Crosby Chemicals, Inc.

National Labor Relations Board - Board Decisions

Aug 11, 1958

121 N.L.R.B. 412 (N.L.R.B. 1958)

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears that there has been a misrepresentation of a material fact and
that such misrepresentation has been made by a party that has special
knowledge of, or is in an authoritative position to know, the true
facts 4 The existence of a party in the latter position serves to lend
credence to and impel belief in the statements involved In the in-
stant case, even if we assume for decisional purposes that there was a
misrepresentation of a material fact contained in the Employer's
leaflets, we are unable to find that wage rates represented by the
Employer as being contained in an unnamed competitor's "UAW"
contract was information of the type which the employees believed
was authoritatively known to the Employer or concerning which the
Employer was likely to have first-hand knowledge We therefore be-
lieve that the employees were capable of properly evaluating this elec-
tion propaganda and that their freedom of choice in the election was
not impaired thereby s Consequently, we overrule objection 3 in its
entirety
As we have overruled the objections to the election and as the tally
of ballots shows that the Petitioner did not receive a majority of the
valid ballots cast in the election, we shall certify the results of the
election
[The Board certified that the majority of the valid ballots was not
cast for International Union, United Automobile , Aircraft & Agri-
cultural Workers of America (UAW-AFL-CIO), and that said or-
ganization is not the exclusive representative of the Employer's
employees in the unit found appropriate ]
MEMBERS BEAN and FANNING took no part in the consideration of
the above Supplemental Decision and Certification of Results of
Election
4 Montrose Hanger Company, 120 NLRB 88 See also F H Snow Canning Company,
Inc, 119 NLRB 714, Dartmouth Finsslung Corporation 120 NLRB 262, Kawneer
Company, 119 NLRB 1460 General Electric Company, 119 NLRB 944
5 Cases such as The Calvdyne Company, 117 NLRB 1026, and Reiss Associates, Inc,
116 NLRB 217, upon which the hearing officer relies in the instant connection, are plainly
distinguishable from this case In those cases, wage rates of employees elsewhere were
misrepresented by unions which were the contractual bargaining agents of such employees
and therefore in an authoritative position to know the true facts
Crosby Chemicals, Inc. and International Chemical Workers
Union, AFL--CIO I Cases Nos 15-CA-950, 15-CA-985, and
15-CA-995 August 11, 1958
DECISION AND ORDER
On October 22, 1957, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
'Herein called the Union
121 NLRB No 51
CROSBY CHEMICALS, INC. 413
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom,and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not. engaged in certain other unfair labor
practices as alleged in the complaint and recommended that these
allegations of the complaint be dismissed. Thereafter, the Respond-
ent and the General Counsel filed exceptions'to the Intermediate
Report and the latter filed a supporting brief. The Respondent also
filed a motion to reopen record, to which the General Counsel filed a
reply.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed.2 The
rulings, except as already indicated, are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and brief, and
the entire record in these cases, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the fol-
lowing exceptions, additions, and modifications 3
1. The Respondent contends that Section 10 (b) of the Act bars
the Board from considering the allegation in the complaint that the
Respondent violated Section 8 (a) (3) and (1) of the Act by omitting
the payment of a bonus at its De Ridder plant in the summer of 1956.
The omission of such bonus was first alleged in an amended charge
filed in Case No. 15-CA-985 on April 11, 1957, more than 6 months
2 The General Counsel excepts to the Trial Examiner's rejection of his offer of proof
at the hearing as to the content of two speeches ("shade of the lab" and "slab of the lab"
speeches ) made by the Respondent 's chairman of the board, R. H. Crosby , Sr. The
General Counsel offered to prove by the testimony of several witnesses that Crosby, Sr.,
had made certain statements during these two speeches which were violative of Sec-
tion 8 ( a) (1) of the Act . The Trial Examiner refused to permit the taking of the testi-
mony of these witnesses on the ground that such evidence would only be "cumulative,"
since other witnesses had already testified as regards these talks.
However, in his Intermediate Report, the Trial Examiner did not credit the testimony
of several of the General Counsel's witnesses that Crosby , Sr., had made statements vio-
lative of the Act during these two talks, emphasizing that their testimony was not cor-
roborated by other witnesses. The General Counsel contends that corroboration would
have been supplied by the additional witnesses whom the Trial Examiner refused to hear.
Under these circumstances , we find that the Trial Examiner erred in rejecting the offer
of proof. However , as we find, as did the Trial Examiner , that the Respondent's man-
agement made other statements which violated Section 8 ( a) (1), and as the finding of
additional violations in the two talks would not affect the remedy herein, we find that
the ruling was not prejudicial.
8 The Trial Examiner , in the second paragraph of his "Conclusion as to Independent
8 (a) (1) Violations Occurring Prim to the December 6 Election," nnpl.ell; -,.aacter-
ized the instant 'proceeding as moot insofar as it related to alleged coercion by the
Respondent antedating the election which was won by the Union. We do not share his
view as to mootness and do not adopt this statement.
In setting forth the testimony of Ranel B . Williams, the Taal Examiner inadvertently
found that Wise Instead of Williams testified as to certain events. We hereby correct
this error , which does not affect the findings and conclusions herein.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the event. However, the original charge in that case filed on
December 26, 1956, relating to the De Ridder plant, contained a
general allegation that the Respondent violated Section 8 (a) (1) of
the Act. Under these circumstances, we find that the original charge
is sufficient to support the allegation of'the complaint and the finding
of the Trial Examiner that the withholding of the bonus at De Ridder
violated Section 8 (a) (1) of the Act. We need not, and do not,
determine whether such action, as found by the Trial Examiner, also
violated Section 8 (a) (3) of the Act, as the remedy would be the
same in any event.4
As to the merits, we find, like the Trial Examiner and for the
reasons stated by him, that the Respondent in 1956 withheld the
summer bonus at Picayune and De Ridder in order to discourage
union activity. Accordingly, we find, like the Trial Examiner, that
the- withholding of the bonus at Picayune violated Section 8 (a) (3)
and (1) of the Act. However, as to De Ridder, we find only, for the
reason just stated, that such conduct violated Section 8 (a) (1).
2. The Trial Examiner found that Vice President T. L. (Tommie)
Crosby violated Section 8 (a) (1) of the Act by telling employee
Quincey Willis during the "Slab of the Lab" speech that the Re-
spondent would not pay the summer bonus to its employees because
the organizational activities-of the Union prevented it from making
such payment. We disagree.
Several witnesses testified that Chairman of the Board R. H.
Crosby, Sr., had made the above or similar statements to Quincey
Willis during the speech. Crosby, Sr., denied making such state-
ments and the Trial Examiner credited his denial and found that
he had not told Willis that the bonus was not being paid because
of the advent of the union.
Tommie Crosby testified at the hearing that he-and not his
father, Crosby, Sr.-had spoken to Willis and that he had merely
told him that the Respondent never intended to pay the summer
bonus. No other witness testified as to this conversation between
Tommie Crosby and Willis.
As Tommie Crosby did not admit making the statement attributed
to him by the Trial Examiner, and, apart from him, no one testified
as to this conversation, we find that there is a complete failure of
proof on this allegation. Accordingly, we find that Tommie Crosby
did not state-to Willis that the Respondent withheld the summer
bonus because of the Union's organizing activities.
3. The Trial Examiner found that the Respondent violated Section
8 (a) (1) by the conduct of Foreman Albert Taylor in "seeking to
implant fear in the mind" of employee Rufus L. Lumpkin by telling
Brookville Glove Company, 116 NLRB 1282.
CROSBY. CHEMICALS, INC. 415
him that he would have to serve a 4-year apprenticeship if the Union
became the bargaining representative. We disagree.
Lumpkin testified that, on the same day as the "shade of the lab"
talk, Foreman Taylor showed him a contract that the Union appar-
ently had with another company and told him that, if the Union
was voted in, ^vages would be cut to conform to those in the contract;
he also testified that Taylor stated that Lumpkin "would have to
serve a four-year apprenticeship before I [Lumpkin] became a pipe-
fitter."
Foreman Taylor testified that Crosby, Sr., had given the foremen
a sheet of paper showing the wage scales of a competitor company
and told them just to show it to the employees. He denied that he
informed Lumpkin that wages would be cut if the Union became
bargaining representative. As to the apprenticeship, Taylor testified
that he told Lumpkin, "You might have to serve the rest of your
apprenticeship knowing that you worked with me over there as a
helper over at Mr. Crosby's house only two and a half years ago,
and that was, I think, the extent of the conversation as well as I can
remember it. That is my personal opinion; no one told me to say
that whatsoever."
The Trial Examiner credited Taylor's denial and found that he
had not told Lumpkin that wages would be cut if the Union was
voted in. As to the apprenticeship issue, it is apparent from the
testimony set forth above that both Lumpkin and Taylor are in sub-
stantial agreement -as to what Taylor said. We believe that Taylor
was merely expressing his personal opinion in the nature of 'a pre-
diction that because the Union had stricter journeyman requirements
than did the Respondent it might attempt to secure a longer appren=
ticeship period for pipefitters from the Respondent if it became
bargaining representative. We find that such statement was protected
by Section 8 (c) and is therefore not violative of the Act.'
