Bewley Mills

National Labor Relations Board - Board Decisions

May 20, 1948

77 N.L.R.B. 774 (N.L.R.B. 1948)

In the Matter of BEWLEY MILLS and CONGRESS OF INDUSTRIAL
ORGANIZATIONS
Case No. 16-C-1289.-Decided May 20, 1948
Mr. Glenn L. Moller, for the Board.
Cantey, Hanger, McMahon, McKnight & Johnson, by Mr. J. A.
Gooch, of Fort Worth, Tex., for the Respondent.
Mr. A. R. Hardesty, of Dallas, Tex., for the Union.
DECISION
AND
ORDER'
On May 15,1947, Trial Examiner Horace A. Ruckel issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto.-' The Trial Examiner also found
that the Respondent had not engaged in independent violations of
Section 8 (1) of the Act and that the Respondent did not violate
Section 8 (3) of the Act by discharging Jim Dews and Newarlee
Thurmond, and recommended that these allegations of the complaint
be dismissed. Thereafter, counsel for the Respondent and the Board
filed exceptions to the Intermediate Report and supporting briefs.
The Board 3 has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
r The power of the Board to issue a decision and order in a case such as the instant one,
where the charging union has not complied with the filing requirements specified in Section
9 (f), (g), and (h) of the Act, as amended, was decided by the Board in Matte of Marshall
and Bruce Company, 75 N L R B 90.
2 The provisions of Section 8 (1), (3), and (5) of the National Labor Relations Act,
which the Trial Examines found weie violated, are continued in Section 8 (a) (1), (a) (3),
and (a) (5) of the Act, as amended by the Labor Management Relations Act, 1947
i Pursuant to the provisions of section 3 (b) of the Act, as amended, the National Labor
Relations Board has delegated its pow cis in connection with this proceeding to a three-man
panel consisting of the undersigned Board Members [Chairman Herzog and Members
Houston and Reynolds]
77 N. L. R. B , No. M.
774
BEWLEY MILLS 775
ate Report, the exceptions and briefs, and the entire record in the case,'
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner insofar as they are consistent with this Decision
and Order.
1. The Respondent, apparently relying on a limitation in Section
10 (b) of the Act, as amended,° contends that the Board should not
consider certain matters raised in the complaint because the charges
were filed by the Union more than 6 months after the date of the
alleged unfair labor practices. In accordance with our prior holding
that this procedural limitation is not applicable to cases pending be-
fore the effective date of the Amended Act, we find no merit in the
Respondent's contention. 6
2. We agree with the Trial Examiner's findings that the Respond-
ent discriminatorily discharged Bertha Knox Dews and Jesse
Thompson ' because of their union activities, but we reverse his find-
ing that the Respondent did not similarly discriminate against Jim
Dews.
The Trial Examiner found that the record raises a suspicion that
the Respondent discriminatorily included Jim Dews in the lay-off of
March 20, 1946, because of his union membership, but concluded that
the evidence was insufficient to warrant a finding of a violation of
the Act. In so concluding, the Trial Examiner relies upon the fact
that Dews was not discharged on November 20, 1945, along with
Bertha Knox Dews and Jesse Thompson, and that many of the other
employees who were laid off with Dews were not thereafter rehired.
In the light of the following circumstances, however, some of which
are mentioned in the Intermediate Report, we are unable to give
controlling significance to the facts relied upon by the Trial Examiner.
