Super-Cold Southwest Co.

National Labor Relations Board - Board Decisions

Jan 12, 1949

81 N.L.R.B. 96 (N.L.R.B. 1949)

In the Matter of SUPER-COLD SOUTHWEST COMPANY and RETAIL,
WHOLESALE & DEPARTMENT STORE UNION, C. I. O.
Case No. 16-C-1435.-Decided January 12, 1949
DECISION
AND
ORDER
On September 15, 1947, Trial Examiner Charles E. Persons issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices 1 and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Respondent's request for oral argument is hereby denied, as the
record and brief adequately present the issues and positions of the
parties.
The Board 2 has considered the rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief filed by the Respondent, and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, with the fol-
lowing additions and modifications.
1. We agree with the Trial Examiner that the Respondent discrimi-
natorily discharged Walter H. Bahn and Lee R. Rainwater in vio-
lation of the Act. As found by the Trial Examiner, the record does
not support the Respondent's contention that Bahn's and Rainwater's
work record was unsatisfactory. The Respondent alleges that the
immediate cause which precipitated their discharge was the fact that
'Section 8 ( 1) and 8 (3) of the National Labor Relations Act, which the Trial Ex-
aminer found was violated, is continued in Section 8 (a) (1) and 8 (a) (3) of the Act,
as amended by the Labor Management Relations Act, 1947.
2 Pursuant to the provisions of Section 3 (b) of the Act, as amended , the National
Labor Relations Board has delegated its powers in connection with this proceeding to a
three-man panel consisting of the undersigned Board Members [Reynolds , Murdock, and
Gray].
81 N. L. R. B., No. 18.
96
SUPER-COLD SOUTHWEST COMPANY 97
Bahn and Rainwater were among the group of employees whom
General Manager Fallon found loafing. But no satisfactory expla-
nation was offered to show why the two complainants were singled
out for discharge of all employees involved. In agreeing with the
Trial Examiner, however, we do not rely on his finding that Fallon's
speech on August 21, 1946, the day of the discharge, was "a thinly
veiled warning to these employees that their jobs would Le insecure
if they persisted in the endeavor" to unionize the plant. Aside from
this speech, there is convincing evidence, as fully set forth in the In-
termediate Report, that at all times material herein, the Respondent
had knowledge of Bahn's and Rainwater's interest in organizing and
promoting the Union, and had evinced animus against them because
of this activity. Thus, Service Manager Zenor told employee Taylor
that "it is too bad that Rainwater and Bahn got mixed up in that
mess just about the time they were getting ready to go out on service.
They should have known they couldn't have gotteli by with the Union
there." In a conversation with employee Elva Word," Fallon stated
that several G. I.'s were trying to raise trouble by starting a union
in the plant, that he was planning to discharge two of them 4
2. We do not agree with the Trial Examiner's finding that the dis-
charge of employees Calvin, Vermillion, Weaver, Moore, and Willis
for failing to obey an order to work overtime was in violation of the
Act. At about 5 p. in., September 27, 1946, Foreman White ordered
all employees in his department to return to the plant at 6 o'clock
for overtime work. The purpose of the order was to tear up an old
floor and lay a new one that night so that there would be no inter-
ruption to business on the following morning. As soon as the order
was issued, several men offered plausible excuses for not returning,
8 The Intermediate Report inadvertently , at one place , mentions August 20, 1946,
instead of August 21 , as the date on which Elva Word applied for a job and was inter-
viewed by Fallon That the Trial Examiner intended August 21 , and not August 20,
is clear from his findings that Word applied for work on August 21 ; that Fallon did not
come to the plant on August 20: and that "twice on that day" (August 21) "both
before and after the discharges , in conversations with Word and Schmidt , Fallon de-
clared that he was prepared to close the doors of Respondent's plant if the Union came
in." We have considered Respondent 's point in its exceptions to the effect that Word's
testimony concerning Fallon's anti -union remarks on August 21, cannot be credited
because the date on his application and on the hiring slip shows August 22, which is
the day Fallon testified he saw Word . As indicated in the Intermediate Report, the
Trial Examiner considered these documents but nevertheless found Word's testimony
credible . In affirming the Trial Examiner , we rely on his opportunity to observe the
demeanor of the witness ; on the fact that the record shows that Word attended the
union meeting on the evening of August 21, at which he reported to Bahn, Rainwater,
and Schmidt the anti-union remarks made by Fallon ; and on the further fact that on
the same evening Schmidt telephoned Fallon concerning the discharge of the complainants
and reduced this conversation to writing.
' Bahn and Rainwater , both veterans , were the only employees discharged at that time.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which were readily accepted by White.' All unexcused employees
returned to work, except the five complainants who instead attended a
union meeting.
In our opinion, the record fails to establish that the overtime order
was discriminatorily issued to prevent the employees from attending
the union meetings Since we find, contrary to the views of the Trial
Examiner, that the order was legally issued and the men had dis-
obeyed, it, the Respondent had a right to exercise its managerial pre-
rogative in ordering their discharge.
3. The Respondent defends employee Taylor's discharge on the
ground that "he had carelessly, if not maliciously" damaged beyond
their repair a certain compressor on which he had been working. We,
like the Trial Examiner, are not convinced that Taylor was guilty of
negligence in his work on the compressor.7 Nor do we believe that the
Respondent's claim of negligence motivated Taylor's discharge.
As set forth in the Intermediate Report, except for the compressor
incident here under consideration, Taylor's work record was com-
pletely free from criticism. He had been rewarded with several pay
increases during his more than 2-year period of employment and had
acted as leadman for some 4 months prior to August 1946. Giving
due consideration to Taylor's work record and the Respondent's need
for skilled mechanics, we are convinced by the record as a whole that
Taylor's active and unconcealed union interest, as set forth in the In-
termediate Report, was responsible for his discharge. We therefore
agree with the Trial Examiner that Taylor's discharge was in vio-
lation of the Act.
4. We further find that by the statements of Service Manager Zenor
to Taylor, the remarks of General Manager Fallon to employee Word,
mentioned above and fully set forth in the Intermediate Report, and
the statement of Foreman Scott that anyone was foolish to vote for
the Union and that if the election went in favor of the Union "they
would all have their salaries cut back to apprentice wages and have to
work for 6 months before they can expect another raise of any kind,"
the Respondent interfered with, restrained, and coerced its employees
in violation of the Act. However, unlike the Trial Examiner, we
" According to the Trial Examiner, one of the five complainants said he did not know
whether he could return or not, and another declared he could not work that night or
the next. Neither, however, offered any specific excuse nor were they actually excused
The remaining three gave no indication that they would not report for overtime work
9 The lumber for the floor was received at 3 p in. that day. Although Respondent
had been trying to obtain it for some time, the necessity for a speedy completion of the
job appears clear
'This view is confirmed by a decision of the U. S. District Court, Northern District of
Texas , involving , inter alia , the same question of negligency by Taylor as is here raised
by the Respondent C R Taylor et al. v. Super-Cold Southwest Company, No 2358
Civil. May 27, 1947.
SUPER-COLD SOUTHWEST COMPANY 99
do not find that other statements mentioned in the Intermediate Re-
port were violative of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Super-Cold Southwest
Company, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Retail, Wholesale & Department
Store Union, C. I. 0., or any other labor organization, by discharging
or refusing to reinstate any of its employees, or by discriminating in
any other manner in regard to their hire and tenure of employment,
or any term or condition of their employment ;
(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 Retail, Wholesale & Department Store Union, C. I. 0.,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Walter H. Bahn, Lee R . Rainwater, and C. R. Taylor
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges;
(b) Make whole the persons named in the preceding paragraph
for any loss of pay they may have suffered by reason of the Respond-
ent's discrimination against them, by payment to each of them of a
sum of money equivalent to the amount which he normally would have
earned as wages during the period from the date of his discharge to
the date of the Respondent's offer of reinstatement, less his net earn-
ings, if any, during said period;
(c) Post at its plant in Dallas, Texas, copies of the notice attached
hereto marked "Appendix A." 8 Copies of such notice, to be furnished
by the Regional Director for the Sixteenth Region, shall , after being
signed by the Respondent's representative, be posted immediately by
the Respondent upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
IIn the event that this Order is enforced by decree of a Court of Appeals , there shall
be inserted in the notice , before the words . "A DECISION AND ORDER " the words : "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
829595-50-vol. 81-8
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply therewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the Respondent discriminatorily
discharged James A. Calvin, Charles B. Vermillion, Charles A.
Weaver, James R. Moore, and John W. Willis.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist RETAIL, WHOLESALE &
DEPARTMENT STORE UNION, C. I. O. or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
Walter A. Bahn
Lee R. Rainwater
C. R. Taylor
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
SUPER-COLD SOUTHWEST COMPANY,
Employer.
Dated---------------- By -------------------------------------
(Representative) ( Title)
NOTE : Any of the above-named employees presently serving in the
Armed Forces of the United States will be offered full reinstatement
SUPER -COLD SOUTHWEST COMPANY 101
upon application in accordance with the Selective Service Act after
discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced or covered by any other material.
INTERMEDIATE REPORT
Elmer P. Davis, Esq., for the Board.
Malone, Lipscomb, .Seal d Shuford, by George E Seal/ and Harry A. Shuford,
Esqs., of Dallas, Tex., for the Respondent.
Mr. Fred H. Schmidt, International Organizer, of Dallas, Tex., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on December 9, 1946, by the Retail,
Wholesale & Department Store Union, CIO, herein called the Union, the National
Labor Relations Board, herein called the Board, by its Regional Director for the
Sixteenth Region (Fort Worth, Texas), issued its complaint dated June 9, 1947,
against the Super-Cold Southwest Company, herein called the Respondent, alleg-
ing that the Respondent has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the second amended charge, the complaint and the notice of hearing'
thereon were duly served upon the Respondent and the Union.
With respect to the unfair labor practices the complaint alleges in substance
that the Respondent: (1) through its named officers, agents and employees has
"vilified, disparaged and expressed disapproval of the Union ; has interrogated
its employees concerning their Union affiliations ; and has urged, persuaded,
threatened and warned its employees to refrain from assisting, becoming mem-
bers of or remaining members of, the Union" thereby interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act; and (2) discharged Walter H. Bahn and Lee R. Rainwater on August
21, 1946, James A. Calvin, Charles B. Vermillion, Charles A. Weaver, James R.
Moore and John W. Willis on August 28, 1946; and C. R. Taylor on October 24,
1946, and has since these dates failed or refused to reinstate them, because they
joined or assisted the Union or engaged in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection.
