Harris-Woodson Co., Inc.

National Labor Relations Board - Board Decisions

May 24, 1948

77 N.L.R.B. 819 (N.L.R.B. 1948)

In the Matter of HARRIS -WOODSON Co., INC. and UNITED' CANDY
WORKERS LOCAL INDUSTRIAL UNION No. 1274, C. I. O.
Case No. 5-C-2W.Decided May 04, 1918
Mr. Sidney J. Barban, for the Board.
Gall and Lane, by Mr. Karl M. Dollak, bf Washington, D. C., for the
respondent.
Mr. Lloyd P. Vaughan, of Richmond, Va., for the Union.
DECISION
AND
ORDER
On July 14, 1947, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the respondent filed
exceptions to the Intermediate Report and a supporting brief.,,
The respondent's request for oral argument is hereby denied for
the reason that the record adequately shows the issues and the positions
of the parties.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions and brief of the respondent, and the entire record in the case,
and hereby adcpis the findings, conclusions, and recommendations
of the Trial Examiner with the additions and modifications hereinafter
set forth.
1. In agreement with the Trial Examiner, we find (a) that the Union
actually represented a numerical majority of the respondent's em-
ployees in the appropriate unit in September 1946, and thereafter;
(b) that the respondent refused to bargain collectively with the
Union on and after September 23, 1946, in that, on that date, the
I I'm sua nt to section 3 (b) of the Act, as amended, the National Labor Relations Board
liar delegated its powers in connection with this proceeding to a three -nman panel consisting
of the undersigned Boaid Members [Houston, Reynolds, and Gray]
77 N L R B., No 140.
819
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent rejected the Union's request of September 11, 1946,
for bargaining and notified the Union by letter that the
respondent would not recognize the Union, and thereafter persisted
in its refusal to deal with the Union; and (c) that the strike which
ensued was caused by such unfair labor practices. Alternatively, we
find (a) that the respondent refused to bargain collectively with the
Union on and after September 1, 1943, as the Board determined in
it prior decision; 2 (b) that, apart from the fact that the Union repre-
sented a new numerical majority of the employees in the appropriate
unit in September 1946, and thereafter, the Union continued, as a
matter of law, to be the exclusive representative of such employees
from August 26, 1946, the date of the Board's prior Decision and
Order, to the date of the strike and thereafter, in view of the un-
remedied refusal to bargain ; (c) that the respondent continued to re-
fuse to bargain with the Union from August 26, 1946, to the date of
the strike; 3 and (d) that the strike was caused by such continuing
refusal to bargain.
2. The Trial Examiner, among other measures designed to effectu-
ate the policies of the Act, recommended that the Board direct the
respondent, upon request, to bargain collectively with the Union as
the exclusive representative of the employees in the appropriate unit.
However, the Act has been amended to preclude the Board from
certifying as bargaining representative any labor organization which,
like the Union herein, has not complied with the provisions of Section
9 (f), (g), and (h) of the Act, as amended. In view of this amend-
ment and in accordance with our established policy,4 our order in this
proceeding, directing the respondent to bargain with the Union, will
be conditioned upon compliance by the Union with the above-cited
section of the Act, as amended, within thirty (30) days from the
date of the Order herein.
3. Gracie Campbell and Lucy Stillwill, both strikers, were ill at the
time that the strike officially ended, and thus were unable to return to
work. However, the Union, by its letter to the respondent, dated
November 16, 1946, advised the respondent that those two individuals
would return to work when they were able to do so. At the time of
the hearing, Stillwill was still unable to work. The record is not clear
with regard to Campbell's physical condition at the time of the hearing.
Under the circumstances, the back-pay period for Campbell and Still-
2 Matter of Harris-Woodson, Inc., 70 N L R B 956 The Board's order in that case has
been enforced by the Fourth Circuit Court of Appeals since the hearing in the instant case.
N. L. R B v Harris-Woodson, Inc., 162 F. (2d) 97. The respondent has not yet complied
with the court' s decree
3 As appears above, the respondent still continues to refuse to bargain
4 Matter of Marshall and Bruce Company, 75 N L. R B 90
HARRIS-WOODSON CO., INC. 821
will shall begin to run from the date that they become physically
qualified to perform their duties.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, Harris-Woodson
Co., Inc., Lynchburg, Virginia, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Candy Workers
Local Industrial Union No. 1274, affiliated with the Congress of
Industrial Organizations, if and when said labor organization shall
have complied, within thirty (30) days from the date of this Order,
with Section 9 (f), (g), and (h) of the Act, as amended, as the ex-
clusive representative of all the production employees employed at the
respondent's Lynchburg, Virginia, plant, excluding maintenance and
clerical employees, firemen, and supervisory employees as defined in
the Act, as amended, with respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment;
(b) Discouraging membership in United Candy Workers Local
Industrial Union No. 1274, affiliated with the Congress of Industrial
Organizations, or any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire or tenure of em-
ployment or any term or condition of employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Candy Workers Local
Industrial Union No. 1274, affiliated with the Congress of Industrial
Organizations, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act, as amended :
(a) On request and upon compliance by the Union with the filing
requirements of the Act, as amended, in the manner set forth above,
bargain collectively with United Candy Workers Local Industrial
Union No. 1274, affiliated with the Congress of Industrial Organiza-
tions, as the exclusive representative of all the production employees
employed at its Lynchburg, Virginia, plant, excluding maintenance
and clerical employees, firemen, and all supervisory employees as
788886-49-vol. 77-53
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defined in the Act, as amended, with respect to rates of pay, wages,
hours of employment, or other conditions of employment, and if an
understanding is reached, embody such understanding in a signed
agreement ;
(b) Offer all those employees named in "Appendix A," attached
hereto, who have not been reinstated, immediate and full reinstatement
to their former or substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges, dismissing, if
necessary, any employees who have been hired to replace said em-
ployees; and with respect to those employees who went on strike on
October 4, 1946, or thereafter, and were subsequently reinstated and
have not since left voluntarily, restore them to their seniority and
other rights and privileges;
(c) Make whole all employees listed in "Appendix A" for any loss
of pay that they may have suffered as a result of the respondent's dis-
crimination against them, in the manner set forth in the decision
herein and in the section of the Intermediate Report entitled "The
remedy";
(d) Post at its plant in Lynchburg, Virginia, copies of the notice
attached hereto and marked "Appendix B." 5 Copies of said notice,
to be furnished by the Regional Director for the Fifth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order, and again within
ten (10) days from the future date, if any, on which the respondent
is officially notified that the Union has met the condition hereinabove
set forth, what steps the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the respondent violated Section 8 (1) of the Act by failing
to comply with the Board's Decision and Order in Case No. 5-C-1900,
as alleged in Paragraph XIII, subsection (b) of the complaint.
