Burns Brick Co.

National Labor Relations Board - Board Decisions

Nov 19, 1948

80 N.L.R.B. 389 (N.L.R.B. 1948)

In the Matter of BURNS BRICK COMPANY and INTERNATIONAL UNION
OF MINE, MILL AND SMELTER WORKERS (CIO)
Case No. 10-C-1923.-Decided November 19,1948
DECISION
AND
ORDER
On June 25, 1947, Trial Examiner Howard Myers 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 further found
that Respondent had not engaged in other unfair labor practices
alleged in the complaint and recommended that the complaint be dis-
missed in these regards. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief. The Respond-
ent's request for oral argument is hereby denied as the record and
Respondent's brief, in our opinion, adequately present the issues and
the positions of the parties.
Subsequent to the hearing, the Respondent, on the basis of allega-
tions concerning the Trial Examiner's attempt to negotiate a settle-
ment of the case during the hearing, moved that the Board set aside
the proceedings before the Trial Examiner and order another full
hearing, or in the alternative incorporate in the record the allega-
tions contained in the motion. This motion is denied insofar as it
seeks a new hearing? However, we shall treat the factual allega-
tions of the motion as an offer of proof which is hereby rejected as
untimely, and further because, even if timely, it fails to establish that
the Respondent was denied a fair hearing. The Respondent also
moved that the case be dismissed on the ground that the Union is
1 Section 8 ( 1), (3), and ( 5) of the National Labor Relations Act, which the Trial
Examiner found were 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.
2 After proceeding to completion of the hearing the Respondent may not now seek to
have the previous hearing set aside. See Matter of Sewell Manufacturing Company, 72
N. L. R. B. 85.
80 N. L. R. B., No. 85.
389
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not in compliance with Section 9 (f), (g), and (h) of the Act. This
motion is also denied 3
The Board 4 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Re-
port, the Respondent's exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommend-
ations of the Trial Examiner, only insofar as they are consistent with
our Decision and Order herein.
1. INTERFERENCE, RESTRAINT, AND COERCION
The Trial Examiner found that the Respondent, by numerous acts
and statements fully set forth in the Intermediate Report, interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. We agree with the Trial
Examiner's conclusion except to the extent hereinafter noted :
(a) We do not rely on any anti-union statements of the Respondent
which do not contain a direct or implied threat of economic reprisal
or a promise of benefit by the Respondent, as such statements are
privileged free speech. The following statements appearing in the
Intermediate Report are so privileged : (1) The statement by Henry
K. Burns, Sr., at a meeting with the union representatives in October
1945; (2) The statements by Henry K. Burns, Jr., at the meeting of
all employees in October 1945, advising the employees to leave the
Union alone; (3) The statements of Burns, Jr., and Foreman Cox,
at a meeting of the machine crew in October or November 1945.
However, as set forth in the Intermediate Report, the record contains
other statements by the Respondent's officials and agents, which we
find violative of the Act. Thus, for example: (1) statements threat-
ening the discontinuance of loans, coal, and medical service in the event
that the Union was successful; 5 and (2) statements threatening to close
the plant, and to reduce hours and wages.
E Such non-compliance does not preclude adjudication of complaint cases which arose
prior to the amended Act. Matter of Marshall and Bruce Company, 75 N. L . R. B. 90.
4 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three-man panel consisting of the undersigned
Board Members [ Chairman Herzog and Members Houston and Reynolds].
6 As fully set forth in the Intermediate Report, the Respondent actually penalized the
employees by eliminating these benefits . We find no merit in the Respondent 's contention
that the termination of these benefits was necessary in order to avoid future violation of
the Act. It appears clear that the threats to terminate these benefits and their actual
termination were so effected by the Respondent as to make it plain to the employees that the
advent of the Union was the cause of their loss . We find, therefore , as did the Trial
Examiner, that the discontinuance of these benefits by the Respondent was calculated to
and did, interfere with the self-organization of its employees in violation of the Act.
BURNS BRICK COMPANY 391
(b) Unlike the Trial Examiner we do not find that the Respond-
ent's announcement of a wage increase to its employees in September,
1945, was violative of the Act. The wage increase was made in con-
formity with statements to its employees during the summer of 1945
to the effect that upon obtaining price relief from the Office of Price
Administration, the Respondent would grant a wage increase. Such
price relief had been requested for the purpose of strengthening the
Respondent's position in the labor market, nearly a year prior to the
advent of the Union. Under these circumstances no adverse inference
is warranted from the timing of the announcement of the wage in-
crease immediately upon receipt of authority to increase prices, even
though the Respondent had notice of the Union's claim of majority
status.
(c) We also disagree with the Trial Examiner with respect to
the granting of the cash bonus of 1946. The evidence establishes
that, prior to the advent of the Union, it had been the practice of the
Respondent to grant Christmas bonuses of several pounds of nuts
and fruit. In 1945 the Respondent granted a Christmas bonus of $1
for every year of service. The 1946 bonus was $5 plus $1 for every
year of service. There is not sufficient evidence of disparate value
between the bonuses granted before, and those granted after, the
advent of the Union, from which to infer an anti-union intent. We
therefore agree with the respondent's contention that the 1945 and
1946 bonuses were in conformity with its previous general policy
and not violative of the Act.
(d) The Trial Examiner found that, on the day following the Board
election in January 1946, the Respondent violated the Act by : (1)
initiating a new reduced workweek; (2) penalizing the loaders by a
reduction of hours; (3) establishing a definite starting time; and
(4) transferring two pro-union employees, Kendrick and Waller, to
less desirable tasks. We agree in part, and disagree in part, with this
finding.
Unlike the Trial Examiner, we find merit in the Respondent's
contention that the reduction in workweek first occurred prior to the
election, and was caused by a shortage of clay due to continuing floods
and a break-down of the brick-producing machinery. Documentary
evidence, as well as the testimony of Burns, Jr., which we credit in
this regard, satisfactorily establishes that the production difficulties
alleged by the Respondent actually occurred and were the motivating
cause for the reduction in working hours except as to the loaders. The
record shows that all loaders suffered a marked reduction of hours
worked per week, beginning immediately after the election and con-
tinuing for a period of 6 or 7 weeks thereafter; no satisfactory ex-
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
planation was offered by the Respondent. We therefore agree with
the Trial Examiner's conclusion as to them.
With respect to the establishment of a new starting hour, we find,
contrary to the Trial Examiner, that there was no new starting hour
prescribed immediately after the election. Rather, we find that the
existing rules concerning hours of work were more rigidly enforced
immediately after the election than before, for the purpose of dis-
couraging membership in the Union. Although we do not agree with
the Trial Examiner that the Respondent first assigned Waller to the
clay grinding machine for the first time on the day following the
election ,6 and that Kendrick was assigned to a task which he could
not perform,' we find that the stricter enforcement of existing rules
against Waller and the reassignment of Kendrick were calculated to
and did, in an unmistakable and material fashion, express to the
employees the Respondent's resentment at the Union's success in the
election.
II. THE DISCRIMINATORY DISCHARGES
(a) The Trial Examiner found, and we agree, that Green Jones
was discharged because of his outspoken support of the Union, in
violation of Section 8 (3) of the Act. As completely described by
the Trial Examiner, Jones was originally hired in 1944 and vol-
untarily quit his employment with the Respondent early in September
1945. Shortly thereafter, Jones was rehired at his old job, but on
the day shift as he had originally desired, the Respondent having
transferred another employee to another shift to make room for
Jones. About 2 weeks after his return, Jones was discharged,
allegedly for inefficiency. As found by the Trial Examiner, the record
does not support this allegation. Had Jones been as undesirable as
the Respondent now asserts, it is most improbable that he would have
been rehired, or that the Respondent would have made special arrange-
ments to permit Jones to work on the day shift as he desired. More-
over, according to testimony credited by the Trial Examiner, only
a few hours before his discharge, Jones was threatened by Burns, Sr.,
in a discussion in which Jones persisted in his advocacy of the Union,
with the statement that "You are going to find out you ain't done
nothing to help yourself." This threat did not take long to materialize.
Shortly after 2 o'clock on October 4, 1945, Burns, Sr., instructed
Jones to "gas and oil" his car. This occurred a few minutes before the
kiln horn blew, which was a signal for Jones to put a car load of brick
6 According to Waller's testimony , as well as that of Burns, Jr., he was first assigned to
this new task several days before the election . We find, however , that on the day Im-
mediately following the election Waller was subjected to a more rigid enforcement of rules.
I It is undisputed that Kendrick actually did satisfactorily perform his new task.
BURNS BRICK COMPANY 393
into the kiln." Foreman Riley observed Jones "gassing" Burns' car
and asked Jones why he was not attending to the brick car. Jones ex-
plained that he was doing as directed, and Riley, without comment,
left in search of Burns, Sr. Jones finished gassing Burns' car, and
while he was putting the brick car into the kiln, Riley returned and
told Jones to see him when the next shift came on duty. When Jones
thereafter reported to Riley, Riley discharged him allegedly because
he had put the brick car into the kiln about 10 or 20 minutes late. As
shown by the Respondent's automatically recorded time-pressure
charts, and admitted by Burns, Jr., irregularities of 10 to 20 minutes
were recorded rather frequently and were accepted when satisfactorily
explained by the responsible operator. As in this instance the delay
has been credibly explained by the complainant and has been left un-
denied by the Respondent's official responsible for the delay, we are
convinced that the assigned reason for Jones' discharge was spurious.
On the contrary, we find, as did the Trial Examiner, that Jones was
promptly discharged pursuant to the open threat of Burns, Sr., after
Jones had indicated his intention to continue his union activity.
(b) The Trial Examiner found that James Proctor did not volun-
tarily quit his job on October 29, 1945, as contended by the Respondent,
but was constructively discharged in violation of the Act, under the
circumstances fully set forth in the Intermediate Report. This con-
clusion is based largely on the subsidiary finding that on the day of
Proctor's termination he was discriminatorily denied sufficient work
to make his normal pay for the purpose of inducing him to quit. The
record fails to support this subsidiary finding.
Unlike the Trial Examiner, we are satisfied that the documentary
evidence offered by the Respondent establishes that, up to the time
he quit on that day, Proctor was receiving and performing his normal
amount of work. The work sheets for the day Proctor left the Re-
spondent's employ show that he worked 7 hours and set 8,000 bricks,
an average of 1,143 per hour. The other setters worked 83/4 hours and
set 10,000 bricks, an average of 1,145 per hour. Other work sheets in
evidence establish that the rate of 1,145 bricks per hour was the aver-
age rate of production. In our opinion the record establishes that
Proctor became dissatisfied with his employment and, after an alter-
cation with Foreman Riley, voluntarily quit his job.
Nor do we agree that the refusal to reinstate Proctor on the day
following his termination was discriminatory. Proctor returned the
day after he quit and requested reinstatement. Upon being refused
6
We note that the Trial Examiner erroneously stated that the kiln horn blew while.
Burns was talking to Jones. However, this error in chronology in no material way affects-
our agreement with the Trial Examiner 's conclusion.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement by Burns, Jr., who had been present at the time Proctor
quit the preceding evening, Proctor spoke to Burns, Sr. The latter
went with Proctor to Riley and inquired as to the cause of Proctor's
being unable to work. Riley bluntly told Burns, Sr., that there was
not enough room in the plant for both himself and Proctor. Proctor's
own testimony materially supports Riley's testimony in this regard.
We find that the reason Proctor was not reinstated was Riley's personal
objection to his reemployment and not because of anti-union motiva-
tion on the part of the Respondent.
(c) The Trial Examiner found that employees Simmons, Davis, and
Hicks were discriminatorily discharged on January 14, 1946. We do
not agree. The record shows that because of production difficulties
the Respondent found it necessary to reduce its force at that time, and
that it laid off 24 employees, including the 3 complainants. The evi-
dence fails to establish that the 3 complainants were included in the
reduction of force for discriminatory reasons. On the contrary, it
is apparent that each of the complainants had proven himself to
be an undesirable employee. Board Witness Hall, whom the Trial
Examiner credited, testified that these employees "got along pretty
bad with the bossman . . . fussing and quarreling and arguing all
the time." Another witness, no longer employed by Respondent,
testified credibly that these employees were poor workers and would
only work satisfactorily under close supervision. Further, on a pre-
vious occasion, Davis and Hicks had been convicted of stealing gaso-
line from the Respondent.
(d) The Trial Examiner found that Kirby was discriminatorily
discharged on February 5,1946. The Respondent contends that Kirby
was discharged because of his unexplained absence of over an hour
when he was supposed to have been pulling cars of brick from the
dry house. The Trial Examiner, in effect, concludes that Kirby was
away from his post for a considerable period of time on the afternoon
of the discharge, but accepts Kirby's excuse that during the period in
question he had been making repairs in the dry house. We, however,
are unable to give credence to this explanation. It is significant that
Kirby did not advance any excuse for his absence at the time of his
discharge. Because of the fact that the temperature in the dry
house at the time of the alleged repairs was about 350 degrees F, it
would have been a physical impossibility for Kirby to have remained
there for the period of his absence. Further, had he been entering
and leaving the dry house for brief periods, he would undoubtedly
have been observed by the employees who were sent to locate him. In
view of the foregoing circumstances, and the absence of evidence that
the Respondent knew that Kirby was a member of the Union. we find,
BURNS BRICK COMPANY 395
contrary to the Trial Examiner, that Kirby's discharge was not dis-
criminatory.
(e) We are unable to agree with the Trial Examiner's conclusion
that Wiley Jones was discriminatorily discharged on July 17, 1946.
As set forth in the Intermediate Report, Jones left work prematurely
on the day of his discharge after being specifically warned that to do
so would result in his discharge. The Trial Examiner's finding of
discrimination flows from his conclusion that there was disparity
between the treatment accorded Jones and that accorded three other
employees who left the plant to vote during that day. Hawever, in
our opinion the situations are readily distinguishable. The testi-
mony of Jones and the three employees with whose treatment the
Trial Examiner compared the treatment of Jones, all of whom were
credited by the Trial Examiner, indicates the following pivotal dis-
tinctions. (1) About noon on the day in question, Jones sought to
leave for the balance of the day contrary to his previous understand-
ing with Foreman Riley. To this end he argued with Riley as to why
he did not have to stay to finish the agreed task on that day. Each of
the other employees sought and obtained permission to leave during
his bunch hour, assuring Riley that he would return to finish his
agreed task that day. (2) Riley warned Jones not to come back if
he left under those circumstances. None of the other employees was
so warned, having secured permission to leave. Accordingly, we con-
clude, contrary to the Trial Examiner, that Wiley Jones' discharge
was not discriminatory.
III. THE ALLEGED REFUSAL TO BARGAIN
The Trial Examiner found that the Respondent refused to bar-
gain with the Union in violation of the Act. This finding is appar-
ently based on the Trial Examiner's belief (1) that the Respondent
had insisted upon the Union's surrender of its right to strike and to
engage in other activities protected by the Act, as a condition prece-
dent to bargaining, and (2) that the Respondent had refused to dis-
cuss the matter of union security. We do not agree.
Bargaining negotiations began on or about February 12, 1946.
Thereafter, a series of 15 or 16 conferences followed, during the
months of February, March, and April. The Union opened negotia-
tions by submitting a standard form contract, to which the Respondent
was unwilling to agree. Thereafter, at successive meetings the Re-
spondent submitted counterproposals based upon the negotiations
of the preceding meeting. Comparison of the early with the final
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposals indicates substantial progress toward accord by virtue of
good faith compromise of positions by both parties .9
In the light of these numerous conferences, which resulted in give-
and-take adjustments on almost all points, we find no support for the
Trial Examiner's conclusion that the Respondent's demand that the
Union agree to a no-strike clause and refrain from prosecuting prior
unfair labor practices,10 was "calculated to prevent agreement from
being reached." Indeed, it appears that the matters relied upon by
the Trial Examiner were not the cause of the break-down of the nego-
tiations in April 1946. The principal union negotiator, Mike Ross,
testified that wages, vacations, and union security were then the only
matters substantially at issue, indicating that the principal issue re-
lated to union security. Additionally, there is the testimony of At-
torney Miller, Jr., referred to by the Trial Examiner, to the effect
that in October 1946, the Union was disposed to accept the last con-
tract proposed by the Respondent provided "some form of mainte-
nance of membership" was conceded by the Respondent. Although,
as is undisputed, the Respondent did discuss the matter on numerous
occasions, it persisted in refusing to grant any form of union secu-
rity. The record is clear and we find that this was the pivotal issue
which prevented consummation of a collective bargaining agreement.
But in our opinion, there is no basis for concluding that the Respond-
ent refused to make this concession in order to avoid reaching an
agreement with the Union."'
On the contrary, the record as a whole convinces us that both the
Respondent and the Union honestly explored the possibility of reach-
ing agreement on all proposals and counterproposals submitted by
them. Accordingly, we find, contrary to the Trial Examiner, that
the Respondent did not refuse to bargain collectively in good faith
with the Union.
9 The following concessions appear in the last of Respondent 's counterproposals : Article
II, Sec. 4, subjected the Respondent ' s control of conditions of employment to the grievance
procedure . Art. IV, Sec . 1, increased the minimum wage from 50 to 55 cents per hour
and provided a job classification desired by the Union ; Sec. 3 established call-in pay for
emergency work ; Sec. 4 provided for temporary work at higher rates ; Sec . 6 provided
minimum hours of work if called in ; Sec. 7 provided time and one -half for holiday work.
Art. V recognized seniority . Art. VI provided for a grievance procedure . Art. VII pro-
vided for paid vacation benefits. Art . VIII , Sec. 1 provided bulletin board space for the
Union ; Sec . 2 established a basis for accrual of seniority and gave the Union access to the
seniority list.