On or about June 17, 1947, the Respondent duly submitted its answer in which
it admits the facts alleged in the complaint as to its corporate organization and
the nature of its business. that the Union is a labor organization within the
meaning of the Act and that the eight employees named above were discharged
on the dates stated. The answer denies the commission of any unfair labor
practices and states affirmatively that each of the complainants was discharged
for causes which are set forth in its answer.
Pursuant to notice, a hearing was held on July 14, 15, 16, 17, 18, 22 and 23, at
Dallas, Texas, before the undersigned Charles E. Persons, the Trial Examiner
i The original notice of hearing covered representation Case No. 16-R-1965 in addition
to the above-entitled case. The cases had been consolidated by an Order of the Board
duly served upon the parties. Subsequently the cases were severed and the Regional
Office dismissed the representation proceedings. An amended notice of hearing was
issued and duly served on the parties to the effect that "hearing will be had only on the
issues raised by the complaint which was attached" to the original notice of hearing.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duly designated by the Chief Trial Examiner . The Board and the Respondent
were represented by counsel and the Union by one of its officials. Full opportun-
ity to be heard, to examine and cross-examine witnesses and to introduce evidence
bearing on the issues was afforded all parties . At the beginning of the hearing
the Respondent presented a motion for a bill of particulars . This motion was
denied with two provisos : That reasonable continuance would be granted on the
conclusion of the Board ' s presentation in case the Respondent found itself
surprised by the evidence presented and that any Board witness whom the
Respondent desired would be recalled for further cross-examination. At the
close of the Board's presentation continuances were granted on Respondent's
request. At the conclusion of the Board 's case the Respondent moved to dismiss
the complaint and separate paragraphs therein for failure of proof and other
reasons stated . These motions were denied without prejudice to their renewal
later. They were renewed at the close of the hearing and were then taken
under advisement by the undersigned and are now disposed of by the findings,
conclusions and recommendations in this Intermediate Report. The Respondent
further renewed at this time certain motions , made during the course of the hear-
ing, to strike specified testimony . These motions were denied The Board moved
to conform the pleadings to the proof in matters of detail not touching substan-
tive matters . This motion was granted . All parties waived the presentation of
oral argument before the undersigned . Although they were duly advised that
they had the privilege of presenting briefs for the consideration of the Trial
Examiner , none has been received.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BI-SINESS OF THE RESPONDENT 2
The Respondent, Super-Cold Southwest Company, is a corporation duly organ-
ized under the laws of the State of Texas. It has its principal office and plant
in Dallas, Texas, and a branch office in Houston, Texas. It is engaged in the
manufacture, reconditioning, sale, distribution and servicing of commercial re-
frigerators and compression units. During the calendar year of 1945 the
Respondent purchased equipment in the State of California valued at $510,799
and manufactured in the Dallas plant equipment sold for $97,480. Of the equip-
ment purchased in California $5,451 worth and of that produced in the Dallas
plant $4,041, in value, was sold in interstate commerce. In the calendar year
1946 equipment with a value of $721,479 was purchased in the State of California
and products with a value of $436,450 were manufactured in the Dallas plant.
Of the equipment purchased in California, $51,829 in value and of that produced
in Dallas $21,754 in value, was sold in interstate commerce. For the purposes of
this proceeding the Respondent admits, and on the foregoing data, the under-
signed finds, that it is engaged in commerce within the meaning of the Act.
It. THE ORGANIZATION INVOLVED
Retail, Wholesale & Department Store Union, CIO, is a labor organization
which admits to its membership employees of the Respondent.
2 These findings are based on a stipulation of the parties entered in the record, on
allegations in the complaint admitted by the Respondent in its answer and on uncontro-
verted testimony.
SUPER -COLD SOUTHWEST COMPANY
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
103
Respondent's plant is located in two buildings. The main building has three
floors. On the first are the showrooms and the offices of General Manager Fran-
cis C. Fallon and that of his secretary. On the second floor front are the offices
of the bookkeeping and purchasing departments , of the wholesale sales manager
and of the retail sales manager. At the time with which this proceeding is con-
cerned, Robert Fallon, son of F C. Fallon, was purchasing agent. On the third
floor was located the reconditioning or assembly department under Foreman A.
F. Cowan;' the paint shop under Foreman Hugh Alexander ; the sheet metal de-
partment under Foreman David Wolfe; and the mechanical department under
Foreman Floyd Scott The second building, located two doors away, was a
two-story building entirely devoted to the woodworking and carpenter shop.
These operations were under Foreman Henry White. Other officials were H I.
Meade, assistant to F C. Fallon ; J. C. Bownds, office manager ; A. Davis, gen-
eral service manager ; E. N Nash, sales manager ; and All in H. 'tenor, service
manager in Dallas. The Respondent maintains a branch office in Houston. This
proceeding, however, is not concerned with it. In the various departments about
60 production workers were employed ; there were 6 or 7 office employees.
Union activities were initiated about the middle of August 1946, when ar-
rangements were made for a meeting on August 20, at CIO headquarters in
Dallas. Eighteen employees met with Fred H. Schmidt, international organizer
for the Union and its representative of record fn the instant proceeding. All
those present signed application cards for membership in the Union. Employees
James A. 'Moore and Walter H. Bahn were elected as joint chairmen or spokes-
men for the group. On August 21, 1946, by telephone and by letter dated Au-
gust 22, Schmidt communicated with General Manager Fallon claiming to repre-
sent a majority of the employees and requesting a conference for the purpose
of discussion. Schmidt stated also that he was petitioning the Board to certify
the Union as exclusive bargaining representative. Fallon replied promptly,
stating that the Respondent "was unwilling to recognize [the] Union or to bargain
with it, until you have furnished satisfactory evidence that you do, in fact,
represent a majority of the employees who would constitute a proper unit." In
view of the Union's petition to the Board, Fallon stated that "any proposed meet-
ing can now be deferred until the certification proceeding has been concluded."
Bahn and Rainwater were discharged on August 21 and five employees in the
carpenter shop on August 28, 1946. A second union meeting had been held
on the evening of August 27, 1946. The Union filed a Petition for Certification
of Representatives on September 26, 1946, and an election, in which the Union
was narrowly defeated, was held under supervision of the Board on October 22,
1946 Thereafter on October 24, 1940. employee C. R. Taylor was discharged.
B. The discriminatory discharges
1. Walter H. Bahn and Lee R. Rainwater
Bahn was hired by the Respondent on January 14, 1946. He was discharged
on August 21, 1946. His employment began shortly after he was discharged
3 Cowan was familiarly known as Uncle Jack and is frequently referred to in the
record by that name.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from service in the Navy and his status with the Respondent was that of a
trainee under the G. I. Bill of Rights. Bahn was first assigned to work in the
carpenter shop but was soon transferred to the mechanical department. Here
he came under the immediate supervision of Leadman C. R. Taylor and, late in
his service there, of Foreman Floyd Scott. When assigned duties as helper in
the service department he came under Alvin Zenor as service manager and of
A. Davis, the general service manager.
About a week before his discharge Bahn was approached by Davis who stated
that he desired to assign him to a truck doing service work. Bahn testified as
to the change involved in his work, as follows :
Well, in the shop I was doing most everything-welding and general over-
hauling of refrigeration compressors and installation of coils and com-
pressors in the new refrigerators and the work I would have done on the
truck would have been, to my understanding, delivery of boxes, installation
of refrigerator boxes and service work, taking service calls on boxes.
Davis at the time asked Bahn if he could move to Dallas. Bahn replied that
he had bought a home in Lancaster, situated some 14 miles from Dallas, and could
not easily do so. He suggested he could take calls over the long distance tele-
phone. Bahn testified that Davis said, "We will see if we can't work it out."'
It is agreed that work on the service truck was a responsible position. Service-
men repair valuable equipment and prompt and efficient work is required to
safeguard the perishable products contained therein.
Rainwater was hired on May 6, 1946, as a trainee under the Veterans Admin-
istration training program. Until his discharge on August 21, 1946, he worked
in the mechanical department, first cleaning up compressors and overhauling
them and later installing units in boxes. Both Bahn and Rainwater were paid
65 cents an hour throughout their period of service with the Respondent. This
was in addition to their governmental allowance.
Bahn and Rainwater were active in informing the employees of the plan for
a union meeting on the evening of August 20, 1946. Bahn testified:
I was all for the meeting and trying to get as many out as I could. .. .
[I talked] to every one that I could come in contact with all the employees
around the plant that I came in contact with through the day, like maybe
I would be over in the carpenter shop after some type of board, or something
to set a unit on, and I would say something to somebody over there, and if I
would go in some other department, I would say something there. .
He further stated that he made no attempt to conceal his activities. That
Rainwater was similarly active is indicated by his credited testimony, "I talked
it [the meeting] up around the shop." He named six employees whose attendance
he had invited 6 Both Bahn and Rainwater attended the meeting and each
* Davis testified that he said , "We will have to see about that and see what can be
done about it," and further "I dismissed it from my mind, when he couldn ' t move to
Dallas" He further stated that lie had nothing to do with the discharge and did not
know it was contemplated
5 The prominence of Bahn and Rainwater in the organizational campaign is indicated
by certain testimony of Taylor . He was asked who he thought were members of the
Union organizing committee . He answered :
A. I thought Mr Rainwater and Mr. Bahn were.
Q. You thought the Super-Cold Organizing Committee was Mr. Rainwater and Mr.
Bahn?
A. Those two is all I knew was making an effort at the time.
SUPER-COLD SOUTHWEST COMPANY 105
signed an application card. During the meeting an election was held for the
position of chairman of the group. Employee James A. Moore received the high-
est number of votes but since Bahn was a very close second it was agreed that
he and Moore should become joint chairmen. Schmidt suggested that the em-
ployees present take cards with them and solicit other employees to sign. Both
Bahn and Rainwater did so. Bahn, being inexperienced in union matters, solic-
ited Foreman Scott to attend the Union meeting. As Bahn testified, Scott replied
that as a foreman he could not participate in union activities.
