Alexander Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 14, 1954

110 N.L.R.B. 1457 (N.L.R.B. 1954)

ALEXANDER MANUFACTURING COMPANY
Appendix C
1457
Ruthie M. Faggard------ 4-22-52
Ona Lee Lynn ---------- 4-22-52
Gracie Clark ------------ 4-22-52
Inez Reeves_____________ 4-22-52
Fannie Smith ----------- 4-22-52
Elizabeth Mills---------- 4-22-52
Mattie Couch ----------- 2-20-52
Odean Bullock ---------- 2-22-52
Delmar Ashley ---------- 6-12-52
Mary Evelyn Goff ------- 6-12-52
Bernice Gunter ---------- 5-19-52
Allison Shumack-------- 2-19-52
Annie Bryant ----------- 4-22-52 Helen Pierce------------ 6-12-52
Lela Pope______________ 4-22-52 Annie Miller ------------ 6-12-52
Vadis Peden ------------ 4-22-52 Rose Herndon ----------- 6-12-52
Louise Peden ------------ 4-22-52 Rose Furby_____________ 6-12-52
Mary Cranford ---------- 4-22-52 Nellie Rouse ------------ 6-12-52
Clara Davidson---------- 4-22-52 Hazel Williams---------- 6-12-52
Bessie Bush_____________ 4-22-52 Dolores Wilson ---------- 6-12-52
Alda Renfroe----------- 4-22-52 Abry Smith_____________ 6-12-52
Gladys Scovel----------- 4-22-52 Leonard Swearinger______ 6-12-52
Claire Beasley ----------- 4-22-52 Aileen Swearinger____-_- 6-12-52
Lona Pace______________ 4-22-52 V. C. Vernon----------- 6-12-52
Juanice Hill------------- 4-22-52 Frances Vernon--------- 6-12-52
Lucy Heflin_____________ 4-22-52 Seth Ethredge----------- 6-12-52
Ruby Lee Goff ---------- 4-22-52 Mildred Burchfield------- 6-12-52
Lena May______________ 4-22-52 Sallie Shumake---------- 6-12-52
Ina Goff--------------- 4-22-52 Francis Nellums--------- 6-12-52
Ethel Baker------------- 4-22-52 Lula Mae Elam ---------- 6-12-52
ALEXANDER MANUFACTURING COMPANY and INTERNATIONAL BROTHER-
HOOD OF BOILERMAKERS , IRON SHIPBUILDERS AND HELPERS OF
AMERICA , AFL. Case No. 15-CA -493. December 14, 1954
Decision and Order
On May 19, 1953, Trial Examiner Lee J. Best issued his Interme-
diate Report in the above-entitled proceeding finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1), (3), and (5) of the Labor
Management Relations Act, as amended, and recommending that the
Respondent cease and desist therefrom and take certain affrmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Respondent filed exceptions to certain of the
Trial Examiner's rulings as well as exceptions to the Intermediate
Report, together with a supporting brief. The General Counsel filed
exceptions to the Intermediate Report as well as to the Trial Ex-
aminer's failure to find certain instances of additional violations of
• the said section of the Act, together with a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
110 NLRB No. 210.
338207-55-vol. 110--93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations of the Trial Examiner with the following additions and
modifications.'
1. We agree with the finding of the Trial Examiner that the Re-
spondent interfered with, restrained, and coerced its employees in
violation of Section 8 (a) (1) of the Act by the statements of Super-
intendent Lingenfelter, President Garner, and Attorney Thigpen, as
detailed in the Intermediate Report.
As to the undenied remarks of Attorney Thigpen to employee
Toxie Mitchell concerning plant removal, the Respondent contends
that they were not coercive and that Thigpen was not authorized to
make them. The remarks were made by Thigpen on a special trip,
on the Tuesday evening before the Thursday election, to the home
of Mitchell whom he had never visited before. There is no conten-
tion by the Respondent that it attempted to disavow the remarks. In
the context of this case it is clear that they were coercive. The argu-
ment that Thigpen, as a member of the firm of Thigpen & Stewart,
the Respondent's "retained counsel" for labor and other matters ac-
cording to stipulation of the parties, was authorized to act for the
Respondent only in such matters as were specifically delegated to
him, is, we find, no defense in the circumstances of this case.
In its brief the Respondent contends that President Garner denied
making statements to employees on election day that he "had a better
place in Bogalusa to put the plant" and "anything could happen" if
the Union came in. The record contains no specific denials of these
remarks. Like Thigpen's remarks to Mitchell, they were coercive in
the circumstances.
The Trial Examiner referred to but failed to make a finding con-
cerning the June wage increases given by the Respondent to 19 em-
ployees, 17 of whom later signed a statement renouncing the Union.
We note that the Respondent began giving these wage increases
shortly after the election, which the Union appeared to have won,
that a request by the Union to bargain was then outstanding, and
that the Respondent was at the very time discriminating against 11
1 We correct the following inadvertent mistakes in the Intermediate Report, which mis-
takes do not affect the merits of the conclusions affirmed by us
Section III , B, "The appropriate unit" : The statutory section referred to should be
9 (b) rather than 9 (a).
Section III , D, 1, "Activities of Foreman Lingenfelter" . The record shows that em-
ployee Rayburn approached Lingenfelter, rather than the reverse as indicated by the
wording of the Intermediate Report , and that employee wheat likewise did so in one of
several conversations between him and Lmgenfelter concerning union activity.
The record shows that Lingenfelter 's inquiry of Adolph Miller as to his knowledge of
who was for the Union did not occur the day of the election , but rather on some earlier
date, after the bargaining request made in the May 14 letter
Section III , E, 1, "Temporary layoffs-new rules" • The Intermediate Report indicates
that both Louis Kennedy, Jr, and Robert Jordan heard all of the remarks made by Lingen-
felter when they applied for a job early in June, after the election The record shows
that Robert Jordan was looking around the plant and did not hear or testify to Lingen-
felter ' s remark that lie expected to lay off some employees because the Respondent could
not pay union wages.
ALEXANDER MANUFACTURING COMPANY 1459
prounion employees by the June 17 indefinite layoffs. On this record
there can be no question that the June wage increases were intended
to discourage union activities, and that they interfered with, re-
strained, and coerced the Respondent's employees in the exercise of
rights guaranteed them in Section 7 of the Act, and constituted an
additional violation by the Respondent of Section 8 (a) (1) of the
Act.2
2. We agree with the Trial Examiner's findings that the brief lay-
offs of some employees on June 6, 11, and 12 were for economic rea-
sons, as explained by the Respondent, but that the June 17 layoffs
of indefinite length, affecting none but union adherents, were intended
to discourage activity in the Union and constituted, except as to cer-
tain individuals who had requested summer layoffs, a violation of
Section 8 (a) (3) of the Act. In this connection we find, as did the
Trial Examiner, that the layoffs of Warren Perette, Jeverley E.
Saucier, Percy McCraney, Alphonse Lossett, Jr., Leamon Pullens,
James A. Martin, James E. Saucier, Harold C. Builteman, Herman
Bennett, Toxic Mitchell, and William J. Davis were discriminatory
within the meaning of Section 8 (a) (3) of the Act, and that the
layoffs of Velma Hoda and J. D. Ferguson, who were farmers and
had indicated a preference not to work during the summer slack sea-
son, were not discriminatory. However, in the latter category we
would also include the layoff of Clarence Lizana-contrary to the
finding of the Trial Examiner-because, as he testified, he had asked
to be laid off if the workweek fell below 40 to 45 hours.