The record is clear that the respondent had knowledge of Dews'
membership on the Union's negotiating committee and that, as found
above, the Respondent rid itself of the 2 other members of this com-
niittee by discriminatorily discharging Jesse Thompson and Bertha
" Counsel for the Board requested that certain eiiors in the transcript of testimony be
corrected No objections having been filed by any of the parties, the record is hereby
corrected as requested
5 This limitation was included in the 1947 amendments to the Act and provides that "no
complaint shall issue based upon any unfair labor practices occurring more than 6 months
prior to the filing of the charge with the Board "
Matter of Union Pi oducts Company, 75 N L R B 591 , Matter of Briggs Manufactur-
sag Company, 75 N L R B 569
' Admittedly, the Respondent was advised that Bertha Knox Dews, Jesse Thompson, and
Jim Dews were members of the Union s negotiating committee In discussing the last
bargaining conference held on November 19, 1945, between the Union and the Respondent,
the Ti ial Examiner inadvertently stated that Thompson was present and that an alternate
member appeared for Jim Dews The record indicates, however, and we find, that Dews
was present and Thompson was not The correction of this finding does not affect our
agreement with the Trial Examiner that Thompson ' s discharge was due to his union
activity
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Knox Dews on November 20. As found by the Trial Examiner, the
Respondent's reasons for Dews' inclusion in the March 20 lay-off
were inconsistent. 8 Moreover, it does not appear that the Respondent
followed its admitted policy of seniority in effecting Dews' lay-off, as
the record shows that approximately 9 months after his lay-off, there
remained on the Respondent's pay roll 20 employees who had. less
seniority than Dews and who performed similar, duties. Finally, the
record shows that between the time Dews was laid off and February
1947, the Respondent hired a substantial number of employees who
performed work similar to that performed by Dews. During that
period, Dews applied for reemployment on 2 occasions, but was re-
fused, notwithstanding the fact that at the time of his lay-off the
Respondent had given him a letter of recarnmendation.9
Upon the entire record, especially in view of the foregoing circum-
stances surrounding Dews' lay-off and his subsequent failure to obtain
reemployment, we find that the Respondent discriminatorily dis-
charged him and refused him reinstatement because of his activities
in behalf of the Union, in violation of Section 8 (3) and 8 (1) of
the Act.10
3. We agree with the Trial Examiner's finding that the Respondent
violated Section 8 (5) of the Act by insisting upon dealing with the
Union as the bargaining representative of its members only. To
remedy this violation, the Trial Examiner recommended that the
Bbaid order the Respondent, upon request, to bargain with the Union
as the exclusive representative of all the employees in the appropriate
bargaining unit. However, in view of the policy enunciated in the
Marshall and Bruce Company case, supra, with relation to bargaining
orders under the amended Act, we shall condition this portion of our
Order upon compliance by the Union (Congress of Industrial Organi-
zations) with Section 9 (f), (g), and (h) of the Act, as amended,
within thirty (30) days from the date of the Order as hereinafter set
forth."
8Foreman Carpenter testified that the Respondent followed a policy of seniority in
effecting the March 20 lay-off and that Dews was included in that group because he refused
to cooperate on a certain assignment This testimony is inconsistent with a statement
which Carpenter made to a Board agent, that Dews was laid off because of a reduction in
foice and because lie was late in ieporting to work
D There is no evidence that any of the other employees who w ei e laid off with Dews wen e
competent or that any of them applied for reinstatement
10 Board Member Reynolds dissents fion this finding and agrees with the Trial Examiner
that, although the matter is not entirely free from doubt, the evidence is insufficient to
support a finding of disciimunation with respect to Jim Dew's
11 The Congress of Industiial Organizations, while not a national or international labor
organization within the meaning of Section 3 (f), (g), and (h) of the Act, is in this case
a labor organization within the meaning of Section 2 (5) of the Act, because its purpose
here is to deal with the Respondent concerning the wages, hours, and working conditions of
the Respondent's employees See Matter of American Fruit Growers, Incorporated, 75
N. L R. B 1157 , Matter of S W Evans & Son, 75 N. L. R. B 811 ; cf. Matter of Northei n
Virginia Broadcasters, Inc, 75 N L R B. 11.
BEWLEY MILLS 777
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, Bewley Mills,
Fort Worth, Texas, and its officers, agents, successors, and assigns,
shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Congress of Industrial
Organizations, if and when said labor organization shall have com-
plied, within thirty (30) days from the date of this Order, with Sec-
tion 9 (f), (g), and (h) of the Act, as amended, as the exclusive
representative of all production and maintenance employees of the
Respondent, excluding watchmen, all clerical and technical employees,
and supervisors;
(b) Discouraging membership in Congress of Industrial Organi-
zations or in any other labor organization of their employees, by
discharging or refusing to reinstate any of their employees, or by
discriminating in any manner in regard to their hire and tenure of
employment or any term or condition of employment;
(c) In any other manner interfering with, restraining, or coerc-
ing their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Congress of Industrial Or-
ganizations, or any other labor organization, 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 Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, and upon compliance by Congress of Industrial
Organizations with the filing requirements of the Act, as amended, in
the manner set forth above, bargain collectively with Congress of
Industrial Organizations as the exclusive representative of all its em-
ployees in the above-described appropriate unit, with respect to
grievances, labor disputes, wages, rates of pay, hours of employment
or other conditions of employment, and if an understanding is reached,
embody such Iunderstanding in a signed agreement;
(b) Offer Jesse Thompson and Jim Dews immediate and full rein-
statement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges; make
whole Jesse Thompson for any loss of pay he may have suffered by
reason of the Respondent's discrimination against him, by payment
to him of a sum of money equal to the amount which he normally
would have earned as wages during the period from the date of his
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge to the date of the offer of reinstatement, less his net earnings
during said period; and make whole Jim Dews for any loss of pay he
may have suffered by reason of the Respondent's discrimination against
him, by payment to him of a sum of money equal to the amount which
he.normally would have earned as wages from the date of his discharge
to May 15, 1947, the date of the Intermediate Report herein, and from
May 20, 1948, the date of the Decision and Order herein to the date
of the offer of reinstatement, less his net earnings during said periods;
(c) Make whole Bertha Dews for any loss of pay she may have
suffered by reason of the Respondent's discrimination against her,
by payment to her of a sum of money equal to the amount which she
normally would have earned as wages during the period from Novem-
ber 20, 1945, the date of the Respondent's discrimination against her,
to February 9, 1946, less her net earnings during said period;
(d) Post in the Respondent's mill at Fort Worth, Texas, copies of
the notice attached hereto and marked "Appendix A." 12 Copies of
said notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof
and be maintained by it for at least sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that such notices are not altered, defaced,
or covered by any other material;
(e) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) clays from the date of this Order, and again within
ten (10) days from the future date, if any, on which the Respondent
is officially notified that Congress of Industrial Organizations has met
the condition hereinabove set forth, what steps the Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the despondent discriminatorily
discharged Newarlee Thurmond.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decisioii and Order, of the,,,National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
12 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted in the notice, before the words : "A DECISION AND ORDER" the words :
"A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING."