The Board's reliance in proving that Respondent had knowledge of the union
activities of Bahn and Rainwater rests in part on this solicitation of Scott's at-
tendance by Bahn. Further, Rainwater testified that Scott asked him on the
following day how the meeting went. Rainwater replied, "all right" so far as
his knowledge went. Although Scott admitted that he told Balm "along about
the 20th" that since he was a foreman he could not participate in union activities,
he denied the remainder of the testimony by Bahn and Rainwater ° After con-
sidering the demeanor of these witnesses, the mutually corroborative character
of this testimony by Bahn and Rainwater and in the light of further incidents
set forth in detail below, the undersigned rejects Scott's denial and credits the
testimony by Bahn and Rainwater
Confirmation of knowledge of their union activities by General Manager Francis
C. Fallon, the official responsible for their discharges. is found in the testimony
of a former employee of the Respondent, Elva Word. It was Word's testimony
that he applied for employment at Respondent's plant, where he had a "buddy,"
Bill Davenport, working, at approximately 4: 45 p. m. on August 20, 1946. His
further testimony is recorded as follows:
Well, I got acquainted with [Fallon] out in the main floor, hit him up for
a job. He said, "Well, lets go in my office, and we will talk this thing over."
I walked in the office and I introduced myself He asked me where I was
from, and he asked me how much experience had I had as a refrigeration
man, mechanic. I told him I had nine months in Draughon's Business Col-
lege in Oklahoma City, and three months with Vaden Refrigeration in Okla-
homa City.
Well, he asked me-he told me, said "I am laying a couple of guys off in the
morning." Said, "I think I can put you on," and said-he asked me did
I belong to the Union I told him, "No." And he said, "There are some
of these ex-G. L's around here that are raising a little trouble, starting to
trying to get a Union in here." Then he said, talked a long time about the
Union. In other words, he didn't talk anything in favor of the Union, always
seemed like it was all against the Union.
Well, he said, "You wouldn't want anyone to tell you when to go to work
and tell you how many hours a week you can work, . . the Union does that.
We don't need a Union . . . I will go even further if the Union comes in, I will
close the doors." That is the last statement he said.
Word further testified that he filled out an application form that afternoon
and was thereafter introduced to Scott by Fallon who said, "Starting tomorrow
morning he is going to work and I want you to take him up and show him
around." It was Word's testimony that while he was at the Union hall that
Scott further testified that he told Bahn, "a union was good for some people but not
for me "
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evening he met Bahn and Rainwater for the first time and learned of their dis-
charge. He told Schmidt of his conversation with Fallon. Schmidt typed a
statement and Word signed it. This statement, bearing the date August 21, 1946,
was entered in the record. Its content is substantially in accord with Word's
testimony quoted above. His statement relative to the circumstances under
which it was taken was fully corroborated by Schmidt.7 Fallon denied the
conversation ascribed to him by Word. He testified that he left the office about
4 p. m. on August 21; that his interview with Word occurred on the morning of
August 22, 1946, and that Word began work immediately. In support of this
testimony the Respondent introduced the application form and hiring slip both
dated August 22, 1946.
After consideration of the full record and the demeanor of the witnesses con-
cerned the undersigned rejects Fallon's denials and credits the testimony of
Word and Schmidt. Each impressed the undersigned as candid and truthful
witnesses. Their testimony was clearly and readily given and was specific in
character. It was not shaken under lengthy and searching cross-examination.
The events which immediately led to the discharge of Bahn and Rainwater
were encompassed within a brief period. Fallon left Dallas by automobile on
a vacation trip on August 8, 1946. He returned about 8, 30 p. in. on August 19.
Being tired and having arrangements to make for his wife's leaving on August
20, he did not go to his office until the morning of August 21. After disposing of
his accumulated mail he made a tour of the plant. When he opened the door
of the third floor on which the mechanical, painting, reconditioning and assem-
bling, and sheet metal departments were located lie discovered "a complete
slow down or shut down of [the] departments on that floor." Rainwater was
seated on the work bench and other employees were gathered around.' It was
Fallon's testimony that "There was no work being done." Foreman Scott was
present but was giving no attention to affairs in his department. As Fallon
testified he reprimanded Scott, saying, "Scott you keep those fellows off that
bench, and if you can't, I'll get somebody that can, and if I catch a man on that
bench again, I will fire you and the man." Fallon further testified that he
found similar lack of industry in the other departments on the third floor and
in the carpenter shop located in a nearby building There he found Foreman
Henry White, who, although on vacation, had visited the shop His brother,
Frank White, was temporarily in charge. H. White, as Fallon testified, told
him of dissatisfaction among the G. I. trainees, because some of them were
getting larger governmental allowances than those complaining. As White
stated the matter those dissatisfied blamed Office Manager J. C. Bownds for
this inequality of treatment. Later Jack Cowan, foreman of the reconditioning
and assembly department, coni;rmed the statement of White's relative to the
grievance of certain trainees. Fallon then determined to call a meeting of all
trainees at 2 p. in. Bownds at the time was in Houston. The foremen, however,
attended the meeting.
At this meeting Fallon made a speech. As reconstructed from the testimony
of Board witnesses,' he said :
1. I understand there is some dissatisfaction among the employees. All
the men came to the plant with good discharges that they should be proud
' Rainwater also testified that Word was present at the Union hall on the evening of
August 21. 1946.
8 Scott testified that Rainwater had been singing a little song whereat the other em-
ployees were much amused
n Bahn ; Rainwater ; Calvin ; and Vermillion . Cf. Fallon.
SUPER-COLD SOUTHWEST COMPANY 107
of and that I would be proud to possess myself. If any man is dissatisfied
if he will stand up and say so I will write a letter to the Veterans Adminis-
tration stating that the man is unsatisfactory for the job and recommending
a transfer to some other type of work. But if anyone tries to undermine
me I'll see that his government subsistence is cancelled.10
2. When you were in the battle field if a Jap or a German came through
the lines and called on you to assist in killing the colonel, would you do it?
3. You men are getting the best type of training available in the United
States. I might pay you 50 cents an hour but I am paying 65 cents because
I want to see my employees go home satisfied and with a substantial check
to maintain their families.
Fallon in his testimony stated he "had called to their minds the fact that
they came there as trainees, that they were either sent by the Veterans Bureau
or came of their bwn accord, but in no case were they selected by us." He
further stated that his foremen had remonstrated with him for taking in so
many trainees and had complained of lack of cooperation from them. Fallon's
further testimony relating to paragraph 1, above, reads :
I told them that the veterans' program was designed to give them their
training, that we had it there for them, and it was evident that some of
them did not appreciate the opportunity that they were being given.
I told them that we had definite-we knew definitely that some of them
were not fitted for the training and we'd prefer that those men, who must
know they are not fitted for the training, would voluntarily withdraw from
the training and allow us to turn them back to the Veterans' Bureau.
Fallon denied in toto, as silly, what is incorporated in paragraph 2. However,
he testified as follows :
I told those boys that they had had good Army training ; they realized the
importance of discipline ; that I had had complaints in the departments from
the foremen, as to the conduct of the men in front of me, and they must
consider their foreman in the same light that they considered their colonel
in the Army. That is what I told them.
Under questioning Fallon substantially admitted having said in effect what is
incorporated in paragraph 3 above. Since three Board witnesses," whom the
undersigned finds in every respect worthy of credence, were clear in their remem-
brance of the passages quoted and substantially corroborated each other, Fallon's
partial denials and divergent versions of these passages can not be accepted.
Fallon asserted, in his testimony, that his purpose in calling a meeting of the
G. I. trainees wa, "simply to put them right on their subsistence pay; no other
reason." On the basis of his own testimony regarding his speech on that occasion,
as well as that of the Board's witnesses, this was palpably not true. Fallon
made no mention of the subject of subsistence pay until employee Moore
broached that matter in a question from the floor. The burden of Fallon's
10 Employee Vermillion stated this matter as follows • "He said lie wasn't going to
stand to be pushed around, and that if we were dissatisfied, he would wi rte a letter and
see that we were transferred to another job, and if we stuck around and were fired, he
would write a letter to the Veterans Administration disqualifying us "
11 Bahn, Rainwater, and Vermillion. Calvin also corroborated the testimony of these
three witnesses in regard to the quoted statement about the hypothetical question re-
garding killing the colonel.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remarks, as he stated the matter, was admonishing the trainees that some of
them were not taking full advantage of their opportunities or were unfitted for the
training available and suggesting that it would be wise for such employees to
voluntarily withdraw. It is clear that his reference to an enemy within the
lines referred to the Union of whose advent during his vacation he had recently
learned. The purport of his speech was to give the trainees a warning against
support of that organ zation.12
It was Fallon's testimony that he was responsible for the decision to dis-
charge Bahn and Rainwater and that he made this determination on the morn-
ing of August 21. As he was leaving that evening he instructed his assistant,
H. I. Meade, to have Scott inform Bahn and Rainwater that they were to
call for their checks at the close of the day. When so instructed Scott demurred
on the ground that he had recently been appointed foreman and that he had a
kindly feeling toward Bahn and Rainwater as fellow G. I.'s! Meade then took
the matter upon himself and told them that they were being dismissed. Upon
their inquiry as to the reason Meade answered only "Your work is just not
satisfactory." 1e
Immediately thereafter Bahn and Rainwater joined in applying to Scott
for an explanation. Scott stated that he knew nothing about the discharge
and had not been asked about their work." That evening they, together with
employees Gordon and C. R. Taylor, met Scott on the street. Rainwater's testi-
mony gives the following account of this interview :
Well one of the men [Gordon] asked him [Scott] what was the matter with
our work and he said he didn't see anything, that we were two of the best
trainees he had, that he could send us to draw parts and we would get our
parts and complete a job without him having to tell us or help us on it.
When this testimony was quoted to Scott he denied that he had made such a
statement. Bahn 15 and Taylor corroborated this testimony in full detail.
Under these conditions the undersigned is constrained to reject Scott's bare
denial.
Bahn and Rainwater together with other union adherents visited the Union
hall on the evening of their discharge day. After listening to their story Schmidt
called Fallon on the telephone about 7:40 p. in. He had been erroneously
informed that three union employees had been discharged. As Schmidt stated
12 This was the impression gained by Bahn. His pertinent testimony reads :
I thought Mr. Fallon was putting himself as the colonel and putting us that
joined the Union and were trying to get the Union in the shop as the Jap that was
slipping in trying to kill him That is the way I would state it. To further explain
my idea for that, it was more or less a joke around the shop that afternoon, lust
referring to Mr. Fallon as the little colonel.
13 This quotation is from Bahn's testimony. Rainwater's version reads .
Your work is not satisfactory. . . . We just don't like the way you do it.