S In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted before the words "A Decision and Order ," the words "A decree of the
United States Circuit Court of Appeals Enforcing."
HARRIS-WOODSON CO., INC.
APPENDIX A
823
Alice Bowen Rayland Jackson Lucy Stlllwlll
Gracie Campbell Callie Johnson Annie Tyree
Margaret Carter Gertrude Laughorn Mary Tyree
Mamie Childress Otis Lipscomb Ida Wilkerson
Carrie S. Eckhardt Robert Phelps Bessie Witt
Louise Franklin Frank Richardson
Nettie Holt Edith Shephard
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist UNITED CANDY WORKERS
LOCAL INDUSTRIAL UNION No. 1274, AFFILIATED WITII TIKE CON-
GRESS OF INDUSTRIAL ORGANIZATIONS, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent po-
sitions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them, including Otis
Lipscomb, whole for any loss of pay suffered as a result of the
discrimination.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
wages, hours of employment or other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement, provided said labor organization complies,
within thirty (30) days from the date of the aforesaid order of
the Board, with Section 9 (f), (g), and (h) of the National Labor
Relations Act, as amended. The bargaining unit is:
All production employees employed at the respondent's
Lynchburg, Virginia, plant, excluding maintenance and cleri-
cal employees, firemen, and all supervisory employees as
defined in the Act, as amended.
S24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alice Bowen Gertrude Laughorn
Gracie Campbell Robert Phelps
Margaret Carter Frank Richardson
Mamie Childress Edith Shephard
Carrie S. Eckhardt Lucy Stillwill
Louise Franklin Annie Tyree
Nettie Holt Mary Tyree
Rayland Jackson Ida Wilkerson
Callie Johnson Bessie Witt
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of member-
ship in or activity on behalf of any such organization.
HARRIS-WOODSON CO., INC.,
Employer.
Dated -------------------- By -------------------------------
(Representative ) ( Title)
NOTE: Any of the above-named employees presently serving in the
Armed Forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Sidney J. Barban, for the Board.
Call and Lane , by Mr. Karl M. Dollok, of Washington, D. C, for the respondent.
Mr. Lloyd P Vaughan, of Richmond , Va., for the Union
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Candy Workers Local Industrial
Organization, herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Fifth Region (Balti-
more, Maryland), issued its complaint dated April 3, 1947, against Harris-
Woodson Co., Inc., Lynchburg, Virginia, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and the amended charge, accompanied
by notice of hearing thereon, were duly served upon the respondent and the
Union.
With respect to the unfair labor practices, the complaint alleged, in substance:
(1) that the respondent although duly requested by the Union, refused, at all
times since August 26, 1946, to bargain with the Union which had been designated
HARRIS-WOODSON CO., INC. 825
by the Board as the representative of respondent's employees for the purposes
of collective bargaining; (2) that 19 employees of the respondent had concertedly
gone on strike on October 4 and October 7, 1946, because of the respondent's
refusal to bargain and other unfair labor practices; (3) that said employees
offered to return to work and applied for reinstatement on or about November
18, 1946, upon the termination of the strike; (4) that the respondent, on or about
November 18, 1946, refused to reinstate and discharged the said 19 employees'
because of their union or concerted activities; and (5) that the respondent by
the above acts, by refusing and failing to comply with the Decision and Order
of the Board in Matter of Harris-Woodson Co., Inc., 70 N. L. It. B. 956,2 and by
certain other detailed acts interfered with, restrained, and coerced its employees
in the exeicise of their rights guaranteed by Section 7 of the Act.
On May 7, 1947, the respondent filed (1) a motion to strike certain allegations
of the said complaint, and (2) a motion for a bill of particulars with respect to
the complaint herein; said motions were referred to William E. Spencer, Associate
Chief Trial Examiner, who denied the motion to strike, and granted in part the
motion for the bill of particulars.
The respondent duly filed its answer in which it : denied the jurisdiction of the
Board;' admitted its refusal to bargain at all times since August 26, 1946,
although denying that it had been duly requested to do so by the Union, or that
it had thereby violated Section 8 (5) of the Act ; stated that it was without knowl-
edge of the strike or of the termination of the strike, and denied that it had
refused to reinstate or discharged the 19 employees as alleged in the complaint;
admitted its refusal and failure to comply with the Decision and Order of the
Board in the Matter of Harris-Woodson Co., Inc., 70 N. L. It. B. 956, but claimed
that the allegation was "immaterial and impertinent" on the ground that the
Board's Decision and Order created no legal obligations in the respondent, and
on the further ground that the matter is in the jurisdiction of the Circuit Court
of Appeals for the Fourth Circuit ; further denied each and every other allegation
of unfair labor practices in the complaint.
Pursuant to notice, a hearing was held in Lynchburg, Virginia, on May 19 and
20, 1947, before the undersigned Trial Examiner duly designated by the Chief
Trial Examiner. The Board and respondent were represented by counsel and
the Union by an international representative. All parties participated in the
hearing. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties. At the
beginning of the hearing counsel for the respondent renewed his motion to
' Following is a list of the employees named in the complaint
Alice Bowen Rayland Jackson Lucy Stillwell
Gracie Campbell Cattle Johnson Annie Tyree
Margaret Carter Gertrude Laughorn Mary Tyree
Mamie Childiess Otis Lipscomb Ida Wilkerson
Carrie S Eckhaidt Robert Phelps Bessie Witt
Louise Franklin Frank Richardson
Nettle Holt Edith Shephard
2 The undersigned takes judicial notice of the Board's Decision and Order in the afore-
said case.