BEWLEY MILLS 779
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join of assist CONGRESS OF INDUS-
TRIAL ORGANIZATIONS, or any other labor organization, to bargain
collectively, ,through representatives, of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL OFFER to Jesse Thompson and Jim Dews immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them and Bertha Knox
Dews whole for any loss of pay suffered as • a result of the
discrimination against them.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of
pay, hours of employment or other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement; provided that such labor organization
complies within thirty (30) days from the date of the aforesaid
Order of the Board, with Section 9 (f), (g), and (h) of the Na-
tional Labor Relations Act, as amended. The bargaining unit is:
All production and maintenance employees excluding
watchmen, all clerical and technical employees, and super-
visors.
All our employees are free to become or reri ain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of
membership in or activity on behalf of any such labor organization.
BEWLEY MILLS,
Employer.
Dated-------------------------- By--------------------------
V (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.
INTERMEDIATE REPORT
Mr. Glenn L . Moller, for the Board.
Cantey, Hanger , McMahon, McKnight & Johnson, by Mr. J. A. Gooch, of Fort
Worth, Tex., for the respondent.
Mr. A. R. Hardesty , of Dallas, Tex ., for the Union.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a third amended charge filed on January 13, 1047, by Congress of In-
dustrial Organizations, herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Sixteenth Region
(Fort Worth, Texas). issued a complaint dated February 5, 1947, against Bewley
Mills, herein called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the mean-
ing 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 asserted unfair labor practices the complaint alleged, in
substance, that the respondent (1) from about January 1945, to the date of
the complaint, disparaged and expressed disapproval of the Union, interrogated
and warned its employees concerning their affiliation with it, and kept their ac-
tivities therein under surveillance; (2) on or about February 21, 1045, and at all
times thereafter, failed and refused to bargain with the Union as representative
of the, respondent's employees in an appropriate unit; and (3) on or about
September 28, 1945, discharged Newarlee Thurmond; on or about November 19,
1945, discharged Bertha Knox and Jessie Thompson ; and on or about March
20, 1946, discharged Jim Dews, because of their membership and activity on behalf
of the Union.
On February 17, 1947, the respondent filed an answer in which it admitted
certain allegations of the complainant concerning the nature of its business, but
denied that it had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held from March 4 to 7, 1947, at Fort Worth,
Texas, before Horace Ruckel, the undersigned Trial Examiner duly appointed
by the Chief Trial Examiner. The Board and the respondent were represented
by counsel, and the Union by an international representative. All parties par-
ticipated in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence hearing on the
issues
At the conclusion of the hearing the Trial Examiner, granted without objec-
tion, a motion by counsel for the Board to conform the pleadings to the proof
in formal matters, and reserved ruling on a motion by counsel for the respond-
ent to dismiss the complaint. This motion is disposed of by the recommendations
hereinafter made The parties were informed that they might argue orally
before the Trial Examiner, and that they might file briefs and/or proposed
findings of fact and conclusions of law with him by March 31, 1947 Subse-
quently this time was extended to April 15. None of the parties argued orally.
