Bennett-Hubbard Candy Co.

National Labor Relations Board - Board Decisions

Mar 13, 1939

11 N.L.R.B. 1090 (N.L.R.B. 1939)

In the Matter of BENNETT-HUBBARD CANDY COMPANY and BAKERY &
CONFECTIONERY WORKERS LOCAL UNION No. 25
Case No. C-609-Decided March 13, 1939
Candy Manufacturing Industry-Interference, Restraint , and Coercion-Dis-
crimination-refusal to reinstate, following strike ; retention of strikebreakers
hired after commission of unfair labor practices during strike ; employment of
new persons after strike ; discharges; charges of , not sustained-Reinstatement:
Order withheld, compliance with Trial Examiner 's recommendations with re-
spect to strikers discriminatorily refused reinstatement or strikers not applying
in view of employer 's conduct ; reinstatement upon application of strikers not
named in complaint ; preferential list-Back Pay: awarded from date of re-
sumption of normal operations to date of Intermediate Report ; ordered to
strikers not named in complaint if not reinstated or placed upon preferential
list within 5 days after application-Unit Appropriate for Collective Bargain-
ing: employees in production , shipping, and sample departments , excluding clerical
and maintenance employees and supervisors with power to hire and discharge ;
agreement as to-Representatives : proof of choice : comparison of list of union
members with pay roll ; agreement as to-Collective Bargaining: refusal to
negotiate during strike ; failure to offer counterproposals as basis for further
negotiation ; order : to cease and desist ; affirmative order to bargain withheld
on compliance with Trial Examiner's recommendation-Strike: prolonged by
employer 's refusal to bargain-Violence-Picketing-Conciliation : efforts at,
by United States Department of Labor.
Mr. M. A. Prowell, for the Board.
Mr. John A. Chambliss, of Chattanooga, Tenn., for the respondent.
Mr. H. G. B. King, and Mr. Curtis R. Sims, of Chattanooga, Tenn.,
for the Union.
Mr. Richard H. Meigs, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been duly filed by Bakery &
Confectionery Workers Local Union No. 25, herein called the Union,
the National Labor Relations Board, herein called the Board, by
Charles N. Feidelson, Regional Director for the Tenth Region
(Atlanta, Georgia), issued and duly served its complaint, dated
11 N. L. R. B., No. 97.
1090
BENNETT-HUBBARD CANDY COMPANY ET AL. 1091
January 25, 1938, against Bennett-Hubbard Candy Company, Chat-
tanooga, Tennessee, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (3),
and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act.
With respect to the unfair labor practices, the complaint alleged, in
substance, (1) that in May 1936 the respondent discharged and there-
after refused to reinstate Joe Coleman and Johnny Flynn because
they joined and assisted the Union; (2) that during the month of
May 1936, and at all times thereafter, the respondent refused to bar-
gain collectively with the Union, although it represented a majority
of the respondent's employees in an appropriate unit; (3) that on or
about June 11, 1936, members of the Union went out on strike in
protest against the respondent's refusal to bargain collectively; and
(4) that during the months of August, September, and October, 1936,
22 named persons who had been on strike applied to the respondent
for reinstatement and were refused employment by reason of their
union membership and activities. On January 31,1938, the respondent
filed an answer to the complaint, denying that it had engaged in the
unfair labor practices alleged therein.
Pursuant to notice duly served upon the respondent and the Union
a hearing was held on February 17, 18, 21, 22, and 23, 1938, at Chat-
tanooga, Tennessee, before James L. Fort, the Trial Examiner duly
designated by the Board. The Board, the respondent, and the Union
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 on the issues was afforded all parties.
At the commencement of the hearing the Trial Examiner granted a
motion by the Board to amend the complaint by adding the allegation
that the strike terminated on or about September 20, 1936, and to
include the name of R. L. Moore in the list of striking employees who
were alleged to have been discriminatorily refused reinstatement.
