brenes, the Boswell Company's se-
nior bookkeeper and cashier. A "labor relations committee," consist-
ing of Willoughby, the plant storekeeper, McKeever, an agronomist
employed by the Boswell Company and Rube Lloyd, the construction
superintendent, was also elected. Hubbard, the newly elected presi-
dent, addressed the meeting, stating that he thought that "we were
accomplishing quite a bit by this company union, and, if we would
all stick together, he didn't see how it wouldn't work."
Eugene Clark Ely had been informed of this meeting by Roberson
who handed him a notice during working hours at the plant. On
another occasion when a meeting of the Association was scheduled,
Eugene Clark Ely received a notice from Roberson and, in addition,
was told by his supervisor, Tom Hammond,, that he "had better"
attend if he desired to continue working.42 At that meeting, at which
Busby and Roberson presided, the attorney who had been retained
in connection with the organization of the Association expressed the
opinion that "the company union should get along better with the
company than the A. F. of L. or C. 1. 0."
The Association exists, according to its constitution, for the pur-
poses, among others, of collective bargaining with the Company in
respect of rates of pay, hours of employment, grievances, and labor
disputes, and "To not interfere with the right of any member or
members to present grievances individually to the management of
the company." Membership in the Association is restricted to em-
ployees of the Boswell Company at its Corcoran and Tipton plants,
other than "executives,' 43 who have been continuously employed by
the Company for a period of 30 days or more. Control of the As-
sociation's affairs, including the power to veto amendments of the
constitution and bylaws, and exclusive power to initiate proposals
42 Although the evidence does not establish conclusively that the Boswell Company re-
quired of its employees membership in the Association , it is significant that the only persons
identified at the hearing as one -time members of the Federal , who were employed by the
Company at any' time subsequent to November 18, were employees who joined the Asso-
ciation.
43 An "executive" is defined in the Association 's constitution as "one who in his discre-
tion makes decisions in the management of the Company or disputes over labor , wages,
rates of pay , hours of employment or conditions of work arising between the employees
of the Company and the Company."
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for strike action, is vested in a seven-man governing board consisting
of the four officers and the members of the labor relations com-
mittee. Eligibility to serve on this board is restricted to those em-
ployees of the Boswell Company who have been continuously employed
for a year or more, a group which includes only a minority of the
plant employees. Strike action by the Association is also restricted
by a constitutional requirement that if a strike is determined upon,
the governing board shall give the president, secretary, and manager
of the Company written notice of the Association's proposed action
10 days prior to calling the men out on strike.
At a meeting of the Association held on April 5, 1939, subsequent
to the issuance of the complaint in this proceeding, the members
elected new officers and adopted an amendment to the bylaws pro-
viding that membership in the Association constitutes repudiation
of membership in any other labor organization. Following this
meeting the secretary wrote a letter to the Boswell Company stating
that the Association had a list of unemployed members and requesting
the Company to "get in touch" with the Association when it required
laborers. This letter concluded,
I do, however, wish to emphasize the fact that this is merely a
request. We are not agitating for a closed shop but we do want
to do everything that is reasonable and just to keep our members
employed.
Far from "agitating for a closed shop," the Association has never
bargained with the Boswell Company. Although, in a letter to the
Company dated November 29, 1938, notifying the Company of its
existence and of the names of its officers, the Association claimed to
represent 95 percent of the Company's employees in Corcoran, it has
apparently not asked for recognition as exclusive bargaining repre-
sentative of such employees. Not only has it failed to obtain a
contract with the Boswell Company relating to wages or working
conditions, but also it has never appointed representatives to discuss
these subjects with the Company.
Conclusions with respect to the Association
The Boswell Company's relation to the Association cannot be judged
except in the light of its attitude toward the Federal" While
the Company countered the Federal's initial efforts toward organiza-
44 International Association of Machinists. etc National Labor Relations Board, 311
U S 729, reh. den. Dec 9, 1940, aff'g 110 F. (2d) 29 (App D. C ), enf'g Matter of The
S'errick Corporation and International Union, United Automobile Workers of America,
Local No. 459, 8 N L R B. 621; National Labor Relations Board v Link-Belt Company,
etc., 811 U. S. 584, rev. mod . of Board 's order in 110 F. ( 2d) 506 (C. C. A. 7), enf'g as
mod. Matter of Link-Belt Company and Lodge 1604 of Amalgamated Association of Iron,
Steel and Tin Workers of North America, etc , 12 N L. It. B 854.
J. G. BOSWELL COMPANY ET AL. 1009
tion with a campaign of intimidation and interference culminating in
the expulsion of Federal members from its plant, it acquiesced in the
activities of Lloyd, Sitton, Busby, and others, who' notified Louis
Robinson on November 18 that they had left their work in connection
with the project of organizing a union and that they were planning
to hold a meeting that night in furtherance of this project. Such
acquiescence, under these circumstances, amounted to active encour-
agement, assistance, and support. The Boswell Company paid the
organizers of the Association for their time spent away from the plant
on November 18 and permitted them to use its office building for their
first organizational meeting. These acts, in the light of the Boswell
Company's openly mainifested hostility toward the only other labor
organization which had appeared upon the scene, not only constituted
financial support, but also were clear indications to the employees
that the organization thus being formed had the favor of the Boswell
Company to the exclusion of all others, particularly the Federal.
That the Boswell Company intended to create this impression and
proposed to utilize the Association as a device for combating the
Federal is clear from Louis Robinson's letter to J. G. Boswell written
during the afternoon of November 18. In this letter Robinson first
related the history of the Federal in scornful and disparaging terms,
then stated that the formation of a "company" union seemed likely
and that other employers in the locality were using such a device to
control labor "trouble." The letter indicates, also, that the Boswell
Company's role in the organization of the Association was more than
passive, in that Robinson had made "suggestions" to "some of the
cooler heads" with respect to the procedure they should follow at
their meeting that night.
The identity of the persons who were prominent in organizing
the Association further supports our conclusion that the Association
was formed with the assistance and encouragement of the Boswell
Company and that the Boswell Company dominated the formation
and administration of the organization. Rube Lloyd was an organ-
izer and original officer of the Association; Tom, Joe, and Kelly
Hammond, and Bill Robinson attended its organizational meetings
and became charter members; Tom Hammond on at least two occa-
sions secured the attendance of a subordinate at meetings of the Asso-
ciation. These individuals, as we have found, are responsible super-
visory employees of the Boswell Company who participated promi-
nently in its campaign of opposition to the Federal, threatening em-
ployees with loss of their jobs if they joined the Federal, and leading
or sanctioning the anti-union demonstration of November 18. In
view of the supervisory status of these employees and the role which
they had theretofore played in the relations between the Boswell
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company and the only labor organization which had attempted to
organize its employees, their sponsorship of the Association inevitably
demonstrated to the rank and file employees that the Association was
favored by the Company.
Busby, another of the three men who organized the Association
and its original vice president, is the supervisor 45 in the machine
shop at the Company's plant. His relationship with the Association,
therefore, also demonstrated to the ordinary employees the Boswell
Company's approval of the Association.
Other employees of the Boswell Company who were prominent in
the formation of the Association, and who served with Lloyd and
Busby on its first governing board, while not, strictly speaking,
supervisory employees, hold positions with the Boswell Company of
such a nature as to identify them clearly with the management of
the Boswell Company rather than with its ordinary plant employees :
Hubbard, the Association's first president, is a "farm advisor" em-
ployed by the Boswell Company, whose office is located in the same
building with those of the Company officials, and who performs no
function in connection with the operations of the plant. He instructs
the foremen and contractors in charge of the Boswell Company's
i anches in the vicinity how to conduct farming operations, and
performs no manual labor at the Corcoran plant. McKeever, one
of the original officers of the Association and its secretary at the time
of the hearing, is employed by the Boswell Company as an agron-
omist, performing experimental work in connection with the raising
of crops. Like Hubbard, he appears to have no duties connected
with the operations of the plant and no familiarity with the prob-
lems of the plant employees. - He is salaried and is carried on the
Boswell Company's Los Angeles pay roll, whereas the ordinary em-
ployees in the plant are paid from the Corcoran office on an hourly.
basis. Brenes, the treasurer of the Association, is employed by the
Boswell Company as cashier and head bookkeeper, with supervision
over at least one assistant. Roberson, the Association's first secre-
tary, is a clerical employee of the Boswell Company. Willoughby,
a member of the first labor relations committee elected by the Asso-.
ciation, is the Boswell Company's storekeeper at the Corcoran plant.
