Tennessee Products Corp.

National Labor Relations Board - Board Decisions

May 27, 1942

41 N.L.R.B. 326 (N.L.R.B. 1942)

In the Matter of TENNESSEE PRODUCTS CORPORATION and INTERNA-
TIONAL UNION OE MINE, MILL & SMELTER WORKERS
Case-No. C-2013.-Decided May 27, 1,942
Jurisdiction : ferro-manganese and mineral wool insulation manufacturing in-
dustry.
Unfair Labor Practices
In General : employer held responsible for acts and statements of supervisory
employee who ordinary employees would be pnstified in believing was acting
as Company 's representative.
Interference, Restraint , and Coercion., violence' against union representative and
active union member.
Discrimination : discharge for union activity; charges dismissed as to one em-
ployee found negligent in his duty.
Remedial Orders : reinstatement and back pay awarded.
Mr. John C. McRee, for the Board.
Armistead, Waller, Davis ct Lonsden, by Mr. George H. Armistead,
Jr., and Mr. J. P. Davis, of Nashville, Tenn., for the respondent.
Mr. M. C. Anderson, of Birmingham, Ala., and Mr. Van D. Jones,
Of Mt. Pleasant, Tenn., for the Union.
-Mr. Robert R. Hendricks, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF TAE CASE
Upon an amended charge duly filed by International Union of
Mine, Mill & Smelter Workers, affiliated with the Congress of, In-
dustrial Organizations, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Tenth Region (Atlanta, Georgia), issued its complaint, dated
September 18, 1941, against Tennessee Products Corporation, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (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 complaint, accompanied by notice of hearing, were duly
served upon the respondent and the Union.
41 N. L. R. B., No. 72.
326
TENNESSEE PRODUCTS CORPORATION 327
With respect to the unfair labor practices, the complaint alleged
in substance : (1) that the respondent discharged Ed Brannon l on
or about March 15, 1941, and Herman Shelton on_ or about March
22, 1941, and thereafter refused to reinstate them, because they had
joined the Union and-had engaged in other concerted activities for
the purposes of collective bargaining or other mutual aid and pro-
tection; and (2) that the respondent, by beating and cursing its
employees who were active in. behalf of the Union, by threatening
its employees with discharge if they should be seen associating with
union leaders, and by other similar acts and conduct described in
the complaint, interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On October 2, 1941, at the hearing, the respondent filed its answer
denying that it had engaged in the unfair labor practices alleged in
the complaint and averring affirmatively that Brannon had volun-
tarily quit his employment, that Shelton was discharged because of
neglect of duty, and that the respondent had offered the latter sub-
stantially equivalent employment at another of its plants.
Pursuant to notice, a hearing was held at Columbia, Tennessee,
on October 2, 3, 6, and 7, 1941, before Edward G. Smith, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
and the respondent were represented by counsel and participated in
the hearing. The Union was represented by an international repre-
sentative and a member of its Executive Board. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the open-
ing of the hearing, the respondent moved to strike certain paragraphs
of the amended charge and of the complaint.2 The motions were
denied. At the close of the Board's case, counsel for the Board moved
to conform the pleadings to the proof. The motion was granted with-
out objection. Rulings on other motions and on objections to the
admission of evidence were made by the Trial Examiner during the
course of the hearing. The Board has reviewed all rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. At the close of the hearing, all
parties were afforded an opportunity to argue orally before the Trial
Examiner. No argument was made.
On November 17, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent and
the Union, in which he found that the respondent had engaged in
certain unfair labor practices affecting commerce, within the meaning
of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and
I Spelled Brandon in the complaint. -
' During the course of subsequent oral argument before the Board , these motions to
strike were withdrawn by the respondent.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that the respondent cease and desist therefrom and
that it offer reinstatement with back pay to the two employees named
in the complaint. The respondent filed exceptions to the Intermedi-
ate Report, accompanied by a supporting brief, and argued orally
thereon before the Board on February 3, 1942. The Board has con-
sidered the exceptions to the Intermediate Report and the supporting
brief and, insofar as the exceptions are inconsistent with the findings,
conclusions, and order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The -respondent, Tennessee Products Corporation, is a Tennessee
corporation engaged in the manufacture and production, of hardwood
distillation products, acetic acid, methanol, hardwood charcoal, char-
coal, pig iron, ferro-manganese, ferro-phosphorus, tensulate, mineral
wool insulation, coal, and coke. It operates plants at Chattanooga,
Rockdale, Rockwood, Whiteville, and Wrigley, Tennessee.