The respondent answered the Board's amendment to the complaint,
averring that it was not advised of the termination of the strike on
the date alleged in the amendment, and that because of statements and
acts of the Union, the respondent believed the strike to have con-
tinued until at least May 1937. The Trial Examiner then granted a
motion by the respondent to amend its answer, making certain textual
changes therein. The Trial Examiner granted motions by the Board,
(1) to dismiss without prejudice that part of the complaint having
reference to the following employees : Anna La Fitte, Ada McAllister,
Barbara Arthur, and John Barrett, and (2) to conform the pleadings
to the proof. During the course of the hearing, the Trial Examiner
made other rulings on motions and on objections to the admission of
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence . The Board has reviewed all the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
Subsequent to the hearing , the respondent filed with the Trial
Examiner a brief dated March 3, 1938. Thereafter , on April 28,
1938, the Trial Examiner filed and duly served upon the respondent
and the Union his Intermediate Report in which he made the fol-
lowing findings of fact: ( 1) That the strike was not caused by the
respondent 's failure to bargain collectively with the Union; ( 2) that
the respondent 's employees , exclusive of supervisory and clerical
employees , constitute an appropriate unit for the purposes of collec-
tive bargaining ; ( 3) that at all times since May 28, 1936, the Union
has been the exclusive representative of all employees in said unit
for the purposes of collective bargaining; (4) that on June 27, 1936,
and on numerous dates thereafter , the respondent refused to bargain
collectively with the Union, and thereby prolonged the strike; and
(5) that Johnny Flynn and Joe Coleman were not discharged by the
respondent in May 1936 and thereafter refused employment by rea-
son of their membership in and activities on behalf of the Union.
The Trial Examiner recommended that the respondent ( 1) cease and
desist from engaging in the unfair labor practices ; ( 2) upon request,
bargain collectively with the Union as the exclusive representative
of its employees , exclusive of supervisory and clerical employees;
(3) upon their application , offer to Margaret Patterson , Bessie Yar-
brough, Bill Hartbarger , Leonard Randolph , Ethel Mays, R. D.
Dorsey, Blanche Lamb, Gertie Radford, Bonnie Vaughn, Noah Steele,
Tillie Brooks, Johnny Flynn, Mamie McArthur , Earl Parrish, J. P.
Hughes, Nellie White, Lorene Williams , and Myrtle Rothwell rein-
statement to their former positions ; and (4 ) post notices to its
employees , stating that it will cease and desist from its unfair labor
practices . The Trial Examiner further recommended that the al-
legations of the complaint , as they relate to the unlawful discharges
of Johnny Flynn and Joe Coleman , be dismissed , provided , however,
that Johnny Flynn be reinstated along with other named employees
in the manner outlined in recommendation ( 3) set forth above. The
Trial Examiner made no finding with respect to R. L. Moore or Bill
De Sha.
The respondent filed no exceptions to the Intermediate Report but
complied therewith to the extent described below in "The remedy."
On May 20 , 1938, the Union filed exceptions to the Intermediate
Report, in which, inter alia , it excepted to the Trial Examiner's fail-
ure to find that the respondent refused to bargain collectively with
the Union on June 11, 1936, and that the strike resulted from such
refusal, and his failure to recommend that the striking employees
be granted back pay from the date they applied for reinstatement
BENNETT-HUBBARD CANDY COMPANY ET AL . 1093
subsequent to the strike. Although the parties were notified of their
right to request oral argument before the Board, none of them re-
quested such oral argument. Except in so far as the Union's excep-
tions are consistent with the findings, conclusions, and order below,
we find no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FAOT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Bennett-Hubbard Candy Company, is a Tennes-
see corporation having its office and principal place of business in
Chattanooga, Tennessee. The respondent is engaged in the manu-
facture, sale, and distribution of candy, candy products, salted pea-
nuts, and peanut butter.
The principal raw materials used are sugar, syrups, flavoring ex-
tracts, peanuts, and chocolate. The respondent normally purchases
approximately $200,000 worth of raw materials annually, of which
approximately 90 per cent are received from sources outside the
State of Tennessee, and approximately $100,000 worth of other sup-
plies, approximately 25 per cent of which are obtained from outside
the State of Tennessee. Approximately 80 per cent of the products
manufactured by the respondent are sold and shipped to points out-
side the State of Tennessee. The annual volume of products manu-
factured by the respondent varies from 60,000 to 120,000 pounds.
The respondent admits that it is engaged in interstate commerce.
