Greenville Cotton Oil Co.

National Labor Relations Board - Board Decisions

Dec 29, 1950

92 N.L.R.B. 1033 (N.L.R.B. 1950)

In the Matter of GREENVILLE COTTON OIL COMPANY and AMERICAN
FEDERATION OF GRAIN MILLERS, A. F. L.
Cases Nos . 16-RC--32 and 16-CA-125.-Decided December 09, 1950
DECISION AND ORDER
On December 15, 1949, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also
recommended that the election be set aside and the representation
petition be dismissed. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only insofar as they are consistent
herewith.'
1. Although the alleged refusals to bargain which precipitated
this case occurred in November and December 1947 and January 1948,
the Union did not file the original charge and serve a copy of it upon
the Respondent until December 18, 1948, considerably more than 6
months later. The proviso to Section 10 (b) precludes the issuance
of a complaint "based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such charge
is made . . ." The General Counsel nevertheless issued a complaint
in 1949 alleging in part violations of Section 8 (a) (1) and (5) which
occurred more than 6 months prior to the charge, and a violation of
Section 8 (a) (3) which, although occurring within the 6-month
1 The Respondent's request for oral argument is hereby denied, as the record and excep-
tions and brief, in our opinion, adequately present the issues and the positions of the
parties.
92 NLRB No. 175.
929979--51-vol. 92-67
1033
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period, was wholly dependent on these 8 (a) (1) and (5) allegations.
At the hearing the Respondent argued that the proviso precluded
the foregoing allegations. The Trial Examiner rejected this argu-
ment and sustained the complaint. In its brief to the Board, the
Respondent again argues that the proviso to Section 10 (b) precludes
such allegations of the complaint. We find merit in the Respond-
ent's argument.
The Act empowers the Board to prevent a respondent from en-
gaging in unfair labor practices only as therein provided.2 In the
amended Section 10 (b), Congress incorporated a specific mandate
that no complaint should issue "based upon" any unfair labor prac-
tice occurring more than 6 months prior to the filing and service of
the charge, which in this case took place on December 18, 1948. This
provision thus excludes all allegations based upon unfair labor prac-
tices occurring before June 18, 1943.3 Otherwise stated, the Act
authorizes the Board to make unfair labor practice findings only with
respect to such unlawful conduct of the Respondent as occurred on
and after that date 4 The principal .unfair labor practice alleged
during this period was the discriminatory refusal to reinstate the
strikers. In, view of the fact that the strikers had been permanently
replaced before June 18, 1948, and that there was no showing of any
vacancies available for them when they applied for reinstatement,
this refusal did not constitute an unfair labor practice unless it could
be shown that they had become unfair labor practice strikers before
being replaced.5 In other words, they were economic strikers who
took their chances on being replaced. Only if they can show that their
strike was caused or prolonged by unfair labor practices are they
entitled to preferred treatment.
But it is just such a showing which the proviso to Section 10 (b)
expressly prohibits, for any finding of an unfair labor practice strike
here would necessarily have to be "based upon" unfair labor prac-
tices occurring more than 6 months prior to the charges Because the
proviso thus" precludes finding an unfair labor practice strike and
2 Section 10 (a).
3 See Cathey Lumber Company, 86 NLRB 157.
4 See Cat hey Lumber Company, supra; Brown and Root, Inc., 86-NLRB 520; Westinghouse
Pacific Coast Brake Company, 89 NLRB 145.
5 Augusta Chemical Co., 83 NLRB 53; Dalton Telephone Company, 82 NLRB 1001. Cf.
N. L. R. B. v. Mackay Radio and Telegraph Co., 304 U. S. 333; Kansas Milling Company v.
N. L. R. B., 185 F. 2d 413 (C. A. 10).
6 Cf. Awelson Manufacturing Company, 88 NLRB 761, where the Board held that evidence
of alleged unfair labor practices occurring more than 6 months before the charge was
admissible only as background for interpretation or clarification. Cf. also Tennessee Knit-
ting Mills, Inc., 88 NLRB 1103, where the Board refused to base an unfair labor practice
finding even in part on alleged unfair labor practices occurring more than 6 months before
the charge.
GREENVILLEi COTTON OIL COMPANY 1035
the consequent discriminatory refusal to reinstate the strikers, we
must dismiss this allegation of the complaint.7 It follows that because
the strikers were permanently replaced, and because the Union did not
show that it represented a majority of these replacements on and after
June 18, 1948, we must also dismiss the allegation of an unlawful re-
fusal to bargain at any time during this period. In addition we shall
dismiss the allegations of the complaint to the effect that the Respond-
ent in any manner violated the Act before June 18, 1948.
2. The complaint further alleged, and the Trial Examiner found,
that the Respondent violated Section 8 (a) (1) after the beginning
of the 6-month period prior to the charge, and that it interfered with
the election of November 4, 1948. We agree with these findings, and`
shall issue an appropriate order."
ORDER
Upon the entire record in these cases, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the Respondent, Greenville Cotton Oil
Company, Greenville, Texas, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from basing reinstatement on the condition,
express or implied, that employees humble themselves and forget
American Federation of Grain Millers, A. F. L., or any other labor
organization ; promising employment in return for a favorable vote
in a Board election; threatening loss of employment if they vote in
favor of the said Union in a Board election; or in any other manner
interfering with, restraining, or coercing its employees in the exercise
of their right to self-organization, to form labor organizations, to join
or assist the said Union or any other labor organization, to bargain
collectively through representatives of their own choosing, to engage
7 While Member Styles joins in this holding for the reasons stated In the text, he Is
also of the opinion that any other construction of Section 10 (b) would constitute legisla-
tion by administrative fiat, a practice In which this Board should never indulge whether
the result would be favorable to the union or to the Employer. See the majority opinion
In New Jersey Carpet lfills, Inc., 92 NLRB 604. Doubtless the result reached here
works a hardship upon the employees who engaged in lawful concerted activity against
conduct which , but for Section 10 (b), the Board would hold constituted a refusal to
bargain. They now find that their failure , or that of their Union, to file charges within
6 months of that conduct has destroyed what would otherwise be their lawful right as
unfair labor practice strikers to reinstatement despite their replacement . While the
possibility may not have been foreseen that Section 10 (b) would have the kind of chain
reaction which has resulted in this case , nonetheless it is a result which the statute com -
mands.
8 When the Regional Director advises that the circumstances permit a free choice of
collective bargaining representatives , we shall direct a new election . See Calmer
Engineering Company, 90 NLRB 771.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition 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) Post at its Greenville, Texas, plant copies of the notice attached
hereto marked Appendix A.9 Copies of the said notice, to be fur-
iiished by the Regional Director for the Sixteenth Region, shall, after
being duly signed by Respondent, be posted by Respondent immedi-
ately upon receipt thereof and maintained by it for sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the camplaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent violated Section
8 (a) (3) and (5) of the Act, and that it violated Section 8 (a) (1)
before June 18, 1948.
AND IT IS FURTHER ORDERED that the election be, and it hereby is,
set aside.
MEMBER HousTON took no part in the consideration of the above
Decision and Order.
APPENDIX A
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, as amended, we hereby notify our employees that :
WE WILL NOT base the reinstatement of our employees on the
condition, express or implied, that they humble themselves and
forget AMERICAN FEDERATION OF GRAIN MILLERS, A. F . L. - or any
9In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted, before the words, "A Decision and Order," the words, "A Decree
of the United States Court of Appeals Enforcing."
GREENVILLE, COTTON OIL COMPANY 1037
other labor organization; nor promise employment in return for a
favorable vote in a Board election, or threaten loss of employment
if they vote in favor of the said Union in a Board election.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist the said Union
or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted ac-
tivities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, ex-
cept 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.
GREENVILLE COTTON OIL COMPANY,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Joseph A. Butler, for the General Counsel.
Mr. 0. B. Fisher, of Paris, Tex ., and Mr. Allen Clark, of Greenville , Tex., for
the Respondent.
Mullinao , Wells, and Ball, by Mr. L. N. D. Wells, Jr., of Dallas, Tex., for
the Union.
STATEMENT OF THE CASE
Upon a petition pursuant to Section 9 (c) of the National Labor Relations
Act as amended (61 Stat. 136), herein called the Act, filed on November 26, 1947,
by American Federation of Grain Millers ,' A. F. L., herein called the Union
and the International, the National Labor Relations Board, herein called the
Board, by the Regional Director of the Sixteenth Region (Fort Worth, Texas),
held a hearing on March 19, 1948. Thereafter, on August 19, 1948, the Board
issued its Decision and Direction of Election.
The Election was held on November 4, 1948. On November 15, 1948, objections
thereto were filed by the Union. On December 10, 1948, the Regional Director
issued his report on objections and challenged ballots in which he found that the
Union's objections were without merit and recommended that they be over-
ruled? On December 17, 1948, the Union filed exceptions to the report and a
'The Union' s name was changed from American Federation of Grain Processors to
American Federation of Grain Millers sometime between November 17, 1947, and December
18, 1947, and on motion of the General Counsel, the complaint was amended to reflect the
name of the Union as changed.
2 The Regional Director also found that the strike which had begun on January 19, 1948,
was an economic strike and not an unfair labor practice strike. At the time of his report,
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge alleging violations of Sections 8 (a) (1), 8 (a) (3), and 8 (a) (5), of
the Act, and on January 4, 1949, a first amended charge containing approximately
identical allegations.'
Upon investigation of the unfair labor practice charges, the Regional Director
on May 24, 1949, issued a supplemental report in which he revised his original
recommendation, and found that the Union's objections raised substantial and
material issues, and recommended that the proceeding be remanded for further
hearing on the objections and challenged ballots. On May 28, 1949, the Re-
spondent filed exceptions to the supplemental report.
By its order of June 7, 1949, the Board directed a hearing on the issues raised
by the Union's objections, the challenged ballots, and the Respondent's exceptions
to the supplemental report, and ordered the matter referred to the Regional
Director for the purposes of conducting such hearing.
On July 6, 1949, the General Counsel for the Board, by the Regional Director,
issued a complaint based on the first amended charge of January 4, 1949, alleging
that the Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1), (3), and (5), and
Section 2 (6) and (7) of the Act. On the same date the Regional Director
issued an order directing that the complaint and the representation cases be
consolidated. Copies of the complaint, of said charge, and of the order of
consolidation and notice of hearing were duly served upon the Respondent and
the Union.
With respect to the unfair labor practices, the complaint alleged in substance:
1. That Respondent on or about November 17, 1947, and since, and in violation
of Section 8 (a) (1) and (5), refused to bargain collectively with the Union
as the exclusive representative of all employees in an appropriate unit, and on
July 12 or August 14, 1948, and since, Respondent refused to negotiate with the
Union in regard to its request for mass reinstatement of the employees in said
unit.
2. That from November 17, 1947, and thereafter, Respondent through its officers,
agents, and employees, and in violation of Section 8 (a) (1) engaged in various
specified acts of interference, restraint, and coercion,' including interference
with the conduct of the election.
3. That on January 19, 1948, Respondent's employees went on a strike which
was caused by Respondent's previous unfair labor practices and which was pro-
longed by Respondent 's subsequent unfair labor practices , including Respondent's
refusal of the Union's offer on March 4, 1948, to terminate the strike provided
Respondent would recognize the Union and the Union's offer of March 19, 1948, to
agree to a consent election and terminate the strike, and Respondent's refusal on
no unfair labor practice charge had been filed and there was accordingly no foundation
for a finding that the strike was caused by unfair labor practices. Times Square Stores
Corp., 79 NLRB 361; Columbia Pictures Corp ., 85 NLRB 1085; Griffin Hosiery Mills,
83 NLRB 1240 ; and Triangle Publication , Inc., 80 NLRB 835.
3 The purpose of the latter change was apparently to reflect the change in the name
of the Union previously referred to.
4 The summary of the pleadings here made, as well as other references to the pleadings
herein, conform to the various amendments made during the hearing.
6 The General Counsel dismissed at the hearing, Paragraph 11 of the complaint which
alleged that the Respondent had engaged in interference, restraint, and coercion by the
obtaining of a certain injunction in the District Court of Hunt County and by the later
bringing of certain contempt proceedings thereunder . See footnote 14.
GREENVILLE COTTON OIL COMPANY 1039
said dates to reinstate the striking employees.' That Respondent on or about
June 20, July 19, and August 14, 1948, similarly refused reinstatement to said
employees ; that on various dates between August 16 and September 23, 1948,
Respondent had refused individual applications for reinstatement by 12 named
employees; and that Respondent, in violation of Section 8 (a) (1) and (3),
refused reinstatement as aforesaid for the reason that the employees had
assisted or become members of the Union or had participated in the strike or
had refused to work during the strike.
By its answer filed at the opening of the hearing, Respondent admitted the
allegations of the complaint relative to the nature of its business but denied the
commission of any unfair labor practices. It also denied that the strike of
January 19, 1948, was caused by any unfair labor practices on its part, denied
that any request for mass reinstatment of employees was made to it and that
it had refused such request, admitted that individual applications for reinstate-
ment were made by a number of employees and alleged that the jobs applied
for were not open and that the applicants abandoned their applications.
By amendment to its answer permitted at the hearing, Respondent charged
that the Union, its Local No. 22453,' their officers, agents, and members, and
various named employees,8 on and after January 19, 1948, "separately and col-
lectively, and individually and concertedly" engaged in various general and
specific acts of violence and threats of violence and engaged in "mass picketing"
of Respondent's plant in violation of the Labor Management Relations Act of
1947 and in violation of Article 5154 (d), Revised Civil Statutes of Texas. Re-
spondent pleaded that by said acts the Union had forfeited any right it had to
recognition as exclusive bargaining agent and that the individual employees
forfeited any right, if they had any, to reinstatement.