This proceeding is concerned only with the respondent's operations
at its Rockdale plant, which employs approximately 275 persons.
The Rockdale plant is engaged in the manufacture, sale, and dis-
tribution of ferro-manganese and mineral wool insulation. The
principal raw materials used at this plant are manganese ore, lime-
stone, and slag. - The Rockdale plant normally uses approximately
50,000 tons of ore per month, of which approximately 95 percent is
purchased and 'shipped to Rockdale from points outside the State
of Tennessee. Of the ferro-manganese produced at the Rockdale
plant, approximately 90 percent is sold and shipped to customers
outside the State of Tennessee.
The respondent admits that it is engaged in commerce, within the
meaning of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
International Union of Mine, Mill -'C- Smelter Workers is a labor
organization affiliated with the Congress of Industrial Organizations.
It admits to membership employees of the respondent at its Rockdale
plant.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In March 1941, 2 years after the expiration of a collective bargain-
ing agreement between the respondent and a local of the Union, the
latter started a campaign to reorganize the respondent's Rockdale
TENNESSEE PRODUCTS CORPORATION 329
employees. On March 1, 1941, Mitchell C. Anderson, an international
representative of the Union, met Herman Shelton, employed as boiler-
water tender at the Rockdale plant, in the respondent's commissary.
Shelton had been a member of the Union at the respondent's Wrigley
plant, and was known to Anderson. While in the commissary,,An-
derson solicited renewal of Shelton's union membership, obtained his
signature to a union application card, and handed him some 40 or
50 application cards for membership in the Union. Both Anderson
and Shelton testified that Raymond Skillern, superintendent of the
Rockdale plant, was present in the commissary while they were talk-
ing together. It is undisputed that Anderson and Skillern were
known to each other by reason of previous meetings between them
during the negotiation of union contracts. Skillern testified that lie
_did not remember having seen Anderson in the commissary, but
admitted that during that month he had seen Anderson talking to a
group of men near the respondent's office. The Trial Examiner, on
the basis of this testimony, found that Skillern, on March 1, 1941,
did observe Anderson, who was known to him to be a union organizer,
talking with Shelton in the respondent's commissary. We find
accordingly, and, in addition, that Skillern was aware of the renewed
organizational efforts of the Union at this time.
Thereafter Anderson returned, "almost every day," to the Rockdale
plant and openly pursued the Union's reorganization drive. On
March 10, at about 10 o'clock in the evening, Anderson, accompanied
by two persons, drove to the Rockdale plant and parked his automo-
bile near a railroad. depot, which stands in the rear of the respondent's
plant. Anderson's purpose was to interview and solicit employees as
they came off their shifts at 10 p. in. and returned to their cars near
the depot. Anderson's testimony as to what occurred that night is
• substantially as follows As he walked in front of his car, lie saw a
group of seven men standing at the other end of the depot; one man,
whom he recognized as Raymond Skillern, walked toward him and
then returned toward the group ; 3 Anderson thereupon became
suspicious and returned to his car. As Anderson prepared to turn
his car around and leave, lie heard a shot and saw a flash of fire
coming from the direction of a water tower and about 20 feet from
the front of the car. Immediately thereafter, and before he had time
to put his car in motion, "two men came up and jerked my car doors
open, one on each side of the car . . . and started hitting us." At
the time, neither of the two assailants was known to Anderson, but
he later identified them as George Skillern, yardmaster of the re-
"Raymond Skillern denied having been present or having seen Anderson on the night
of March 10, 1041. We do not believe it is necessary to resolve this conflict, as
Raymond Skillern's presence is not material' to the finding hereinafter made with respect
to-this-incident.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's Rockdale plant and a brother of the superintendent, and
Ed Workman, assistant yardmaster. George Skillern, the person
who had opened the door on Anderson's side of the car, addressed
him by saying, "Didn't you know that we are not going to have no
God damned C. I. O. union here at this plant . . ." and "they wasn't
going to have any God damned C. I. O. sons-of-a-bitches around
there"; thereupon Skillern struck Anderson several times about his
head and neck.