As to the discharge of employee Lonnie Pullens on June 13, 1952,
we agree with the Trial Examiner that this was discriminatory in
violation of Section 8 (a) (3) of the Act. We do not agree, however,
that the termination of employee Skipper on June 19 constituted a
constructive discharge as found by the Trial Examiner. Skipper,
according to his own testimony, had cooperated with the Respondent
in getting information about union activities. Superintendent Lin-
genfelter's advice to Skipper that he had better take another job if
he could find one, was couched in terms of concern for Skipper's wel-
fare, and Skipper himself testified that he "quit." On this record we
do not find that Skipper's termination of employment constituted a
constructive discharge with discriminatory motive to discourage mem-
bership in the Union.
With respect to the remedy of reinstatement and back pay recom-
mended by the Trial Examiner as to Percy McCraney, we note
McCraney's testimony that he would not have accepted reinstate-
ment on November 24, 1952, had he received the notice to return to
work in sufficient time. Hence, we shall order no reinstatement of
McCraney, and shall limit our order of back pay from the date of
'See Jamestown Sterling Corporation , 106 NLRB 466 , and cases there cited.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his layoff to the said date on which he would not have accepted
reinstatement.
3. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (5) of the Act when it refused to bargain with the
Union. However, we would place the date of this violation as occur-
ring on and after June 6, the day following the election, when the
Union, relying upon its apparent success in the election, renewed its
request to bargain, and the Respondent intensified its preelection un-
fair labor practices by wage raises, discharge, and discriminatory
layoffs. As we view this case, the good-faith doubt of majority which
might be attributed to the Respondent as the result of its prompt
agreement to consent to an election after the Union's original May 14
request to bargain, was completely nullified by its intensification of
unfair labor practices after the election until rejection of the Union
by a majority of the employees some 2 months later.
Among the various contentions made by the Respondent on the re-
fusal-to-bargain aspect of this case-many of which have become
inapplicable as we view the problem-it argues that the June 6 post-
election request to bargain was conditioned upon certification, hence
not an unconditional request to bargain. This overlooks the true im-
port of the Union's June 6 request. It must be remembered that as
of that date the Union had no reason to doubt the results of its elec-
tion success which was later set aside for nonsecrecy of the ballot, and,
in fact, had had the numerical result confirmed by the signing of 31
membership cards-copies of which are in evidence here-at a meeting
the night before. Thus when it made its June 6 request and agreed
to "await" certification, it was agreeing to postpone actual negotia-
tions only briefly and on a "contingency" about which it then had no
doubt. Later, by letter to the Respondent dated June 24, it renewed
its request in writing when it realized that certification might long
be delayed as the result of the Respondent's having in the meantime,
on June 11, filed objections to the conduct of the election. Clearly the
Union represented a majority of the employees as of June 6, without
reference to the election results, and made unconditional requests to
bargain on both June 6 and 24.
As our finding that the Respondent violated Section 8 (a) (5) is
based upon facts which arose after the representation election, the
rule we recently announced in Aiello Dairy Farms, 110 NLRB
1365, is inapplicable to this case. In Aiello the labor organization in-
volved, when it learned of unfair labor practices of the employer
before the representation election, nevertheless insisted on partici-
pating in an election and delayed filing its 8 (a) (5) charge, thereby
evading the Board's sound practice of not conducting a representation
election when an 8 (a) (5) charge is pending. The Board there held
that inasmuch as the labor organization had chosen to proceed to a
ALEXANDER MANUFACTURING COMPANY 1461
representation election in the face of known unfair labor practices,
the Board would not thereafter process an 8 (a) (5) proceeding based
upon those same unfair labor practices. In the present case, after
the representation election the Union made a new request for recogni-
tion. Its majority status as of that time is confirmed by the numerical
results of the election plus membership cards signed by a majority
of employees on the day of the election. The Respondent declined
the Union's new request and engaged in further unlawful conduct
which dissipated its majority status. It is upon these facts which oc-
curred after the election that we base our 8 (a) (5) finding. Obviously,
the Union did not participate in the representation election with knowl-
edge of these unfair labor practices. And when these facts became
known after the election the Union promptly selected between the
alternative remedies available: it withdrew its representation petition
and filed an 8 (a) (5) charge.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Alexander
Manufacturing Company, Picayune, Mississippi, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Boilermakers, Iron Shipbuilders and Helpers of America,
AFL, as the exclusive representative of its employees in the
appropriate unit.
(b) Granting or promising wage increases or other economic bene-
fits for the purpose of influencing employees with respect to union
activities.
(c) Threatening and interrogating employees concerning their
union affiliations or activities in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1).
(d) Discouraging membership in International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America, AFL, or
any other labor organization, by discriminating in regard to the hire
or tenure of employment of its employees, or any term or condition
of their employment.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America, AFL, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Upon request, bargain collectively with International Brother-
hood of Boilermakers, Iron Shipbuilders and Helpers of America,
AFL, as the exclusive representative of its employees in the appro-
priate unit, and embody in a signed agreement any understanding
reached.
(b) Offer to Jeverley E. Saucier, James E. Saucier, Alphonse Los-
sett, Jr., Leamon Pullens, James A. Martin, and Lonnie Pullens
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights
and privileges.
(c) Make whole Warren Perette, Jeverley E. Saucier, James E.
Saucier, Alphonse Lossett, Jr., Leamon Pullens, James A. Martin,
Harold C. Builteman, Herman Bennett, Toxie Mitchell, William J.
Davis, and Lonnie Pullens for any loss of pay they may have suf-
fered by reason of the discrimination against them, in the manner and
to the extent set forth in the section entitled "The Remedy" of the
Intermediate Report.
(d) Make whole Percy McCraney for any loss of pay he may have
suffered by reason of the discrimination against him, in the manner
set forth in the section entitled "The Remedy" of the Intermediate
Report, but only to the extent found appropriate in this Decision
and Order.
(e) Upon request, make available to the Board and its agents for ex-
amination and reproduction all of their books and records necessary
to analyze, determine, and establish the awards and other rights of
employees as set forth herein.
(f) Post at its plant in Picayune, Mississippi, copies of the notice
attached to the Intermediate Report marked "Appendix A." I Copies
of said notice, to be furnished by the Regional Director for the Fif-
teenth Region (New Orleans, Louisiana), shall, after being duly signed
by the Respondent's representative, be posted by the Respondent im-
mediately upon receipt thereof, and maintained by it for sixty (60)
3 The notice shall be modified , however, by replacing the words "The recommendations
of a Trial Examiner " with the words "A Decision and Order," by removing the names of
Percy McCraney and B. J Skipper fiom the paragraph concerning reinstatement and
back pay, and by adding the name of Percy McCraney to the following paragraph con-
cerning back pay alone In the event that this order is enforced by a decree of a United
States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision
and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order."
ALEXANDER MANUFACTURING COMPANY 1463
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.