14 Scott confirmed these statements, testifying that their discharge "wasn't discussed
with me. Mr Meade let them go." "I didn't know until Mr. Meade came up there
and told me "
15 Bahn's version reads :
He stated that afternoon that Rainwater and I were the only two trainees he
had in the shop, that he could turn loose on a project without constantly standing
over them and telling them every move to make. He said he could turn a job over
to us and that we would go ahead and work it out and he wouldn 't have to worry
about it.
Taylor's testimony is to the same effect
SUPER -COLD SOUTHWEST COMPANY 109
their conversation in his testimony , he assured Fallon that a majority of the
employees had authorized the Union to represent them and asked for a meeting
as soon as possible to discuss recognition of the Union and the negotiation of a
contract . Fallon stated that he could not meet with Schmidt until the following
Monday. He further affirmed that the claim of a majority membership was not
true and declared , as Schmidt testified , that "he had ways of knowing how many
are and how many are not members of the Union ." When Schmidt referred to
the fact that three men had been discharged that day and stated that the
employees would be afraid to tell him whether or not they adhered to the Union,
Fallon retorted that the men had not been discharged because they were members
•of the Union but had been on his discharge list for some 2 weeks , and further
declared , as Schmidt testified , "Let's get this clear . I want you to know that I
will close these doors down there before I will see a union come in." 18 Schmidt
expressed an intention to file a petition for an election with the Board and also
a charge of unfair labor practices covering the discharges.
Fallon's testimony agrees as to the circumstances of the interview and its
general outline. He stated that he told Schmidt two men "were discharged
for cause ." He denied having made any statement that he would close the plant
doors if the Union came in. It will be remembered that Word testified to a
similar statement by Fallon made a short time earlier in the day. Since both
Schmidt and Word impressed the undersigned as trustworthy witnesses, the
undersigned is impelled , after consideration of the demeanor of the witnesses
involved and the entire record, to credit the mutually corroborative testimony
of Schmidt and Word and to reject Fallon's denial that he made the statement
quoted.
Schmidt on the evening of August 21, 1946, assisted Balm and Rainwater in
writing letters to Fallon requesting a v.rittcn statement of the r:ason for their
discharge . Under date of August 31, 1946, Fallon replied stating , in identical
letters, "the cause for your discharge was incompetence and inability on your
part to develop under the training program into the type of man needed and
being trained for duties as a serviceman ." The letter further stated that their
services were "unsatisfactory."
On the following morning Schmidt accompanied by Balin and Rainwater dis-
tributed a leaflet to the employees of the Respondent as they reported for work.
It was headed "Mice or Men" and, after rehearsing the facts of the discharge
on August 21, 1946, announced that the Union was filing charges against the
Respondent and concluded with an appeal for 100 percent membership in the
Union.
Conclusion
The record as stated in detail above shows that Bahn and Rainwater were
summarily discharged on the day after their attendance at the initial Union
meeting which they had actively promoted and for which on the day of their
discharge they had been soliciting members. Responsibility for the discharge
rests solely on General Manager Fallon who returned to the plant on the morning
of August 21 after 2 weeks' absence on vacation. It does not appear that he made
inquiry as to their work record during his absence. Scott who had assumed
the duties of foreman in the mechanical department on August 5, shortly before
Fallon's departure on vacation, was not consulted and disclaimed any share in
18 Schmidt quoted this statement in a letter sent to Fallon, dated August 22, 1946.
Fallon's answer written on the 23rd "denies that he made the statement 'Which you
attempt to quote."
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the decision to make these discharges . Furthermore Scott at the time stated
that their work had been eminently satisfactory.
The Respondent sought to justify its action by attacks on the work records
of Bahn and Rainwater . Bahn had been assisted on applying for employment
by E. N. Nash, sales manager for the Respondent . Bahn and Nash had formed
an acquaintance as fellow-Texans while in service with the Navy. On a date
not exactly established in the record but "four or five or six weeks" before
Bahn's discharge, Nash inquired of General Service Manager A. Davis how
Bahn was getting along. Nash replied in language which indicated that Bahn
was a worthless employee.17 Nash thereafter proffered the suggestion to Bahn
that "the way for any man to get along in the company was to keep himself
busy and not wait for somebody to tell him what to do." Davis testified that
he had frequent occasion to discuss Bahn and Rainwater and other employees
with Fallon and had been constrained to make unfavorable reports about them
and other trainees . His estimate of their records was, in effect , that Bahn was
lacking in initiative and that Rainwater was boisterous and interfered with
the work of other employees by manifestations of the exuberance of youth.
Davis testified that he made such reports early in their employment and at
intervals thereafter .18 However , Davis testified that he "had no quarrel with
Mr. Rainwater's work." Fallon testified what in the course of such reports
Davis stated that others were "not doing so well." However, Fallon could not
recall the names of any employees adversely reported on other than Bahn and
Rainwater. It will be remembered that despite such alleged adverse reports
Davis discussed with Bahn the possibility of a service truck job where his
responsibilities would have been increased and be would have worked prac-
tically without direct supervision . Respondent 's answer avers that Balm's
refusal to move to Dallas in order to accept this position was one reason for
his discharge . Davis, however , testified that Bahn's chance of making good
in the position was so slight that he would not have felt justified in advising
Bahn to sell his home in Lancaster and move to Dallas.
Respondent 's answer declares that Bahn and Rainwater "were discharged on
August 21, 1946, prior to Respondent's being notified or having any knowledge
that there was a Union claiming to represent the employees." The record,
however, makes clear that the Respondent was fully cognizant of the move to
17 Both Nash and Davis so testified
1S Davis ' recollection was hazy as to the date when such discussion occurred He
testified that he made such a report to Fallon "around a week" before Bahn and Rain-
water were discharged Since Fallon was absent on his vacation from August 8 to
August 20 , 1946 , this was manifestly impossible Davis further testified , " I don ' t recall
any exact time when I just specifically talked about them two with him [Fallon] "
Fallon , however , testified that he discussed Bahn and Rainwater with Davis about 10
a. in on August 21, 1946. This testimony reads
I told Mr Davis about the situation I had found upstairs and he said that was
no news to him. He said " I told you we had troublemakers in that department."
I said, "Who are they 7" He said, "Mr. Rainwater is the biggest troublemaker"
I said , "Is there anyone e1se9" He said, "Balin is just about as bad."
Davis testified that he went to Crockett , Tees, "ea'ly in the morning" that clay;
Fallon that he spent 2 hours in his correspondence and therentter made a complete tour
of the two buildings discussing conditions found with Foremen Scott , Cowan. and
White There is obvious difficulty in correlating their testimony Equally trouble-
some is the fact that Davis manifested no recollection of such it conference Fallon
further testified that he made his decision to discharge Bahn and Rainwater before this
discussion with Davis In this state of the record the undersigned has given no weight
to Fallon 's alleged conference with Davis on August 21, 1946.
SUPER-COLD SOUTHWEST COMPANY 111
unionize the plant. Fallon's speech to the trainees on August 21, 1946, was a
thinly veiled warning to these employees that their jobs would be insecure if
they persisted in the endeavor. Twice on that day both before and after the
discharges, in conversations with Word and Schmidt, Fallon declared that he
was prepared to close the doors of Respondent's plant if the Union came in.
That the underlying cause for the discharge was Bahn'S and Rainwater' s union
activity was clearly stated by Service Manager Alvin H. Zenor to Taylor on
an occasion shortly after the discharges when they were driving to a service
call. As recorded in Taylor's testimony Zenor said:
It is too bad that Rainwater and Bahn got mixed up in that mess just
about the time they were getting ready to go out on service. They should
have known they couldn't have gotten by with the Union there."
Although Zenor denies that this conversation occurred, the undersigned accepts
Taylor's testimony as correct. Taylor was an exact and careful witness who
frequently admitted the truth of matters damaging to his own interests. As
a leadman for some months he had close contact with Zenor and it is plausible
that confidential conversations of the type quoted above might occur between
them.
Finally, conclusive proof that General Manager Fallon was cognizant of the
movement toward union organization before the initial discharges occurred is
found in credited testimony of Respondent' s own witness, Foreman Scott, given
under cross-examination.19 This testimony is recorded as follows : I
Q. I will ask you to state whether or not it isn't a fact that . . . F. C.
Fallon called you into his office, two or three days before Bahn and Rain-
water were discharged and asked you if there was anybody soliciting for
the Union.
A. Yes, I believe Mr. Fallon did call me in there
Q. And at that time you told him you didn't think they were?
A. That's right.
Since Fallon did not return from his vacation until August 20, 1946, and did
not visit the plant until the following day, it is clear that he must have made
this inquiry on August 21, 1946.
After consideration of the complete record and of the demeanor of the wit-
nesses involved, the undersigned concludes and finds that Bahn and Rainwater
were summarily discharged when their leading part in the movement toward
union organization became known to Respondent's General Manager Fallon. The
discharge followed immediately upon the first Union meeting at which Balm had
been elected joint chairman of the Union adherents . Fallon made the decision,
as he testified, on his own initiative on the first day of his return after 2 weeks'
absence. Under these conditions the undersigned finds that the attacks on the
work records of Bahn and Rainwater were afterthoughts brought forward as
specious pretexts to justify discharges, which were, in reality, caused by the
union membership and activity of Bahn and Rainwater.
2. James O. Calvin, Charles B. Vermillion , Charles A. Weaver, James A. Moore,
and John W. Willis.
Calvin, Vermillion, Weaver, Moore and Willis were discharged on August 28,
1946. Their service for the Respondent is indicated in the following table:
"Fallon testified that he did not remember making this inquiry but "he could have
done it." He placed the date as after August 22, 1946.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Approximate
Date of hiring length of servzoe
Calvin --------- March 28, 1946________________________ 5 months
Vermillion----- August 12, 1946________________________ 21/2 weeks
Weaver -------- January 9,1946________________________ 8 months
Moore_________ - oyember2,1945______________________- 10 months
Willis 20_______ April 1, 1946__________________________ 5 months
All of these men except Weaver were G. I. trainees and carpenter's helpers-
Weaver was a journeyman carpenter and received 871/2 cents an hour. Moore,
presumably because of his longer service, was paid 75 cents an hour. The three
others were paid the entrance rate of 65 cents an hour.