On the following day, Anderson testified without contradiction,
he reported the incident to a deputy sheriff of the county, named
Lovelace, but did not swear out a warrant for George Skillern' s arrest
because he "didn't care about taking any action without the law
enforcement officers wanted to investigate." Leslie A. Miller, the
respondent's vice president, admitted at the hearing that Anderson
had given him, during the latter part of the same month , a similar
account of the assault. Anderson's companions on the night of the
assault did not testify.'
George Skillern denied that he had ever seen Anderson prior to
the hearing. Both Skillern and Ed Workman, a personal friend of
the former, denied having been present or having participated in the
assault on Anderson, or that they had any knowledge that the assault
had taken place. In view of Anderson's almost daily and non-
secretive visits to Rockdale in the spring of 1941, together with
his long acquaintance with Raymond Skillern, the Trial Examiner
discredited George Skillern's denial that he had ever seen Anderson
prior to the hearing. We are in agreement and find accordingly.
The Trial Examiner, who had the opportunity to observe the wit-
nesses, further found George Skillern and Ed Workman, because
of their demeanor, evasiveness, and apparent reluctance to testify
concerning this incident, not to be reliable witnesses. On the other
hand, Anderson's uncontradicted testimony that, on the day following
the assault, he reported the incident to a law-enforcement officer,
together with Miller's admission that Anderson, during the same
month, had related to him a story of the assault similar to that which
he told on the stand, lend credence to Anderson's account of the
occurrences of that night. We accordingly credit the testimony of
Anderson, as did the Trial Examiner .5
' Anderson testified that one of his companions had moved out of the State of Tennessee
and could not be located ; and that he had been unable to find the other.
b The record indicates, and it is further pointed out by the Trial Examiner in his
Intermediate Report, that both George Skillern and Anderson have been convicted- of
crime. Skillern pleaded guilty to an indictment, presented by a Maury County, Tennessee,
Grand Jury , charging him with murder while perpetrating a robbery , and was sentenced
to life imprisonment on November 13, 1935. He testified that he was - pardoned in 1938.
Anderson was convicted on January 29; 1941, in the United States District Court for
the Eastern District of Tennessee , of conspiring to injure United States property and
was sentenced to 2 years ' imprisonment and fined the sum of $5,000. The conviction aid
TENNESSEE PRODUCTS CORPORATION - 331
About'2 or 3 weeks subsequent to his alleged discharge on March
-14, 1941, for union activity, Ed Brannon, whose discharge is here-
inafter discussed, became involved in an encounter with George
-Skillern. Brannon, who became a member of the Union on or about
- March 8, 1941, had taken part in' the Union's reorganization drive
by distributing 'application cards and soliciting various of his fellow
workers in the respondent's wool mill to join•the Union. As herein-
after more fully found, his union activity was known to the respond-
ent.' According to Brannon's testimony, George Skillern accosted him,
at about 7 o'clock on the evening in question as he was walking across
the respondent's property on his way home, and demanded to know
where he was going. After Brannon had explained that he was on
his way home, which was located behind the plant, George Skillern
- walked up to him, "laughing," and knocked him down. Skillern then
called him "one of these C. I. 0. son-of-a-bitches" sand said, "I ought
-to kill you right now . . ." Thereafter, according to Brannon's fur-
ther testimony, Skillern proceeded to knock Brannon down each time
that he sought to regain his feet. During the course of the assault,
Brannon's testimony continued, Ed Workman, Clarence Cothran,
Jake Hines, and several other employees of the respondent had gath-
ered around him and his assailant, and Skillern stopped beating him
only after persuasion by Cothran.