(g) 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 therewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated Section 8 (a) (3) and 8 (a) (1) of the Act
in terminating the employment of B. J. Skipper and in laying off for
an indefinite period Clarence Lizana, as well as in laying off for brief
periods on June 6, 11, and 12 the employees listed in "Appendix A"
of the complaint, be, and it hereby is, dismissed.
MEMBER BEESON, concurring :
I agree that Respondent violated Section 8 (a) (1) and (3), for
the reasons set forth in the majority decision.
I also agree that Respondent violated Section 8 (a) (5). I am ex-
tremely reluctant to predicate a finding of unlawful refusal to bargain
on a card showing, rather than on majority status established by a
Board-conducted election absent a clear and affirmative showing, that
the Company lacked a good-faith doubt of a majority status. In the
present case, Respondent's conduct in threatening, interrogating,
promising and granting benefits, and discriminatorily discharging its
employees, sufficiently demonstrates, in my opinion, that it lacked
such good-faith doubt of the Union's majority and was attempting, by
unlawful means, to undermine and destroy the Union's representative
status. This illegal conduct further rendered impossible the holding
of a free and uncoerced election. Under these particular circumstances,
I find that Respondent violated Section 8 (a) (5) of the Act.
Like the majority, I do not believe that the Aiello Dairy Farms
case requires a contrary result. Unlike that case, the record here
does not establish that the Union had notice of Respondent's unlaw-
ful conduct before the election. Therefore, it cannot be found that
the Union made a clear choice of remedies in proceeding to an elec-
tion. Moreover, even if the Union had such knowledge, the Aiello
case is distinguishable because (1) here, the election (won by the
union) was voided not as a result of respondent's prior unlawful
activities, but because of the lack of a secret ballot; and (2) Re-
spondent in the instant case engaged in further and intensified un-
fair labor practices after the election.'
4 Also like the majority , I do not find that the Union, by indicating its willingness to
await certification on June 6 , relieved Respondent of its duty to bargain . Only a slight
delay in certification was expected by the Union and the latter's renewed demand for bar-
gaining on June 24 was unconditional.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the foregoing, I concur in the decision of the majority
that Respondent violated Section 8 (a) (1), (3), and (5) of the Act.
CHAIRMAN FARMER took no part in the consideration of the above
Decision and Order.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
By reason of charges filed by International Brotherhood of Boilermakers, Iron
Shipbuilders and Helpers of America, AFL, herein called the Union, the General
Counsel of the National Labor Relations Board on December 22, 1952, filed a com-
plaint against Alexander Manufacturing Company, Picayune, Mississippi, herein
called the Respondent , alleging unfair labor practices affecting commerce within
the meaning of Sections 8 (a) (1), (3), and (5) and 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleges in substance that
the Respondent: (1) By interrogation, threats, and inducements interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act; (2) discriminated in regard to hire and tenure of employment
to discourage membership in a labor organization by layoffs and discharges; and
(3) refused to bargain collectively with the Union as the duly authorized representa-
tive of its employees with respect to wages, hours, and other conditions of employ-
ment.
The Respondent filed an answer admitting the jurisdictional allegations of the
complaint with respect to commerce, but denied all allegations of unfair labor
practices.
Motion by the Respondent to dismiss the complaint for lack of jurisdiction in the
National Labor Relations Board to hear and determine the issues raised therein
was denied.
Pursuant to notice, a hearing was conducted at Picayune, Mississippi, on February
9, 10, 11, 12, 13, 14, and 16, 1953, before the Trial Examiner, duly designated by
the Chief Trial Examiner. The General Counsel and the Respondent were repre-
sented by counsel, and a representative of the Union was present. All parties partici-
pated in the hearing, were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence relevant and material to the
issues. Motion by the General Counsel to conform the pleadings to the proof, as
to formal matters, was allowed without objection. All parties were informed con-
cerning their right to argue orally upon the record, and to submit written briefs and
proposed findings of fact and conclusions of law to the Trial Examiner. Oral argu-
ment was waived by counsel for all parties. Within the time allowed, written briefs
were filed by the General Counsel and the Respondent, all of which have been given
due consideration.
Upon the entire record in the case, and from observation oif the witnesses, I make
the following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
Alexander Manufacturing Company is a Delaware corporation licensed to do
business in the State of Mississippi, with its principal office and place of business at
Picayune, Mississippi, where it is engaged in the fabrication of farm equipment.
During the representative 12-month period ending July 31, 1952, the Respondent
purchased raw materials consisting primarily of steel valued in excess of $400,000,
approximately 95 percent of which was shipped in interstate commerce to the Pica-
yune plant from sources outside the State of Mississippi. Within the same period,
the Respondent manufactured, sold, and delivered finished farm equipment consisting
primarily of harrows valued in excess of $600,000 of which approximately 90 percent
in value were shipped to customers and dealers outside the State of Mississippi.
I find, therefore, that the Respondent is engaged in commerce within the meaning
of the Act.'
1 Stanelaus Implement and Hardware Company, Limsted, 91 NLRB 618.
ALEXANDER MANUFACTURING COMPANY 1465
Paul Garner has been president of Respondent (corporation) since June 1950.
Primarily he controls the policies of the corporation, and is in charge of sales. Emory
R. Hodgson, Jr. is vice president and secretary. Alvin Lingenfelter has been plant
superintendent and production foreman since inception of the business in 1947, but
owns no stock in the corporation. At its sole plant in Picayune, Mississippi, prior
to June 1952, the Respondent operated on a yearlong basis, but because of the sea-
sonal nature of its business drastically curtailed hours and days of work during the
summer months from June to September, inclusive. It customarily employed approx-
imately 50 men recruited largely from small farms in the surrounding territory, and
maintained a stable working force because many of its employees engaged in farm-
ing, and were content with part-time employment at Respondent's plant during the
summer months . The production foreman (Lingenfelter) has exclusive personal
control of the hiring and firing of employees, but consults with President Paul Garner
as the employment situation requires.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers , Iron Shipbuilders and Helpers of
America is a labor organization affiliated with the American Federation of Labor.
Both the affiliate and the parent federation are labor organizations within the mean-
ing of Section 2 (5) of the Act.2
The Union claims to be exclusive bargaining representative of Respondent's em-
ployees by reason of authorization cards signed by 28 employees 3 on or about May
10, 1952 , providing in pertinent part as follows:
I . . . hereby authorize the American Federation of Labor and all Affiliated
Organizations to represent me and , on my behalf, for the purpose of collective
bargaining to negotiate and conclude all agreements in respect to rates of pay,
wages, hours of employment , or other conditions of employment in accordance
with the provisions of the National Labor Relations Act... .
M. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
During the month of April or early in May 1952, employees of the Respondent
initiated a movement to organize and obtain representation by a labor organization.
Percy McCraney procured in a notebook the signatures of approximately 30 em-
ployees who favored such an organization. Percy McCraney, James E. Saucier,
James A. Martin, and Burton Wheat met W. H. Hines (an organizer for the Ameri-
can Federation of Labor) at the old Bolley Bridge about 1 mile from Picayune on
May 10, 1952. At and following this meeting 28 employees signed cards authoriz-
ing the American Federation of Labor and all affiliated organizations to represent
them for the purposes of collective bargaining. Thereafter on May 14, 1952, W.