All of these five employees, except Calvin, attended the first Union meeting
and signed Union application cards on August 20, 1946. As stated above Moore
was elected chairman, or spokesman of the group that night. Calvin signed an ap-
plication card next day on the solicitation of Willis. Buttons carrying the letters
"C. I. 0." were distributed either August 21 or 22 and each of the five, as the record
clearly reflects, regularly wore such a button thereafter. This gave publicity
throughout the plant to their membership due to a general roll call ordered by
Fallon on the morning of August 22, 1946. All employees, including clerical work-
ers, supervisors and officials were summoned to the third floor, immediately after
the opening hour on that date. They were grouped in one space. Bownds called
the roll of production employees in the order of their clock cards and other em-
ployees from an alphabetical list. As the names were called employees answered
"here" and moved to a designated space a considerable distance from the original
group. All employees were present or accounted for. Fallon testified that he
ordered this procedure because of a threat made by Schmidt in their telephone
conversation the night before to the effect that "he would do all he could to stop
the production in the plant." 21 Both Fallon and Bownds admitted that the pres-
ence of employees could have been easily checked by inspection of the cards in
the time clock racks and by observation of the six or seven office employees'
Nevertheless Fallon insisted that the only reason for the roll call was to see
whether or not people were out on strike. When asked to account for his presence
and that of Meade, his assistant, he replied, "I am always where there is any-
thing going on, if I can be; that was the reason I was there." He testified further
that Meade's presence was for similar reasons
Unrefuted and credited testimony by Calvin shows that his wearing it Union
button definitely came to the attention of a supervisor. Calvin testified that
his work attracted the attention of Foreman David Wolfe of the metal department
who solicited him to transfer there from the carpenter shop On August '2. 1946,
while attempting to induce Calvin to transfer, Wolfe noticed the Union button
and said, "Throw that button away, it won't get you a hot dam thing."
A Union meeting was called for the evening of August 27, 1946. It was an-
nounced some days in advance and was the subject of considerable discussion
about the plant. The assembly department on the third floor was experiencing
20 Willis did not appear as a witness. It was stated that he was in California. The
facts as to his service were stipulated on the record by the parties
21 Schmidt denied that he made such a threat. The undersigned does not find it
necessary to resolve this conflict of testimony.
22 Also available was an inter-communication system through which the employees
present could have been checked
SUPEII-COLD SOUTHWEST COMPANY 113
difficulty because of the fact that the floor was badly worn Heavy cabinets in
course of being fitted with refrigeration apparatus were rolled along an assembly
line on dollies. T7psuccessful,efforts had been made to purchase flooring. On
August 27, 1946, Robert Fallon, son of General Manager Fallon, who was pur-
chasing agent for the Respondent, found that he could purchase the necessary
flooring. It was accordingly arranged that Foreman A. F. Cowan of the assembly
department should clear the floor space before the close of operations that day and
that Foreman Henry White should assemble an overtime crew to lay the floor
that night The plan was to finish the operation so that the assembly line could
continue next day with the minimum of inteiiuption
The record presents a congeries of conflicts of testimony and contradictions as
to simple matters of tact which renders judgment difficult. White testified
that near 5 p in., on August 27, 1946, as the employees in the carpenter shop
were preparing to leave for the day, "I told them that I wanted every man that
could drive a nail to be back there at 6: 00 o'clock." It was White's further testi-
mony that he gave no other order and had not requested the employees individually
to work overtime However, there were admitted exceptions in the case of his
brother Frank White and employee Herbert Voight who was working with him
on an outside job Frank White came in about 4 o'clock that afternoon and, as
Foreman White testified, agreed to work overtime and to notify Voight of the
plan to lay the floor that pight. Moreover, employee August J. Cobern, who
assisted in laying the floor, testified without contradiction and the undersigned
credits his testimony, that White asked him to work overtime about 4 o'clock that
afternoon. He testified further that he overheard Coy B. Fraizer excuse himself
from working on the ground that his brother was coming home from service in
the army. Foreman White testified that Fraizer was excused from overtime work
and confirmed this statement. Further, Weaver and Vermillion agreed in testify-
ing, and the undersigned credits their statements, that Foreman White asked them
to work overtime at about 4: 00 p. in. August 27, 1946. Weaver then told White
that he could not work overtime on the evening of either August 27 or August 28.
Vermillion stated in answer to White's request, "Well, I don't know." The un-
dersigned finds on the basis of this testimony, and of the entire record, that White
was in error in testifying that his order at 5 p. in. was his only announcement of
the projected overtime work.
White's testimony, in general, was inexact, confused and, at times, contradic-
tory. He testified that the space refloored was approximately 20 by 30 feet.
Cobern estimated the space in his testimony at 35 to 40 feet by 12 feet. Cowan
testified that he had measured the new floor on the day preceeding his testimony
and found it to be 40 feet by 12 feet in area. The difference in area between
this exact measurement and Foreman White's estimate is over 100 square feet
Such discrepancies by a carpenter of over 20 years' experience, in a job on
which he had worked and concerning a floor in a building with whose dimensions
he was familiar, casts discredit on the exactitude of his testimony generally.
White ordered 500 board feet of 4-inch flooring. The invoice shows that 535
feet were delivered. His testimony proceeded on the assumption that only the
flooring bought was used until his attention was called to the fact that 535
board feet will cover, with allowances for matching and a minimum of waste,
considerably less than 500 feet of floor. White then testified that about 100
board feet in stock were taken to the third floor and laid next morning. Again,
he testified that he had decided in the afternoon of August 27 that he would
need the entire crew of 21 carpenters to tear up and relay the floor in an
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evening. When he was questioned, under cross-examination, as to the possibility
of using so many men in the limited space to be covered, he reduced his estimate
to 12 or 15 men. His credited testimony shows, however, that of 21 members
of his crew one was on vacation, 2 were unavailable since the terms of their
hiring provided that they would not work overtime, and that he had excused 8
others without question or protest23 This reduced the possible crew to 10. Of
these, 5 men worked 24 and the 5 under discussion here failed to report. While
White stated that the job was unfinished when the overtime employees quit
about 10 or 11 p. in., he did not give an accurate estimate of the space not
finished that evening. Cobern testified specifically that the employees quit work
about 10:00 p. in. and that the floor had been finished except one strip 13/4
inches at one end and 2% inches at the other.23 Cowan stated that some
18 to 20 inches in width of the floor was not laid on the evening of August
27, and that 2 carpenters worked there most of the next forenoon. White,
however, testified that employee Wiggins completed the job in a couple of hours
next day. Furthermore, White testified under direct examination that he had
no knowledge that the 5 employees discharged were members of the Union
or any union. Under cross-examination he admitted that he had seen each of
them wear a Union button. Because of these discrepancies in White's testimony,
and others discussed in detail below, the undersigned has not credited him unless
his statements were corroborated and confirmed by other credible witnesses.
After starting the five employees who reported to work on the flooring job,
White called Fallon and reported that he had a short crew and doubted that he
could finish the job that night. He suggested that Fallon come to the plant.
Fallon drove to the plant in his automobile and picked up Bownds on the way.
White's testimony as to what then transpired is recorded as follows:
I told him I wasn't going to get it through that night, I didn't have enough
men. I wanted to talk to him about the other men that hadn't showed up.
* * * * * *
I told him I thought we ought to fire them. If I had to run the shop I had
to have discipline down in the shop, or I couldn't run the shop no other
way.2°
Fallon testified that when he arrived White stated that he could not finish
the flooring that night; that he then told White to do the best he could and
23 It was Foreman White's testimony that Voight told Frank White he had promised
to help his brother move. Foreman White accepted that excuse . William Bankston
stated that his wife was sick ; Coy B . Fraizer stated that his brother was returning
from Army service ; Otto Williams that he had been working on a church and desired
to finish the job that night ; L A Roberts that he "wasn 't feeling good " ; T. T Barnes
that he lived out of town ; G. C. Stevenson that "he wasn 't feeling well and he didn't
feel like working"; C. A Keel that "his wife was sick or something like that." In each
case, as White testified , he told these employees , "Okay." J. 0 and C. R. Harwell were
elderly men and it had been agreed when they were hired that they would not work
overtime nor at night.
24 Willis Ficklin, James W. Wiggins , J. J. McKenzie , Frank White and August J.
Cobern. Foreman White was also present and did an undetermined amount of work.
25 Coburn's testimony at this point reads :
That was measured . We measured that that night in order to rip down a piece
the next morning and send over these to be nailed down.
2° Bownds heard this discussion and testified as follows :
Mr. White made the statement that several of the men he had told to come back
to work , didn't report , didn 't give him any excuse and he didn 't like it. He told
Mr. Fallon he wanted him to do something about it. . . . wanted them fired.
SUPER-COLD SOUTHWEST COMPANY 115
expressed surprise that he had been called to the plant to receive this information.
Fallon 's testimony as to what next transpired reads as follows :
He (White ) said , "That is not it. These men that didn't show up de-
liberately flaunted my authority when I told them that they should work."
He told me he told all the men that could drive a nail to come back that
night and I said to him, "Well , you told them all to come back " and he said,
"Yes, but there is some of them old men that never do come back, but I
have been giving these young fellows all of the extra work and I expected
them to back me up, to come back and help me. Those are the fellows
that didn 't come back."
* * * * * * *
"I can't run that department if you are going to let the men run it."
* * * * * * 0
"Well," I said, "Henry we ought to think about this. Why don't we get
the men in here tomorrow morning and talk to them?"
"No sir," he said, "I have stood all I am going to stand. It's either me or
them."
At Bownds' suggestion Fallon called his attorney, stated the situation, and
requested his advice. Fallon testified that he was advised, "If you can't fire
them under those conditions, you might as well close the place up." White was
then recalled and the decision reached to discharge the men.
Bownds testified that White then, on Fallon's orders, pulled the cards of the
five men and gave them to Bownds who figured the time and typed out the
checks. A short time later Fallon, as Bownds testified, came to the office and
signed the checks. Bownds then put them in his desk for safe-keeping. Fal-
lon, however, testified very positively that he did not sign the checks until the
next morning.
When the five men reported for work next morning they found that their
cards had been removed from the time-card rack. On application to White
they were told, "I haven't got a thing to do with it. Don't tell me. Go see
Mr. Fallon." o Calvin, Vermillion, Weaver, and Moore agreed in testifying
that White on giving out their checks, asked them no questions and gave no
reason for their discharge. As Calvin testified, when asked whether he made
any explanation regarding his absence on the evening of the 27th, "I didn't have
time, sir, I had only got in within 5 minutes before I had my check in my
hand." ¢8
a+ This quotation is from Calvin's testimony.