Brenes, Roberson, and Willoughby are salaried employees of the
Company.
The identification of men like Hubbard, McKeever, Brenes, Rober-
son, and Willoughby with the formation and administration of the
Association indicates to us, as indeed it must of necessity have indi-
cated to the ordinary production employees of the Boswell Company,
that the Association was not an organization of the employees but
45 See Appendix.
J. G. BOSWELL COMPANY ET AL . 1011
rather one of the employer's device and choosing. From this and
from the Boswell Company's sponsorship of the Association through
its regular supervisory employees, we conclude that the Association
was the creature of the Boswell Company.
It is consistent with this conclusion that the Association was estab-
lished with 76 members within 10 days after the project to organize
it was conceived, and that it failed thereafter to function effectively
as a collective bargaining agency.
On the basis of all the evidence, we find as did the Trial Examiner,
that the Boswell Company dominated and interfered with the forma-
tion and administration of the Association and contributed financial
and other support to it and that the Boswell Company thereby in-
terfered with, restrained, and coerced its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
B. The Associated Farmers
On January 18, 1939, Prior inquired of Louis Robinson whether
his attitude with respect to the reinstatement of the Federal members
had changed in any respect. Robinson replied that his position was
unaltered. The Federal, thereupon, on January 23, 1939, started
picketing the Boswell Company plant.
On January 30, 1939, a mob visited the Boswell plant and drove
the Federal pickets away. The amended complaint alleges that the
Boswell Company and the Associated Farmers, acting as an employer
in the interest of the Boswell Company, were responsible for this
episode.
The Boswell Company has various membership and business con-
nections with the Associated Farmers and its financial contributions
to the support of that organization have been substantial. On Sep-
tember 20, 1938, it donated to the Associated Farmers $235,. a sum
which amounted to 20 per cent of the organization's total receipts as
of November 22, 1938. In March 1939 the Boswell Company re-
mitted to the State organization, for credit to the 1939 assessment of
$635 levied by the State organization against the Associated Farmers,
the sum of $240.46
The following officials and employees of the Boswell Company be-
came members of the Associated Farmers prior to January 30, 1939:
Louis Robinson, J. W. Hubbard, and H. G. McKeever; Albert Ar-
mour, an employee of the Boswell Company in charge of making farm
loans through the Company's wholly owned lending subsidiary, The
J. G. Boswell. Farm Loan Company; and H. A. Curtis and Bert
4 This contribution included a small amount to be credited to the assessment against the
Tulare County unit of the -State organization.
451270-42-vol 35-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lowry, foreman in charge of two of the Company's ranches. Brenes,
Roberson, Bill Robinson, and Joe Hammond joined the Associated
Farmers subsequent to January 30, 1939. Walter Grisham, a member
of the Associated Farmers, operates a 1300-acre farm for the Boswell
Company under a contract whereby the Boswell Company owns the
crops and pays Grisham for his services.
Lloyd Liggett, a director of the Associated Farmers who described
himself in his testimony as a small contractor and cook, has frequently
been employed by the Boswell Company to do ploughing on a con-
tract basis. J. B. Boyett, the president of the Associated Farmers,
is a member of a farming partnership which gins its cotton at the
Boswell gin and has at times borrowed money from the Boswell Com-
pany's lending subsidiary. E. C. Salyer, a rancher member of the
Associated Farmers, sells his cotton to the Boswell Company and has
done some work for it as a contractor. At the time of the hearing,
Salyer owed approximately $188,000 to the Company's lending sub-
sidiary. C. H. Glenn, president of the Exchange, who is a member
of the Associated Farmers, also finances his farming operations
through the Boswell Company. Other individual members of the
Associated Farmers have had business and financial dealings with
the Boswell Company at various times. On January 30, 1939, the
date when the Associated Farmers is alleged to have attacked pickets
stationed by the Federal at the Boswell plant, approximately 14 per
cent of the Corcoran members of the organization were either em-
ployed by the Boswell Company or enjoyed close business relations
with it.
On January 26, 1939, at a meeting of the board of directors of the
Associated Farmers, President Boyett "reviewed" the situation
caused by the picketing of the Boswell Company plant, stating that he
understood that the products of the gin transported by truck had been
declared "hot." Thereupon, two officers of the Tulare County unit of
the Associated Farmers explained the method used by the "farmers"
of Tulare County to transport their products to market "despite `hot
cargo' charges by radical elements," through the facilities of an or-
ganization known as the Farmers Transportation Company. The
board of directors of the Associated Farmers unanimously resolved
to cooperate with the Farmers Transportation Company. However,
following the meeting, the Associated Farmers apparently abandoned
this project.
On January 30, 1939, Elgin Ely and Griffin were parked in a
Federal picket car on the public highway near the entrance to the
Boswell Company's plant. At about 9:30 in the morning between 150
and 200 men arrived at the scene in automobiles, the first one in the
procession being driven by Lloyd Liggett, a director of the Associated
J. G. BOSWELL COMPANY ET AL. 1013
Farmers. Liggett parked in front of the picket car and got out of
his car. Men crowded around the picket car. Liggett opened the
door of the picket car and said to Griffin, "What have you got here,
Steve? You ought to be ashamed of yourself out here on this picket
line, as good as the Company has been to you. They just can't
stand this. We are not going to stand for it. Get out of the car."
Griffin remarked that he was not violating the law, and Liggett
retorted, "No, Steve, you are not violating the law. But we are not
going to wait on the law." Voices in the crowd began to yell, "Turn
the car over. Take them out. What are we waiting for?" and
Liggett told the pickets that they had "better" leave and not return.
Someone tore the picket sign off Ely's car and threw it in the back
seat. Ely, the driver of the picket car, pretended that its starter
would not work and the crowd pushed the car to get it started. The
pickets drove down the road, turned around, and came back through
the crowd. Ely stopped and asked one Ralph Marshall, a member
of the mob who was not then a member of the Associated Farmers,
whether Marshall was satisfied that the pickets were leaving.
Marshall replied in the affirmative, suggesting that the pickets keep
going until they reached Mexico, and asked Ely where he was from.
Ely asserted that he was a native Californian and Marshall expressed
surprise, suggesting that Ely belonged in Oklahoma. The Federal
pickets then proceeded to Martin's house, while the members of the
mob drove up and down the streets of Corcoran blowing their auto-
mobile horns.
Subsequently, the Federal appealed to the Governor of California
and to local peace authorities for protection of the pickets and early
in February 1939 picketing was resumed. The record does not dis-
close how long it continued.
While there are conflicts in the testimony of the numerous witnesses
who described these events at the hearing, the foregoing is substan-
tially uncontroverted. The issue is whether the Boswell Company
and/or the Associated Farmers were the actors in thus interfering
with the pickets. There is some evidence adduced by the Board to the
effect that Liggett and others in the crowd referred to it as a crowd
of Associated Farmers members. On the other hand, of 34 persons
identified by witnesses as having been present in the crowd, 7 denied
their presence and 15 were not members of the Associated Farmers
on January 30, 1939. Of the 12 members of the Associated Farmers
proved to have been present in the crowd, but one, Liggett, appears
to have been a leader of the attack on the pickets. The only other
person who appears to have been such a leader was one Robert Wil
bur, who was not a member of the Associated Farmers. Those
members of the crowd who testified at the hearing and were ques-
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioned as to whether their presence in the crowd was attributable to
any invitation, suggestion, or authority from the Associated Farmers
replied in the negative.
While we regard the events of January 30, 1939, with suspicion
and are particularly suspicious of an incredible lack of memory as to
the circumstances surrounding their presence in the crowd which
dispersed the pickets, displayed by the members of the Associated
Farmers who testified at the hearing, we cannot base thereon a finding
that the Associated Farmers organized the mob that drove the pickets
from the vicinity of the Boswell Company's plant or incited the
mob to action. Nor is there evidence to show that the Boswell Com-
pany or any of its officers or employees participated in the disturbance
or was responsible for the dispersal of the pickets. We shall dismiss
the allegations of the amended complaint charging that the Boswell
Company and the Associated Farmers molested the Federal pickets.
C. The Exchange
1. The discharge of Margaret A. Dunn
Margaret A. Dunn, the head operator employed by the Exchange,
was discharged from her position on March 1, 1939. The amended
complaint alleges that her discharge was effected and procured, for
the purpose of discouraging membership in the Federal, by the three
respondents, or, in the alternative, by the Associated Farmers and
the Exchange acting in the interest of the Boswell Company, because
she was suspected of engaging in union activities. The Trial Exam.
iner found that the Exchange, alone, discriminatorily discharged Mrs.
