Erskine Baking Company

National Labor Relations Board - Board Decisions

May 20, 1939

12 N.L.R.B. 1107 (N.L.R.B. 1939)

In the Matter of ERSKINE BAKING COMPANY and BAKERY AND CONFEC-
TIONERY WORKERS INTERNATIONAL UNION, LOCAL No. 25
Case No. C-694.-Decided May 00, 19-39
Baking Industry-Interference, Restraint , and Coercion : expressed opposi-
tion to "outside" labor organization-Company-Dominated Union: domination
of and interference with formation and administration ; support ; activities of
supervisory employees ; activities on company time and property ; disestab-
lished, as agency for collective bargaining ; contract with , abrogated.
Mr. Alexander E. Wilson, Jr. and Mr. David Shaw, for the Board.
Shepherd, Curry & Levine, by Mr. Clifford Curry, of Chattanooga,
Tenn., for the respondent.
Mr. H. G. B. King, of Chattanooga, Tenn., for the Union.
Mr. Alvin Moore and Mr. Jac Ch;armbliss, of Chattanooga, Tenn.,
for the Association.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge duly filed by Bakery and Con-
fectionery Workers International Union, Local No. 25,' herein called
the Union, the National Labor Relations Board, herein called the
Board, by Charles N. Feidelson, Regional Director for the Tenth Re-
gion (Atlanta, Georgia), issued its complaint dated April 4, 1938,
against Erskine Baking Company, Chattanooga, Tennessee, herein
called the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and an amended notice of hearing were duly
served upon the respondent, upon the Union, and upon Erskine
Bakery Employees Association, Local Unit No. 10 of the League of
Incorrectly designated as "Bakery and Confectionery Workers Local Union , No. 25" In
the charge.
12 N. L. R. B., No. 110.
169134-39-vol 12--71 1107
1108 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Democratic Unions,2 herein called the Association. On April 15,
1938, the Regional Director issued a notice of motion to amend the
complaint to allege that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (3) of the Act in addition
to the allegations in the original complaint. Copies of, the notice of
motion to amend were duly served upon all the parties.
The complaint as amended alleged in substance that the respondent
promoted, assisted, and sponsored the formation of the Association,
and has since contributed to the support, and dominated and interfered
with the administration, of the Association and that the respondent
discharged one of its employees because of her union activities. On
April 8 and 18, 1938, respectively, the respondent filed 'an answer
and an amended answer denying each allegation in the complaint
except specified ones relating to the nature of its business. On April
20, 1938, the Association filed a motion with the Regional Director
to intervene and participate in the proceeding.
Pursuant to notice, a hearing was held on April 20, 21, 22, and 23,
1938, at Chattanooga, Tennessee, before Hugh C. McCarthy, the Trial
Examiner duly designated by the Board. The motion to intervene
was renewed at the commencement of the hearing and was granted
by the Trial Examiner. The Board, the respondent, the Union, and
the Association were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-exam-
ine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. During the course of the hearing, upon agree-
ment of the parties that the discharged employee would be reinstated,
counsel for the Board moved that the charge alleging the violation of
Section 8 (3) of the Act be dismissed. - The motion was granted.
At the close of the Board's case, , counsel for the Board moved to con-
form the pleadings to the proof. The motion was granted. During
the- course of the hearing, the Trial Examiner made several rulings on
other motions and on objections to the admission of evidence. The
Board has reviewed all the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On May 26, 1938, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon all parties, finding that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (2) and Section 2 (6) and (7) of the Act, and recommending
that the respondent cease and desist therefrom, and, affirmatively,
completely withdraw all recognition from the Association and dis-
2 Incorrectly designated in the charge and complaint as "Erskine Bakery Unit of the
League of Democratic Unions."
ERSKINE BAKING COMPANY 1109
establish it as a representative of any of its employees for the pur-
poses of collective bargaining.
Thereafter, on June 16 and 17, 1938, respectively, the Association
and the respondent filed exceptions to the Intermediate Report. On
July 9, 1938, the respondent filed a brief in support of its exceptions.