II. THE ORGANIZATION INVOLVED
Bakery & Confectionery Workers Local Union No. 25, affiliated
with the American Federation of Labor, is a labor organization ad-
mitting to its membership production employees in the baking and
confectionery industries in Chattanooga, Tennessee , including all
employees of the respondent who are employed in its production,
shipping , and sample departments , excluding clerical and maintenance
employees and supervisors who have the power to hire and discharge.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
At the hearing it was stipulated by all parties that the unit alleged
in the complaint, consisting of all employees of the respondent who
are employed in its production, shipping, and sample departments,
164275-39-vol. ac-70
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding clerical and maintenance employees and supervisors who
have the power to hire and discharge, is a unit appropriate for the
purposes of collective bargaining. The record discloses no circum-
stances which would warrant our deviating from the unit so described.
We find that all the respondent's employees in its production, ship-
ping, and sample departments, excluding clerical and maintenance
employees and supervisors who have the power to hire and discharge,
constitute a unit appropriate for the purposes of collective bargain-
ing and that said unit insures to employees of the respondent the full
benefit of their right to self-organization and collective bargaining
and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
At the hearing the Board introduced in evidence a list prepared
from the respondent's pay roll containing the names of persons who
were employed by the respondent on June 11, 1936. The Board also
introduced in evidence, without objection, a list containing the names
of the respondent's employees who were union members on June 11,
1936. All the employees whose names were contained in the last
named list became union members during the months of March, April,
and May, 1936.
The aforesaid pay-roll list bears the names of 53 employees. Among
those listed are 13 employees who do not come within the appropriate
unit, thus leaving a total of 40 names of eligible employees. A com-
parison of these names with those contained in the list of union mem-
bers reveals that 38 of the 40 eligible employees were members of the
Union on June 11, 1936, the day on which the strike occurred.
We find that on June 11, 1936, and at all times thereafter, the Union
was the duly designated representative of the employees in the ap-
propriate unit, and, by virtue of Section 9 (a) of the Act, was the
exclusive representative of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment.
3. The refusal to bargain
a. Events prior to the strike
In February 1936 a movement was begun to organize the re-
spondent's employees, which, during the ensuing 3 months, resulted
in a substantial majority joining the Union. In May 1936 a proposed
contract was drawn and approved by the respondent's employees who
were union members, and a committee of three men, none of whom
was an employee of the respondent, was appointed to present it to
the management. Late in May or early in June 1936 the committee
BENNETT-HUBBARD CANDY COMPANY ET AL. 1095
met with Sanford Bennett, president of the respondent, and S. H.
Hubbard, vice president and general manager, and introduced them-
selves as the representatives of a majority of the respondent's em-
ployees. The committee refused to show its credentials or disclose the
names of the employees claimed to be represented. Apparently, how-
ever, Bennett was satisfied to proceed with the meeting. After read-
ing the tentative contract which was proffered, Bennett objected to
the wage scale proposed therein, on the ground that such increased
labor costs would seriously handicap him in meeting the prices of his
competitors who paid their employees less. The committee then
undertook to convince Bennett that a closed shop and the use of the
union label on his products would increase the consumption of his
goods and result in profits which would offset the proposed wage
increase. A general discussion ensued during which no attempt was
made to consider the proposed contract in detail. At the culmination
of the conference, which was friendly throughout, Bennett invited
the committee to return on June 8, 1936, and retained the contract
for further study.
During the interim after the first meeting Bennett devoted consid-
erable time and effort to the study of the commercial value of union
labels on various merchandise and brought into the second confer-
ence with the union committee on June 8, 1936, several loaves of
both union and non-union made bread, together with various figures
which he had compiled. He advised the committee of his investiga-
tions, and, exhibiting the loaves of bread and the figures, stated that
although the union label was "a pretty good article," it was not good
enough to offset the increased labor cost under the proposed wage
scale. He reiterated his inability to operate his plant under the pro-
posed wage scale. The committee gave no indication that it would
consider receding from the proposed wage rates and requested that
the other terms of the contract be discussed, saving the wage ques-
tion until last. Bennett testified that he considered the wage ques-
tion of vital importance, since, unless the committee made concessions
in regard thereto, he could not execute the contract under any cir-
cumstances. He therefore insisted upon its settlement before dis-
cussing other phases of the contract. After further general discus-
sion, this second meeting terminated in a friendly fashion. Bennett
invited the committee to return, hoping, he testified, that since he
had consistently objected to the proposed wage scale, the committee
would return at that time with some concession. The third meeting
between the committee and the management took place on June 10,
1936. Much the same ground was gone over. The committee in-
sisted that the contract be signed as it stood. Bennett still demurred
to the wage-scale clause, but, according to the testimony of a mem-
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber of the committee, stated that he would "sign anything his com-
petitors signed." The meeting adjourned with no indication that
negotiations were then closed by either side.