Dunn.
The president, manager, and principal stockholder of the Exchange
is C. H. Glenn whose principal occupation is farming. Prior to 1938
Glenn devoted "some" of his time to superintending the operation of
the Exchange, but delegated the actual management of the business
to a bookkeeper, a lineman, and Mrs. Dunn. Mrs. Dunn, who had
worked for the Exchange for 15 years and had been the head operator
since 1926, when Glenn acquired the business, had almost sole respon-
sibility for running the switchboard and supervising the other opera-
tors, of whom there were 4 or 5.
Glenn is a member of the Associated Farmers, and devotes a
major portion of his time to the operation of a 5200-acre farm where
he raises grain and cotton. He finances his farming operations
through the Boswell Company, and during February and March 1939
was indebted to the Company for crop loans amounting to $25,000 or
$30,000. The Boswell Company, also, is the Exchange's "largest"
telephone subscriber.
J. G. BOSWELL COMPANY ET AL. 1015
On or about February 1, 1939, Mrs. Dunn's daughter Dorothy be-
came acquainted with an attorney employed by the Board, who
introduced her to Prior, the Federal organizer . During the following
week, Dorothy saw Prior publicly in Corcoran several times, and on
one occasion conversed with him while he was stationed with the
pickets in front of the Boswell plant . On that occasion Dorothy and
her sister Margaret were observed talking to Prior by Forrest Riley,
a member of the Associated Farmers who had been active in the mob
which dispersed the Federal pickets on January 30 . Two or three
days later Dorothy was told by one Secord, a Boswell Company em-
ployee, that she was "in the wrong", with the people of Corcoran, and
particularly with William Boswell , because she had been seen at the
picket line . On or about February 15, one Galusha, manager of the
San Joaquin Ginning Company in Corcoran and a friend of Mrs.
Dunn, told her that he had learned from Boyett, president of the
Associated Farmers, that a petition was being circulated in the town
to induce the Exchange to discharge Mrs. Dunn because of her daugh-
ters' having been seen with the pickets and because of a report that,
through Mrs. Dunn, conversations overheard at the telephone office
were being transmitted to the pickets.
On the following day Mrs. Dunn asked Glenn whether he had
heard of the alleged petition for her discharge. Mrs. Dunn testi-
fied that Glenn admitted that he had been "approached by a group
of men" who complained of "leakage" at the Exchange switchboard
and of the Dunn girls' supposed association with union men; and
that Glenn reassured her, stating that her work for 15 years had
been satisfactory, and that he was sure the charges against her
were groundless. Mrs. Dunn further testified that she again dis-
cussed this subject with Glenn on or about February 18; that she
then told him of additional rumors reported to her by Galusha,
which had alarmed her ; and that after discussing the situation gen-
erally, Glenn asked her whether it was true that her daughters "were
going out with any of the men." Glenn's testimony was that he
had one such conversation with Mrs. Dunn, in about the middle of
February; that Mrs. Dunn inquired about a petition to have her
discharged, and that he had told her that he had heard nothing about
"any petition of that kind," that he could not in any event "take
cognizance " of such a petition since the Exchange , as a public service
corporation , must remain neutral with respect to labor disputes, and
and that "she needn 't worry." Glenn did not specifically deny that
he had told Mrs. Dunn of an "approach" from a group of men, or
that he had the second conversation with Mrs. Dunn to which she
testified . He admitted , at the hearing, that at the time of their
interview in February he did not intend to discharge Mrs. Dunn.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the morning of March 1 Glenn called Mrs. Dunn into hid
office at the Exchange and asked her to resign from her positiol^
Concerning this interview, Mrs. Dunn testified as follows : Glenn
told her that the reason for his action was "that pressure was being
brought to bear too heavily on him * * * that he just couldn't
stand what was being said * * * they were certainly awful."
Mrs. Dunn insisted upon a more definite explanation and asked
Glenn whether these "awful" things reflected either upon her per-
sonal character or upon her work, to which Glenn replied, "Abso-
lutely not." Finally, Glenn asked Mrs. Dunn whether it was not
true that her daughter Margaret was "keeping company" with Prior.
Glenn testified that in this conversation he told Mrs. Dunn that he
wanted her to resign because Mrs. Woodruff, a fellow operator, had
threatened to quit her job owing to disharmony with Mrs. Dunn;
and because of Mrs. Dunn's "physical condition and the use of liquor
that was so offensive" to other operators employed by the Exchange.
Glenn denied in his testimony that he had referred in any way to
"the labor trouble at the Boswell gin."
Mrs. Dunn refused to tender her resignation and returned to her
work on the morning'of March 1. During the afternoon of that
day she went home. She then telephoned to Glenn and asked him
whether he would permit her to return to work. Glenn told her
that he would consider the matter and notify her of his decision.
That night, Glenn testified, he determined to discharge Mrs. Dunn.
On the following morning he called her on the telephone and told
her not to come to work, remarking that she was "too old for the
work," that she was ill, and that "there had been complaints made
about the service." 47
Meanwhile, at about 5 p. m. on March 1, John Ernest Dunn, Mrs.
Dunn's husband, called upon Glenn at his office. Dunn testified to
the following colloquy : Dunn asked Glenn what he had against the
Dunn family. Glenn replied, "You know there has been trouble,
labor trouble at the Boswell gin" explaining that this "labor trou-
ble" was incidental to an attemptby a union to organize agricultural
laborers in the vicinity. Dunn interrupted with an inquiry as to
why Glenn had discharged his wife, and Glenn replied, "Wait a
"On cross -examination by the respondents ' counsel Mrs. Dunn was asked repeatedly to
fix the date of the conversation in which Glenn mentioned her alleged illness and com-
plaints about her work. She testified that Glenn said these things to her "the second
time ," and fixed the date as March 1. She then denied , however, that on March 1, when
she talked to Glenn in his office , Glenn had mentioned any complaints about the service,
and repeated that it was on "the second day" that Glenn mentioned this subject. We do
not regard her obvious confusion , on cross-examination , respecting the date of this par-
ticular conversation as detracting from the weight of her original testimony that when
Glenn first asked her to resign on March 1, he attributed his action to "pressure * * '•
being brought to bear * * * on him," and "awful" things that were being said.
J. G. BOSWELL COMPANY ET AL. 1017
minute. This all ties in together." He told Dunn that his daugh-
ters had been seen talking to the pickets at the Boswell plant, that
the persons who saw the girls there had become very angry, that
people were saying that the Dunn girls were carrying messages to
the pickets from their mother, that "they" were threatening to ruin
Glenn's business unless he discharged Mrs. Dunn, and that he did
not "know what to do about the whole thing." Dunn retorted that
it was obvious that "they" could not hurt Glenn's telephone business,
remarking that Glenn's farming connections might make him vulner-
able to pressure, and the conversation ended. On the following
morning, Dunn and Glenn had another conversation, concerning
which Dunn testified as follows : Glenn stated that he wished to
correct the impression which Dunn had evidently derived from their
previous conversation as to his reasons for discharging Mrs. Dunn.
He told Dunn that he had discharged Mrs. Dunn "for her own good,"
because of her age, her nervousness, and the condition of her health,
remarking also that Mrs. Dunn had been "having trouble" with the
other operators employed by the Exchange. Dunn inquired about
the rumored petition for Mrs. Dunn's discharge and Glenn denied
that there was any such petition, but stated that nine men in the
community had called upon him and demanded that he discharge
Mrs. Dunn. Glenn's testimony concerning his two conversations
with Dunn corroborates Dunn's version in significant particulars.
He admitted at the hearing that he had discussed with Dunn the
labor dispute affecting the Boswell Company and that he had
deplored as "unfortunate" the Dunn girls' visit to the picket line.
Glenn denied that he had said that the labor trouble and Mrs. Dunn's
discharge "tied in together," claiming that he told him on March 1
that he had discharged Mrs. Dunn because of her physical condition,
her alleged addiction to liquor, and because he was forced to decide
whether to retain Mrs. Dunn or Mrs. Woodruff in his employ. He
admitted, however, that he had told Dunn that a "friend," whom he
identified at the hearing as Blakely Crary, cashier of the Corcoran
bank, had informed him that a group of eight or nine men in the
community were discussing a petition for Mrs. Dunn's discharge.
Like Dunn, Glenn testified that Dunn closed the interview of March
1 with the insinuation, to which Glenn admittedly made no rejoinder
at the time, that, as a farmer , rather than as the manager of a public
service corporation, Glenn was succumbing to community pressure.