Brannon's testimony regarding his lack of aggression on this occa-
sion is corroborated, in part, by a sworn statement of Jake Hines,
which was introduced in evidence. While Hines, as hereinafter ap-
pears, repudiated the second and third'paragraphs of his statement,
part of the first paragraph which he did not disavow, is as follows :
I was in Wm. Howard's car going south into Rockdale. As
we came by the Company wool plant, I saw that some trouble
was going on between Brannon and George Skillern . . . I went
over where the fight was going on. deo'rge Skillern struck
Brannon two or three times and Brannon was backing away and
was not offering to fight back.. I asked George not to hit Bran-
non any more and Skillern turned and told me there wasn't
a damn thing to me either. I got back in the car and left.
George Skillern admitted having been involved in an altercation
with Brannon at that time, but testified that it had been provoked
sentence were affirmed by the United States Circuit Court of Appeals foi the Sixth
Circuit A petition for a writ of certiorari to the Circuit Court of Appeals is presently
pending in the United States Supreme Court
The Trial Examiner ,' in his Intermediate Report, found that the nature of the crime
of'which George Skillern was convicted established his character for deliberate , unpVo-
voked violence , and thus provided , further reason for discrediting his denial of having
assaulted Anderson . In making our finding, above , no significance has been attached
by us to the criminal record of either Skillern or Anderson.
6 See Section III B , infra.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Brannon. Skillern testified that, as he, accompanied by Work-
man and Cothran, was backing his car from his driveway'to the high-
way, Brannon approached the car, and stating, "George; you son of -a-
bitch, do you want a drink of whiskey?" offered him a drink. Skill-
ern, according to his testimony, refused the drink and, after Brannon
"didn't make any apology" for having so addressed him, "one word
-brought on another . . ., and then I got out and the fight started."
He admitted having struck the first blow, but only after Brannon had
struck at him and missed. Skillern, who described the clash as
"just a little light -workout," during which Brannon fought back,
denied having knocked Brannon down. He stated that the fight
"just stopped" of its own accord and that, at no time, did he hear
anyone try to stop him. He further denied having sworn at or
threatened to kill Brannon, or having referred to the C. I. 0. Work-
man and Cothran, who testified that they had remained in Skillern's
car until after the actual encounter had started, corroborated Skill-
e-rn's testimony. Cothran denied having attempted to stop the fight.
The Trial Examiner, who saw the witnesses and observed their
demeanor, rejected the testimony of George Skillern, Workman, and
Cothran as neither credible, convincing, nor persuasive. He found
Brannon to be "an average unsophisticated industrial worker who,
although sometimes not precise in the choice of language, desired to
tell the truth," and accepted as true his version of the assault. In
reliance upon the Trial Examiner's judgment, and because of the
corroboration afforded by the statement of Hines, a hostile witness,
we find that Ed Brannon was assaulted by George Skillern, and that
during the assault, and in the presence of other employees of the
respondent, Skillern uttered the statements to which Brannon testi-
fied. We further find that the beating of Brannon, an active mem-
ber of the Union, accompanied by Skillern's violent remarks at the
time, was designed to serve as an object lesson to other employees that
union organization would not be tolerated at Rockdale.
The respondent contends that if George Skillern in fact perpe-
trated the assaults and uttered the statements attributed to him, it
cannot be held responsible, as they were the unauthorized acts of a
minor supervisory employee. We find this contention to be without
validity. George Skillern was made yardmaster at the Rockdale
plant in March or April 1940. As yardmaster, he testified, he was
in charge of all cranes, locomotives, trestles, and stock and had work-
ing under him an assistant yardmaster, trainmen, and laborers. In
view of his position as a responsible supervisory employee, together
with his close relationship to Raymond Skillern, the superintendent,
it is clear, and we find, that ordinary employees of the respondent
would be justified in believing that George Skillern, through his con-
TENNESSEE PRODUCTS CORPORATION .333'
duct and statements, was acting -as the respondent's representative.