3 The jurisdictional question was raised by the respondent as a result of the allegation
in the complaint , that the respondent refused to comply with the Board's Decision and
Order in Hatter of Harris-Woodson Co., Inc , Case No 5-C-1900. This question will be
discussed in detail and disposed of by the undersigned hereinafter'
826 DECISIONS OF NATIONAL LABOR RELATJONS BOARD
strike certain allegations in the complaint ; the motion was denied by the under-
signed. At the close of the hearing counsel for the respondent renewed said
motion; ruling was reserved by the undersigned. It is hereby denied. At the
beginning of the hearing counsel for the respondent also moved to dismiss the
complaint; the motion was denied by the undersigned. The motion was renewed
at the close of the hearing and ruling thereon was reserved by the undersigned. It
is disposed of by the findings and recommendations hereinafter made. At the end
of the hearing, counsel for the Board moved to conform the pleadings to the
proof in such minor matters as the spelling of names, dates, and the like. The
motion was granted without objection. The hearing was closed after oral argu-
ment before the undersigned by counsel for the Board and counsel for the respond-
ent. All parties were granted an opportunity to file briefs and/or proposed
findings of fact and conclusions of law. Briefs have been received from the
Board and the respondent.
FINDINGS OF FACT
I. JURISDICTION OF THE BOARD
The respondent, in its motions to dismiss made at the hearing and in its brief
filed with the undersigned since the hearing, contends that the Board is without
jurisdiction to conduct a hearing in the instant case because at the time the com-
plaint was issued the Board had previously filed a petition for enforcement of
its Decision and Order in Case No. 5-C-1900 in the United States Circuit Court
of Appeals for the Fourth Circuit, and that consequently the Board by virtue
of Section 10 (e) of the Act, was divested of jurisdiction over all matters litigated
in the aforesaid case, and that said matters by virtue of the provisions of said
Section of the Act were now under the exclusive jurisdiction of said Circuit Court
of Appeals. It is clear from the record and the respondent's brief that it predi-
cates its contention in this regard primarily on the following allegation in the
Board's complaint, at paragraph XIII, subsection (b), which alleged a violation
of Section 8 (1) of the Act :
By refusing and failing to comply with the Order of the Board as set forth
in The Matter of Harris-Woodson Co., Inc., 5-C-1900, 70 N. L. R. B. 956.
The undersigned is convinced and finds that normally the refusal of an
employer to comply with a Decision and Order of the Board is not in and of itself
violative of the Act. The Board's remedy in such a situation is recourse to the
Courts as provided in Section 10 (e) of the Act. The respondent likewise has a
similar remedy under Section 10 (f) of the Act, should it feel aggrieved by a
Decision and Order of the Board. Since the Act provides a remedy to either
party in such a situation, by recourse to the Courts, hence mere failure to comply
with such an Order could not be deemed violative of the Act.'
Having found as above, the undersigned will recommend that the allegation
in Paragraph XIII, the subsection (b) of the complaint, be dismissed, and that
the respondent's motion to dismiss the complaint be granted to this extent. In
all other respects the respondent's motion to dismiss is hereby denied.
In addition to the above contention the respondent in effect also contends that
the Board, by referring to its Decision and Order in Case No. 5-0-1900 in various
paragraphs and sub-sections of its complaint, is in effect attempting to enforce its
own order, and cites numerous cases in support of its contention.
4 Stark v. Waciard, 321 U S. 288 at 309 ; Myers Y. Bethlehem Shipbuilding Corp , 303
U. S. 41, at 44; Phelps Dodge Corp. v. N. L. R. B, 313 U S. 177, at 185, Amalgamated
Utility Workers V. Consolidated Edison Co ., 309 U. S. 261, at 264.
HARRIS-WOODSON CO., INC. 827
That the Board must resort to the United States Circuit Court of Appeals,
or to the Federal District Courts under certain circumstances, to enforce its
Orders is so clear that it does not require discussion herein. The undersigned
has carefully considered the respondent's contentions in this regard, and is con-
vinced that the Board's purpose in citing the Decision and Order in Case No.
5-C-1900, in its complaint, was primarily for background purposes, and particu-
larly to show a new refusal to bargain with the Union after the Decision and
Order was issued on August 26, 1946, and to allege new and unlitigated unfair
labor practices by the respondent that flowed directly therefrom. The record
in the instant case clearly shows that these were the acts that were litigated
at the hearing herein, and not those acts that occurred prior to August 26, 1946.
In view of the foregoing and the record as a whole the undersigned is con-
vinced and finds that this contention of the respondent is without merit.
II. THE BUSINESS OF THE RESPONDENT
The respondent, Harris-Woodson Co., Inc., is a Virginia corporation having
its principal office and place of business in Lynchburg, Virginia, where it is en-
gaged in the manufacture, sale, and distribution of candy and related products.
During the calendar year 1946, the respondent purchased, for use at its plant,
raw materials valued in excess of $50,000, of which more than 50 percent was
obtained from sources outside of Virginia. During the same period, the re-
spondent manufactured finished products valued in excess of $100,000, of which
approximately 50 percent was sold and distributed to points outside of Virginia.
The respondent concedes and the undersigned finds, that for the purpose of
this proceeding, it is engaged in commerce, within the meaning of the Act.
III. THE ORGANIZATION INVOLVED
United Candy Workers Local Industrial Union No. 1274, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting to
membership employees of the respondent.
IV. THE UNFAIR LABOR PRACTICES
Background
On August 26, 1946, the Board issued its Decision and Order in Case No.
