The Jackson Cookie Co. of North Litte Rock

National Labor Relations Board - Board Decisions

Feb 12, 1941

29 N.L.R.B. 556 (N.L.R.B. 1941)

In the Matter of J. C. JACKSON, C. R. JACKSON, AND W. A. JACKSON,
CO-PARTNERS, DOING BUSINESS AS THE JACKSON COOKIE COMPANY OF
NORTH LITTLE ROCK, ARKANSAS and BAKERY & CONFECTIONERY
WORKERS LOCAL UNION No. 442, AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR
Case No. C-1702.-Decided February 12, 1941
Jurisdiction : cookie manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: threatening to close plant rather than
recognize union; dismissal of allegations that respondent questioned its em-
ployees regarding union membership and instructed them not to join the union.
Discrimination: discharges for union membership and activities.
Remedial Orders : reinstatement and back pay ordered.
Mr. Samuel M. Spencer, for the Board.
Owens, Ehrman & McHaney, by Mr. Grover Owens and Mr. Her-
.schel Bricker, of Little Rock, Ark., for the respondent.
Mr. Donald Landay, of North Little Rock, Ark., for the Union.
Miss Mary Metlay, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Bakery & Confec-
tionery Workers Local Union No. 442, affiliated with the American
Federation of Labor, herein called the Union, the National Labor
Relations Board herein called the Board, by the Regional Director for
the Fifteenth Region (New Orleans, Louisiana), issued its complaint
dated June 24, 1940, against J. C. Jackson, C. R. Jackson, and ' W. A.
Jackson, co-partners, doing business as The Jackson Cookie Company,
North Little Rock, Arkansas, 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 and notice
of hearing thereon were duly served upon the respondent and the
Union. ,
29 N. L. R. B, No. 100.
556
THE JACKSON COOKIE COMPANY 557
With respect to the unfair labor practices , the complaint alleged
in substance that the respondent ( 1) discharged and refused to rein-
state Ourin , Hellum, William F . Tilley, Ralph • Milam, George Blasing-
hame, and Claude E. Stanfill because of their membership in or
activity on behalf of the Union ; (2) questioned its employees about
their union affiliation ; advised its employees that it would cease oper-
ations before permitting union men to work with it, and that it would
lock its doors before it would have any "dealings " with the Union
,or recognize the Union ; instructed its employees not to join the Union;
and referred to the union members as troublemakers and not fit to
work in the plant ; and (3 ) by the foregoing and by other acts inter-
fered with, restrained , and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act. On July 3, 1940, the
respondent filed its answer denying that it was engaged in interstate
commerce within the meaning of the Act, and that it had engaged
in or was engaging in the alleged unfair labor practices.
Pursuant to notice , a hearing was held at Little Rock, Arkansas,
,on August 19, 20, and 21 , 1940, before Charles E . Persons, the Trial
Examiner duly designated by the Board . The Board and the respond-
ent were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross -examine witnesses,
and to introduce evidence bearing, upon the issues was afforded all
parties. On August 19, 1940, the respondent filed with the Trial
Examiner a motion objecting to the jurisdiction of the Board. The
Trial Examiner reserved his ruling on the motion and denied it in
his Intermediate Report. At the close of the Board 's case counsel
for the Board moved to dismiss the complaint with respect to Claude
E. Stanfill on the ground that he could not be located at the time of
the hearing . At the close of the hearing counsel for the Board
moved to conform the pleadings to the proof with respect to names,
dates, and places. Both motions were granted by the Trial Examiner.
During the course of the hearing , the Trial Examiner ruled on other
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On October 1, 1940, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon the respondent and the
Union, in which he found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 ( 1) and (3) and Section 2 (6) and (7) of the Act.
The Trial Examiner recommended that the respondent cease and desist
from the unfair labor practices found, reinstate with back pay Tilley,
Blasinghame, Milam , and Helium, and take certain other appro-
priate action to remedy the situation brought about by its unfair labor
558' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices. He recommended further, that the complaint be dismissed
in so far as it alleges that the respondent questioned its employees
regarding their union membership and instructed them not to join
the Union.