H. Hines, organizer, wrote a letter to the Respondent as follows:
This is to advise that the American Federation of Labor now represents your
employees in your Picayune, Mississippi plant for the purpose of collective
bargaining for wages and hours and other conditions. Therefore, we request
a definite time and place whereby we may sit down in conference to negotiate
a contract covering your employees in your Picayune plant.
Looking forward to hearing from you at an early date and hoping that our
relations with your company will be pleasant, etc.
Instead of replying to the aforesaid letter, President Paul Garner and his attorney,
Ray M. Stewart, called the Regional Office of the National Labor Relations Board
for advice, and were advised that the Union had filed petition for an election in Case
No. 15-RC-746. Garner expressed a desire to enter into a consent election immedi-
ately, because of a contemplated curtailment of employment at the Picayune plant
during summer months ahead. Without further ado, the Regional Office mailed
to both the Respondent and the Union the necessary agreement to be signed for
such an election. The .agreement was signed by both parties without further discus-
sion on May 29, 1952. The Union made no further demands to bargain pending
2 The Liberal Market, Inc., 90 NLRB No. 126 (not reported in printed volumes of Board
Decisions and Orders).
8I find no merit in Respondent's contention that authorization cards signed on Sunday
would be void.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the election. The election was scheduled and held on Thursday, June 5, 1952. The
result of the balloting was 26 votes in favor and 23 against the Union. No ballots
were challenged. At a meeting that night 31 employees signed application cards for
membership in the Union.
On Friday, June 6, 1952, Lloyd H. Russell, International representative of the
Union, first called President Garner by telephone, and then went to his office for
an interview. President Garner, Secretary Hodgson, and Attorney Stewart were
present. The union representative suggested that a date be set to commence the
negotiation of a contract. Garner was badly disconcerted at the outcome of the
election, and freely expressed his opposition to the Union. He would not agree
to negotiate until certification of the Board was received. For that reason the parties
agreed on June 17, 1952, as a tentative date to begin negotiations, contingent on cer-
tification of the Union by the Board.
On June 11, 1952, the Respondent filed objections to the conduct of the election.
On June 13, 1952, the Union filed a charge alleging unfair labor practices within
the meaning of Section 8 (a) (1) of the Act. By letter of June 14, 1952, the union
representative requested a postponement of the meeting scheduled for June 17, stat-
ing that certification notice had not been received. On June 24, 1952, the Union
suggested that the parties meet during the week of July 7. President Garner replied
on July 2, 1952, stating that notice of certification had not been received, and that
he felt no legal obligation to enter negotiations until such certification is forthcom-
ing. This letter brought to an end communications between the Respondent and
the Union with respect to negotiations. Thereafter, on August 6, 1952, a written
statement (Respondent's Exhibit No. 1) signed by 27 employees at Respondent's
plant was presented by a group of employees to the union representative saying: "We
the undersigned don't want anything to do with the Union."
On September 16, 1952, the Union filed its first amended charge against the Re-
spondent alleging unfair labor practices within the meaning of Section 8 (a) (1)
and (3) of the Act. Second and third amended charges were filed on October 13,
1952, and December 4, 1952, respectively, alleging unfair labor practices within the
meaning of Section 8 (a) (1), (3), and (5) of the Act.
On October 29, 1952, the Regional Director of the Fifteenth Region filed a re-
port on objections setting aside the election of June 5, 1952, upon a finding that it
was not conducted in such a manner as to insure the secrecy of the ballot . Because
of the pending charges of unfair labor practices , the Union was at the same time al-
lowed to withdraw its representation petition without prejudice. Thereupon, the
representation case (Case No. 15-RC-746) was closed.
B. The appropriate unit
It is admitted, and I find, that all production and maintenance employees of the
Respondent at its plant in Picayune , Mississippi , excluding office clericals , profes-
sional employees, guards , and supervisors , as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
C. The majority status of the Union
Authorization cards signed by a majority of Respondent's employees on or about
May 10, 1953, establish prima facia that the Union was on May 14, 1952, the au-
thorized representative of all employees in the appropriate unit for the purpose of
collective bargaining. Membership application cards signed by a majority of said
employees on the night of June 5, 1952 , establishes a continuing majority on that
date. Repudiation of the Union on August 6, 1952, by 27 employees following in-
terrogation, discriminatory layoffs, and discharges hereinafter found indicate that the
union majority was destroyed by unfair labor practices of the Respondent. I find,
therefore, that on and after May 10, 1952, the Union was and still is the duly au-
thorized and exclusive representative of Respondent 's employees in the appropriate
unit for the purposes of collective bargaining with respect to wages, hours, and other
conditions of employment.
D. Interference , restraint, and coercion
1. Activities of Foreman Lingenfelter
Prior to and pending the election on June 5 , 1952, Foreman Lingenfelter promoted
argumentative discussions with employees at the plant , and frequently belabored in-
dividual employees concerning activities on behalf of the Union . At the same time
ALEXANDER MANUFACTURING COMPANY 1467
he habitually expressed the opinion that the plant was too small for a union , and that
is would not be a good thing for the Respondent and its employees.
Lonnie Pullens, James A. Martin, Samuel B. Rayburn, Adolph Miller, Alphonse
Lossett, Jr., Burton Wheat, Harold Builteman, B. J. Skipper, and Leamon Pullens all
credibly testified that Foreman Lingenfelter approached them and inquired as to
what they thought and how they felt about the Union. Upon receipt of an evasive
answer to an inquiry made to Lonnie Pullens, Lingenfelter in substance said to him,
"Now don't hand me that kind of stuff. You know that you are for it, and you know
that I know you are for it. I thought you was a better boy than that. I got witnesses
to prove that you was the boy that carried the cards to the fellows' houses and got
them signed. I know two fellows that know it, and there's proof, that they'll say that
you was the one that carried the cards around that's leading this thing." He also
told Pullens that the place was not big enough for a union, and that they would
have to shut down if the Union came in. In a conversation jointly with James A.
Martin and Alphonse Lossett, Jr., Lingenfelter asserted that he knew they were for
the Union, as well as Percy McCraney and Burton Wheat-that there was no use
lying about it. When he received an evasive answer from Burton Wheat, Lingen-
felter said, "Come on now, you don't have to lie to me. You know you know more
about it than I do." Lingenfelter also told Burton Wheat that he would help him
out if he would keep his mouth shut. With respect to a wage increase, he told
Burton Wheat and Paul Whitfield not to worry-that they would get it after the
election . In answer to his inquiry, Leamon Pullens told Lingenfelter that he felt
about the same way his father did. Thereupon, Lingenfelter inquired, "What way is
that, the right way?" Pullens answered, "Yes." Lingenfelter told Samuel B. Ray-
burn that he would appreciate anything he would do for the Company-that he
would do something for him as soon as he could-and suggested that he come out
in the open about it .4 In his conversation with B. J. Skipper, Lingenfelter expressed
the opinion that Lonnie Pullens, assisted by Percy McCraney, Burton Wheat, and
James E. Saucier had carried around the union authorization cards to be signed by
other employees, and requested Skipper to find out for him whether it was true that
Lonnie Pullens did so. On the day of the election, Lingenfelter inquired of Adolph
Miller whether he knew any of the boys that were for the Union.