11 This latter clause was sought by the Respondent only after several bargaining con-
ferences had taken place and after Mike Ross had threatened to file unfair labor practice
charges based on antecedent conduct. There was little or no discussion of this clause
during the April negotiations.
11 See Matter of Shell Oil Co., 77 N. L. R. B . 1306; Matter of Union Manufacturing Com-
pany, 76 N. L. It. B. 322.
BURNS BRICK COMPANY
ORDER
397
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, Burns Brick
Company, Macon, Georgia, and its officers, agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its
employees, by discharging or refusing to reinstate any of its em-
ployees, or by discriminating in any other manner in regard to their
hire and tenure of employment, or any term or condition of their
employment;
(b) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist any 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, as guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Offer Green Jones immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges;
(b) Make whole Green Jones for any loss of pay he may have suf-
fered 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 discriminatory discharge to the date of the Respondent's
offer of reinstatement, less his net earnings during said period;
(c) Post at its plant in Macon, Georgia, copies of the notice at-
tached to this Order marked "Appendix A." 12 Copies of said notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondent's representative, be posted
immediately by the Respondent, and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material;
12 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted , before the words : "A DECISION AND ORDER ," the words : "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent violated the Act by
(1) giving a dinner to its employees on Thanksgiving Day 1945, (2)
having ministers or preachers address its employees at the plant, (3)
excluding a representative of the Union from Respondent's property
during the balloting of the Board-conducted election, (4) forcing
known union members to leave its property, and refusing to allow
them to participate in the Board-conducted election, (5) threatening
to discharge any employee who left the plant to interview a Board
agent, (6) discharging James Proctor, Lewis Simmons, Lemoye Hicks,
James Davis, Raymond Kirby, and Wiley Jones on the dates specified
in the complaint, and (7) refusing to bargain with the Union.
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 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 or assist any 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 the employees named below 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 whole for any loss
of pay suffered as a result of the discrimination.
Green Jones
All our employees are free to become or remain members of any
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.
BURNS BRICK COMPANY,
Employer.
By ----------------------------
(Representative ) ( Title)
Dated ----------------------
BURNS BRICK COMPANY 399
Nom-Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
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. Alba B. Martin, for the Board.
Messrs. Wallace Miller, Sr., and Wallace Miller, Jr., of Macon, Ga., for the
respondent.
Mr. Charles Wilson, of Bessemer , Ala., Mr. Phillip Tindle, of Savannah, Ga.,
and Mr. Frank Allen, of Macon, Ga., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on February 24, 1947, by International
Union of Mine , Mill and Smelter Workers, affiliated with the Congress of Indus-
trial Organizations , herein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Tenth Region (Atlanta,
Georgia), issued its complaint on February 25, 1947, against Burns Brick Com-
pany, Macon . Georgia , herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 ( 1), (3), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint and the amended charge , together with notice of hearing thereon,
were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) since in or about May 1945, engaged in a plan and in
a continuous course of conduct designed to interfere with, restrain , and coerce
its employees in the exercise of the rights guaranteed by the Act by, among
other things, (a) giving its employees a dinner on Thanksgiving Day 1945, (b)
granting a bonus to its employees at Christmas 1945, (c) granting to its em-
ployees a general wage increase in 1945, (d) inquiring of its employees whether
they were members of the Union, (e) attempting to induce employees to attend
Union meetings and report to the respondent what transpired thereat, (f) having
ministers or preachers at its plant to address its employees, ( g) advising and
directing its employees how to vote at the election conducted by the Board on
January 24, 1946, (h) forcing known Union members to leave the plant premises
so that they would be unable to participate in the aforesaid election, (i) excluding
the Union's representative from the plant premises during the aforesaid election,
(j) threatening its employees with dire consequences if they joined or if they
voted for the Union at the aforesaid election. (k) promising its employees a
continuation of favors if the employees refrained from becoming members of
the Union or if they voted against the Union and a discontinuance of past favors
if the employees joined or if they voted for the Union, (1) deducting immediately
after the aforesaid election large amounts from its employees' pay checks in
repayment of loans, contrary to its past practice, (m) changing the working
conditions shortly after the aforesaid election to the detriment of its employees,
(n) advising employees of the dire consequences of a strike or of a race riot
when neither strike nor race riot were being discussed by its employees, (o)
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatening to discharge any employee who left the plant to talk to a repre-
sentative of the Board , (p) ordering its employees to remove Union buttons
they were wearing and threatening those who refused to comply with discharge
or assignment to more difficult work, and (q) erecting an electrically-charged
fence around the plant; (2) discharging seven named persons on certain specified
dates,' and thereafter refusing to reinstate any of them, because they joined
or assisted the Union or engaged in concerted activities with other employees
for the purposes of collective bargaining or other mutual aid and protection;
(3) refusing, on or about January 29, 1946, and at all times thereafter, to
bargain collectively with the Union as the exclusive representative of its em-
ployees in a certain appropriate unit, although a majority of its employees in
the said-unit had--selected and designated the Union as their representative for
such purpose.
The answer duly filed by the respondent admitted all the allegations of the
complaint pertaining to the corporate existence of the respondent and the
nature, character, and extent of the business transacted by it and certain other
factual matters, but denied all the allegations with reference to the engage-
ment by the respondent in any unfair labor practices. The answer admitted
that it discharged five of the seven employees named in the complaint but denied
that it discharged two of them, averring that those two had voluntarily left
the respondent's employ.
Pursuant to notice, a hearing was held on various days between March 17
and April 15, 1947, at Macon, Georgia, before the undersigned Trial Examiner,
Howard Myers, duly designated by the Chief Trial Examiner. The Board and
the respondent were represented by counsel; the Union by representatives. All
parties participated in the hearing and were afforded full opportunity to be
heard, to examine and cross -examine witnesses , and to introduce evidence bearing
upon the issues . At the conclusion of the Board's case-in-chief, the respondent's
counsel moved to dismiss the complaint in whole, or in part, for lack of proof.
The motion was denied except that the allegation that an electrically-charged
fence was erected by the respondent in order to interfere with, restrain, and
coerce its employees in the exercise of the rights guaranteed by the Act was
stricken. At the conclusion of the taking of the evidence, Board's counsel moved
to conform the pleadings to the proof. The motion was granted without objec-
tion. Respondent's counsel then moved to dismiss the complaint for lack of
proof. Decision thereon was reserved. The motion is denied except as herein-
after indicated. Oral argument, in which counsel for the Board and counsel
for the respondent participated, then was heard and is part of the record. The
parties were then informed that they might file briefs and/or findings of fact
and conclusions of law with the undersigned on or before April 30, 19472
Upon the entire record in the case and from his observation of the wit-
nesses, the undersigned makes:
i Employee and date of discharge : Green Jones, October 4, 1945; James Proctor, October
29, 1945; Lewis Simmons , January 14 , 1946 , Lemoye Hicks, January 14,1946; James Davis,
January 14, 1946; Raymond Kirby, February 5, 1946 ; Wiley Jones, July 17, 1946.
2 A brief has been received from the respondent's counsel together with a document
entitled " Intermediate Report ( as Proposed by Respondent )" which, it is assumed, is in-
tended to serve as respondent ' s proposed findings of fact and conclusions of law. Because
of the form in which the proposed findings of fact and conclusions of law is submitted, it is
impossible to rule upon the acceptance or rejection of any specific fact or conclusion. This
is especially true with reference to the proposed findings of fact going to the credibility of
the witnesses. In the main, the proposed findings of fact are not supported by the
credible evidence and therefore they are rejected subject only to such variations as may be
accepted in the findings of fact set out in this Intermediate Report.
BURNS BRICK COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
401
Burns Brick Company, a Georgia corporation, has its principal office and
place of business at Macon, Georgia, where it is engaged in the manufacture,
sale, and distribution of bricks and tile. During 1946, the respondent pur-
chased natural gas costing approximately $50,000 all of which came from points
located outside of the State of Georgia. During the same period, the respondent's
sales aggregated in excess of $250,000, of which 10 percent was shipped to points
located outside the State of Georgia.
The respondent concedes that it is engaged in commerce, within the meaning
of the Act.
II. THE ORGANIZATION INVOLVED
International Union of Mine, Mill and Smelter Workers, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Chronological statement of the facts
In the spring of 1945, the Union commenced an organizational drive among
the colored employees of the respondent.' The campaign was successful and
within a short time many employees joined the Union.
By letter, dated September 13, the Union informed the respondent that it rep-
resented a majority of its employees and requested that a date be set for "a
conference at your convenience for the purpose of discussing the matters of
recognition, wages, hours of work, and other conditions of employment." Under
date of September 19, the respondent's counsel wrote the Union acknowledging
receipt of the aforesaid letter and stating that the officials of the respondent
would meet with the Union's representatives on September 24, if that date was
agreeable to the Union.
Late in the afternoon of September 20, the respondent received a telegram
stating that the OPA had announced that manufacturers of brick might increase
the price of brick $2 per thousand. The following morning, without consulta-
tion with the Union or even informing it, the respondent announced and put into
effect a 5-cent wage increase for all its hourly paid employees and a slightly
higher wage increase for all its piece-work employees.
In the latter part of September or early in October, Henry K. Burns, Sr., and
his son, Henry, Jr., the respondent's president and vice president respectively,
and the respondent's counsel, met with Charles Wilson and Frank Allen, an
executive board member and an international representative, respectively, of
the Union. During the course of this meeting, the question of the Union's
majority status was discussed. The respondent's counsel said that in his opin-
8 During all the times material herein, the respondent employed approximately 75 persons :
some white and some colored. The record does not disclose the number in each category.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ion that question could best be resolved by an election and then recommended
to Burns, Sr., that he enter into a consent election agreement as suggested by
the Union. Whereupon, to quote Wilson's undenied testimony, Burns, Sr., said :
... he didn't know and he didn't believe that any Union represented a
majority of his employees. Therefore, he wasn't going to sign no consent
election agreement or any other kind of agreement with the Union ; . . . if
the Union was coming into his plant, he was going to do everything in his
power to fight against the Union getting into his plant ; and then he pro-
ceeded to tell we representatives what he thought of Union representatives ;
that he thought they were a bunch of racketeers, foreigners, . . . and so
forth, and they were out for no good but just to rob the working people.
Wilson's testimony was corroborated, in the main, by Allen. Burns, Sr., al-
though present during the greater part of the hearing, did not testify. Burns,
Jr., testified about this meeting but did not refer to the statements attributed
to his father by Wilson. In view of the ample opportunity to controvert
Wilson's testimony, if it were not true, and for the further reason that Wilson
and Allen were credible witnesses, the undersigned finds that Burns, Sr., made
the remarks attributed to him by Wilson.
In line with the announced intention of Burns, Sr., to do "everything in his
power to fight against the Union getting into his plant" Burns, Jr., for the ad-
mitted purpose of discouraging unionization in the plant, called together the
employees, supervisory as well as non-supervisory, a few days after the above-
described meeting, and, according to his own testimony, told those assembled,
I didn't think they were interested in the men but merely in the collec-
tion of dues ; that I thought they were making a mistake; that at that time
they could come to me individually and talk to me about anything that
bothered them ; that my understanding of the Union was that if they had a
Union there, they would have to come through some third person ; that they
couldn't come to me to talk about some grievance or anything; that they
would have to take it up with a committee or maybe an outsider. I wasn't
entirely familiar with the procedure. And my advice was to leave it alone.
Burns, Jr., had further talks with the employees regarding the inadvisability of
joining the Union. Thus, according to the undenied and credible testimony of
Lewis Simmons , Burns, Jr., called a meeting of the machine crew, of which
Simmons was a part, sometime in October or November and said,
I reckon you all know they is trying to get a union in here . . . them
people from up North trying to create trouble among the colored and the
white down here . . . I am just a simple white man. I don't want no
trouble, but if that damn union gets in here, there is going to be trouble
... you remember how it was when that colored fellow shot that policeman
at Cherry Street. It would like to have been a race riot, and if the union
gets in here, there is going to be a race riot. . . . Some colored people like
to shoot, and some white people like to shoot each other, and they are going
to be shooting each other like rabbits and dogs.
Simmons further testified without contradiction, and the undersigned finds, that
Foreman Cox then addressed the machine crew and told them that a union
attempted to organize the employees in the place where he previously worked
and "messed up everything" so badly that the plant closed down, the men lost
their jobs, and the men walked "around the street" unemployed. Lemoye Hicks'
undenied and credible testimony regarding the remarks of Burns, Jr., and Cox
BURNS BRICK COMPANY 403
are substantially in accord with Simmons' version thereof. Hicks, however,
added that Cox appealed to the employees to heed the advice of Burns, Jr., and
forsake the Union. About the same time, according to the undenied and credible
testimony of James Proctor, Burns, Jr., said to him and the other brick setters,
in substance, that the Union would avail them nothing because it "wasn't any
good" and therefore the employees should "go on with the company" as they had
in the past.
According to William Boone's undenied and credited testimony, Burns, Jr., in
the fall of 1945, called a meeting of the men in the machine room and said, to
quote Boone's testimony, "we don't want the Union here. The Union ain't no
good, and if we have it here, it would hurt you. The Union ain't fit for anything
but getting your money and ride around in fine automobiles." Boone further
testified that Burns, Jr., then said :
"If you know anybody wants to talk like I talk, you are at liberty to
talk." And I [Boone] asked him [Burns, Jr.] could I talk, and he say,
"Yes." And I said, "Why don't you all stop it?" He said he couldn't. I
asked him then, "Why don't you let the Government stop it?" He said he
can't. And I asked him then, "Who can stop it?" And he said, "You
damn niggers . . ."
At the conclusion of a dinner given by the respondent at its plant on Thanks-
giving Day 1945, to some 300 guests, including its employees, Burns, Sr., made a
few remarks which included the following, according to the credible testimony
of Wiley Jones :
... he (Burns, Sr.) said he would been running the plant there for a good
long time, and had never had any trouble, no strikes on this plant for more
money. He said he got people out of jail, always got us out of the chain
gang. Now, we got nien who is trying to get a union here, and he said we
got men here making $25 and $30 a week. Come here making $50 a week, is
trying harder to get the CIO union than the men who is getting $25 and
$30 a week.
* s s s * s
And he said he was going to have, inbetween there and Christmas or
sometime about Christmas, he was going to give vacations. We would have
some vacations, we would get some back pay, and he didn't know just when,
but he would give some running from $75 to $125 a year, after we got the
new kiln running.
According to Willie Hansford's credible testimony, he returned to the respond-
ent's employ in September 1945; that after working there for several days, he
was told by Foreman Alton Riley that Burns, Sr., wanted to see him ; that he went
to the office of Burns, Sr. ; that Burns, Sr., asked him, in the presence of Burns,
Jr., what he thought of the Union ; that he replied that he had not given it any
thought; and that Burns, Sr., then said, "I tell you, don't have nothing to do
with it. I advise you not to have anything to do with it, because I don't think
it is . . . good (for) you."
Prior to the fall of 1945, it was customary for the respondent to purchase coal
for those of its employees who requested it, have the coal delivered to their
respective homes, and to deduct small agreed amounts each week in payment
thereof from their respective pay. When Hansford and his brother, Ogden, asked
Burns, Sr., in November 1945, to secure coal for each of them, Burns, Sr., replied,
according to Willie Hansford's undenied and credible testimony, after agreeing to
817 319-4 9 -v o l 8 0--- 2 7
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have coal sent to their respective homes and to deduct $5 weekly from Willie's
wages and $3 weekly from Ogden's wages until the full amounts were paid, "If
the CIO is to come in here, I can't let you boys have coal, because" the Union
would not permit it.
On October 4. Green Jones asked Burns, Sr.. to secure a ton of coal for him.
During the conversation which then ensued the following was said, according to
Green Jones' undenied and credible testimony :
Well, he told me. he said. "Well. I'll order you as much coal as you can
pay for Saturday." And I said, "Mr. Burns, if that is all you can get, I will
just wait until Saturday, and I can get some Saturday myself." He said,
"Well, Green," he say, "I would order you some coal, but I know you is
one of the union men. All the Union men I ain't going to do nothing else for
you." He said, "Now, ain't you one of them union men ?" I say, "Yes, I did
join." He said, "You signed a card. You ain't joined." I said, "Well, I
signed a card ." He said , "Well you didn't know what you was doing, did
you?" He said, "Didn't somebody fool you in it?" I said, "No, sir, nobody
fooled me in it." He said, "Why did you join ?" I said, "I joined because
I thought it would better my condition." Then he reached over on his little
table and got a magazine-I don't know what kind of magazine, but it was
a magazine , and he began to show me some pictures what all the strikes
there were. He showed me all through that. He said, "I'll tell you about
this union. This union is just a mess. Some folks come in from out of the
state to get your money. That ain't going to help you any. First thing they
are going to do is call a strike. That's all a union is for, to cause trouble.
They has caused trouble wherever they have been. That's all they've done
is call strikes. Of course. I ain't mad-I aint mad at you, but you are going
to find you ain't done nothing to help yourself." And I said, "Well, Mr.
Burns, I hope that I will find out, but still I think that I was correct."
That's all he said to me.
Later that day, Jones was discharged allegedly for neglect of duty.`
On or about October 15, the Union filed a petition for certification of repre-
sentatives, pursuant to Section 9 (c) of the Act, alleging that the Union repre-
sented 54 of the approximately 70 persons then in respondent's employ. Within a
week or so of the filing of this petition, the Union forwarded to the Board's
Regional Director for the Tenth Region, membership application cards signed
by 62 of the respondent's employees.