All parties waived the opportunity accorded them to argue orally
before the Board. The Board has considered the exceptions of the
respondent and the Association to the Intermediate Report and
finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Tennessee corporation engaged in the business
of baking, selling, and distributing, cakes, cookies, and pies at Chat-
tanooga, Tennessee. It purchases approximately 90 per cent of the
raw materials used in its plant from points outside the' State and
ships approximately 32 per cent of its finished products outside the
State of Tennessee.
The respondent employs an average of 50 employees and does an
annual business of $102,000, of which $58,000 is derived from out-of-
State sales.
H. THE ORGANIZATIONS INVOLVED
Bakery and Confectionery Workers International Union, Local
No. 25, is a labor organization affiliated with the American Federa-
tion of Labor. It admits to membership all workers in Chattanooga
employed in the bakery and confectionery business, excluding sales-
men, clerical employees, porters, and supervisors.
Erskine Bakery Employees Association, Local Unit No. 10, is a
labor organization affiliated with the League of Democratic Unions.
It admits to membership only the employees of the respondent, ex-
cluding porters and officers.
III. THE UNFAIR LABOR PRACTICES
Since 1934 the Union had engaged in organization activities among
the bakery employees in Chattanooga. Although it succeeded in en-
listing a number of the respondent's employees, all efforts to negotiate
with the respondent proved fruitless. Shortly prior to August 1937
Curtis Sims, a union agent, requested H. P. Erskine, president of
the respondent, to enter into an agreement with the Union. Erskine,
however, delayed setting a date for a conference.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the summer of 1937 there existed in Chattanooga, the League
of Democratic Unions, herein called the League. Early in 1937 Jac
Chambliss, the attorney for the Association, had organized unaffili-
ated labor organizations in several lumber mills in and around Chat-
tanooga. Shortly thereafter, he incorporated the League as a
membership corporation composed of the presidents of these inde-
pendent labor organizations. The League has no treasury, offices,
or other property, and exercises no control over the labor organiza-
tions whose presidents constitute its membership. Through Cham-
bliss, the League has made available to persons interested in forming
independent labor organizations a mimeographed plan, prospectus,
constitution,, and bylaws. By merely filling in several blanks on
these forms, an independent labor organization may be established
in any type of plant.
On August 9, 1937, H. E. Pierce, a foreman in the respondent's
plant, and Frank Hickman, an employee, learned of the existence of
the League and decided to form a local labor organization to com-
pete with the Union in organizing the respondent's employees. On
the same day, Pierce telephoned Chambliss and arranged an appoint-
ment with him for the following day.
On the morning of August 10, 1937, Pierce, with permission of
Mrs. Pickering, the forelady in charge of the female employees,
spoke to three of the female employees during working hours about
his decision to form a local labor organization. Shortly afterwards,
he, Hickman, and the three girls, who had received permission from
Pickering to leave their work, proceeded to Chambliss' office, where
after a brief discussion they were supplied with mimeographed
instructions, bylaws, contract forms, and articles of association. The
girls were not docked for the time spent at Chambliss' office.
Early in the afternoon of the same day, Pierce called a meeting of
the employees on the day shift. At this meeting, which was held
on company time and property, Pierce read the plan for the organi-
zation of the Association to the employees, told them that "they could
do better with the League of Democratic Unions than with the
A. F. of L.," and promised them a 10-per cent increase in salary
and a 48-hour week if they signed the articles of association for the
Association. Pickering urged several employees to join the Asso-
ciation at this meeting and both she and Pierce signed the articles of
association. The same evening Pierce came to the plant and called
the employees on the night shift to a meeting in Erskine's office. He
repeated his statements made at the afternoon meeting and induced
many of the employees to sign the articles of association.
On August 14, 1937, Pierce, having received permission from the
treasurer of the respondent, summoned the employees who had joined
ERSKINE BAKING COMPANY 1111
the Association to a meeting on company property. Pierce presided
over the meeting, during which the members adopted bylaws and a
constitution and elected officers. By decision of the members pres-
ent, Pierce and Pickering were excluded from voting or holding any
office in the Association by reason of their supervisory duties.
In September 1937 the executive committee of the Association re-
quested the respondent to recognize the Association as the exclusive
bargaining representative of the employees. At the same time, the
committee demanded a closed-shop agreement and wage increases.
The respondent denied these requests.