28 Vermillion testified of his interview with White that "there was no comment between
either one of us. . . . I just asked him if he had my check and he said, 'Yes,' and that
was all." Weaver, shown by the record to be a man sparing in the use of words, testified
as follows :
Q. Did Mr. White say anything to you at the time he gave you your check?
A. He never said a word.
Q. Did you say anything to him?
A. I didn't open my mouth.
Moore, who accompanied Weaver, gave testimony similar in effect. It is recorded as
follows :
Q. What conversation, if any, did you have with Mr. Henry White?
A. We asked him did we get paid off too, and he said, "You sure do."
829595-50-vol. 81-9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White, however, gave the following testimony regarding his conversation
with Moore on the morning of August 28, as he gave him his pay check:
Q. What did you say?
A. I asked him why he wasn't down the night before.
Q. What did he say?
A. He said he had other business to attend to.
Q. Why did you ask him, Mr. White, why he didn't show up.
A. I asked him why he didn't give an excuse the night before
White further gave practically identical testimony in turn relative to his con-
tacts that morning with Weaver, Calvin, Vermillion, and Willis His further
testimony reads :
Q. Your testimony is that you asked each of these five persons the same
questions, and they gave you identically the same answers, is that right?
A. That is right.
Q. Identically the same answers?
A. That is right.
The undersigned finds this testimony wholly incredible both on general
grounds and after consideration of the widely various characteristics, vocab-
ulary, temperament and education, as evidenced by the record, of the four com-
plainants who appeared as witnesses. As stated above, the undersigned has
not felt justified in putting reliance in White's unsupported testimony. Here
four witnesses, found worthy of credence, directly refuted his testimony. Under
those conditions the undersigned rejects this testimony of White and credits that
of the four Board witnesses.
After a period of indecision the five discharged employees determined to seek
an explanation from Fallon. Weaver was occupied in packing his tools and was
late in joining the group. Seemingly he took no active part in the subsequent
happening in Fallon's office. On Fallon's invitation to enter the office Moore, in
his capacity of Union chairman, made the initial inquiry as to the cause of the
discharges. Fallon testified that he then stated that he preferred to have Fore-
man White present. His further testimony, which is in accord with that of the
other participants and is credited by the undersigned, reads :
We didn't discuss anything further until Mr. White came When he
came in, I said, "Now Henry these men want to know why they were dis-
charged. We called you here because you are the man who demands their
discharge." He said, "They know why they were discharged. They refused
to work last night Besides most of these fellows have been loafing on the
job." Then there was a bedlam broke loose. I don't know who said what
after that. It ended with a little dark fellow [Calvin] shaking his fist in
my face trying to pull his shirt off, and shouting, he wished he had me in
a fox hole.
As Fallon and the other witnesses testified, he expressed full willingness to
meet Calvin in personal combat. Meade, who had summoned White, and Moore,
restrained Calvin and escorted him from the office.
Conclusions
Respondent's answer avers that Moore, Vermillion, Weaver, Willis, and Cal-
vin "were discharged for refusing to obey orders of their foreman, Henry White,
SUPER-COLD SOUTHWEST COMPANY 117
and for refusing to report for overtime work on the evening of August 27, 1946,
and making no explanation in connection with the same , and such discharges were
made at the request of the foreman who was charged with maintaining discipline
in his department ; and such conduct of the employees constituted a flagrant
disregard of the authority of their foreman."
Nothing in the record suggests that either of these employees had refused to
obey any order of Foreman White other than his instruction given at about 5: 00
p. in. August 27, 1946, to return for overtime work, unspecified as to character or
duration , at 6: 00 o'clock that evening . Each of the four complainants who ap-
peared as Board witnesses testified positively that it was understood that over-
time work was on a voluntary basis. Such understanding has support in this
record in the unhesitating and uncritical manner in which White , as his own
testimony clearly shows , accepted all reasons given on August 27 for not return-
ing for the overtime work. It should be noted in this connection that the men
excused were mainly the older and more skilled workmen who would have been
most valuable in getting the flooring laid efficiently and expeditiously . Moreover,
Calvin, as his testimony , confirmed by White, shows had on a previous occasion
failed to keep a promise to return for overtime work and *had thereafter been
excused on explanation , without penalty or reprimand . Weaver , as found above,
had declined to work overtime when approached by White. His refusal was
accepted without comment at the time. Vermillion also told White that he was
not certain he could work . This fact did not protect him from summary dis-
charge in his absence and without opportunity to explain his failure to report.
In general it cannot be found that the order given by White at 5 p. m. August
27, 1946, was a legitimate order nor that failure to obey it was a "flagrant disre-
gard of the authority of their foreman." Contracts of employment in the United
States do not convey such plenary control of employees ' time nor require them
to forego plans made for the use or enjoyment of their free time on such slight
notice Nor yet do such contracts lodge in the foremen full discretion to de-
termine whether the work planned for overtime is of such importance that
employees perforce must devote their free time to its performance . This is a
question customarily determined freely between employer and employee. This
determination is in effect a new contract for a limited and mutually fixed period
The contention by the Respondent that the employees could be legitimately ordered
to perform overtime work at any time and for any period detracts from its
affirmative defense. It does not accord with the readiness with which White
accepted excuses proffered by eight of his best qualified employees. The testimony
of the four complainants definitely proves that there had been "no meeting of
minds" to execute such a contract of employment.
The attempt to bolster its case by casting discredit on the word record of these
complainants, is found by the undersigned to be a further weakness in its defense.
It is clear from the testimony of Bownds, White, and Fallon that the decision to
discharge these five employees was made on the evening of -August 27, 1940,
solely on the basis of the failure to report for overtime that night . Their time
was computed, their checks written and signed and the discharge fully consum-
mated that evening. Nothing in the record suggests that consideration was given
to their work record. One of the employees discharged, Vermillion, had been
employed less than 3 weeks. His capacity was still undetermined. White testi-
lied that Weaver had built a cabinet too short on one occasion not del;nite]y fixed
It is clear that this mistake had been condoned. He testified also that "Moore
had been a pretty fair hand, and Calvin had been a pretty fair hand. The others
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weren't so hot." No specific evidence was adduced to support the general
indictment.
Nor can any support be found in the record for the statement in the answer
that the five employees discharged "made no explanation." The discharges were
made without giving opportunity for such an explanation. White's testimony
that he asked each of them next morning why they had not appeared and in each
case was told they had other business, as found above, is incredible and refuted
by the testimony of four credible witnesses. Its effect is only to cast discredit
on the Respondent's attempted defense.
The five men were all Union adherents and customarily wore Union buttons
while at work. Moore was chairman and spokesman for Union employees.
Fallon admitted that he had seen him wear a Union button. It is proven that
the Respondent had knowledge of such Union connection. The record as a whole
reflects that Respondent was sternly opposed to the entry of the Union into its
plant. The Union meeting called for the evening of August 27 had been freely
discussed in the plant for several days preceding. It is a justified inference
made by the undersigned that Respondent and its supervisors were informed of
that meeting. Each of the five employees discharged attended the meeting. It
cannot be successfully argued that attendance on such a meeting was a less
worthy excuse than some offered by other employees and accepted without protest
by Foreman White. In the anti-Union atmosphere of Respondent's plant it is a
necessary conclusion that such attendance and a desire to discourage Union
activities had a substantial part in the decision to discharge five employees who
prior to the advent of the Union had been acceptable employees That the dis-
charge had the effect of discouraging membership in the Union is shown by the
fact that the practice of wearing Union buttons in the plant practically ceased
thereafter. After consideration of the entire record and the demeanor of the
witnesses involved, the undersigned concludes and finds that James A. Calvin,
Charles B. Vermillion, Charles A. Weaver, James A. Moore, and John W. Willis
were discharged on August 28, 1946, 1 week after the discriminatory discharge of
Bahn and Rainwater, because of their Union membership and activity.
C. R. Taylor was hired by the Respondent in late July 1944 as a helper or
general worker in the mechanical department. His entering wage was 65 cents
an hour. After a short period he was assigned work in reconditioning and
rebuilding of compressors. . He had had prior experience for 35 years with
compressors, pumps and steam engines in the oil fields. In January 1945 and
for a period of about 6 months he was given a bonus of $10.10 a week. This was
101/_, hours overtime pay at 65 cents an hour counted as time and a half. After
July 15, 1945, Taylor received 87 cents an hour. For a period of about 4 months
preceding August 5, 1946, he acted as lead man in the mechanical shop. Fore-
man Smith quit at the beginning of this period and at its close Foreman Floyd
Scott returned from war service to assume this foremanship. As lead man
Taylor had no authority to discipline, hire or discharge employees. As he
described his duties they were "to help the new men and instruct them as to what
to do and how to do it, and help them with their work." The record contains no
criticisms of Taylor's performance as a workman during the period of 2 years
and 3 months from late July 1944 to October 22, 1946.
Taylor had been given the wrong address for the initial Union meeting on
August 20, 1946, and was not in attendance. However, he signed an application
card on the solicitation of Rainwater and Bahn on the morning of August 21.
He made no secret of his Union membership and sympathies. That his mem-
bership was known to the Respondent is shown by several contacts he had with
SUPER-COLD SOUTHWEST COMPANY 119
supervisory employees or officials. A week or two after the discharge of Bahn
and Rainwater, Bob Fallon, as Taylor testified, asked him what he thought of
the Union and if the employees would organize. Taylor replied that he believed
they would and added, "Bob, I have been a Union man all my life, I first joined
the Union in 1905, the Oil and Gas Well Workers." Taylor further testified that
he told Fallon he had "belonged to some Union practically all [his] life, in all
[his] public work." Taylor also testified about an incident occurring on the day
of the Board election, October 22, 1946, as follows :
I had started from the shop over to the carpenter shop, down the alley.
Bob [Fallon], Mr. Zenor and one other party, I don't remember who it was,
was standing out at the back of the house conversing about the election. I
don't know just what it was. They had set up a booth inside, and Bob
hollered out at me as I got a few feet from him, walked up and said, "How
do you think it will go this evening?" He said, "Do you believe the Union
will win?" I says, "I know they are strong for it in the shop, at least, I
think so, and from what I bear they are pretty strong for the Union in the
carpenter shop, and I believe it will go over."
Although Fallon gave a qualified denial of these incidents, saying, inter alia,
"I remember having no conversation with Mr. Taylor or any other employee of the
company about the Union or any other organization" and "I recall no conversa-
tion of that type at all," the undersigned credits this detailed and specific testi-
mony of Taylor and rejects Fallon's denial.