Pursuant to notice, a hearing was held from July 19 to August 4, 1949, inclusive,
at Greenville, Texas, before George A. Downing, the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner. The General Counsel, the Re-
The complaint originally listed the names of 42 striking employees, whom Respondent
allegedly discriminatorily refused to reinstate. A number of amendments were made
during the course of the hearing, both by way of addition to and subtraction from the
original list. As finally amended , the complaint listed 38 names as follows :
Willie R. Adams Leo Hendry Doc Ross
Lorenzo Anderson 0. V. Howell Emory Staten
Virgle Bailey Hosey Jackson J. C. Stevens
Curtis Bloyd Noble Jones Vermel Thomas
H. V. Bringle Lorenzo Lawrence John W. Thomas
S. R. Brown Floyd Lowe Will Thomas
Aubrey Camp J. E. Martin 0. Z. Wilkerson
Milo Dawson Charlie McCoy Dewey Wineinger
M. M. Deberry J. T. McCormack Henry Woodson
W. C. Gilstrap Rex McDonald Charlie Sneed Williams
Lorenzo Gilstrap J. F. Morgan Pat Finchum
Carl Finnie E. W. Norris Cornelius Johnson
Allen Hall E. J. Riddle
° This was a local union , whose members were employees of the International Milling
Company. The authorization cards introduced in evidence authorized the Union or "its
affiliated Local Union No. 22453" to represent the signatories. Ralph Cox, district rep-
resentative of the International , testified that prior to recognition by an employer and
the granting of bargaining rights, applicants are represented only by the International
Union and do not become members of a local. His testimony was corroborated by Lathen
T. Carter, president of Local 22453.
8 Respondent here named 25 out of the 42 striking employees , to whom the complaint
alleged Respondent discriminatorily refused reinstatement.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, and the Union were represented by counsel. Full opportunity to be
heard , to examine and cross -examine witnesses , and to introduce evidence perti-
nent to the issues was afforded all parties.
As the hearing opened, the Respondent filed separate motions to dismiss, to
strike various paragraphs of the complaint , and for a more definite statement
or bill of particulars. The motions to dismiss and for a more definite statement
were denied. The motion to strike was denied as to certain of the grounds,'
and ruling was reserved on others which are now hereby denied.
Respondent filed an amendment to its answer on July 21 . The General Counsel
moved orally for a bill of particulars thereto and said motion was granted in
certain respects. Thereafter, on July 25, Respondent filed its response to said
motion which the General Counsel moved to strike as not responsive to the
order. The motion was denied.
At the conclusion of the hearing, the Trial Examiner granted a motion, con-
curred in by all parties, that all pleadings and the charge be amended to conform
to the evidence with respect to names, dates, and places in matters not of sub-
stance. The parties were afforded an opportunity to make oral argument and
to file briefs, proposed findings of fact, and conclusions of law. Oral arguments
were made by the General Counsel and the union. Briefs have been received
from the Respondent and the Union.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Greenville Cotton Oil Company is a Texas corporation, having its principal
office, place of business, and plant in Greenville, Texas, where it is engaged in
the manufacture, processing, sale, and distribution of cottonseed oil, meal, cake,
mixed foods, and other products. In the course of its business, it causes a sub-
stantial amount of materials used in the manufacture of said products to be
purchased, delivered, and transported from and through States other than the
State of Texas to its Greenville plant and has continuously caused a substantial
part of the products manufactured, sold, and distributed by it to be supplied,
delivered, and transported from its said plant, to and through States other than
the State of Texas.
On these facts it is found that the Respondent was, at all times covered by the
complaint, engaged in interstate commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Grain Millers, A. F. L., is a labor organization
admitting to membership employees of the Respondent.
O Certain grounds of this motion attacked several paragraphs of the complaint for the
reason that the acts alleged were without the limitation period of 6 months . ( See Section
10 (b).) In denying the motion on those grounds, the Trial Examiner ruled that evidence
of such acts would be admissible in any event as general background and to show the
disposition and motivation of the Respondent.
GREENVILLE, COTTON OIL COMPANY 1041
III. THE UNFAIR LABER PRACTICES
A. The events
1. Respondent 's organization ; the plant and the physical setting
Since 1940 Respondent 's president and general manager has been P. A. Norris,
Jr. Norris has not lived in Greenville since 1941 and Respondent 's operations
have been managed locally by Hugh Cameron as resident or operating manager
and by G. A. Ward as plant superintendent . Other members of Respondent's
supervisory hierarchy during the period of the alleged unfair labor practices were
C. R. Hockett , assistant superintendent ; B. R. Medley , night superintendent ; J. B.
Chesser , head linter man ; Horace R. Arnold, called a sack sewer ; and the head
of the seed house, the latter of whom was not identified either in the present
record or in the earlier representation record.1°
Respondent 's normal operating complement was around 55 to 56 employees, and,
excluding supervisors , around 45 to 48 employees . Respondent ' s operations
were normally conducted on a seasonal basis,' the season ranging from 6 to
8 months in length and running from around the first of September into April.
Respondent ' s premises occupy a rectangular tract, roughly 2 blocks long
north to south, by a block and a half widen east to west ( approximately 350 feet
by 500 feet ), within the city limits of Greenville and approximately 3 to 4
blocks east of the main business section. The tract is bordered on the north,
west, and south by public streets (Lee, Bois D 'Arc, and Pickett , respectively) and
on the east by railroad tracks 39 Washington Street (paralleling Lee Street), 1
block to the south ) whose eastern terminus is at its intersection with Bois D'Arc
Street, would , if extended , bisect the premises . The main entrance to the plant
is on Bois D'Arc Street immediately opposite its intersection with Washington.
A public square ( called the Market Square and the "Jockey Yard" ), which
figures prominently in the testimony , occupies the entire block between Lee and
10 The Board in finding the appropriate unit in the representation proceeding excluded
the mill superintendent, the assistant superintendent, the night supervisor, the head linter
man, the sack sewer, the head of the seed house, and all other supervisors as defined in
the Act. Respondent endeavored to relitigate in the present proceeding the status of
sack sewer Horace R. Arnold (claimed not to be a supervisor) and of meal cook Vermel
Thomas (claimed to be a supervisor). Since its position was inconsistent with that taken
at the representation hearing and since respondent made no claim of newly discovered
evidence or offered other excuse for its failure to adduce the evidence in the representation
hearing, the evidence was excluded on objection of the General Counsel and the Union.
Grede Foundries, Inc., 83 NLRB 201 ; S. W. Evans & Son, 81 NLRB 161; and N. L. R. B. V.
Worcester Woolen Mills, 170 F. 2d 13, cert. den. 336 U. S. 903.
In Arnold's case other evidence, which was not objected to, confirmed Arnold's status
as a supervisor. In Thomas' case the evidence bearing on his supervisory duties was
considered as received under an offer of proof. It fails to establish that he was a super-
visor. It establishes that he had no authority to hire, fire, or discipline other employees
or effectively to recommend such action or responsibly to direct them, and that he had no
responsibility for or control over the men in the performance of their dutiea'except to call
them from their rest period by blowing a whistle. If the other employees did not perform
their jobs properly, Thomas could only report such fact to the plant superintendent.
n Cameron testified, however, that when employees were hired it was understood that
the employment was permanent, and that the employees were generally so informed.
12 Excepting a lot at the northwest corner, 75 feet by 110 feet, occupied by a filling
station.
23 Two rail sidings also enter the track from the south, across Pickett Street.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Washington Streets, west of Bois D'Arc Street and west of the northern half of
the Respondent's premises.
A number of plant buildings and tanks are located on the tract, and Respond-
ent's offices occupy a building fronting on Bois D'Arc Street immediately south
of the main entrance.
2. Summary of main events and issues
Organizational activities among Respondent's employees began in November
1947. By November 17 a large proportion of Respondent's production and main-
tenance employees had signed authorization cards, and on that date the Union
requested recognition and bargaining rights. Negotiations were had or at-
tempted down to January 19, 1948, but Respondent did not accord recognition,
asserting doubts of the Union's majority and of the appropriateness of the unit
contended for by the Union.
Evidence was offered that between November 17 and January 19 Respondent
engaged in certain acts of interference, restraint, and coercion. A strike oc-
curred on January 19, which the General Counsel attributes to said acts and to
Respondent's refusal to recognize and to bargain with the Union. Respondent,
on the other hand, contends that the strike was an economic one.
The strike was never settled, though picketing ceased entirely in June 1948.
On February 17, 1948, Respondent obtained a temporary restraining order
without notice from the District Court of Hunt County, Texas, on a petition
which charged the Union, the local, their local officers, and the, striking em-
ployees with mass picketing within the meaning of Article 5154 (d) Revised
Civil Statutes of Texas and with various threats and acts of violence. A tempo-
rary injunction was entered by the court on February 28, 1948, after a hearing
on February 27.14 It was not appealed from and has not since been dissolved.
The representation hearing was held on March 19.
On dates which were variously fixed as in June, July, August, and Septem-
ber 1948, committees which had been appointed at union meetings applied
separately to Ward and Cameron for mass reinstatement of the strikers, but
the applications were denied 11
On August 19, the Board issued its Direction of Election and the election was
held on November 4, 1948. Evidence was offered that Respondent subsequent
to August 19 engaged in various acts which interfered with the conduct of the
election 1°
The main issues in the case are whether the strike was an unfair labor
practice strike or an economic strike, whether the Respondent was guilty of
a refusal to bargain as charged, whether its refusal to reinstate the strikers
14 Respondent also obtained a temporary restraining order without notice on February
26, 1948, enjoining the peaceful picketing of the railroad tracks leading into the plant and
obtained a temporary injunction after a hearing on March 4. It also instituted on March
9, 1948, contempt proceedings against certain members of the Union and of the local, and
on March 12 after a hearing, three of the defendants (Leo Hen[d]ry, J. E. Martin, and
Kenneth Greer) were held in contempt. This injunction and the conviction in contempt
thereunder was later held to be void by the Supreme Court of Texas in habeas corpus
proceedings in the case of Ex Parte Henry, 215 S. W. 2d 588; 22 LRRM 2592.
15 Meanwhile, at various times down to the date of the hearing, various striking em-
ployees made individual applications for reinstatement. Some were granted and some
refused. In the case of each refusal , the refusal was grounded only on the claim that
the employee had been replaced and that there were no jobs available.
11 Post -election acts and proceedings have been summarized under Statement of the Case,
supra.
GREENVILLE, COTTON OIL COMPANY 1043
was discriminatory, and which of the strikers are not entitled to reinstatement
and for what reason. Other issues include the limitation question (Section
10 (b) ), the commission of alleged acts of interference with the election, and
the question whether the election should be set aside.
The organization of the Union ; the request to bargain
Organizational activities among Respondent's employees began in Novem-
ber 1947 when H. V. (Cotton) Bringle, Respondent's engineer, contacted Local
No. 224531P for information on how to organize. Ralph Cox, district repre-
sentative of the International, thereafter came to Greenville and held a meeting
on November 13 with Respondent's employees. A subsequent meeting was held
on November 15, and authorization cards were signed by approximately 39
employees on November 15, 16, and IT.
On November 17 Cox advised Cameron, by telegram and by letter, that the
Union represented a majority of the employees and requested an early meeting
"to start negotiating a contract."
4. Interference, restraint, and coercion
The organizational activities came immediately to the Respondent's attention.
Ward, testifying for the Respondent, admitted that several days before the
receipt of Cox's letter on November 17, he had heard from an employee a
rumor that a union was being organized. He testified that he reported that fact
to Cameron and that after receipt of Cox's letter, Cameron commented, "Well,
it seems as though you are right, there is an organization or was an organization
formed and they have organized."
Disbelieving the Union's claim that it represented a majority, Ward testified
that he questioned Bringle, Virgle Bailey, and Tom Williams (all of whom
were good friends of his as well as members of his Sunday School class) about
whether they had joined the Union. When each admitted joining, to his great
surprise, Ward testified he no longer had doubt that the Union was pretty
firmly entrenched.
Indeed, there is credible evidence that Ward was informed of the actual
strength of the Union. Thus Bailey testified that in addition to inquiry as to
his membership, Ward inquired how strong the Union was and that he in-
formed Ward that membership would run "better than 90 percent."
Although Ward testified that he later mentioned to Cameron the fact of his
inquiries, he testified that he did not inform Cameron of his belief as to the
extent of the Union's entrenchment. However, that subject was apparently a
matter of discussion between them, since Bringle testified that in the conversa-
tion in which Ward made inquiry of his union membership, Ward also quoted
Cameron as saying that he would "bet his last dollar that [Bringle] wouldn't
fool with it."
Bringle also testified that the conversation continued as follows :
Ward said , "Mr. Phillip Norris will tear the mill down and move it out of
town before he will recognize it." And I said "He'd better go to tearing
it down, then , and moving it out." And Mr. Ward said, "I could pull you
out of here , if I was a mind to, right now."
"Composed of employees of International Milling Company (frequently referred to in
the record as the "flour mill"), whose plant was also located on Bois D'Arc Street approxi-
mately 2 blocks south of Respondent 's plant.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel also offered the testimony of Leo Hendry, Cornelius
Johnson, and Rex McDonald that Ward had also questioned each of them as
to his union membership shortly after the inception of the organizational activi-
ties. Ward denied making such inquiries.
In view of the general similarity of the inquiries attributed to Ward and
his admission that he had made inquiries of Bailey, Bringle, and Williams, it
is found, from a preponderance of the evidence, that Ward in fact made the
inquiries and statements attributed to him by the General Counsel's witnesses.
Other coercive statements and inquiries were attributed to Horace R.
Arnold" by J. E. Martin, Willie R. Adams, and Doc Ross, who worked under
Arnold in the meal room. Martin testified that shortly after he joined the
union on November 15 Arnold questioned him about his membership and that
when he admitted joining the Union, Arnold commented, "you boys have
played Hell . . . if I have anything to do with it, I will have every God damn
one of you fired. You may just as well forget the damn Union. I heard Mr.
Norris say he is going to tear this thing down and move it." Martin testified
that Adams and Ross were present and within hearing distance.
Adams testified that on one occasion after November 15 he heard Arnold
any that all the employees were fools for even joining up with the Union, that
it never would amount to anything, that if he had his way about it, they would
all be fired immediately, and that Arnold also quoted Norris as saying that he
would move the mill off and let it grow up in Johnson grass before he would
ever recognize the Union.