On November 7, 1940, the respondent filed its exceptions to the In-
termediate Report, and on January 4, 1941, its brief in support of its
exceptions. On January 7, 1941, pursuant to notice, a hearing for
the purpose of oral argument was held before the Board in Washing-
ton, D. C. The respondent and the Union were represented by coun-
sel and participated in' the hearing. On January 13, 1941, the
respondent filed a supplemental memorandum. The Board has re-
viewed the respondent's exceptions to the Intermediate Report and
has considered the respondent's brief in'support of its exceptions and
its supplemental memorandum and, to the extent that the exceptions are
inconsistent with the findings of fact, conclusions of law, and order
set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
J. THE BUSINESS OF THE RESPONDENT
The respondent is a co-partnership with its principal office and place
of business at North Little Rock, Arkansas. It is engaged in the
manufacture of wafers and cookies. The principal raw materials
used by the respondent in the conduct of its business consist of flour,
sugar, shortening, raisins, vanilla flavoring, boxes, and bags. Of the
raw materials used by the respondent during the year 1939, the re-
spondent expended approximately $34,025 on raw materials which
were purchased locally but had points of origin outside the State of
Arkansas, and approximately $9,500 on raw materials which were
purchased and shipped from points outside the State of Arkansas.
During the same year the respondent purchased an oven for $8,000
and a dropping machine weighing 700 or 800 pounds which were
shipped to the respondent from points outside the State of Arkansas.
The respondent's total sales for 1939 amounted to $104,729, 2 per cent
of which were made outside the State of Arkansas. Counsel for the
respondent conceded that the respondent is subject to the jurisdiction
of the Board.
II. THE ORGANIZATION INVOLVED
Bakery & Confectionery Workers Local Union No. 442, affiliated
with the American Federation of Labor, is a labor organization ad-
mitting to membership all employees of the respondent except clerical
employees and supervisory employees with authority to hire and
discharge.
THE JACKSON, COOKIE .COMPANY i , . 559
III. THE UNFAIR LABOR PRACTICES fa(
On October 11, 1939, seven of the respondent's employees applied
for membership'in the Union and agreed to return to the Union on
Saturday, October 14, to be initiated. Five of the seven employees,
namely, William Tilley, George Blasinghame, Ralph Milam, Ourin
Hallum, and Claude Stanfill, returned on the agreed date for initia-
tion. John Horton, one of the two employees who failed to appear
for initiation, was discharged prior to October 14. Ralph Stuckey,
the second employee who failed to appear for initiation, informed a
delegation of the union members who visited him on the evening of
October 14, that J. C. Jackson, managing partner of the respondent,
had promised to give him and his wife continuous employment through-
out the slack season and therefore "he didn't believe there would be
any use in him joining the Union." 1 Both Mr. and Mrs. Stuckey were
employed by the respondent at the time of the hearing.2
On Monday morning, October 16, the first workday subsequent to
their initiation into the union the five employees were met by J. C.
Jackson, the managing partner of the respondent, when they reported
for work and were requested to come into his office. At least one of
the men had donned his working uniform and had prepared to begin
operations. When the five employees were assembled they were dis-
charged. Tilley testified that J. C. Jackson told them "Now boys,
there has been a lot of trouble going on in our plant and you boys are
the cause of it . . . he told the rest of us boys that before he would
have any trouble out of us whatsoever, and he shook his keys at George
and said he still had the keys to the door and he would carry them,
before he would recognize any Union, he would padlock his doors."
The testimony of Tilley concerning J. C. Jackson's statement
on the morning of October 16 was corroborated in all essential par-
ticulars by Blasinghame, Milam, and Hallum. There is partial cor-
roboration also in the testimony of James High who was president
of the Union. He testified that in an interview with J. C. Jack-
son later in the day, concerning the discharge of the five employees,
Jackson stated "that he wouldn't'inider any circumstances put any
of the boys back to work, that he would rather close his place of
business." J. C. Jackson, however, denied that any reference was
made on October 16 to'the Union and testified that he had not known
at that time of any union membership among his employees. His
version of his statement to the employees was as follows :
IJ. C Jackson testified that he told Stuckey on Saturday evening, October 14, "Ralph,
your work and your wife's had been satisfactory, and so far as I know right now I
imagine I will keep up and your wife right on "
z Mrs . Stuckey had been hired by the respondent on about October 1, 1939.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
You boys know how business has dropped off the last few
weeks. The salesmen came in Saturday night and all com-
plained about their business dropping off, so as we haven't been
working full time, why we are going to have to lay off some of our
employees and you boys have been causing trouble here in the
shop and to eliminate that trouble I am going to let you go. -
The Trial Examiner, who had an opportunity to observe the de-
meanor of the witnesses and their reaction to cross-examination,
found that the events of the morning of October 16, at the time of
the discharges, occurred substantially, as, recounted by the Board's
,witnesses. We agree with, the Trial Examiner and we find that
J. C. Jackson made the statements attributed to him by Tilley, Blas-
inghame, Hallum, and Milam.