4. The nonpayment of the December 1956 bonus at Picayune
On December 6, 1956, elections were held for separate units of the
Respondent's Picayune, Mississippi, and De Ridder, Louisiana, hourly
paid employees. The Union was selected as bargaining representative
of the Picayune employees but lost the De Ridder election (no other
union was involved). On December 20, 1956, the Respondent paid
its De Ridder employees a bonus. It did not pay the bonus to its
Picayune employees admittedly because it wanted to use the bonus as
a bargaining factor during anticipated contract negotiations with
the Union.
The Jackson Press, Inc., 96 NLRB 897, 923.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent contends that the withholding of the December
bonus from its Picayune employees is not a violation of the Act, as
the Trial Examiner found, on the grounds that (a) the bonus is a mere
gratuity which the Respondent may give or not as it pleases, and (b)
in any event, it was entitled to hold the bonus in reserve as a basis for
bargaining with the Union. We find no merit in these contentions.
As to (a), the record is clear that the Respondent has been giving
bonuses to its Picayune employees since 1941, and to its De Ridder
employees since the establishment of that plant in 1946. Since 1947,
there have been 2 bonuses paid each year-1 in summer and 1 in De-
cember. Since 1950, the amount of the bonus' has varied only slightly
from year to year and the summer and December bonuses have usually
been computed on the same basis. Moreover, this slight variation in
the amount -of the bonus has usually been limited to employees with
less than 2 years' seniority. The fiscal year ending October 31, 1955,
may be set forth as representative of the usual bonus payments. The
summer and December bonuses in that fiscal year were computed on
the same basis, as follows :
6 months-1 year---------------------------------- 20 hours' pay
1 year-2 years------------------------------------ 30 hours' pay
2 years-3 years ----------------------------------- 40 hours' pay
3 years-4 years ----------------------------------- 60 hours' pay
Over 4 years-------------------------------------- 80 hours' pay
Thus, taking both semiannual bonuses together, they represented
the equivalent of 3 or 4 weeks' pay for many of the employees. As
already indicated, they have been regularly paid for the last 10 years
or more.' Upon the entire record, we find that the bonus payments
were a normal and regular part of the employees' compensation, as
much so as weekly wages, and were treated as such by the Respondent
and its employees.'
As to (b), the record shows that, upon the advice of counsel, the
Respondent paid a December bonus to its De Ridder employees after
the December 6 election, which the Union lost at that plant.
However, acting upon such advice, the Respondent withheld such
bonus from its Picayune employees because of a doubt whether it
would be lawful to pay such bonus in view of the certification of the
Union, and because the Respondent, anticipating that the Union
would make various monetary demands, believed that it should hold
its bonus in reserve as a bargaining factor to offset these demands.
Under these circumstances, we find thatthe Respondent's disparate
treatment of its Picayune and De Ridder employees with respect to
$ For several years prior to 1951, the December bonus was conditioned upon an em-
ployee not having any unauthorized absence during November-December.
7 See Niles-Bement-Pond Company, 97 NLRB 165.
CROSBY CHEMICALS, INC. 417
the December 1956 bonus had the inherent effect of discouraging union
membership and therefore constituted a violation of the Act, even
absent any antiunion motivation. As the Supreme Court said in the
Radio 0 fficers 'case:
This recognition that specific proof of intent is unnecessary where
employer conduct inherently encourages or discourages union
membership is but an application of the common-law rule that a
man is held to intend the foreseeable consequenbes of his con-
duct. . . . Thus an employer's protestation that he did not
intend to encourage or discourage must be unavailing where a
natural consequence of his action was such encouragement or dis-'
couragement. Concluding that encouragement or discouragement
will result, it is presumed that he intended such consequence: In
such circumstances intent to encourage [or discourage] is suffi-
ciently established.
No more striking example of discrimination so foreseeably caus-
ing employee response as to obviate the need for any other proof
of intent is apparent than the payment of different wages to
union employees doing a job than to nonunion employees doing
the same job." [Emphasis supplied.]
The record is clear that the wage rates and job classifications were
the same as De Ridder and Picayune. Accordingly, the net effect of
the denial of the December 1956 "bonus" to the represented Picayune
employees was to reduce their compensation, at least for the time be-,
ing, below the level of that received for the same work by the un-
represented De Ridder employees. Accordingly, whatever the actual
motivation for such conduct, we find, under the Radio 0 fficers case,
as the natural consequence thereof was to discourage union activity,
that the Respondent thereby violated Section 8 (a) (3) and (1) of
the Act.10 -
8 Radio O fficers' Union etc. v N L R B ., 347 U. S. 17.
1 The Court elsewhere in its opinion stated that it was not passing on the "legality of
disparate payments " to union and nonunion employees where, as in the case at bar, the
union is not the exclusive bargaining agent of both groups of employees However,
nothing in that opinion precludes the Board from finding that even in such a case such
a disparity of treatment would inherently discourage union activity, particularly where,
as here, the disparate treatment consisted in reducing the established level of compen-
sation of the represented employees below that of unrepresented employees doing exactly
the same work . Cf. Speidel Corporation , 120 NLRB 733, where the Board refused to
find inherently discriminatory the withholding from represented employees of a bonus
paid to unrepresented employees . There, however, the two groups of employees involved
were not engaged in the same or comparable work, the employer was merely seeking to
offset a substantial wage increase recently granted only to the represented employees, and
the parties did not, as in the case at bar. regard the bonus as an integral part of the wage
structure but as a matter reserved to management.
10 See, also , Allis -Chalmers Manufacturing Company v. N. L R B , 162 F. 2d 435, 440
(C. A. 7).
487926-59-vol. 121=28
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The Trial Examiner found that the bonus paid to the De Ridder
employees in December 1956 was approximately twice the amount of
their usual semiannual bonus. Consequently, he found that it would
be a, "punitive gesture" to order the Respondent to pay the same sum
to its De Ridder employees to compensate them for the unlawful
withholding of their 1956 summer bonus. As for the Picayune em-
ployees, the Trial Examiner recommended that they receive a sum
computed on, the same basis as the bonus received by the De Ridder
employees in December 1956.
The General Counsel excepts to these recommendations and con-
tends that the Board should order the Respondent, in addition to
the foregoing, to pay both its Picayune and De Ridder employees
"the customary and regular bonuses which would have been paid
them in or around August 1956, but for the Respondent's discrimina-
tion." We find no merit in this contention.
We agree with the Trial Examiner that by the payment of the ex-
traordinarily large bonus to its De Ridder employees in December,
the Respondent, in effect, compensated them for the loss of their sum-
mer bonus, and no further payment is required to make them whole.
As for the Picayune employees, the remedy recommended by the
Trial Examiner, which we shall adopt, is also sufficient to make them
whole, as we find that it will give them the equivalent of the amount
they would have received as bonuses in the summer of 1956 and the
following December but for the unlawful withholding of such bonuses
by the Respondent.
After the close of the hearing, the Respondent moved that the
Board reopen the record in order that additional evidence might be
introduced showing that, since the hearing, the Respondent and
the Union have entered into an agreement which provides, inter
alia, that the Picayune employees shall receive a bonus equal to
that of the De Ridder December 1956, bonus. The motion is hereby,
denied, as the matters now sought to be included in the record are
relevant only to the issue of compliance, and may properly be con-
sidered at the compliance stage of this proceeding.
ORDER
Upon the basis of the entire record in these cases, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
Crosby Chemicals, Inc., its officers, agents, successors, and assigns,
shall : '
1. Cease and desist from :
(a) Discouraging membership in International Chemical Workers
Union, AFL-CIO, or any labor organization of its employees, by with-
CROSBY CHEMICALS, INC. 419
holding or refusing to pay the regular, semiannual bonus customarily
paid to its nonsupervisory production and maintenance employees at
its plants at De Ridder, Louisiana, and Picayune, Mississippi.
(b) Threatening to reduce wages of its employees if they select a
union as their representative, or announcing to employees that they
will not receive a bonus because of the advent'of a union, or in any
other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining'or other
mutual aid or protection, and to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Pay to its nonsupervisory production and maintenance em-
ployees at Picayune, Mississippi, the bonuses for 1956 in one payment,
in the manner set forth in the section of the Intermediate Report here-
in entitled "The Remedy."
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to determine the amount of said bonus
payment due said employees.
(c) Post at its plants at Picayune, Mississippi, and De Ridder,
Louisiana, copies of the notice attached hereto marked "Appendix." 11
Copies of said notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immediately
upon receipt thereof 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 to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days'from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint, insofar
as they allege unfair labor practices not found herein, be, and they
hereby are, dismissed.
n In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be 'substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
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 discourage membership in International Chem-
ical Workers Union, AFL-CIO, or any labor organization of
our employees, by withholding or refusing to pay the regular
semiannual bonus customarily paid to our nonsupervisory pro-
duction and maintenance employees at our plants at De Riddei,
Louisiana, and Picayune, Mississippi.
WE WILL NOT threaten our employees with wage cuts if they
select a labor organization as their bargaining representative,
or announce to our employees that they will receive no bonus
because of the advent of a union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-or-
ganization, to form labor organizations, to join or assist Inter-
national Chemical Workers Union, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of
the Act.
WE WILL pay to our nonsupervisory production and mainte-
nance employees at Picayune, Mississippi, the customary and reg-
ular bonuses which would have been paid them during the 1956
calendar year but for our discrimination. Such payment is to
be made in one lump sum.
All our employees are free to become, remain, or refrain from
becoming or remaining members of International Chemical Work-
ers Union, AFL-CIO, or of any labor organization, except to the ex-
tent that this right may be affected by ' an agreement executed in
conformity with Section 8 (a) (3) of the Act.