On April 14 counsel for the Board filed a brief.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
0
1. THE BUSINESS OF THE RESPONDENT 1
The respondent is a Texas corporation having its principal office and place
of business in Fort Worth, Texas, where it is engaged in the manufacture, sale,
and distribution of flour, meal, mixed feeds, and related products. During
1 The facts as to the respondent 's business are taken by stipulation of the parties from
the Board's decision in utter of Bewley Mills, 67 N. L R B 191
BEWLEY MILLS 781
a 6-months period prior to the hearing, a representative period, the respond-
ent processed at its Fort Worth plant raw materials valued at approximately
$2,700,000, of which about 20 percent was obtained from sources outside the
State of Texas. During the same period the respondent inaiaufactured finished
products valued at approximately $4,300,000, of which about 20 percent was
sold and distributed to points outside the State of Texas. The respondent con-
cedes that it is engaged in commerce within the meaning of the Act
IT THE ORGANIZATION INVOLVED
Congress of Industrial Organizations is a labor organization admitting em-
ployees of the respondent to membership.
III THE UNFAIR LABOR PRACTICES
A The refusal to bamgaim
1. The appropriate unit and representation by the Union of a majority therein
Pursuant to a consent election conducted on February 21, the Board, by its
Regional Director, on February 27, 1945, found that the Union represented
a majority of the respondent's employees within an appropriate unit composed
of all production and maintenance employees at the respondent's Fort Worth
mill, excluding watchmen, all clerical and technical employees, and supervisory
employees with authority to hire, promote, discharge, discipline or otherwise
effect changes in the status of employees or effectively recommend such action.
It is found that the above-described employees constitute a unit appropriate for
collective bargaining within the meaning of Section 9 (b) of the act, and that the
Union on February 21, 1945, and thereafter, represented a majority of the
employees therein.
2 The refusal to bargain
On March 7, 1945, the Union, by A R. Hardesty, its director for the North
Texas Region, wrote the respondent enclosing a copy of a proposed contract and
requesting a conference for the purpose of discussing it. The first such meeting
between representatives of the two parties took place on March 23. At this
meeting the respondent submitted to the Union a proposed contract of its own
drafting, and the two parties proceeded to discuss provisions of this instrument
and the one submitted by the Union. Preliminarily, however, W. R Bomar, the
respondent's president and general manager, stated that it was the respondent's
position that it would not recognize the Union as representative of all the
employees within the appropriate unit, but only as representative of its members.
Hardesty, who was present, protested this stand, and Cantey, the respondent's
counsel, promised to submit other counterproposals embodying the recognition
clause contended for by the Union, acknowledging that the position stated by
Bomar was incorrect as a matter of law. On numerous occasions during the
ensuing months the parties met and discussed the terms of a contract without,
however, coming to any final agreement, and without the respondent's submitting
any other proposal concerning the scope of its recognition of the Union, and
without any change in its position that it would recognize the Union as repre-
senting its members only. In July, the matter was referred to the War Labor
Board for the Eighth Region, and on July 12 and 21 the parties were joined
in negotiations by Park Johnson, a representative of that board, in an attempt
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to reach an agreement . Subsequently the matter went to a hearing before an
agent of the War Labor Board.
Thereafter , during the months . of August , September , October , and November,
representatives of the respondent and the Union met at various times and dis-
cussed various provisions of a contract as modified by the recommendations of
the War Labor Board 's representative During the entire progress of these nego-
tiations the respondent 's consistent refusal to recognize the Union for any em-
ployees other than union members served as a stumbling block to any agreement,
and' was continually protested by the Union.
The final meeting between representatives of the respondent and the Union
was held on November 19, 1945. At this meeting , in addition to Hardesty and
Don Ellinger , another international representative of the Union , there were in
attendance for the first time three employees , namely, Bertha Knox Dews,`
Jessie Thompson , and Alton Gardner , who attended as an alternate for Jim
Dews who was out of town at the time . Bertha Dews , Jim Dews, and Thompson
had been chosen as a negotiating committee at a meeting of the union employees
about - a week previous . Their - subsequent -discharges are hereinafter discussed.
At this meeting Boinar again flatly stated that the respondent would not negoti-
ate with the Union for employees not members of the Union , and when it was
again asserted to by Hardesty that the respondent was required to do so,by law,
Bomar replied : " If that is law, whenever I obey that , it'll be when they take
me by the scuff ( sic) of the neck and drag me into court and make me."'
Hardesty asked Bomar if, under the circumstances , he saw any need for a further
conference, and Bomar replied that he did not On the following day the Union
filed its original charge in this matter.