On December 18, respondent and the Union entered into a consent election
agreement. On the following day this agreement was approved by the said
Regional Director. At the conference at which the said agreement was executed,
which was attended by a Field Examiner of the Board, Burns, Sr., Burns, Jr.,
and the respondent's counsel, Burns, Sr., asked the Field Examiner what could
be done to fight the Union in order to defeat it at the polls, and whether he could
post alongside the election notice an announcement that the respondent's plant
was for sale. What the Field Examiner advised Burns, Sr., regarding campaign-
ing against the Union in the forthcoming election, the record does not disclose.
Burns, Jr., however, admitted on cross-examination that the idea of posting
the for sale notice was abandoned by his father when the Field Examiner
stated that such posting might be construed as an unfair labor practice. Burns,
Jr., testified, on redirect examination, that at the time of signing the consent
election agreement the respondent was contemplating selling the plant because
4 Green Jones ' discharge is more fully discussed below.
BURNS BRICK COMPANY 405
it had received a very good offer for the property and would have sold the
property "except for income tax" reasons .5
The election was set for January 24, 1946. From the inception of the respond-
ent in 1936, up and until the Board conducted the election, it had been the res-
pondent's practice to loan money to the employees from time to time. The loans
were repaid by deducting a small amount previously agreed upon, out of the
weekly salary of the borrower. After the execution of the consent election
agreement, Burns, Sr., always reminded the borrower when he asked for a loan
that if the Union won the election the respondent would discontinue the grant-
ing of the loans. The discontinuance of loaning money to the employees, as the
respondent well knew, would be a hardship upon the employees, for many of them
were habitual borrowers.' Regarding a conversation he had with Burns, Sr.,
when he asked for a loan in December 1945, Wiley Jones credibly testified that
Burns, Sr., said, after asking how much Jones wanted to borrow, "I don't know
about this money, Wiley, you are trying to get a union, . . . but-I am giving you
some money." After loaning the amount requested, $15, Burns, Sr., said that
he would like to know how the employees felt about the Union and would like
Jones to "talk to the boys . . . and keep them from joining the union...."
Jones replied "Yes, sir" and left. Regarding an incident which occurred on
Christmas Eve, Jones credibly testified, without contradiction, as follows :
I said, "Mr. Burns. [Sr.1 I ain't got enough money to do me today, and I
need some more money." and he let me have it. He said "You have been
drinking," and I was drinking, but I wasn't working that day. He said, "You
come back over here in the morning, and I will meet you and let you have
some money." I said, "I got to have it because my wife is sick." He said,
"I will let your wife have it. but not you." So I went home and got my wife
and brought [her] back over there and he let my wife have the $15. But he
said, "That union is trying to get in here." He said, `I got information from
the Federal Government if the union get in here, to sell that plant." And
Mr. Henry [Burns, Jr.] walked in and both of them told me that if the union
get in here, "Wiley," he says, "you are making $25 and $30 a week." He
said . "They are going to cut you down to $18 a week." I said, "I sho' don't
want my wages cut," I told both of them. And he says, "Well, talk to the boys
out there." So I thanked him for the money and went on home.
Regarding an incident which took place with Burns, Sr., in the presence of
Burns, Jr., on January 14, 1946, Jones credibly testified without contradiction as
follows:
Mr. Burns called me, and I walked [into his office] and he say, "Wiley,"
and I says, "Yes, sir." And he says, "You owe me a gang of money on this
book here, and you are trying to get a union in here." I didn't say any-
think for about a second, then I said "Sir?" He said, "You owe me a gang
5 The undersigned does not find that the above -described incident is an unfair labor prac-
tice as such , but does find that it is indicative of the respondent 's attitude with respect to
the unionization of its employees . Surely the respondent did not expect any of the em-
ployees to purchase the plant, for it was aware of the impecunious situation of its employees
because a large percentage of them were habitual borrowers of money. Moreover, the
respondent had a very good offer for the plant and for reasons of its own did not desire to
sell . It is fair to infer , therefore , that Burns, Sr ., had but one thought in mind when he
posed the question about posting the for sale sign and that was to intimidate the employees
by making them believe that the plant would be sold if the Union won the election.
The record shows that a great many employees would borrow money each Monday
despite the fact that they had received their wages the previous Friday.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of money and you are trying to get a union." I said, "I ain't the only one."
He said, "There is a man that has been going to the meetings, and told me."
I said, "Would you mind to tell me who it is?"
And he said, "I wouldn't tell you for a gold dollar." I said, "How much
do I owe you?" He said, "You owe me $28 here." And he said, "You are
trying so hard to get a union, and I want my money." I said, "Those other
boys are trying to get a union, too. They want one and you know it." He
said, "I know you are trying to get one." I said, "If you feel that way-
you promised to take $ 5 a week-but you can take it just like you want it."
He said, "I ain't going to take anything this week, but if that C'IO union
gets in here, I am going to have to have it all." He said, "If I knowed how
you was going to vote, I would know what to tell you about your money."
I said-I didn't say anything for a few seconds, I said, "What do you mean
by that?" And he said, "How it was you were going to vote for the company
or for the CIO" I said, "I am going to praise the breeze that takes me
safely across." And Mr. Henry asked me how was that. And I never did
say anything, and Mr. Burns said, "I think if you will talk to the boys for
me, to keep them from joining that union." I didn't tell him I was and
I didn't tell him I wasn't. I walked out.
Other credible witnesses testified that Burns, Sr., warned them that the re-
spondent would discontinue loaning them money, purchasing coal for them and
doing other favors that it was accustomed to do for the employees, if the Union
won the election.
Commencing several weeks prior to the Board-conducted election, the respond-
ent, through Burns, Sr., his son, and Foreman Riley inaugurated an illegal cam-
paign to defeat the Union at the polls Not only did these persons threaten the
employees with discontinuance of loaning money, securing coal, obtaining medical
services, and the like, but they threatened the employees with loss of jobs and
other financial losses if the Union won the election. Thus, Ogden Hansford testi-
fied without contradiction, and the undersigned finds, that several days before
the election he and his brother. Willie, were told by Foreman Riley that Burns,
Sr., wanted to see them in his office; that when they arrived there, Burns, Sr,
asked them, in the presence of Burns, Jr., how they intended to vote in the forth-
coming election ; that when they replied that they did not know as yet, Burns, Sr.,
said the Union was no good, it would force the respondent to cut the workweek
to 40 hours, that if he were "you all I wouldn't fool with it. You can do as you
want, but if I was you, I wouldn't fool with it"; that he and his brother then
said that they would not vote; that Burns, Jr , then said, "If you-all do vote,
only vote for the company, on account of one vote for the company, would kill
a vote for the Union" ; and that Burns, Sr., then said if the Union "comes in
here" he would close the plant and "go to Florida fishing, because he had enough
[money] to last [him] the balance of his life." Willie Hansford's version of
what took place at this meeting is substantially in accord with his brother's,
except that he testified that Burns, Jr., said, after they told him that they did
not intend to vote, "If you don't vote either way, you will give the union half
a vote. I would rather you would vote, and vote for the Company." Whether
Ogden's version of what Burns, Jr., said or Willie's is accepted is of little import,
for what Burns, Sr., and his son wanted to, and did, convey was that if the
Union was victorious at the polls the employees would be the losers. Jim White
testified, and the undersigned finds, that on the Saturday prior to the election,
Burns, Sr., asked him if he had ever seen an election ballot ; that he replied in
the negative ; that Burns, Sr., then showed him a sample ballot and after asking
BURNS BRICK COMPANY 407
how he intended to vote Burns, Sr., said, to quote White's testimony, "Don't vote
for the union-vote right over here where it said 'no'. Told me he wasn't going
to buy no more coal, wasn't going to get me out of jail no more, wasn't going to
get me no doctor." z Regarding an episode that took place between Burns, Sr.,
and himself on the day prior to the election, William Kendrick credibly testified
as follows :
He [Burns, Sr ] asked me first, he asked me about the money that I owed
him at the time when I was sick, and he sent the doctor out to me, and sent
me some coal during the time I was sick, and he asked me, and asked me to
pay him, and I told him, "No, sir." And I said, "I didn't have any money."
And he said he had to have it because the Union wouldn't allow him to carry
us along. Since the Union got in there, he couldn't do what he used to do
for us, and he had to have it. And asked if it would be all right if he had
them to take me down there to the bank and have a note to get his money
where I could pay him, and then he would take it out to pay the bank, he
would take it out of my salary weekly $5 a week, and I told him it would be
all right, and I was to go down there with him, but at the time I didn't have
a change of clothes down there, and I couldn't go down there, as messy as
I was, and I told him I would go tomorrow, so he went down there and got a
note, about two or three days afterward the timekeeper brought it around
there for me to sign.
Robert Stevenson testified without contradiction, and the undersigned finds,
that on the day of the election Riley asked him to do him a favor and not vote
for the Union, but that he should "vote for the Company, and if we didn't the
Union would come in there where we was making thirty-five or forty, we wouldn't
be making but twenty. Said the Union didn't mean anything to us." Willie
Gordon testified without contradiction, and the undersigned finds, that on the
day of the election, Riley asked him how he intended to vote, when he replied
that he had not decided as yet, Riley said, to quote Gordon, "he had been very
nice and done a lot of favors . . . if we didn't help him, he wasn't going to help
us, no more favors."
According to the undenied and credible testimony of Thomas Hall, Burns, Jr.,
asked him about a week or two prior to the election how he intended to vote ;
that he replied that he did not know ; that Burns, Jr., told him that the place
marked "no" is for the Company and the place marked "yes" is for the Union ;
and that Burns, Jr., then said,
all of them what vote for the Union, lie was going to run off, going to turn
them off. They won't have no job, and they won't do no more favors for
them, wouldn't [advance money for the payment of] the doctor bill and the
wood bill and what he had been lending to pay the house rent. Say had to
let the Union get it.
Numerous other employees testified without contradiction regarding conver-
sations which they had with Burns, Jr., Burns, Sr., and Riley with respect to
how they should vote at the election. Their testimony is similar to that of
Ogden and Willie Hansford, Robert Stevenson, Willie Gordon, Wiley Jones, Jim
T Prior to the election the respondent on several occasions had secured White's release
from jail where he had been incarcerated for drunkenness. This practice of securing White's
release was discontinued after the election. The practice of sending a physician to the
employees' homes when a doctor's services were needed was likewise discontinued after the
election.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White, William Kendrick, and Thomas Hall. It would serve no useful purpose to
set forth here at length the incidents and the conversations testified to by these
witnesses. However, their testimony cannot be overlooked in evaluating the
issues herein involved. Riley testified that he campaigned against the Union
because he thought the election was a contest solely between the respondent
and the Union. This testimony, like most of Riley's, is not persuasive. Riley
posted, several days prior to the election, the usual election notices supplied by the
Board . These notices contain a facsimile of a ballot to be used at the election.
The sample ballot clearly indicated that the voters were to vote whether or not
they wanted to be represented by the Union for the purposes of collective bargain-
ing. Nothing on the notices, as Riley well knew, indicated that the election was
to be a contest between the Union and the respondent.
Riley and Burns , Jr., admitted that they kept all the colored employees under
close surveillance in order to ascertain who were members of the Union. They
also admitted questioning the employees as to how they intended to vote in
order to advise those who were undecided or who were in favor of the Union
that it would be more advantageous for them to vote against the Union. The only
testimony that either Burns, Jr., or Riley denied with respect to remarks attrib-
uted to them, or either of them, by various witnesses concerning the election,
was the testimony of Johnny Thompson and James Douglas concerning attempted
bribes. Thompson testified that on the day of the election, Burns, Jr., and Riley
promised him and Clinton Parks "a nice big car and we could go out on Saturday
night and Sunday and have a big time" if they voted against the Union. James
Douglas testified that on the day of the election Riley promised him 25 cents more
than the Union would give him if he "stayed out" of the Union. These denials
the undersigned accepts because he believes that Thompson and Douglas mis-
understood Burns, Jr., and Riley. The undersigned, however, finds that Burns,
Sr., Burns, Jr., and Riley sought to influence the results of the election by threat-
ening the employees with economic hardships and that they also made the state-
ments which the various witnesses attributed to them to the effect that if the
Union was victorious the employees would suffer financial losses. The under-
signed further finds the following undenied testimony of James Douglas, con-
cerning an event which took place in April 1946, to be substantially in accord
with the facts :
Q. (By Mr. Martine Now, let's go back a little bit. Did Mr. Henry
[Burns , Jr.] ever talk to you about the Union before the election?
A. Yes, sir, that were about two weeks before he come up there and M..
Riley, he come on right on, too, both of them, and he come around there and
got up-put his foot up on the tram, and then they said, "did you know any
thing about the Union? I heard the boys was getting up a Union down here."
And I told him I didn't know nothing about the Union. So he went away,
then, he went away, and then, about a week after then Mr. Riley come back
around there and asked me about the Union.
Q. What did he say?
A. He say, "What do you know about the Union?" And I said "Mr. Riley, I
don't know nothing about that Union. I ain't got nothing but a card up
there." That's what I told him. And he said, "What do you know about the
Union?" I said , "Nothing." And he said, "Well, you had better not know
nothing about that Union. If you do know about that Union, I'll see to it you
8 Board's attorney.
BURNS BRICK COMPANY 409
pay for everything broke on that tram, and I see to it you starve to death
if you are in that Union." Said, "I'm going to see to that."
Douglas also testified without contradiction, and the undersigned finds, that on the
day of the election, Riley asked him to cast his vote against the Union.
According to the undenied and credible testimony of Willie Hansford, Riley, on
the day of the election, asked him, his brother, Ogden, and James Douglas to
each promise that they would cast their respective ballots against the Union ; that
he asked Riley "what difference it would make if the Union" came into the plant ;
and that Riley replied "if the Union comes in, where six of you men around there
working, I would have to put fourteen, and which would cut you back half way,
where you are making $40, would cut you back half way."'
On January 24, 1946, the election was held. Of the 65 valid votes cast, 37
were for the Union. On the following day, the respondent put into effect the
reprisals with which the employees were threatened if the Union was victo-
rious. Thus, on that day, Riley refused to allow three loaders, Robert Steven-
son, Willie Gordon, and Benny Harris, to work and sent them home allegedly
for reporting for work late. Riley made no inquiry as to whether these men had
reported at the plant at 8 o'clock, the hour when they testified they were due to
report. Had he investigated the matter before refusing to allow these men to
work, he would have discovered that Stevenson was at the plant at about 7: 45
that morning; that Gordon was there at 8 o'clock, and that Harris was there
at about 8: 05. The credible evidence clearly shows that prior to this day, the
loaders had no definite starting or quitting time ; that their hours were con-
ditioned upon whether there were available bricks to load ; that it had been cus-
tomary for Riley to instruct the men the previous day what time they were to
report the following morning ; that if no instructions were given, the men were
to report "around" 8 o'clock ; that since the starting time was subject to change,
in the past the men were not censored for reporting late ; and that no one had
ever been sent home and refused work prior to this day for reporting late. Riley
selected these men for discipline, who were known to him to be union adherents,
in order to impress upon them and upon the other employees that adherence
to the Union would cause them financial loss. Prior to the election, Riley warned
each of these three men that if the Union won the election, they would suffer
financially thereby. Moreover, after the election results were made known to
Riley, he said to Harris, "You sure put me in a mess."
On the same day, the one following the election, Riley announced that there-
after the employees were to work but 40 hours per week and their hours would
be from 8 o'clock in the morning to 4: 30 p. mf0 This new workweek prevented the
men, who for a good many years had been receiving at least 8 hours overtime
pay each week, from receiving any overtime pay and was another device used to
bring home to the employees the futility of membership in the Union." Riley
° It is significant to note at this junction that immediately prior to the opening of the
polls, despite the open illegal electioneering in which Burns, Sr., Burns, Jr., and Riley had
engaged in prior to, and on the day of the election, Burns, Sr., ordered Frank Allen, a
representative of the Union, from the respondent's property. When Allen protested, saying
he, like the respondent's representatives, was, according to the Board's election procedure,
permitted to remain within 50 feet of the polling place, Burns, Sr ., replied "You get com-
pletely off of my property."
io The men had a 30-minute lunch period for which they did not receive pay.
n After 3 or 4 weeks the men were again allowed to work overtime . The respondent
contended at the hearing that it discontinued overtime work because the clay pits were
flooded ; that it could not obtain sufficient clay to keep the men busy ; and that if it did not
discontinue the overtime work , it would have been forced to reduce its staff . This conten-
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assigned William Kendrick, who has been picking up the "brick bats" that the
brick setters dropped, to the job as brick setter despite the fact he knew that
Kendrick, a Union member, could not physically perform that job and announced
that in the future the brick setters would have to pick up the "brick bats" before
he would "check them out" after the conclusion of the day's work. By increas-
ing the number of brick setters and forcing them to do other work not previ-
ously performed by them, the brick setters had to put in additional time to earn
the same amount of money they received prior to the election.
The loaders were also penalized financially for the Union's victory. Shortly
after the election, Riley refused to allow them to load the trucks of "outside
truckers," which the loaders had been doing for many years prior to the election.
The respondent contended at the hearing that the Union activities of the employ-
ees played no part in its determination to discontinue loading the truck of
"outside truckers" but that this procedure was changed due to lack of sufficient
manpower. This contention, which is not only inconsistent with contentions with
respect to the reduction of the workweek, is likewise not supported by the record.