CROSBY CHEMICALS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
CROSBY CHEMICALS, INC.
INTERMEDIATE REPORT
421
STATEMENT OF THE CASE
Charges having been filed by International Chemical Workers Union , AFL-CIO
(Union ), averring that Crosby Chemicals , Inc. (Respondent ), has engaged in and is
engaging in certain unfair labor practices affecting commerce as set forth and de-
fined in the National Labor Relations Act, 61 Stat. 136, as amended (Act), the
General Counsel of the National Labor Relations Board (Board) caused the
Regional Director for the Fifteenth Region to issue a consolidated complaint upon
said charges on June 4, 1957.
Copies of the charges , the complaint , and a notice of hearing were duly served.
With respect to the charges which are the basis for the three docketed cases con-
solidated for purposes of hearing in this proceeding the complaint alleged:
(a) The charge against Respondent in Case No. 15-CA-950 was filed by
the Union with the undersigned 1 on August 31, 1956, and a copy thereof was
duly served on Respondent on or about September 5, 1956, the first amended
charge was filed on September 4, 1956, and a copy thereof was duly served on
Respondent on September 5, 1956; and the second amended charge was filed
on April 1-1, 1957, and -a copy thereof was duly served on Respondent on
April 12, 1957.
(b) The charge against Respondent in Case No. 15-CA-985 was filed by
the Union with the undersigned 2 on December 26, 1956, and a copy thereof
was duly served on Respondent on December 27, 1956; the first amended
charge was filed April 11, 1957, and a copy thereof was duly served on Re-
spondent on April 12, 1957. -
(c) The charge against Respondent in Case No. 15-CA-995 was filed by
the Union with the undersigned 3 on January 24, 1957, and a copy thereof was
duly served on Respondent on January 25, 1957.
The complaint further alleged, and the parties stipulated, that on December 6,
1956, the Board's Fifteenth Regional office conducted an election to determine a
bargaining representative among the Respondent's employees at De Ridder, Louisi-
ana, and Picayune, Mississippi 4 The employees at Picayune selected the Union
while the De Ridder employees- rejected it.
As noted above the original charge in Case No. 15-CA-950 (involving only the
Picayune plant) was filed about 3 months before the election.
Had the Union lost the December 6 election at Picayune none of the unfair labor
practices alleged in Case No. 15-CA-950 could have been advanced as objections
to the conduct of the election, it being well established Board law that once having
chosen to test its strength in an election while having knowledge of alleged employer
misconduct the Union is precluded from advancing such misconduct in order "to get
another bite of the apple"; however, the Board will seek to remedy preelection
violations by a subsequent hearing on the merits,5 which makes the instant pro-
ceeding proper in all respects.
The charge in Case No. 15-CA-985, involving only. the Respondent's De Ridder
plant, was filed' 20 days after the election, while 2 months after the election, with
Case No. 15-CA-950 still pending, the second charge involving Picayune was filed
and docketed as Case No. 15-CA-995.
The consolidated complaint is dated 6 months after the election and 10 months
after the first charge was filed.
With respect to the unfair labor practices the complaint alleged in substance that
the Respondent had engaged in conduct violative of Section 8 (a) (1) of the Act at
its Picayune plant.
With the exception of some 8 (a) (1) violations alleged to have occurred on the
day of the election and the day following it, all such independent 8 (a) (1) viola-
tions are alleged to have occurred prior to the election.
The complaint also alleges violation of Section 8 (a) (3) both at Picayune and
at De Ridder in connection with the Respondent's failure to pay a customary bonus
to its employees at both plants also before the election.
1 Refers to the Regional Director , Fifteenth Region.
2 See footnote 1, supra.
8 See footnote 1, supra.
4 Elections were by consent ; see Cases Nos. 15-RC-1465, 15-RC-1466 (not published).
8 The Great Atlantic & Pacific Tea Co, 101 NLRB 1118; Aerovox Corporation, 104
NLRB 246; Aiello Dairy Farms, 110 NLRB 1365. Compagnie Generale Transatlantique
(French Line ), 118 NLRB 1327.
1
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 28, 1957, the Respondent filed an answer in which it denied it hadi
engaged in any of the unfair labor practices alleged.
Pursuant to notice a hearing was held before Louis Plost, the duly designated:
Trial Examiner, at Picayune, Mississippi; July 9 through 17, 1957. The GeneraL
Counsel and the Respondent were represented by counsel, and the Union by lay
representatives, all being hereinafter referred to in the names of their principals.-
The parties participated in the hearing, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence bearing on
the issues, to argue orally on the record, and to file briefs, proposed findings of fact,
and conclusions of law with the Trial Examiner.
The witnesses were separated.
The Trial Examiner denied motions by the Respondent to dismiss the complaint-
Oral arguments were waived. A date was set for the submission of briefs, findings,
of fact, and/or conclusions of law.6 The Trial Examiner granted an unopposed
motion by the General Counsel to conform all the pleadings to the proof with
respect to spelling, names, dates , and similar matters.
Briefs have been received from the' General Counsel and the Respondent .7
Upon the entire record so made and from observation of the witnesses the Trial'
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Crosby Chemicals, Inc., is a Mississippi corporation licensedl
to do business in Louisiana, with its principal office located in Picayune, Mississippi.
It operates plants at Picayune, Mississippi, and De Ridder, Louisiana, where it is
engaged in the production of rosin, turpentine, and related products. During the
calendar year 1956, the Respondent sold and shipped to points outside the States
of Louisiana and Mississippi finished products valued in excess of $300,000. During
the calendar year 1956, the Respondent sold and shipped from its De Ridder,
Louisiana, plant to points outside the State of Louisiana finished products valued'.
in excess of $150,000. During the calendar year 1956, the Respondent sold and
shipped from its Picayune, Mississippi, plant to points outside the State of Mississippi,
finished products valued in excess of $150,000.8
It. THE ORGANIZATION INVOLVED
International Chemical Workers Union, AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act and admits employees of the Respondent
to membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
As hereinbefore stated , virtually all the testimony relating to alleged independent
8 (a) (1) covers a period before the December 6, 1956 , election , affects only the
Respondent's Picayune plant, and is charged in Case No. 15-CA-950.
The General Counsel called L. B. Bullock , Moses Jones, L. C. Bullock, Taf
Warren , and Clarence Morris to testify to a single incident which took place under
a cherry tree.
None of the witnesses to the cherry tree incident were able to fix the time more
definitely than the summer before the election , none of them told a connected or
coherent story, each "exhausted his recollection " with the first question and was
O The Trial Examiner made such documents returnable August 6. Upon request of the
parties made after the close of the hearing to the Chief Trial Examiner, as provided by
the Board's Rules and 'Regulations, he extended the date first to August 30, and again
to September 16
7 On September 30 the Respondent filed a "Motion to Correct Record" with the Trial
Examiner. The motion lists 79 instances of error principally of spelling and tenses-
The General Counsel filed a reply in which he stated that "he has no serious objections
to the'granting of the proposed above-mentioned corrections."
As the Trial Examiner feels that the corrections are of errors due to inevitable haste
in transcription, and further that the corrections asked will help to produce a work of
art, the "Motion to Correct Record" is granted.
The motions and rulings will appear in the formal file of the proceedings.
8 The Board has taken jurisdiction of the Respondent. See 85 NLRB 791, 188 F. 2d 91
(C. A. 5).
I
CROSBY CHEMICALS , INC . 423
prodded through his subsequent testimony . In the main , the stories so obtained
were similar ; at least it was quite evident that they were intended to be so. The
Trial Examiner will begin with the testimony of Clarence Morris, the last of the
cherry tree witnesses , as being typical and most coherent . Clarence Morris testified
that sometime during the summer before the election on a day while he and a group
of fellow employees were eating lunch 'under a' cherry tree at the edge of the
Respondent 's parking lot at the Picayune plant where all involved were employed,
Charles Manberg, the Respondent 's superintendent of construction and maintenance
at Picayune , came up and spoke to the group seated under the tree . Morris testified:
Well, he comes around there and ' he says, "Well , I am glad I caught all you
boys together," He said , "Now I am not going to tell none of you all what to
do. I am not going to tell you all what not to do." But says, "If it stay like
it is, I can help you all out, but if it don 't, I can't:" He said , "Your wage
will be cut and you won 't get your bonus," but I don't have no memory.
Morris further testified:
I didn 't hear him say anything why it would be cut . When he spoke, he
said, "I am not going to tell none of you all what to do or not to do." That's
the way he led the conversation off. He went on to say more , but I can't
think of all he said.
L. B. Bullock, one of the group , testified:
He had a list which he did not, you know, he didn't call off no wage or
anything like that . He just said we would get a 15 cent decrease , a decrease
in the wages Some of the boys said on the yard-which I was pulling ex-
tract-he said what it would be , but I can't say what they say, because I didn't
hear him say that , but he said there would be decrease in our wages.
Bullock also testified that Manberg told them "you make up your own mind
about it." -
L. C. Bullock, after "exhausting his recollection ," was prodded into remembering
that Manberg stated that wages would be cut , employees "wouldn't get our insurance,"
and the bonus would not be paid. All this came after he testified: -
Q. What did he say?-A. I don 't know . I done forgot . I don 't want to
tell no story.
He also testified:
He said he wasn't asking nobody to join , it, and not asking nobody not to; to
suit ourselves.