Conclusions
It is elementary that a refusal to recognize a labor organization which repre-
sents a majority of the employees in an appropriate unit as the bargaining
representative of all such employees, and an offer to negotiate with it only as
the bargaining representative of its members, constitutes a violation of Section
8 (5) of the Act.' This was the position of the respondent here, taken with
full knowledge that it conti avened the provisions of the Act. Bomar's declara-
tion at the November 19 meeting that he had no intention of complying with
the law until he was "taken by the [scruff] of the neck" and compelled to do so,
served only as the measure of the respondent's determination, pieviously in-
stanced, not to deal with the Union on the basis required by the Act In view
of the respondent's continued refusal to recognize the bargaining authority of
2 Bertha Knox , as her name appears in the complaint , - was married to Jim Dews on
October 20, 1945
3 This is according to the credible and uncontiadicted testimony of Hardesty, supported
by that of W D Ellinger and other representatives of the Union who testified , and uncon-
tradicted by Bomar or any other witness for the respondent The only defense made by
the respondent at the healing to the allegation that it failed to bargain with the Union,
was contained in Bomar ' s testimony that when the conference of November 19 ended the
iespondent stood ready to continue to meet with the Union and discuss the proposed
contract , and that it never refused a iequest for a subsequent meeting
4National Licorice Co, 309 U . S 350, 358 , affirming as modified 104 F . ( 2d) 655
(C C A 2) enforcing as modified 7 N. L R B 537. See also Biles -Coleman Lumber Co.,
98 F. (2d) 18 (C C A 9), enforcing 4 N. I, R B 679, Boss Mfg Co, 3 N. L. R B. 400,
enforced 107 F ( 2d) 574 (C C A. 7) , Sunshine Mvutng Co , 7 N L. R. B. 1252 , enforced
110 P ( 2d) 780 (C C A 9 ) , Serrtcty Corp, 8 N L R . B 621 , enforced 110 F. (2d) 29
(App. D. C.).
BEWLEY MILLS 783
the Union as a necessary preliminary to collective bargaining, the undersigned
does not deem it necessary to consider whether such negotiations as were
conducted from March 23 to November 19, 1945, would have, in circumstances
where the employer accorded proper recognition to a union, constituted col-
lective bargaining.
The undersigned finds that on March 23, 1945, and at all times material
thereafter, the respondent failed and refused to bargain collectively with the
-duly designated representatives of a majoiity of its employees within an appro-
priate unit, thereby interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
B. The discharges
On November 20, the day following the last conference between representatives
of management and the Union, the respondent discharged Beitha Dews and
Jessie Thompson, two of the three employee members of the Union's negotiating
committee. These discharges are hereinafter considered.
Bertha Dews. Dews was hired by the respondent as a checker on March 6,
1945, and continued at that work until her discharge Her principal duties were
checking railroad cars, but included sweeping, packing meal, and occasionally
the stacking of small sacks of grain Her immediate supervisor was Lee
Carpenter, warehouse foreman She joined the Union on September 23, 1945,
and about a month prior to her discharge was elected financial secretary of the
group of union employees, and made chairman of their bargaining committee
No complaint was made about Dews' work during the entire time of her
employment, according to her own testimony, and there is no evidence to the
contrary. Carpenter testified that she was a better than average worker and
that he could not recall that she had made any mistakes as a checker. The
defense to her discharge, as testified to by Bomar, was that respondent had for
some time been dissatisfied with the work of female colored checkers as a whole,
and had determined to replace them with male white checkers as the latter
became available.' The undersigned is convinced of the truth of Bomar's
testimony in this respect. By February 9, 1946, all of the female colored
-peckers had been released and their places taken by a smaller number of white
finale checkers. Bomar's further and credible testimony is to the effect that
the work of checking is now performed more satisfactorily than previously.
The respondent offered, however, no explanation of the coincidence of Bertha
Dews' and Jessie Thompson's discharge with the collapse of its negotiations
with the Union, one of whose accredited representatives was Bertha Dews. Nor
was any explanation offered of the fact that, according to evidence submitted
by the respondent,' Dews was senior in point of service to Katherine Felder,
Lutiel Fischer, and Marie McLaughlin, checkers who were not discharged until
some time after Dews was separated from the pay roll, although the testimony
of Carpenter was that the female checkers were supposed to be terminated in
inverse order of seniority.
Because of Bertha Dews' well known activities on behalf of the Union and
the-coincidence of her own and'Thompson's discharge with the final break down
S Prior to the late war, checking had been done by male white checkers, and during the war
principally by colored boy checkers. Bomar testified that the colored women checkers were
superior to the colored boy checkers
"Respondent's Exhibit 2, which is a list of all checkeis in the respondent's employ, in-
eluding the dates of their hire and termination
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of negotiations in the circumstances related above, and because of the lack of
any explanation as to why she was chosen for lay-off in preference to other
checkers having less seniority than she, the undersigned believes and finds that
the discharge was motivated by reason of her union activities. The respondent
was frankly determined not to hegotiate with the Uriion as required by the
Act, and had made this determination manifest on each occasion on which its
representatives met with those of the union. When on November 19, for the
first, and, as it developed for the last, time it met with representatives of the
Union who were its own employees, it capped its refusal to bargain with the
Union by discharging two members of its bargaining committee.