2. Activities of Attorney Tate Thigpen 5
Employee Toxie Mitchell credibly testified without contradiction that on Tuesday
night prior to the election on Thursday, June 5, 1952, Attorney Tate Thigpen came
to his home in an automobile, called him out to the car, and discussed the union
situation. In the course of conversation, Thigpen in substance asserted that the em-
ployees would be cutting their own throats to bring the Union into the plant-that the
Respondent was prepared to move the plant to Bogalusa, where a site had already
been selected near the railroad.
3. Activities of President Paul Garner
President Garner in his testimony denied any interrogation, threats, or induce-
ments offered to employees, but admits that on the day of the election, prior to bal-
loting, he personally solicited the vote of each individual employee in the plant.
Employees Hugh A. McDuffie, William J. Davis, Toxie Mitchell, and Adolph
Miller, credibly testified that President Garner inquired whether they were for or
against him.
William J. Davis credibly testified further that President Garner said that he was
not able to pay union wages and would just have to shut down, that he had a better
place in Bogalusa to put the plant anyway, that in the past 3 months, respectively, he
had lost $700, $900, and $1,000 in operation, that the men were actually not doing
2 hours worth of work a day, and that he was just keeping them employed so that
he would not have to break in a new crew when business improved.
Toxie Mitchell credibly testified in substance that he came up while President
Garner was talking to Davis and that Garner then turned to him and said, "Toxie-
what about you? I'm sort of electioneering for myself today. I want to know how
4 The record (General Counsel's Exhibit No 65) shows that during the month of June
1952, the Respondent granted wage increases to 19 employees, including Samuel B.
Rayburn and Burton Wheat.
5It was stipulated by counsel for all parties that Thigpen was a member of the law
firm (Thigpen & Stewart) retained by Respondent, but that the labor problem herein had
been specifically referred to Ray M. Stewart, attorney, and was not the responsibility
of Attorney Thigpen.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you boys feel about this union . I'm doing about all I can do . I've got a larger
force right now than I really need, but I'm going to try to hold onto all the men,
because when I gets orders in, like in the fall and in the winter, there's more stuff to
ship, when I call on the boys I know they'll get it for me. I know I can depend on
them."
E. Discrimination in regard to tenure and other conditions of employment
1. Temporary layoffs-new rules
When the balloting was completed on the afternoon of June 5, 1952 , Foreman
Lingenfelter announced that there would be no more work at the plant until Monday,
June 9 , 1952. He personally notified a few of the employees, presumably engaged in
special work , to report as usual . Respondent 's payroll record ( General Counsel's
Exhibit No . 57) shows that 14 out of 50 employees worked on Friday, but indicates
no work on Saturday , June 7 , 1952. On Friday, June 6 , 1952, the Respondent for
the first time posted written rules for the guidance of employees , as follows:
RULES AND REGULATIONS
OF
ALEXANDER MANUFACTURING COMPANY
Alexander Manufacturing Company has certain rules to govern the conduct of
its employees. We feel that we should set forth these rules in simple language
so that each employee may act accordingly. Failure to obey these rules will
result in suspension or discharge.
1. Destruction or defacing of Alexander Manufacturing Company's Mate-
rial, equipment, or property.
2. Destruction of other worker's property.
3. Loafing or inefficient work.
4. Habitual absence or tardiness.
5. Horseplay or rowdyism.
6. Failure to come to work without notice.
7. Involving Alexander Manufacturing Company in personal financial
affairs such as garnishee proceedings, collections and dues.
8. Failure to obey known safety rules as laid out by the Mississippi Work-
man's Compensation Organization.
9. Violation of orders, rules, regulations and laws of the Federal, State,
County or Municipal authorities.
The above rules are intended to cover in a general way the policies of the
Company. We reserve the right to take action for any other proper cause
not specifically listed above.
ALEXANDER MANUFACTURING COMPANY
PAUL GARNER, President,
ALVIN LINGENFELTER, Superintendent
On Monday, June 9, 1952, all employees reported for work as usual . Because of a
flat tire en route to work, William J. Davis reported about 20 minutes late. Fore-
man Lingenfelter refused to let him punch the clock to commence work until 1 p. m.
At the lineup for work that day after lunch, William J. Davis, Warren Perette, and
James E. Saucier overheard Foreman Lingenfelter say that he intended to whip the
shop steward when he found out who he was. In another conversation with Davis
concerning the resignation of H. M. Mitchell, Foreman Lingenfelter said in substance
that since they had treated the Company like they had, he wished that "every
damned one of them" would leave.
On Tuesday, June 10, 1952, the Respondent posted the following notice:
NOTICE
DUE TO THE SEASON OF THE YEAR WE HAVE VERY FEW ORDERS
FOR HARROWS. THEREFORE WE ARE FORCED TO CURTAIL PRO-
DUCTION FOR THE TIME BEING. AFTER TODAY THE NEXT WORK
DAY WILL BE FRIDAY JUNE 13.
------------------------------
ALVIN LINGENFELTER, Superintendent
ALEXANDER MANUFACTURING COMPANY 1469
Notwithstanding the aforesaid notice, the payroll record of the Respondent (Gen-
eral Counsel's Exhibit No. 57) shows that 18 employees worked on June 11, 1952,
and 17 employees worked on June 12, 1952.
On or about June 10, 1952, Robert Jordan and Louis Kennedy, Jr., applied to
the Respondent for employment. Both of these men credibly testified in substance
that Foreman Lingenfelter told them that it was a slow season, that he was presently
laying off men and that he had no openings for the present, but to come back in
a week or two. Lingenfelter told them that the Union was trying to come in, that
he could not pay union wages, and that he was going to get rid of some of the
present employees.
On Tuesday, June 17, 1952, the Respondent posted a notice laying off 14 em-
ployees 6 for an indefinite period of time, as follows:
June 17, 1952
NOTICE
Business conditions are such that we are unable to maintain a full crew. We
are sorry that this has become necessary but due to the fact that we do not
have orders on hand to justify keeping a full crew and see no change till early
fall the following men are laid off till further notice.
Warren Perette James A. Martin
Jeverley E. Saucier James E. Saucier
Percy McCraney Harold C. Builteman
Alphonse Lossett, Jr. Herman Bennett
Leamon Pullens J. D. Ferguson
Velma Hoda Toxie Mitchell
Clarence Lizana William J. Davis
This is not a termination , the company will continue to pay each man's per-
sonal insurance. We do not feel that we can pay the Blue Cross premium
or your family insurance with Service Life Insurance Company of Jackson.
THE MANAGEMENT
The record shows that all employees laid off on June 17, 1952, except Leamon
Pullens, were at some later date reinstated or offered reinstatement under circum-
stances hereinafter set forth. By oversight in the office of President Paul Garner,
no offer of reinstatement was made to Leamon Pullens. Clarence Lizana applied
for reemployment and his name again appears on the payroll for the week ending
August 7, 1952. Herman Bennett again appears on the payroll for the week ending
August 14, 1952. J. D. Ferguson appears on the payroll for the week ending
October 2, 1952. Toxic Mitchell applied for reemployment on three occasions,
and again appears on the payroll for the week ending November 20, 1952.