The Trial Examiner, who commented in his Intermediate Report
upon Glenn's "almost apologetic" demeanor on the stand, gave full
credence to the testimony of the Dunns in so far as their account of
the foregoing conversations differed from Glenn's. The record fully
justifies this conclusion as to the relative credibility of the witnesses
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in question. We find that Glenn made the various statements in
February and on March 1 and 2 to which Mrs. Dunn and her husband
testified.
The Exchange contends that Mrs. Dunn was discharged because
of, (1) her physical condition; (2) her alleged habit of drinking
wine while at work ; (3) alleged dissension which she created among
the other employees of the Exchange; and (4) alleged numerous
complaints from subscribers about her work. We find that the
evidence does not support these contentions.
Mrs. Dunn was 46 years old at the time of the hearing. In 1936
she had been ill, but she continued to work at the Exchange switch-
board. During the year preceding her discharge, she had, from time
to time, experienced pain while on duty. Glenn testified that during
this period Mrs.. Dunn displayed considerable nervousness, was obliged
to brace herself with a pillow when sitting at the switchboard, and
started to drink, occasionally doing so while on duty. Mrs. Dunn
admitted at the hearing that several months prior thereto she had
told Glenn that she drank four glasses of port wine daily for her
health. She denied, however, that she ever drank while on duty.48
Glenn did not testify that he had ever observed her drinking at the
Exchange office, but claimed, merely, that he had smelled alcohol on
her breath from time to time. However, there is no evidence that
he ever admonished Mrs. Dunn on this account, or otherwise indi-
cated that his observation that she had. been drinking caused him
concern. On the contrary, Glenn testified to only two conversations
with Mrs. Dunn in which her alleged drinking habit was mentioned.
He testified that on the first occasion, over a year prior to the hear-
ing, Mrs. Dunn volunteered the information that she was drinking
port wine on her physician's advice. Glenn admitted at the hearing
that he did not comment when Mrs. Dunn told him this. Glenn
testified that in a second conversation, in November 1938, he told
Mrs. Dunn that the other operators were complaining of her drink-
ing. Mrs. Dunn did not testify concerning these conversations.
From all the evidence it is clear that Mrs. Dunn had not been in good
health for a year or more prior to her discharge and that she drank
wine for medicinal purposes. The evidence is insufficient, however,
to justify the inference that Mrs. Dunn was physically unable to
perform her work, that she had an offensive drinking habit, or that
she was considered by Glenn to have such a habit.
As to the "dissension" among the telephone operators allegedly
caused by Mrs. Dunn, Glenn testified that he had once found Mrs.
Dunn and Lillian Fowler, another operator, in tears; that in Novem-
" Except on one occasion when Glenn's wife gave Mrs. Dunn a drink 15 minutes before
Mrs. Dunn went off duty.
J. G. BOSWELL COMPANY ET AL. 1019
ber 1938 he had told Mrs. Dunn that Mrs. Woodruff, another oper-
ator, had threatened to resign because she "couldn't stand the dis-
sension that was going on in the office"; that in January 1939 he
had told Mrs. Dunn "that the girls were complaining" and that the
"dissension" in the office must stop; and that on March 1, before he
asked Mrs. Dunn for her resignation, Mrs. Woodruff had announced
her intention to resign. There is no evidence to show that Mrs.
Dunn was to blame for the alleged "dissension" among the employees
of the Exchange, or that Glenn considered her responsible for this
situation. Indeed, as Glenn himself testified, he admitted to John
Dunn during their conversation on March 1 that the probable cause
of the trouble among the operators was that Glenn had failed to
instruct them clearly as to who, among them, had supervisory
authority over the others.
As to the alleged complaints from subscribers about unsatisfactory
service rendered by Mrs. Dunn, Glenn testified that he had received
such complaints in increasing volume during the 18 months preced-
ing March 1, 1939. With respect to this, again, the evidence consists
of little more than Glenn's general assertions. Glenn named eight
persons from, whom, he claimed, he had received complaints about
Mrs. Dunn's service. One of these was Albert Armour, an official
of the Boswell Company; another was Blakely Crary, cashier of the
local bank and a member of the Associated Farmers. The only spe-
cific complaint made by Armour, to which Glenn testified, was not
concerning Mrs. Dunn's claimed incompetence as an operator but
concerning her friendship with Galusha, the manager of the Boswell
Company's local competitor in the cotton processing business. Glenn
understood that the Boswell Company objected to Mrs. Dunn's asso-
ciation with Galusha because of the possibility of the business secrets
being overheard at the Exchange office and communicated to a com-
petitor. Glenn testified that he reported this complaint to Mrs.
Dunn in January 1939. It *as the only complaint from a subscriber
which he claimed to have transmitted to Mrs. Dunn at any time. The
only subscriber called by the Exchange to testify with respect to
Mrs. Dunn's alleged inefficiency was Crary, who testified that he knew
Mrs. Dunn and recognized her voice over the telephone ;40 that he
uses the telephone 20 or 30 times a day; that on 3 or 5 occasions
during the 2 years preceding March 1, 1939, he had complained to
Glenn about the service rendered by Mrs. Dunn at the switchboard;
and that during January 1939 he had told Glenn that a group of
people at a dinner party which he attended had discussed Mrs. Dunn's
poor service at the Exchange office and talked of petitioning the
"He was unable to state, however, whether she was usually on duty during the day or
during the night.
1020 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
Railroad Commission to have Mrs. Dunn discharged. On, cross--
examination, Crary, who had been a bank officer in the community
for 9 years, was unable to remember the identity of any of the per-
sons at this dinner party except his wife. Although both Glenn and
Crary testified that this party, and Crary's report thereof to Glenn,
occurred about the first of January 1939, Glenn did not inform Mrs.
Dunn of the alleged complaints about her service reported by Crary
when he talked to her during the last week in January about
Armour's objection to her association with Galusha.
Although Glenn insisted, at the hearing, that he had received more
complaints about Mrs. Dunn than about any other operator during
the period since July 1938, he admitted that "generally speaking" he
is accustomed to receive complaints from subscribers about all the
operators and about the Exchange's service generally. In view of
certain mechanical defects in the equipment of the Exchange, its
subscribers frequently receive unsatisfactory service which is not
actually the fault of the operators. The Exchange uses a 13-year-
old switchboard which has no device to notify the operators auto-
matically when a conversation terminates; consequently, it is neces-
sary for the operators to listen to or interrupt conversations with
inquiries in order to determine when to disconnect the wires. More-
over, the Exchange continually has trouble with crossed wires, due
to wear in the aerial cables. On occasion this condition has not
been located and remedied for as long as a month, and just prior to
January 1, 1939, the Exchange had experienced unusual difficulty with
crossed wires. Mrs. Dunn admitted at the hearing that during her
long service with the Exchange she had had "words" with sub-
scribers on numerous occasions, and alluded specifically to one occa-'
sion when she had requested Crary to "control his temper so she
could give him good service." She denied that she had had any
more trouble with subscribers' complaints than other operators and
testified that Glenn had never spoken to her of service complaints
prior to March 1939. Her testimony in this respect was corroborated
by Glenn's.
There was no evidence whatsoever indicating the nature of Mrs.
Dunn's alleg€d shortcomings as a switchboard operator. We find
it difficult to believe that Glenn 'would have kept Mrs. Dunn "in her
responsible position as head operator for a period of 18 months,
without any admonition or warning, if, in fact, she was so incom-
petent that the subscribers of the Exchange singled her out during
this period for criticism and complaint. Finally, Glenn admitted
to Mrs. Dunn, in February and again on March 1, that her work
was satisfactory. In view of this evidence we do not believe that
there was, in fact, any basis for criticism of Mrs. Dunn's work, or
that Glenn considered her inefficient.
J. G. BOSWELL COMPANY ET AL. 1021
As the episode of January 30, 1939 demonstrates, a large number
of the residents of Corcoran including persons who were connected
with the Boswell Company and the Associated Farmers were hostile
to the Federal and were particularly inflamed against the pickets,
at a time immediately preceding Mrs. Dunn's discharge., Dorothy
and Margaret Dunn had been seen with Prior and at the picket line
shortly following the disturbance of January 30, and Dorothy and
her mother thereupon received warnings of public resentment.
Glenn's own admissions to the Dunns indicate his belief that certain
persons in the community had, mistakenly or otherwise, linked Mrs.