Ross testified to statements by Arnold of nature and content similar to those
testified to by Martin and Adams. On cross-examination, however, his testimony
became extremely confused and in its entirety it is not of significance save as it
may be considered as corroborated in a general way by the fact that Martin and
Adams testified to similar statements by Arnold.
Arnold admitted knowledge of the organizational activities but flatly denied
the inquiries and statements attributed to him. Arnold also admitted that Adams
had informed him of his union membership shortly before the strike. Arnold's
.denials are found to be inadequate to overcome the preponderant weight of the
testimony of Martin and Adams. It is therefore found that Arnold in fact made
the statements attributed to him by Martin and Adams as above summarized.
It is further found that said statements as well as Ward's statements to and
inquiries of Bailey and Bringle and his inquiries of Williams, Hendry, McDonald,
and Johnson constituted interference, restraint, and coercion within the meaning
of Section 8 (a) (1) of the Act. Standard-Coosa-Thatcher Company, 85 NLRB
1358.
5. Negotiations prior to the strike
Upon receipt of Cox's letter of November 17, requesting Respondent to recognize
the Union and to begin bargaining, Cameron called Norris on the telephone at
Paris. Norris immediately contacted his attorney, O. B. Fisher, also of Paris,
and entrusted to him the handling of the negotiations. Norris instructed
Cameron not to interfere in any way with the organizational activities and to
report direct to Fisher and to refer to him all matters concerning the Union's
claim for recognition and its request to bargain. Fisher subsequently acted as
Respondent's representative throughout the negotiations. However, Fisher did
not testify as a witness, and the course of the negotiations as herein found is
Is Who held the title of sack sewer and who has been found to be a supervisor. See
footnote 10.
GREENVILLE COTTON OIL COMPANY 1045'
established mainly by the testimony of Cox and to a limited extent by that of
Wellborn, Norris, and Cameron.
On November 26 Cox filed a representation petition with the Regional Director
claiming 39 members in an estimated unit of 48 employees and also filed the
signed membership cards. Cox later received Fisher's reply, dated November
25, to his letter of November 17 in which among other things, Fisher requested.
that the Union furnish the Respondent with facts supporting its contention,
that the Union had been "recognized or certified as bargaining agent for the
employees."
Cox replied on November 28 that aside from the information given Cameron
on November 17 all the information supporting the Union's claim had been sent
to the Regional Director of the Board. Cox also referred to the Regional Direc-
tor's letter to Cameron of November 26 (a copy of which he had received and
which had suggested a conference to work out an agreement for a consent-
election) and stated that he would be in Greenville shortly to arrange such a
conference.
Cox came to Greenville on or about December 4, called Cameron and inquired
about Respondent's position as to recognizing and bargaining with the Union..
Cameron referred him to Fisher. Cox then called Fisher at Paris and requested.
a conference. Pleading other engagements, Fisher put off Cox's attempts to
arrange a meeting until Friday, December 12, when a meeting-the single bargain-
ing conference throughout the negotiations-was held in Greenville.
Cameron and Ward were present with Fisher but took no part in the con-
ference. Cox again requested recognition and bargaining rights. Fisher's:
response was that he did not have any proof that the Union represented a ma-
jority," that it had any cards signed up. Cox replied that the only proof he
had was in the hands of the Board with whom he had filed the 39 signed cards..
Fisher then questioned the authenticity of the cards saying, "We can't go
on cards. How do we know how you obtained the signatures?" Cox replied
that he could certainly show evidence that the cards were signed and suggested
if Fisher did not believe him, that Fisher call the Regional Director. Fisher
still insisted that the cards were not proof enough, saying, "How do I know
how you obtained the signatures?" Cox assured him the signatures were genuine
and were not forged.
Cox then suggested that if there were any doubt as to the majority, the easiest
way to determine the question was by a consent election. Fisher inquired
whether the Union would be willing to divide the plant into four units (the
seedhouse, the mea]room, the linter room, and the cakehouse), and suggested
four separate elections and four separate contracts. Cox replied that he did
not consider four units appropriate and did not think the Board would agree to
four units. Fisher concluded by stating that in that case he would not agree
to a consent election. Cox suggested a further conference but Fisher was unable
to specify a date for one.
On December 16 and 23, Cox continued his attempts to arrange conferences
with Fisher, but each time was put off. On the latter contact, Fisher stated
that he would be unable to meet until January 8 or 9.
Before Cox's next contact with Fisher, the employees had become very much
disturbed over the lack of progress in obtaining bargaining rights and were
.
19 In the face of Fisher ' s questioning of the Union ' s majority , Ward sat by mutely, with.
out divulging the fact that his own doubts had been resolved and that information which.
he had obtained as a result of his inquiries among the employees squared almost exactly
with the Union 's claim of membership . (Cf. the 86 percent claimed in the representation
petition with the "over 90 percent " mentioned by Bailey to Ward.)
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considering a strike. These facts were reported by Wayne Strader (secretary of
Local 22453) to Roy 0. Wellborn, vice president of the International and Cox's
superior.
Wellborn came to Greenville on January 7, 1948, attended a meeting of
the employees, heard first-hand the employees' complaints about the failure to
obtain recognition and bargaining rights, and answered their inquiries as
to whether they could legally strike. Wellborn requested the employees not to
take strike action but to give Cox and the Board another chance to see if the
company would recognize and bargain with the Union.
The employees agreed to postpone strike action for approximately 10 days,
or to Sunday, January 18, and Wellborn agreed to have Cox there for the meeting
to make a full report on his activities.
Cox reached Fisher by telephone on January 9, and urged another bargaining
conference. He repeated to Fisher, Wellborn's report that the employees had
become very much disturbed by the Company's refusal to recognize and bargain
with the Union, that they had threatened a strike and were on the point of
taking a strike vote, but that Wellborn had persuaded them to postpone the vote
to give Cox another opportunity to arrange a conference.
Fisher stated that he would have to talk with Norris and did not know when
he could meet. Cox suggested that Norris attend the conference, but Fisher said
that would be impossible.
With reference to the imminent strike vote, Fisher said that "if that is the
way the boys feel we will just let it go to a hearing." Fisher also stated, in
response to Cox's inquiries, that he was refusing to bargain and that he would
not agree to a consent election. Cox pointed out that a hearing would be a long
drawn out affair, that the operating season would be over before it was settled,
and that the employees would not stand for the delay. Fisher restated, "We
will let the matter go to a hearing."
Norris testified that Fisher called him in Raymondville, Texas (as a result of
Cox's call).20 and informed him that Cox had stated that unless the Company
recognized the Union without an election, the plant would be closed down.
Norris, though claiming doubts of the Union's majority, admitted knowing
that a consent election was the easiest way to determine whether the Union
represented a majority. He testified further on cross-examination that at all
times after November 17, he was willing to have had an immediate election in
the single unit contended for by the Union, or in separate units if the majority
of the employees wished. Norris admitted, however, that neither Cameron, Ward,
or any of the supervisory staff had ever informed him that their position was
that there should be separate units.
And though claiming he wished to avoid the strike, Norris testified that he
made no suggestion to Fisher that Fisher endeavor to meet and negotiate with
the Union nor did he acquaint Fisher with his position on the unit or on a con-
sent election, nor did he suggest that Fisher do anything to expedite the election.
6. The strike; subsequent developments
The scheduled meeting of the employees was held on Sunday, January 18.
Cox attended and made a full report of his negotiations and of his attempts to
obtain recognition and bargaining rights. He reported Respondent's refusal
to agree to a consent election and its insistence upon a hearing. After further
20 Norris was under the impression that Fisher 's call was as early as January 5, but it
is clear from the evidence as a whole that it followed the employees' meeting with Wellborn
on January 7.
GREENVILLE COTTON OIL COMPANY 1047
discussion , Cox left the meeting and a strike vote was taken . The vote carried,
approximately 28 votes to 7, and as a result approximately 45 striking employees
did not report to work on the morning of Monday , January 19.
Cox called Cameron on the 19th , informed him the employees had struck in
protest of the Respondent 's refusal to recognize and bargain with the Union.
Cameron responded that he was sorry but that he could do nothing about it. Cox
also confirmed the conversation by telegram , further advising Cameron that ."If
your CO. wishes to get in touch with me I can be reached at the Washington
Hotel."
Cox remained at the hotel during the week of the 19th, but no representative
of the Respondent contacted him. Cox called Cameron on the 22nd and inquired
whether Respondent had changed its position as to reorganizing and bargaining
with the Union , saying, "I think we have proved our majority . It is on strike . . .
and you can see our men on the picket line." Cameron stated that the matter was
in Fisher 's hands and suggested that Cox call Fisher.
Cox then attempted to reach Fisher in his office at Paris, but was informed that
Fisher was out and it was not known when he would return.
In the meantime the strikers had posted a picket line on January 21. . Between
that date and February 16, there occurred various alleged incidents of threats,
violence , and mass picketing on the basis of which Respondent obtained the in-
junctions in the State court referred to at page 1042, supra . Those incidents will
be referred to in more detail under discussion of the question of reinstatement
of the strikers beginning at page 1059 , infra. '
On February 12, Wellborn received a telephone call from Longview , Texas,
from Ray Major , of the Federal Mediation and Conciliation Service, who put
Fisher on the line. Wellborn told Fisher he had been on the point of calling
Fisher to see if they "could get together" on the Greenville situation . His re-
cital of the conversation is as follows :
Mr. Fisher said, "Well, we don 't know why the people are out on strike,
but we would certainly like to get the plant running." I said, "Well, Mr.
Fisher, you certainly know why the men are out on strike , or at least, you
should know. All those people want is to get you to recognize and bargain
with them , and do you suppose if I send Mr. Cox into Greenville , that he and
Mr. Cameron could get together on this situation ?" Mr. Fisher said, "No,
Mr. Cameron will not make any attempt without a hearing." Mr . Fisher
then said , "I know you don't want a hearing on account of the time element
involved , and we will certainly not have any dealings with those people with-
out a hearing." I says, "Well , Mr. Fisher , all we want to do is to have your
Company recognize and bargain with these people." Mr. Fisher says, "Well,
I am just a country lawyer and I don ' t know anything about labor unions,
I have only had dealings with one other labor union , and as yet we have not
signed a contract with them." I said, "Well , Mr. Fisher , if that is the posi-
tion that you take, I can't see that we are in any position to advise those
people to go back to work under those circumstances ." Mr. Fisher says,
"Well, that's our position." ... That ended our conversation.
Around the 4th of March, Cox called Fisher and inquired whether the company
had changed its position . Fisher stated that he did not believe the Union repre-
sented the men at the plant any more, or that there was any recognizing to be
done, or any settlement to be reached ; and he repeated his refusal to bargain.
The representation hearing 2' was held on March 19. Fisher represented the
21 Over Respondent's objection, the Examiner granted the Union's motion that the^plead-
ings and proceedings ( including the transcript of the representation hearing ) be consid-
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent and L . N. D. Wells, Jr., the Union . Fisher 's contention , among other
things, was that six units were appropriate ( linter room employees, pressroom
and separating room employees , mealroom and loading employees , seedhouse em-
ployees, engine room employees , and mixed feed employees).
During the course of the hearing , Wells referred to the Union 's previous
requests that the Respondent enter into a consent election agreement and he
repeated the request. Fisher refused. Wells then stated that if the Re-
spondent would agree to a consent election , the Union would terminate the
strike, and he followed that offer with the following one:
While we think that the only possible appropriate unit is the.unit con-
tended for in the petition we are willing for the purpose of settlement of
the strike and to establish industrial peace at the plant, to enter into
separate consent election agreements in the units for which the company
is contending if they desire to do that.
Fisher rejected the offer.
Bringle, who was present at the representation hearing, testified that Fisher
approached him after the hearing was concluded and said, "Bringle, I can
talk to you. I believe if you and I could get together we could settle this
matter" ; that when he replied that he and Cox were ready at any time, Fisher
responded, "I will not meet Mr. Cox, but if you and I can get together we can
settle this matter." Bringle informed Fisher he could not settle alone.
7. The applications for mass reinstatement and the refusal to reinstate
The record is barren of incident for a period of approximately 3 months sub-
sequent to the representation hearing."
At a meeting of union members held around June 10 or June 16, Wayne
Strador, secretary of Local 22453, reported a conversation with Union Counsel
Wells in which Wells had approved the idea of an application for mass rein-
statement. After discussion, the members adopted the suggestion and appointed
Howell as their representative to make an application to Ward for mass rein-
statement of the strikers "just as they came out." Howell requested J. E.
Martin to accompany him.
On Sunday, June 20,24 having previously made an engagement by telephone,
Howell and Martin conferred with Ward at the plant. Their version of the
eyed as incorporated in the present record. Respondent apparently waives its objection
in its brief since it urges that the "entire record in the representation case be looked to
and considered " in connection with a contention made by the Union.
22 Evidence was offered of a few minor statements of a coercive character which occurred
between the calling of the strike and June 18. However , since they occurred outside the
prescribed limitation period . ( see p . 1057, infra ) and since there is no evidence that they
were related to the prolongation of the strike, a summary is omitted in the interest of
brevity.
23 This date is fixed definitely by Howell and Martin whose testimony received corrobora-
tion from witnesses Strador , Bringle, McDonald , Sneed Williams , and Thomas, all of
whom fix the date of the first meeting as shortly before June 19 and the date of the subse-
quent meeting at which Howell and Martin reported the results of their conference as-
also in June. Ward endeavored to fix the time as in late August or early September but
admitted that he had previously been unable to fix the date in a conversation with a field
examiner . The testimony of the General Counsel 's witnesses clearly preponderates and
is credited.
Ward and Cameron also testified that the application to Ward followed one made by
Howell and Bringle to Cameron . However , the testimony of the above witnesses for the
General Counsel establishes clearly that the first application was made to Ward, and upon
its refusal , a subsequent application was made to Cameron . Their testimony is credited
GREENVILLE COTTON OIL COMPANY 1049'
conference may be summarized as follows : Howell (who did most of the
talking) stated that he and Martin had been appointed as representatives of
the group to see Ward about the reinstatement of the men as a group as they
had gone out. Ward replied that he could not do that as the company would
not allow it, and furthermore that he could not talk to them as a group or as
representatives of a group. Ward also added that "before any of you men get
back to work you will have to humble yourselves." Howell asked what Ward
meant by that statement and Ward replied, "You will have to get down on
your knees." Martin testified that Ward also said, "You don't have any
union, boys. You joined the grain crushers. This is the cotton seed. You
just as well forget it. You just don't have any union at all," and that he added,
"I can't hire you as a group. Mr. Norris would kick me out in the Pacific
Ocean if I did that."