On or about November 20, 1952, the Respondent wrote letters to Percy McCraney,
Alphonse Lossett, Jr., James A. Martin, and James E. Saucier, notifying each of
them to report for work on November 24, 1952. When these employees failed to
report, as instructed, the Respondent on November 24, 1952, by a second letter,
notified each of them that his status as an employee was terminated as of that date.
Because of a change of address, Percy McCraney did not receive his first letter in
time to report at the time directed. He was at the time commuting to a job in New
Orleans, and made no reply to Respondent's letters. Alphone Lossett, Jr., testified
that he did not receive the first letter, but did receive the second letter. Having
moved his residence to New Orleans, Louisiana, he made no reply to Respondent.
James A. Martin testified as a witness, but made no explanation of his failure to
report back to work. It was stipulated by counsel that the first letter to Martin
offering reinstatement was returned to the Respondent unclaimed. In the absence
of evidence to the contrary, it is presumed that he received the second letter ter-
minating his status as an employee. The circumstances under which James E.
Saucier was terminated and denied reinstatement require a more detailed discussion.
Upon receipt of letter signed by Emory R. Hodgson, Jr., secretary, directing him
to report for work on the morning of November 24, 1952, James E. Saucier on
Sunday, November 23, 1952, called Foreman Lingenfelter over the telephone at
his home. Lingenfelter disclaimed any knowledge of what was going on-said he
had been in the hospital-and advised Saucier to get in touch with Hodgson.
Saucier called Hodgson, but failed to reach him by telephone. Saucier did not report
O Thirteen of these employees had signed both authorization cards and application
cards for membership in the Union. Harold C Builteman had authorized his name to be
signed to one of the authorization cards.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for work on Monday as directed, but called Foreman Lingenfelter again on Mon-
day night to inquire if the job was still open. Lingenfelter stated that he held the
job open for him until 9 o'clock that morning, and then put another man on it.
Following that conversation, Saucier received his letter of termination signed by
President Paul Garner. On or about December 5, 1952, James E. Saucier received
another letter signed by Paul Garner, president, instructing him to report for work
at 7 a. m. on Tuesday, December 9, 1952. Upon receipt of this letter, Saucier on
Monday afternoon, December 8, 1952, went to the plant and talked in person
to Forman Lingenfelter about it. Lingenfelter disclaimed any knowledge of the
letter, but advised him to report on the next day if he had instructions to do so.
That night, however, Saucier received by messenger a letter from the Respondent and
signed by Foreman Lingenfelter, to the effect that the letter from President Garner
was not intended for him. Consequently, James E. Saucier did not report to work
on December 9, 1952, and has not since been reinstated.
William J . Davis, upon receipt of letter from the Respondent offering reinstate-
ment in November or December 1952, declined to accept reemployment. Velma
Hoda received a letter from Respondent on or about December 3, 1952, to return
to work, but was not interested and did not accept reinstatement. Warren Perette
received a letter from Respondent dated December 5, 1952, and returned to work
on December 9, 1952. Jeverley E. Saucier received a letter from Respondent on
the night of December 17, 1952, to report for work at 7 a. m. on December 18,
1952. Because of a job in Pascagoula, to which he commuted daily, he did not
comply with Respondent's instructions. Thereafter by letter dated December 20,
1952, the Respondent terminated his status as an employee. Saucier made no
reply or inquiry about the matter. Harold C. Builteman, upon receipt of a letter
from Respondent, returned to work on January 29, 1953. Prior to the layoff of
June 17, 1952, Builteman had worked irregularly as a drill press operator. For
lack of an opening in that position, he was rehired in another job at approximately
the same wage.
2. Discriminatory discharge of Lonnie Pullens
It is alleged in the complaint that the Respondent on or about June 11, 1952,
terminated the employment of Lonnie Pullens on account of his union affiliation
and concerted activities with other employees for the purpose of collective bargain-
ing and other mutual aid and protection. Pullens signed a union authorization
card on or about May 10, 1952, and also an application card for membership in
the Union on June 5, 1952. He was authorized by and signed a union authoriza-
tion card for Harold C. Builteman. It has already been shown herein that Fore-
man Lingenfelter suspected Pullens of carrying the authorization cards around to
be signed by other employees, and requested B. J. Skipper to find out whether it
was true. During the week immediately prior to the election on June 5, 1952,
Lingenfelter interrogated Pullens, and accused him of engaging in union activities.
In compliance with notice posted by the Respondent on June 10, 1952, Lonnie
Pullens did not report for work on June 11 and 12, but reported again on Friday,
June 13. Upon arrival at the time clock on the latter date, his timecard had been
removed from the rack. Lingenfelter called him out of line and inquired why he
had not reported for work on Wednesday, June 11. Pullens explained that he
complied with the notice of layoff, and received no notice otherwise to work on
Wednesday. Foreman Lingenfelter insisted, however, that he had personally in-
structed Pullens to come to work on Wednesday. Thereupon, Lonnie Pullens was
formally discharged by the Respondent on Friday, June 13, 1952.
3. The constructive discharge of B. J. Skipper
It is alleged in the complaint that the Respondent on or about June 26, 1952, ter-
minated the employment of B. J. Skipper because of his activities on behalf of the
Union and because he engaged in concerted activities with other employees for
the purpose of collective bargaining and other mutual aid and protection . Having
been in the employ of the Respondent since 1947, Skipper was, in point of service,
one of its senior employees. Apparently President Garner and Foreman Lingen-
felter felt free to discuss with him the union situation. Skipper had signed one of
the union authorization cards, but at a barbecue dinner for employees about a week
prior to the election he told President Garner that he was on his side of the union
issue. Garner told Skipper that he could not afford to pay union wages, and would
have to close the plant if the Union came in-that he was contemplating a raise in
wages to some of the men, but had decided to wait until the union issue was settled.
ALEXANDER MANUFACTURING COMPANY 1471
Within a day or two thereafter Skipper went to Garner 's office and volunteered to
obtain and furnish the Respondent with inside information concerning the union
activities of other employees . Skipper also had a conversation with Foreman Lin-
genfelter in which he was requested to find out whether Lonnie Pullens had carried
around the union authorization cards to be signed by other employees. Lingenfelter
confided to Skipper that he had talked to certain employees, and inquired what
Skipper thought about them . On the day of the election President Garner in-
quired of Skipper whether he was still on his side . Skipper was not laid off at any
time during the period from June 5 to June 13, 1952. He attended a union meeting
at Pine Hall Tourist Court on the night of June 5 (after the election), and signed
an application card for membership in the Union . On the next day, Foreman
Lingenfelter inquired as to what took place at the meeting , and Skipper refused to
tell him . A slight argument ensued between the two men. Lingenfelter accused
Skipper of joining the Union and lying about it. Skipper wanted to know who
told him , and told Lingenfelter that he had a yellow streak down his back if he
didn 't tell him . Thereafter , Skipper and Lingenfelter were not on entirely friendly
terms. During the week after the election , Skipper worked continuously on a new
type disc known as the Alexander Carry-All. Upon completion of this special
work , Skipper credibly testified that Foreman Lingenfelter said, "If this doesn't
sell, I don 't know what we gonna do. If you can find another job , you better take
it." Shortly thereafter Skipper accepted another job operating a bulldozer at
Morganza , Louisiana , and quit his employment with the Respondent . At the time,
Skipper had also done extra work during off hours for other employers , and cus-
tomarily borrowed a welder's face shield from the Respondent . After quitting his
job with Respondent , he obtained permission from Foreman Lingenfelter to con-
tinue using the shield for a while , then returned it when the plant was closed by
putting it through a broken window. The payroll record of Respondent shows
that Skipper last worked there on June 19, 1952 . Skipper himself could not recall the
exact date on which he quit work.