On June 10, 1936, after the committee's third meeting with Ben-
nett, the Union called a meeting of the respondent's employees. The
committee reported that Bennett had refused to negotiate. A strike
vote was taken, resulting in a unanimous decision to call a strike.
On the morning of June 11, 1936, a majority of the respondent's em-
ployees engaged in picketing the plant.
It is the contention of the Union that the strike was called in pro-
test against the respondent's refusal to negotiate. This claim is un-
supported by the evidence. The discussions which ensued at the
meetings between the union committee and the management clearly
indicate an honest effort to bargain, nor does the record show that
an impasse had been reached on June 10, 1936. We are of the
opinion that the strike was called in order to exert an economic
pressure upon the respondent to yield to the demands of the Union.
As a protest against the respondent's refusal to bargain the strike
was clearly premature. In view of the circumstances in the case,
the allegation in the complaint that the strike was caused by the
respondent's failure to bargain collectively with the Union is un-
supported by the evidence.
b. Events during and subsequent to the strike
On June 27, 1936, the Carter Candy Company, a competitor of the
respondent with which the Union had begun to negotiate at about
the time it commenced negotiations with the respondent, entered
into a contract with the Union. Under this contract the wage scale
agreed upon provided for substantially the same wages as were be-
ing paid by the respondent at the time the strike occurred. The
Union committee immediately sought out Bennett, reminded him of
his statement that he would "sign anything his competitors signed,"
and endeavored to resume negotiations. On this occasion, however,
Bennett refused to negotiate further with the Union.
The strike entailed considerable violence and the atmosphere of
friendliness which had been present throughout the negotiations
prior to the strike disappeared. Attempts were made by the re-
spondent to induce the strikers to return to work by invitations ex-
tended to the pickets and by cards distributed among them con-
taining the printed message that unless they did so immediately,
their jobs would be filled by outsiders. Several striking employees
did in fact return to work, and several new employees were hired to
operate the plant.
BENNETT-HUBBARD CANDY COMPANY ET AL . 1097
Representatives of the Union met on two occasions with the mayor
and city commissioners in an effort to effect a compromise between
the strikers and the management. No satisfactory response, how-
ever, was obtained from the management. The record shows that
the city officials attempted to secure the attendance of Bennett at
these meetings and that Bennett persistently refused to appear per-
sonally. He was represented instead by one John A. Chambliss, his
attorney. At one such meeting Chambliss presented a proposed
contract containing the terms upon which the respondent was will-
ing to have the strike settled. Chambliss, it appears, was given no
substantial authority to negotiate for the respondent, the proposed
contract being proffered on a "take it or leave it" basis. The Union
objected to its terms and refused to sign it. Statements were made
by city commissioners at these meetings to the effect that Bennett
was the "hardest-headed" man they had ever seen, that he absolutely
refused to work with them, and that his attitude indicated that he
did not want to settle the strike.
In July 1936 a conciliator from the United States Department of
Labor arrived in answer to the Union's request. While he was en-
deavoring to adjust the differences between the parties, Bennett was
struck on the head by a club in the hands of some unidentified per-
son, thus bringing all attempts to negotiate to an abrupt close.
The strike continued until about September 20, 1936, at which time
the Union informed the strikers that its funds were exhausted and
the strike could be carried on no longer. It advised its members
to endeavor to secure their former positions and return to work.
The Union on June 27, 1936, and on numerous occasions thereafter,
attempted to bargain collectively with the respondent. Since the re-
spondent was unwilling to cooperate with the Union in settling the
strike, it cannot now contend that the differences between it and its
employees could not have been adjusted.
We find that on June 27, 1936, and thereafter, the respondent re-
fused to bargain collectively with the Union as the representative of
its employees in an appropriate unit in respect to rates of pay, wages,
hours of employment, and other conditions of employment, and that
the respondent has thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7
of the Act. We further find that the respondent's unlawful refusal
to bargain collectively had the effect of prolonging the strike.