The respondent contends that it discharged Tilley, Blasinghaie,
Hallum, Milam, and Stanfill for the reason that it was required to
lay off some of its employees as a result of a seasonal decline in the
volume of its business and that it selected the five named employees
because of their incompetence, insubordination, lack of diligence and
application to their work, disloyalty, and moral turpitude.
A. The alleged seasonal ,decline
Prior to his discharge Tilley had worked for the respondent inter-
mittently for 41/2 years, during which time he was rehired five or
six times. Blasinghame was employed by the respondent for a pe-
riod of approximately 21/2 years. Hallum was first employed by
the respondent in April 1938,• was laid off in October 1938, and-was
rehired in March 1939. Milam was employed by the respondent for
approximately 6 months. - J. C. Jackson testified that Hallum and
Milam had been employed as temporary employees. This testimony
was not controverted. The respondent did not, however, advance
their temporary status as a reason for their discharge.
In the latter` part of September 1939"; -the` respondent' made certain
changes in the equipment and personnel of the plant. It installed,a:
new oven 78 feet long, together with a conveyor and a circular pack-
ing table. At the same time it employed 6 girls, later increased to
9, and assigned them to the special task of packing cookies.
The respondent's records indicate that its seasonal decline had
commenced in October 1939.3 It is also undisputed that the new
equipment eliminated the services of two employees. The respond-
ent's personnel, however, had decreased considerably prior to the
3 The,records introduced by respondent indicate the gross receipts for the following weeks
were : October 2-$2,818 ; October 9-$2,100 , October 16-$2,375 ; and'October 23-$ 2,166.
THE JACKSON COOKIE COMPANY 561
discharge of the five employees. Between the summer of 1939 and
prior to the discharges on October 16, 1939, at least five of the re-
spondent's employees had either resigned or been discharged' Ac-
cording to the testimony of J. C. Jackson, after the termination of
their employment only a "skeleton crew" of employees remained.s
All five of the employees who were discharged on October' 16, 1939,
were performing necessary operations in the respondent's plant at
the time of their discharge. Their replacement was required sub-
sequent to their discharge with the exception of one dropping-
machine operator.6
Prior to October 1939, it had been the respondent's policy during
its seasonal decline to retain older employees throughout the dull
season, staggering their hours of work so that each of the retained
employees worked approximately 3 to 4 days each week. Subsequent
to the discharge of Tilley, Blasinghame, Hallum, Milam, and Stan-
fill, the remaining employees worked 6 days each week for 8 hours
a day until the end of November 1939, after which they worked a
or 4 days each week until January 1940. Thereafter, the employees
worked a full week.
We conclude that although the seasonal decline may have com-
menced on October 16, 1939, the respondent's operations under the
conditions then prevailing did not require immediate lay-offs, and
the seasonal decline was not, as alleged by the respondent, an opera-
tive factor in the discharge.
B. The alleged incompetency
Nor does the record sustain the respondent's contention concerning
the alleged incompetency of the discharged employees. The principal
charge of inefficiency relates to the quality of packing done by the
live employees. As we have noted above, prior to the latter part of
* The five employees were : John Horton , Jones, Ralph '. Stane, Georges Roise, and, Smith.
5 J C. Jackson testified that "When the new equipment was installed he had two or
three boys that quit about that time, a boy by the name of Horton and a boy by the name
of . . . Jones . . . and George Roise quit along the last of September . . . and Raymond
Stane quit . . . I took the skeleton crew I had left of the boys and placed them around
over the plant on machines and dumping and things of that kind, and instructing the girls
on taping the boxes and putting the boxes in the stock room, and that is when the change
over from the boys to the girls was made "
Olt is clear that the six girls who were hired during the latter part of September 1939
did not replace any of the employees then employed by the respondent . They v,ere em-
ployed exclusively as packers Prior to the initiation of the new packing system and
the employment of the girls , none of the respondent' s employees were engaged exclusively
in packing , and practically all of them participated in the packing at the end of the day
after the production work was completed Although J. C. Jackson testified that some
employees worked exclusively as' packers prior to the installation of the new system be
named only 1 employee . The foreman testified that "hardly any of them packed all the
time." It is apparent from his entire testimony that none of the employees packed
continuously.