5-C-1900, in which the parties herein were involved. An examination of this
Decision and Order shows that the Board found that the respondent herein
had engaged in certain unfair labor practices, in that it had violated Section
8 (1), (3), and (5) of the Act, by interfering with, restraining, and coercing
its employees in the exercise of their rights guaranteed in Section 7 of the Act ;
by discharging and thereafter refusing to reinstate Edna B. Elder for the reason
that she joined and assisted a labor organization,' and engaged in concerted
activities for the purposes of collective bargaining or other mutual aid or pro-
tection; and by refusing to bargain collectively with the Union as the exclusive
representative of its employees in an appropriate unit which the Board found
to be as follows : "All production employees employed at the respondent's
Lynchburg, Virginia, plant, excluding maintenance and clerical employees, fire-
man, and all supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees or effectively
6 The Union involved herein.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend such action." Having thus found, the Board then, in substance.
ordered the respondent herein to cease and desist from refusing to bargain
collectively with the Union as the exclusive representative of all its employees
in the unit described above, with respect to wages, hours, and other conditions
of employment; and (b) discouraging membership in the Union, or any other
labor organization of its employees, by discharging or refusing to reinstate any
of its employees, or by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of their employment.
The Board also ordered the respondent herein to take the following affirmative
action, to wit: (a) upon request, bargain collectively with the Union as the
exclusive representative of all its production employees employed at the re-
spondent's Lynchburg, Virginia, plant, excluding maintenance and clerical em-
ployees, fireman, and all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of employees
or effectively recommend such action, with respect to rates of pay, wages, hours
of employment, or other conditions of employment; and (b) offer Edna B Elder
immediate and full reinstatement to her former or a substantially equivalent
position, without prejudice to her seniority or other rights and privileges, and
to make her whole for any loss of pay she may have suffered by reason of the
respondent's discrimination against her, by payment to her of a sum of money
equal to the amount which she would normally have earned as wages during
the period from May 10, 1945, the date on which she was discharged, to the
(late of the respondent's offer of reinstatement, less her net earnings during
such period; and to post at its plant in Lynchburg, Virginia, copies of the usual
notice ordered in such cases.
Shortly after the issuance of the Board's Decision and Order, the Union, on
several occasions, by its duly designated agents, and by committees from the
local, endeavored to meet with the respondent, and discuss with its representa-
tives compliance with the Board's Decision and Order and a proposed contract.
The respondent refused to meet with them. Moreover, the respondent refused to
comply with any of the provisions of the aforesaid Decision and Order, and as a
result the Board filed a petition for enforcement in the United States Circuit
Court of Appeals for the Fourth Circuit.'
It is in the light of this background that the issues herein evolve.
A. Sequence of events leading up to the strike of October 4, 1946' ,
Shortly after the Board's Decision and Order in Case No. 5-C-1900 was
issued, the Union held a meeting and were addressed by L P. Vaughan, inter-
national representative for the Union. Vaughan read the Board's Decision and
Order to those present, and explained to them its meaning. Vaughn also
advised them that since he had been unsuccessful in his efforts to meet with
R. A. Harris, president of the respondent, and in direct charge of its labor rela-
tions, that it might be well to have some other international representative of
the Union contact Harris, and endeavor to arrange a meeting between the
respondent and a committee selected by the Union. Vaughan's recommendation
was accepted by the Union. Shortly thereafter Vaughan got in touch with
e Since the hearing in the instant case the Fourth Circuit has rendered its Decree enforc•
ing the Board's Decision and Order in its entirety. At this writing the proper citation of
the Court's Decision is not available to the undersigned. The date of the Court's Decision
was May 31, 1947.
° The foregoing findings are based on the credible and undenied testimony of L P.
Vaughan, Boyd E. Payton, and Gertrude Laughorn.
IIARRIS-WOODSON CO., INC. 829
Ernest B. Pugh, Virginia C. I. O. Regional Director, and asked him to communi-
cate with Harris, and endeavor to arrange a meeting between the latter and a
committee representing the Union. Pugh complied with Vaughan's request and
on September 11, 1946, wrote the respondent the following letter :
SEPTEMBER 11 , 1946.
HARRIS-WOODSON COMPANY, INC.,
Mr. It. A. HARRIS, President,
Lynchburg, Virginia.
RE: N. L. R. B. Case No. 5-C-1900
GENTLEMEN: In consequence of the terms of the Decision and Order of
August 26, 1946 in the above cited case, this letter is written to request you
to meet a committee representing United Candy Workers Local Industrial
Union No. 1274-CIO for the purpose of collective bargaining with respect to
rates of pay, wages, hours of work and other conditions of employment and
to reach an understanding as to complete compliance with each and all
clauses of the Board's Decision and Order in Case No. 5-C-1900.
An early reply indicating a convenient date and hour for the requested
conference will be appreciated.
Yours very truly,
ERNEST B. PUGH
VIRGINIA CIO REGIONAL DIRECTOR.
On September 23, 1946, the respondent replied to Pugh's letter of the 11th, as
follows :
SEPTEMBER 23, 1946.
Mr. ERNEST B. PUGH
410 Law Building
Richmond 19, Virginia
DEAR MR. PUGH : This is in reply to your recent letter requesting that Harris,
Woodson Company, Inc. bargain with your Union for the purpose of nego-
tiating a contract covering our employees.
As we have previously advised you over some period of time, the Company
has in good faith doubted and still doubts the right of the Union, under
all the facts and circumstances, to represent those employees.
At all times we have been and still are willing to agree to a consent
election for the purpose of determining your right to represent those em-
ployees, and we fail utterly, therefore, to understand the attitude of the
Union, which has consistently refused to petition for an election so that the
question could be determined in accordance with the procedure set up under
law.
Unless you can agree, therefore, to petition the National Labor Relations
Board for a consent election to be held, we must inform you that we feel
that the law makes it incumbent upon us to question your right to represent
those employees and that we will, under the circumstances, be unable to
bargain with your Union.
Very truly yours,
HARRIS, WOODSON CO., INC.
Per : R A. HARRIS.