It is contended by Counsel for the General Counsel that under the present cir-
cumstances , the statement of Foreman Lingenfelter to B. J . Skipper about finding
another job constituted a constructive discharge and discrimination in tenure of
employment to discourage membership in the Union.
Concluding Findings
Payroll data of the Respondent (General Counsel's Exhibits Nos. 57 and 64) for
the week ending May 15, 1952, list 50 employees by name and job classification.
Authorization cards signed by 28 of these employees, duly proven and admitted in
evidence, are sufficient to designate the Union as bargaining representative in the
appropriate unit herein found.? The International Brotherhood of Boilermakers,
Iron Shipbuilders and Helpers of America, an affiliate of the American Federation
of Labor, notified the Respondent of its substantial interest by immediately filing a
petition with the Board for certification. Upon receipt of a demand to bargain from
the parent organization on or about May 14, 1952, the Respondent made no reply,
but entered into an agreement for a consent election in the representation case,
thereby recognizing the identity of interest of the two labor organizations. The
demand to bargain received from the American Federation of Labor, therefore, to
all intents and purposes, was a demand from its affiliate, and was so recognized
by the Respondent. Nothing else appearing, it might be presumed that the Respond-
ent consented to an election in good faith, but subsequent unfair labor practices
negate such a presumption. Pending the election, the Respondent engaged in a
campaign of interference, restraint, and coercion to undermine the Union. The
consent-election agreement did not , therefore , relieve the Respondent of its statu-
tory duty to bargain in good faith with the authorized representative of its employ-
ees.8 Certification by the Board is not necessarily required to designate a labor
organization as the authorized representative of employees.
From a preponderance of the evidence in the case, I find that for several days
prior to the election of June 5, 1952, the Respondent through its production super-
intendent and foreman, Alvin Lingenfelter, interrogated and berated its employees
concerning their affiliation with and activities on behalf of the Union, threatened them
with loss of employment by asserting that the plant was too small to pay union
wages, and would be forced to close down if the Union came in.
7 Long-Lewis Hardware Company. 90 NLRB 1403
8 Dismuke Tire and Rubber Company, Inc., 93 NLRB 479, 480.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Paul Garner likewise interrogated employees concerning their sym-
pathies for the Union, solicited their votes in the election against the Union, repre-
sented to them that he was losing money by retaining them in their employment
until a more favorable business season, asserted that he would be forced to close
down the plant or move to a more favorable location in another town, and that he
could not afford to pay union wages.
Tate Thigpen, an attorney retained by the Respondent, whether or not specifically
authorized to do so, in the course of his employment sought out an employee (Toxie
Mitchell) on the eve of the election, and asserted that the Respondent would move its
plant to another town, where a site had been selected.
By the aforesaid statements and conduct, the Respondent interfered with, re-
strained, and coerced employees in the exercise of the rights guaranteed to them
in Section 7 of the Act.
It is true that economic necessity required the Respondent to curtail its operations
during the summer months. In years prior to 1952, however, the indefinite termina-
tion of men dependent upon employment at the plant for a livelihood was avoided
by the voluntary seasonal termination of men engaged in farming and by reducing
the days and hours of work at the plant. The organizational activities in May and
the election on June 5, 1952, to some extent may have interfered with an orderly
adjustment of Respondent's schedule and working forces. I credit the testimony of
Respondent that temporary layoff of employees for periods of 2 or 3 days on June
6, 11, and 12, 1952, was economic and not discriminatory. Selection for layoff
on those dates was made without respect to union affiliation. It appears, however,
that Respondent on June 6, 1952, initiated a change of policy by posting and enforc-
ing more exacting rules affecting the working conditions of employees.
From a preponderance of the evidence, 1 find that on June 17, 1952, the Respond-
ent, contrary to its usual custom, discriminatorily selected 14 employees for indefi-
nite layoff. All of these employees had signed union authorization cards, and most
of them had actively engaged in concerted activities on behalf of the Union. Ex-
cepting J. D. Ferguson, who applied for layoff, and Velma Hoda, who had already
discontinued regular work at the plant because of his duties on the farm, I find that
on June 17, 1952, the Respondent for an indefinite period discriminatorily termi-
nated the employment of Warren Perette, Jeverley E. Saucier, James E. Saucier,
Percy McCraney, Alphonse Lossett, Jr., Leamon Pullens, Clarence Lizana, James
A. Martin, Harold C. Builteman, Herman Bennett, Toxie Mitchell, and William J.
Davis to discourage membership in a labor organization. As heretofore shown
some of these employees at later dates were reinstated or offered reinstatement. I
find, however, that the Respondent abruptly terminated the employment of Percy
McCraney, Alphonse Lossett, Jr., Leamon Pullens, James A. Martin, Jeverley E.
Saucier, and James E. Saucier without affording to them a fair opportunity to
accept or reject reinstatement to their former or substantially equivalent positions.
I cannot accept the contention of the Respondent that Lonnie Pullens was dis-
charged for disobeying verbal instructions of Foreman Lingenfelter to report for
work on Wednesday, June 11, 1952. At that time, the plant was closed down by
notice to all employees that the next workday would be Friday, June 13. Under the
circumstances , it would be entirely unreasonable to discharge an employee for mis-
understanding conflicting instructions. There is no evidence that Pullens was en-
gaged in essential work requiring his presence on the job, or that the Respondent
suffered any loss by reason of his absence on that day. I, therefore, find that Re-
spondent's contention is a mere pretext to rid itself of an employee suspected of
rendering material assistance to the Union , and that Lonnie Pullens was discrimina-
torily discharged to discourage membership in a labor organization.
It is clear from the record that B. J. Skipper involuntarily terminated his employ-
ment with the Respondent after service of approximately 5 years. He sought and
accepted employment elsewhere because Foreman Lingenfelter told him it would be
best for him to take another job, if he could find one. In view of the layoff and
discharge of other union adherents, I am convinced and find that the Respondent
had determined to get rid of Skipper also. I, therefore, find that B. J. Skipper was
constructively discharged to discourage membership in a labor organization, and
that Respondent thereby discriminated with respect to the tenure of his employment.