Dunn and her daughters with the Federal pickets, and his sympathy
with the community's opposition to a union movement which, he
believed, threatened his economic interests as a farmer. Although
Glenn claimed, at the hearing, that all Mrs. Dunn's alleged short-
comings and the complaints about her work antedated her discharge
by several months or longer, he admitted that his decision to dis-
charge her was not formed until after the attack on the pickets and
the Dunn girls' visit to the picket line. On March 1 Glenn con-
fessed to the Dunns that he was acting under pressure exerted by
persons who resented the Dunn girls' association with union men
and Mrs. Dunn's supposed assistance to the Federal.
In view of these facts, and the lack of convincing evidence to sup-
port the Exchange's asserted defenses, we find that in discharging
Mrs. Dunn the Exchange acceded to the desires of a group of local
citizens who sought Mrs. Dunn's discharge because of her alleged
union sympathies and activity. By discharging Mrs. Dunn in re-
sponse to this pressure, the Exchange discriminated with respect to
her hire and tenure of employment, thereby discouraging member-
ship in the Federal as well as in labor organizations generally.
By this conduct the Exchange interfered with, restrained, and
coerced its employees and the employees of the Boswell Company
in the exerci'e of the rights guaranteed in Section 7 of the Act.
The evidence does not show that either the Boswell Company or
the Associated Farmers, as distinguished from certain of their em-
ployees, members, and sympathizers in the community, was respon-
sible for the pressure which induced Glenn to discharge Mrs. Dunn.
We shall, therefore, dismiss the complaint in so far as it alleges that
the Associated Farmers and the Company caused the discharge of
Mrs. Dunn.
2. The refusal to reinstate Margaret A. Dunn
The complaint alleges that the three respondents, or, in the alter-
native, the Associated Farmers and the Exchange acting in the
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interest of the Boswell Company, refused to reinstate or permit the
reinstatement of Mrs. Dunn to her position with the Exchange be-
cause she filed charges with the Board. The Trial Examiner
sustained this allegation as to the Exchange.
On March 14, 1939, Mrs. Dunn filed a charge with the Board's
Regional Office for the Twentieth Region (San Francisco, Cali-
fornia) alleging that the Exchange, in discharging her, had engaged
in unfair labor practices within the meaning of Section 8 (1) and
(3) of the Act. On or about March 21 Mrs. Dunn asked Forrest
Riley, a member of the Associated Farmers, whether he would ap-
pear as a witness for her at a Board hearing of her case. Riley
anathematized the Board and told Mrs. Dunn that she "might as
well have a revolution as to have the National Labor Relations Board
come down here," that "they" would not tolerate the Board's "but-
ting into their affairs" in Corcoran, and that, if the Board ordered
the Exchange to reinstate Mrs. Dunn, he would "take out his phone"
and influence other people to follow his example. Mrs. Dunn sug-
gested to Riley that the persons who had induced Glenn to discharge
her should induce him to reinstate her to her position.
On the same day Mrs. Dunn also mentioned the charge filed by
her to Russel Slaybaugh, a member of the Associated Farmers, who
informed her that it would cause an "upheaval" and hurt many
people in the town if she insisted upon a Board hearing. Mrs. Dunn
told Slaybaugh that under the circumstances- she would withdraw
her charge. Subsequently Mrs. Dunn told Boyett, the president of
the Associated Farmers, of her conversations with Riley and Slay-
baugh and of her decision to withdraw her charge. Boyett told her
that he would try to obtain her reinstatement. Later that day Mrs.
Dunn telegraphed the Regional Director' for the Twentieth Region,
"Do not send representative * * * Everything satisfactory."
On April 4, 1939, Mrs. Dunn wrote a letter to the Regional Director
for the Twentieth Region stating that-her case had not been
satisfactorily settled, inasmuch as she was not yet reinstated.
About a week later Galusha told Mrs. Dunn that he had learned
from Boyett that some 40 or more persons in the community had
threatened, if Mrs. Dunn prosecuted her case before the Board, to
injure, through their business connections, any witness who might
testify for Mrs. Dunn, as well as her husband, her daughter, and her
two sons who were employed in Corcoran and its vicinity. On the
following evening Boyett told Mrs..Dunn that the reports she had
received from Galusha were true, that he personally regretted the
situation, but that people were very indignant, and that "it was
going to cause an awful lot of hurt, friend pitted against friend,
J. G. BOSWELL COMPANY ET AL. 1023
and it would just cause an awful lot of discord in the town of Cor-
coran . Thereupon, with Boyett's assistance, Mrs. Dunn drafted
the following letter which was sent to the Twentieth Regional Office :
I would like very much to have you drop my case against
the Corcoran Telephone Exchange, as there are too many per-
sonal friends, as well as members of my family, involved. We
feel sure a satisfactory settlement will be made in a short time.
We feel you would help us more by dropping the case than
continuing it. I will not be here ,for interviews with anyone.60
On May 4, 1939, the Federal filed with the Board's Twenty-first
Regional Office the fourth amended charge in this proceeding, join-
ing the Exchange as a party respondent and alleging that the respon-
dents had engaged in unfair labor practices with respect to Mrs
Dunn. At the hearing Mrs. Dunn and her husband and daughter
testified under subpena.
It is clear that Mrs. Dunn attempted to withdraw her charge, filed
with the Board on March 14, 1939, because she was intimidated by
certain members of the Associated Farmers. There is no evidence
to show, however, that either the Associated Farmers or the Boswell
Company was responsible for the above-described conduct of Riley,
Slaybaugh, and Boyett. Nor does the evidence indicate that Glenn's
failure to reinstate Mrs. Dunn was caused by her action in filing
charges with the Board. We shall, therefore, dismiss the complaint
in so far as it alleges that the respondents discriminated against
Mrs. Dunn because she filed charges under the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the Boswell Company and the Ex-
change set forth in Section III, above, occurring in connection with
the operations of the said respondents described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, com-
merce, and communication among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the respondents , the Boswell Company and the
Exchange , have engaged in unfair labor practices , we shall order the
said respondents to cease and desist therefrom . We shall also order
said respondents to take certain affirmative action which we deem
necessary to effectuate the policies of the Act.
e° Following the hearing in the instant proceedings, on December 12, 1939, this charge
was withdrawn with the consent of the Regional Director for the Twentieth Region.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that the Boswell Company discriminated with
respect to the hire and tenure of employment of Elgin Ely, L. A. Spear,
R. K. Martin, 0. L. Farr, H. N. Wingo, George J. Andrade, and E. C.
Powell, because of their membership in the Federal, and thereby, dis-
couraged membership in a labor organization and interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act. To remedy these-unfair labor
practices so as to effectuate the policies of the Act, we shall order
the Boswell Company to offer to these employees immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges.
We shall further order the Boswell Company to maker whole Ely,
Spear, Martin, Farr, Wingo, Andrade, and Powell for any loss of pay
they have suffered by reason of its discrimination against them by
payment to each of them of a sum of money equal to that which he
normally would have earned as wages from the date of said discrimina-
tion 51 to the date of the offer of reinstatement, less his net earn-
ings 62 during such portions of said period when he would normally
have been working for the Boswell Company I3 and less any sums
already paid to these employees by the Boswell Company for days of
work subsequent to November 18, 1938, when they were not actually
working at its plant.
The Boswell Company contends that Elgin Ely is not entitled to be
reinstated to its employ because, as it claims, he stated at the hearing
that he was unwilling to accept reinstatement. At the conclusion of
his direct examination by counsel for the Board, Ely was asked
whether he would accept employment with the Boswell Company
if the Board should order his reinstatement. He replied, apparently
with some hesitation, "Yes." Counsel for the respondents then inter-
rogated him as to why his reply had been hesitant, and whether he
wished to qualify his answer. Ely replied that he had not been satis-
fied with the conditions of his employment with the Boswell Com-
pany, and that had been his reason for joining the Federal. We do
61 In the case of Ely, the date of the discrimination is fixed by the registered letter sent
to him by the Boswell Company , as November 26, 1938. In the case of the others, the date
in question is November 18, 1938, when the original discrimination occurred.
sa 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 the unlawful
discrimination against him 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 Sawm ill Workers Union, Local 2590 , 8 N. L R. B 440.
Monies received for work performed upon Federal , State, county , municipal , or other
work-relief projects shall be considered as earnings . See Republic Steel Corporation v.
National Labor Relations Board, 311 U. S. 7.
53 Thus, there shall not be deducted from the back-pay awards net earnings during the
slack seasons when the employees in question would not normally have been working for
the Boswell Company.