B. The alleged discharges of Flynn and Coleman
Johnny Flynn, who was also known as Claude Erwin, was laid
off along with two other employees, Leonard Randolph and Clarence
Yarbrough on May 29, 1936. Flynn applied for reinstatement and
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was informed by the management that business was slack but that
"the next man who goes into the `hard boiled' department will be
you." He thereupon left his address with the respondent and re-
turned to Cincinnati, Ohio, where he had previously secured tem-
porary employment. Although Flynn was not thereafter recalled by
the respondent, the record contains no evidence that either his lay-
off or the respondent's failure to reinstate him prior to September
20, 1936, was due to his membership in or activities in connection
with the Union. The three men were advised at the time that their
lay-off was temporary and occasioned by a lack of need for their
services. The record strongly supports the respondent's contention
that these men were laid off as the result of the installation of a new
high-speed "sucker" machine requiring fewer attendants than the
old ones which it replaced with the consequent labor readjustment.
Randolph and Yarbrough were also union members at the time the
three men were laid Off. Both were reemployed thereafter.
We find that the allegations in the complaint that Flynn was dis-
charged for the reason that he joined and assisted the Union and
engaged in concerted activities for the purposes of collective bar-
gaining and other mutual aid and protection are unsupported by
the evidence. Subsequent to September 20, 1936, however, at the con-
clusion of the strike, Flynn applied for reinstatement and was re-
fused. As described below, in subsection C, we find that Flynn was
refused reinstatement after September 20, 1936, by reason of his
union membership and activities. We shall not therefore dismiss the
complaint with respect to him.
The complaint further alleges that the respondent discharged and
refused to reemploy one Joe Coleman because of his membership in
and activities in connection with the Union. During the course of
the hearing, Coleman appeared and stated that he did not wish to
participate in the hearing. The record contains no evidence in sup-
port of the charge that Coleman was laid off or discharged because
of his union membership or activities.
We find that Joe Coleman was not discharged by the respondent
for the reason that he was a member of and engaged in activities in
connection with the Union. By its discharge and failure to reemploy
Coleman, the respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act, or discouraged membership in the Union.
C. The refusal to reinstate striking employees
Subsequent to the termination of the strike, several employees ap-
plied to the respondent for reinstatement to their former positions.
The record discloses that a few were rehired and others were refused
BENNETT-HUBBARD CANDY COMPANY ET AL. 1099
on the ground that business "was slow." Still others refrained from
applying for reinstatement because they considered it useless in the
light of reports announced at union meetings and, emanating from
employees who had applied and been refused, to the effect that the
respondent did not intend to reemploy any of the strikers. C. J. Nor-
wood, a foreman, advised Bonnie Vaughn, an employee who had been
on the picket line, that it would be useless to apply for reinstatement
since Bennett had stated that he would not consider taking back any
strikers. Noah Steele, another striker, testified without contradiction
that although Bennett admitted he was hiring new men, he stated,
"I can't put you back till business picks up."
As to those strikers named in the complaint who did not apply for
reinstatement after the strike because they believed that such applica-
tion would be useless, we have held in similar cases that such em-
ployees are not required to make application for reinstatement. "It
cannot be said that because some of the employees did not make ap-
plication to go to work they were not refused employment. That
would `place a penalty on them for not doing what they knew would
have proved fruitless in the doing."' In the instant case, the logical
effect of the statements) of a foreman and the refusal to reemploy
many of the strikers who did apply for their jobs, considered in con-
nection with the respondent's previous hostile attitude toward the-
Union during the strike, had the intended and actual effect of dis-
couraging the strikers from seeking reemployment. To have applied
for reinstatement in the face of such notorious discrimination would
have been a hopeless gesture.
The respondent contends that an employer owes his striking em-
ployees no duty to accept their applications for reinstatement made
during the continuance of a strike, and that circumstances justified it
in assuming that the strike continued to as late as May 1937. We
cannot accept this contention. Under the circumstances of this case
it is apparent that had the respondent accepted the applications for
reinstatement its claim that the strike continued thereafter would
have proved groundless.
The record shows that on June 19, 1936, the first pay-roll date fol-
lowing the strike there were nine employees on the respondent's pay
roll. On July 6, 1936, the first pay-roll date after the respondent's
refusal to bargain, the number of employees had increased to 34.