On the other hand, the record clearly shows that the loaders were refused this
extra duty because of their adherence to the Union. Most of the loaders were
members of the Union and this fact was known to the respondent's officers and
supervisors. This finding is buttressed by the admission of Burns, Jr., while on
the witness stand that from the time he first learned of the union activities of the
men, he kept the employees under close scrutiny in order to ascertain who
were members of the Union. He also admitted that he and Riley "speculated,"
from time to time, as to who were and who were not members of the Union
and that, while they were not sure which individual belonged, they were aware
that only the colored employees belonged.
Burns, Jr.'s displeasure with the result of the election was clearly shown to
the employees when they reported for work on the day after the election After
assigning Berofus Waller to the clay grinder, a new job, Burns, Jr., said to Waller
in loud voice, "The CIO won, but [I am] the boss right on. This is your job up
here ... Don't get down for only two things. To go to the rest room in yonder,
and go to get water." When Waller asked, "How about if I get cold ?" Burns,
Jr., replied, according to Waller. "Stay up there and freeze." 12 Burns, Jr., testi-
fied that he had assigned Waller to this new job several days prior to the election
and not on the day after the election, as testified to by Waller He admitted
that he made the remarks, except that he made no reference in his testimony
to "the CIO won, but [I am] the boss right on," attributed to him by Waller. He
testified that he warned Waller that day because on the previous day, he had
found Waller away from his job and had then told him not to leave the clay
grinder unless it was absolutely necessary ; and that when he had found Waller
again away from his job he ordered him to return to his post and remain there.
The undersigned , for reasons more fully set forth below, did not find Burns, Jr.,
to be a credible witness On the other hand, Waller was an honest and forth-
right witness and his testimony was not substantially shaken under cross-exam-
ination. Moreover, Waller's testimony is corroborated by the credible testi-
tion is not supported by the credible evidence , which clearly reveals , and the undersigned
finds, that had it not been for the employees ' activities on behalf of the Union , the normal
overtime work, with the accompanied overtime pay, would have been continued. The re-
spondent was determined , as indicated by the various statements of Burns, Sr , Burns, Jr ,
and Riley, to do all in its power to prevent the unionization of its employees and if it were
unsuccessful in that respect to punish the employees by reducing their earnings.
12 Prior to this new assignment , Waller had been a truck driver for approximately 3 or
4 years.
BURNS BRICK COMPANY • 411
mony of Stevenson who testified regarding Burns, Jr.'s remarks to Waller on
the morning following the election. The undersigned finds that Waller's version
of what took place between Burns, Jr., and him to be substantially in accord
with the facts."
The pay period next succeeding the election was January 31, and the respondent
deducted from the pay checks of those employees to whom it had loaned money,
the entire amount due. In some instances, however, the employees owed the
respondent more money than was due to the employee. In those cases, the
balance was taken out of the succeeding pay checks until the full amount due
was collected. Wiley Jones had borrowed some money from the respondent
prior to the election and it had been deducting small amounts from his pay each
week. On January 31, Wiley Jones owed the respondent $28.50 and his net earn-
ings were $28.51 for the week ending that date. The respondent gave him a
check for 1 cent. Stevenson's pay check was for 22 cents. Other employees
received checks for less than $1. The respondent contended at the hearing, that
it deducted all that was due it, wherever possible, from the salaries of the
debtor employees as soon as the Union won the election, because it did not
want to be accused of favoring the nonunion employees over the union employees,
or vice versa, thereby committing an unfair labor practice. The contention
finds no support in the record. On the contrary, the undersigned is convinced and
finds, that the respondent was not motivated by any such fear, but that it called
in all its loans in furtherance of its attempts to demonstrate to the employees,
through their most vulnerable spot-money-the futility of belonging to the
Union. Furthermore, after the election the respondent discontinued securing
coal for its employees and likewise discontinued the other favors it had been
giving its employees since its inception. The discontinuance of these niceties
was motivated by the animosity the respondent had for the unionization of its
employees and for no other reason."
Under date of January 29, the Union forwarded to the respondent a proposed
contract and in the letter accompanying the contract asked for a date for a con-
ference. Under date of January 31, the respondent's counsel acknowledged receipt
of the letter and the proposed contract. The letter then proceeded to state that
Burns, Sr.'s son, Derry, a vice president of the respondent, was about to be dis-
charged from the Armed Forces and was expected to be in Macon, Georgia, in
about 2 weeks, at which time Burns, Sr., would communicate with the Union and
then fix a date for a conference. The first bargaining conference took place
sometime between February 12 and 15, which was attended by Burns, Sr., Burns,
Jr., Derry Burns, both respondent's counsel, Wallace Miller, Sr., Wallace Miller,
Jr., and two representatives of the Union. At the outset of the conference, Wal-
lace Miller, Sr, said, according to the undenied and credible testimony of Allen,
"I understand that charges [have] been filed against the Company." When the
Union's representatives assured Miller, Sr., that the Union had filed no charges
33 Burns, Jr.'s resentment of Waller's union activities was clearly demonstrated when he
requested Waller, sometime in the summer of 1946, to remove his steward's button and when
Waller refused, Burns, Jr, said, according to Waller's undenied and credible testimony,
"I got more than one way to get you about the button.. . .
14 Larry McNeir testified without contradiction, and the undersigned finds, that several
days after the election Burns, Sr , refused him a loan saying, to quote McNeir, "he would
have to stop loaning money, because the union had got in there, and they couldn't lend
money" When Willie Hansford's mother died in September 1946, he requested Burns, Sr, to
loan him some money. Burns, Sr., refused saying, "I can't let you boys have any money
because the CIO . . . didn't allow it . . . because if I loan one money, I would have to
loan all of them in the plant . . . I have to treat them all you boys alike."
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Board against the respondent but that the Union had secured, however,
a few affidavits with respect to the respondent's treatment of its employees, Miller,
Sr., said, "Well, if you have filed charges, and we are going to fight, I didn't see
any need of us being around here. We just as well fight the whole thing out."
After being convinced that the Union had not filed any charge, the conferees
then discussed the Union's proposed contract. The respondent's representatives
refused to accept any provision of the proposed contract. Toward the close of
the conference, the respondent submitted to the Union's representatives a pro-
posed contract which its counsel had prepared. The meeting recessed when the
Union's representative requested time to consider the respondent's contract. Be-
tween the day of the first conference and April 17 or 18, the parties met and
conferred on 15 or 16 separate occasions.15
The respondent's anti-Union activities did not cease with the Union's victory
at the polls. It continued to keep the employees' union activities under surveil-
lance and it continued to remind them that membership therein would be detri-
mental. Thus, it discharged Raymond Kirby, an active union member, on
February 5.18 In addition, Maintenance Foreman L. C. Smith admitted, on
direct examination by respondent's counsel, that sometime in April, he noticed
that Samuel Clayborne was not wearing his Union button ; that he asked Clay-
borne if he still belonged to the Union ; and that when Clayborne replied in the
negative, he said, "Well, I am glad you are not, Sam, because I am afraid if there
is to be any trouble here, you might be in it, and you are a good man, and I don't
want to see you get in no trouble." When the Union distributed its buttons in
June, Riley admittedly attempted to ascertain from the colored employees who
was making the distribution. Two days later, the distributor, Wiley Jones, was
laid off, allegedly for lack of work. On July 17, Jones was discharged allegedly
for leaving the plant before he finished his work" In July, Burns, Sr., while en
route to Macon in his automobile met William Kendricks, who was walking from
the plant to Macon, and gave him a ride to town. During the conversation
which ensued between the two while en route to Macon, Burns, Sr., said according
to Kendricks' undenied and credible testimony, "If I can hold that Union off until
January, it won't be no more union, and I can do by you boys like I once have."
At Christmas 1946, the respondent granted to each employee a cash bonus.
The amount received by each was dependent upon the number of years the em-
ployee was in its service. This action was taken without consultation with the
Union which at the time was the duly certified bargaining representative of the
recipients of the bonus.18
2. Concluding findings
The respondent argues that it did not interfere with or coerce its employees
in the exercise of their rights to self-organization in violation of Section 8 (1) of
the Act but the facts, as found above, do not sustain this argument. They
disclose, on the other hand, a course of conduct constituting a flagrant invasion
of the employees' rights under the Act to engage in organizational activities'
free from employer interference and coercion. Burns, Jr., and Riley admitted
that their anti-union remarks and threats of economic reprisals were calculated
to discourage membership in the Union and to bring about the Union's defeat
The allegation that the respondent refused to bargain is discussed below at length.
is Kirby's discharge is discussed more fully below.
17 Wiley Jones' discharge is discussed more fully below.
At Christmas 1945, each employee was given a cash bonus, the amount depending upon
the length of service with the respondent. This bonus was given without consultation
with the Union and despite the impending election.
BURNS BRICK COMPANY 413
at the polls. They also admitted disparaging the Union and its leaders for
the same reason. These concessions, coupled with undenied and credible testi-
mony of the various witnesses who testified regarding the anti-union remarks and
activities of Burns, Sr., alone, without more, are sufficient to base a finding
that the respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed by the Act." But as is evident from a mere
recital of the facts, as epitomized above, which are substantially undisputed,
these threats of economic reprisal against the employees if they adhered to
the Union, represent only a part of the respondent's illegal course of conduct.
The respondent's refusal to bargain collectively with the Union and its discrim-
inatory discharge of seven employees, as hereinafter found, were scarcely less
calculated than the outright threats to bring economic pressure to bear upon the
employees to compel them to repudiate, or refrain from, joining the Union. And
in fact the respondent's threats that if the Union was successful in its organi-
zational drive the employees would suffer financial loss, would be unable to
borrow money from the respondent, would have to look elsewhere for help in
case of arrest or sickness, would have to secure their own fuel, and would have
to forego the receipt of any favors from the respondent, materialized in the
discontinuance of overtime work, with the accompanied overtime pay, with the
calling in of the loans immediately after the election, with the refusal to loan
the employees money, with the refusal to obtain coal for those who asked for
it, with the discontinuance of assistance in case of arrest or sickness, and with
the discharge of seven members of the Union.
Equally violative of the prohibitions contained in Section 8 (1) of the Act was
respondent's strategically timed unilateral announcement of a wage increase
to its employees in September 1945. The respondent undertook to make this
announcement without first consulting or notifying the Union which was then
claiming to be the collective bargaining representative of the employees. The
respondent's contention that it put the wage increase into effect immediately
upon receipt of advice that OPA permitted it to raise the price of its product
because it had promised the employees a wage increase as soon as it was permitted
to raise the price of brick is not tenable. Such unilateral action, irrespective
of whether or not bargaining negotiations with the employees' representative
have begun, as the United States Supreme Court held "minimizes the influence of
organized bargaining. It interferes with the right of self-organization by em-
phasizing to the employees that there is no necessity for a collective bargaining
agent." 20 Moreover, the very timing of the announcement was calculated to show
to the employees that "resort to self-organization was plainly unnecessary." 2,
Furthermore, "tile action of employees with respect to the choice of their bar-
gaining agents may be induced by favors bestowed by the employer as well as his
threats of domination." 22
The granting of the cash bonus in 1946, without consultation with, or notifying,
the Union, constituted not only an integral part of the respondent's coercive
course of conduct, but in itself were forms of interference and restraint pro-
25 International Association of Machinists v. N. L. R. B., 311 U. S. 72 ; N. L. R. B. v. Pearl
Button Co., 149 F. (2d) 311 (C. C. A. 6) ; N. L. R. B. v. Litchfield Mfg. Co., 154 F. (2d)
739 (C. C. A. 8) ; N. L. R. B. v. Crown Can Co, 138 F. ( 2d) 263 (C. C. A. 8) cert. den. 321
U. S. 769.
20 May Department Stores Co., etc., v. N. L. R. B., 326 U . S. 376, 385.
n N. L. R. B. v Christian Board of Publication , 113 F. (2d) 678, 681 (C. C. A. 8).
See also N L. R. B. v. Crown Can Co., 138 F. (2d) 263 (C. C. A. 8), cert. den. 321 U. S.
769.
n Medo Photo Supply Corp. v. N. L. R . B., 321 U. S. 678, 680.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hibited by the Act. The respondent's contention that prior to World War II
it granted bonuses to its employees in the form of nuts and fruits and that these
gifts were discontinued because of its inability to secure these scarce articles
during the war, and hence when it granted the cash bonus in 1946 it was only
reinstating its former practice, is not sustained by the record. The giving of the
nuts and fruits, which are of little financial value when compared with the cash
given in 1946, was discontinued at least 2 years prior to the commencement of
World War II. Moreover, these gifts were given on two separate occasions only,
whereas the respondent's business was in existence for at least 5 years prior
to the war.
The respondent seeks to insulate its conduct from the sanctions of the Act on
the ground that its threats did not in fact coerce its employees and that the
remarks of Burns, Sr., Burns, Jr., Riley, Cox, and Smith were constitutionally
privileged expressions of views. Neither contention has merit. It is immaterial
that an employer fails to achieve the objectives of his coercive course of con-
duct.29 As the Court succinctly stated in N. L. R. B. v. Crown Can Co., supra, at
p. 266, "the remedy furnished by the Act is just as available where coercion suc-
ceeds as when it fails." The coercive implication of the declarations of the re-
spondent's officials, of the respondent's admitted desire to defeat the unioniza-
tion of its employees, in themselves render respondent's claim of privilege in-
valid. The respondent's entire course of conduct, as summarized above, trans-
gressed the permissible limits of free speech. In justification of its position
that the remarks of the respondent' s officials are protected by its constitutional
right of free speech, the respondent cites numerous cases in its brief, including
N. L. R. B. v. J. L. Brandeis J& Sons, 145 F. (2d) 556 (C. C. A. 8). Regarding the
Brandeis case, the Circuit Court of Appeals for the Eighth Circuit recently
said : 24
While this case and other recent cases w recognize an employer's con-
stitutional right of free speech in a labor dispute, they further recognize
the limits which an employer may not exceed under the guise of constitu-
tional privilege. While he may state facts within the orbit of the dispute,
express his opinion on the merits, and even express his hostility to unions or
their representatives, he may not find protection in the First Amendment
for utterances which amount to coercion or threats of reprisal. N. L. R. B. v.
Trojan Powder Co., 3 Cir, 135 F. 2d. 337, cited with approval in Thomas v.
Collins, 323 U. S. 516, 538; Board v. Kopnian-Woraeek Shoe Mfg. Co., 8 Cir.
158 F. 2d. 103.
As we said in the Brandeis case, 145 F. 2d. 564:
The right of free speech guaranteed by the constitutional amendment
extends to labor matters and the dissemination of facts. Thornhill v. Ala-
bama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093. It is only the use of the
right of free speech in labor matters under such circumstances and condi-
-4Western Cartridge Co. V. N. L. R B., 134 F ( 2d) 240 (C. C. A 7) ; N. L. R. B. v.
John Engelhorn & Sons, 134 F . ( 2d) 553 (C C. A. 3) See also N. L. R. B. v. Link Belt
Co , 311 U. S 584
24 Winona Textile Mills, Inc. v. N. L. R. B ., 160 F. ( 2d) 201 (C C. A. 8).
25 See cases cited in Brandeis opinion at page 564 . See also Thomas v. Collins, 323
U. S. 516; May Department Stores, etc . v. N. L. R. B., 326 U. S. 376; N. L R . B. v. Kop-
man-Woracek Shoe Mfg. Co ., 158 F. (2d) 103 (C. C. A. 8) ; N. L. R. B. V. American
Pearl Button, 149 F. ( 2d) 311 (C. C. A. 8) ; N. L. R. B. v. West Kentucky Coal Co., 152
F. (2d) 198 (C. C. A. 6) ; N. L. R B. v. Montgomery -Ward Co., 157 F. (2d) 486
(C. C. A. 8).
BURNS BRICK COMPANY 415
tions as to coerce the will of employees that is forbidden. National Labor
Relations Board v. Brown-Brookmeyer Co., supra ; Texas & N. O. R. Co. v.
Brotherhood of Railway & Steamship Clerks, 281 U. S. 548, 50 S. Ct. 427,
74 L. Ed. 1034.
If respondent used coercive language it may be held responsible in these
proceedings notwithstanding the constitutional guaranty of the right of free
speech. We have fully set forth the remarks of the officers of respondent be-
cause a consideration of the language and must determine its character.
This is a question of law. The sole statutory test is interference, restraint
or coercion.
The actions, moreover, with which the employees were threatened if the
Union won the election were carried out by the respondent. Accordingly, the
statements of the respondent's officials exceeded the permissible limits of free
speech. Upon the basis of the above findings and upon the entire record, the
undersigned finds that the respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
B. The discriminatory discharges
The complaint alleges that the respondent discharged seven named :e employees
and thereafter refused to reinstate them because they joined or assisted the
Union or engaged in concerted activities for the purpose of bargaining or other
mutual aid or protection. In its answer, the respondent admits that it dis-
charged Green Jones, Lewis Simmons, Lemoye Hicks, James Davis, and Raymond
Kirby but it avers that James Proctor and Wiley Jones voluntarily quit its
employ.
Green Jones was first employed as a laborer in October 1944. Subsequently,
he was given the job as kiln fireman. Besides his duties as kiln fireman, which
included putting cars of bricks into the kiln, in accordance with a time schedule,
he was to fill the gasoline tanks and the crank cases with oil of the trucks
belonging to the respondent and was to do likewise with respect to the auto-
mobiles of the respondent's officials. Jones joined the Union when it "first
passed cards" about June 1945.
In September 1945, Green asked Riley to change him from the afternoon shift
(3 p. m. to 11 p. m.) to the morning shift (7 a. in. to 3 p. m.). Riley refused to do
so. Thereupon Jones told Riley he was leaving the respondent's employ because
he did not want to work on the second shift. He did so on or about September 2.