Ward's version of the conversation is as follows : That Howell said,
"Mr. Ward, some of the boys and myself have met and would like to go back
to work under the same conditions as we were when we quit" ; that he replied,
"Ollie, how many of them are there?" and Howell said, "Well, there is a group
of us"; that he replied, "Ollie, we can't use the group because I am full-handed
and you know that I don't hire men by groups, but if those men will come and
place an application, I will do to you as I have done the ones that have already
come back." He also testified that Howell then asked him, "Well, how about
me going to work?" and that he replied, "Your job has been filled and I do
not have a place for you."
As is seen, the salient facts are not in substantial dispute. Ward admitted
the application and his denial of it. However, he described the application
as phrased in such indefinite terms that it would not clearly appear to have
been made on behalf of the union members or on behalf of all the striking em-
ployees. He also denied making the additional statements attributed to him by
Howell and Martin, whose versions are in substantial accord.
It is clear from the entire evidence surrounding the incident that Ward
certainly knew or should have known that Howell and Martin were acting as
representatives of the striking employees. Indeed, Cameron admitted that
Ward informed him that Martin and Howell had requested reinstatement of the
strikers. Furthermore, Ward's affidavit (offered for impeachment purposes)
given to a field examiner several months in advance of the hearing, quoted
Howell as saying that "We've all met and decided" to come back in a group
[Emphasis supplied.] The undersigned therefore credits the testimony of Howell
and Martin and finds that the incident occurred substantially as they testified.
At the next union meeting following June 20 (and during the month of June),
Howell and Martin reported the results of their conference with Ward. The
members thereupon appointed Howell and Bringle as their representatives to
make a further application to Cameron for reinstatement of the group. Howell
first made an engagement with Cameron for Saturday, July 10, but called
Cameron and postponed it to Monday, July 12 .24
Howell and Bringle testified substantially in accord as follows : Howell in-
formed Cameron that he and Bringle had been appointed by the employees to
apply for group reinstatement, that is, to return to work in a group on the
24 This date was definitely fixed by Howell and Bringle, and again their testimony re-
ceived corroboration by that of other employees who attended the meetings at which the
representatives were appointed. Cameron endeavored to fix the date as August 16. The
preponderant and corroborated testimony of the General Counsel's witnesses is accepted.
929979-51-vol. 92-68
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same basis as they had gone out. Cameron refused to talk with them as repre-
sentatives of a group or union but stated, "If you boys will come back one at
a time I will take your applications and probably put you to work when
jobs open."
Cameron's testimony does not vary widely from the foregoing, though as in
Ward's case he contended Howell did not clearly specify what group he was
representing. However, while testifying as an adverse witness called by the
General Counsel, Cameron admitted that Howell had stated that he and the
other former employees were ready to resume working for the company on the
same basis and under the same conditions as existed during their former
emplyoment. It is therefore found, from the evidence as a whole, that Cameron
well understood that Howell and Bringle were acting as representatives of the
striking employees and were making application for their mass reinstatement.
A further request for reinstatement was made on July 7, 1949, when union
counsel wrote Respondent as follows :
In behalf of the individuals named below, we hereby request full reinstate-
ment of each of said individuals to their former positions in the employment
of the Greenville Cotton Oil Company, Greenville, Texas.
These individuals are available for immediate employment and in the
event the company resumes production at any time this season, they are
ready and willing and desire to be reinstated to their former positions.
The letter named the 42 employees originally listed in the complaint.
Respondent's reply dated July 21 and written by Cameron was as follows :
We were surprised to learn that you are now making application for
re-employment of the persons named, since some of them are unknown to us,
some are now working for the Company, some are permanently employed
elsewhere, some are out of this area, and some have refused employment.
We have presumed that the majority of the men named did not desire
employment with us, as we have heard from very few of them since late
last Summer or early last Fall.25
In the meantime, on various dates subsequent to June 18, 1948, individual
applications for reinstatement were made by a number of the strikers. In view
of the conclusions reached herein as to Respondent's refusal of the earlier
applications for mass reinstatement, it is considered unnecessary to summarize
the evidence as to the individual applications. Suffice it to say that there was no
substantial conflict in that evidence, since Ward and Cameron admitted freely
the circumstances under which they were made and the reasons assigned in each
case. Except for two or three instances where the striker was reinstated, the
evidence is not in conflict that the excuse given in each case in denying the
application was that the striker's job had been filled and that there were no
jobs open.
8. Interference with the election
The General Counsel offered the testimony of a number of witnesses to state-
ments by Ward, subsequent to the Direction of Election, concerning voting in
the election.
Sneed Williams testified that when he applied for reinstatement in Septem-
ber 1948, Ward told him that he needed a good man and that if Williams would
25 Although the 1949 season of operations had begun on July 18, Respondent made no
offer or attempt to reinstate any of the strikers.
GREENVILLE . COTTON OIL COMPANY 1051
"be for" Ward, Cameron, and Norris and vote for the mill, Ward would show
Williams how to vote. Williams refused the offer of reemployment.
Gus Birdie and Peel Hines testified to separate occasions shortly before the
election when Ward stated to each of them that if he voted for the union he would
not have a job and that if he voted against the Union he would have a job.
Ward denied making the statements so attributed to him. As is seen, three
witnesses testified to separate occasions when Ward was alleged to have made
statements of substantially similar content. To that extent their testimony
appears to be mutually corroborative. Ward's unsupported denials are found
inadequate to overcome the cumulative and preponderant weight of the adverse
testimony. It is therefore found that Ward in fact made the statements at-
tributed to him, as above, by the General Counsel's witnesses "
Artis Lee gave very rambling and confused testimony about a conversation
with Ward within a month before the election in which Ward spoke to him about
the Union. Ward admitted the fact of the conversation, but according to his
version he said nothing of a coercive character. Lee's demeanor on the stand
and his manner of testifying were such that his testimony cannot be credited
in the absence of direct corroboration, of which there was none.
Alan Hall testified that he applied to Ward for a job or for reinstatement in
the fall of 1948, while the mill was running but that Ward denied reinstatement
on the ground that he had a full crew. Hall testified that Ward then asked how
he happened to go out on strike and that he told Ward he went out because "the
bunch did." Hall testified that Ward then said "look at the money you have
missed, you could have.been making," and added that Hall had spade a mistake
by going out with the bunch.
Ward admitted the incident but denied making any statements that Hall had
missed any money by reason of going out on strike or that Hall had made a
mistake by doing so. It is considered unnecessary to resolve this conflict, since
it is found that Ward's alleged statements did not, under the circumstances,
constitute interference, restraint, or coercion.
Although not alleged in the complaint as an unfair labor practice, one of the
objections filed by the Union to the election was that the Respondent had
"padded" the eligibility list by placing on its payroll numerous temporary or
casual employees for the purpose of assuring a "no union" vote.
Considerable evidence was introduced by the Union and the Respondent on
this issue. It need not be summarized in detail. Taken in its entirety the evi-
dence fails to establish the Union's charge.
Though a larger number of employees than normal were on the payroll dur-
ing the period subsequent to the Direction of Election on August 19, the 1948
operations were abnormal because of the earlier disruptions resulting from
the strike and because of the receipt of an abnormally large amount of cotton
seed during the early fall. The latter circumstance had necessitated the hiring
of several temporary employees for the handling and moving of the seed. How-
21 On cross-examination Birdie for the first time included as a part of Ward's alleged
statements a promise of a raise if he voted against the Union. That portion of Birdie's
testimony is without corroboration, direct or indirect, and is not credited.
Birdie also testified that on an occasion when Ward was posting the election notices
Ward endeavored to instruct him how to mark his ballot so as to vote against the Union.
Ward admitted showing Birdie (who could not read or write) how to mark his ballot both
for a "yes" vote and a "no" vote, and much of Birdie's testimony is consistent with the
view that that is what Ward did. Ward's testimony as to the incident is therefore
credited.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, Respondent's payroll records reflect no appreciable increase in the number
of employees subsequent to the Direction of Election nor even subsequent to
July 1.
B. Concluding findings
1. The cause of the strike and its prolongation 24
The testimony of the General Counsel's witnesses was in general consistent
that the strike action was taken because of Respondent's failure to recognize
and to bargain with the Union.' There was evidence also that Respondent's acts
of interference, restraint, and coercion as found under Section A-4, supra, were
a contributing factor."
There is no substantial evidence to support Respondent's contention that the
strike was due to economic causes. In any event, even if it were true that the
strike had the joint purpose of achieving both an economic goal and the dis-
sipation of Respondent's unfair labor practices, it is well established that a
strike caused in part by unfair labor practices does not lose its character
as an unfair labor practice strike because economic reasons may also have brought
it about. Julian Freirich, at at., 86 NLRB 542, and cases there cited, footnote 18.
To find, however, that the General Counsel's witnesses testified that the strike
was caused by the Respondent's refusal to bargain is not equivalent to finding
that Respondent actually had refused to bargain within the meaning of the Act.
An analysis of the evidence is necessary to ascertain whether such refusal
occurred.
As is found under the following section of this report, the Union represented
a majority of the employees in an appropriate unit on and after November 17,
1047. Respondent admittedly refused the Union's requests to bargain, asserting
in defense thereof its doubts as to the Union's majority and as to the appropriate-
ness of the single unit contended for by the Union ; and Respondent insisted that
these matters be determined in the representation proceeding which the Union
27 Though Respondent affirmatively raised the Section 10 ( b) limitation in bar of the
complaint to the extent that it charged the commission of unfair labor practices outside
the proscribed period, it did not deny either the propriety or the necessity of considering
evidence of such alleged practices insofar as relevant to a determination of the cause
and character of the strike . Indeed, the issue of the alleged discriminatory refusal to
reinstate the strikers within the statutory period is incapable of resolution without a
prior determination of the cause of the strike which occurred outside thereof. The
mere fact that the strike itself occurred outside the period cannot, of course, preclude
a determination of a preliminary fact essential to resolving issues properly litigable
within the period. The Section 10 (b) proviso, being a statute of limitations ( see dis-
cussion pp . 1057-1058 , infra ), does not require such adjudicatory abdication . The con-
trary position would lead to absurd results since it might well preclude the determination
of any complaint , properly issued , alleging a discriminatory discharge or a discriminatory
refusal to reinstate which occurred after a strike had run as long as 6 months.
28 Cos, Wellborn, Bringle, Howell, McDonald, Vermel Thomas, and Charlie Sneed Wil-
liams so testified . J. E. Martin testified on direct examination that the discussion during
the meeting at which the strike vote was taken concerned working conditions and the
obtaining of recognition and bargaining. On cross-examination, he corrected that testi-
mony by explaining that the only discussion of working conditions had occurred in an
earlier meeting before the signing of the membership cards.
29 Lorenzo Lawrence testified that his understanding was that the decision to strike,
was taken because of dissatisfaction as to wages and hours , plus the reports and rumors
that the plant would be moved or closed down. Wellborn testified that at the meeting
he attended on January 7 the employees were disturbed not only about the refusal to.
bargain but also about the statements attributed to supervisors concerning the moving:
of the plant.
GREENVILLE COTTON OIL COMPANY 1053
had filed,'° and then only after a formal hearing. Whether Respondent was
within its lawful right in so doing turns on whether its asserted doubts were bona
fide or whether its actual purpose was to gain time within which to undermine
the Union's support. D. H. Holmes & Co., 81 NLRB 753; Cuffman Lumber Com-
pany, Inc., 82 NLRB 296; and Joy Silk Mills, Inc., 85 NLRB 1263.
Under the evidence submitted by the Respondent in the present case, it is
difficult to find any basis for the assertion of Respondent's claimed good faith
doubts.
Fisher's asserted doubts of the majority were without foundation save as
expressed in skepticism of the genuineness of signatures on the union cards
and whether such cards represented the uncoerced choice of a majority of the
employees. Such doubts have been held to be insufficient to excuse a refusal to
bargain. Highland Park Mfg. Company, 84 NLRB 744; and see discussion and
cases cited under Section 2-b, infra.
Certainly, the testimony of Cameron and Ward disclosed no basis for Fisher's
doubts. Cameron's testimony is in fact bare of reference to the subject of the
majority. And, as has been found, Ward had learned from inquiry the actual
strength of the Union and yet had sat silent while Fisher questioned its ma-
jority in the conference on December 12.
Norris' expressions of doubt were based on such vague and wholly unper-
suasive matters as "his judgment" and the fact that Respondent's relations with
its employees had always been good and that it had granted all requested
increases."
Norris testified that he also felt that the fact that the Union threatened a
strike and later did strike, indicated that it did not have a majority and was
afraid of an election. Norris' doubts on this score should certainly have been
resolved when 45 of the employees struck in support of the Union on the morning
of January 19. Such an overwhelming response to the strike left no doubt that
the employees were united in their efforts to achieve genuine collective bar-
gaining. Remington Rand, Inc., 2 NLRB 626, 648, enf'd 94 F. 2d 862 (C. A. 2),
cert. den. 304 U. S. 576.
Respondent's position on the unit contained further and emphatic evidence of
its lack of good faith. In the December 12 conference, Fisher suggested four
separate units, four separate elections, and four separate contracts. When Cox
demurred, Fisher said he would not then consent to an election. At the repre-
sentation hearing, Fisher's position was that six units were appropriate, yet he
offered no evidence in support of that position. Furthermore, when Wells of-
fered to enter into separate election agreements in the units for which respondent
was contending, Fisher still refused.
Actually, Fisher's position was wholly unsupported and unjustified on the
record. Thus, Norris testified that his position never was that there should be
:several units, and that he was at all times agreeable to a single unit if that was
H0 Of course the. mere filing of the representation petition would not of itself relieve
the Respondent of its statutory duty to bargain collectively with the duly designated
representative of its employees. Pacific Plastic f Mfg. Company, 68 NLRB 52, 90.