Tal Warren , before his memory failed him and before he testified on questions,
leading in nature, that Manberg stated that "he paid more wages that the union
paid" and that wages would be cut "if the union came in," testified as follows:
Q. All right, what did Mr. Charlie say to the group?-A. Well, he come
up and said that , "You boys, I ain't going to tell you how to vote which way
to go, but I can help you if you stay like you is."
Manberg categorically denied mentioning anything about wages, insurance, bonus
payment , or any other conditions of employment to the men under the cherry tree.
He recalled the incident although he too could not fix the date. According to
Manberg: -
Well, at that time, we were having a lot of construction in different places,
and our common labor was scattered over a large area . Our white men had
already been warned of congregating together on the job and discussing union
activities or any other activities , because we don't allow that on the job. So,
I caught these niggers there about 12:30 and told them that I was glad I caught
them there , because we were not going to have any more congregating up on
the job talking about union activities ; off- the job it didn't make any difference,
but on the job we weren't going to have any more of that.
Q. Did you say anything else to those men at that time?-A . No, sir.
On the entire record the Trial Examiner is persuaded that the testimony of Charles
Manberg represents a fairly accurate account of the cherry tree incident but he
does believe that the witnesses then under the tree now honestly think their account
to be the accurate version thereof. On all the evidence in the record considered as a
whole the Trial Examiner is persuaded that Manberg's statements to the employees
under the cherry tree were free from unlawful threat or promise . There is no
dispute that Manberg stated that joining or refraining from joining the Union lay
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the employees alone. Although none of the employees under the tree said
anything to Manberg , legally the affair remained a wholly intellectual discussion,
free of coercion or coercive implication , and therefore did not constitute an unfair
labor practice within the meaning of the Act. The Trial Examiner so finds.
The complaint alleges that Robert H. Crosby, Sr., the chairman of the board in
the Respondent 's organization and its principal stockholder , engaged in conduct
violative of the Act by means of threats of loss of benefits and employment if the
Union should be selected . and promises of benefits if it was rejected . Most of the
statements are alleged to have been made "on or about September 13, 1956," some
3 months before the election . In support of these allegations the General Counsel
adduced evidence regarding two talks made to the employees by Crosby , Sr: The
first of these was made on a grass plot beside the Respondent 's laboratory at the
Picayune plant and was referred to by the General Counsel as "the shade of the
lab" speech . The second talk was made to a group assembled on a paved area be-
tween the laboratory and the office and is referred to in the record as "the slab of
the lab" speech.
None of the witnesses called by the General Counsel could definitely fix the
dates of the talks; however , Tommie L. Crosby, son of Crosby , Sr., and vice presi-
dent of the Respondent , testified without contradiction that he was present at both
talks, that the employees were assembled by the foremen on orders of the Respond-
ent, and that the first of the talks was made September 14 and the second "about a
week later."
Glen Holston , a former employee of the Respondent , testified that he was in the
group addressed by Crosby, Sr.; that Crosby, Sr., began the first of the talks with
the statement that outside the plant , at that moment , the Union 's representative was
distributing literature containing false statements about the Respondent and chal-
lenged the Union to produce proof; that following this:
He said , "Boys, this plant will expand if we are let alone." He says, "It's left
up to you men whether we expand or not."
Willie 0. Furr , also a former employee, corroborated Holston and further testi-
fied that no questions were asked of Crosby, Sr., during the "shade" talk.
Employee Joseph J. Lossett fixed the time of the talks as "a good bit" before the
election and testified that Crosby, Sr., referred to the union organizer who was
distributing literature as "that son of a bitch."
Regarding the second , or "slab of the lab," talk made by Crosby , Sr., employee
McKinley Magee testified that during the course of the talk employee Quincey Willis
asked Crosby, Sr., if the bonus would be paid and that Crosby, Sr., replied, "if I pay
the bonus , ones will think the Union forced me to pay it." Magee testified he heard
no other question asked.
Former employee Rayford Washington testified that during the second talk Willis
asked "when they was going to pay the bonus" and Crosby, Sr., replied "he didn't
know."
Holston, who heard both talks, testified:
Q. How long after the shade -of-the-lab speech was the slab -of-the-lab speech
delivered?-A. I would say about 30 days.
He testified that various individuals raised grievances for discussion with Crosby,
Sr., and further:
Q. (By Mr. Armbrister.) In addition to the complaints , were any other
questions asked ?-A. Yes, sir, there was a white boy, I can't call his name, asked
him, says, "Mr . Crosby, when do we get a vacation?"
And he says , "Well, boys, I tell you about the vacations . Back in Tuck Cox's
time I offered the boys a vacation and the operators wanted a bonus instead."
He also testified that at this second talk Crosby,,Sr., was asked when the bonus
would be paid and replied:
Boys, I have got the bonus checks up in the office, but I can 't pay them because
the union will get me for bribery.
Robert Earl Sampson testified that he asked Crosby , Sr., the question regarding
vacations and heard Willis ask the question regarding the bonus ; he testified:
Q. What did Mr. Crosby, Sr. say, anything?
A. He said , "Well, if I was to pay you a bonus now, the union would say
I would be buying them out. Said , "If I do it something would happen"; I
have forgot.
Mr. AMBRISTER : That's all.
CROSBY CHEMICALS, INC. 425
Sampson further testified on the same subject:
TRIAL EXAMINER: Is that all you remember of what he said?
The WITNESS: Yes, sir.
TRIAL EXAMINER: Did he say anything about the bonus checks?
The WITNESS: I don't remember.
TRIAL, EXAMINER : You don't remember him mentioning the bonus checks at
all?
The WITNESS: No, sir, I don't.
Willie Fun testified with respect to the "slab" speech that various individuals
raised grievances which were discussed, that Crosby, Sr., answered a question
regarding vacations with a reference to the bonus and answered a question regarding
the bonus with the statement that "the checks are in the office, but I can't pay it
because the union would think I was buying it."
Joseph J. Lossett testified that at the "slab" talk he discussed grievances with
Crosby, Sr., in great detail, and that "I asked him one question after he made a cer-
tain statement ." Lossett testified:
Q. (By Mr. Ambrister.) What did he say to you before you asked the
question?
A. Well, before I asked the question, it was concerning the part that he was
talking there about the bonus, I said, "Mr. Crosby," I says, "Well, Mr. Crosby,
.you was repeatedly saying here that the union would use this bonus and say
that you are bribing the men if you paid the bonus." And I said, "Well, I
don't see, Mr. Crosby, how the union could use that at this point, because the
bonus was always paid before the union came up and the bonus was due
before this ever came up." And I said, "The union can't use that as no
bribe."
Q. Now,-
TRIAL EXAMINER: Did he answer you?
The WITNESS: No, he got off on something else.
Recalled on rebuttal Lossett testified that at the "slab" meeting he asked no
questions, maintained, "I just made a comment."
Although according to Lossett's testimony he figured prominently in the "slab"
gathering it is surprising that none of the other witnesses called by the General
Counsel to testify as to the "slab" speech recalled Lossett's remarks regarding the
bonus; thus McKinley Magee testified:
Q.,And you have told us what Mr. R. H. said when Quincy said, "We are
interested in the bonus." Do you know Joe Lossett?-A. Yes, sir.
Q. Was Mr. Joe out there?-A. Yes, sir.
Q. Did you hear him say anything?-A. Well, I was a little far off from
him.. You couldn't hear everything he said. I can't tell that. I didn't hear
all he said.
Q. Did you hear anybody else say anything out there?-A. No, sir.
Glen Holston testified that he heard Lossett raise certain grievances, going into
great detail both as to the questions and the answers given and although he testified
as to Willis' question on the bonus payment said nothing about.Lossett's "comment."
Willie Furr also testified that he heard Lossett raise grievance at the "slab"
meeting, heard Willis ask about the bonus, but he also made no, mention of
Lossett's "comment" on the bonus.
Lossett in his account of the talk made by Crosby, Sr., at the "slab" meeting
testified that Crosby stated to the gathering: 9
Well men you know this new plant is put up with bolts and it can be took
down and moved just like it was put there.
It is remarkable that none of the other witnesses recalled this startling statement,
or that the General Counsel produced no other witness who heard it.
Tommie Crosby, the Respondent's vice president, who was present at both talks,
denied the testimony of Lossett that Crosby, Sr. (at either talk) made the statement
that the plant was put together with bolts and could be taken down and moved,
presumably if the Union was selected by the employees.
9 The record is not clear if the remark was then made by Crosby or reported by Lossett
in his "comment"; however, as both the Respondent, and more important the General
Counsel, whose witness Lossett was, refer to the remark as having been made during the
talk by Crosby, Sr. The Trial Esaminer'will accept their interpretation of the record.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crosby, Sr., testified that he opposed the Union's organizational drive, his objec-
tion being "not a union ; that union."
Q. You expressed your opinion that you did not want that particular
union?-A. That particular union.
Q. All right, and you did everything you could to keep that particular union
out of the De Ridder and Picayune plants, didn't you?-A. I had nothing to do
with the De Ridder plant.
Q. Well, the Picayune plant9-A. The Picayune plant.
Q. And you made speeches to your employees about the union?-A. I did.
Crosby, Sr., testified that during his talk Joseph Lossett, Jr., asked if the Respond-
ent intended to pay the bonus but that he (Crosby, Sr.) refused to discuss the matter.