Shortly after Pugh received the above letter from the respondent, Vaughan
again met with the Union, and at that time reported to those present his failure
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to arrange a meeting between the respondent and the Union 8 He also told
them that the Union had exhausted "every effort possible to get the Company
to meet and bargain with the Union." In the discussion that followed Vaughan's
statement, several members advocated strike action to force the respondent to
meet with a committee from the Union. Vaughan cautioned against such action
without first considering the hardships that of necessity follow in the wake of
a strike, and counseled the membership to discuss the question among them-
selves before taking a definite stand. His advice in this regard was followed
by the membership, and the meeting was adjourned. It was decided, however,
to hold another meeting within a day or two, and the members of the Union
were instructed to discuss among themselves in the interim, the contemplated
strike.
A second meeting was held a day or so later and was attended by all the
members of the local except two or three who were unable to attend on account
of sickness. At this meeting the contemplated strike action was thoroughly
discussed by the membership. A vote was then taken on the question of whether
or not to strike the respondent's plant. All present voted for the strike except
one member, who at the time stated, that if the Union would make one more
effort to see Harris, the respondent's president, and inform him of the con-
templated strike, and beseech him to meet with the Union committee and thus
avoid the necessity of the strike, and that if Harris again refused to meet with
the committee, then she too would vote with the others and go out on strike when-
ever it was called. In deference to this member's plea, the membership decided
to make one last effort to see Harris, and instructed Vaughan to try and get in
touch with him the next morning and again attempt to arrange a meeting
between the respondent and the Union committee, and to report to the strike
committee the result of his effort. It was also decided at this meeting that in
the event Vaughan was unsuccessful in his attempt to arrange a meeting between
the respondent and the Union committee for the avowed purpose of discussing
a contractual relationship between the parties, then in that event a strike was
to be called. In furtherance of this plan a strike committee consisting of
Gertrude Laughorn, Mary Tyree, and Mamie Childress was elected.
In accordance with the above instructions, Vaughn called Harris the next
morning and was advised by someone in his office that he was not in. Vaughan
then went to see Boyd E Payton, a resident of Lynchburg, Virginia, and regional
director of the Textile Workers Union of America, C. I. 0., and told him of the
difficulty the Union was experiencing in attempting to arrange a meeting between
the respondent and the Union committee. He then asked Payton to intervene
for the Union and to contact Harris, and inform him of the importance of an
early meeting with the Union committee for the purpose of discussing a con-
tract and compliance with the Board's Decision and Order of August 26, 1946,
and to thus avoid a strike. Payton agreed to intervene, and called Harris on
the telephone. Payton told Harris that he was intervening at the request of
the Union in an effort to prevent a work stoppage and asked him to meet with
the Union committee and himself for the purpose of discussing a contract and
to thus avoid a strike. Harris told Payton that he saw no point in meeting
either with him or any other C I. O. representative, and that the threat of a
8 According to the credible and undenied testimony of Vaughan and Gertrude Laughorn,
there were approximately 20 members of the Union present. At this time the respondent
had 25 persons in its employ in the appropriate unit. The meetings referred to were held
at various dates in the latter part of September 1946, particularly during the last week
of that month.
HARRIS-WOODSON CO., INC. 831
strike did not bother the respondent ; that they were practically out of sugar
and that the plant was about to shut down in any event; and that "if the
employees wished to go on strike this was as good a time as any." Payton then
told Vaughan of the respondent's refusal to meet with any representative of
the Union.
Vaughan then contacted Gertrude Laughorn, a member of the strike committee,
and informed her of his failure to arrange a meeting between the respondent and
the Union committee.
Shortly thereafter, Laughorn called a meeting of the strike committee in the
ladies dressing room at the respondent's plant and at that time informed them of
Harris' refusal to meet with the Union This was at about quitting time on the
evening of October 3, 1946. The committee decided to strike, and it was agreed
that each member of the committee was to inform the employees of the respondent
who were still in the plant that the strike was to become effective the next morn-
ing, October 4, 1946. Since the committee was unable to get in touch with all
the employees, the members of the committee agreed to tell each employee that
they were expected to report to work the next morning at 8: 00 a. in., and that
at that time they were to walk out in a body.
The next morning, October 4, 1946, the employees reported to work as usual.
The members of the committee, in accordance with their pre-arranged plan, then
circulated throughout the plant and informed the employees individually that the
strike was to start immediately. Rolland P. Torrence, the respondent's plant
superintendent, observed this action on the part of the committee, and followed
Laughorn and Tyree to the top floor, and informed them that Harris wanted to
see them in the dressing room. Laughorn and Tyree then proceeded to the dress-
ing room where they found assembled practically all the female employees.'
Harris and Torrence were also present. Harris then addressed the employees
and said, "Are you all going to quit?" To which Laughorn replied, "No, sir, we
are not going to quit-we are going on a strike because you won't meet with us to
negotiate a contract." Harris then said that he had not been notified of a strike.
Laughorn then reminded him that Payton had informed him the day before that
the Union was contemplating a strike in the event that Harris continued in his
refusal to meet with the Union committee for the purpose of negotiating a con-
tract. Harris admitted that Payton had talked to him, but stated that "you don't
have any union." He further stated that what he had reference to was the fact
that the employees had not come to him individually, and that this was the only
manner in which he would discuss working conditions with them. Laughorn in-
formed him, in substance, that the employees "had no right to come to him
individually as union members, what we got was supposed to come through a
contract, and that is what we wanted him to do, to negotiate a contract so we
could get what we wanted." Harris then turned to the individual employees
and asked them if they wanted to strike. One of the employees, a Mrs. Johnson,i°
replied, in substance, that she did not want to strike, but that if the others did
she would, because Harris would not meet with the Union and negotiate a con-
tract. Shortly thereafter one of the employees asked Harris and Torrence to
leave the dressing room so that they could change their clothes. Both left and
the meeting then broke up.
° The record is clear that females constituted the great majority of the respondent's
employees.
10 The same employee who had requested the Union to delay strike action until they made
one more attempt to meet with the respondent.
0
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After dressing, the employees who had participated in the meeting with
Harris and Torrence walked out and formed a picket line around the plant.
At this time a few of the employees elected to stay at their work and did not
join in the strike. However, on Monday, October 7, 1946, all the employees joined
in the strike, except one, who was not a member of the Union
Harris' testimony in regard to what occurred at the meeting in the dressing
room on the morning of October 4, 1946. is substantially the same as that of
Laughorn, except in one instance. In his testimony relative to the reasons given
him for the strike by the employees, he testified as follows
Q. Of October 4, 1946, I mean.
A Yes, when I arrived at the office on the morning of October 4, '46• Mr.