Jessie Thompson. Thompson came to work in November 1944, as a laborer.
When discharged on November 20, 1945, he was working as a belter, a senu-
skilled job. Thompson's selection as one of the three employee members of the
Union's bargaining committee has been related. On Friday, November 16, upon
arriving home from work, he found a letter stating that his mother was seriously
ill at the family home in Hallsville, Texas. He returned to the plant that
evening, showed the letter to Carpenter, and according to his own testimony
which the under signed finds credible, asked Carpenter it lie could visit Hallsville
for 2 or 3 days, and Carpenter gave his permission. The next day was pay
(lay; but Carpenter, at Thompson's request, obtained his pay check for him
Friday night. Thompson returned to the mill on Tuesday morning and reported
to Carpenter for work. Carpenter told him that he was being let go, and, when
Thompson asked him why, Carpenter refused to give him a reason and reterred
him to the office. Thompson accordingly asked Banner, the respondent's chief
clerk, why he was being discharged, and Banner stated that he did not know.
Within a period of several months before his discharge, Thompson, admittedly
with Carpenter's permission, visited his home in Hallsville two or three times,
and was generally gone 2 days or 3 days. On one occasion he was off for a week.
Carpenter, while testifying, did not deny that Thompson on the occasion in
question had asked permission to leave, stating at first simply that he did not
recall it. Later, lie stated that Thompson was "supposed" to be back to work on
Monday. Still later, he admitted that Thompson had told him that lie wanted
to be off until Monday. Asked again, in light of this, if he meant to testify that
Thompson left work without obtaining permission, Carpenter at first failed to
answer, and then stated that he discharged Thompson because lie did not show
up for work on Monday Carpenter's testimony was replete with contradictions
and evasions and he was wholly unimpressive as a witness. His statement that
Thompson was discharged because he was late in reporting back to work is not
consistent with a statement which lie gave to a Board agent prior to the
hearing to the effect that he discharged Thompson because he left work without
permission. Moreover, Carpenter admitted that lie obtained Thompson's check
for him from the office before 5 o'clock on Friday evening, thus facilitating
Thompson's departure. Carpenter further admitted that Thompson had always
previously asked for permission when visiting his relatives and that it had been
invariably granted. His still further testimony that Thompson was discharged
because he did not return until the "middle of the week," instead of on Monday,
is not in accord with the fact as established by all the other evidence, and ad-
mitted in the respondent's answer, that Thompson was discharged on Tuesday.
Thompson's known activities on behalf of the Union, including his membership
on the bargaining committee, and the discharge of Bertha Dews on the day fol-
lowing the break-down of negotiations, coupled with the contradictory nature of
the reasons advanced by Caipenter for discharging him, lead the undersigned to
BEWLEY MILLS 785
conclude , and he finds , that the respondent discharged Thompson on November 20,
1945, because of his activity on behalf of the Union.
Jim Dews. Dews first came to work for the respondent in 1941, and was
continuously employed as a laborer up to the time of his discharge on March 20,
1946. He joined the Union in February 1945, married Bertha Knox the following
October, and , as has been previously related, was chosen along with her and
Thompson as an employee member of the Union's bargaining committee. His
union activity was well known.
On March 20, 1946, the respondent laid off 30 employees, mostly laborers, and
7 more on March 27. This was the first lay-off of any substantial number of
employees in 5 years, according to the testimony of Carpenter which the under-
signed in this respect accepts as credible, corroborated as it is by other evidence
taken from the respondent's records. Jim Dews was included in this lay-off.
Carpenter testified that seniority was followed in making the lay-off, although
the respondent's policy in this respect seems to have been haphazard. At various
times during the rest of 1946 new employees were hired, including a substantial
number of laborers.' Dews, however, was never recalled, and on two occasions
when he went to the mill to look for work he was put off, Carpenter saying
one occasion that if he were taken back it would only be a week or two before
it would be necessary to let him go again.