"Norris also made reference to a curious incident in 1941 when a representative of the
Cottonseed Oil Workers Federal Labor Local, Union No. 22943, affiliated with the A. F. L.,
claiming to represent a majority of the employees , presented him a proposed contract.
Norris testified that the representative also presented a grievance at the time which was
discussed and settled . Norris testified , however, that he signed no contract and that he
never again saw or heard from either the representative or the union . Norris did not
-explain how he related that incident to his doubt of the present Union's majority.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what a majority of his employees desired. Furthermore , Norris admitted that
he had never heard that Cameron or Ward had contended for separate units.
Nor was there any evidence that Fisher was informed that they had done so,
or that any one (other than Fisher ) had taken the position that a single unit
was not appropriate.
Norris' position as to a consent election also conflicted with that which Fisher
took as Respondent's representative in the negotiations . Thus, Norris admitted
knowing that a consent election afforded the quickest means of determining the
question of the Union 's majority , and he testified that at all times after November
17, 1947, he was willing to have a consent election . Yet Fisher refused to con-
sent to an election at the December 12 conference except in four separate units
and refused at the representation hearing to agree to a consent election even in
the six units which he had himself proposed.
Respondent's conduct was not at all affected by the occurrence of the strike.
Having provoked the strike , Respondent was wholly uninterested in attempting
to settle it. Though professing interest in getting the men back to work, Fisher
refused to bargain with the Union short of a formal hearing and a certification,
continuing the assertion of his specious doubts in the face of the obvious and
overwhelming support of the Union by the strikers . The lack of good faith
reached its ultimate peak in Fisher 's rejection to Wells' offer at the representa-
tion hearing to consent to an election in six units , followed immediately by his
attempt to settle the matter by dealing with Bringle in the absence of the Union's
representative.
Reduced to its essentials , Respondent ' s position appears to be that there was
no duty to bargain with the Union prior to a Board certification at the conclusion
of formal representation proceedings 32 That position has been foreclosed by a
number of Board decisions . See, for example , Rockwood Stove Works , 63 NLRB
1297, 1325 , where the Board held :
It is also clearly established in decisions of the Board and the Courts, too
numerous to cite, that where a labor organization represents a majority of
employees in an appropriate unit and advises the employer of that fact and
makes a reasonable offer of proof of the said majority , the employer unless
there are extenuating circumstances such as claims by a rival union, may not
lawfully withhold recognition and refuse to bargain on the ground that the
said labor organization has not been formally certified by the Board.
See also Hagy, Harrington and Marsh , 74 NLRB 242 ; L. B. Hartz, 71 NLRB 141 ;
and Pepsi Cola Bottling Company, 72 NLRB 118.
On the evidence as a whole , it is therefore found that the strike resulted
from and was prolonged by Respondent 's unlawful acts as set forth above, i. e.,
that it was an unfair labor practice strike in its inception and was prolonged
as such by Respondent ' s acts.
Respondent asserts as an additional defense for its refusal to bargain during
the period subsequent to the calling of the strike that "the union forfeited any
right it might have had to recognition as the exclusive bargaining agent of re-
spondent 's employees " because it was responsible for the mass picketing and
32 Respondent contends in its brief that it not only "has a right to do such [i . e., refuse
to bargain ] but it was [its] duty to do such until the union offered reasonable proof of
its alleged claim of majority representation ." This contention ignores completely the fact
of the Union 's repeated offers to demonstrate its majority in a consent election. Those
offers certainly qualified as reasonable offers of proof of its majority . Cf. N. L. R. B. v.
Moltrup Steel Products Co., 121 F. 2d 612.
GREENVILLE COTTON OIL COMPANY 1055
various acts of violence allegedly committed during the period from January
20 to February 16, 1948. Respondent cites no authority to support its position.
Indeed, the authority is to the contrary.
In N. L. R. B. v. Carlisle Lumber Company, 94 F. 2d 138 (C. A. 9), cert. den.
304 U. S. 575, the Board had found a refusal to bargain (among other violations)
and as a part of its affirmative order had directed the Respondent to bargain
collectively with the Union on request. The respondent contested enforce-
ment of the order on grounds similar to those asserted here. The Court
ordered enforcement, holding:
Respondent contends that the proceeding before us is an equitable pro-
ceeding ; that the union's picketing resulted in violence, as the Board found,
which was a violation of the laws of Washington, and therefore enforcement
should be denied for the reason that the union has not come into Court
with clean hands. It is not the union but the Board which is asking
enforcement's
A similar defense was presented to the Second Circuit in N. L. R. B. v. Reming-
ton-Rand, Inc., 94 F. 2d 862, where the Court, though citing and following the
Carlisle Lumber case, expressly carried its reasons beyond those stated in that
case, holding that :
.. . Though the union may have misconducted itself, it has a locus
poenitentiae ; if it offers in good faith to treat, the employer may not refuse
because of its past sins. In the case at bar there was no warrant whatever
for supposing that further negotiations would have been useless. . . . That
they wished further conferences about these matters cannot be doubted.
for these reasons, it was unnecessary to go into any past delinquencies of
the union.
Similarly in National Mineral Company, 39 NLRB 344, the company had de-
fended its refusal to bargain on the ground that the Union had engaged in
certain illegal acts of violence. The Board held that evidence of such illegal
activities was immaterial:
Plainly the Respondent could have dealt with such illegal conduct in some
manner other than by refusing to bargain with its employees' duly certified
bargaining representative and by taking upon itself to discourage its em-
ployees from joining a labor organization and to prevent union activities,
which, standing alone, were legitimate.
2. The refusal to bargain
a. The appropriate unit
The Union had sought a single unit composed of all production and main-
tenance employees, excluding clerical and supervisors as defined in the Acts'
The Respondent through Fisher had originally contended for four units but at
the representation hearing had contended that six units were appropriate.
However, Respondent offered no evidence at the representation hearing in sup-
port of its contention nor did it during the present hearing offer excuse for its
previous failure to litigate the issue nor attempt to relitigate it herein.
83 For the rejection of the "clean hands" doctrine when asserted as a defense by a union
to a complaint charging violations of Section 8 (b), see Cory Corporation, 84 NLRB 972.
99 The Union's attorney stated at the representation hearing that in proposing this unit
the Union did not seek to represent in the same bargaining units any watchmen or guards.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned therefore finds, in accordance with the Board's Decision
and Direction of Election, that all production and maintenance employees, in-
cluding truck drivers, power plant employees, and seasonal employees of Re-
spondent at its Greenville plant, but excluding clericals, watchmen, guards,
superintendents, assistant superintendents, the night supervisor, the head linter
man, the sack sewer, the head of the seed house, and all other supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
b. The Union's representation of a majority
The General Counsel introduced in evidence 45 signed authorization cards,
39 of which had been signed on or before November 17, 1947, and the remainder
prior to the strike. The bargaining unit consisted of approximately 48 employees.
The cards read as follows:
Authorization and Application for Membership
I, the undersigned, an employee of -------------------- Company, hereby
make application and authorize the American Federation of Grain
Processors, affiliated with the American Federation of Labor or its Affiliated
Local Union 22453, its officers or representatives to represent me from the
date herein set forth in the matter of Collective Bargaining with respect to
hours of labor, wages, tenure of employment, and other terms and conditions
of employment as provided by the National Labor Relations Act.
Respondent questions the sufficiency of this authorization, contending that
the evidence does not establish that the employees by signing the cards intended
to select the Union as their bargaining agent. Respondent points to certain
statements elicited on cross-examination from one or more of the General
Counsel's witnesses that they had not authorized the Union to act as their
bargaining agent and to a similar statement on direct examination by one of
Respondent's witnesses (H. C. Roddam). The clear and express wording of the
card is, of course, directly to the contrary. However, even were Respondent's
contentions upheld as to the meager instances cited in the record, the Union's
majority would not be thereby affected. Consumer's Lumber d. Veneer Co., 63
NLRB 17, 35; Exact Level d Tool Mfg. Co., 66 NLRB 1238, 1263-4, and cases
cited, footnote 18.
Furthermore, the assertion of such a contention has been precluded by repeated
Board and court decisions. Thus it has been held that the mere signing of an
application for membership implies authority to bargain and that neither mem-
bership in nor payment of dues to a union is determinative of statutory authori-
zation. Consolidated Machine Tool Corporation, 67 NLRB 737, 739; enfd 163 F.
2d 376, cert. den., 332 U. S. 824. Similarly it has been held that the testimony
of a signer as to his subjective state of mind at the time of signing cannot operate
to overcome the effect of his overt action in having signed an application. See
Nubone Company, Inc., 62 NLRB 322; Wright-Hibbard Industrial Electric Truck
Company, Inc., 67 NLRB 897, 906; Phillips Transfer Company, 69 NLRB 493.
Under these holdings the evidence elicited by the Respondent and relied upon
by it was plainly extraneous to the issues.
It is therefore found that on November 17, 1947, a majority of Respondent's
employees in the unit had designated the Union as their representative for the
purposes of collective bargaining with the Respondent.
GRE'ENVILLFI COTTON OIL COMPANY 1057
There was no evidence in this proceeding that the Union's majority representa-
tion had suffered defection or diminution. Furthermore, if defection had
occurred it was clearly atributable to Respondent's own wrongful acts as herein
found. A loss or defection of union membership resulting from Respondent's
own unfair labor practices leaves the Union's representative status undisturbed,
Franks Brothers' Company v. N. L. R. B., 321 U. S. 702, 5; Continental Oil Com-
pany v. N. L. R. B., 113 F. 2d 473, 480-1; N. L. R. B. v. Lovvorn, et al, 172 F 2d
293; and N. L. R. B. v. Moltrup Steel Products Co., 121 F. 2d 612.
It is therefore found that on November 17, 1947, and at all times since, the
Union was the duly designated bargaining representative of a majority of the
employees in the aforesaid unit.
c. The refusal to bargain
The background evidence pertinent to the refusal to bargain question has been
summarized under a previous section of this report dealing with the causes of
the strike and of its prolongation. It need not be repeated.
However, Respondent has affirmatively invoked the limitation provision of
Section 10 (b) of the Act," which the Board has held to constitute a statute of
limitations that operates to extinguish liability for certain unfair labor practices.
Cathey Lumber Company, 86 NLRB 157. Before proceeding, therefore, to the
making of findings of unfair labor practices under this and the following sections
of the report, it will be necessary to determine the date of the running of the
statute and what effect is to be accorded the antecedent evidence in relation to
such practices.
The evidence in the present case fixes the date of the running of the statute as
June 18, 1948. Thus, the first charge was filed by the Union on December 17,
1948, (see Board's Order of June 7, 1949, directing a hearing on Objections,
Exceptions, and Challenged Ballots) and service on Respondent was made of a
copy by registered mail by union counsel on December 18.3°
However, the Union argued that the requirements of Section 10 (b) were met
by its counsel's oral statement at the representation hearing (March 19, 1948)
that the Union intended to show that the strike was caused by Respondent's
unfair labor practices and by the statement of the hearing officer that "such
matters would be resolved at a later date" (on objections to an election if any;
were filed). But the Union's attorney could not have been misled by such an
informal statement of the hearing officer. The experienced labor counsellor
representing the Union must be presumed to have been wholly aware of the dis-
tinctions between, and the separate spheres of, representation proceedings and
complaint proceedings and of the necessity for the filing of a formal charge of
unfair labor practices as a prerequisite to findings that unfair labor practices had
been committed. See footnote 2.'
Furthermore, the hearing officer is without authority-certainly in the ab-
sence of Respondent's consent-to waive or to set aside the formal requirements
of the statute. Nor does his informal statement, relied upon by the Union, indi-
cate that such was his intention or that it constituted a ruling, official or unoffi-
85 ".. , no complaint shall issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the Board and the service of a
copy thereof upon the person against whom such charge is made .. .
3e Respondent stipulated at the hearing that it received such copy, and admits in its,
brief that the copy was served upon it on December 18, 1948.
1058 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
cial, that the filing of a charge would be unnecessary to prevent the running of
the statute.
The General Counsel and the Union also argued that under the theory and
analogy of the conspiracy cases, Respondent's unfair labor practices (particu-
larly the refusal to bargain) were continuing violations of such a character that
findings of violations might be made thereon although committed outside the
limitation period. The Examiner considers the conspiracy cases inapposite to
the present situation and rejects the view that the stattfte will countenance the
finding as violations of acts committed outside the period.
This conclusion does not, however, require the rejection of the antecedent evi-
dence. Although the statute forbids the issuance of complaints and thereby pre-
cludes findings of violations on conduct occurring without the 6 months' period,
it does not forbid the introduction of relevant evidence bearing on the issue
whether a violation occurred within such period. In other words, the Section
10 (b) proviso enacted a statute of limitations (cf. Cathey Lumber Co., supra)
and not a rule of evidence. Therefore, antecedent evidence may be considered,
where relevant, to the extent that it establishes or throws light on the nature and
meaning of conduct or events which occurred within the prescribed period," or
is otherwise relevant to the inquiry whether violations occurred during such
period.
This principle is especially applicable in the present case, where, under the
evidence, Respondent's duty to bargain was a continuing one 38
Respondent's course of conduct prior to June 18 disclosed a continuing failure
on Respondent's part to bargain on the Union's request and demonstrated, indeed,
the futility of further requests. Thus the events at the representation hearing
and Fisher's conversation with Bringle immediately thereafter, furnished con-
clusive evidence of the lack of bona fides on Respondent's part and of its inten-
tion not to deal with the Union as the designated representative of its employees.
Subsequent events within the statutory period reflected the continuance of
Respondent's refusal to bargain and of its opposition to the principle of collec-
tive bargaining. Thus, on June 20 and again on July 12, the Union, through
Howell and Martin and Howell and Bringle made applications to Ward and
Cameron, respectively, for the mass reinstatement of its members who had struck
because of Respondent's unfair labor practices. Ward and Cameron both
refused to deal with the men as representatives of a group or union,3B and
87 ". . . testimony of prior or subsequent transactions , which for some reason are
barred from forming the basis for a suit , may nevertheless be introduced if it tends
reasonably to show the purpose and character of the particular transactions under
scrutiny." Federal Trade Commission v. Cement Institute , 333 U. S. 683, 704, and cases
there cited.