Torrence came in in a very few minutes and advised me that the women
were preparing to walk out of the plant.
Q. Will you tell us what you did as a result of that advice, Mr. Harris
A. I immediately went up to the plant, into the plant, on the second floor
and found that the women were in their dressing room changing clothes to
leave. I requested permission to talk to them a few minutes, which pernus-
sion was granted readily and Mr Torrence and myself went in and en-
deavored to find out what the trouble was and after a very--
Q. Did you ask them why they were preparing to leave, Mr. Harris?
A. I asked them as a whole and individually.
Q. What was their answer?
A. Their answer was-one was that they could not live on the wages
they were getting and therefore it would be necessary to strike [Italics
supplied.]
Q. What was your response to that, Mr. Harris?
A. My response to that was that we had planned certain changes in wages
which had not been put into effect due to the fact that we had had no sugar
spud I was spending all of my time trying to locate sugar so that we could
work, but assured them within a relatively short while those wages adjust-
ments were proposed and would be made.
it is significant that Harris did not deny Laughorn's testimony that the reason
for the strike was the respondent's repeated refusals to meet with the Union
committee for the purpose of negotiating a contract. Moreover, his testimony
in the opinion of the undersigned corroborates that of Laughorn, in that he testi-
fied specifically that the economic reason, i. e., a living wage, was but "one"-of
the reasons given. He did not mention the other reasons, advanced by Laughorn.
Accordingly, the undersigned credits Laughorn's testimony in this regard.
Harris also testified on direct examination that he asked each member of the
strike committee who called on him November 15, 1946, to notify him that the
Union had officially ended the strike, why they had gone on strike, and that each
stated it was on account of the wages they were paid. Harris did not impress the
undersigned as a reliable witness. Moreover, when his testimony is considered in
the light of his admissions as to his refusals to meet with the Union committee,
and the undenied and credible testimony of Laughorn relative to the events that
occurred on the morning of October 4, 1946, the undersigned is convinced that he
did not give a full account of what was said at the above meeting. Accordingly,
the undersigned discredits his testimony in this regard and rejects his contention
that wages alone were the cause of the strike as being within merit."
"The respondent in its brief makes no contention that the strike was for economic
reasons.
HARRIS-WOODSON CO., INC. 833
The events that occurred during the strike will be set forth in detail hereinafter
in the sections of this report styled , "Interference , restraint , and coercion," and
the "Discriminatory discharges." 12
B. The retusal to bargain collectively
I The appropriate unit
The complaint alleges, the respondent admits, and the undersigned finds, that
all production employees of the respondent employed at its Lynchburg, Virginia,
plant, excluding maintenance and clerical employees, firemen, and all supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees or effectively recommend such action,
at all times material herein constituted and now constitute a unit appropriate
foi the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act 13
2. Representation by the Union of ii majority in the appropriate unit
As noted above, the Board in its Decision and Order in Case No. 5-C-1900, issued
August 26, 1946, ordered the respondent to bargain collectively with the Union
as the exclusive bargaining representative for its employees in the above-found
appropriate unit The undersigned has also found herein above that the Union
on several occasions requested the respondent to meet with the Union committee
for the purpose of discussing compliance with Board's Order in Case No 5-C-1900,
and to negotiate a contract, and the respondent refused not only to meet with
Union committees but at no time during the period from August 26, 1947, to date
questioned the majority status of the Union, except as stated by Harris in his
letter to Pugh dated September 23, 1946.14
According to the credible and undenied testimony of Gertrude Laughorn, the
Union's secretary and treasurer, at the time the requests to the respondent for
a bargaining conference were made in September and October 1946, and at all
times material herein, all of the respondent's employees in the appropriate unit,
with the exception of one, were paid-up members of the Union. Laughorn fur-
ther testified that of the 19 employees named in the complaint as having been
discriminatorily discharged by the respondent, each of them was a mein-
her in good standing both prior to the strike, subsequent thereto, and at all times
material herein At the request of the undersigned, the respondent submitted
and offered in evidence at the hearing a list of its employees in the appropriate
12 The record is cleai that the strike officially ended on November 18, 1946 See infra
13 In its answer the respondent admits that the above constitutes an appropriate unit,
but avers that it is irrelevant and immaterial to the issues involved herein , for the reasons
that this question was litigated in Case No. 5-C-1900 , and is now before the United States
Circuit Court of Appeals for the Fourth Circuit, for enforcement of the Board's Decision
and Order in that case , and that therefore the Board is without jurisdiction to proceed in
the instant case while the matter is before said Circuit Court of Appeals. For reasons
heretofore set forth in that section of this report styled "Statement of the Case," the under-
signed rejects this contention as being without merit.
14 The undersigned is convinced and finds that the respondent's alleged doubt of the
Union's majority as expressed by Harris in the above letter was raised in bad faith,
especially in view of the Board's Decision and Order in Case No. 5-C-1900 Dloreoi er, if
the respondent had any real doubt as to the Union's majority at all times material herein,
it certainly was or should have been dispelled on October 4 and 7 , 1946, when an over-
whelming majority of the employees in the above-found appropriate unit walked out on a
strike.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit as of the pay-roll period next preceding the date of the strike . An exam-
ination of the pay -roll shows that as of the pay -roll period ending October 3, 1946,
there were 26 employees in the unit described herein above. Thus it is clear
from the record that the Union, at all times material herein , had a membership
of 25 out of the 26 employees in the appropriate unit"
In view of the foregoing and upon the record as a whole , the undersigned
concludes and finds that during the months of September , and on October 3 and 4,
1946, and at all times thereafter , the Union has been the duly designated repre-
sentative of a majority of the respondent 's employees in the aforesaid appropri-
ate unit and that, by virtue of Section 9 (a) of the Act , the exclusive repre-
sentative of all the employees in such unit for the purposes of collective bargain-
ing in respect to rates of pay, wages , hours of employment , or other conditions
of employment.