Crosby further testified:
Q. You didn't mention anything about Tuck Cox going around to the opera-,
tors and asking them if they would rather have a vacation or a bonus9-A. No,
that was in another talk, but the question, I never made the statement about
Tuck Cox asking for vacations or bonuses. I never did that.
He denied that he made any statements that the bonus checks had been made up,
were in his office, but could not be issued.
Tommie Crosby testified that: In the first talk his father spoke of the Union's
organizer distributing literature containing false statements; during this first talk
Lossett asked about the bonus and was told by Crosby, Sr., "he would not let the
bonus be discussed"; Crosby, Sr., opened his second talk by having the court's deci-
sion in 188 F. 2d 91 read, discussed various grievances with members of his audience,
among them Lossett; he answered employee Sampson's question, "How about a vaca-
tion?" with a statement to the effect that in the past the men had not wanted vaca-
tions; and Quincey Willis asked about the bonus, but was not answered by Crosby,
Sr., but by himself.
Vice President Tommie Crosby testified:
Then Quincey asked him about the bonus, and he never answered Quincey. I
answered Quincey. Quincey was standing next to me. I told Quincey we
didn't intend to pay it. Quincey told me he always looks forward to it when-
ever we give it to him.
He further testified that in neither talk did his father state that the bonus checks had
been made out, were in his office, and would not be issued.
Upon the entire,record, the evidence considered as a whole, and his observation of
the witnesses, the Trial Examiner finds that: During the course of the two talks he
made to the Respondent's employees "on or about September 13, 1956," R. H. Crosby,
Sr., did not state in effect that the Respondent had prepared bonus payment checks
but could not issue them because of the Union; other than stating he would not dis-
cuss the bonus he made no statements regarding it; and he did not state that the plant
was put together with bolts, could be taken apart and moved.
Crosby, Sr., did not deny the testimony of Glen Holston that he stated "this plant
will expand if we are let alone. Its left up to you whether we expand or not." He
did not deny that he referred to the man passing union handbills-as "a son-of-a-bitch."
However, singularly there is no corroboration of the statements which may even only
have been an expression of Crosby's opinion, but whatever they are, in the welter of
testimony regarding the talks made "on or about September 13," they are hardly a
,firm foundation for a structure of unfair labor practices.
In addition to the unfair labor practices attributed to Crosby, Sr., with respect to
the "shade" and "slab" talks, additional violations are attributed to him by further
statements made to individuals prior to the election.
L. B. Bullock testified that sometime prior to the election he went to Crosby,
Sr.'s office and held the following conversation with him, announcing himself with
the statement that a "yard boy" had told him to come to the office and then
continued:
I come up here to see what do you want." And he said, "I don't want
nothing," and I said, "What he was telling me about was this union."
TRIAL EXAMINER: He said that?
The WITNESS: No, sir, I said that, and what he wanted to see me about
was the union.
Q. (By Mr. Ambrister.) What did Mr. Crosby, Sr. say to that?
A. He say, "I can't talk about that." He said, "I can't talk- about that
because they will say I am violating some kind of law," and I said, "Yes, sir."
And he said, "I will tell you boys, you are making a great mistake," .. .
CROSBY CHEMICALS, INC. 427
According to Bullock, Crosby, Sr., then said to him, "But if you was to get laid off,
you wouldn't have much insurance"; asked if there had been a union meeting
and then:
. He got a list off the table and taken a pencil and traced names down
it, which I presume it was, I don't know for sure, and he said, "I don't guess
you was there then."
However, Bullock testified he was too far way to see the paper as Crosby, Sr.,
was on one side of the desk and me on the other" and furthermore he is unable
,to read.
Considering the solid, impressive character of Bullock's testimony it seems hardly
necessary to quote Crosby's denial:
As I stated before, I refused to discuss anything with L. B. I told L. B.-I
hadn't sent for him, and I didn't know why he was up there-and then L. B.
wanted to borrow money from me. -
However, being compelled to report each arrow the General Counsel withdrew from
his quiver the Trial Examiner must also make note of the shield upon which
the arrow struck.
The Trial Examiner credits Crosby, Sr., as against Bullock.
Employee Herbert Thigpen testified that "right at the beginning of the union
activities" Crosby, Sr., called-him to the office and told him that Thigpen "could
be indicted" because he sponsored a union meeting of both white and colored
people in a schoolhouse. Thigpen was on the school board and the law of the
State prohibited mixing the races in public meetings.
Thigpen further testified that on another occasion Crosby, Sr., remarked to the
employees in the machine shop:
If you boys are going Communist, let's go all the way. I just told a colored
fellow to go up and register.
The registration was for a political election. The Trial Examiner credits Thigpen
but fails to see in what manner his testimony proves an unfair labor practice.
Claiborne Bounds corroborated by S. R. Cayten testified that he and Cayten
were called to the office of Crosby, Sr., who answered Claiborne's opening remark
that "I am not going to say nothing for the union, nothing against it" with the
statement that he had not sent for them to discuss the Union. Crosby, Sr., then
discussed a personal matter, certain construction at De Ridder, and asked if any
men were smoking in prohibited areas; Cayten asked "if he was going to pay the
bonus" to which Crosby, Sr., replied "he couldn't without them saying he was
fixing to bribe the union."
Fate Langham, one of the General Counsel's witnesses whose recollection was
.extremely vague, testified to a conversation with Crosby, Sr.:
Q. Did he (Crosby, Sr.) say anything about the union?-A. I don't
remember it.
Q. Do you remember him saying if the union came in you would no longer
be a pipefitter helper?-A. Yes, sir.
Q. What did he say about that?-A. He said if the union came in , wouldn't
be no more nigger pipefitter helpers, colored pipefitter helpers; cut back down
to common labor.
Q. What?-A. Cut back down to common laborer. I told him, "Yes, sir."
Mr. CHAMPAGNE: That's all, Fate, we have. Tender the witness, Mr. Trial
Examiner.
There were several additional witnesses called to testify to alleged remarks by
Crosby, Sr., which the General Counsel apparently considered violative of the Act;
however, the Trial Examiner finds the testimony to be either so confused as to be
unintelligible or relating to matters so trivial that he will not advert to them.
R. H. Crosby, Sr., categorically denied the testimony of L. B. Bullock; denied
that he made any statement regarding the bonus payment to Cayten or any other
employee; denied the statement attributed to him by Fate Langham.
In addition to the affair of the cherry tree Maintenance Superintendent Manberg
is alleged to have engaged in other conduct violative of the Act prior to the election.
M. S. Keys testified that sometime before October 5, 1956 (at which time he
quit the Respondent's employ ) Manberg spoke to him "about-the Union." Keys
testified:
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. What did Mr. Manberg tell you then?-A. He said, "Mr. Crosby got
hold of me-", and I don't know what terms he used, and said, "He didn't want
you boys getting into anything you didn't know that you were getting into."
Q. Did he say anything else?-A. Yes, sir, he says, "If the union come in,
the wages would be cut and you will lose your insurance."
Manberg denied the conversation.
Eldridge Patch, who is president of the Local Union, testified that on August 29,
1956, Maintenance Superintendent Manberg showed a slip of paper to Glen Holston
and himself; told them the paper was a "contract with the Newport Industries,"
and pointed out the wage scale set up therein by a union. Patch testified:
He pointed it out, took his finger and run across that way and indicated
carpenters, $1.84. I said, "Charlie, you mean that would be my wages if the
union goes in?"
He nodded his head and said, "That's right."
Patch was corroborated by Holston.
Manberg testified that at a regular foremen's meeting the supervisors were given
a wage scale purporting to be the wage scale set up by a union in a competing plant
and were instructed to show it to the employees but "not to threaten them their
wages would be cut"; that he showed this wage scale to only five employees, Patch
and Holston among them, and denied saying that wages would be cut.
Of course Patch did not testify that Manberg told him wages would be cut in
the event of unionization, he merely testified that Manberg nodded and said "that's
right" when Patch remarked, "Charlie, you mean that would be my wages." This
may be interpreted as a mere expression of opinion, the auditor being left to draw
his own conclusion; however, on the record considered as a whole the Trial Examiner
is persuaded that Manberg exhibited the wage scale to Patch in such a manner as
to inevitably create the impression that bringing the Union and a union wage scale
into the plant would result in a wage cut. The Trial Examiner so finds.
Willie O. Furr testified that "about two weeks" before the election he overheard
Manberg talking to employee Leander Kellar. Furr testified:
Q. And Charlie (Manberg) did what?-A. Punched him in the back and
stopped him and he had a long slip of paper and said, "This is the wages you
will get, Lee, if the union comes in here," and pointed out truck drivers, $1.2d
an hour. -
Q. Do you know what Leander was getting at that time?-A. Not to the
penny, but it was approximately $1.65.
Leander Kellar testified that Manberg did show "a contract-or something" to him
and others but at no time told him that wages would be cut if the Union came in.
The General Counsel in his brief argues:
Leander Kellar was called by Respondent and testified that although he had
a conversation with Manberg concerning the Newport contract that Manberg
did not tell him that his wages would be cut if the Union came in (T. 432).
Kellar's denial of Manberg's threat is inconsistent with the evidence concern-
ing Manberg's entire course of conduct and Kellar's appearance as a witness
raised serious doubts as to his credibility.
In the opinion of the Trial Examiner the General Counsel is at least slightly
overzealous. Kellar must be and is credited.