J. Q. BOSWELL COMPANY ET AL . 1025
not interpret Ely's -testimony as signifying an intention to refuse an
offer of reinstatement.
The Boswell Company contends also that Farr obtained other
regular and substantially equivalent employment subsequent to the
termination of his employment by the Company, and that he is thus
ineligible for reinstatement. Between November 18, 1938, the date
of the discrimination against him, and May 22, 1939, when he testified
at the hearing, Farr had worked at but a few odd jobs, earning about
$15. It appears that at the time of the hearing Farr was about to
enter upon new employment which he had secured in another town.
Farr testified, however, that he would be willing to accept reinstate-
ment to his position with the Boswell Company. The fact that
Farr's prospective employment was located in a town at some distance
from his residence indicates that it was not substantially equivalent
to his employment with the Boswell Company.54 There was no other
evidence bearing upon the character of his new position. We find
that Farr has not since the discrimination against him by the Boswell
Company obtained other regular and substantially equivalent
employment.
Even were it true, as the Boswell Company contends, that Farr
had obtained other regular and substantially equivalent employment
we would nevertheless in the exercise of the authority granted by
Section 10 (c) of the -Act, order his reinstatement with back pay,
since we find that such remedial order is necessary to assure effectively
the right of self-organization to the Boswell Company's employees
and thus effectuate the policies of the Act.55
Subsequent to the termination of his employment by the Boswell
Company, Powell had a finger amputated, as the result of an injury
received in the Boswell Company's employ. He was given a perma-
nent disability rating by the Industrial Accident Commission of
California and received a lump sum compensation payment of
approximately $1,143.45, computed on the basis of $18.15 per week for
63 weeks. The respondents do not contend that Powell is disabled,
by the loss of his finger, to perform the type of work which he form-
54 Matter of Mooresville. Cotton Mills and Local No. 1821 , United Textile Workers of
America, 15 N L. R. B. 416, enf'd as mod. Mooresville Cotton Mills v. National Labor
Relations Board, 110 F. ( 2d) 179 (C. C. A. 4) ; National Labor Relations Board v. Carlisle
Lumber Company, 99 F. (2d ) 533 (C C. A. 9) cert. den . 306 U. S. 646, enf'g Matter of
Carlisle Lumber Company and Lumber d Sawmill Workers' Union , Local 2511 , Onalaska,
Si ashington and Associated Employees of Onalaska , Inc., Intervenor, 7 N. L. R. B 332;
National Labor Relations Board v. Botany Worsted Mills, Inc, 106 F. ( 2d) 263 (C. C. A. 3),
enf'g as mod . and remanding [for further determination ] Matter of Botany Worsted
Mills and Textile Workers Organizing Committee, 4 N. L. R. B 292.
55 See Phelps Dodge Corporation v National Labor Relations Board, 313 U. S. 177, aff g
as mod. 113 F. (2d) 202 (C. C. A 2), enf'g as mod Matter of Phelps Dodge Corporation,
a corporation and International Union of Mine, Mill and Smelter Workers, Local No. 80,
19 N L R. B. 547; Matter of Ford Motor Company and International Union, United Auto-
mobile Workers of America, Local Union No. 249, 31 N. L R. B. 994.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erly performed in the Boswell Company's employ. He is not, there-
fore, deprived by his disability of his right to reinstatement to his
former or a substantially 'equivalent position. Nor can Powell's
workmen's compensation award be regarded as "earnings" deductible
from the sum payable to him by the Boswell Company to make him
whole for that which he would have earned, but for its discrimination
against him.58
We have found that the Boswell Company did not discriminate
with respect to the hire and tenure of employment of James Gilmore,
Boyd Ely, Walter Winslow, W. R. Johnston, Stephen J. Griffin, or
Eugene Clark Ely. We shall, accordingly, dismiss the amended com-
plaint in so far as it alleges such discrimination. However, the Bos-
well Company has interfered with, restrained, and coerced these em-
ployees in the exercise of the rights guaranteed in the Act and, in
view of the Company's attitude toward the Federal and its members,
there is grave danger that they may be refused reemployment even if
their former or substantially equivalent positions are available. Each
of the employees in question may have concluded, with reason, that so
long as he adheres to the Federal, it will be fruitless for him to apply
to the Boswell Company for work. Under the circumstances, the
Boswell Company's unfair labor practices cannot be remedied without
assuring to these six employees their normal expectancy of employ-
ment. For this reason, and in order to effectuate the policies of the
Act, we shall order the Boswell Company to place their names upon
a preferential list of its employees who are temporarily laid off,
following a system of seniority to such extent as has theretofore been
applied in the conduct of its business and to offer employment to
these employees in their former or in substantially equivalent posi-
tions, as such employment becomes available and before other per-
sons are hired for such work.57
The Boswell Company contends that Gilmore, Boyd Ely, Winslow,
Johnston, Griffin, and Eugene Clark Ely may not benefit by the
exercise of the remedial power of the Board because they are not
"employees" of the Boswell Company within the meaning of Section
2 (3) of the Act. This, it asserts, is the case because "a lay-off was
considered as a termination of employment." 58 In addition, it con-
" Cf Matter of Oil Well Manufacturing Corporation and Employees Mutual Benefit
Association, 14 N. L R B 1114
67 See Matter of American Numbering Machine Company and International Association
of Machinists, District #15, 10 N. L R B 536; Matter of Schwarze Electric Company
and International Union, United A utomobile Workers of America , Local No . 268, 16 N L.
R B 246 , Matter of United Dredging Company and Inland Boatmen 's Division, National
Maritime Union, Gulf Distiiet, affiliated with the C I 0 , 30 N L R B. 739
58 The Boswell Company makes the same contention as to Elgin Ely and the employees
evicted on November 18, 1938 Since, however, the work of these employees ceased because
of the Boswell Company's unfair labor practices, they are clearly its "employees" within
the meaning of Section 2 (3) of the Act.
J. G. BOSWELL COMPANY ET AL. 1027
tends that Gilmore, Boyd Ely, Griffin, and Johnston obtained other
regular and substantially equivalent employment subsequent to the
termination of their employment by the Boswell Company.
Although Section 10 (c) of the Act provides expressly that the
Board's remedial power to require such affirmative action as will ef-
fectuate the policies of the Act shall include the power to order rein-
statement of "employees," it is clear that this section does not pre-
clude the Board from requiring the reinstatement of workers who
may have ceased to be "employees" as defined in Section 2 (3) of
the Act.59 Moreover, the Boswell Company's claim that the individ-
uals in question ceased to be its "employees" upon being laid off is
contrary to the evidence. All these six claimants have been repeatedly
employed by the Boswell Company, over periods of time varying
from 1 to 10 years, with intermittent lay-offs due principally to the
seasonal character of the Company's operations. A majority of the
Company's employees at the Corcoran plant work intermittently; and
the employment records of a large number of them, introduced in
evidence at the hearing, show that it is the Company' s custom to re-
hire the same individuals repeatedly after laying them off. The Bos-
well Company makes no claim that it has finally discharged any of
these six claimants or that any of them has proved unsatisfactory as
an employee. We must assume, therefore, that in the absence of
-discrimination against them on account of their membership in the
Federal, they enjoy, now as in the past, a reasonable expectancy of
being reinstated by the Boswell Company whenever the volume of
its operations increases to the point where work in which they have
customarily been employed becomes available. These individuals,
therefore, did not cease to be employees of the Boswell Company upon
being laid off.60
Nor does the evidence support the Boswell Company's claim that
Gilmore, Boyd Ely, Griffin, and Johnston obtained other regular
and substantially equivalent employment following their lay-offs.
Gilmore and Boyd Ely were employed during the winter of 1938 in
69Phelps Dodge Corporation v National Labor Relations Board , 313 U S 177, aff'g as
mod 113 F ( 2d) 202 (C C A 2 ), enf'g as mod . Matter of Phelps Dodge Corporation, a
corporation, and International Union of Mine , Mill & Smelter Workers , Local No. 30, 19
N. L R B 547
60 Cf Matter of Alaska Packers Association and Alaska Cannery Workers Local No. 5,
Committee for Indust) ial Organization , 7 N. L R B 141 ; National Labor Relations
Boaid v Watemnan Steamship Corporation , 309 U S 206, iev'g mod of Boaid ' s order in
103 F (2d) 157 (C C A 5), enf'g as mod Matter of Waterman Steamship Corporation
and National Maritime Union of America, Engine Division, Mobile Branch , Mobile, Alabama,
7 N L R B 237, Nashville, C. & St. L Ry v Railway Employees ' Department of Ameri-
can Federation of Labor et at , 93 P ( 2d) 340 , cert. den 303 U S 649 ; North Whittier
Heights Citrus Assn . v. National Labor Relations Board, 109 F. ( 2d) 76 (C. C A 9),
cert den 310 U. S 632 , reh den 311 U 5S 724, enf'g Matter of North Whittier Heights
Citrus Association and Ceti us Packing House Workers Union , Local No 21091 , 10 N. L.