Taylor further testified that at the time the election notice was posted, he
overheard Foreman Scott tell a group of employees that "anyone was foolish to
vote for it [the Union], that if they did, if the election went in favor of the
Union, that they would all have their salaries cut back to apprentice wages and
have to work for 6 months before they can expect another raise of any kind, be
eligible for one." Taylor replied to Scott, that he "thought that he was wrong
about that ; that there would be no reduction made ; that if the Union went over
they were organized, the contract would be drawn between the company and the
Union and a regular scale set for the different kinds of work." Scott denied that
this incident took place but after considering the demeanor of these witnesses,
certain contradictions in Scott's testimony set forth below, and damaging admis-
sions made by him, the undersigned rejects his denial and finds that this incident,
stated by Taylor with convincing specificity and unshaken under searching cross-
examination, occurred substantially as set forth in his testimony.
It will be remembered that in discussing the discharge of Bahn and Rainwater,
an incident in which Zenor discussed the matter with Taylor, was set forth above.
Taylor gave testimony regarding another incident occurring sometime between
August 21 and October 22, 1946, and recorded as follows :
Zenor called me aside and asked me if I knew how the boys stood on the
election of the shop.
I told him I thought they were pretty well solid for the Union. Well, he
said, "You know them all and the boys all like you. Why don't you go up
and feel them out and see how they are going, and explain to them that if it
goes Union, that the old man will close the dern thing down and won't any
of us have any job left."
Taylor explained the designation "old man" as a familiar reference to General
Manager Fallon.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When called as Respondent's witness and questioned regarding the testimony
quoted, Zenor said, "I did not make that statement." After considering the
demeanor of Taylor and Zenor as witnesses and the setting of this testimony in
the entire record the undersigned has rejected Zenor's denial and credits Taylor's
testimony.
Finally, compelling evidence that Taylor's union sympathies and activities had
attracted the attention of Respondent's supervisors is contained in testimony
given in cross-examination by Foreman Scott as Respondent's witness. It is
recorded as follows.
Q. Mr. Scott, did you have any conversation with Mr. Henry White about
Taylor, a day or two before he was discharged?
A. Mr. White told me-I don't recall the exact date, that he [Taylor] was
down in his shop soliciting.
Q. Soliciting for the Union?
A. That's right.
This uneon troverted testimony is credited by the undersigned.
The incidents preceding Taylor's discharge occurred in the 4 days, October 21
to October 24, 1946. A used domestic refrigerator, described as a 6-foot Norge,
had been sold on October 21 and was to be reconditioned for immediate delivery.
The following account, unless otherwise indicated, follows Taylor's testimony,
which the undersigned credits. On the 21st Taylor tore down the refrigerating
unit, tested it for leaks, washed the parts with carbon tetrachloride, reassembled
the unit, replacing all gaskets, and refilled it with sulphur dioxide gas. That
night the refrigerator was given a test run. It was found that it did not freeze
ice cubes efficiently. On October 22, Scott and employee Harden,29 attempted
adjustments. They added gas. Finding that this did not increase the freezing
action, they attempted to "pump it down," i. e., remove the gas. In so doing they
had difficulty. As Taylor testified,
I passed by when they were still working on it, and I said, "What is the
matter ; won't it pump down?" It seemed it took an unusually long time to
pump what little water was in it out. He [Scott] said, "I think we got a
little shot of water," which had happened. Well, I found the water in it
when I tore it down the next day.
About 3: 00 p. m. on the 22nd Scott instructed Taylor to change the unit over
from sulphur dioxide gas to methyl chloride gas. This was an operation with
which Taylor was fully familiar. It involved, as his testimony reads,
You have to take out all the machinery, clean it thoroughly to change
those refrigerators, wash it out with carbon tet., see that it is dry. We also
change out the evaporator and put in a different system of expansion.
That afternoon Taylor pumped down the unit. The procedure is to attach
a quarter-inch copper line to the suction valve and pump out the sulphur dioxide
gas by running the compressor. Since this gas has a bad odor and is acid in
character it is customary to pump it into a container full of caustic soda, or lye
water. This deodorizes and neutralizes the gas. Taylor finished the operation
at 5: 00 o'clock quitting time that night. A vacuum gauge attached to the unit
showed that he had approximately a 26- or 28-inch vacuum.30 Taylor closed the
' This name is variously misspelled on the record as Hardy, Harding , and Hardin.
30 Taylor was uncertain in his remembrance of this figure. It seems improbable that
the used compressor could pull more than a 26-inch vacuum. Scott agreed to this
figure in his testimony.
SUPER-COLD SOUTHWEST COMPANY 121
suction valve while the motor was still running Having tested the unit for leaks
on the preceding day, he had confidence that it would hold. He removed the
copper line from the caustic solution but did not detach it from the unit since the
wrench needed was not at hand On the next morning, October 23, he found the
copper line had been pushed down in the lye water container. Taylor consistently
testified that he could not be certain whether it was in the water or not. How-
ever, his testimony and that of Scott indicates that the reading on the vacuum
gauge had not changed during the night.
Taylor was principally engaged during the day in changing the evaporator.
This change was necessitated by the characteristics of the methyl chloride gas
to be installed. In the afternoon, however, about 3: 00 p. m. he took out the
compressor and found the pistons "frozen." On investigation he found water in
considerable amount in the compressor body. At this point Taylor's testimony
is recorded as follows :
I called Mr. Scott's attention to it. I called his attention to the fact that
I had water in it, when I first discovered it, in the coils, in the condensor
coils, and he had stated the day before that he thought he got water in it
when he pumped it down.
* * * * * *
That is why he was pumping so long trying to get it out. He made the
remark, "No wonder I couldn't get anything out of it," after he started it up.
Well, when he discovered the compressor was stuck, he said, "We won't have
time to try to loosen it up; we will get another compressor and replace
that one." There was no complaint of any kind made at the time in regard
to it being full of water, stuck up. No mention was made until the next morn-
ing when I was called down to Mr. Fallon's office.
On application to the supply room, on Scott's instructions, for a new compressor,
Taylor found none available. He then found a used unit, the compressor from
which would serve, and began operations to install this in the unit. He was
so occupied next morning shortly after the opening hour when he was summoned
to Fallon's office. Scott and Bownds were also present. All four of these indi-
viduals were called as witnesses. There is no substantial variance in their
accounts of what then transpired. Fallon asked Taylor to explain the condition
of the compressor. He stated matters as set forth above, stating further that
the vacuum gauge showed no leakage during the night. On inquiry Scott stated
that he found the copper line in the lye water that morning and that the gauge
showed 26 or 28 inches of vacuum. Fallon then suggested that compressor valves
sometimes leak and called attention to the fact that compressor units were scarce
and hard to obtain. Taylor agreed that these matters had been covered in
memoranda which had come to his attention. Fallon then directed Taylor to
return to his work.
Scott testified under direct examination that he made a written report to
General Manager Fallon on the condition of the compressor unit and Taylor's
responsibility for the damage and that Fallon's action was based on this report.
Under cross-examination he presented a divergent story. His pertinent testimony
is recorded as follows :
Mr. Taylor went to the stock room and I went ahead and laid out my
work and then Mr. Fallon's son came up to me and asked me the extent
of the compressor being ruined.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. The next thing that happened was that Bob Fallon came up, is that
right?
A. That's right.
Q. What did Bob Fallon say to you?
A. He came up there and wanted to know what had happened to the
compressor, what was wrong with it, why it couldn't be used.
Q. What did you tell him?
A. I went over and showed it to him.
A. Well, I told him that the case was evacuated and had set moisture back
into it, caustic soda water.
Q. Is that all you said?
A. No. I told him Taylor was working on the job. He asked me who was
doing it and I told him, I said, "Taylor."
Scott further testified that Taylor's discharge was announced to him by Bownds
about 4: 30 in the afternoon. As he testified, Bownds said, "You can tell Mr.
Taylor to turn in all his company equipment. His service here-that lie was
quitting or was being let go."
Taylor testified, however, that he had worked only a few minutes after his
interview in Fallon's office when Scott came back and after a short interval
came to Taylor and said, "Jimmy, Bob [Fallon] said to check your tools in your
tool box and come down and get your check." He further testified that he was
paid for 1 hour of work on the morning of his discharge, October 24, 1946. This
.accords with the testimony of General Manager Fallon that he made the decision
to let Taylor go immediately after he had interviewed him. The undersigned
finds significance in the obvious attempt of Respondent's witnesses, General
Manager Fallon, Office Manager Bownds and Foreman Scott to conceal the
fact that Bob Fallon had a leading role in the events preceding Taylor's
discharge. Bob Fallon appeared as a witness for the Respondent and denied,
as stated above, that he had had certain conversation with Taylor pertaining
to the Union. He made no mention of his participation in the events preceding
Taylor's discharge. Bownds testified that he learned of the damage to the com-
pressor through the stockroom clerk and that on going to Fallon's office to discuss
the matter he found him considering a written report from Scott. Bownds
did not mention Bob Fallon in this connection. Bownds' testimony as to events
following the interview in Fallon's office reads as follows :
Well, Mr. Scott then left the office and Mr. Fallon asked me, he says,
"What do you think we ought to do," and I said, "Well, that certainly looks
like he has been destroying property, carelessness," and he said, "Well, I
believe we will make up his check." So, I pulled his card and went upstairs
and wrote out his check.
In this state of the record the undersigned finds the testimony of Respondent's
witnesses largely discredited. Manifestly a direct attempt was made to conceal
the fact that Bob Fallon was active in the events immediately preceding Taylor's
discharge." It will be remembered that, as set forth above, Bob Fallon had
manifested interest in Taylor's Union opinion and activities. He was well
informed of Taylor's Union connections.
31 The undersigned notes that Bob Fallon and Bownds shared an office.
SUPER-COLD SOUTHWEST COMPANY 123
Conclusions
Respondent 's answer stated that "C. R. Taylor was discharged for inefficiency
and because of his having been careless in the handling of certain equipment
which resulted in a total loss of the company's equipment and damages to the
company in the sum of $105.00." Since nothing in the record supports the allega-
tion of inefficiency, while Taylor 's considerable period of service , his substantial
wage increase and his selection to act as lead man in a period closing only 21/2
months before his discharge , sufficiently disproves this accusation , the undersigned
finds no merit in this contention of the Respondent . Bownds, Scott , and Fallon
asserted in their testimony that Taylor was guilty of carelessness in handling the
refrigeration unit on October 22 and 23, 1946 . An excerpt from Fallon 's pertinent
testimony states that he made the decision to discharge Taylor because of the
"fact that he had carelessly , if not maliciously , destroyed company equipment."