During the period between July 6 and October 15, 1936, the respondent
hired 53 additional employees of whom 13 were strikers and 7 were
old employees who had been temporarily laid off prior to the strike.
i Matter of Western Felt Works , a corporation and Textile Workers Organizing Commit-
tee, Western Felt Local, 10 N. L. R. B. 407, and cases cited therein ; Matter of Carlisle
Lumber Company and Lumber t Sawmill Workers' Union, Local 2511, 2 N. L. R. B. 248,
order enforced in National Labor Relations Board v. Carlisle Lumber Company , 94 F. (2d)
138, cert. den. May 23, 1938, 58 S. Ct. 1045.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequent to the commission of the unfair labor practice on June
27, 1936, therefore, the respondent hired at least 33 new employees
who, in so far as the record shows, had never previously been em
ployed by the respondent and who continued to be employed for a
considerable length of time after the strike had ceased on or about
September 20, 1936.
The complaint, as amended, alleges that during the months of
August, September, and October, 25 strikers were refused reinstate-
ment by the respondent. It is apparent that the respondent would
have been able, by displacing persons hired for the first time after
June 27, to have restored all the striking employees to their former
positions by October 15, 1936, at the latest. The record does not show
the exact dates upon which the new employees were hired.
Under Section 2 (3) of the Act the strikers remained employees of
the respondent. We have held that where, as here, a strike has been
prolonged in whole or in part by the respondent's unfair labor prac-
tices, the striking employees are entitled to their former positions
upon making application therefor.2 The respondent introduced no
evidence to show that its refusal to reinstate the strikers was based
upon grounds other than the desire not to displace new employees
hired since the refusal to bargain. Nor did the respondent show that
the work performed by the new employees could not have been per-
formed equally well by the employees who were refused reinstatement.
Under the circumstances the failure of the respondent to reinstate the
striking employees constituted a discrimination against these em-
ployees concerning the hire and tenure of their employment. Such
discrimination discourages union memberships
We find that by the refusal between September 20 and October 15,
1936, to reinstate Margaret Patterson, Bessie Yarbrough, Bill Hart-
barger, Leonard Randolph, Ethel Mays, R. D. Dorsey, Blanche
Lamb, Gertie Radford, Bonnie Vaughn, Noah Steele, Tillie Brooks,
Johnny Flynn (Claude Erwin), Mamie McArthur, Earl Parrish,
J. P. Hughes, Nellie White, Lorene Williams, Myrtle Rothwell, and
R. L. Moore, the respondent has discriminated in regard to their
hire and tenure of employment in violation of Section 8 (3) of the
2Matter of Jeffery-DeWitt Insulator Company and Local No. 455, United Brick and Clay
Workers of America, 1 N. L. R B . 618; order enforced in Jeffery-DeWitt Insulator Com-
pany v. National Labor Relations Board, 91 F. (2d) 134, cert. den. 302 U. S. 731; Na-
tional Labor Relations Board V. Remington Rand, Inc., 94 F. (2d) 862, cert. den. May 23,
1938 , 58 S. Ct. 1046; Matter of Western Felt Works, a corporation and Textile Workers
Organizing Committee, Western Felt Local, 10 N. L. R. B. 407.
8 Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneficial
Association, Local No. 33, 3 N. L. R. B. 84; order enforced in Black Diamond Steamship
Corp . v. National Labor Relations Board, 94 F. (2d) 875, cert . den., May 23, 1938, 58
S. Ct. 1044; Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel,
and Tin Workers of North America, Local No. 1139, 10 N. L. R. B. 33; Matter of West-
ern Felt Works, a corporation and Textile Workers Organizing Committee, Western Felt
Local, 10 N. L. R. B. 407.
BENNETT-HUBBARD CANDY COMPANY ET AL. 1101
Act, and has thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III B and C above, occurring in connection with the operations of
the respondent described in Section I above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. TUB REMEDY
We have found that from about September 20, 1936, the respondent
discriminated against 19 of its employees in regard to the hire and
tenure of their employment. They would therefore normally be
entitled to full reinstatement to their former or substantially equiv-
alent positions without loss of seniority or other rights and priv-
ileges. Since, following the Trial Examiner's recommendations, the
respondent has made such reinstatement or has offered such reinstate-
ment to these 19 employees, it will be unnecessary for us to order
their reinstatement.