Under these circumstances, the respondent is responsible for Skillern's
acts and statements regardless of whether they were in fact unau-
thorized, as claimed.7 That the respondent, moreover, was not un-
aware of, and in fact condoned, the anti-union attitude of its Rock-
dale officials is evidenced by a statement made by Carl McFarlin,
president of the respondent, to Anderson during the course of an
interview in the latter part of March. According to Shelton, who
was present and whose testimony in this respect was neither denied
nor contradicted, McFarlin, after having discussed union organiza-
tion at Rockdale with Anderson, told the latter that '!he .had better
be kind of careful about how he worked down there around Rockdale,
that Mr. Skillern might make a personal case out of it, or a personal
appearance or something to that effect." We find that the respond-
ent was cognizant of a serious hostility on the part of its Rockdale
officials toward the Union and that, as evidenced by the acts and state-
ments of George Skillern, it failed to curb the repeated expression
by its Rockdale yardmaster of such hostility, and thereby condoned
such conduct.
We find that, by the above-mentioned acts and statements of George
Skillern, the respondent interfered with; restrained, and coerced its
employees in the exercise of the rights guaranteed in Section- 7 of the
Act.
B. The discharges
1. Ed Brannon
Brannon was first employed by the respondent in March 1940. He
worked continuously thereafter as a laborer in the mineral wool mill
until March 14, 1941. Brannon joined the Union on or about March
8, 1941, and distributed application cards among other workers in the
wool mill. He obtained the signature of one worker. It is undenied
that, 1 or 2 days' prior to his alleged discharge, he solicited one of
his shift foremen, without success, to join the Union. Hugh Bradley,
another of Brannon's shift foremen, testified that he had heard that
Brannon had distributed union application cards in the wool mill.
In view of this testimony, we find that the respondent, through
its wool-mill foremen, was aware of Brannon's union activity.
Brannon testified that, at the close of his shift on the after-
moon of March 14, Richard Chaffin, head foreman of the wool
mill, told him not to report for work until further notice ; that he
returned to the mill that night and asked Chaffin what he had done
' See International Association of Machinists v. National Labor Relations Board, 311
U. S 72 ; H J. Heinz , Co. V , National Labor Relations Board, 311 U. S. 514 ; National
Labor Relations Board v Link-Belt Co ., 311 U. S 584.
334' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
to-cause Chaffin to tell him not to report for work; and that Chaffin,
after replying, "You haven't done anything, it is something you
have not done," refused to talk further with him.
- The respondent contended that Brannon had voluntarily quit its
employ and had not been discharged. In support of this contention,
Chaffin testified that Brannon voluntarily severed his employment
under the following circumstances : On March 14, Brannon told him
that, if rolling slag and wool was the only work he had for him,
he was going to quit. When Chaffin replied that that was all he
had- for Brannon to do, Brannon remarked, "Well, if that is all, I-
am going . . . I will go out and make the day." Chaffin denied
that he had told Brannon not to report for work and denied the'
remarks and conversation attributed to him by the latter. The Trial
Examiner, who observed the demeanor of the witnesses, found that
Chaffin was not a persuasive witness and accepted Brannon's version
of the circumstances under which his employment had ended.
In further support of the respondent's contention that Brannon
had voluntarily quit his job, Hugh Bradley and Marvin Brannon,
a brother of Ed Brannon, testified that prior to March 14, Ed
Brannon had expressed a desire to quit and seek other employment.
Ed Brannon readily admitted having made such statements to
Bradley several months prior to March 14, but stated at the hear-
ing that the remarks had been made in jest and in an effort "to, get
him (Bradley) riled up somehow." Marvin Brannon testified that
he had been present at the time his brother had made the remark
to Bradley, and that while he did not know whether or not his
brother was jesting, "we was just laughing and talking there when-
ever he said that." The Trial Examiner found Ed Brannon to be a
credible witness. In reliance on such finding and in view of the
inconclusive rebuttal of Ed Brannon's explanation, we accept the
latter's testimony that the statements were made in jest,-and find
that they do not support the respondent's defense.