Some of the employees laid off on March 20, 1946, along with Dews, were rehired
at one time or another, but most were note
At the hearing, Carpenter testified that the reason Dews was laid off was
that lie refused to obey an order to help in "some exporting" work. He did not
elaborate further on the nature of this work, on the nature the order given Dews,
nor on the manner or reason for Dews' refusal He told Dews, however, ac-
cording to his own testimony, that lie was being laid off because he refused to
"cooperate " Carpenter's testimony was inconsistent with a statement which he
acknowledged giving an agent of the Board, that he laid off Dews because the
respondent was cutting down its force, and because Dews was late in getting to
work
Dews' activity on behalf of the Union, coupled with the vague and in part
contradictory reasons given by Carpenter for his inclusion in the lay-off on
March 20, raises the suspicion that Dews, like his wife and Jessie Thompson, the
other two members of the bargaining committee, was discriminatorily singled
out. The fact, however, that Jim Dews was not discharged along with Bertha
Dews and Jessie Thompson on November 20, but was retained for several months
and then laid off along with 29 other employees, many of whom, like Dews,
were never thereafter rehired, militates against such a conclusion. Although
the matter is not entirely free from doubt, the undersigned believes the evidence
insufficient to support it finding of discrimination with respect to Dews.
Neivarlee Thurmond. Thurmond came to work for the respondent during the
latter part of November 1943, as a checker, work which she continued to do until
she was discharged on September 28, 1945. Two or three days prior to the
election of February 21 Stephenson, one of the foremen under Carpenter, asked
her how she felt about the Union, and to vote "no" in the election, because the
S At various times tiom April 3, 1946, to February 26, 1947, the respondent hired and laid
off employees, mostly laboiei s Between these two dates the number of those hired was
397 and those laid off 380 These figures included several employees who were several tines
hired and laid off within that peuod
8 This finding is based upon an examination of Board 's exhibit 29, which is a list of
hn ings and terminations beginning with the one on March 20, 1946.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"old man," meaning Bomar, (lid not like the Union. Thurmond had not joined
the Union up to that time, and was evasive in the answer which she gave
Stephenson. Shortly after the election, another foreman, Glasco, asked Thur-
mond if she knew how another employee had voted and Thurmond told him that
she did not. Thurmond joined the Union shortly thereafter, and during the early
part of September was elected -recording secretary, of the group of union em-
ployees. There is no evidence in the record, however, that Thurmond's member-
ship in the Union became known to the respondent.
On September 28, Stephenson handed Thurmond her final pay check, and told
her that she was being let go because there were so many "irregularities" in
checking on the night shift, on which Thurmond worked On the following day
when Thurmond returned to the plant, she again talked with Stephenson who
told her, that, although her work has been satisfactory, there had been many
complaints about sleeping and visiting on the night shift and that he had been
instructed by the office to discharge her.
Carpenter testified that Stephenson had complained to him several times that
Thurmond wandered around the mill visiting with other. employees and that he
told Stephenson that if lie could not correct this that he should discharge Thur-
mond Stephenson, no longer employed by the respondent, was not called as a
witness and Carpenter testified that he did not know where Stephenson could
be found.9
Although the reasons for discharging Thurmond seem vague, and although
Carpenter was thoroughly untrustworthy as a witness , the undersigned does
not find that a prima facie case of discrimination was established as to
Thurmond.
The undersigned finds that the respondent discharged Bertha Dews and Jessie
Thompson in violation of Section 8 (3) of the Act, and thereby interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
The undersigned- does not find that the respondent, as alleged in the cunt-
plaint, disparaged and expressed disapproval of the Union, interrogated and
warned its employees concerning their affiliation with it, and kept their activities
therein under surveillance.
IC. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce,
among the several States and tend to lead to labor disputes burdening' and
obstructing commerce and the free flow of commerce.
V THE REMEDY
It has been found that the respondent has refused to bargain collectively with
tl,.e Union as the representative of its employees in an appropriate unit. In
order to effectuate the policies of the Act, the undersigned will-recommend that,
upon request, the respondent bargain collectively with the Union as the exclusive
representative of its employees in the appropriate unit with respect to rates
of pay, wages, hours, and other terms and conditions of employment.
0 Although iespondent 's counsel did not specifically claim that Stephenson was unavail-
able as a witness , the undersigned accepts the question put to Carpenter and his anewer as
a showing of unavailablity
BEWLEY MILLS 787
The undersigned has found that the respondent has discriminated against
Bertha Dews and Jessie Thompson by discharging them. He will therefoi e
recommend that the respondent, offer Jessie Thompson immediate and full rein-
statement to his former or substantially equivalent position 10 without prejudice
to his seniority or other rights or privileges; and make-him whole for any loss
of pay lie may have suffered by reason of the respondent's disciiniiiiation against
him by payment to him of a sum of money equal to that which lie normally would
have earned as,wages from the date of his discharge to the date of the respond-
ent's offer of reinstatement, less his net earnings during said period 11 Inasmuch
as the evidence shows that Bertha Dews would not have continued in her
employment after February 9, 1946, the undersigned will not recommend that the
respondent offer her reinstatement Instead, he will recommend that the re-
spondent pay her a sum of money equal to the wages she would normally have
received from November 20, 1945, to February 9. 1946, less her net earnings
during said period.