Other supervisory officials are also alleged to have engaged in conduct violative
of .the Act before the election; thus, former employee Rufus L. Lumpkin testified
that on the same day that the "shade" talk was made Albert Taylor, the Respondent's
pipefitter foreman, showed him "a contract from some plant in Louisiana" and told
him that if the Union was voted in wages would be cut to conform to those in the
contract, which was a "union contract," and added also that Lumpkin would "have
to serve a four-year apprenticeship before I became a pipefitter."
Foreman Albert Taylor testified: -
Well, I think that Mr. Crosby gave the foremens a sheet of paper with some
wage scales from Newport and told us just to show it to the employees and
let them look at it, and I showed it to him (Lumpkin).
Taylor denied that he told Lumpkin that wages would be cut if the Union was voted
in; he admitted that he told Lumpkin that the Union might mean that he would
be required to complete a 4-year apprenticeship:
CROSBY CHEMICALS, INC. 429
Taylor testified:
I told him, I said, "Roy, you might have to serve the rest of your appren-
ticeship knowing that you worked with me over there as a helper over at Mr.
Crosby's house only two and a half years ago," and that was, I think, the extent
of the conversation as well as I can remember it. That is my personal opinion,
no one told me to say that whatsoever.
The Trial Examiner is persuaded that Taylor did not tell Lumpkin that wages
would be cut if the Union was voted in but clearly he overstepped the bounds of
legitimate discussion when at the time he exhibited an unfavorable union contract
and added the remark regarding Lumpkin's unfinished apprenticeship, knowledge
which came from a fact which he acquired on another job. Clearly the foreman
was seeking to implant fear in the mind of the employee and thereby engaged in
conduct violative of Section 8 (a) (1) of the Act. The Trial Examiner so finds.
Charles Byron Bales, Jr., testified that on the day of the election he began a con-
versation with Foreman Earl Henley . Bales testified:
Well, I asked Mr. Henley what did he think of the election that was now going
on, would the union win or lose the election?
TRIAL EXAMINER: You started the conversation?
The WITNESS: Yes, sir.
He further testified:
Well, he (Henley ) said , "C. B., if the union comes in, you are not going to get
anything anyway because that old man has already said he wasn't going to sign
anything."
According to Bales, he was then told by the foreman that he had been seen at a
union meeting in a local theatre, the testimony being:
He (Henley) said, "Well, I know." He said, "I was up in that projection room
peeping out the little hole where they show the movies and I saw you. You
sat down toward the front."
Foreman Earl Henley admitted to conversations with Bales, denied that he told
Bales that Crosby, Sr., had stated he would- not sign anything, and denied that he
told Bales he had observed him at the union meeting from the projection room in
a theatre.
From his observation of the two men while testifying and from the record the
Trial Examiner credits Earl Henley and finds that Henley did not tell Bales that
Crosby, Sr., had stated in effect he would not sign a contract with the Union or told
Bales that he (Henley) had spied on a union meeting.
Rufus L. Lumpkin, called by the General Counsel and whose testimony. has
been previously referred to herein, fuither testified that sometime in November
1946 Tommie Crosby, the Respondent's vice president, called him to his office and
discussed the Union with him. He testified:
he showed me a contract of the Laurel plant, Laurel, Mississippi, or
Columbia, I believe it is, a union contract, and told me about the contract and
he quoted me prices what men were making at that plant, and showed me how
much better wages I was making at his plant and told me that they had a
good insurance plan here which they didn't have at that plant, and he told
me they paid a bonus at his plant and didn't pay at that plant.
Q. Did he say how often this bonus was paid?-A. No, sir, I don't believe.
And he told me he wanted me to read the whole contract and he also told me
he didn't think we wanted this union because it had a nigger for vice president
and I took the contract and looked at it and gave it back to him.
Lumpkin further testified:
I asked him in case I decided to vote against the union, would I be fired or
would I be kept. He said I didn't have to worry if I voted against the union.
He would take care of me.
Vice President Tommie Crosby testified that he spoke to Lumpkin on matters
involving the union election on two occasions in his office. Crosby denied that he
told Lumpkin he would take care of him if he voted against the Union. According
to Tommie Crosby:
I didn't make any such statement as that at all. In fact , the first time I sent
for Roy Lumpkin it was because I had heard the rumor that he had told
Albert Taylor that if the union was voted out he was going to quit. I told
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roy that was what I wanted to see him about. It didn't make any difference
whether the union was voted in or out; that was not a condition of anybody's
job out there. I told him if he told him that, just forget it.
Crosby testified that on the second occasion he called Lumpkin in to show him a
union contract, Lumpkin having asked to see it. According to Crosby:
I handed him the contract and said, "here it is. You can read it for
yourself." He sat there and read the entire thing, and I said, "That is a
typical contract, and I went on to explain how you negotiate the thing, where
you have the representatives sitting down and bargaining, and he looked at the,
wage scale, and I said, "You see, there is a wage scale, what they have over at
Columbia." And I said, "That's right, we are above it."
The Trial Examiner on his observation of the witnesses and on the record credits
Tommie Crosby and finds that he did not make the statements as attributed to him,
by Rufus Lumpkin.
Tommie Crosby testified that from "the middle of September until the 2nd or
3rd of December" he "talked about the union" at the Picayune plant to between
150 and 200 employees; some of these employees began the conversations with
him, and some conversations he began in various parts of the plant, while some
were with men he called to his office. Tommie Crosby testified:
I told them that if a man was in favor of it out there, he had every right to.
speak up for it, and if a man was opposed to it, he had every right to say
what he wanted about it; that it was free; it was a secret ballot; nobody could
tell how he voted or how anybody else voted.
Tommie Crosby further testified without contradiction that on September 19, 1956
(which is approximately the time the "shade" and "slab" talks were made), he had
a notice posted on the company bulletin board, which stated, inter alien:
You do not have to join or belong to any union in order to hold your job_
You have the right to join a union if you want to join. You also have the
right not to join if you do not want to join.
Under the law you cannot be forced to belong to a union in order to keep
your job. You will not be discharged because you do not belong to a union
or because you do belong.
The notice remained posted from September 19 to December 5, the day before
the election.
Although the notice is negatively framed it is quite clear that a "hands off"
policy is being stated. The Respondent was under no legal obligation to state more,
or required to use language other than that most favorable to its point of use.
Former employee Huey Ray Wise testified that "about two weeks before the elec-
tion" his foreman took him to Tommie Crosby's office where Vice President Crosby
first inquired about a house Wise was building; told Wise "he would like to buy my
materials wholesale for me and save me money "; asked Wise how he felt about the
Union ; said some unions were good , others bad; stated that the Respondent expected
to expand ; and told Wise "you don 't have to worry about a job just help me out on
this election." Wise further testified:
Q. All right, now, Mr . Wise, was anything else discussed?
A. Yes, sir, he told me, says, "I guess you know it 's time to pay bonus."
And says, "I reckon you understand why we haven't paid it."
I told him no, that I didn't. He said, "Well, if we paid the bonus now, the
union officials will get us for trying to bribe the men."
Tommie Crosby testified he had Wise called to his office because the construction
job was almost finished , and because the Respondent felt that work should be given
to the men "until they had an opportunity to vote in the election on December 6,"
and because he wished to assure Wise that he would be on the payroll as long as
work needed to be done; he denied that he asked Wise to help him out in the election,
and testified further "the bonus was never mentioned."
Ranel B. Williams, a former employee of the Respondent, testified that while he was
at work Tommie Crosby asked him how the Union's organization effort "got started,"
and was told that the failure to pay the bonus was the cause. Wise further testified:
Q. All right. What did Tommie Crosby say to that?-A. He told me then
that he had a list made up on his desk before he left on a trip to pay the bonus,
but he came back and found himself in the middle of a hornet's nest and couldn't,
that he couldn 't fire me, give me a raise or nothing without violating the
labor law.
CROSBY CHEMICALS, INC. - 431
Tommie Crosby testified: -
He asked me why we didn 't pay the bonus . I told him we never intended to pay
the bonus . Now, if we went and paid it , we would have an unfair labor prac-
tice charged against us , and that was the extent of the conversation.
The Trial Examiner is persuaded that Ranel Williams ' testimony represents the
more accurate version of what Crosby told him . The version offered by Crosby
also means that the failure to pay the bonus was due to the Union's presence; how- -
ever, the Trial Examiner believes that had Crosby said "we never intended to pay the
bonus," he would not have added the carefully phrased conclusion appearing in his
version . The Trial Examiner therefore credits Williams.
As to Wise, the Trial Examiner is of the opinion that Tommie Crosby "protests
too much." The Trial Examiner on the entire record credits Wise and finds that
Tommie Crosby did tell him in effect that the bonus was not paid because the Union
might cite it as a "bribe " to the prospective voters.
Conclusion as to Independent 8 (a) (1) Violations Occurring Prior to
the December 6 Election
So far this report has dealt with the independent 8 (a) (1) violations allegedly
engaged in by the Respondent prior to the election of December 6, 1956, with the
exception of matters obviously such as to be of no material consequence . As pointed
out all such independent 8 (a) (1) is covered by the charge and complaint in Case
No. 10-CA-950 affecting Picayune ; strangely no unfair labor practice involving
independent 8 (a) (1) is charged with respect to the De Ridder plant, and it must
be presumed that none occurred there. As pointed out all the 8 (a) (1) violations
are alleged to have occurred in connection with an election , duly held 8 months
before the complaint was issued . The election was won by the Union at- the Pica-
yune plant , where the offending conduct took place; it was lost by the Union at the
De Ridder plant which was apparently free of such 8 (a) (1) violations.