The respondent further asserts, in support of its contention that
Brannon terminated his employment on his own initiative, that
Brannon had made a practice of absenting himself from work with-
out permission or excuse. Although Chaffin testified that Brannon,
without giving notice, failed to report for work three nights a week
toward the end of his employment and that he had laid off other
men who had been similarly absent on the first occasion of their
dereliction, he stated that he had disciplined Brannon by laying him
off for 10 days on only one occasion. Chaffin explained at the hear-
ing that he felt sorry for Brannon's family and did not, therefore,
discipline him more often. Brannon testified that on only one occa-
sion, in March 1941, had he failed to report for wor, and thatk
TENNESSEE PRODUCTS CORPORATION 335'
Chaffin, the following day, accepted his excuse for that, absence. He
denied ever having been laid off or otherwise disciplined for absence
from work without excuse. Brannon admitted having been late for
work on only two occasions, both in,March 1940, when he first started
to work and had to hitch-hike because he resided some 4 miles from
the plant. The respondent made no attempt, by the introduction of
time sheets or other office records, to support Chaffin's testimony and
to show the actual extent of Brannon's unexcused absences. It is
improbable that the respondent would have countenanced such con-
sistent and unexcused absence on the part of one of its employees.
Another and entirely different explanation of Brannon's loss of
employment appears on his separation notice. On the Monday fol-
lowing his discharge, Brannon collected his pay and received a sep-
aration notice prepared at the direction of Hugh Bradley, shift
foreman, which stated that lack of work was the cause of his sep-
aration. At the hearing, Bradley admitted having authorized the
preparation of the separation notice after Brannon had requested it.
Bradley testified that when he was asked by one of the office clerks
if lack of work was to be stated thereon as the reason for the separa-
tion, he replied, "I just couldn't hardly say." He admitted, however,
that he knew that lack of work was the cause assigned. No further
explanation for the appearance of this reason on the separation notice
was advanced by the respondent.
Further light is cast upon the termination of Brannon's employ-
ment by a sworn statement of Jake Hines, an employee of the re-
spondent, the first paragraph of which has been hereinbefore men-
tioned in connection with the discussion of the altercation between
Brannon and George Skillern s The second and third paragraphs
of that sworn statement, not hereinbefore referred to, are as follows :
Several days later [after George Skillern'es assault upon
Brannon] I heard George Skillern talking against the Union
in the company store and saying that Brannon got fired for
belonging to the Union. I have heard Skillern say he wouldn't
work anybody who belonged to a union, and he is always cussing
the Union.
I make the above statement of my free will and with full
knowledge that it may be used as evidence by the National Labor
Relations Board.
Hines is employed by the respondent and is a nephew of Reese
Hines, the master mechanic who, in turn, is a brother-in-law of
Raymond Skillern, the plant superintendent. Hines' statement was
signed by him in the presence of W. E. Spencer, a Field Examiner
8 See Section III A; supra.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Board. At' the hearing, Hines identified his signature on the
statement and did not disavow the first paragraph of the statement .9
He denied; however, that he had informed Spencer of the matters
referred to in the first paragraph set forth aboye and denied that this
paragraph, as, well as the closing paragraph, were included in the
statement when he signed it, or that they had ever been read to him.
He insisted that the portion of the written statement taken up' by
these latter two paragraphs was blank when he signed, notwithstand-
ing the fact that his name on the original statement appears at the
bottom of the page. That Hines desired to destroy' the -effect of this
statement by denying its authenticity is apparent not only from the
unconvincing character of his testimony in this respect, but also from
the contrary evidence of numerous witnesses, whom we find to be
credible. Anderson, who was present when Spencer took Hines'
statement, testified that Hines read the entire statement and sub-
scribed to it. An affidavit of Spencer, who was not available as a
witness at the-hearing, was introduced in evidence. In his affidavit,
Spencer averred that he had written down each statement contained
in the Hines affidavit after a full discussion of its contents with
Hines; that each and every statement-contained therein was read
aloud to Hines, who subscribed thereto; and that Hines was duly
sworn and had full knowledge that the statements contained in the
affidavit were made under oath. Other witnesses, including counsel
for the Board in this proceeding, testified that they were present
on the day preceding the commencement of the hearing when the
entire statement was shown, and then read to Hines; and that he,
at that time, verified the accuracy of its contents and expressed no
desire to add to or detract from that statement. We credit, as did
the Trial Examiner, Hines' written statement, discredit his attempted
repudiation, and find that George Skillern made the statements
attributed to him by Hines.lo
The Trial Examiner credited Brannon's account of the circum-
stances under which his-employment was terminated and found that
he had in fact been discharged. In reliance on the Trial Examiner's
finding and in view of the inconsistency" between the separation
notice and the respondent's defense at the hearing, the unconvincing
character of the evidence adduced by the respondent in support of
its defense, and the corroboration afforded by Hines' statement to
Brannon's claim that he had been discharged, we find, as did the
Trial Examiner, that Brannon did not voluntarily quit his employ-
ment but was discharged by Chaffin. We find further, from all the,
8 See section III A, supra.
10 See Matter of Dixie Motor Coach Corporation and Sunshine Bus Trines, Inc. and
Brotherhood of Railroad Trainmen, 25 N. L. R. B. 869.