Since the strike was prolonged by the unfair labor practices of the
respondent, we shall order the respondent, upon application, to offer
reinstatement to their former or substantially equivalent positions to
those of its employees who were on strike on June 27, 1936, and have
not since been fully reinstated.5 The foregoing offers of reinstate-
ment shall be without prejudice to seniority and other rights and
privileges. Such reinstatement shall be effected in the following
manner: All persons hired after June 27, 1936, the date the unfair
labor practices commenced, and who were not on the pay roll as of
that date, shall, if necessary to provide employment for those to be
offered reinstatement, be dismissed. If thereupon, by reason of a
reduction in the force of employees needed there is not sufficient em-
ployment immediately available for the remaining employees, includ-
4 As noted above, the complaint with respect to Anna La Fitte, Ada McAllister, Barbara
Arthur, and John Barrett was dismissed without prejudice at the bearing. In addition
we shall dismiss the complaint as to Joe Coleman . Bill De Sha, the- remaining employee
named in the complaint , did not appear at the hearing . Since no explanation was given
for his failure to appear at the hearing , although he was notified thereof, we shall dismiss
the complaint as to De Sha.
6 See Matter of Oregon Worsted Company and United Textile Workers of America, Local
2435, 3 N. L. R . B. 36, order enforced in National Labor Relations Board v. Oregon Wor-
sted Company, 96 F. (2d ) 193 (C. C. A. 9th ) ; Matter of Bales-Coleman Lumber Company
and Puget Sound Distract Council of Lumber and Sawmill Workers , 4 N. L. R B. 679, order
enforced in National Labor Relations Board v. Bites-Coleman Lumber Company, 98 F. (2d)
18 (C. C. A. 9th).
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing those to be offered reinstatement, all available positions shall be
distributed among such remaining employees in accordance with the
respondent's usual method of reducing its force, without discrimina-
tion against any employee because of his union affiliation or activities,
following a system of seniority to such extent as has heretofore been
applied in the conduct of the respondent's business. Those em-
ployees remaining after such distribution, for whom no employment
is immediately available, shall be placed upon a preferential list pre-
pared in accordance with the principles set forth in the previous
sentence, and shall thereafter, in accordance with such list, be of-
fered employment in their former or in substantially equivalent
positions, as such employment becomes available and before other
persons are hired for such work.
Since we have found that the respondent, by refusing to reinstate
the above-mentioned 19 employees between about September 20 and
October 15, 1936, discriminated in regard to their hire and tenure of
employment in violation of Section 8 (3) of the Act, they are entitled
to be made whole for any losses they may have suffered by reason of
the respondent's discrimination.6 In view of the Trial Examiner's
recommendations the respondent could not have been expected to re-
instate the 19 employees after the issuance of the Intermediate Report
on April 28, 1938, except upon their application for such reinstatement.
The respondent should not, therefore, be required to pay back pay from
that time to the date of this Decision.7 Back pay shall therefore be
computed in each case on the basis of the amount each would have
earned as wages during the period from October 15, 1936, to April 28,
1938, less the net earnings of each during said periods As to the re-
maining employees who are to be offered reinstatement, our order will
provide that each employee whose application for reinstatement is
refused by the respondent in violation of the order shall be entitled to
payment of a sum of money equal to that which he would normally
6 For the reasons set forth in Matter of Mc%aig-Hatch, Inc. and Matter of Western Felt
Works ( supra, footnote 3) we would order the same remedy in this case irrespective of our
specific finding of a violation of Section 8 (3) of the Act , in order to restore the status quo
existing prior to the commission of the unfair labor practices and thus to effectuate the
policies of the Act.
7Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North
America, Local No. 6, 1 N. L R. B. 760. It should be noted, moreover, that the employees
were all reinstated or offered reinstatement during May and June, 1938.
8 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the unlawful
conduct of the respondent and the consequent necessity of his seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440.
Monies received for work performed upon Federal , State, county, municipal , or other work-
relief projects are not considered as earnings , but, as provided below in the Order, shall be
deducted from the sum due the employee , and the amount thereof shall be paid over to the
appropriate fiscal agency of the Federal , State, county , municipal , or other government or
governments which supplied the funds for said work-relief projects.
BENNETT-HUBBARD CANDY COMPANY ET AL. 1103
have received as wages during the period from 5 days after the date
of the refusal of the application to the date of the offer of employment
or placement upon the preferential list as set forth above, less his net
earnings 9 during said period.
We would normally order the respondent to take such other affirma-
tive action as would effectuate the polices of the Act. Since, however,
the respondent has bargained collectively with the Union and posted
notices as recommended by the Trial Examiner's Intermediate Report,
we shall modify our order accordingly .110
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. 25 is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. All the respondent's employees in its production, shipping, and
sample departments, excluding clerical and maintenance employees
and supervisors who have the power to hire and discharge, constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act.