The record , however, does not sustain this contention . Bownds' testimony carries
the implication that the compressor was valueless . It developed , however, that
his knowledge of its actual condition was confined to the statement that "Mr.
Taylor said the body was no good , and would have to be changed out." Scott
testified under direct examination as Respondent 's witness as follows :
Q Were you there when it [the compressor ] was taken apart?
A. I was.
* * * * * * *
Q. What was the condition of it then?
A. It had water in it.
Q. Was the equipment used after that?
A. No, sir.
Q. What was done with it?
A. It was sold for junk.
Scott further testified that the compresser was "ruined " by the lye water which
it contained.
Under cross-examination , however, Scott gave contradictory testimony. He
was asked about possible procedure to free "frozen" compressors and restore
them to use and whether such an attempt had been made on the compressor which
figured in Taylor ' s discharge . His subsequent testimony reads as follows :
A. We never did get this one unfroze . We had to send it to the shop to
get it unfroze.
Q. Was it unfrozen in the shop?
A. I don't know . The Eureka Manufacturing Company does that.
Q. The compressor you took off the machine that Taylor was working on,
you sent out to the Eureka Manufacturing Company?
A. That's right.
Q. What did they do to it?
A. I don't know what they done to it. They done all the work on Universal
bodies because we didn 't have any parts there.
Fallon testified regarding the compressor as follows :
I found that the valve plates were badly corroded , and the flapper balance,
that covered the little holes the valves made, were practically gone, and that
the cylinders were stuck tightly to the cylinder walls. I looked where they
took the base off and the entire shell , where the oil had been on there was
corroded , like a piece of heavy sandpaper all over. The body was useless.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We left it around there for quite a little while, and finally threw it in the
junk.
Despite the fact that such disagreement among Respondent's witnesses make
laboring of these matters a work of supererogation, the undersigned is con-
strained to point out that Scott, if his testimony is to be credited, had spent a
considerable time working with Taylor on the compressor. His significant
testimony reads as follows :
We had taken the compressor off and put it over on a bench, trying to turn
the fly wheel, and whenever we couldn't turn the fly wheel, we turned it
bottom-side upwards and removed the bottom base, around the bottom, so
we could look into the eccentrics in it.
Q. Well how long did you continue working on it or examining it after
Taylor walked off.
A. Oh, I would say ten or fifteen minutes. After we examined it, we taken
the base off of it, why then we found the water in it, we couldn't turn it, then.
We turned it over and taken the head and valve plates off of it.
After this intimate and extended examination, it will be noted that Scott con-
sidered the compressor worthy of shipment to a company for restorative treatment.
Testimony of Respondent's witnesses, as to the value of equipment damaged,
presents similar infirmities. Bownds, who testified that he was directly re-
sponsible for the storeroom stock, stated the retail value in October 1946 of the
entire refrigeration unit at from $125 to $135. Only the compressor body, as he
testified, could not be used. The remaining equipment lie valued at $55. On
this basis the total damage, at a maximum, was $80
Fallon was asked to "explain somewhat exactly what items go into that $105"
alleged in Respondent's answer to represent the damage to equipment. He replied,
Roughly, the body was worth about $55.00 replacement value of all parts
of the body. What else now9
Q. What else makes up the $105 00?
A. Well, the receiver, which was also a loss, was worth, as I recall,
about fifteen or eighteen dollars, with the valves and everything possibly
twenty dollars. Then the condenser part which also had to be thrown away,
was worth, I imagine, you see there are valves and stuff on that which
go into the make up, and that is what I understood made up the expense.
After considering the full record the undersigned is not convinced either that
the compressor body was ruined through carelessness on Taylor's part or that the
Respondent's testimony proves damage from any cause to the extent of $105.0a
as alleged. These allegations as to the reason for the discharge of an employee
after 2 years and 3 months of entirely acceptable service do not carry conviction.
Rather the undersigned finds the cause for Taylor's discharge in his persistence
in union activities after the previous discharge of seven Union adherents. Just
as Balm's and Rainwater's discharge followed immediately on the first Union
meeting and that of five employees in the carpenter shop occurred on the next
day after the second Union meeting, so Taylor's discharge was coincident with
the renewed union activities associated with the Board election on October 22,
1946. His union sympathies had been manifested in conversations with several
of Respondent's supervisors and officials Just before his discharge Foreman
White had reported to Scott, Taylor's foreman, that Taylor had been soliciting
for the Union in the carpenter shop. Thereafter a pretext for his discharge was
SUPER-COLD SOUTHWEST COMPANY 125
found in the alleged damage to equipment. It is inherently incredible that a
capable, careful and responsible employee throughout over 2 years of service
should suddenly "carelessly if not maliciously" damage equipment. He must
be expected to continue faithful in the performance of his duties as he continued
steadfast in his allegiance to the Union. In such union membership and activity
lies the only plausible reason for Taylor's discharge. After consideration of the
full record the undersigned concludes and finds that C. R. Taylor was discrimina-
torily discharged for that reason.
The undersigned finds that by the discharge of Walter H Bahn and Lee R.
Rainwater on August 21, 1946; of James A. Calvin, Charles B. Vermillion, Charles
A. Weaver, James A. Moore, and John W. Willis on August 28, 1946, and of
C. R. Taylor on October 24, 1946, and the subsequent refusal to reinstate them,
the Respondent discriminated in regard to their hire and tenure of employment
and the terms and conditions of their employment and discouraged membership
in a labor union. By these discharges, and by the acts and statements of
General Manager Fallon, Service Manager Zenor, Purchasing Agent Robert
Fallon, Foremen Wolfe and Scott, as set forth above, the Respondent interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of Respondent described in Section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action found necessary to effectuate the policies of the Act.
It has been found that the Respondent discharged Walter H. Bahn and Lee R.
Rainwater on August 21, 1946, James A Calvin, Charles B. Vermillion, Charles
A. Weaver, James R. Moore, and John W. Willis on August 28, 1946, and C. R.
Taylor on October 24, 1946, and thereafter refused to reinstate them because of
their union activities, thus unlawfully discriminating in regard to the hire and
tenure of their employment and the terms and conditions of their employment.
It will be recommended that the Respondent be ordered to offer them immediate
and full reinstatement to their former or substantially equivalent positions 12
without prejudice to their seniority and other rights and privileges. It will be
further recommended that the Respondent make them whole for any loss of pay
they may have suffered by reason of the Respondent's discriminatory action, by
payment to them of a sum of money equal to the amount they normally would
have earned as wages from the dates of their respective discriminatory dis-
charges to the date of the Respondent's offer of reinstatement less their net
earnings during said period.°'
n In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position
wherever possible, but if such position is no longer in existence, then to a substantially
equivalent position." See Matter of The Chase National Bank of the Guy of New York,
San Juan, Puerto Rico Branch, 65 N. L. R. B. 827.
as Batter of Crossett Lumber Co., 8 N. L R. B. 440, 497-498
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's discharge of the employees named above for their participation in
union activity constitutes an offense which strikes at the heart of the Act .m The
undersigned is convinced that such action is potentially related to the unfair labor
practices proscribed by the Act, and that danger of their commission in the
future is to be anticipated from the Respondent's proven past offenses. In order,
therefore, to make effective the interdependent guarantees of Section 7 of the
Act, the undersigned will recommend that the Respondent be ordered to cease
and desist from in any manner infringing upon the rights of employees which
are protected by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Retail, Wholesale & Department Store Union , affiliated with the Congress
of Industrial Organizations , is a labor organization within the meaning of
Section 2 ( 5) of the Act.
2. By discriminating in regard to the hire and tenure of employment and the
terms and conditions of employment of Walter H Balm, Lee R. Rainwater,
James A. Calvin , Charles B. Vermillion , Charles A Weaver , James R. Moore,
John W. Willis, and C. R. Taylor , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (3) of the Act.
3 By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
1. On the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondent, Super-Cold Southwest Company,
its officers, agents, successors, officials, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in Retail, Wholesale & Department Store Union,
CIO, or any other labor organization, by discriminating in regard to the hire
and tenure of employment or any terms or conditions of employment of its
employees ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form, join, or assist
Retail, Wholesale & Department Store Union, CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing and
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to Walter H. Bahn, Lee R. Rainwater, James A. Calvin, Charles B.
Vermillion, Charles A. Weaver, James R. Moore, John W. Willis, and C. R.
Taylor, immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and
privileges ;
31 N. L. R. B. v. Entwistle Manufacturing Co., 120 F. ( 2d) 532, 536 ( C. C. A. 4).
SUPER-COLD SOUTHWEST COMPANY 127
(b) Make whole those employees for any loss of pay they may have suffered
by reason of Respondent 's discriminatory action against them ;
(c) Post at its plant in Dallas , Texas, copies of the notice attached hereto
marked "Appendix A." Copies of said notice , to be furnished by the Regional
Director for the Sixteenth Region, after being signed by the Respondent ' s repre-
sentative , shall be posted immediately by the Respondent upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices
are not altered , defaced, or covered by any other material ;
(d) Notify the Regional Director for the Sixteenth Region in writing, within
ten (10 ) days from the date of the receipt of this Intermediate Report, what
steps the Respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10 ) days from the date
of the receipt of this Intermediate Report, the Respondent notifies the Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947 , any party may, within
twenty ( 20) days from the date of service of the order transferring the case to
the Board, pursuant to Section 203.45 of said Rules and Regulations, file with
the Board, Rochambeau Building, Washington 25, D. C., an original and six
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding ( including rulings upon
all motions or objections ) as he relies upon, together with the original and six
copies of a brief in support thereof ; and any party may, within the same period,
file an original and six copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85.
As further provided in said Section 203.46 , should any party desire permission
to argue orally before the Board, request therefor must be made in writing to
the Board within ten (10) days from the date of service of the order transferring
the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings, conclusions
and order, and all objections and exceptions thereto shall be deemed waived for
all purposes.
CHARI.Es E . P St8ONS,
Trial Examiner.
Dated September 15, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist RETAIL, WHOLESALE & DEPARTMENT STORE
UNION, C. I. 0., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to the employees named below immediate and full re-
instatement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the
discrimination.
Walter A. Bahn Charles A. Weaver
Lee R. Rainwater James A. Moore
James A. Calvin John W. Willis
Charles B. Vermillion C. R. Taylor
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard
to hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
SUPER-COLD SOUTHWEST COMPANY,
Employer.
Dated ------------------------ By ----- ---------------------------
(Representative ) ( Title)
NOTE : Any of the above-named employees presently serving in the Armed Forces
of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material.