Upon tlih basis° bf''the abovee findings -of fact and upon. the elitire. record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1 Congress of Industrial Organizations is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the respondent, exclusive of
watchmen, all clerical and technical employees, and supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of'
Section 9 (b) of the Act.
3 Congress of Industrial Organizations was on February 21, 1945, and at all
tUpe,S,, thejeafter his - bggn, the Vxc11iive -representative pf all the employees
in said unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act
4. By refusing to bargain collectively with Congress of Industrial Organiza-
tions as exclusive bargaining representative of the employees in the appropriate
unit, the respondent has engaged in and is engaging 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 of
Bertha Dews and Jessie Thompson, the respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (3) of the Act.
6. By interferui , with, restraining, and coercing its employees in the exercise
of the rights guaianteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
"In accordance with the Board's consistent interpretation of the term , the expression'
"foi mei of substantially equivalent position " is intended to mean "former position wherever
possible and if such position is no longer in existence then to a substantially equivalent
position" See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico. Branch, 65 N L It B 827
11 See Matter of Crossett Lumber Co , 8 N L R B 440, 497-498.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. The respondent has not engaged in any unfair labor practices by discharging
Jim Dews and Newarlee Thurmond.
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Bewley Mills, its officers, agents, successors, and
assigns shall :
1 Cease and desist from :
(a) Refusing to bargain collectively with Congress of Industrial Organiza-
tions as the exclusive representative of all production and maintenance employ-
ees of the respondent, exclusive of watchmen, all clerical and technical employ-
ees, and supervisory employees with authority to hire, promote, discharge.
discipline or otherwise effect changes in the status of employees, or effectively
recommend such action ;
(b) Discouraging membership in Congress of Industrial Organizations or any
other labor organization of its employees, by in any manner discriminating
in regard to their hire and tenure of employment or any term or condition of
employment.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Upon request baigain collectively with Congress of Industrial Organiza-
tions as the exclusive representative of all production and maintenance employees
of the respondent exclusive of watchmen, all clerical and technical employees,
and supervisory employees with authority to hire, promote, discharge or other-
wise effect changes in the status of employees, or effectively recommend such
action, and if an understanding is reached, embody such understanding in a
signed agreement ;
(b) Offer to Jessie Thompson immediate and full reinstatement to the position
which he occupied on November 20, 1945, prior to the respondent's discrimination
against him, or to a substantially equivalent position, without prejudice to his
seniority and other rights and privileges, and make whole Jessie Thompson for
any loss of pay which he may have suffered by reason of the respondent's dis-
crimination against him by payment to him of a sum of money equal to the amount
which lie normally would have earned as wages during the period from the date
of his discharge to date of offer of reinstatement, less his net earnings during
said period;
(c) Make whole Bertha Dews for any loss of pay she may have suffered by
reason of the respondent's discrimination against her, by payment to her of a
sum of money equal to the amount which she normally would have earned as
wages during the period from November 20, 1945, the date of the respondent's dis-
crimination against her, to February 9, 1946, less her net earnings during said
period ;
(d) Post in the respondent's mill at Fort Worth, Texas, copies of the notice
attached hereto and marked "Appendix A." Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after being duly signed
by the respondent's representatives, be posted by the respondent immediately
upon receipt thereof and be maintained by it for at least sixty (60) consecutive
days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall be taken by the
respondent to insure that such notices are not altered. defaced, or covered by
any other material ;
BEWLEY MILLS 789
(e) Notify the Regional Director for the Sixteenth Region in writing within
ten (10) days from the date of receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that, unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
It is further recommended that the allegations of the complaint that the
respondent discriminatorily discharged Jim Dews and Newarlee Thurmond,
interrogated employees concerning their membership in the Union, and kept
union activities of its employees under surveillance, be dismissed.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof ; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or bi iefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203 65. As further provided -in said Section 203.39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
HORACE A. RUCKEL,
Dated May 15, 1947. Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in CONGRESS Or INDUSTRIAL ORGAN[-
zATIONS, or any other labor organization of our employees, by in any man-
ner discriminating in regard to their hire and tenure of employment, or
terms or conditions of employment.
788886-49-vol. 77-51
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL OFFER to Jessie Thompson immediate and fall Ieinstatement to
his former or substantially equivalent position without prejudice to any
seniority or other rights and privileges previously enjoyed, and make hint
and Bertha Knox Dews whole for any loss of pay suffered as a result
of the discrimination against them.
WE WILL BARGAIN' collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All production and maintenance employees excluding watchmen, all
clerical and technical employees, and supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard
to hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
BEwLEY MILLS,
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.