Green then obtained a job elsewhere.
According to Jones, the Saturday after he quit the respondent's employ he
returned to get the money due him; that he saw Riley who had his check ; that
Riley gave him his check and then asked him to return to the respondent's employ,
saying that he was in need of his services and was unable to put anyone else on
Jones' job; that he told Riley he would not return unless he could have the morn-
ing shift; that Riley then said he would speak to the fireman on the morning
shift and try to induce him to change to the afternoon shift ; that he saw Riley
a few days later and Riley told him that he could have the morning shift ; and
that he returned to the respondent's employ the following day.
About 10 o'clock in the morning of October 4, Green went to the office of Burns,
Sr., in order to arrange for the delivery of a ton of coal. While there, according
to Green's undenied and credible testimony, the following ensued :
38 See footnote 1.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Well, he told me, he said, "Well, I'll order you as much coal as you can
pay for Saturday." And I said, "Mr. Burns, if that is all you can get, I
will just wait until Saturday, and I can get some Saturday myself." He
said, "Well, Green," he say, "I would order you some coal, but I know you
is one of the union men. All the Union men I ain't going to do nothing else
for you." He said, "Now, ain't you one of them union men?" I say, "Yes,
I did join." He said, "You signed a card. You ain't joined." I said, "Well,
I signed a card." He said, "Well, you didn't know what you was doing, did
you?" He said, "Didn't somebody fool you in it?" I said, "No, sir, nobody
fooled me in it." He said, "Why did you join?" I said, "I joined because
I thought it would better my condition." Then he reached over on his
little table and got a magazine-I don't know what kind of magazine, but
it was a magazine, and he began to show me some pictures what all the
strikes there were. He showed me all through that. He said, "I'll tell you
about this union. This union is just a mess. Some folks come in from
out of the state to get your money. That ain't going to help you any.
First thing they are going to do is call a strike. That's all a union is for,
to cause trouble. They has caused trouble wherever they have been. That's
all they've done is call strikes. Of course, I ain't mad-I ain't mad at
you, but you are going to find you ain't done nothing to help yourself."
And I said "Well. Mr. Burns, I hope that I will find out, but still I think
that I was correct." That's all he said to me.
According to Green, Burns, Sr., came to the kiln about 2 o'clock that after-
noon and instructed him to "gas and oil" his car ; that while Burns, Sr., was
that, despite the blowingspeaking to him, the kiln horn commenced to blow ; 27
of the horn, he left the kiln to carry out the instructions of Burns, Sr., because
Riley had told him on a number of occasions to cease what he was doing when
Burns, Sr., gave him orders to do something else ; and that Riley
came out while I was gassing Mr. Burns' car that same day, and asked me,
"Green," said, "don't you hear that horn blowing for that car to get in on
the kiln?" I told him, "Yes, sir." He said, "How come you ain't putting
it in?" And I said, "Well, Mr. Burns told me to fill up his car with gas
and oil it." I said, "You have told me many times that whatever Mr.
Burns, Sr., told me to do, for me to go and do that, no matter what I was
doing because he was over me and you and all the rest of us." And he
said, "Well, where is Mr. Burns?" And I said, "I don't know, sir. He
went through the plant that way. I don't know where he went." So Mr.
Riley went on behind, went on the way Mr. Burns went.
Jones further testified that at quitting time that day, the following ensued
between Riley and him :
He told me, he said, "Green," he said, "I hate to do it, but I got to let you
go." I said, "What? What's that, Mr. Riley?" And he said, "Well, the last
car you put in went in ten minutes late, and those cars they got to be in on
time. I got to let you go." I said, "Well, Mr. Riley, you know why that was
late. I was out there putting gas and oil in Mr. Burns' car." And he said,
"But you ought to went and put the car in." And I said, "You told me your-
self whenever Mr. Burns told me to do anything, to do that." And he said,
27 The kiln was equipped with a horn which would automatically blow when the kiln
was ready to receive another car of bricks . All the cars in the kiln would stop when the
horn blew and they would go again only when another car was put into the kiln.
BURNS BRICK COMPANY 417
"Yes, but they just got to be in on time :' He said, "I just got to let you go."
So that was all he said to me then.
Riley testified that when Jones quit the employ of the respondent in September
1945 , he did so without giving advance notice ; that he did not know that Jones
had quit until he returned one day for the pay due him ; that when he gave Jones
his pay check , Jones asked for his job back , saying that the respondent's pay was
higher than what he was receiving at his then place of employment . He further
testified that he never asked Jones to return after Jones had quit . For reasons
hereinafter set forth , the undersigned accepts Jones' version about quitting his
job and later returning to the respondent 's employ, and rejects that of Riley.
Regarding Jones' discharge, Riley testified that when he heard the kiln horn
blowing, he "stood by and waited and hunted and hunted him [Jones], for I
don't know exactly how many minutes it was, and I finally wound up by putting
the car in there myself . . ." He also testified that he had a great deal of
trouble with Jones, before and after Jones had quit in September 1945, because
Jones would habitually put a car into the kiln late , and that he had warned him
several times that if he did not put the cars into the kiln on schedule he would
have to discharge him, but "it looked like the more I talked to Green, the worse
he got." He further testified that Jones was not putting gasoline or oil in the
automobile of Burns, Sr ., while the horn was blowing for if he were he would
have seen Green. Riley denied that he had instructed Jones to cease whatever
work he was doing in order to carry out the instructions of Burns, Sr.
Regarding Jones, Burns, Jr., testified that he had complained to Jones about
10 o'clock the morning of his discharge that he was not putting the cars into the
kiln according to schedule. He further testified that Jones was very lax about
keeping the cars moving on schedule and that he had informed Jones many
times that he had to do better work. Jones denied that anyone ever complained
to him about his work. He also denied that he had seen or spoken to Burns, Jr.,
on the day of his discharge. He testified that after speaking to Riley at the
gasoline pump on the afternoon of his discharge he returned to the kiln and put
a car into it.
The respondent lays great stress upon the fact that great damage is caused
the brick that is in kiln if the cars do not move on schedule . If that be so, then
Burns, Sr., was at fault for ordering Green to leave his post to put gasoline into
the gasoline tank of his car . Jones testified that when Burns, Sr., instructed
him to put gasoline and oil in his car, the horn started to blow . Burns, Sr.,
had ample opportunity to refute this portion of Green 's testimony , if Jones
did not testify truthfully . Burns, Sr., however , elected to remain mute.
Burns , Jr., and Riley did not impress the undersigned as credible witnesses.
In a great many instances , with respect to material issues, their testimony
is not only in conflict with the documentary evidence, but their own testimony
is in conflict with each other ' s. For example , Riley testified that he was un-
aware of the employees ' union activities until shortly before the election of
January 1946 , whereas Burns, Jr., testified he addressed the supervisors and non-
supervisory employees early in October 1945. Burns, Jr., also admitted that
on a good many occasions prior to the election , he and Riley spoke with each
other about the union activities of the employees and that they "speculated"
as to which employees were or were not members of the Union. There are
other instances in the record wherein Riley 's testimony clearly indicates that
the testimony of Burns, Jr., was not in accord with the true facts . On the day
of Jones' discharge , Riley noted on the kiln chart that "this car was put in
22 minutes off schedule ." At the hearing , Riley admitted that the car was put
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the kiln about 10 minutes late. This admission was made after Riley
was confronted with a chart, which clearly showed the number of minutes late
the car was put into the kiln. Furthermore, the credible evidence indicates that
the other two firemen quite frequently put cars in late. When questioned about
those incidents, Burns, Jr., testified that satisfactory explanations were always
given him by those firemen for the cause of the lateness. Jones, on the other
hand, was a forthright and honest witness. The undersigned finds that Jones'
version of what took place on the day of his discharge to be substantially in
accord with the facts. The undersigned further finds that Green Jones was
discharged on October 4, 1945, not because he neglected his work, but for the
reason that lie was a member of the Union.
The day following his discharge, Jones consulted Frank Allen, who telephoned
Riley and requested him to reinstate Jones. The record does not disclose
what Riley replied. However, the next day Jones returned to the plant but
was escorted from the premises by Riley and Burns, Jr, the latter saying to
Jones, "Now, you get the hell off of my property, and don't put your damn
[feet] on it any more."
Janes Proctor was one of the respondent's oldest employees, in point of
service. He joined the Union in July or August 1945, and was appointed a
shop steward. Besides being a steward, Proctor also solicited and obtained
members for the Union. Proctor's union membership and activities were well
known to the respondent for, according to his undenied and credible evidence,
both Burns, Jr., and Riley asked him on numerous occasions to relinquish his
steward's position saying that if he did as requested "they would be good
to" him. On one occasion Proctor told Burns, when the latter asked him to
forsake his union activities, "Of course, I am a Negro. It is like this, big boss.
My procedure is going on with the Union." On one occasion when Riley advised
Proctor not to be "so hard-headed" and to abandon his union activities, he
replied that he "was going right on" with them.
According to Proctor, during the forenoon of October 29, he complained to Riley
twice that the transfermen were preferring the other brick setters over him by
giving them more bricks than they were giving him; that when lie asked the
transfermen why they were not giving him the same number of bricks they
were giving the others, they referred him to Riley ; that he told Riley he "could
not make his time" and therefore he was not earning as much money as he
should ; that each time he protested to Riley, the latter would ignore his pleas ;
and that late in the afternoon of that day, he went to Riley, who happened
to be with Burns, Jr, and the following then ensued :
After all the setters had finished work, I went to him (Riley) as an
employee to recognize his foreman, and said, "Mr. Gene, just a minute."
Him, and Mr. Henry Burns, Jr., was together. Just came out of Mr. Henry's
office. He stopped, and I walked to him, and I said, "You never give me
my service today." And he said, "Why do you say that?" I said, "Because
you never have."
He said, "I did the best I could." I said, "No, sir, you have not did
the best you could." He said, "If you are not satisfied, you can quit the
damn job." I said, "I can quit the damn job." So I went on to the wash-
room, and changed clothes.
Proctor further testified that the following morning he returned to the plant
and told Burns, Jr., that he "came back to finish my cars, finish my work" ; that
Burns, Jr., replied, "Well, I'm sorry, but James, you can't work here no damn
BURNS BRICK COMPANY 419
more" ; and that after he received the pay due him, Burns, Sr., said to him,
"James, I'm sorry it happened this way, you have been with us a long time,
and I likes (sic) the way you works. (sic) You have given us good service.
But Gene (Riley) don't want you to work here anymore."
Regarding Proctor's discharge, Riley testified that several times on October 29,
Proctor complained to him that he was not receiving sufficient bricks from the
transfermen so that he could "make his time" ; that each time he informed
Proctor that the transfermen were new and inexperienced and therefore they
were slow in their work but they were giving Proctor as many bricks as the
other setters were receiving ; that toward the end of the shift, Proctor came to
him angrily and, in the presence of Burns, Jr, again complained about the dis-
criminatory treatment he was receiving, and then said that he had another job;
and that when he replied, "Well, James, you had better go and take your other
job," Proctor walked out of the plant after using vile language to him. He further
testified that the following day, Proctor came to him and "wanted to beg my
apologies, and I wouldn't accept" them ; that shortly thereafter Burns, Sr., and
Proctor approached him, and the former asked him what was the trouble between
him and Proctor; that after informing Burns, Sr., regarding the facts of the
dispute, he said to Burns, Sr., "there wasn't room enough on the plant for me and
James both" ; and that closed the Proctor incident so far as he was concerned.
The testimony of Burns, Jr., regarding the remarks allegedly made by Proctor
to Riley on the afternoon of October 29, are, in the main, substantially the same.
The undersigned finds that Proctor's version of what took place on October 29
to be substantially correct. The respondent, in an effort to support its contention
that the transferinen were supplying Proctor and the other setters that day with
an equal amount of bricks, introduced in evidence the work sheets of the setters
for that day. These documents only indicate the number of bricks each setter had
"set" that day. However, they do not show the amount of work each setter had
performed prior to Proctor's leaving the plant that day and therefore they do
not reflect a true picture as of the time of Proctor's final complaint, and hence
are unconvincing and unsatisfactory proof.
The undersigned is convinced, and finds, that the respondent's contention that
Proctor's membership and activities in behalf of the Union played no part in its
determination to discharge Proctor, and its subsequent refusal to reinstate him,
is unsupported by the credible evidence. That Proctor did not resign his job
of his own free will and accord but was, in effect, forced to do so on account of
his Union membership and activities is evidenced by the combination of the fol-
lowing: (a) he became a shop steward and actively solicited his co-workers to
join the Union; (b) Riley and Burns, Jr., knew he was a shop steward and each
of them often asked him to abandon the Union and each time he refused to do so,
despite the veiled threat that if he did not forsake the Union they would no longer
"be good to" him he still continued his membership ; (c) he was in the respondent's
employ for about 10 years, was a good worker, and no one ever complained about
the way he performed his duties ; (d) Riley well knew that by preventing Proctor
from "making his time" he would induce Proctor to leave the respondent's employ ;
and (e) the respondent's general hostility toward the unionization of its em-
ployees as demonstrated by its other unfair labor practices. Under the circum-
stances of this case, the undersigned finds that Riley's proffered "take it or leave
it" proposition to Proctor was tantamount to a discharge, inspired by Proctor's
817319-49-vol. 80-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership and activities in behalf of the Union 2' In addition, the undersigned
finds that Proctor was not only constructively discharged but was refused rein-
statement in violation of Section 8 (3) of the Act, thereby entitling him to rein-
statement with back pay "
Lewis Simmons, James Davis, and Lemoye Hicks were employed by the
respondent for many years prior to their discharges on January 14, 1946,0 as
brick backers. Each of them were members of the Union and active in its behalf.
Simmons was a shop steward for 4 or 5 months immediately prior to his discharge.
Their activities on behalf of the Union were known to the respondent for the
respondent knew that Simmons, Davis, and Hicks were close personal friends
and had every reason to believe that if Simmons was a shop steward of the
Union, Davis and Hicks would be a member thereof. Burns, Jr., and Riley each
admitted that they kept the union activities of the employees under close scrutiny
in order to ascertain who were union members. They also admitted "speculating"
as to who were members. It is therefore safe to assume, and the undersigned
does, that the respondent knew that Simmons, Hicks , and Davis were members
of the Union. Moreover, according to the credible testimony of Thomas Hall,
Burns, Jr., told him, sometime prior to their discharges, that he knew that
Simmons and Hicks "were trying to get the Union in there." Regarding a
conversation he had with Burns, Jr., with respect to the Board-conducted elec-
tion, Hall quotes Burns, Jr., as saying "all of them about vote for the Union,
he was going to run off, going to turn them off. They won't have no job, and
they won't do no more favor for them wouldn't [pay] the doctor bill and the
wood bill . . ." Hall further testified that Burns, Jr, then "Asked me did Lemoye
[Hicks] and Simmons try to get the Union around there, and I told him I didn't
know. I told him I didn't known whether they was or no. And he asked me
again, I told him I hadn't heard." Hall also testified that after the discharge of
Simmons, Davis, and Hicks, Burns, Jr., again asked him if what he had heard
about the Union, that he replied that he had not heard anything, and that Burns,
Jr., then said, "Well, I done got Lewis Simmons and this other boy 81 away from
28 See Matter of East Texas Motor Freight Lines, 47 N. L. R. B. 1023, enf'd 140 F. (2d)
404 (C. C. A. 5) where the Board said on page 1029 "although each of the employees re-
signed, an employee who resigns because he is given to understand that his employer's
hostility towards his union membership will adversely affect his future conditions of em-
ployment, has been discriminated against within the meaning of Secton 8 (3) of the Act.
Such a resignation is tantamount to a discharge." See also Matter of Federbush Co., Inc.,
34 N. L. R. B., 539; Matter of Chicago Apparatus Company, 12 N. L. R. B. 1002, enf'd 116
F. (2d) 753 (C. C. A. 7) ; and The Alexander Milburn Company, 62 N. L. R B. 482. The
instant case is distinguishable from Matter of St. Joseph Lead Company, 65 N. L. R. B. 439,
where the evidence did not disclose, and no contention was made, that the alleged dis-
criminatee, Ratley, quit because he was under the apprehension that he would be discharged
anyway for union activities. On the contrary, the majority of the Board pointed out that
the respondent persistently endeavored to dissuade Ratley from resigning. The decision
in that case merely hinged on the majority's (Mr. Houston dissenting in part) determina-
tion, that the resignation was not caused by intolerable conditions discriminatorily imposed.
"Unlike the situation in N. L. R. B. v. Waples-Platter, 140 F. (2d) 228 (C. C. A. 5),
where the Court set aside the Board's back pay order as to employees who had quit rather
than accept discriminatory transfers to other jobs, here the respondent refused to reinstate
Proctor because of his union membership and activities.
90 Simmons was first employed in 1937. He left sometime that year, but returned in
1943, and was continuously employed by the respondent, except for a short period of time
in 1943 when he was in jail, until his discharge. Davis worked continuously from 1941.
Hicks worked continuously from 1942, except for a short period of time in 1943 when
he was in jail.
31 Meaning Hicks.
BURNS BRICK COMPANY 421
there . . . [and] I already hear no more about the Union." With respect to his
conversations with Hall, Burns, Jr ., testified on direct examination as follows :
Q. Did you ever tell Bud Hall that Simmons and Hicks and Davis, now
that they were gone you had not heard any more about the Union?
A. No.
Q. Was anything said about that, and if so, who said it?
A. I remember something about Bud Hall telling me that one time when he
was cleaning out my office.