3. The refusal to bargain on September 23, 1947 , and thereafter
As found above , the Union by Ernest B. Pugh, Virginia C. I. O. Regional
Director , wrote the respondent on September 11, 1946, and requested the respond-
ent to meet a committee from the Union for the purpose of collective bargaining
with respect to rates of pay , wages, hours of work and other conditions of em-
ployment , and for the further purpose of discussing compliance with the provisions
of the Board 's Decision and Order in Case No . 5-C-1900. The respondent re-
fused to comply with this request by letter dated September 23, 1947, signed
by its president , R. A. Harris . Again on or about October 3 , 1947 , Boyd E.
Payton, Director for the Textile Workers Union of America , C. I. 0., intervened
at the request of the Union, and by telephone requested R. A. Harris to meet
with a committee from the Union . This request was refused . Moreover, on
the morning of October 4, 1947, Gertrude Laughorn , secretary and treasurer
of the Union , and at that time chairman of the strike committee , in her state-
ment to Harris as to the purpose of the strike , again in effect, requested the
respondent to meet with the Union committee for the purpose of negotiating
a contract . Harris again refused by offering to deal individually with the em-
ployees, and by his statement to the employees that the Union no longer existed.
In view of the foregoing and upon the record as a whole, the undersigned
is convinced and finds that the respondent on September 23, October 3, and on
October 4 , 1946, and at all times thereafter , has refused to bargain collectively
with the Union as the exclusive representative of its employees in an appropriate
unit, in respect to rates of pay , wages, hours of employment , or other conditions
15 As indicated above , the Board in its Decision and Order in Case No 5-C-1900, dated
August 26 , 1946, found that the Union was the duly designated representative of
the employees , pursuant to Section 9 (a) of the Act On May 31, 1947 , the United
States Circuit Court of Appeals for the Fourth Circuit, rendered its decision enforcing
the Board 's Decision and Order in full. Thus the objection of the respondent , as set forth
above , in that section of this report styled "Statement of the Case ," in the considered
opinion of the undersigned becomes moot Furthermore , both the Board and the Courts
have repeatedly held that designation of a bargaining representative by membership and
authorization cards, and the like , is sufficient evidence to warrant a majority finding by the
Board In the instant case , designation of the Union as the bargaining agent is evidenced
by Laughorn ' s undenied and credible testimony that all the employees in the unit , except
one, were members of the Union in "good standing" which the undersigned infers and finds
meant that they were dues-paying members, which in the opinion of the undersigned is
much stronger evidence of designation than a mere signature on an application for mem-
bership card . See N. L . R B v. Bradford Dyeing Co., 310 U S. 318; Lebanon Steel
Foundry Co v. N. L R. B , 130 F. ( 2d) 404; Brotherhood of Railway and Steamship Clerks
v. Virginia Railway Co ., 125 F. ( 2d) 835.
HARRIS-WOODSON CO., INC. 835
of employment , and has thereby interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
Findings as to the strike of October 4, 1947
The undersigned has found above that the respondent on September 23, October
3 and 4, 1946, and at all times thereafter , has refused to bargain with the Union
as the exclusive representative of its employees in an appropriate unit, in respect
to rates of pay, wages , hours of employment, or other conditions of employment,
and has thereby interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
The undersigned has also found above that the respondent 's employees went
out on strike on the morning of October 4, 1946, in protest of the respondent's
repeated refusals to meet with the Union committee for the purpose of nego-
tiating a contract.
In view of the foregoing findings and the record as a whole, the undersigned
is convinced and finds that the strike of the respondent 's employees which
started October 4 , 1946, and continued until November 18, 1946, was an unfair
labor practice strike.
0. Interference , restraint , and coercion 'a
As found above a majority of the respondent's employees walked out on
strike on the morning of October 3, 1946, and on the following Monday morning,
October 7, 1946, all the employees in the plant, with one exception, joined the
others and participated in the strike . During the course of the strike a picket
line was thrown around the respondent 's plant, with the striking employees
alternating in serving thereon.
Shortly after the picket line was formed in front of the respondent's plant,
Harris came to the door of the respondent's plant and asked the employees who
were serving thereon if they "had quit work." Laughorn again acting as spokes-
man for the group, replied that they had not, but were on strike. Shortly there-
after one of the pickets asked one of the employees who was still at work in the
plant to bring out some candy. Harris overheard this remark and said to the
employees who were at work and to those on the picket line, who were within
range of his voice, that the candy was for "his employees and not for those on the
picket line, who had quit their jobs."
During the course of the strike E. C. Giles, one of the directors of the respond-
ent, and also employed as one of its salesmen, stopped and talked to Laughorn
while she was serving on the picket line, and remarked to her, "You all don't
look right out there on the picket line." Laughorn replied, in substance, that
she felt the same way about it, but that since Harris would not negotiate with
the Union committee for a contract the employees were forced to strike. Giles
then said to her, and to the others who were with her on the picket line, that if
they at any time desired to see Harris as individuals, or as a group of factory
employees, that he would be glad to accompany them.
On another occasion, Torrence, the plant superintendent, in the presence of
Laughorn asked Phelps, one of the striking employees, and at this particular
time serving on the picket line, to come on into the plant. Phelps refused to
do so.
16 The -foregoing -fi idings are made from the 'credible and undenied testimony of Lloyd
P Vaughan and Gertrude Laughorn.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 16, 1946, the respondent sent to each of its striking employees the
following letter :
A strike has been in progress in this company for several days, despite the
fact that the company has not received any notice of an impending strike, or
reasons for it.
As you undoubtedly know, the company must at this time put into process
the candy required for the Christmas season. We believe it only fair, there-
fore, to advise you that unless the necessary labor for this purpose is provided
by our employees, some of whom are at the present time out on strike, it will
be necessary for us to hire other employees for that purpose.
We, therefore, ask that you report for work at the same rate of pay, hours,
and other conditions of employment which were in effect before this strike
began, as soon as possible after you receive this letter, or in no event later
than eight o'clock, October 21, 1946
Very truly yours,
HARRIS, WOODSON CO., INC.