R. B 1269
451270-42-vol 35 66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the construction of a high school building in Corcoran. Gilmore
earned $488.90 and Boyd Ely earned something over $100. Griffin,
who had earned about $65 or $70 between November 1938 and the
time of the hearing, testified, on June 1, 1939, that he was then em-
ployed in Hanford, California, as a hay baler, earning 25 cents per
ton, or an average of from $25 to $30 per week. All three men testi-
fied that they would be willing to accept reinstatement to their posi-
tions with the Boswell Company. There is no indication that their
other employment was in any sense regular or substantially equiva-
lent to their employment with the Boswell Company. On the con-
trary, the character of Gilmore's, Ely's, and Griffin's employment
indicates that these jobs merely served to supplement, during slack
seasons or periods between seasons, the work available for them at
the Boswell Company's Corcoran plants' Johnston, like Farr, whose
prospective new employment is discussed above, was about to take a
new job in another town at the time of the hearing. Johnston testi-
fied, however, that he would be willing to accept reinstatement to
his position with the Boswell Company. As in the case of Farr,
there is no evidence indicating that his prospective employment was
I egular or substantially equivalent to his employment with the Bos-
well Company. We find that neither Gilmore, Boyd Ely, Johnston,
nor Griffin has obtained other regular and substantially equivalent
employment since his lay-off by the Boswell Company. Further-
more, as stated above with respect to Farr, even were it true that
Gilmore, Boyd Ely, Griffin, and Johnston had obtained other regular
and substantially equivalent employment we would nevertheless, in
the exercise of the authority granted by Section 10 (c) of the Act,
order their reinstatement as employment becomes available for them,
since we find that such remedial order is necessary to assure effec-
tively the right of self-organization to the Boswell Company's
employees and thus effectuate the policies of the Act 62
Having found,that the Boswell Company has unlawfully failed
to safeguard the members of the Federal in its employ from physical
interruption of their work and threats of assault by its other em-
ployees, we will order the Company to afford all its employees
reasonable protection in its plant at all times from physical inter-
ruption of their work and physical assaults and threats thereof
8' Cf. Matter of Paragon Rubber Co .-American Character Doll Company and Toy and
Novelty Workers Organizing Committee of the C. I. 0 ., 6 N. L. R . B. 23; Matter of Dream-
land Bedding and Upholstery Co., et at ., and United Furniture Workers of America , 0. I. 0.
# 262, Furniture Workers Union #151,1, A. F. of L.; 24 N L . R. B. 306.
62 See Phelps Dodge Corporation v National Labor Relations Board, 313 U. S. 177, aff g
as mod 113 F. (2d) 202 (C. C. A 2), enf'g as mod . Matter of Phelps Dodge Corporation,
a corporation and International Union of Mine , Mill d Smelter Workers, Local-No. 30, 19
N L R. B 547; Matter of Ford Motor Company and International Union, United Auto•
mobile Workers of America , Local Union No. 249, 31 N. L. R. B. 994.
J. G. BOSWELL COMPANY ET AL. 1029
directed at discouraging membership in, or activities on behalf of,
the Federal, or any other labor organization.e3
We have found that the Boswell Company dominated and inter-
fered with the formation and administration of the Association and
contributed financial and other support to it. Since the Association
has never been recognized by the Boswell Company as the represen-
tative of its employees for the purposes of collective bargaining, it
will not be necessary to order the disestablishment of the Association
as such representative. However, we shall order the Boswell Com-
pany to • refuse to recognize the Association as the representative of
any of its employees for the purposes of dealing with it concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment.
We have found that the Exchange discriminated with respect to
the hire and tenure of employment of Margaret A. Dunn and thereby
discouraged membership in a labor organization and interfered with,
restrained, and coerced employees in the exercise of the rights guar-
anteed in, the Act. We shall order the Exchange to offer Mrs. Dunn
immediate and full reinstatement to her former or a substantially
equivalent position, without prejudice to her seniority and other
rights and privileges. We shall further order the Exchange to make
Mrs. Dunn whole for any loss of pay she has suffered by reason of
its discrimination against her by payment to her of a sum of money
equal to that which she normally would have earned as wages from
March 2, 1939, the date of the discrimination against her, to the date
of the offer of reinstatement less her net earnings 164 during said
period.
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. Cotton Products and Grain Mill Workers Union Local No.
21798, A. F. L., and J. G. Boswell Company Employees' Association
of Corcoran and Tipton, California, are labor organizations, within
the meaning of Section 2 (5) of the Act.
63 National Labor Relations Board v. General Motors Corp ., 116 F. ( 2d) 306 (C C. A. 7)
enf'g Matter of General Motors Corporation et al. and International Union, United Auto-
mobile Workers of America, Local No. 146, 14 N. L. R. B. 113; National Labor Relations
Board v. Riverside Mfg. Co. 119 F. (2d) 302 (C. C A. 5), enf'g as mod . Matter of River-
side Manufacturing Company and Amalgamated Clothing Workers of America , 20 N. L.
R. B. 394; National Labor Relations Board v. Ford Motor Company, 119 F. (2d) 326
(C. C. A. 5 ), reh. den. May 31, 1941, enf 'g as mod. Matter of Ford Motor Company and
International Union, United Automobile Workers of America, affiliated with the A . F. of L.,
et al., 26 N. L . R. B. 322.
04 See footnote 52, supra.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By interfering with, restraining, and coercing their employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
Boswell Company and the Exchange have and each of them has en-
gaged in and is engaging in unfair labor practices, within the meaning
of Section 8 (1) of the Act.
3. By dominating and interfering with the formation and admin-
istration of J. G. Boswell Company Employees' Association of Cor-
coran and Tipton, California, and by contributing financial and
other support to said organization, the Boswell Company has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of their employees and thereby discouraging membership in
Cotton Products and Grain Mill Workers Union Local No. 21798,
A. F. L., the Boswell Company and the Exchange have and each of
them has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (3) 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. The Associated Farmers has not engaged in unfair labor prac-
tices, within the meaning of Section 8 (1), (3), or (4) of the Act.
7. Neither the Boswell Company nor the Exchange has engaged
in unfair labor practices, within the meaning of Section 8 (4) of the
Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that :
I. The respondent, J. G. Boswell Company, Corcoran, California,
and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or, interfering with the administration of J. G.
Boswell Company Employees' Association of Corcoran and Tipton,
California, or with the formation or administration of any other
labor organization of its employees, and from contributing financial
or other support J. G. Boswell Company Employees' Association of
Corcoran and Tipton, California, or to any other labor organization
of its employees ;
(b) Discouraging membership in Cotton Products and Grain Mill
Workers Union Local No. 21798, A. F. l?.., or any other labor organiza-
tion of its employees, by evicting from its plant, discharging, laying
J. G. BOSWELL COMPANY ET AL. 1031
off, and/or refusing to reinstate any of its employees or in any other
manner. discriminating in regard to their hire and tenure of em-
ployment, or any term or condition of their employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the 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 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) Afford all' its employees, at all times reasonable protection in
its plant in Corcoran, California, from physical interruption of their
work and physical assaults or threats thereof directed at discouraging
membership in or activities on behalf of Cotton Products and Grain
Mill Workers Union Local No. 21798, A. F. L., or any other labor
organization ;
(b) Offer to L. A. Spear, R. K. Martin, H. N. Wingo, George J.
Andrade, O. L. Farr, E. C. Powell, and Elgin Ely immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and
privileges ;
(c) Make whole said L. A. Spear, R. K. Martin, H. N. Wingo,
George J. Andrade, O. L. Farr, E. C. Powell, and Elgin Ely for any
loss of pay they have suffered by reason of said respondent's dis-
crimination against them by payment to each of them, respectively,
of a sum of money equal to that which he would normally have
earned as wages from the date of such discrimination to the date of
said respondent's offer of reinstatement, less his net earnings 15 during
such portions of said period when he would normally have been work-
ing for said respondent; and less any sums already paid to him by
said respondent for days of work subsequent to November 18, 1938,
when he was not actually working at its plant;
(d) Place James Gilmore, Boyd Ely, Walter Winslow, W. R.