TENNESSEE PRODUCTS CORPORATION 337
evidence, that Brannon was discharged because of his Union member-
ship and activity.
- We find that by the discharge of Brannon, the respondent has
discriminated in regard to his hire and tenure of employment, dis-
couraged membership in the Union, and has thereby interfered with,
restrained, and coerced its employees in the 'exercise of the rights
guaranteed in Section 7 of the Act.
2. Herman Shelton
Shelton was first employed by the respondent in 1933 at its Wrig-
ley plant where he worked in various capacities in and around the
boiler room until January 1940 when, at his request, he was trans-
ferred to the respondent's Rockdale plant and assigned to a stove-
tending job. Shortly thereafter, on Shelton's assurance that he was
capable of handling the job, Raymond Skillern promoted him to the
position of boiler-water tender. Shelton had been a member of the
Union at Wrigley and, as hereinbefore related, he rejoined on March
1, 1941, at Rockdale. He assisted Anderson in the Union's reorgani-
zation drive by distributing application cards, and there is evidence
in the record, which we believe, that on two occasions prior to his
discharge he was seen by Raymond Skillern while conversing with
Anderson.
As boiler-water tender, Shelton's principal duty was to maintain
the proper water level in five boilers which are located in the open,
outside the engine room. The boilers are large and it is clearly
established by the record that failure to maintain a proper water
level in them might result either in their becoming dry and blowing
up, or in their overflowing and causing serious damage to the engines.
The respondent contends that Shelton was discharged for neglect
of duty. In this connection, Raymond Skillern testified as follows :
On the evening of March 22, 1941, he passed through the engine
room and observed Shelton reclining on a bench with his head resting
on a tool box and his hat pulled down over his face. Skillern left
the room and, on his return, met Shelton at the door leading out to,
the boilers. Skillern accused Shelton of having been asleep, expressed
fear of allowing the boilers to remain in Shelton's care, and immedi-
ately placed another man in Shelton's job. The following morning
Shelton was given his separation notice.
At the hearing, Shelton denied having been asleep, but admitted
having remained on the engine-room bench some 15 minutes before he
arose, and was met by Skillern at the door. He testified that just
before he sat down in the engine room he "had been out in front
of the boilers." He admitted that he often sat on the bench and that,
on this night, he "lay back against the tool box," with his hat pulled
463892=42-vol. 41-22
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over his head, but not over his eyes, and that he was in a position
to observe the pressure gauge on the water feed pump. According
to Shelton, by watching the water feed-pump gauge, which was lo-
cated in the engine room, "you . . . can tell what your (boiler) water
is doing."
Raymond Skillern testified that the feed-pump gauge indicates only
the pressure in the pump, and that the pump gauge would not dis-
close the quantity of water, which fluctuates constantly in proportion
to the amount of steam being used, in the outside boilers. It is clear
from the record, and we find, that the principal function of a boiler-
water tender, at Rockdale, is to maintain an almost constant check of
the boiler gauges 11 There is considerable evidence in the record
which tends to discredit Shelton's denial that he was asleep. Thus,
numerous employees of the respondent testified, without contradiction,
concerning Shelton's neglect of duty; both prior to, and on the night-
of March 22, 1941. Seth Gilmore, an engineer who was stationed in
the engine room on the night of the discharge, testified that Shelton
had laid down on the bench twice that night; that on the first occa-
sion he lay there 20 to 25 minutes before Skillern entered the room;
that after Skillern had passed through, Shelton remained in this
position for another 10 to 15 minutes. He further testified that, when
Shelton did get up and was told that Skillern had seen him, Shelton
had replied, "I guess it will cost me my job." Shelton, at the hearing,
admitted having made this statement. Other employees told of hav-
ing seen Shelton lying on the bench on previous occasions. Homer
Calton, who worked on the night shift with Shelton, testified that
"a few times I would set some waste on fire when I would catch him
asleep and throw it under him." The record, moreover, clearly indi-
cates that even if Shelton were not asleep, he was not, while re-
clining some 15 minutes or more on the engine-room bench, in a posi-
tion properly to watch the boiler gauges.