-562 DECISIONS OF 'NATIONAL bABOR RELATIONS BOARD
September 1939, all the respondent's employees participated in pack-
ing at odd times when they were not engaged in other tasks. The
respondent asserts, and it is undisputed, that the packing was im-
properly done. However, there was no method of determining which
-of the respondent's employees were responsible for the improper pack-
ing.? The employees were given little if any supervision while they
were engaged in packing and, because they engaged in packing at odd
times and frequently at the end of the day, worked under adverse con-
ditions. The new equipment introduced by the respondent in the latter
part of September 1939, facilitated the packing.8 In addition, the
•crew of girls who were engaged exclusively in packing the respondent's
products were under the constant supervision of a forelady. There-
after packing was done satisfactorily. It is apparent from the record
-that the improved packing resulted from the new equipment, the crew
.of employees continuously engaged in that task, and the constant super-
vision received by them.
Tilley and Blasinghame had only occasionally worked as packers.
Nevertheless J. C. Jackson testified that the difficulty encountered by
the respondent with its packing, had "quite a bit" to do with Biasing-
hame's discharge and "something" to do with Tilley's discharge.
`Tilley, Blasinghame, Hallum, and Milani had not, however; been en-
gaged in packing for at least 3 weeks prior to their discharge. All
four employees had been assigned to other specific tasks. Moreover,
,other employees equally responsible for the packing were neither dis-
•charged' nor considered for discharge. The Trial Examiner found,
and we find, that improper packing was•not, as alleged by the respond-
ent, one of the determining factors in the discharge.
In addition to the charge of inefficient packing, J. C. Jackson testi-
fied that Blasinghame, who was employed as a mixer for approxi-
mately 2 months, performed this work in an unsatisfactory manner.
The record shows that during the peak of the 1939 season a second
' oven was placed in operation, and that Blasinghame was selected to
be trained as a mixer. He was given a single day of instruction and
thereafter received additional instruction from Mason Wesson, the
regular mixer. Blasinghame worked 'as a mixer for approximately 2
months. When the new oven was installed, Wesson took over the
entire 'mixing operation. Although Foreman Riegler testified on di-
Foreman Riegler, when questioned regarding the packing difficulty, testified " I imagine
all averaged about the same You couldn't just judge."
"Foreman Riegler testified that the cookies were "better baked" subsequent to the in-
stallation of the new oven and "it is lots easier for them to, be packed now " In addition
to the improved baking when the coolies-emerged from the new oven, they were cooled
by being passed along a 90-foot conveyor and reached the packing table ready for, handling
and packing. This obviated the practice prevalent under the earlier system of packing
cookies while they were hot, which resulted in the cookies sticking together. ,
'THE JACKSON COOKIE COMPANY 563
rect examination that Blasinghame's services as a mixer were unsatis-
factory in some respects, he conceded on cross-examination that in view
of the inexperience and relatively slight character of the instruction
given to Blasinghame his work was satisfactory.
The respondent also asserted in support of its contention that the
work of the discharged employees was unsatisfactory; that they ma-
lingered in the performance of their duties. Concerning the alleged
malingering, W. C. Jackson testified that this condition existed for at
least 2 or 3 months prior to the discharges. However, he gave specific
details only in the case of Blasinghame. This testimony was in con-
nection with extra works which Blasinghame had been occupied with
on Friday and Saturday immediately preceding Monday, October 16,
1939. The Trial Examiner found, and we find, that the allegations of
malingering were sustained only in the case of Blasinghame's per-
formance of extra work. It is clear that Blasinghame's malingering
on that occasion was not considered as a reason for his discharge, par-
ticularly in view of the fact that J. C. Jackson testified that he had'
determined, at least two weeks prior to October 16, 1939, to discharge
the five employees. On the basis of the entire record we do not credit
the respondent's contention that the incompetency of Tilley, Blasing-
hame, Hallum, and Milani, was an inducing factor in their discharge.