Q. What was said between the two of you?
A. He was cleaning out the office and just said , "Mr. Henry, it seems
since Lewis Simmons and Lemoye and Davis gone, don 't hear much about
that union no more." I don't remember whether that was before or after the
election.
Q. Did you tell Bud that "You had done got Lewis Simmons and this other
boy away from down here?"
A. No.
The undersigned finds that Hall was a credible witness and that his version of
what was said during the aforesaid conversations to be substantially correct.
In support of its contention that Simmons, Davis, and Hicks were discharged
for absenteeism, lack of work, and poor workmanship, the respondent introduced
in evidence their respective attendance records, certain production records, and
certain lay-off and discharge records. In furtherance of its contention, it also
called as witnesses Burns, Jr., Riley, and Foreman Bronson. The attendance
records show, and each of the above-named witnesses testified, that for a period of
several weeks prior to their discharges, each of these employees worked but a few
days. In justification of their records of poor attendance, during that period,
Simmons, Davis, and Hicks each explained that due to the heavy rains that
occurred at that time the clay pits were flooded and the respondent was unable to
obtain sufficient clay to keep the plant running at full capacity and that the
respondent had no need for the services of the hackers, and hence Simmons, Davis,
and Hicks, among others, were temporarily laid off. This testimony finds support
in the documentary evidence introduced at the hearing by the respondent, which
clearly indicates that for several weeks prior to January 14, 1946, and for a short
period thereafter, the clay pits were flooded and the plant did not work at full
capacity. Moreover, on or about December 24, 1945, one of the kilns got out of
order and was out of commission for about a month. Furthermore, Simmons testi-
fied without contradiction, and the undersigned finds, that during the period com-
plained of he had the permission of former Foreman Cox to remain away from
the plant. Simmons also testified on direct examination that the day after their
discharges, he, Davis, and Hicks saw Burns, Sr., and the following ensued :
... asked him why did he fire us, and he said, "Because you didn't work
last week." I told him Mr. Henry told us we could be off last week and the
week before then, too, because we didn't have any clay, and he said, "I ain't
got nothing to do with that, and if you had come, they would have found
something for you to do." And I told him, "Well, Mr. Henry didn't tell us
to come back unlessen we just wanted to."
Concerning the instructions Burns, Jr., gave the hackers on January 7, Simmons
testified as follows :
... that Monday evening at 5: 30 he (Burns, Jr.) came around the machine
and called all of us in a crowd and told us that the river had over-flooded,
4 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that they couldn't get any clay. Said that he didn't know when we was
going back to work, but he was looking for some clay by Friday. So we went
back that Friday, and he still didn't have no clay, and Mr. Cox told us to
come back Monday, so we come back that Monday, and we worked until
5:30, and that is when Mr. Cox let us go-fired us.
Under cross-examination by respondent's counsel, Simmons testified as follows:
Q. Well, isn't it true that they had this work to be done on the track
down there, and they asked you to come down and help them out, and you
went down there and worked one day and then just left and didn't show
up until you heard that the brick machine was running again, and you
came back and wanted a job?
A. No, sir ; that is not true.
Q. It isn't true?
A. Whenever the brick machine run, Mr. Cox kept me on the belt.
Q. There were five days just before your employment terminated down
there that you didn't work ; it that correct?
A. Well, that was when they had the clay shortage.
Q. In other words that was because there wasn't any work available;
is that what you say?
A. You mean the five days before they laid me off?
Q. Yes, sir.
A. That was because they didn't have any clay.
Q If you would have come to work, would you have worked and made
money?
A. When I come to work?
Q. Had you come to work during those five days, was there any work
there for you?
A. I don't know, sir. He had a few of them that knew something about
the machine work.
Q. Why didn't you come back and check yourself?
A. I did come that Friday. Mr. Cox said there wasn't anything for
us to do.
Q. And the following Monday I believe you came back?
A. That's right.
Q. You worked that day, and that was the day that you were let off?
A. They was the day they fired me.
Q. Fired you or let you off or laid you off.
A. It was one of them.
He also testified on re-direct examination , as follows :
Q. (By Mr. Martin.) What if anything did Mr. Henry say to you about
going down to the track and working?
A. Well, he didn't say anything to me about going down there. One day
Mr. Cox told me Mr. Henry wanted me to go down to the swamp with him,
and I went with him that day ; said, "We're just going to do this today
because the machine can 't run, but the machine is going to be running next
week or tomorrow, one." Said, "And you can get back on the belt."
Q. Was anything else said about going down to the track?
A. No, sir, not to me, didn't mention it to me no more.
Regarding the above-described incidents , the testimony of Davis and Hicks is
substantially the same.
BURNS BRICK COMPANY 423
Burns, Jr., testified that Simmons, Davis, and Hicks were discharged because
the respondent had an "over abundance" of employees, and these three employees,
among others, were selected for discharge because they were the less desirable
for the reason that they remained away from the plant without permission
a great deal and that their workmanship was poor. Bronson testified that he
quit the respondent 's employ sometime in 1945, not only on account of the
absenteeism of Simmons, Davis, and Hicks but because when they were working
their work was unsatisfactory. Riley, while admitting that he had nothing
to do with their discharge, testified that Simmons, Davis, and Hicks were not
"worth the salt that goes in their bread."
The respondent' s main complaint against Simmons, Davis, and Hicks seems
to be that each of them remained away from work too often. No evidence, how-
ever , was introduced that these employees remained away from work more than
any other employee. On the contrary, there is an abundance of credible testi-
mony given by various employees that other employees remained away from
work without permission more often than either Simmons, Davis, or Hicks.
In fact, Riley admitted that there was "quite a bit of laying off" without per-
mission and that when one of the employees "takes a notion to lay off, there is
nothing to make them come in." It cannot be said, moreover, that, because
Simmons, Davis, and Hicks worked but a few days during the 3 or 4 week period
immediately prior to their discharges that they were habitual absentees. Fur-
thermore, the contention that their work was unsatisfactoy is refuted by the
fact that they were in the respondent's employ for many years without ever any
complaint being brought to their attention. When Davis and Hicks were
arrested and jailed for being connected with the theft of some gasoline belonging
to the respondent, the respondent obtained their releases and rehired them.
Furthermore, Simmons testified that "lots of times" during 1945, former Fore-
man Bloodworth, Cox and McMillan praised his work. Regarding Riley's com-
ments about his work, Simmons testified , and the undersigned credits his
testimony , as follows :
. . . One day in '45-I don't know exactly what month it was or when it
was. He (Riley) called us around there to the continuous kiln, and told
us that we was making bad bricks, and I told him that they-the reason
was they had us working too fast, and he said, "Well, Lewis, I am not
talking to you. I hate to say it, but you is the best hacker over here. You
is the best worker over here." Said he and Mr. Henry was talking about
my work the other day. Said, "We was just sitting over there looking
at you."
Under the circumstances of this case, the undersigned is convinced, and finds,
that Simmons, Davis, and Hicks were selected for discharge because they were
members and active in behalf of the Union and not for the reasons advanced by
the respondent. This finding is buttressed by the combination of the following:
(1) When the three were discharged Cox called them aside and told them
that he had nothing to do with their discharges, but that he had been instructed
that day by Burns, Jr., to let them go and he then suggested that they see Burns,
Sr., the next day and see if he would put "you back to work and tell him you
will be willing to do anything lie wants you to do. You will be willing to go
his way, but when you tell him that don't tell him that I told you all that
[Burns, Jr.] fired you because I want everyone to think I am the one that fired
you." The next day, the three of them asked Burns, Sr, why they were dis-
charged and he said because "you didn't work last week" to which Simmons
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied , "Well , Mr. Henry didn 't tell us to come back unlessen we just wanted
to"; (2) during the forenoon of the day they were discharged , Burns, Sr.,
according to the undenied and credible testimony of Wiley Jones, said to
the employees of the machine room, to quote Jones, "Boys , I been talking
to you-all but it seems like talking don't do us good, but I am going to talk
this morning . . . The river is up , we can't get no clay , and I am going to
cut off a bunch of you this evening . Some of you is for the company , and some
is against , and we know it ... We are going to cut off some all during the
day. This evening when you knock off, your bossman will tell you who is
going to work and who isn 't"; (3) the remarks of Burns, Jr., to Hall, as set
forth above, concerning Simmons, Davis , and Hicks ; (4) the rehiring of Alberta
Clayborn and Tommie Lee who were laid off with the other hackers the day
after Simmons, Davis, and Hicks were discharged and rehired a few days
later after Lee and Clayborn had assured Burns, that they "didn 't know any-
thing about the Union";22 and ( 5) the respondent's general antipathy and
hostility toward the unionization of its employees.
Raymond Kirby was employed by the respondent as a "dry house puller,"
except for a short period, from 1939 to February 5, 1946, the day of his dis-
charge. When he was first employed his wages were 25 cents per hour. At
the time of his discharge he was receiving 55 cents per hour . Kirby's ability
to perform his work satisfactorily is not in dispute. He joined the Union soon
after its inception and became very active in its behalf . He solicited members,
especially from among the new employees , and attended all the meetings of
the Union . On the day prior to the Board-conducted election , both Burns, Jr.,
and Riley asked him how he intended to vote and he replied that he had not
decided which way he would vote.
Riley testified that he discharged Kirby on February 5, after the following had
transpired : the setters were standing idly by near the drier waiting for the
bricks with which Kirby was to supply them ; that he looked for Kirby, whose
duty it was to pull cars from the drier so that the setters could obtain the bricks ;
that he asked one of the employees , Berofus Waller , to look for Kirby ; that
Waller reported in about 30 minutes that he was unable to find Kirby ; that he
then put Waller "to pulling the drier " ; that another employee unsuccessfully
searched for Kirby ; that he asked Foreman Smith if he had seen Kirby and
received a negative reply ; that he then searched for Kirby and when he was
unable to find Kirby he "pulled" the drier himself ; and that when Kirby reap-
peared he asked Kirby where he had been and "the onliest thing he could give
me was he was on the brickyard , and I never could get an answer or couldn't
make him tell me where he was, and so I put Berofus Waller pulling the drier
directly at that time." Kirby testified that at the time Riley was attempting to
locate him he was repairing the cables in certain tunnels of the drier and also was
repairing some minor damage in certain other tunnels ; that when he returned
to the front of the drier , where he performed his regular task of pulling the cars
from the tunnel , Riley saw him with tools in his hands ; and that Riley did not
inquire where he had been but informed him that he was discharged. Kirby
further testified , and the undersigned finds, that one of his duties was to repair
cables and to repair minor damages of the tunnel . The undersigned is mindful
of the testimony of Foreman Smith that repair work was not one of Kirby's
duties. Smith is the maintenance foreman and hence was not familiar with
Kirby's duties. Riley, who was Kirby 's boss, did not testify that Kirby was not
82 Other hackers were reinstated at the same time Clayborn and Lee were.
BURNS BRICK COMPANY 425
instructed to make minor repairs or to fix cables. Furthermore, according to the
credible testimony of Sandy Grier, who at one time worked as a "drier puller,"
it was one of the duties of the "drier puller" to fix the cables and make minor
repairs to the tunnels so that the cars in the tunnels would continue to move.
He further testified that he had repaired as many as 5 to 10 " wrecks" a day and
that it was an almost daily occurrence to have to fix a broken cable or to repair
a "wreck."
Waller testified that on Riley's instructions he searched for Kirby by looking
"around in the front there where he was supposed to be, and looked down in the
shop." He also testified that when he reported his inability to find Kirby, Riley
instructed him to take over Kirby's job and as he "started pulling good" Kirby
appeared and Riley walked away from the drier with Kirby. According to
Kirby's credible testimony he was in the rear of the drier repairing the damages
and fixing the broken cables.
The undersigned finds that Kirby's version of what transpired on the day of his
discharge to be substantially in accord with the facts. The documentary evi-
dence reveals that the setters had finished their daily work prior to the time
Riley commenced to look for Kirby. Moreover, James Douglas' credible testi-
mony that he saw Kirby in one of the tunnels of the drier, at the same time
Riley was looking for Kirby, that he told Kirby that Riley wanted to see him, and
that Kirby thereupon came out of the tunnel and went to where Riley was, sub-
stantially corroborates that of Kirby's. The undersigned further finds that Riley
seized upon his inability to locate Kirby that afternoon as a pretext to rid the
plant of an active Union member and that Kirby was discharged solely for that
reason.
Wiley Jones was continuously employed by the respondent as a brick setter
from 1937 until his discharge on July 17, 1946. Admittedly, Jones was a good and
conscientious worker. He joined the Union in May or June 1945, and imme-
diately became one of its most active members. He secured about 20 members,
was a Union observer at the Board-conducted electiton, and attended practically
all the bargaining conferences between the respondent and the Union.
The respondent contended at the hearing, and in its answer, that Jones
voluntarily quit its employment and that it did not discharge him. As early as
May or June 1945, Burns, Jr., advised Jones and about five of his co-workers
not to join the Union. According to Jones' undenied and credible testimony,
Burns, Jr., said at that time, "Wiley, you boys, I learn't you-all is trying to get
a union here, and I am going to advise you-all not to have anything to do" with it.
"Some big man from the North coming down here and get a big pile of money and
leave you here just like he found you. I advise you-all not to have anything to do
with that gang." Again in December 1945, Jones was advised on two separate
occasions by Burns, Sr., and Burns, Jr., to withdraw from the Union and to
speak to the other employees and try to "keep them from joining the union."
About the middle of January 1946, Jones was called into the office of Burns, Sr.,
and informed by him that he had knowledge that Jones was "trying to get a
union" in the plant because "a man that has been going to the [Union's] meetings,
and told me." Burns, Sr., refused to name his informer when Jones requested
him to do so , but told Jones that he wanted Jones to pay the money he had
borrowed from the respondent because Jones "was trying so hard to get a union"
89 Robert Bailey, who at one time worked as a "drier puller," testified , and the under-
signed credits his testimony, that he often repaired broken tunnel cables and that occa-
sionally it took as long as 30 minutes to repair a cable.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the plant. The discussion finally concluded with Burns, Sr., warning
Jones that he would have to pay his loan in full if the Union succeeded in its
organizational campaign.
Despite the advice given him by Burns, Sr., and his son, Jones persisted
with his union activities. He was selected as a Union observer at the Board-
conducted election, which met with Riley's displeasure, for Riley, in the presence
of Burns, Jr., requested Johnny Thompson to "get Wiley out" of the polling
place. The day after the election, Riley said to Jones, "I want every damn one
of you to bring your dinner with you to-morrow . . . If you are to be a minute
late, don't damn come. If you are going to be late, don't in the hell come."
In June, Jones reported to work late. He was detained because he was
attending a bargaining conference with the respondent and had thereafter
attended to a personal matter. When he reached the plant, he was met by
Riley and Burns, Jr, and the former said to him, "Wiley, you don't work half the
damn time, you walk the streets half the damn time." Jones then said that he
had been requested by the Union to attend a bargaining conference. Riley then
refused to allow Jones to work that day and sent him home after saying "Why
do you fool with them. Tell them to mind their own damn business."
On Tuesday, June 5, Jones distributed Union buttons to the members. Riley
admitted that he made inquiries of about five employees in order to ascertain
who was the distributor of the buttons. He stated that his inquiries brought no
results. At the conclusion of that day's work, Riley said, "Wiley, I don't have
anything for you to do two days this week. Come back Friday " The respondent
contended that Jones was laid off those 2 days because only one kiln was in opera-
tion and hence it was obliged to lay off some employees and that Jones was one
of those selected. The kiln at which Jones was working, however, was not the
one shut down, and Jones' job was given to another employee. No satisfactory
reason was given at the hearing for laying off Jones and putting another man in
his place. Despite Riley's testimony to the contrary, the undersigned finds that
Riley was successful in ascertaining who distributed the buttons. The under-
signed is also convinced, and finds, that Jones was laid off on June 6 and 7, because
of his Union membership and activities, including the distribution of the buttons.
This finding is buttressed by the fact that this was the first time during Jones'
long period of service with the respondent that he was laid off and another
employee put on his job.
On July 17, the State of Georgia held its first gubernatorial primary at which
colored people were permitted to participate. On July 16, Jones, accompanied
by Waller, told Riley that one of the Union's representatives had suggested that
he request that the colored employees be permitted to leave work early the next
day in order to vote, because, as Jones testified he told Riley, many colored em-
ployees who attempted to vote at the sheriff's election, which was held shortly
prior to the gubernatorial primary, were unable to vote, because they arrived at
the polling place too late. According to Jones, Riley said, after some discussion,
"I'll tell you what we will do . . . tell all the boys to come in here and start
work at 6 o'clock [instead of 8 o'clock], and at 12 o'clock, if you are going to be
off, I will make arrangements for you-all to go to the poll and vote."
Wiley and the other setters arrived at the plant at 6 o'clock on the morning
of the 17th. By about 12: 30 in the afternoon Jones had "set" about 8,000
bricks " He then went to Riley and, according to his testimony, the following
ensued:
24 The normal daily "task" of the setters is 10,000 bricks.
BURNS BRICK COMPANY 427
Q. Did you work with Mr. Riley, then , on election day?
A. Yes, sir.
Q. About what time of day?
A. It was at 12: 30 . I got through along about a quarter to 1. I went
to him.
Q. Tell us what was said.
A. I said, "Mr . Riley, will you check me out, please sir ?" He said, "Did
you get done ?" I said, "No, sir ." I said, "I lack 2,000 to get out."
He said, "You can't go until you get the other 2 ,000." I said, "Mr. Riley,"
I says, "You ain't got no bricks pulled. It will take them at least an hour
and a half to get cool."
He said , "You sid down and rest. You been doing it. Sit down until they
are finished ." I said, "You have plenty of cars to run you until in the
morning."