Johnston, Stephen J. Griffin, and Eugene Clark -Ely upon a prefer-
ential list of its employees who are temporarily laid off, following a
system of seniority to such extent as has heretofore been applied in
the conduct of said respondent's business, and offer employment to
them in their former or substantially equivalent positions, as such em-
ployment becomes available and before hiring other persons for such
work ;
45 See footnote 52, supra.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Refuse to recognize J. G. Boswell Company Employees' Asso-
ciation of Corcoran and Tipton, California, as the representative of
any of its employees for the purpose of dealing with said respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, and other conditions of employment;
(f) Post immediately in conspicuous places in and about its plant
at Corcoran, California, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its em-
ployees stating: (1) that said respondent will not engage in the con-
duct from which it ordered to cease and desist in paragraphs I,
1 (a), (b), and (c) of this Order; (2) that said respondent will take
the affirmative action set forth in paragraphs I, 2 (a), (b), (c), (d),
and (e) of this Order; and (3) that said respondent's employees are
free to become or remain members of Cotton Products and Grain Mill
Workers Union Local No. 21798, A. F. L., and that said respondent
will not discriminate against any employee because of membership
or activity in that organization;
(g) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
said respondent has taken to comply herewith.
II. The respondent, Corcoran Telephone Exchange, Corcoran,
California, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Cotton Products and Grain Mill
Workers Union Local No. 21798, A. F. L., or any other labor organiza-
tion by discharging or in any other manner discriminating in regard
to the hire and tenure of employment of its employees or any of them;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or -assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purposes of collective bargaining or other 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 Margaret A. Dunn immediate and full reinstatement
to her former or a substantially equivalent position, without preju-
dice to her seniority and other rights and privileges;
(b) Make whole the said Margaret A. Dunn for any loss of pay
she has suffered by reason of said respondent's discrimination against
her by payment to her of a sum of money equal to that which she
would normally have earned as wages during the period from March
J. G. BOSWELL COMPANY ET AL. 1033
2, 1939, to the date of said respondent's offer of reinstatement less
her net earnings 66 during said period;
(c) Post immediately in and about its place of business at Corco-
ran, California, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating : (1) that said respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraphs II, 1 (a)
and (b) of this Order; (2) that said respondent will take the affirm-
ative action set forth in paragraphs II, 2 (a) and (b) of this Order;
and (3) that said respondent will not discriminate against any em-
ployee because of membership in or activity on behalf of Cotton
Products and Grain Mill Workers Union Local No. 21798, A. F. L.,
or any other labor organization;
(d) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
said respondent has taken to comply herewith.
III. The amended complaint be, and it hereby is, dismissed in so
far as it alleges that :
1. The respondent, J. G. Boswell Company, engaged in unfair
labor practices within the meaning of Section 8 (3) of the Act with
respect to James Gilmore, Boyd Ely, Walter Winslow, W. R. Johns-
ton, Stephen J. Griffin, Eugene Clark Ely, and Elmer Eller;
2. The respondent, J. G. Boswell Company, engaged in unfair
labor practices with respect to Margaret A. Dunn;
3. The respondent, J. G. Boswell Company, drove certain pickets
from the vicinity of its plant on January 30, 1939;
4. The respondent, J. G. Boswell Company blacklisted members of
Cotton Products and Grain Mill Workers Union Local No. 21798,
A. F. L.;
5. The respondent, Corcoran Telephone Exchange, engaged in
unfair labor practices within the meaning of Section 8 (4) of the
Act;
6. The respondent, Associated Farmers of Kings County, Inc.,
Corcoran, California, engaged in unfair labor practices within the
meaning of Section 8 (1), (3), and (4) of the Act.
APPENDIX A
Supervisory employees of the Boswell Company
The Boswell Company's plant in Corcoran is under the general
management of Louis Robinson. His duties, however, do not include
the ordinary day-to-day hiring and laying off of employees or the
supervision of their work. Superintendence of labor matters at the
b See footnote 52, supra.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,
plant is delegated to Gordon Hammond, who superintends manu-
facturing operations, hires and discharges the production employees,
and maintains their employment records.
During the periods when its gins and mill are in operation the
Company employs, at the Corcoran plant, between 80 and 180 or
more production employees, depending upon the cotton crop. These
employees perform various tasks in the three gin buildings, the oil
mill, the "seed house," the warehouse, the machine shop, and the
yard.
Louis Robinson, asked to "define a foreman so far as the opera-
tions at the plant are concerned," testified, "I would define a fore-
man as Gordon Hammond. He is in charge of everything out there.
* * * I don't know of anybody at the plant that carries the title
of foreman." Nevertheless, it is evident that there must be and are
employees who assist Gordon Hammond in supervising the work of
the 80 to 180 or more employees engaged in numerous tasks in phys-
ically separate locations in the plant. The testimony of Boswell em-
ployees at the hearing, referring to Tom and Joe Hammond, Bill
Robinson, Lloyd, Busby, and others as "foremen" indicates that Louis
Robinson's testimony as to the use of this title may be inaccurate.
Louis Robinson himself admitted, at the hearing, that the Company
has "a large number of employees that direct work on certain jobs,
as long as that particular job is running." The evidence respecting
the particular individuals, detailed infra, shows that they are regu-
larly engaged in supervising the work of other employees in the
various departments in the plant and that their superior rank and
responsibility is recognized both by the Company and by its ordi-
nary employees.
Tom and Joe Hammond. Several witnesses, employed by the Bos-
well Company in ginning and milling operations, identified Tom and
Joe Hammond as the supervisors in the gins and the mill, respec-
tively. These employees had received their orders from Tom and
Joe Hammond and several had been laid off by either Tom or Joe
Hammond. During the November 17 conference in which Federal
representatives complained to Gordon Hammond about the anti-union
conduct of these individuals, Gordon Hammond admitted that he
held them responsible for the execution of his instructions respect-
ing operations in various departments of,the plant. Tom and Joe
Hammond are salaried employees, paid from the Boswell Company's
Los Angeles Office. They clearly occupy the status of supervisors
who would normally be designated as foremen or department super-
intendents. We find that they are supervisory employees of the
Boswell Company.
Bill Robinson was described in the testimony of three ginners as
a. "trouble-shooter" and "foreman" or "subforeman" in the gins.
J. G. BOSWELL COMPANY ET AL. 1035
Robinson repairs and adjusts the machinery in the gin building and
instructs the ginners with respect to the technical performance of
their work . In addition , he appears to have some general supervisory
capacity . The uncontradicted testimony of several employees indi-
cates that they had received their working orders from him when
they were employed in the gins and that he had instructed them
when to report for work and when to stop working. We find that
Bill Robinson is a supervisory employee of the Boswell Company. 87
Rube Lloyd is the Boswell Company's "building superintendent,"
supervising the work of carpenters and construction employees. The
uncontradicted testimony of two employees who had worked
under Lloyd indicates that he gave working orders to them and others
and instructed them when to report for work. Lloyd is customarily
, ent outside the plant in charge of gangs to do certain construction
work. Although Gordon Hammond testified that on such occasions
he selects the men comprising Lloyd's gang and accompanies them
himself to lay out the work, he did not deny that Lloyd actually
supervises the men performing construction work both inside and
outside the plant. Lloyd receives a salary of $200 a month and is
the highest paid "carpenter" employed at the Corcoran plant. We
find that he is a supervisory employee of the Boswell Company.
Kelly Hammond was described in the testimony of Boyd Ely, an
employee in the oil mill, as the supervisor in charge of the night
shift in the mill. The Boswell Company introduced no evidence to
contradict Ely's testimony . We find that Kelly Hammond is a super-
visory employee of the Boswell Company.
Oscar Busby . Two witnesses employed by the Boswell Company
referred to Busby, in their testimony , as the "foreman" in charge of
the machine shop at the plant. Busby has from three to five sub-
ordinates in the machine shop and receives a salary from the Com-
pany's Los Angeles office. Louis Robinson , who described Busby
as an expert mechanic and the highest paid employee in the machine
shop, admitted , at the hearing, that "if anything came up" about
the machine shop he, Robinson , would refer the matter to Gordon
Hammond , who would discuss it with Busby , as the "best qualified
man" in the shop . We find that Busby is a supervisory employee of
the Boswell Company.
61 Cf Matter of Universal Match Corporation and United Match Workers ' Local Indus-
trial Union #180, affiliated with Committee for Inriustlial organization , 23 N L A . B. 226,
footnote 8.