C. The alleged moral turpitude
In support of its contention that Tilley, Blasinghame, Hallum, and
Milam were discharged because of their moral turpitude, the respond-
ent adduced evidence that the frequented night clubs and discussed,
during working hours, matters that occurred therein; that Hallum and
Milam in the company of a woman, were arrested on a morals charge;
and that Tilley had engaged in a fight while drunk the night preceding
his discharge and had appeared at work the following morning in a
bruised condition.be
Hallum and Milam were arrested on the alleged morals charge on
July 10, 1939.11 Although J. C. Jackson admitted that he learned of
this incident at least 3 or 4 weeks prior to their discharge nevertheless
he did not discuss this matter with either Hallum or Milam. It is
undisputed that Tilley, Hallum, and Milani, visited night clubs in
Little Rock, Arkansas, and discussed matters occurring on these visits
9 The respondent gave its older employees an opportunity to earn additional money by
employing them, after their regular work was done, for several hours during the week on
work other than production work
10 In addition there was some testimony that women of undesirable charhcter met Tilley,
nallum , and Milam after working hours The record shows , however , that the respondent's
plant is located in an unsavory neighborhood.
11 They posted a bond, which they later forfeited The case was never tiled
413602-422-^ of 29 --3 i
564 DECISIONS OF. NATIONAL ,LABOR, RELATIONS BOARD
among themselves in the plant.12 However, they had engaged in these
activities throughout the entire period of their employment with the
Iespondent. At no time did the'respondent complain to them of such
conduct. Finally, in view of the fact that J. C. Jackson testified that
he' determined prior to October 16, 1939, which of the employees he
intended-to discharge, we do not believe that Tilley's condition on
October 16,1939, was a determining factor in his discharge. We agree
with the 'Trial Examiner and we do not credit the respondent's con-
tention that Tilley, Blasinghame, Helim, and Milani were ,discharged
because of their moral turpitude.12
The respondent's witnesses testified that the four employees shouted
and engaged in boisterous conduct while working in the plant end
that this conduct was a contributing factor to their discharge. The
record shows that this conduct had been of long duration and was
participated in by employees who were not discharged.
It is apparent that rigid discipline was not maintained in the plant
and that it was not uncommon for employees to engage in horseplay 14
Moreover, Foreman Riegler testified that he shouted the words "dog"
and "cat" in German during working hours for no apparent reason and
whenever he was so inclined, that other employees, in addition to the
above-named 4 shouted in the plant, and that Hallum and Milam
"didn't do a lot of hollering". Riegler further testified that he
drank whiskey during working hours and hid the whiskey bottle in
various places in the plant until he was "caught". To a certain
extent the shouting was explained _by the noisy operations of the
machinery in the plant. J. C. Jackson testified that in addition to
shouting Blasingliame flirted with young girls who passed the plant.
However' according to his testimony this had been occurring for at'
least 4 months prior to the discharge, and Wesson, an employee re-
tained by the respondent, admitted that on occasion, he whistled and
shouted after women who passed the plant. ' Under the circumstances,
we find, as did the Trial Examiner, that the boisterous conduct engaged
in by Tilley, Blasinghame, Hallum, and Milani was not a contributing
factor to their discharge.
12 There is some testimony that they discussed these matters in a loud tone of voice
and were overhead by the girls who worked in the respondent's plant. The testimony of
the several girls called by the respondent reveals that the extent of the shouting of the
employees consisted of "I went to Bessies ( night club ) last night" or "I am going to
Bessies tonight."
13 The Trial Examiner excluded some evidence offered by the respondent concerning the
attendance at road houses of the four employees and the pei sons with whom they associ-
On the basis of the entire record we find that no prejudicial errors were committedated .
since at most, tlip evidence was cumulative.
is The foreman testified that employees frequently placed tacks on the chairs in the
plant.
THE JACKSON COOKIE COMPANY 565
D: The alleged troublema/thig
We now turn to a consideration of the final factor urged by .the
respondent in explanation of the discharges. As we have noted above,
J. C. Jackson testified that he told the five employees on the day of
their discharge that "you have been causing trouble here in the shop
and to eliminate that trouble I am going to let you boys go." A con-
siderable part of the record is concerned with the nature of the trouble
caused by the five employees. There was 'some testimony that Blasing-
hame caused trouble by tale bearing. J. C. Jackson testified, how-
ever, that "he got wise to it and didn't take much stock in his ;con-
versation." There was also some testimony that Tilley was hot' tem-
pered. There was no testimony in support of the contention that
Hallum and Milam were "trouble makers." Indeed, George, Boise
and Riegler, both witnesses for the respondent, testified that they had
had no trouble with Hallum and Milam.l5 We find, as did the Trial
Examiner, that the charge that the' employees were "trouble makers"
is not substantiated by the evidence.