3. Bakery & Confectionery Workers Local Union No. 25 was on June
27, 1936, and at all times thereafter has been the exclusive representa-
tive of all the employees in such unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargin collectively with Bakery & Confectionery
Workers Local Union No. 25 as the exclusive representative of its em-
ployees in the appropriate unit, the respondent has engaged in unfair
labor practices, within the meaning of Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment
and terms and conditions of employment of Margaret Patterson, Bessie
Yarbrough, Bill Hartbarger, Leonard Randolph, Ethel Mays, R. D.
Dorsey, Blanche Lamb, Gertie Radford, Bonnie Vaughn, Noah Steele,
Tillie Brooks, Johnny Flynn (Claude Erwin), Mamie McArthur, Earl
Parrish, J. P. Hughes, Nellie White, Lorene Williams, Myrtle Both-
well, and R. L. Moore, thereby discouraging membership in the Union,
the respondent has engaged in unfair labor practices, within the mean-
ing of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in unfair labor practices, within the meaning
of Section 8 (1) of the Act.
u See footnote 8, supra.
10 Cf. Matter of Ferguson Bros. Manufacturing Company and Federal Local No. 20856,
affiliated with the American Federation of Labor, 9 N. L. R . B. 189.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
8. The respondent has not discriminated in regard to the hire and
tenure of employment of Joe Coleman and Bill De Sha, within the
meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Bennett-Hubbard Candy Company, and its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Bakery & Confectionery Work-
ers Local Union No. 25 or any other labor organization of its em-
ployees by 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 of their employment;
(b) Refusing to bargain collectively with Bakery & Confectionery
Workers Local Union No. 25 as the exclusive representative of all
the employees in its production, shipping, and sample departments,
excluding clerical and maintenance employees and supervisors who
have the power to hire and discharge;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Margaret Patterson, Bessie Yarbrough, Bill Hart-
barger, Leonard Randolph, Ethel Mays, R. D. Dorsey, Blanche
Lamb, Gertie Radford, Bonnie Vaughn, Noah Steele, Tillie Brooks,
Johnny Flynn (Claude Erwin), Mamie McArthur, Earl Parrish,
J. P. Hughes, Nellie White, Lorene Williams, Myrtle Rothwell, and
R. L. Moore for any loss of pay they may have suffered by reason
of the respondent's refusal to reinstate them between September 20
and October 15, 1936, by payment to each of them respectively of a
sum of money equal to that which each would have earned as wages
during the period from October 15, 1936, to April 28, 1938, less his
BENNETT-HUBBARD CANDY COMPANY ET AL . 1105
net earnings," if any, during said period, had the respondent rein-
stated him on October 15, 1936, provided that the respondent shall
deduct from the back pay due each employee a sum equal to that
received by such employee for work done upon Federal, State, county,
municipal, or other work-relief projects during the period for which
back pay is due him under this Order, and shall pay any such amount
deducted to the appropriate fiscal agency. of the Federal, State,
county, municipal, or other government or governments financing
such work-relief projects;
(b) Upon application, offer to those employees who were on strike
on June 27, 1936, and thereafter, and who have not since been fully
reinstated, immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
and other rights and privileges, in the manner set forth in the section
entitled "The remedy" above, placing those employees for whom
employment is not immediately available upon a preferential list
in the manner set forth in said section, and thereafter, in said man-
ner, offer them employment as it becomes available;
(c) Make whole the employees referred to in paragraph 2 (b)
above for any loss of pay they may suffer by reason of any refusal
of reinstatement or placement upon the preferential list required by
paragraph 2 (b) above, by payment to each of them of a sum of
money equal to that which each would normally have earned as wages
during the period from five (5) days after the date of application to
the date of the offer of reinstatement or placement upon the prefer-
ential list, less his net earnings during said period; deducting, how-
ever, from the amount otherwise due to each of the said employees,
monies received by said employee during said period for work per-
formed upon Federal, State, county, municipal or other work-relief
projects, and pay over the amount, so deducted, to the appropriate
fiscal agency of the Federal, State, county, municipal, or other gov-
ernment or governments which supplied the funds for said work-
relief projects;
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the complaint
that the respondent has engaged in unfair labor practices within the
meaning of Section 8 (3) of the Act with respect to Joe Coleman
and Bill De Sha be, and they hereby are, dismissed.
u See footnote 8, supra.