The respondent, both prior to and at the hearing, offered to rehire
Shelton in some other capacity at one of its other plants.
The Trial Examiner found that Shelton was discharged because
of his union activity. We disagree with the Trial Examiner and
find that his conclusions are not borne out by the record. On- the
record as a whole, we are not convinced that Shelton was discharged
or refused reinstatement by the respondent because of his union
activities. We find accordingly and shall dismiss the complaint as
to him.
11 Reese Hines , the master mechanic and Shelton's immediate superior, testified that
a water tender should check the boiler gauges not less than every 7 to 10 minutes. Ray-
mond Skillern and Miller , the respondent 's vice president and an engineer , testified that
in order for a water tender properly to fulfill his function , it is necessary for him to
be constantly on the alert and in continuous motion in and about the boilers
TENNESSEE PRODUCTS CORPORATION 339
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent' described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the-free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies
of the Act. Having found also that the respondent discriminated
in regard to the hire and tenure of employment of Ed Brannon, we
shall order the respondent to offer him immediate and full reinstate-
ment to his former or substantially equivalent position, without prej-
udice to his seniority and other rights and privileges, and to make
him whole for any loss of pay he may have suffered by reason of
the discrimination against him from the date of the discrimination to
the date of the offer of reinstatement, less his net earnings during
said period 12
Upon the foregoing findings of fact and upon the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Union of Mine, Mill & Smelter Workers, affiliated
with the Congress of Industrial Organizations, is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Ed Brannon, and thereby discouraging membership in a
labor organization, 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
2 By "net earnings" is meant earnings less expenses , such as for transportation,
room , and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent, which would not have been incurred but for the unlaw-
ful discrimination and the consequent necessity of his seeking employment elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Saxomill Workers Union, Local 2590 , 8 N. L. R. B. 440.
Monies received for work performed upon Federal , State, county, municipal, or other
work -relief projects shall be considered as earnings . See Republic Steel Corporation v.
National Labor Relations Board, 311 U. S. 7.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
5. The respondent has not discriminated in regard - to the hire
and tenure of employment of Herman Shelton, within the meaning
of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Tennessee Products Corporation, at its Rockdale, Tennes-
see, plant, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Mine,
Mill & Smelter Workers, affiliated with the Congress of Industrial
Organizations, or in any other labor organization of its employees
at its plant at Rockdale, Tennessee, by discriminating against its
employees in regard to their hire or 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 their right to, self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid and protection, 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 Ed Brannon immediate and full reinstatement to his
former position or to a substantially equivalent _ position, without
prejudice to his seniority or other rights or privileges;
(b) Make whole Ed Brannon for any loss of pay he has suffered
by reason of the respondent's discrimination against him, by payment
to him of a sum of money equal to that which he normally would
have earned as wages during the period from the date of such dis-
crimination to the date of the offer of reinstatement, less his net
earnings during such period;
(c) Post immediately in conspicuous places in its Rockdale, Ten-
nessee, plant, and maintain for a period of at least sixty (60) con-
secutive. 'days from the date of posting, notices to its employees
stating : (1) that the respondent will not engage in the conduct from
TENNESSEE PRODUCTS CORPORATION 341
which it is ordered to cease and desist in paragraphs 1 (a) and (b) of
this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a) and (b) of this Order; and (3) that
the respondent's employees are free to become or remain members of
International Union of Mine, Mill & Smelter Workers, affiliated with
the Congress of Industrial Organizations, and that the respondent
will not discriminate against any employee because of his membership
in or activity in behalf of said organization;
(d) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith; and
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent has discriminated
in regard to the hire and tenure of employment of Herman Shelton.
r