38 Cf. M. H. Ritzwoller Co. v. N. L. R. B., 114 F. 2d 432, 436, where the Court held :
While the Act, no doubt, places upon the employees the burden of instituting the
bargaining negotiations , and places no burden in this respect upon the employer,
yet we do not think it is incumbent upon the employees to continually renew the
proposal . Here petitioner had the proposal and was bound to make the next move.
Petitioner 's officials were informed, in effect, that the strike would be called off if
petitioner would recognize the union as the bargaining agent. The manager ' s reply
was that he had nothing to discuss with us at that time." It is argued that the
employees left the conference and that they were the ones who refused to bargain.
We do not think so.
8D The applications to the Respondent for mass reinstatement which the employees made
through their union representatives were sufficient , and there was no obligation on the
employees to make any further application . Sifers Candy Company, 75 NLRB 296, 7, 310 ;
enfd 171 F. 2d 63 (C. A. 10) ; Capital City Candy Company, 71 NLRB 447, 450.
GREENVILLE COTTON OIL COMPANY 1059
insisted on individual applications and unilateral negotiations. Indeed, Respond-
ent continued until a date within the hearing its dealings with individual strikers
to the exclusion of the Union as their designated representative.
It is well established that where, as here, the employees have duly designated
their collective bargaining representative, the employer is obligated to deal with
that representative and not with the employees individually. J. I. Case Co. v.
N. L. R. B., 321 U. S. 332, 337-8; Medo Photo Supply Corp. v. N. L. R. B., 321
U. S. 678, 683-4. Accordingly Respondent's conduct in sumarily rejecting the
principle of group representation, its insistence on individual applications, and
its continued practice of carrying on unilateral negotiations with striking em-
ployees, had the necessary effect of undermining the Union's authority as the
designated bargaining representative of its employees and constituted 'further
evidence of a refusal to bargain.
It is therefore found that Respondent, on June 18, 1948, and at. all times
since, refused to bargain with the Union as the exclusive bargaining representa-
tive of its employees in an appropriate unit and that it thereby interfered with,
restrained, and coerced said employees in the exercise of the rights guaranteed
by Section 7 of the Act.
3. The discriminatory refusal to reinstate
The evidence previously summarized establishes, and it is hereby found, that
on June 20 and July 12, 1948, and on July 7, 1949, the strikers made unconditional
.applications to return to work, and that Respondent rejected these offers." Since
it has been found that the strike was caused and prolonged by Respondent's
unfair labor practices, the strikers were entitled upon application to reinstate-
ment, to their former positions (Julian Freirich Co., 86 NLRB 542; Ford Brothers,
73 NLRB 49, 70; Athens Mfg. Co., 69 NLRB 605, 8) ; and Respondent's refusal
to reinstate the strikers upon request constituted per se discrimination in hire
:and tenure of employment. (Rockwood Stove Works, 63 NLRB 1297.)
Respondent offered three defenses to its refusal to reinstate the strikers: (1)
that the strike was due to economic causes and that the strikers had been re-
placed; (2) that even if the strike be held to be an unfair labor practice strike,
the strikers had engaged concertedly in mass picketing, in threats, and in acts
of violence, and that all of them thereby forfeited any right they might have had
to reinstatement; and (3 ) that in any event, individual strikers had forfeited
their right to reinstatement because they had personally engaged in unlawful
conduct.
The finding previously made -that the strike was caused by Respondent's un-
fair labor practices disposes of the first defense. The strikers were, therefore,
entitled to reinstatement upon their application as hereinbefore found unless
their conduct had been such as to render them unsuitable for reemployment.
Cf. Kansas Milling Co., 86 NLRB 925 and cases cited, footnote 9.
Respondent's other two defenses will be discussed in order, but preliminarily
the evidence relating to the organization and the conduct of the strike will be
summarized.
The organization of a picket line was arranged at a meeting of the striking
union members on the evening of January 20. Cox gave the strikers advice and
4° Respondent ' s counsel made some reference during the representation hearing and again
in their brief to the fact that some of the strikers ( unidentified ) had been discharged.
No evidence was offered , however, that there was an actual discharge of any of the strikers.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instructions on the arrangement of the line, and instructed them how to conduct
themselves so as to stay within the law (including the Texas Statute, Article
5154 (d), Revised Civil Statutes, set out in Appendix A). Bringle thereafter
handled and supervised the picket line under Cox's authorization.
Picket line shifts were arranged of 3 hours each, starting at 6 a. m. The line
started with the maximum of eight men and was thereafter decreased gradually
until it got down to two" The pickets carried signs or placards which advertised
the existence of the labor dispute.
Regular beats were arranged with two pickets each, assigned as follows: Two
pickets patrolled on Lee Street (the northern boundary of the Respondent's,
property) ; two patrolled the block on Bois D'Arc Street between Lee and Wash-
ington Streets and two on Bois D'Arc between Washington and Pickett Streets
(the western boundary) ; and two patrolled on Pickett Street (the southern
boundary). At some points the pickets patrolled the side of the street next
to Respondent's property and at others the opposite side. There is also.evidence
that on occasions the pickets walked in the street.
There is no evidence that while performing such picket line duty any employee
engaged in making threats or committing acts of violence or other unlawful acts
or that such picketing constituted "mass picketing" within the meaning of the
Texas Statute. Thus, as the line was organized and as it thereafter functioned,
there were not more than two pickets at any time within either 50 feet of any
entrance to the premises or within 50 feet of any other picket or pickets.42 Nor
was there any evidence that such pickets formed any character of obstacle to
the free ingress to and egress from any entrance to the premises. To the con-
trary, the evidence establishes that the activities of those engaged in picket line
duty were confined to patrolling their assigned beats, carrying their placards,
and attempting to induce by peaceful persuasion nonstriking employees to dis
continue working and to join the strikers.
But the maintenance of the picket line was only a part of the activity which
resulted from the strike. Thus the evidence discloses without dispute that
at frequent times between January 21 and February 16, numbers of persons
gathered on the southeast corner of Market Square diagonally across Bois D'Arc
Street from Respondent's office and main plant entrance, and that sometimes
some of such "crowds" would actually be in the street itself. The number
of such persons was estimated variously from 15 to 50 and the constituency
of the groups obviously fluctuated from time to time.
Twenty of the striking employees were identified as having been seen at
various times among such gatherings but the specific constituency of the groups
was not fixed on any occasion 93
41 Credited testimony of Cox and Bringle. Though Virgle Bailey testified that shifts were
5 or 6 hours in length and that there were at one time as many as 12 men in the picket
line , his testimony is in conflict with the preponderance of the evidence and is not credited..
Bailey did agree that the 12 pickets were "divided up, two in a hill."
42 Although one of Respondent 's witnesses testified to seeing as many as three pickets
(carrying signs ) together at one time , the clear preponderance of the evidence is that there
were never more than two together or within 50 feet of each other.
43 Cameron described the gathering as made up of "strikers or their sympathizers." The
"sympathizers " frequently included employees of the International Milling Company
(members of the Union 's affiliated Local ), and doubtless at times members of the public
generally , including ordinary on-lookers and curiosity seekers.
GREENVILLE COTTON OIL COMPANY 1061
The evidence does not establish the identity of the "leaders" of such gatherings
or the fact that the gatherings in fact had, or acted under, any leadership or
organization"
The evidence does establish that frequently automobiles were parked on the
southeast corner of the Square as well as in Bois D'Arc Street, and that on some
occasions such cars followed automobiles occupied by nonstriking employees
as they left the plant and stopped them at various points away from the plant.
There is no evidence however, that any of such cars were owned, driven, or
occupied by any of the striking employees or that the actions of the occupants
were authorized, directed, or controlled by any such employee. To the contrary,
the evidence is consistent that such occupants of the cars as were identified
were employees of the International Milling Company.
Aside from the gatherings on the corner of the Square, the evidence establishes
that much smaller groups sometimes congregated in two other places across
the street from Respondent's property. One of these was directly across
Bois D'Arc Street from Respondent's office, south of the intersection of Washing-
ton Street and against the building occupied by a tire shop. That group never
exceeded 8 or 10 men, and even Respondent's witnesses explained the purpose
of their presence there as being to get out of the wind .4' There is no evidence
that any of the persons there was engaged in picket line duty, was there for any
unlawful purpose, or committed any unlawful .act while there..
The other such point was across Pickett Street from Respondent' s premises on
property between the two railroad sidings that led from a southerly direction
into Respondent's premises. There, some of the strikers built a hut and kept
a fire going around which some of them and their sympathizers gathered for
warmth. There is no evidence that such gatherings constituted mass picketing,
either in the usual sense or within the meaning of the Texas Statute, nor
evidence that any person was present there for an unlawful purpose or committed
any unlawful act 96
Since Respondent seeks to attribute to the strikers as a group the acts of the
flour mill employees, all of whom were members of Local 22453, reference will
be made to the relationship between that Local and the Union here.
The organization of employees of a new plant is under the direction and
jurisdiction of the International and the new members remain under its juris-
diction until such time as the employer accords them recognition and bargain-
ing rights and enters into a contract. Thereupon, the new members may form
their own local or join an existing affiliated local. Until such time, no affiliated
local has authority over the new members nor do the officers of such locals. The
locals are themselves autonomous unions with full control over their own affairs.
They have their own constitution and bylaws and run their own business with
advice from the International.
++ Though Bringle was sometimes present on the corner of the Square and though he was
admittedly in charge of the Union 's picket line , there is no evidence that he directed or
controlled in any way the activities of other members of the gatherings . Lathen T.
Carter, president of Local 22453, testified that he was in charge of the flour mill employees
who picketed . However, there is no evidence that any such employees engaged in picket
line duty as such with the exception of Kenneth Greer and Pat Finchum.
46 Cameron described the weather during the strike as "miserable."
96 Indeed Cameron, who identified by name several of the striking employees whom he
had seen there at times, testified that so far as he knew they were just "visiting" and
"standing around the fire" in the "miserable weather."
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence establishes that the foregoing jurisdictional lines were observed
in the present case. The organization of Respondent's employees was under
the direction of Cox. Such employees held their own meetings,47 and did not
attend meetings of Local 22453. Though the application cards authorized alterna-
tively the Union or its affiliated local 4s to represent the signatories, the Greenville
employees did not become members of the local in any actual sense but only in
a limited sense. Thus, the initiation fees and the first month's dues, though
paid to Strador, secretary of the local, have been held by him intact. No sub-
sequent dues were paid.
Only Cox and Bringle exercised any authority over the striking employees
during the strike. Neither Carter, president of Local 22453, nor any of its other
officers had or exercised any such authority.
The evidence establishes, however, that Local 22453 and its members took
an active interest in the strike and helped to support it and the strikers in
various ways. Its members contributed to the strike benefits,49 the payment of
which was administered by its treasurer, Strador. An unidentified number of
them were sometimes among the gatherings on the southeast corner of the
Square 60 and from that point, on some occasions, some of their members followed
in automobiles nonstriking employees as they left the plant and engaged in in-
cidents away from the plant. Their activities are set forth in more detail in
footnote 51, infra.
Respondent ' s Defense of Mass Responsibility
Under Respondent's theory, the strikers as a group were responsible both for
the acts of the flour mill employees and for the acts of their fellow strikers. It
argues that:
The fact that there were such large groups of individuals engaged in these
actions and on each occasion several of the strikers and leaders of the local
union were recognized as being present is proof that all the actions were
engaged in in behalf of the local union and all the strikers, and all of them
should be held accountable therefor.
The question of the strikers' responsibility for the acts of the employees
of the International Milling Company is disposed of by the recent Board decision
in Deena Artware, Inc., 86 NLRB 732. The Board there, in a situation similar
to the present one, refused to impute the activities of a group of former
employees to striking employees in bar of the remedy of reinstatement simply
because both groups were members of the same labor organization. That case
constitutes a fortiori authority in the present situation for two reasons : (1) Here,
the outside group were not former employees but were employees of another
47 There is no evidence that members of Local 22453 attended meetings of Respondent's
union member employees, except that its secretary Strador assisted in the initial stages
of the organization and that he also reported to the meeting around June 10 or June 16
Wells' advice relative to applying for mass reinstatement.
48 Cox explained that by this provision, the applicant would become affiliated with the
local union at such time as the employer recognized the Union and it became a functioning
unit in the organization.
49 Indeed, Cox testified that donations for the payment of strike benefits were received
from various locals throughout Oklahoma and Texas.
50 This was usually in the late afternoon after the day's work at the flour mill. The
Greenville plant was not only nearby but was on the normal route that many of the flour
mill employees took to and from their homes.
GREENVILLE, COTTON OIL COMPANY 1063'
concern; and ( 2) Respondent 's employees had not become members of the local
to whom the outsiders belonged.
Since the record does not contain evidence sufficient to support a finding that
the striking employees were in any way responsible for the activities of the
flour mill employees, evidence relating to the conduct of the latter becomes
irrelevant here. However, the main incidents involved will be briefly mentioned
in the margin 51 so that the full picture of activities during the strike may be
viewed in proper perspective.
Nor is Respondent on better ground in urging mass responsibility for the
actions of fellow strikers. It cites no authority in support of its novel con-
tention that all of the strikers must be denied reinstatement if the finding is
made that some of their number or some leader of the union committed unlawful
acts. The undersigned is aware of none.
Respondent's attempts to argue, however, that the alleged mass picketing
and some of the other incidents constituted violations of Section 8 (b) (1)
committed by the Union and "its agents," and that such acts were committed
51 On or about February 11, 1948 , an automobile occupied by H. C. Roddam , Fred Dal-
Inger, and Edward Dalinger was followed as it left the plant and was stopped about a
block and a half west of the plant on Washington Street. The occupants of the other
cars were not identified In person or generally as employees either of Respondent's mill
or of the flour mill. However , after it stopped, Carter , president of the local , who was
on Market Square at the time, and other flour mill employees appeared on the scene and
talked with the occupants of the Roddam car. Statements of a threatening nature were
made by some of the persons gathered around the car.