Although when viewed before the election the above -related acts complained of
may have seemed clearly calculated to frustrate the employees in their efforts toward
self-organization , yet to advance them now, so long after the Union 's victory, as
being conduct which intimidates , restrains , and coerces employees in the exercise of
legally guaranteed rights, while technically correct, is, after all , raking cold ashes to
heat a stale concoction from which the flavor is gone.
The Trial Examiner finds on the record and from his observation of the witnesses
that the Respondent engaged in conduct violative of the Act, more particularly Sec-
tion 8 ( a) (1) thereof, at its Picayune plant on August 29, 1956, by the conduct of
Maintenance Superintendent Charles Manberg in exhibiting a document to employees
Eldridge Patch and Glen Holston wherein he clearly sought to leave the impression
that if the Union came into his plant wages would be cut to the alleged union scale
shown in the document.
The Respondent engaged in conduct violative of Section 8 (a) (1) of the Act by
the statement of Foreman Albert Taylor to employee Rufus L. Lumpkin made on or
about September 14, 1956, to the effect that if the Union came into the plant Lump-
kin would not be able to hold his job as a pipefitter but would be required to serve out
a 4-year apprenticeship.
The Trial Examiner further finds that the Respondent engaged in conduct violative
of Section 8 (a) (1) of the Act at its Picayune plant by the following conduct of
Vice President Tommie Crosby: His statement to employee Huey Ray Wise made
"about two weeks before the election " to the effect that the bonus was not being paid
because of the organizational effort of the Union among the Respondent 's employees,
and by a similar statement made to employee Ranel B. Williams.
The Trial Examiner is further persuaded on all the evidence considered as a
whole that during the course of the "slab " talk when Tommie Crosby answered the
question put by Quincey Willis to Crosby, Sr., he not only told Willis that the bonus
would not be paid but also added language to the effect that the organizational effort
of the Union prevented such payment.
The Trial Examiner finds this statement violative of the Act , more particularly
Section 8 (a) (1) thereof.
Together with his evidence of unlawful conduct by the Respondent prior to the
election the General Counsel brought forward testimony of alleged unfair labor
practices after the election.
There is no dispute that on the day following the election the Respondent removed
various chairs , stools, and boxes which the employees kept throughout the plant,
apparently without specific permission.
Haywood L. Tate, a "tall oil" operator , testified that before the election there
were 2 swivel chairs and 1 stool in the control room , on which the operators might
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sit when making a book entry, which was infrequent , or stand on to change the
charts on the control board which are changed once each month and can be easily
reached on the board by a man of medium height . At present two empty cans
have been brought into the control room , stored under a desk, and used to sit
on at lunch periods etc . The control room job is admittedly not a "sitting down job."
The Respondent contends that the chairs in the control room were not needed
equipment and were conducive to loafing by employees who merely dropped into
the room for such purpose , and that the chairs , etc., throughout the plant were
accumulated by employees without authority . Chairs, stools , and boxes had been
similarly removed before.
The General Counsel offered testimony that smoking was strictly prohibited in
the laboratory after the election . The Respondent admits this to be so but contends
that the "no smoking rule" was enforced because of a new chemical used in the
laboratory, producing volatile fumes.
It is clear that a smoking area was established just outside the laboratory door.
Wilbert Stewart, who was the General Counsel's witness to the new laboratory
rules, testified:
Q. Did you have "No Smoking" signs before the election ?-A. Yes, sir.
Q. Did you smoke before the election ? Did people in the lab smoke before
the election?-A: No, sir.
Q. Why don't you smoke?-A. "No Smoking" signs in the lab.
Further comment hardly seems necessary.
Frank McBeth testified that before the election 4 men , called "assistant pump
men," were employed to operate pumps moving oil from railroad cars and various
tanks, also to assist in repairing pumps, but that after the election this force' was
reduced to 2 men. It is clear that the two operators removed from the pump job
were not discharged but transferred to other work.
McBeth admitted that before the reduction in force he worked 40 hours regularly
and occasionally 48 hours each week while now he works 40 hours weekly.
The General Counsel in his brief states as to the removal of the chairs, the
no-smoking rule, and the reduction in force:
It is, of course , the contention of General Counsel that such conduct in
retaliation over the employees' selection of the Union as bargaining agent
was in violation of Sections 8 (a) (1) and 8 (a) (3) of the Act.
The Trial Examiner cannot agree.
In his brief the General Counsel also makes note of various discharges , layoffs,
and demotions made after the election . These matters crept into the record
largely through volunteered statements , not by direct proof. The General Counsel
states:
These demotions , transfers , and discharges are not alleged as 8 (a) (1) or
8 (a) (3) conduct . In some cases Respondent offered reasons for the action
taken and advanced excuses with respect to others. It is submitted that this
pattern of conduct serves to further demonstrate the strong union animus
which Respondent had.
This is of course a laudable, candid admission by the General Counsel that
these extraneous matters are mere window dressing and not put forward either to
prejudice or mislead.
B. The failure to make bonus payments
The complaint , as to Case No. 15-CA-985, alleges that the "Respondent during
the summer of 1956 withheld payment of a regular summer bonus" to its employees
in the De Ridder plant and further , as to Case No. 15-CA-995, withheld payment
of both the regular "summer" and the December bonuses at its Picayune plant.
Robert T. McRaney, the Respondent 's comptroller , testified that the bonus pay-
ments were made at both plants and have always been the same.
Robert H. Crosby, Jr., the Respondent 's president , also testified that both wage
rates and bonus payments were the same at both plants.
It is not disputed that in 1946 the Respondent made two bonus payments (July
and December) at Picayune and included De Ridder in the bonus payments of
December 1946 , although the plant began operations only the previous month.
In 1947 3 bonus payments were made at each plant and thereafter 2 bonus pay-
ments were made at each plant yearly until 1956 . Invariably 1 bonus was paid
in December preceded by 1 during the summer.
In 1946 no bonus was paid at either plant until December 20, at which time
the De Ridder employees were paid a bonus larger than any previous single pay-
CROSBY CHEMICALS, INC. 433
meat. On the same day a bonus was paid the watchmen at Picayune. The watch-
men were not in the bargaining unit claimed by the Union in the December 6
election.
President Robert H. Crosby, Jr., testified he had no knowledge of the Union's
organizational effort until the latter part of July 1956, having received such in-
formation from G. K. Bienvenu, the general superintendent of the De Ridder
plant, who testified he received the information from Control Chemist Jessie
Wheat, who testified he gave the information to Bienvenu together with permission
to pass it on. Crosby, Sr., and Tommie Crosby both denied knowledge of any
union activities until late July or August.
Crosby, Sr., testified that on June 4 and 5 at an informal meeting of his sons
and himself they decided to pay no "summer" bonus in- 1956. He testified:
We couldnt' pay a bonus because our earnings were down. We knew our
competitors were negotiating then with their employees on the wages and
we knew we had to raise wages.
The bonus was not paid, the pay raise was made on August 4, but before Christmas
according to Crosby, Sr.:
I wanted to pay the bonus at both plants, and I called Mr. Karl Mueller, our
attorney, and Karl told me, asked me to hold up the bonus for Picayune
employees because he would be faced with a negotiation with the union and
he didn't want to pay the bonus and not know what he would have to face
with the bargaining with the union, if the Picayune fellows would get the bonus.
As found herein the bonus was paid at De Ridder, and not paid at Picayune.
President Robert H. Crosby, Jr., testified:
Q. (By Mr. Mueller.) Just how do you go about determining whether or
not there will be a bonus paid at any particular time?-A. It depends on a
lot, and there is no particular time can be set. A lot of things go into the
determination of whether or not there will be a bonus paid and how much.
The condition of the business has a very important part to play, and also
the possibility of future business.
He further testified that the Respondent has no fixed formula in computing the
bonus, nor any fixed time for payment except that the Respondent "likes to give
a Christmas present."
President Robert H. Crosby, Jr., further corroborated his father's testimony
with respect to the meetings of June 4 and 5, at which it was decided not to pay
the "summer" bonus. He testified, "Frankly we were in the red over a half a
million dollars"; he testified that sales were off, and:
The other thing is we knew that we were going to have to have a wage increase
because our competitors earlier or at that time we had heard through the
trade that they were in negotiations for wage increases. So, we knew we
were going to have to come up with ours also.
On the same subject he further testified:
TRIAL EXAMINER: Do you have an agreement with your competitors that
you must pay them? (the same wage rates).
The WITNESS: No, sir.
TRIAL EXAMINER: Where is your nearest competitor located?
The WITNESS: We have two. The nearest one to Picayune is Hercules
Powder Company at Hattiesburg [Miss.] The nearest to the De Ridder
plant is the Newport Industries at DeQuency.
TRIAL EXAMINER: DeQuency is where?
The WITNESS: Louisiana.
President Robert H. Crosby, Jr., admitted that during 1956 the wages of the
competitor at DeQuency were lower than at the Respondent's plant, higher at
Hattiesburg.
Vice President Tommie Crosby also testified- that on June 4 and 5 the Respondent
determined to omit paying a bonus, knowing that "we had to make a substantial
wage increase." He testified further:
Well, we had at that time the interim statement for the preceding months
which ended May 31st, and we looked at the operating income from our plant,
and that was the big determinant factor in regard to the bonus.