On April 4, 1938, the Union called a strike for recognition. On
the same day the respondent recognized the Association as the exclu-
sive representative of its employees and entered into a closed-shop
agreement under which existing working conditions in the respond-
ent's plant were continued. The record does not disclose that any
union members were discharged as a result of the execution of the
closed-shop agreement.
At the hearing, it was stipulated by the parties that the employees
who had become members of the Association, if called as witnesses,
would testify that without coercion they had designated the Asso-
ciation as their collective bargaining representative and that they
had signed the articles of association voluntarily. In view of the
facts in this case, however, such testimony is immaterial in that it
would not show that the Association in its inception and administra-
tion was free of the respondent's domination and support.8 Further-
more, it is incredible that the open and vigorous participation of
Pierce and Pickering in the formation and administration of the
Association exerted no influence on the actions of the employees,
and to the extent that the stipulated testimony purports to set up
such a claim, we do not credit it.
We conclude that the respondent through its foreman, and with
the active assistance of its forelady, organized the Association and
foisted it upon the employees. Although the respondent denies that
it had knowledge of the activities described above, it is chargeable
with responsibility for the acts of its supervisory employees 4 It is
apparent that the Association is not the free choice of the respond-
ent's employees.
We find that the respondent dominated and interfered with the
formation and administration of the Association and contributed
support to it and thereby interfered with, restrained, and coerced its
8Cf Matter of West Kentucky Coal Company and United Mine Workers of America,
District No fS, 10 N . L. R B. 88.
•See Matter of Virginia Ferry Corporation and Masters, Mates, and Pilots of America,
No. 9; International Seamen's Union . 8 N. L. R. B 730: order enforced in Virginia Ferry
Corporation v. National Labor Relations Board, 101 P. (2d) 103 (C. C. A. 4th).
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the exercise of the rights guaranteed in Section 7 of the
Act. The closed-shop contract described above, having been made
with a labor organization established, maintained, and assisted by
the unfair labor practices of the respondent, was not entered into
pursuant to the proviso of Section 8 (3) of the Act and is therefore
illegal and void.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, above, occurring in connection with the operations of the re-
spondent 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
We have found that the respondent dominated and interfered with
the formation and administration of the Association, and contributed
support thereto. Therefore, in order to restore to the employees the
full measure of their rights under the Act, the respondent will be
ordered to withdraw all recognition from the Association as a repre-
sentative of its employees for the purpose of dealing with the re-
spondent concerning grievances, labor disputes, rates of pay, wages,
hours of employment, and conditions of employment, and to dises-
tablish it as such representative.
We have further found that on April 4, 1938, the respondent exe-
cuted an unlawful agreement with the Association. We shall order
the respondent to cease and desist from giving effect to said agree-
ment.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Bakery and Confectionery Workers International Union, Local
No. 25, and Erskine Bakery Employees Association are labor organi-
zations, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of Erskine Bakery Employees Association, and by contribut-
ing support thereto, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (2) of
the Act.
ERSKINE BAKING COMPANY 1113
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Erskine Baking Company, Chattanooga, Tennessee, and its offi-
cers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Erskine
Bakery Employees Association, or dominating or interfering with
the formation or administration of any other labor organization of
its employees or from contributing financial or other support to
Erskine Bakery Employees Association or any other labor organ-
ization of its employees ;
(b) Giving effect to the contract of April 4, 1938, with Erskine
Bakery Employees Association, or any renewal thereof;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Erskine Bakery Employees
Association as a representative of any of its employees for the pur-
pose of dealing with the respondent concerning grievances, labor
disputes, rates of pay, wages, hours of employment, or other condi-
tions of employment and completely disestablish Erskine Bakery
Employees Association as such representative ;
(b) Immediately post notices to its employees in conspicuous
places throughout its plant, and maintain such notices for a period
of at least sixty (60) consecutive days from the date of posting, stat-
ing (1) that the respondent will cease and desist as aforesaid;
(2) that the respondent withdraws and will refrain from all recog-
nition of Erskine Bakery Employees Association, as a representative
of any of its employees for the purpose of dealing with the respond-
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent concerning grievances, labor disputes, wages, rates of pay, hours
of employment or other conditions of employment; (3) that the
respondent completely disestablishes it as such representative; and
(4) that the contract executed with the Erskine Bakery Employees
Association is void and of no effect;
(c) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Decision and Order.