He said, "I ain't going to let you run this damn job. Before I would let
you run this damn brick yard, I would shut it down ." I said, "I ain't trying
to run it."
He said, "You can go now, if you want to, but you'd better not come back."
Q. How about the other people?
A I said, "How about the other boys , Mr. Riley? They want to go to the
poll, too." He said, " I mean if any of you go away from here, I mean dam-
mit, all of you stay and don't come back." So I went on.
Jones also testified on direct examination regarding the events which took place
the next clay , as follows :
Q. When you went back to work the next day, did you talk with Mr. Riley?
A. Yes, sir.
Q. What did he say, and what did you say?
A. He passed by me , and didn't say anything , went on down in the machine
room, and got Mr. Smith and another white fellar.
Q. Who is Mr . Smith?
A. Superintendent of the machine room down there. And he walked back
by where I was with both hands in his pocket.
Q. Anybody with him?
A. Mr. Smith and another fellar. He said, "Wiley, what did I tell you yes-
terday?" I said, "You told me not to come back, but you said if all of us
go to the poll , not to come back." After I left three men went to the polls
and voted and come back.
Q. Who were they?
A. Joe Morris, Ogden Hansford , and Willy Hansford.
Q. Go ahead.
A. And I said, "You let three men go and vote and come back, and I
figured that I had rights to come back , too." He said , "Who told you to
come back?"
I said, "Mr. Ross and Mr. Allen told me to come back." And Mr. Riley
said "get your clothes and `git'."
I said, "What are you doing Mr. Riley, you firing me?" He said , "No, you
are firing yourself ." He said, "I want you to get your clothes and go over the
`hill' and never come back."
I said, "Would you mind paying me off?" He said, "Come back Monday
and get your pay before noon."
4 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ogden Hansford testified that he reported at 6 o'clock on the morning of July 17,
and at about noon that day he asked Riley to allow him to leave the plant to vote.
Regarding this conversation Ogden Hansford testified as follows :
He told us he wanted us to get a task, and I said I would be glad to get
my task , but we was looking to get off at 12, and I didn't have no lunch,
and I told him as soon as I could get to the polls and vote and get something
to eat, I would come back and finish for the day.
Q. What did he say?
A. He said he wanted us to get our day before we left. We told him we
would be glad to, if he had anything for us to do. But we said we would
be back as soon as we got to the polls and voted.
He further testified that he left the plant shortly after the above-described con-
versation accompanied by his brother, Willie, and Joe Morris ; that he had only
"set" 8,000 bricks by noon that day ; that he voted and then had lunch ; that when
he returned to the plant in about an hour, Burns, Jr., asked Riley if Ogden
Hansford had not been told that if he left the plant to vote, "not to come back?"
that before Riley could answer the question, he said, "No, sir, he didn't tell me
that"; that Riley then said, "He ain 't been gone long," and that Burns, Jr., stated
to him, "All right. Go change your clothes and . . . go to work."
Regarding leaving the plant to vote on July 17, Willie Hansford testified on
direct examination as follows :
Well, no more than that that day Mr. Riley came around just about 12
when we were fixing to knock off and go, but starting it was like this :
Wiley went and asked Mr. Riley about us knocking of at 12 to go to vote,
and he come back and said Mr. Riley said he would make arrangements for
all of us to get off at 12 and go at 12 o'clock, and when 12 o'clock comes,
we didn't say anything about it to Mr. Riley. We just knocked off to go
at 12-12: 30 because we didn't finish working at 12, and we knocked off, and
Mr. Riley come around and asked us what us was fixing to do, and we said,
"go to vote," And he said, "You all ain't through with your work." And
there wasn't brick on the dry house pulled out, and so we told him we were
afraid we wouldn't get through in time, and he said that the polls stays open
until 7 o'clock and I said to him about it was-said, "Mr. Riley, it ain't with
us like it is you all. You all are whites, and if you all go back to your jobs,
they would give way to you all and let you all vote, and we was colored.
We had to get in line-don't care how long it was. We had to get in line
and vote when we get there, and if it was night, it was just too late, it was
just too late, and that's all." That's all he said to me about it, so I went on 86
He further testified that he voted, had his lunch, returned to the plant about
3:45 that afternoon, and immediately went to work without being questioned
as to where he had been.
Joe Morris testified that sometime between 12: 30 and 2 o'clock in the after-
noon of July 17, he told Riley he wanted to leave the plant in order to vote;
that Riley said "Why don't you go on and finish your task and then go vote?
You would have plenty of time"; that he replied, "I will make sure of being
in time, and come back and finish the task" ; that he then left the plant, voted,
returned about 4 p. in., and went to work without being questioned by anyone
as to where he had been.
35 On cross -examination , Willie Hansford testified that Riley suggested , during this
conversation with him, that the employees should vote during their luncheon period.
BURNS BRICK COMPANY 429
Riley testified that he told Jones and Waller on the night of July 16, that
if the setters started work at 6 o'clock the next morning they could leave at
noon , provided they finished their tasks; that about 12: 30 on July 17, Jones
came to him and said, he was going to leave the plant to vote ; that he asked
Jones how many bricks he had "set" and Jones replied 8,000; that he said,
"You have got plenty of time to get those two thousand bricks and then vote or
do anything else you please" ; that Jones replied, "I am going to vote now" ;
that he said, "Well, Wiley, now, its this way. If you don't want to do your
day's task what was promised, if you walk off, keep walking" ; and that Jones
then left the plant. He further testified that he said to the other setters if
"any of you want to go" with Jones "go ahead" but if they did go with Jones
they would be discharged, and that the other setters returned to their work.
He also testified that about 1: 30 that afternoon, Ogden and Willie Hansford
returned to the plant and Burns, Jr., said "Riley, here's two more you can
let go"; that Ogden Hansford said that he had voted "on my lunch hour" ; that
he had not known that either of the Hansford brothers or Morris had left the
plant ; and that Morris was at work prior to the return of the Hansford brothers.
Although Riley admitted that he did not know that Morris had left the plant
that day before he checked him out at 6: 30 that evening he, nevertheless, noted
on his time card "off 30 min. during dinner to vote. Started at 6: 30 a.m.-off
6:30 p. m." On Ogren Hansford's time card Riley noted "Started at 6 a. in.
off 6: 30 p. in. Off 30 minutes during dinner." On Willie Hansford's time card
Riley wrote, "Started at 6 a. in. off 30 min. to vote during dinner." On the
time card of Joe Cummings, who "set" but 8,000 bricks that day, Riley wrote
"did not check out last time was seen at 4: 30."
Burns, Jr., testified that when he was at home eating lunch that day, July 17,
Riley telephoned and said that Jones had been discharged; that he returned
to the platn between 1: 30 and 2 o'clock that afternoon and met Ogden and
Willie Hansford as they were coining into the plant; that he asked them
where they had been and they informed him that they ha(i voted; that he
then saw Riley some 40 or 50 feet away ; that he said to Riley "here is two more
you can fire" ; that the Hansford brothers "were very quick to say that they went
on their dinner hour. And they could do what they wanted to do on their dinner
time because they wasn't getting paid for it"; that Riley then looked at his watch
and said, "Yeah, I saw them about thirty minutes ago setting bricks around
there" ; and that he told Ogden and Willie Hansford "all right, get your clothes
changed and get back setting bricks then."
It is evident from the above recital of the facts, and the undersigned finds,
that the respondent was extremely anxious to eliminate Jones from its employ
in order to rid itself of the person whom it suspected of being the most active
leader of the Union and that it seized upon the incident of Jones leaving the
plant on July 17 to fulfill its purpose. The undersigned further finds that
the testimony of Jones, Ogden and Willie Hansford, and Morris regarding
what transpired on July 16 and 17 to be a true summary of the facts and
refuses to credit the testimony of Burns, Jr., and Riley regarding those facts.
By his own admission , Riley permitted Ogden and Willie Hansford to return
to work after they had returned after voting while Jones was refused the
same privilege. According to the credible testimony of Ogden and Willie Hans-
ford, Riley granted them permission to leave the plant and to return to work
after voting.
Upon the entire record in this case , which is replete with credible evidence
of the respondent's determination to forestall the unionization of its employees,
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
most of which evidence is uncontroverted, the undersigned is convinced, and finds,
that Wiley Jones' discharge on July 17, 1946, and the respondent's refusal to there-
after reinstate him, were due to his membership and activities in behalf of
the Union and not for the reason advanced by the respondent.
The undersigned further finds that by discharging Green Jones, James Proc-
tor, Lewis Simmons, James Davis, Lemoye Hicks, Raymond Kirby, and Wiley
Jones the respondent discriminated in regard to their hire and tenure of em-
ployment, has discouraged membership in the Union, and has thereby inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
C. The refusal to bargain
1. The negotiations
On January 24, 1946, in a consent election conducted by the Board's Regional
Director for the Tenth Region among all the respondent' s employees , exclusive
of foremen, other supervisory employees, and office clerical employees, a ma-
jority of the said employees designated the Union as their representative for
the purposes of collective bargaining."
Under date of January 29, 1946, the Union forwarded to the respondent, for
the respondent's approval, a standard form of a contract, covering wages, hours,
and other conditions of employment. Pursuant to arrangements, the parties
met on February 12, in the offices of the respondent's attorneys . Discussion
was had on the Union's proposed contract, but no clauses were acceptable to
the respondent. Toward the close of the conference, the respondent submitted
to the Union's representatives a proposed contract prepared by it. Little, if
any, discussion was had on the respondent's proposed contract because the rep-
resentatives of the Union requested time to study the terms of the respondent's
proposals.
The contract submitted by the respondent at the first conference, reserved
to itself "the right to meet with and discuss any matter pertaining to is busi-
ness with any one of its employees individually" ; fixed the minimum wage at
50 cents per hour for all persons covered by the contract then in its employ;
and fixed the beginners' wages at 40 cents per hour, with periodical increases."
36 At the time of the election, the above-described unit, which the respondent concedes
was, and still is, appropriate for the purposes of collective bargaining consisted of 67 per-
sons Of the 65 valid votes cast at the election, 37 were for, and 28 against, the Union.
Throughout the negotiations with the Union, the respondent never questioned the majority
status of the Union The undersigned finds that, during all the times material herein,
the respondent's employees, exclusive of office and clerical employees and all supervisory
employees with authority to hire, promote, discipline, or otherwise effect changes in the
status of employees or effectively recommend such action, constituted, and now constitute,
a unit appropriate for the purposes of collective bargaining. The undersigned further
finds that on January 24, 1946, the Union was designated by a majority of the employees
in the appropriate unit as their representative for the purposes of collective bargaining.
Pursuant to Section 9 (a) of the Act, it, at all times from January 24, 1946, was the ex-
clusive representative of all the employees in such unit for the purposes of collective bar-
gaining with respect to pay, wages, hours of employment and other conditions of
employment.
37 It is significant to note that in September 1945, the respondent unilaterally increased
the hourly rate for all is male employees from 50 cents to 55 cents per hour and at that
time the pieceworkers were given a slightly higher pay increase . When the Union re-
quested, during the negotiations , that a wage increase be given the employees for whom
it was bargaining, the respondent refused to do so, stating that the September 1945
BURNS BRICK COMPANY 431
The respondent's proposed contract was silent with respect to the clauses of
the Union's proposed contract concerning discussion of grievances with the
Union, seniority, vacations, leave of absences, differential in pay for those work-
ing on the second and third shifts, union security, and the establishment of a
safety committee.
From February 12 to about April 17 or 18, 1946, the parties met on about 15
or 16 separate occasions. At the third meeting, the respondent submitted another
proposed contract which contained the clause reserving to itself "the right to
meet with and discuss any matter pertaining to its business with any of its em-
ployees individually" and the following clause, among others :
The control of products, methods, processes and the right to employ, dis-
charge, promote and discipline , and maintain discipline and efficiency ; to
relieve from duty and lay off employees, to regulate the quality and quantity
of production ; to prescribe the type of work to be done and the place the
employees shall work ; to transfer employees from one department or place
of work or kind of work to another ; to install or remove machinery ; to
increase or change production equipment; to introduce new and improved
production methods, facilities and machinery ; are the exclusive responsibility
of the Company, except that no discrimination shall be made against Union
members solely because of such affiliation.
This contract also contained a job classification clause including a provision out-
lining the minimum and maximum rates to be paid for the various named jobs.
The maximum rates, however, were the same as those then in effect.
On or about February 27, the respondent submitted to the Union some proposed
clauses dealing with the contracts previously proffered to the Union. These
clauses, among others, reserved to the respondent "the right to adjust the sched-
ule of wages as set forth" in its second proposed contract. The proposed seniority
clause grants to the employee with the longest service record preference "for work
or promotion if the most competent in the exclusive judgment of the respondent."
The proposed grievance clause grants to the general manager of the respondent
final decision on all grievances and his decision binding on all parties. The pro-
posed vacation clause grants all persons in the respondent's employ more than 1
year and less than 5 years "one week's vacation in each year with pay for twenty-
four hours of work at their regular base rate, provided they have worked during
such year a minimum of 1900 hours." To those in its employ more than 5 years,
and who worked at least 1900 hours during the previous year, would be given 1
week's vacation with pay for 40 hours of work at their base pay. The next pro-
posed clause reads as follows :
No act of commission or omission on the part of the Company, its officers
or agents, occurring prior to the effective date of this contract shall be made
the basis of any charge of unfair labor practices or the subject matter of any
grievance of any nature whatsoever ; and the Union agrees that during the
life of this contract it will neither authorize nor countenance any work
stoppage, strike or slow-down on the part of the members of Local Union
increase placed the wages of its employees above those paid to the employees of its com-
petitors and therefore it was not financially able to grant a further increase. When,
during the course of the respondent 's negotiations with the Union , the respondent's com-
petitors raised the wages of their respective employees to coincide with the wages paid
the respondent's employees , the respondent then insisted that it would be' detrimental to
its business to raise wages higher than those paid by its competitors.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 843. Any work stoppage, strike or slow-down shall operate to cancel
this contract instanter.
From time to time other proposed contracts, or individual clauses, were sub-
mitted by the respondent. All the proposed contracts, however, contained clauses
objectionable to the Union. Among these objectionable clauses were the wage
schedule, non-strike clause, and the clauses relative to vacations, reserving to
the respondent the right to discuss grievances with individual employees without
a representative of the Union being present, the grievance procedure, and the
prohibition of using past acts of the respondent as a basis of an unfair labor
practice charge. The respondent, while agreeing to withdraw certain of its
demands, remained adamant in its position that it would not execute any contract
with the Union unless the Union would agree to the wage schedule offered by
the respondent, allow the respondent to meet with and discuss grievances with any
employee without a representative of the Union being present, and the clause
prohibiting the Union from using any acts of the respondent prior to the execu-
tion of the contract as the basis of an unfair labor practice charge. At no time
would the respondent grant any form of union security, although the Union pro-
posed various forms of such security. Whenever the Union proposed that the
respondent grant at least a revocable check-off, the respondent would state that
it was against its policy to grant any form of union security and would not recede
that position nor discuss the matter.
In an effort to break the deadlock in the bargaining negotiations, which ended
with the meeting of April 17 or 18, the Union sought to enlist the aid of the
United States Conciliation Service. On at least two occasions, on or about April
19 and 22, the conciliator assigned to the matter met with the parties, jointly and
separately, but without being able to bring the parties in accord. No further
meetings were held by the parties with respect to a collective bargaining contract,
except that the Union's representatives called at the offices of the respondent's
attorney in October 1946, but were unable to arrange a further conference.
2. Concluding findings with respect to the refusal to bargain
The Board and the Courts have been uniformly in accord with the doctrine
that it is the duty of an employer to enter into discussion with respect to collective
bargaining "with an open and fair mind, and a sincere purpose to find a basis
of agreement touching wages and hours and conditions of employment...."
The conduct of the respondent in this case fell far short of this standard.
As found above, Burns, Sr., engaged in a tirade against the Union at the
conference held in the latter part of September or in the early part of October
1945, saying, among other things, that he "was going to do everything in his
power to fight against the Union getting into his plant." Such remarks, made at
a time, as here, when a union is seeking recognition, plainly are the antithesis of an
intention to comply with the obligation imposed by the Act to enter into dis-
cussion with an open and fair mind, and a sincere purpose to find a basis of agree-
ment. The respondent's subsequent conduct, especially its threat to close the plant
if the Union succeeded in organizing the employees, discharging known Union
sa What transpired at this meeting is discussed at length below.
se Globe Cotton Mills V. N. L. R. B., 103 F. (2d) 91, 94 (C. C. A. 5). See also N. L.
it. B. v. Whittier Mills Co., 111 F. (2d) 474 (C. C. A. 5) ; N. L. it. B. V. Prince Mfg. Co.,,
118 F. (2d) 874 (C. C. A. 1), cert. den. 313 U . S. 595 ; N. L. it. B. v. Athens Mfg. Co., 161
F. (2d) 8 (C. C. A. 5)
BURNS BRICK COMPANY 433
members, and engaging in other conduct violative of the Act, clearly demonstrates
that the respondent had no intention of bargaining in good faith. The remarks
of Burns, Sr., to William Kendrick in July 1946, to the effect that if he could
"hold that Union off until January, it won't be no more union," shows that the
respondent was giving, as the Court said in N. L. R. B. v. Athens Mfg. Co., supra,
the Union "a run-around while purporting to be meeting with the Union for the
purposes of collective bargaining." Also illustrative of the inescapable conclusion
that the respondent was "going through the motions" of collective bargaining by
meeting with the Union although at the same time entering the conferences with
its mind "hermetically sealed against even the thought of entering into an agree-
ment with the Unions 40 is the remark which Riley made to James Douglas,
who attended some of the bargaining conferences as a member of the Union's
bargaining committee, on or about May 10, 1946, that Burns, Jr., said he would
not sign any contract with the Union, and therefore the Union should stop bother-
ing the respondent.