487926-59-vol. 121-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He testified that the wage increase had no bearing on the determination to omit
a bonus because "our bonuses are not coupled with wages at all. They never
have been . Our bonuses are out of our surplus."
In support of the claimed financial condition of the Respondent , Tommie Crosby
testified at length from a "Profit and Loss Statement as of May 31, 1956 ," offered
and introduced by the Respondent.
Tommie Crosby, as well as the other officers of Respondent , testified that the
Respondent 's fiscal year ends October 31 . Tommie Crosby testified that in their
meeting, above referred to, the officers had before them the profit and loss state-
ment showing the financial condition of the Respondent as of May 31 . The General
Counsel called the attention of the witness to the fact that a Saturday and Sunday
intervened between May 31 , 1956 (Thursday ) and June 4 ( Monday ). Vice President
Tommie Crosby then testified:
Q. (By Mr. Champagne .) And you had this in your possssion June 4th?-
A. Yes, we certainly did.
Q. Does your accounting department work on Saturday and Sunday?-
A. Sometimes it does. Actually we didn 't have this statement in this form
on June 4th. The statement was actually handed to us on June 5th, but you
have been an accountant and you know before you prepare the statement you
have a work sheet which shows the same things that are typed on the sheet.
Q. You had the work sheets?-A . The work sheets were available before
that, but this is actually a copy from the interim statement that I had in my
hands on June 5th.
The Respondent 's testimony to the effect that it decided not to pay a "summer"
bonus for 1956 because of its unfavorable financial condition at the time , as well as
the testimony coupled with it to the effect that it was necessary to make a wage
increase at the time the bonus was customarily paid because its competitors were
about to do so, is not at all persuasive to the Trial Examiner.
If the Respondent 's contention as to the bonus is correct it need hardly have
bothered to go into its reasons for not paying or paying the bonus , for the Respondent
builds its defense on the claim that the payment of a bonus to its employees is entirely
voluntary and discretionary on its part, made on such terms and conditions as it
determined , and is not a term or condition of employment but merely a free gift to
its employees.
If this is so then surely the Respondent is under no compulsion to explain any of
its actions with respect to the bonus, for as the Respondent gives it can also take
away. However, although referred to by all its testifying officials as a wholly volun-
tary payment made out of surplus, the bonus , having been regularly paid for more
than 10 years ( if it originally had any incentive value, this had long since passed from
that stage ), had become due solely through longevity alone and was so deeply rooted
in custom as to const;tute an integral Dart of the Respondent 's wage structure. It
was so considered by the employees . The amount they might receive may have been
a gamble but that they would receive a bonus was a certainty.
This was clearly shown by the testimony of G. K. Bienvenu , general superintendent
at De Ridder, who testified that after he learned of the Union's organizational effort
among the employees he asked employees why they wanted organization and was
told that the effort sprang from the Respondent 's failure to pay the "summer" bonus.
He testified:
Q. And that was a complaint that was mentioned by many of the men , wasn't
it?-A. Well, about 50 percent , I guess, of those I talked to . Now I didn't talk
to all, of them.
Q. Now, when did you first become aware that the summer bonus was not
going to be paid at De Ridder in 1956?-A. Well, it just never came. I
mean-
Under all the circumstances herein , the record as a whole , and from his observation
of the witnesses the Trial Examiner is convinced that the bonus paid by the
Respondent was not a gift or gratuity but a sum added based in part on length of
service as an employee of the Respondent . As such the bonus was a wage expect-
ancy which came at regular recurrent intervals and was therefore part of the wage
structure and wages of the employees.
The Trial Examiner so finds.10
Although, as found above, the bonus was part of its wage structure the Respondent
would still be at liberty to discontinue its payment in a bona fide wage reduction,
10 For a discussion of the law applicable to bonus payment see Niles-Bement-Pond
Company, 97 NLRB 165.
CROSBY CHEMICALS, INC. 435
free to set its course of action but subject to its responsibilities , meaning of course that
such reduction must be in accord with provisions of the law governing labor relations.
In the opinion of the Trial Examiner the Respondent 's action does not meet the
conditions contemplated in the Act.
It having been found that the reasons advanced by the Respondent with respect to
its failure to pay a "summer " bonus are not bona fide , there remains only the conten-
tion of the General Counsel , which is that the bonus was not paid solely because of
the Union 's organizing campaign , and the Respondent 's intention to discourage union
activity among its employees.
That the Respondent's conduct was violative of the Act is apparent from credited
testimony of witnesses and admissions of the Respondent.
R. H. Crosby, Sr., admitted that he was strongly opposed to the Union. It is clear
that the Respondent engaged in a planned course of conduct , some of which has been
found to be illegal , in combating the Union 's'effort. It has been found that Vice
President Tommie Crosby told - employee Ranel B. Williams "that he had a list made
up on his desk before he left to pay the bonus, but he came back and found himself
in the middle of a hornet 's nest and couldn 't . . . without violating the labor law,"
and made substantially the same statement to employee Huey Ray Wise . It has also
been found that Tommie Crosby in effect said to Quincey Willis in the presence of a
group of employees that the bonus was not being paid because of the presence of
the Union. '
Jessie Wheat, who passed the information regarding the Union's organizational
effort to General Superintendent Bienvenu, testified without contradiction:
Q. (By Mr. Ambrister.) All right, what did Mr. Bienvenu say that Robert,
Jr., told him about the bonus, if anything?-A. As I remember it, the only thing
that he related directly was that Robert had said they couldn't pay a bonus at
that time. It would look like a bribe.
No notice of the decision to omit the bonus was posted but the employees were
left to make the discovery for themselves, and because "it just never came" were
clearly being told that union activity meant a loss of benefits.
The Trial Examiner on all the evidence in its entirety finds that the Respondent
omitted the payment of the initial or "summer" bonus at both its plants in 1956
in order to discourage union activity among its employees . The Trial Examiner
further finds that such conduct was violative of the Act, more particularly 8 (a)
(1) and (3) thereof.
C. The December bonus
It is admitted that after the election the Respondent on December 20 paid a bonus
to the De Ridder employees, but did not pay a bonus at Picayune. It is also admitted
that on May 25, 1957, the Respondent, during negotiation with the Union as the
representative of its Picayune employees, offered to pay the Picayune employees
a bonus, computed exactly as at De Ridder, upon certain conditions, thus using
the "December" bonus as a bargaining factor.
The bonus had not been paid to the Picayune employees at the time of the
hearing.
Conclusion
The Trial Examiner finds that by its failure to pay the "summer" bonus at its
De Ridder and Picayune plants, and by its failure to pay the December bonus at its
Picayune plant the Respondent has engaged in conduct violative of Section 8 (a)
(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in
connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and. commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirm-
ative action which will effectuate the policies of the Act.
Inasmuch as the amount of the bonus paid to its employees by the Respondent
and likewise the number of payments made yearly was kept within the discretion
of the Respondent, and although the 2 usual payments were not made during 1956
at the De Ridder plant, the payment made there in December was larger than cus-
4'36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomary and may therefore be reasonably presumed to have included the aggregate
sum had the bonus payment been made in 2 payments . The Trial Examiner there-
fore deems a recommendation of another payment to the De Ridder employees
to be a punitive gesture and will not so recommend.
This does not mean that the Trial Examiner believes the Respondent did not
engage in an unfair labor practice within the meaning of Section 8 (a) (1) and (3)
by failing to pay the "summer" bonus at De Ridder . Quite the contrary.
Inasmuch as the wage scale and bonus payment are the same at both plants, while
finding that the Respondent engaged in conduct violative of the Act by withholding
both the "summer" and the December bonus payments at the Picayune plant, the
Trial Examiner will recommend that a single payment , arrived at in the same man-
ner as previously at De Ridder , be made to the Respondent 's employees at Picayune.
The Trial Examiner therefore recommends that the Respondent pay the employees
at its Picayune plant , eligible therefor , a bonus for the year 1956 , including both
the "summer" and December payments customarily made, the payment to be in a
single payment and to be arrived at in the same manner as the bonus paid in Decem-
ber 1956 by the Respondent to its employees at its De Ridder , Louisiana , plant.
The Trial Examiner believes that the preventive purposes of the Act will be
thwarted unless the recommendations herein made are coextensive with the threat
contained in violations of the Act herein found . It will therefore be recommended
that the Respondent cease and desist from infringing in any manner upon the
employees ' rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Crosby Chemicals, Inc., Picayune , Mississippi , and De Ridder, Louisiana, is
engaged in commerce within the meaning of the Act.
2. International Chemical Workers Union, AFL-CIO, is a labor organization
within the meaning of the Act.
3. By withholding the payment of a regular semiannual bonus customarily paid
to its nonsupervisory production and maintenance employees at its De Ridder,
Louisiana , and Picayune , Mississippi , plants during the summer of 1956, and by
in addition thereto also withholding the payment during the month of December
1956 of a regular semiannual bonus customarily paid to its nonsupervisory pro-
duction and maintenance employees at its Picayune , Mississippi , plant , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By such conduct and discrimination and further interfering with , restraining,
and coercing employees in the exercise of the rights guaranteed in Section 7 of the
Act, as herein found , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Milk Drivers and Dairy Employees Local Union No . 246, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America and Mayco, Inc. Case No. 5-CC-
88. August 12, 1958
DECISION AND ORDER
On February 21, 1958, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that
Milk Drivers and Dairy Employees Local Union No. 246, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
121 NLRB No. 61.