Police also appeared but were informed that the men were discussing "union business
on friendly terms." The occupants of the Roddam car made no appeal for help and the
police then left.
Roddam endeavored in his testimony to place Bringle and Rex McDonald on the im-
mediate scene . In fact, he had signed a formal complaint on February 16, charging
both of them with threats and with seeking to obstruct him in the exercise of his right
to work, in violation of the Texas Statute . However , the force of his testimony con-
cerning Bringle and McDonald was completely dissipated when Roddam admitted on cross-
examination that he had been pretty well "addled" at the time he signed the complaint
and that he did not know that he was signing a complaint against Bringle and McDonald.
Although the evidence establishes that Bringle and McDonald were seen in the rather
large crowd that gathered on the occasion , there is no evidence that they were in any
manner responsible for the stopping of the cars or that either engaged in any unlawful
act on the occasion.
James Emmett Waddle, who , had entered Respondent 's employ during the strike , testi-
fied to incidents on two successive afternoons when his car was followed and stopped at
points some distance from the plant by automobiles occupied by employees of the flour
mill. Waddle and the occupants of his car on the two occasions were able to identify
by name only Herman Patterson and Joe Norfleet . Though the conversations on both
occasions were mainly devoted to persuading Waddle and his companions to cooperate with
the strikers , some members of the gathering made statements of a threatening nature.
None of the Respondent ' s employees was present on either of the occasions.
Joe M. Griffis testified to an incident when his car was followed from the plant and
"bumped" by another car occupied by employees of the flour mill, of whom Griffis could
Identify by name only O . A. Rays. Griffis also testified that he was assaulted by Rays.
None of Respondent 's employees were present on this occasion.
A. T. Pope testified to an occasion when , as he left the plant , he was engaged in conver-
sation on Bois D'Arc Street by Kenneth Greer, a Mr. Rozelle , and Cotton Bringle , the first
two of whom were flour mill employees . Pope quoted Rozelle as saying, "We are trying
to help these boys win the strike and get the union." Pope testified that the three of
them endeavored to persuade him to cooperate with the striking employees by not working
at the plant . He also testified they made reference to having whipped one or two of the
men but said that he was not himself warned in any way.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the sanction and approval of the union members who should be held
individually accountable therefor.
Except for the mere fact that they were members of the Union, however, there
is no evidence that the acts complained of had the sanction or approval of any
employees save the actual participants.
Furthermore, Respondent overlooks the fact that even in complaint cases
brought against labor organizations and their "agents" under Section 8 (b)
of the Act, the Board has refused to attribute to any of the individual respond-
ents the unlawful acts of other individual respondents, but has based its findings
of violation solely on the fact that individual violators personally engaged
in one or more of the acts of restraint or coercion or that they directed or
instigated them. Cory Corporation, 84 NLRB 972; Smith Cabinet Company, Inc.,
81 NLRB 886; Perry Norvell Company, 80 NLRB 225; and Sunset Line and
Twine Company, 79 NLRB 1487. Those cases clearly constitute a fortiori
authority in the present situation where respondent filed no charges nor sought
the issuance of any complaint .2
If Respondent intends to invoke against the reinstatement of otherwise guilt-
less union members unlawful acts for which the Union might be held responsible
under other sections of the Act because committed by "its agents," u it makes
no exposition of such an unusual theory and cites no authority in support of
it. Indeed such a theory runs directly counter to the theory under which
the Board decided the last cited cases.
-Respondent's Defense to the Reinstatement of Individual Strikers
Finally, Respondent urges that many of the individual strikers are to be denied
the remedy of reinstatement because of unlawful acts they personally engaged
in. An analysis of the evidence leads to quick disposition of Respondent's de-
fense as to most of such strikers.
There is no evidence that the following named striking employees were among
any of the gatherings which Respondent claims to constitute mass picketing
or that any of them participated in any of the incidents, acts, or threats of
which Respondent complains : Curtis Bloyd, M. M. Deberry, Carl Finnie, Allen
Hall, Charlie McCoy, J. F. Morgan, E. W. Norris, Doc Ross, J. C. Stevens, Will
Thomas, Dewey Wineinger, Henry Woodson, and Cornelius Johnson."
sz Cf. Tennessee Coach Co., 84 NLRB 703. In that case the employer interposed to a
complaint alleging a discriminatory discharge the defense of unlawful concerted activity
under Section 8 (b) (1). The Board noted both the absence of any 8 (b) (1) allegation
in the complaint and the absence of evidence that the discharged employee was an agent
of the union.
sa The Board has held (in express recognition of the Coronado cases, 259 U. S. 344, and
268 U. S. 295) that the mere fact of affiliation without more would not suffice to establish
an international union's responsibility for lawless acts committed by its local. Sunset
Line and Twine case, supra.
The legislative history of the Act also shows that it was Congress' view that the fact
of membership would not constitute evidence of agency. See, for example, the following
statement by Senator Taft, specifically commenting on Section 8 (b) (1) :
I think the word "agent" used here, as used in the contract section, and as used in
other places in the bill, means an agent under the ordinary rules of agency, an
agent of the labor union, the organization, as such. The fact that a man was a.
member of a labor union in my opinion would be no evidence whatever to show that
he was an agent. (93 Cong. Rec., Senate, 4561.)
There is no evidence that Hosey Jackson and E. J. Riddle, whose names are included
in the complaint, were in Respondent's employ at the time of the strike.
GREENVILLE COTTON OIL COMPANY 1065
Respondent's brief correctly names 20 striking employees as having been
identified as present at least some of the time, in the gatherings: (1) On the
southeast corner of the Market Square; (2) across Bois D'Arc Street against the
tire shop building; and (3) across Pickett Street between the railroad tracks.
They are Pat Finchum, Ollie Howell, H. V. Bringle, J. T. McCormack, Rex Mc-
Donald, O. Z. Wilkerson, Vermel (Bomell) Thomas, Lorenzo Lawrence, J. E.
Martin, Sneed Williams, Willie R. (Bill) Adams, Emory Staten, Floyd Lowe,
S. R. Brown, Lorenzo Gilstrap, Virgie Bailey, Aubrey Camp, W. G. Gilstrap, Leo
Hendry, and Noble Jones.
There is no evidence that the following named of those employees engaged in
any act other than being present at sometime or other at one or another of
said points and/or engaging in picket line duty : 66 Sneed Williams, Willie R.
Adams, Floyd Lowe, S. R. Brown, Lorenzo Gilstrap, Virgle Bailey, Aubrey Camp,
W. G. Gilstrap, Leo Hendry, and Noble Jones.
Respondent's witnesses attributed to the remaining 10 of the 20 participation
in other acts and threats, as well as to John W. (Buddy) Thomas, Milo Dawson,
and Lorenzo Anderson. The incidents involved fall so far short of the type
which are usually held to justify a refusal of reinstatement that the evidence
will not be summarized extensively. A number of them are included only to
emphasize the minor and, in some instances, innocuous matters which Respond-
ent insists justified its refusal of reinstatement.
Fayt Clifton, sheriff of Hunt County, testified to a visit to the plant on a call
from Cameron during the strike. Although his testimony wholly fails to estab-
lish the-commission of any unlawful act, it sheds light on the general conduct
and temper of the gatherings on Market Square.
Clifton went to the plant about 6 p. in. From 30 to 50 persons were gathered
on the southeast corner of the Square. After talking with Cameron, Clifton was
accosted as he left the office by Ollie Howell, who walked across from the Square
and who was followed later by others of the group. Howell asked Clifton why he
had come down there and Clifton did not immediately answer. In the meantime,
Cox and Bringle had also walked up. Bringle said, "God damn you, you are
coming up for reelection, and we will all vote against you." Clifton replied, "I
understand that. I am not down here to solicit votes.
Clifton then suggested that if they had labor troubles, they should "get
with Mr. Cameron and the mill bunch and settle this thing." One of the group
replied, "We can't get with him, he won't meet us." Clifton also reminded them
of the law against mass picketing but made no statement or suggestion that their
conduct was in any way violative of the law.
Clifton further testified that about 7 o'clock the next morning he drove by the
plant mainly out of curiosity to see if everything was quiet. There was a
much smaller group on the square of whom the Sheriff recognized only Vermel
Thomas. Clifton spoke to Thomas saying, "Vermel, can't you get your business
straightened out?" Thomas replied, "Mr. Fayt, we are trying."
Horace Arnold testified to separate conversations with Bringle and Finchum
away from the plant when each endeavored to persuade him to join the strikers.
No threats were made by either.
Luther White testified to a wholly innocuous conversation with a striking
employee he identified as meal cook Milo Dalton. Presumably he referred to
66 It has previously been found that no threat was made or act of violence committed
by any employee while engaged in picket line duty.
929979-51-vol. 92-69
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Milo Dawson. White saw Dawson uptown during the strike and engaged in
a conversation during which Dawson asked him if he was going back to work.
White responded that he did not know ; that he was waiting to make up his
mind. There was no more to the conversation. White testified that he did
not consider Dawson's remarks as a threat.
H. C. Roddacn testified that J. E. Martin while on picket line duty accosted
him as he was going into the plant and discussed the strike with him. However,
the conversation as testified to by Roddam was clearly one of peaceful persuasion.
George Braggs testified that "Birdie" Thomas, whom he knew as a brother
of Vermel Thomas, brought him a message during the strike to the following
effect: "Mr. Cotton [Bringle] said don't do down there in the morning." Braggs
told him to go back and tell Bringle to come to see him.
Braggs also testified that cars were put across the street so that no one could
pass and that such blocking of the street occurred every evening around 6 o'clock.
That testimony is not corroborated, is in conflict with the clear preponderance
of the evidence, and is not credited. Furthermore, Braggs made no attempt
to identify any of the persons who engaged in such acts.
Luther White testified that shortly after the strike, he had a conversation
with Howell in which Howell said, "Now, don't you go back down there to go
to work, because if you do, there will be some trouble, because I don't want you
to get hurt. Stay away from down there."
White also testified that about 2 weeks after the strike began, he had a
conversation with Howell in which Howell requested him to tell George Braggs'
wife to tell Braggs to stay away from the mill, because he was liable to get
hurt. White testified that he carried Howell's message to Bragg's wife, and
she also testified that he did so. White testified that he considered Howell's
advice as friendly and not as a threat, and implied that it was for that reason
he communicated it to Bragg's wife.
Almeda Braggs (wife of George Braggs) testified to a conversation with
Howell on the street away from the plant during the strike, in which Howell said :
I want to tell you that you had better get Brother George away from down
to the mill because those men, they just got blood in their eye. They are
just as mad as they can be and Uncle George is too old to get hurt. You had
better tell him to come away from down there and stay away from down
there.
Cameron testified to observing from the office one incident during the strike
when a group of men stopped a taxi which was on the way to the plant. Cameron
had called the taxi to pick up J. B. Chesser (a supervisor), and it was stopped
in the middle of the intersection of Bois D'Arc and Washington Streets by some
of the members of a group gathered on Market Square.
Cameron recognized Bringle, Howell, Vermel Thomas, McDonald, and Pat
Finchum and he testified that Finchum did most of the talking. Cameron
admitted that he could hear none of the conversation but testified that the men
were shouting and waving and that they opened the doors of the taxi. When
the conversation between Finchum and the taxi driver ended, the taxi left
without coming into the plant.
Respondent offered no other evidence to establish that threats were made or
acts of violence committed on the occasion. Cameron's testimony standing alone
does not establish any.
Ward testified to witnessing an incident when J. W. Thomas ran a truck into
Pickett Street into the path of a. car driven by J. D. Rogers (employed during
GREENVILLE COTTON OIL COMPANY 1067
the strike ) as Rogers left the plant one afternoon . However , Rogers' car was
not struck and he was not otherwise molested . Rogers was unable to identify
the driver of the truck and his testimony is in conflict with Ward 's on the details
of the incident . Moreover , his testimony and Ward's taken in their entirety do
not establish that Thomas ' act was intentional or that it constituted an act of
violence.
Roy W . Hendry- testified to an incident on Thursday , January 22 , involving
J. T. McCormack , H. V. Bringle , and Rex McDonald and an unidentified group.
On leaving work, he backed or was backing his car south into Pickett Street.
A pick-up truck on the south side of Pickett Street started backing into the.
street into his path and he stopped his car. McCormack , Bringle, and McDonald,,
following by a group of 15 to 20 men, came up to him, apparently from across:
Pickett Street. The 3 named men began soliciting him to join the Union and
Bringle told him to "stay away from this damn place," and that, "if [he] didn't
stay away , [he'd] wish [he ] had." Hendry testified there was no violence and
that the only threat was the one just quoted.
John Anderson, whose son, Charles Junior Anderson, was employed at the
plant during the strike, testified that on a Thursday in January during the strike
he saw Wilkerson on the street south of the plant and , that Wilkerson said,
"Anderson , you better get your boy out from down here. He is working down
there, and it is dangerous. We are going to hurt him if you don't get him away
from there." Anderson replied that he "didn't have time to fool around with
that thing" because he "had to go to work ." He went on to work and paid no
attention to Wilkerson's statement.
At the conclusion of cross-examination, Anderson volunteered the following
statement :
Vermel Thomas, I don't know, he told me- tcl get him away from there.
He said he hated to hurt the boy, but he said the way the things were
turning out there was going to be trouble.
On further questioning , he testified that the conversation with Thomas oc-
curred on Bois D'Arc Street across from the mill and that he then called his
wife to get their son away from the plant. Anderson testified he considered
Thomas' advice to be friendly but nevertheless considered that Thomas was
threatening his son.
Minnie Lee Anderson , mother of Charles Anderson , testified that on Thurs-
day night three men came to her house , two of whom she knew as O. Z. Wilker-
son and John Wesley . She testified that Wilkerson asked her if she had a boy
working at the mill and that when she replied affirmatively , Wilkerson said,
"You better get your boy down from out there tomorrow. If you don't, we are
going to have some trouble."