The record clearly shows that the "trouble" which Jackson referred
,to consisted of the union activity among the respondent's employees.
In response to the question of what caused him to discharge the five
employees, J. C. Jackson testified : ,
'You've got to have harmony. You've got to have boys. back
there who are interested in doing their work and doing it right
... Now at this particular time of the year our, plant force
has been divided into two groups, one group is doing their best:
to get their work out right. Another group consisting of these
five boys-didn't seem'to be interested in their work but were inter-
ested in something else- so when business dopped off . . why
we had to lay someone off and naturally in laying someone off
you wouldn't consider keeping a trouble maker and letting a good.
employee go.ls
Additional testimony of the respondent's witnesses clearly reveals'
that the alleged trouble, friction, -and division among the respondent's
employees referred to by J. C. Jackson,' were the organizational ac-
tivities of the five discharged employees. Riegler testified that the'
employees were "laid off" because "They were just getting unsatisfac-
tory and we couldn't get nothing out of them, and they were''all off.
to themselves in huddles talking to one another," and we weren't get--
"There was also some testimony concerning an incident invoking Blasingliame which
had occurred at least 1 year prior to the discharges
"The respondent's witnesses used the term lay-off and 'discharge Indiscriminately
It is apparent from the record that the termination of emplo3ment of the fide eanplo}ees'
as intended bi the respondent to be dischaigee
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ting our production out right. Mr. Connelly [J. C. Jackson] said
he was going to have to make a change, and I said, `That is the only
way we can do, is have a house cleaning."' Further testimony by
Riegler 'reveals that the "huddles" occurred when the employees were
discussing the question of joining the Union.
Concerning the time when he learned of the existence of the Union
in the plant Riegler testified that :
Well I never did learn .. . Of course, I notice that there was
Just a certain bunch of boys around there that talked and never
would have anything to say to me, and 'stayed away from me as
far as they could, but I never did know anything about it. Mr.
Jackson called me up and wanted to know if I knowed anything
about it, or if anything was going wrong and I told him I didn't
think there was 17 . . [Between that day and the day of the
discharge] I kind of halfway heard it by the talking around,
just the talk that I caught ....
When asked what J. C. Jackson meant by "What was wrong?" Riegler'
testified that,
Well, he just asked me, he said, "If things ain't going right in the
plant," ... He could notice' the friction- out there himself and
called my attention to it. I told him that I did notice it. I said,
"'We are just going to have to clean up some way," and that is
when we done our deciding."' %
Mrs. Burns, the forelady in charge of packing, testified concerning
her observations as to what extent the discharged employees cooper-
ated with the other employees. "Well, they were kind of getting to-
gether, at that time, trying to get into this union business, and they
had slowed up their work." Gus Bowden, the respondent' s salesman
and a witness called by it, testified that the friction in the plant was
"caused by these boys trying to get the rest of them lined up." Bow-
den further testified that he was reluctant to receive any information
concerning the union activities of the respondent's employees because,
"I had to report to Mr. Jackson and at least talk to him and I didn't
want to' tell him any lies and if I didn't know anything I wouldn't
have to tell him anything." 19
Thus, it is clear that the respondent sought persistently to learn,
and it is a reasonable inference that the respondent did learn, of the
"Riegler further testified that this occurred approximately 2 weeks prior to the dis-
charges at the time when they were discussing which of the employees to lay off
1a Riegler referred to the decision concerning which employees the respondent intended
to discharge . He testified that Horton was included among the employees whom J. C.
Jackson decided to discharge.
1U Bowden was making reference to the attempts at union organization
THE JACKSON COOKIE COMPANY 567
union membership and activities of the employees named in the com-
plaint and that the "trouble" caused by Hallum, Milam, Blasinghame,
and Tilley consisted of their efforts at self-organization.
We are convinced, as was the Trial Examiner, that the respond-
ent terminated the employment of George Blasinghame, William
Tilley, Ourin Hall um, and Ralph Milam solely because of their mem-
bership and activity, on behalf of the Union. We have found that
the seasonal decline set forth by the respondent as the impelling fac-
tor in the discharges did not warrant, under the conditions prevailing
on October 16, 1939, decreasing the respondent's personnel. Moreover'
the record does not substantiate the reasons alleged by the respond-
ent in support of its selection of the discharged employees. As we
have observed many of the reasons urged by the respondent had
existed over a long period of time and were not confined solely to the
discharged employees. We have also observed that the charge of
"trouble malting" which was given emphasis by the respondent's
witnesses, related to the union activities of the discharged employees.