Having found that the Respondent engaged in a vigorous campaign both before
and after the consent election of June 5, 1952, to undermine and destroy the
majority status of the Union as authorized representative of its employees, I am
constrained to find that it entered into a consent election not because of a good-faith
doubt of the union majority, but rather to gain time in which to override and sup-
press the wishes of its employees to form a labor organization . I, therefore, find
ALEXANDER MANUFACTURING COMPANY 1473,
that on and after May 14, 1952, the Respondent has refused to bargain with the
Union as the authorized representative of its employees.9
IV. THE EFFECT OF THE UNFAIR LABOR PlUiCTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connec-
tion 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, tending to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom, and take cer-
tain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent interrogated and berated its employees con-
cerning their organizational activities and threatened to close down or remove its
plant to another town in reprisal against employees for their organizational activi-
ties, it will be recommended that Respondent cease and desist from the conduct
herein found to be a violation of the Act. Inasmuch as the unfair labor practices
herein found indicate that the Respondent is hostile to the general purposes of the
Act, and there is a likelihood that such unfair labor practices may continue in the
future, it will be recommended that Respondent cease and desist from in any man-
ner infringing upon the rights guaranteed to employees in the Act.1°
It has been found that on May 14, 1952, and at all times thereafter, the Union was
and is the authorized and exclusive representative of Respondent's employees in the
appropriate unit for the purpose of collective bargaining, and that on and after said
date the Respondent refused to bargain collectively with said representative in viola-
tion of the Act. It will, therefore, be recommended that Respondent, upon request,
bargain collectively with the Union as the authorized and exclusive representative of
its employees in the appropriate unit.
Having found that the Respondent on June 17, 1952, discriminatorily terminated
for an indefinite time the employment of Warren Perette, Jeverley E. Saucier, Percy
McCraney, Alphonse Lossett, Jr., Leamon Pullens, Clarence Lizana, James A.
Martin, James E. Saucier, Harold C. Builteman, Herman Bennett, Toxie Mitchell,
and William J. Davis; and at various times thereafter in good faith reinstated or
offered reinstatement to Warren Perette, Clarence Lizana, Harold C. Builteman,
Herman Bennett, Toxie Mitchell, and William J. Davis, it will be recommended
that Respondent now offer to Jeverley E. Saucier, Percy McCraney, Alphonse
Lossett, Jr., Leamon Pullens, James A. Martin, and James E. Saucier immediate and
full reinstatement to their former or substantially equivalent positions 11 without
prejudice to seniority or other rights and privileges. It will also be recommended
that Respondent make each of the 12 named employees whole for any loss of pay
suffered by reason of the discrimination against them by the payment to each of
them of a sum of money equal to the amount he would have earned as wages since
the date of his layoff to the date when such reinstatement or offer of reinstatement
was or is made, less net eamings,12 to be computed on a quarterly basis in the
manner set forth in F. W. Woolworth Company, 90 NLRB 289. Earnings in one
particular quarter shall have no effect upon the back-pay liability for any other
such period.
Having found that Respondent discriminatorily discharged Lonnie Pullens and
B. J. Skipper, it will be recommended that Respondent offer to each of said employees
immediate and full reinstatement to his former or substantially equivalent position
in the same manner and to the same extent set forth in the next preceding paragraph.
It will also be recommended that Respondent upon request make available to
the Board all of its books and records necessary to facilitate the computation of
back pay herein awarded.
9 The M. H. Davidson Company, 94 NLRB 142; Joy Salk Mills V. N. L . R. B., 185 F. 2d
732 (C. A., D. C.).
w Central Kentucky Broadcasting Company, Incorporated , 93 NLRB 1298 ; Vaughn
Bowen, et at , 93 NLRB 1147; McKesson & Robbins, Incorporated, 92 NLRB 1432.
u The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
za See Crossett Lumber Company, 8 NLRB 440.
338207-55-vol . 110-94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Boilermakers , Iron Shipbuilders and Helpers of
America, AFL, is a labor organization within the meaning of Section 2 ( 5) of the
Act.
2. All production and maintenance employees of the Respondent at its plant in
Picayune , Mississippi , excluding office clericals , professional employees , guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
3. At all times since May 14, 1952, International Brotherhood of Boilermakers,
Iron Shipbuilders and Helpers of America, AFL, has been and now is the exclusive
representative of all employees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on or about May 14, 1952, and thereafter , to bargain collectively
with International Brotherhood of Boilermakers , Iron Shipbuilders and Helpers of
America, AFL, as the exclusive representative of its employees in the aforesaid
appropriate unit , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) and (1) of the Act.
5. 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 (a) (1) of
the Act.
6. By discriminating in regard to the hire and tenure of employment and other
conditions of employment of its employees , thereby discouraging membership in In-
ternational Brotherhood of Boilermakers , Iron Shipbuilders and Helpers of America,
AFL, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union affiliations,
activities, and sympathies, or promise them economic benefits to refrain from
engaging in concerted activites on behalf of a labor organization.
WE WILL NOT threaten our employees with loss of employment or other
economic reprisals because of their affiliation with or activities on behalf of
any labor organization.
WE WILL NOT discourage membership in International Brotherhood of Boil-
ermakers, Iron Shipbuilders and Helpers of America, AFL, or any other labor
organization, by discriminatorily discharging, temporarily laying off, or refus-
ing to reinstate any of our employees, or by discriminating in any other manner
in regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist International Brotherhood of Boilermakers, Iron
Shipbuilders and Helpers of America, AFL, 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, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
WE WILL bargain collectively, upon request, with International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America, AFL, as the exclusive
representative of all employees in the appropriate unit described herein with
VERSCHAREN'S FOOD CENTERS 1475
respect to wages, rates of pay, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody such understanding
in a signed agreement. The appropriate bargaining unit is:
All production and maintenance employees at our plant in Picayune, Mis-
sissippi, excluding office clericals, professional employees, guards, and
supervisors as defined in the Act.
WE WILL offer to Percy McCraney, Alphonse Lossett, Jr., Leamon Pullens,
James A. Martin, Jeverley E. Saucier, James E. Saucier, Lonnie Pullens, and
B. J. Skipper, immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other rights and
privileges previously enjoyed by them and make them whole for any loss of
pay suffered as a result of the discrimination against them.
WE WILL make whole Warren Perette, Clarence Lizana, Harold C. Builteman,
Herman Bennett, Toxie Mitchell, and William J. Davis, for any loss of pay
suffered as a result of the discrimination against them from their layoff on June
17, 1952, to the respective dates on which they were reinstated or declined to
accept reinstatement.
All our employees are free to become, remain, or refrain from becoming mem-
bers of the above-named Union or any other labor organization except to the ex-
tent that this right may be affected by an agreement in conformity with Section 8
,(a) (3) of the Act. We will not discriminate against any employee because of
membership in or activity on behalf of any labor organization.
ALEXANDER MANUFACTURING COMPANY,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
HENRY VERSCHAREN , D/B/A VERSCHAREN'S FOOD CENTERS and AMAL-
GAMATED FOOD EMPLOYEES UNION9 LOCAL 590, AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA , AFL. Case
No. 6-CA-727. December 14, 1954
Decision and Order
On December 2, 1953, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and the Respondent filed a
supporting brief.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
1 The General Counsel excepts only to the failure of the Trial Examiner formally to rec-
ommnend that Remo Iannacchione be offered immediate and full reinstatement, although he
finds that Iannacchione was discriminatorily discharged and recommends that he be
awarded back pay. It is obvious that the Trial Examiner omitted such recommendation
inadvertently because in that section of his Intermediate Report entitled "The Remedy"
he states his intention of making such a recommendation and in his recommended posting
order provides for Iannacchione's reinstatement.
110 NLRB No. 219.