Charles Junior Anderson and his mother , Minnie Lee Anderson , testified to an
incident which occurred during the strike when the mother came to the plant
in a taxi to pick up her son . Together , they identified as being present among
the crowd of six or seven persons on the occasion , Lorenzo Lawrence , O. V. Howell,
Vermel Thomas, and Emmett ( Emory?) Staten .- The versions given by mother
and son conflicted on important details. The son testified that each of the six
or seven persons in the group threatened to kill him , but the mother heard no
such threats . Respondent did not call as a witness either the taxi driver or M_ C.
Coleman, a fellow employee who, Anderson testified , was only a few feet away
at the time the threats were made and who Anderson claimed was similarly
threatened . Anderson gave a highly imaginative and excitable account of the
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident and his testimony is not credited in view of his mother's failure to
corroborate him and in the absence of other corroboration.
Reference has previously been made to Roddam's testimony that Bringle and
McDonald were in the crowd that assembled around his car when it was stopped
on or about February 11. As previously mentioned, there is no evidence that either
Bringle or McDonald was responsible for the stopping of the car or that they
engaged in any threat or unlawful act on the occasion.
Ester Virginia Roddam (wife of Roddam) testified that Finchum came to
her house during the strike and said :
I want you to have a talk with your husband and see if you can make
him stay out from down there at the mill. Unless he does, we are out on
pickets and we are union, we are an organized union and we are out on
pickets and unless you stop him from working down there, there is going
to be bloodshed and plenty of it because the men are getting blood thirsty and
they are going to kill him.
She testified that Finchum came back later in the day and asked where her hus-
band was, that they had been unable to find him, and that he said that "We
are going to get him. There is going to be bloodshed and more bloodshed than
there ever was overseas." Mrs. Roddam was pregnant at the time, was under
a doctor's care, and was nervous.
Mrs. Roddam testified that on another occasion, Finchum came out at night
and talked to her husband when she was present. Finchum asked her husband
if he would stay off from work a week, and promised that their groceries and
the payments on their place would be taken care of. Finchum also wanted
Roddam to go to union meeting that night, and Roddam went. As to whether
threats were made, Mrs. Roddam testified that Finchum said that Roddam
would not be hurt while hewas on union business. She testified that Finchum
also said on the occasion, "unless he does go and takes a hand in this . . . he is
liable to get what's coming to him."
Roddam testified that Finchum came out on the occasion with two flour mill
employees and asked him if he would quit work for a few days or a week.
Roddam agreed that he would not work any more after Saturday. Finchum
asked him further if he would come to the union meeting that night, and told
Roddam's wife, "Well, if you will let him go down I will see that he comes back
unharmed." Roddam went to the meeting and came back unharmed.
Roddam also testified to a fist fight with Finchum. He had left the plant
around 4 o'clock in the afternoon ' to sign an affidavit at the District Attorney's
office. He parked his car on the Court House Square and Finchum and two
other men pulled up in another car and parked next to him. Finchum came
over to Roddam as he got out of his car and asked Roddam how he was making
out. Roddam replied, "All right." Finchum said, "That's what I've been waitin'
for," and struck Roddam with his fist. Roddam fought back, and a city police-
man came across the street, arrested them both for fighting, and took them to
the police station. They both pleaded guilty and were fined an equal amount,
$10 each, for fighting.
It has been the consistent policy of the Board that it does not condone the
use of threats or of abusive and intemperate language or any act of violence
on the picket line or elsewhere in the course of a strike. Kansas Milling
50 Presumably on February 16, since on that date Roddam signed the complaints against
Bringle and McDonald charging them with violations of the State statute as a result of
the car -stopping incident on or about February 11.
GREENVILLE, COTTON OIL COMPANY 1069
Company, 86 NLRB 925. The criterion applied, however, to resolve the ques-
tion whether striking employees are to be denied the remedy to reinstatement 64
is whether the acts engaged in were of such a character as to render the em-
ployees unsuitable for • reemployment. Ibid., and cases there cited footnote 9;
and see Republic Steel Corporation v. N. L. R. B., 107 F. 2d 472, cert. den. 309
U. S. 684; N. L. R. B. v. Stackpole Carbon Co., 105 F. 2d 167. The incidents
involved here were clearly not of such a character.
This conclusion is unaffected by questions whether certain of the acts and
incidents constituted violations of the Texas Statute. If they were," Respondent
was of course free to invoke the penal provisions of the act. Certainly, its dis-
position was to. do so, as is apparent from Cameron's calls upon the sheriff
and from Respondent's encouragement, if not instigation, of the abortive and
unfounded complaints by Roddam against Bringle and McDonald. Yet the
record discloses no arrest save the joint one of Roddam and Finchum for a fist
fight for which each was fined an equal amount ; and this in the face of testimony
that city police came by the plant every day during the strike.
Indeed, other evidence offered by Respondent overthrows entirely its defense
to the reinstatement of the strikers and establishes affirmatively that Respond-
ent did not regard them as unsuitable for reemployment. Thus, Ward and
Medley (night superintendent) testified to the general fitness and efficiency of
the prestrike crew and Ward added that he would like to have had them all
back.6D Furthermore, the only reason assigned by Ward or Cameron in refusing
any application was that the applicant's job was filled and that there were no
jobs open.
.Ward testified further that he had had no discussions with Norris or Cameron
relative to the policy to be followed in rehiring the strikers, that they had given
him no instructions not to rehire any of the strikers because of violence, and
that Norris and Cameron left entirely up to him the policy to be pursued. He
testified that the only reason he did not hire the strikers back was that he had
a full crew, and that he had no other reason except in the case of Bringle and
Finchum.60 Moreover, in many cases, Ward encouraged the applicants to stay
57 Respondent argues that participation by individual strikers in conduct prohibited
by Section 8 (b) (1) should bar the remedy of reinstatement as to them. It is clear, of
course, that conduct encompassed by that section constitutes an unfair labor practice
only when engaged in by a labor organization and its agents and that the proscription does
not extend to mere "fellow employees" or to union members as such. 93 Cong. Rec.
4561. However, even were it to be assumed that such conduct would not constitute
protected activity when engaged in by individual strikers (see House Conference Report
No. 510. on H. R. 3020, 80th Cong. 1st Sess. ; and see 93 Cong. Rec. 6600), that Respond-
ent might therefore have discharged striking employees because of participation in some
of the incidents above mentioned, and that the Board might not then have ordered
reinstatement (ibid.), Respondent's contention is still not to be sustained. Thus, there
is no evidence here that any striker was discharged for participation in any of the
conduct now claimed by Respondent to be violative of Section 8 (b) (1) (see footnote
39) ; and the principles applied by the Board on the question of the remedy of reinstate-
ment of striking employees are well established by the cases next cited in the text.
5s The Union argues in its brief that the Texas Statute is unconstitutional as applied
to most of the incidents in this case. The conclusions reached herein make it unnecessary
to consider that question. It is observed, however, that the Supreme Court of Texas
held void the injunction Respondent obtained against the picketing of rail sidings which had
resulted in the refusal of railroad employees to make deliveries at Respondent's plant.
Ex parte Henry, supra.
59 With the exception of Bringle and Finchum, for reasons later mentioned.
60 In their cases Ward assigned the reason that he considered them responsible for the
incidents of alleged violence. It has been found, however, that said incidents were not
of such character as to bar the remedy of reinstatement within the rule of Kan8as Milling
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in touch with the mill and promised them employment if vacancies should
occur. In some such cases, the applicants were later reinstated, some of such
instances occurring during the very course of the hearing.
The above findings dispose of all of Respondent's contentions except in the
case of Ollie Howell as to whom Respondent had pleaded by amendment at
the hearing an additional and special defense of incompetency and inefficiency.
A bill of particulars was granted on the General Counsel's motion and ordered
filed on July 25. Respondent did not comply with the order, but endeavored
on August 2, to make an oral statement of a lengthy bill of particulars based
on general and specific acts of inefficiency which had occurred during the 5 or 6
years before the strike. The Examiner rejected the statement as a bill of
particulars and refused to hear evidence in support of the defense.
It is clear from the record that Respondent willingly continued Howell's
employment until the strike, and there is no evidence of subsequent discharge
and no contention that he was ever criticized, warned, or disciplined on account
of his alleged long-standing inefficiency. Furthermore, Ward and Cameron
both admitted that they denied Howell's applications for reinstatement for
the sole reason that his job had been filled. Under these circumstances, the
matters belatedly asserted by Respondent at the hearing (conceding arguendo
they would establish that Howell was an inefficient or otherwise undesirable
.employee) do not bar him from reinstatement. Cf. Kansas Milling Co., supra.
On the basis of all the evidence it is therefore concluded and found that by
refusing reinstatement to the striking employees on June 20 and July 12, 1948,
and on July 21, 1949, and by refusing reinstatement to individual strikers on
their application at various times between June 20, 1948, and July 25, 1949,
Respondent discriminated and is discriminating against said employees in order
to discourage membership in the Union, and thereby also interfered with, re-
strained, and coerced said employees in the exercise of the rights guaranteed
in Section 7 of the Act.
4. Interference, restraint, and coercion
Respondent's acts of discrimination and of refusal to bargain subsequent to
June 18, 1948, have previously been found to constitute violations of Section
8 (a) (1) of the Act. Additional acts of interference, restraint, and coercion,
the evidence of which was summarized under Division A, supra, were as follows :
Ward's statements to Howell and Martin on June 20, 1948, that the
strikers would have to "humble" themselves and "get down on their
knees" before they could get back to work and that they should "forget"
the union.
Ward's statements to Sneed Williams, Birdie, and Hines prior to the
election in which he conditioned employment or the continuance of
employment on a vote against the union 01
case, supra ; and see Deena Artware, Inc., supra . Respondent might not , therefore , single
out Finchum and Bringle for discriminatory treatment because it considered them the
instigators of the incidents. Cf. Reynolds International Pen Company, 70 NLRB 932,
952; Fairmont Creamery Co., 64 NLRB 824, 841.
°l The General Counsel offered testimony by McDonald and Lee to the effect that after
the advent of the Union, Respondent discontinued its former practice of making loans to
employees . The General Counsel stated that he would offer a formal amendment to the
complaint in the event he proposed ultimately to contend that the testimony established
a violation of Section 8 (a) (1). No such amendment was offered . Furthermore, it is
GREENVILLE COTTON OIL COMPANY 1071
By the statements to Howell and Martin Respondent clearly expressed its
intention to condition the reinstatement of the strikers on an "humbling" of
themselves, which was to include the "forgetting" of the union ; and the state-
ments to Williams , Birdie, and Hines contained clear promises of employment
.and of the continuance of employment in return for a vote favorable to
Respondent.
5. The election ; the challenged ballots
The findings made under the preceding sections make it unnecessary to pass
upon the specific grounds of the Union's objections to the election, its exceptions
to the Regional Director's report thereon, Respondent's exceptions to the Regional
Director's. supplemental report, or on the challenged ballots, since the findings
dispose of the basic issues necessary to a determination of the questions
presented.
The findings and conclusions reached above obviously dictate that the election
be set aside, and it will be so recommended. The holding of a new election is
unnecessary, however, in view of the recommendation herein that Respondent be
ordered to bargain with the Union upon request; and it will therefore be
-recommended that the representation petition and the proceedings thereunder
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Division III, hereof , occurring in
-connection with the operations of the Respondent described in Division I, hereof,
have a close , intimate , and substantial relation to trade, traffic, and commerce
among the several States , and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and that it
take certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent has discriminatorily failed and
.refused to reinstate the employees whose names are listed in Appendix B hereof,
it will be recommended that the Respondent offer to each of them immediate and
full reinstatement to his former or substantially equivalent position (see The
Chase Natinal Bank of the City of New York, San Juan, Puerto Rico Branch,
-65 NLRB 827) without prejudice to his seniority or other rights and privileges,
dismissing if necessay any employees hired in their place since January 19, 1948,
and make them whole for any loss of pay they may have suffered by reason of
such discrimination by payment to each of them of a sum of money equal to that
which he normally would have earned as wages from June 20, 1948, to the date
,of the offer of reinstatement, less his net earnings during such period. (See
Crossett Lumber Company, 8 NLRB 440.)
It having been found that Respondent has, since on or about June 18, 1948,
refused to bargain collectively with the Union as the exclusive representative of
its employees in an appropriate unit, it will be recommended that the Respondent
-upon request bargain collectively with the Union.
hereby found that the evidence as a whole would not have supported such an amendment.
Lee's testimony has previously not been credited . Cameron offered logical explanations
of his denial of loans to Lee and McDonald , and his testimony on the subject is credited.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It having been found that the Respondent has engaged in certain acts of
interference, restraint, and coercion, it will be recommended that the Respondent
cease therefrom.
The violations of the Act which the Respondent committed are, in the opinion
of the Examiner, persuasively related to other unfair labor practices proscribed
by the Act, and the danger of their commission in the future is to be anticipated
from the Respondent's conduct in the past. The preventive purposes of the Act
will be thwarted unless the order is coextensive with the threat. In order there-
fore to make more effective the interdependent guarantees of Section 7, to prevent
a recurrence of unfair labor practices and thereby minimize the industrial strife
which burdens and obstructs commerce and thus effectuate the policies of the
Act, it will be recommended that the Respondent cease and desist from infringing
in any manner upon the 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 undersigned makes the following :
CONCLUSIONS OF LAw
1. American Federation of Grain Millers, A. F. L., is a labor organization
within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees including truck drivers, power
plant employees, and seasonal employees of Respondent at its Greenville plant,
but excluding clericals, watchmen, guards, superintendents, assistant superin-
tendents, the night supervisor, the head linter man, the sack sewer, the head
of the seedhouse, and all other supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. At all times since November 17, 1947, American Federation of Grain Millers,
A. F. L., has been and now is the exclusive representative of all of the employees
of the Respondent in the unit above described for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on or about June 18, 1948, and at all times thereafter to bargain
with American Federation of Grain Millers, A. F. L., as the exclusive representa-
tive of all its employees in the aforesaid appropriate unit the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of the
individuals whose names are listed in Appendix B attached hereto, thereby
discouraging membership in American Federation of Grain Millers, A. F. L., the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]