And' finally it is significant that the respondent discharged the only
employees who had joined the Union on the first work day thereafter.
We find that the respondent by discharging George Blasinghame,
William Tilley, Ourin Hallum, and Ralph Milam, discriminated in
regard to their hire and tenure of employment, thereby discouraging
membership in the Union and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The Trial Examiner recommended that the complaint be dismissed
in so far as it alleges that the respondent questioned its employees
regarding their union membership and instructed them not to join
the union. The union filed no exceptions to this recommendation.
We have reviewed the record and find that the complaint should be
dismissed in this respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed 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 unfair labor
practices, we shall order it to cease and desist therefrom and to take
568 DECISIONS _0F NATIONAL LABOR_ RELATIONS BOARD
certain affirmative action which we find necessary to effectuate the
policies of the Act.
We have further `found that the respondent has discriminated in
regard to the hire and tenure of employment of George Blasinghame,
William Tilley, Ourin Hallam, and Ralph -Milani. We shall order
-the respondent to offer them reinstatement to their former or sub-
stantially equivalent positions and to make thelp whole for any loss
of'pay they have suffered by,-reason of such discrimination by pay-
ment, to each of them of a sum of, money equal to the "amount which
-he,norfnally would have earned as wages from October 16, 1939, to
-the date of the offer of reinstatement, less his net earnings 20 during
said period.
Upon the basis of the' foregoing findings of fact and upon the
entire record' in the case, the,Board makes the following :
CONCLUSIONS OF LAW
1. Bakery & Confectionery Workers Local Union No. 442, affiliated
with the American Federation of Labor, 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 employ-
ment of George Blasinghame, William Tilley, Ourin Hallum, and
Ralph Milam, thereby discouraging membership in the Union, 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 prac-
tices, 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.
ORDER
Upon the-basis of the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
20 By "net earnings" is meant earnings less expenses , such as for tianspoitation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been mcuried but for his unlawful
discuuiination and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Bi,otherhood of Carpenters and Joiners
of America , Lumber and Sawmill Workers Union , Local 2190, 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 , decided by United States Supieme Court , November 12, 1940.
THE JACKSON COOKIE COMPANY ' 569
rbereby orders that the respondent, J. C. Jackson, C. R. Jackson, and
W. A. Jackson, co-partners , doing business as the Jackson Cookie
Company of North Little Rock, Arkansas , and its officers , agents, suc-
(cessors̀, and assigns shall:
1: Cease and desist from :
:(a) Discouraging membership in Bakery & Confectionery Workers
Local Union No. 442, affiliated with the American Federation of
.Labor, or any other labor organization of its employees, by discharg-
ing or refusing to reinstate any of its employees or in any other
manner discriminating in regard to their hire or tenure of employ-
ment or any term or condition thereof ;
(b) In any other manner interfering with, restraining , and 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 National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to George Blasinghame, William Tilley, Ourin Hallum,
and-Ralph Milani, immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their sen-
iority and other rights and privileges;
(b) Make whole George Blasinghame, William Tilley; Ourin Hal-
l um, and Ralph Milani , and each of them, for any loss of pay they
may have suffered by reason of the discrimination against them by
payment to each of them of a sum of money equal to that which he
normally would have earned as wages from October 16 , 1939, until
the date of offer of reinstatement , less his net earnings during said
period ;
(c) Post immediately in conspicuous places at its plant , and main-
tain for a period of at least sixty ( 60) consecutive days from the
date of posting , notices to its employees stating : (1) that the re-
spondent will not engage in the conduct from which it is ordered to
cease and desist in paragraphs 1 (a) aid (b) of this Order; (2)
that the respondent will take the affirmative action set forth in para-
graphs 2 ( a) and ( b) of this Order ; and (3 ) that the respondent's
employees are free to become or to remain members of Bakery & Con-
fectionery Workers Local Union No. 442, affiliated with the American
Federation of Labor, and that the respondent will not discriminate
against any employee because of membership or activity in that
organization ;
570' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Fifteenth 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 dismissed in so
far as it alleges that the respondent questioned its employees regard-
ing their union membership and instructed them not to join the
Union.
CHAIRMAN HARRY A. MILLIs took no part in the consideration of
the above Decision and Order.