Further manifesting the respondent's lack of good faith in its negotiations with
the Union was the respondent's adamant position that it would not sign a con-
tract unless the Union would agree that the respondent would be permitted to
reserve to itself the right to discuss grievances with the individual employees
without a representative of the Union being present ; 41 the adamant position that
the Union contract away its right to strike ; and its adamant position that
the Union may not file with the Board a charge of unfair labor practice based
upon any past actions of the respondent.
The respondent points to the fact that the Union entered into contracts with the
respondent's competitors containing many of the clauses that appeared in the
contract last proposed by the respondent including the same wage scale paid by
the respondent and a no-strike clause 42 and therefore the Union could thus
bargain away the employees' rights to strike or to engage in concerted activities
protected by the Act. Whatever may be said of that argument, the fact remains
that all the Union did in those cases was to agree with other employers not to
engage in certain forms of concerted activities. Such agreements, arising as they
do out of the "give and take" of collective bargaining, may, for aught that appears
in the present proceeding, represent a concession made by the Union for the
employers' agreement on other vital terms of the contract. The action which
the Union took with respect to other employers establishes no basis for a finding
that the Union was not within its rights in insisting upon the employees of the
respondent being allowed their statutory rights to engage in concerted activities.
The right to engage in a strike or to engage in concerted activities is not
derived from contracts. It is a public right established by the Act. To condone
a contractual restriction of that right, not freely entered into, would be to defeat
the very purpose for which the Act was enacted. Obviously employers cannot
90 N. L R. B. v. Griswold Mfg. Co., 106 F. (2d) 713, 723 (C. C. A. 3).
41 This position is per se violative of Section 8 (5) of the Act. As the Court said in
N. L. R. B. v. Highland Shoe, Inc., 119 F. (2d) 218, 221, "Clearly to bargain directly with
one's employees is not to bargain with the designated exclusive representative . . ."
See also N L. R. B. V. Acme Air Appliance Co., Inc., 117 F. (2d) 417, and Medo Photo Supply
Corp. v. N L. R. B., 321 U. S. 678. The Act, moreover, "makes it the duty of an employer
to bargain collectively with the chosen representative of his employees." Medo Photo
Supply Corp. v. N. L. R. B., supra . This obligation being exclusive it exacts "the negative
duty to treat with no other." N. L. R. B. v. Jones & Laughlin Corp., 301 U. S. 1, 44.
Hughes Tool Company v. N. L. R. B., 147 F. (2d) 69 (C. C. A. 5).
42 The clause in those contracts is the usual "no-strike no-lockout" clause.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set at naught the Act by coercing labor unions , as a price of a contract , to dis-
regard the statutory rights guaranteed to the employees they represent.
It is well settled that the Act obligates the employer to bargain in good faith
with the chosen representatives of a majority of his employees with respect to
all matters which affect their wages , hours of employment , and other conditions
of employment . The collective bargaining process is initially one of give and
take in which normally each party yields on certain demands and positions in
order to gain assent on others, thereby achieving a satisfactory compromise.
The adamant position taken by the respondent at the conferences with the
Union with respect to the no-strike clause and the clause prohibiting the filing of
unfair labor practice charges with respect to past acts of the respondent, and
other objectionable clauses, did not evidence a bona fide attempt to come to
agreement with the Union , but on the contrary, evidenced a fixed intention not
to yield, and was well calculated to prevent an agreement from being reached.
The credible evidence clearly shows that this case falls into the familiar pattern
of those in which an employer has entered into negotiations with a mind closed
to persuasion or has insisted upon a union 's compliance with condition precedent
to bargaining . A union may not be required to surrender such matters as its
right to strike or its right to file unfair labor practice charges or its right to
organize employees for collective bargaining or its right to engage in other
activities protected by the Act as a condition precedent to the negotiation of a
contract.
The respondent 's conduct , without consultation with the Union , in granting
a general wage increase in September 1945, at a time when the Union was claim-
ing to represent the recipients of the increases , and in granting the 1945 and 1946
bonuses, the latter being made at a time when the Union was the statutory
representative of the employees , also evidences a complete absence of good faith
and constituted obvious attempts to settle unilaterally matters with respect to
which the respondent was under a duty to deal with the Union"
On the subject of the demand for union security the employer may refuse
to grant the demand but the fact that such a demand has been made does not
entitle him to refuse to bargain with respect thereto, as the respondent herein
did. Whenever the Union proposed some form of union security clause, the
respondent refused to discuss the matter maintaining that it was against its
policy to aid any organization maintain its membership collecting dues for
it, or by any other assistance . Wallace Miller, Jr., one of the respondent's
attorneys , testified that the Union 's representatives called upon him on or
about October 9, 1946, in an effort to obtain a conference with the respondent
and that he told the representatives it would be impossible for the respondent
to meet with the Union for at least 10 days because a fire which had taken
place at the respondent 's plant had caused certain damage with which the
officials of the respondent would be occupied for that length of time having
repaired . Miller further testified that during the course of his talk with the
Union's representatives , they stated that they would accept the contract last
proposed by the respondent provided it contained "some form of maintenance
of membership" clause. No reply was given to this request and no further
meetings were had by the parties.
43 Cf. May Department Stores Co ., etc., v. N. L. R . B , 326 U. S. 376 ; Medo Photo Supply
Corp. V N. L R B, 321 U. S 678; N. L. R B. V. Winona Textile Mills, Inc., 160 F. (2d)
201 (C C A 8) ; Great Southern Trucking Co. v. N L. R. B , 127 F. (2d) 180 (C. C. A. 4) ;
N L It. B v. The S. Frieder and Sons Company, 155 F. (2d) 266 (C. C. A. ).
BURNS BRICK COMPANY 435
The undersigned finds that on or about February 12, 1946," and at all times
thereafter, the respondent refused to bargain collectively with the Union as
the exclusive representative of its employees in an appropriate unit with respect
to rates of pay, wages, hours of employment, and other conditions of employ-
ment and by such refusal interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
D. The alleged unfair labor practices
The complaint, besides other matters, alleged, and the respondent's answer
denied, that for the purposes of interfering with, restraining, and coercing
its employees in the exercise of their rights of self-organization, the respondent
(1) gave a dinner to its employees on Thanksgiving Day 1945, (2) had ministers
or preachers come to its plant and address the employees, (3) forced known
Union members to leave its premises on January 24, 1946, so that they could
not participate in the Board-conducted election, (4) excluded representatives
of the Union from the plant during the balloting on January 24, 1946, and (5)
threatened to discharge employees who left the plant to interview a representa-
tive of the Board.
The evidence with respect to the dinner on Thanksgiving Day 1945, shows
that the respondent had made preparations for this dinner as early as August
of that year, prior, as far as the record discloses, to any knowledge on its
part of the employees' Union activities and the dinner was given to celebrate
the ninth year of the opening of its l:iln. The invitations were extended to
many business men in and about flacon, Georgia, where the respondent's plant
is located, and to the management and employees of several of the respondent's
competitors.
With respect to holding meetings of its employees so that they might listen
to certain ministers and preachers, the evidence discloses that these talks were
held for the purpose of avoiding race riots. At none of the meetings, as far
as the record shows, were any remarks made that could be construed to be
violative of the Act.
On January 24, 1946, Simmons, Davis, and Hicks, who had been discharged on
January 14, attempted to go into the plant. They were forbidden by Burns,
Jr., from entering. They did not explain to Burns, Jr., or to any one else,
including the Board's representative who was conducting the election, that they
desired to vote and were eligible to participate in the election because they were
employees of the respondent, having been discharged in violation of the Act.
The evidence that the employees were refused permission to leave the plant
to interview a representative of the Board reveals that no employee asked any
representative of the respondent for permission to leave the plant to interview a
representative of the Board. Several employees testified that they were denied
permission to leave the plant when they asked permission to see a "union man."
On the day of the Board-conducted election, Frank Allen, a representative
of the Union, was directed by a representative of the respondent to leave the
respondent's premises during the balloting. He left without protesting his
right to stay, if he had any such right, and without consultation with the
Board's official who was conducting the election.
Under the circumstances, the undersigned finds that the evidence is insuf-
ficient to support the allegations of the complaint that the respondent violated
the Act by (1) giving a dinner to its employees on Thanksgiving Day 1945, (2)
4 The date of the first bargaining conference.
817319-49-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having ministers or preachers address the employees at the plant, (3) refusing
to allow known Union members to participate in the Board-conducted election
and ordering them from the respondent's property, (4) excluding a representa-
tive of the Union from the plant during the balloting on January 24, 1946,
and (5) threatening to discharge any employee who left the plant to inter-
view a representative of the Board. Accordingly, the undersigned will recom-
mend that the allegations of the complaint with respect to the aforesaid matters
be dismissed 4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring
in connection with the operations of the respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and, such of them as has been found to be
unfair labor practices, tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices
violating Section 8 (1), (3) and (5) of the Act, the undersigned will recom-
mend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
The respondent in the instant case has not only orally coerced and intimidated
its employees by threatening economic hardship against those who desired
representation in the matters of collective bargaining, and also created con-
ditions of work designed to deprive its employees of their rights under the Act
upon penalty of dismissal, but later has executed these threats as against seven
individual employees by actually depriving them of their economic livelihood by
discharging them from its employ because of their attempt to exercise their
rights under the Act, and for engaging in concerted activities guaranteed by the
Act. These facts conclusively prove the respondent's fixed intent to defeat self-
organization and to deprive its employees of all the rights guaranteed by the Act.
Its violations of the Act indicate the respondent's firm intention to deprive its
employees of those rights by any means available to it. Such disregard for the
fundamental rights of employees as evidenced by the threats, the coercive
conditions of work, and the discharges mentioned above, as well as by the policy
adopted to prevent the employees from enjoyment of the right to bargain
collectively, convinces the undersigned of the ever-present danger of the com-
mission by the respondent of further types of unfair labor practices in the future.
It is therefore recommended, in order to effectuate the policies of the Act and
to deter the respondent from future violations thereof, and in order to make
effective the interdependent guarantees of Section 7 of the Act, thereby pre-
venting a recurrence of unfair labor practices and minimizing industrial strife,
that the respondent be ordered to cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Having found that the respondent has discriminated in regard to hire and
tenure of employment of Green Jones, James Proctor, Lewis Simmons, James
96 The remarks made by Burns, Sr, at the conclusion of the dinner on Thanksgiving
Day 1945, however, are, as found above, violative of the Act.
BURNS BRICK COMPANY 437
Davis, Lemoye Hicks, Raymond Kirby, and Wiley Jones, the undersigned will
recommend that the respondent offer to each of them immediate and full
reinstatement to their former or substantially equivalent positions,46 without
prejudice to their seniority and other rights and privileges. The undersigned
will also recommend that the respondent make Green Jones, Proctor, Simmons,
Davis, Hicks, Kirby, and Wiley Jones, whole for any loss of pay they may have
suffered by reason of the respondent's discrimination against them, by payment
to each of them of a sum of money equal to the amount he would have normally
earned as wages from the date of his discharge to the date of the respondent's
offer of reinstatement, less his net earnings during that period.41
Having further found that the respondent refused to bargain collectively
with the Union as the exclusive representative of its employees in an appro-
priate unit, the undersigned will recommend that the respondent upon request
bargain collecth ely with the Union.
The allegations of the complaint that the respondent by (1) giving a dinner
to its employees on Thanksgiving Day 1945, (2) having ministers or preachers
address the employees at its plant, (3) forcing known Union members to
leave its property and refusing to allow them to participate in the Board
conducted election, (4) excluding a representative of the Union from its property
during the balloting of the Board-conducted election, and (5) threatening to
discharge any employee who left the plant to interview a Board agent, are
not supported by the evidence and, accordingly, the undersigned will recommend
that the complaint be dismissed as to those matters.
Upon the basis of the above findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Union of Mine, Mill and Smelter Workers, affiliated with
the Congress of Industrial Organizations , is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (1) of the Act.
3. By discharging and discriminating in regard to the hire and tenure of
employment of Green Jones, James Proctor, Lewis Simmons , James Davis,
Lemoye Hicks, Raymond Kirby and Wiley Jones , thereby discouraging mem-
bership in International Union of Mine, Mill and Smelter Workers, affiliated
with the Congress of Industrial Organizations , the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
4. All persons employed by Burns Brick Company at its Macon , Georgia,
plant, but excluding all office and clerical employees and all supervisory em-
ployees with authority to hire, promote , discipline , or otherwise effect changes
in the status of employees or effectively recommend such action constitute an
4o In accordance with the Board's consistent interpretation of the term, the expression
"former or 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. R B. 827.
41 See Matter of Crossett Lumber Co., 8 N. L. It. B. 440, 497-498.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit for the purpose of collective bargaining within the meaning
of Section 9 (b) of the Act.
5. International Union of Mine, Mill and Smelter Workers, affiliated with
the Congress of Industrial Organizations, was on January 24, 1946, and at
all times thereafter has been, the exclusive representative of all employees in
the aforesaid unit for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
6. By refusing on or about February 12, 1946, and at all times thereafter,
to bargain collectively with International Union of Mine , Mill and Smelter
Workers, affiliated with the Congress of Industrial Organizations, as the ex-
clusive representative of all its employees in the aforesaid appropriate unit,
the respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (5) 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.
8. The allegations of the complaint that the respondent by (1) giving a
dinner to its employees on Thanksgiving Day 1945, (2) having ministers or
preachers address the employees at its plant, (3) forcing known Union members
to leave its property and refusing to allow them to participate in the Board
conducted election, (4) excluding a representative of the Union from its
property during the balloting of the Board conducted election, and (5) threaten-
ing to discharge any employee who left the plant to interview a Board agent,
are not supported by the evidence.
RECOMMENDATIONS
On the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, the undersigned recommends that the respondent,
Burns Brick Company, Macon, Georgia, its officers, agents, successors and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union of Mine, Mill and
Smelter Workers, affiliated with the Congress of Industrial Organizations, or
any other labor organization of its employees, by discharging or refusing to rein-
state any of its employees or by discriminating in any other manner in regard
to their hire and tenure of employment, or any term or condition of em-
ployment ;
(b) Refusing to bargain collectively with International Union of Mine, Mill
and Smelter Workers, affiliated with the Congress of Industrial Organizations,
as the exclusive representative of all persons employed by the respondent at
its Macon, Georgia, plant, but excluding all office and clerical employees and
all supervisory employees with authority to hire, promote, discipline, or other-
wise effect changes in the status of employees or effectively recommend such
action ;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form, join, or assist
International Union of Mine, Mill and Smelter Workers, affiliated with the Con-
gress of Industrial 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 as guaranteed in Section 7 of the Act.
BURNS BRICK COMPANY 439
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Green Jones, James Proctor, Lewis Simmons, Lemoye Hicks,
James Davis, Raymond Kirby, and Wiley Jones, immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges ;
(b) Make whole Green Jones, James Proctor, Lewis Simmons, James Davis,
Lemoye Hicks, Raymond Kirby, and Wiley Jones, for any loss of pay each may
have suffered by reason of the respondent's discrimination against him by pay-
ment to each of them of a sum of money equal to the amount which he nor-
mally would have earned as wages from the date of his discharge to the date
of the respondent's offer of reinstatement, less his net earnings , during said
period ;
(c) Upon request, bargaining collectively with International Union of Mine,
Mill and Smelter Workers, affiliated with the Congress of Industrial Organiza-
tions, as the exclusive representative of all its employees in the aforesaid
appropriate unit, and if an understanding is reached, embody such understanding
in a signed agreement;
(d) Post at its plant in Macon, Georgia, copies of the notice attached to this
Intermediate Report herein marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after being
signed by the respondent's representative, be posted by the respondent, and
maintained by it for 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 said notices are
not altered, defaced, or covered by any other material ;
(e) Notify the Regional Director for the Tenth Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
action aforesaid.
It is further recommended that the allegations of the complaint that the
respondent violated the Act by (1) giving a dinner to its employees on Thanks-
giving Day 1945, (2) having ministers or preachers address its employees at the
plant, (3) excluding a representative of the Union from respondent's property
during the balloting of the Board conducted election, (4) forcing known Union
membership to leave its property and refusing to allow them to participate in the
Board conducted election, and (5) threatening to discharge any employee who left
the plant to interview a Board agent, 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 coun-
sel 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, Washington 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
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copies of a brief in support of the Intermediate Report. Immediately upon the
filing of such statement of exceptions and/or briefs, 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 per-
mission 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 trans-
ferring the case to the Board.
HOWARD MYERS,
Trial Examiner.
Dated June 25, 1947.
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 in any manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations , to join or assist INTERNATIONAL UNION OF MINE, MILL AND
SMELTER WORKERS , affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS,
or any other labor organization , to bargain collectively through representa-
tives 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 the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the
discrimination.
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 persons employed by us, but excluding all office and clerical employees
and all supervisory employees with authority to hire, promote , discipline, or
otherwise effect changes in the status of employees or effectively recommend
such action.
Green Jones Lemoye Hicks
James Proctor Raymond Kirby
Lewis Simmons Wiley Jones
James Davis
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
BURNS BRICK COMPANY 441
any employee because of membership in or activity on behalf of any such labor
organization.
BURNS BRIG COMPANY,
Employer.
By ----------------------------
(Itepresentative) (Title)
Dated ____------- - __
NOTE : Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.