Per: R. A. Harris.
The undersigned has heretofore found above that Harris, on the morning of
October 4 , 1946, stated to the employees just prior to the commencement of the
strike that he would not meet with the Union but urged the employees to come
to him individually with their grievances.
During the course of the strike , Torrence and Giles called on at least one
employee , Alice Viar , and successfully solicited her to abandon the strike and
return to work.14
On or about November 1, 1946, and continuing thereafter until just prior to
the end of the strike, November 18, 1946, the respondent placed numerous adver-
tisements in the Lynchburg , Virginia , papers, for help in its plant The first
advertisement called for both male and female help in the respondent ' s plant.
The last two advertisements called for male employees only As a result of this
advertising campaign all the jobs formerly held by the striking employees were
filled except those of candy-makers and candy makers helper.
Conclusions
The undersigned has found hereinabove that the respondent refused to bargain
with the Union on numerous occasions subsequent to the Board's Decision and
Order in Case No. 5-C-1900, dated August 26, 1946. He has also found that the
strike that followed was the direct result of the respondent's refusal to bargain
with the Union, and was therefore an unfair labor practice strike
It is in the light of this background that the above acts of the respondent
must be considered.
All of the above acts were committed during the course of the strike. The
statements of Harris to the employees on the morning of October 4. 1946, preced-
ing the walk-out, that he would not meet with the Union but that lie would
meet with the employees individually; the efforts of Giles and Torrence to induce
the striking employees to abandon the strike and return to work; and their efforts
to induce the employees to deal individually with the respondent during the
strike, when viewed in the light of the respondent's past conduct, were in the
17 five employees abandoned the strike and returned to work sometime between October
16, 1946, and November 15, 1946, the date the strike officially ended. See infra, under
the section of this report styled "The discriminatory discharges "
HARRIS-WOODSON CO., INC. 837
considered opinion of the undersigned designed and committed by the respondent
for the express purpose of interfering with the conduct of the strike and to
induce its employees to abandon its objectives and return to work.
The Board and the Courts in a long line of decisions have repeatedly held that
such conduct on the part of the respondent during the course of a strike caused
by its own unfair labor practices is violative of the Act, and constitutes interfer-
ence with, restraint, and coercion of its employees in the exercise of their rights as
guaranteed in Section 7 of the Act 1e
In view of the foregoing and upon the record as a whole, the undersigned
concludes and finds that the respondent by such conduct interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
D. The discriminatory discharges
The undersigned has found above that all the employees of the respondent,
in an appropriate bargaining unit, with one exception, went on a strike October
4 and 7, 1946, and continued thereon until November 18, 1946. He also
has found that the strike was caused by the respondent's unfair labor practices,
and that said practices continued throughout the strike. The complaint alleges
that the employees named in "Appendix A" attached hereto applied for rein-
statement on November 18, 1946, to their former or substantially equivalent
positions, and at that time and at all times thereafter, the respondent refused
to reinstate said employees to their former or substantially equivalent positions,
and has discharged said employees, and each of them, because said employees,
and each of them, assisted or had become members of the Union or had par-
ticipated in the strike. The respondent denies the allegation.
During the course of the strike the Union held meetings frequently, and the
employees discussed among themselves the difficulties they were experiencing
in accomplishing the objectives of the strike. As the days went by the weather
became colder and colder and those who were on the picket line suffered con-
siderable discomfort.'D Moreover, it became apparent that their jobs were
steadily being filled by new employees, particularly after the respondent's ad-
vertising campaign for new help, which started around November 1, 1946. In
the face of these difficulties they realized the futility of continuing the strike.
At a meeting of the Union on November 15, 1946, the employees decided to end
the strike, and instructed Vaughan to notify the respondent of their action.
Vaughan then wrote the respondent the following letter :
NovLnmaR 16, 1946.
Mr. RICHARD A. HARRIS, President
Harris, Woodson Co., Inc
700 Coniniei ce St, Liinchbui g. Va.
DEAR SIR : This is to inform you that your employees in a meeting No-
vember 15, 1946 voted to call off the strike and to report back on their
jobs Monday, Nov. 18, 1946.
"See Republic Steel Corporation v N. L R B , 107 F (2d) 472 ( C C A. 3) 9
N L R B 219 ; Birmingham Post Company v N L R . B, 140 F . ( 2d) 638 ( C C. A. 5)
49 N. L R. 11 206; Remington Rand, Inc ., 2 N. L R B 626 ; Chicago Casket Company, 21
N L R B 2,35 ; Greater New York Broadcasting Company, 48 N. L. R. B 718 ; Plymouth
Finishing Company , Inc, 48 N . L. R. B. 946
19 A majority of the respondent ' s employees were females , many of whom were well along
in years , and consequently unable to withstand the rigorous weather that starts in the
late fall.
788886-49-vol. 77-54
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two of your employees, Mrs. Lucy Stillwell and Mrs. Grace Campbell,
will be unable to report for work on the above date because of illness. But
when their health permits they, too, will report for work.
Yours truly,
LLOYD P. VAUGHAN,
CIO Representative.
At the same meeting a committee was selected to call upon Harris and notify
him of the Union's decision to call off the strike, and "to see which of the members
be would take back." 20 The committee was composed of Ida Wilkerson, Alice
Bowen, Callie Johnson, Mary Tyree, Mamie Childress, and Gertrude Laughorn.
The committee called on Harris on the morning of November 15, 1946. Laughorn,
acting as spokesman for the group, went to Harris' office and requested that he
meet with them for a few minutes. He told her that he did not have time to talk
to them due to a previous business engagement. Laughorn then asked him to
meet with the committee later in the afternoon. Harris informed her that his
day was filled up and that he could not see them. He relented however and did
leave his office and came out to see the committee for a few minutes . Laughorn
informed him that the Union had officially ended the strike and that the striking
employees were ready to return to work, and would report for work at 8: 00 a. m.,
on Monday morning, November 18, 1946. Harris informed the committee that he
did not need the services of any of the striking employees, except a candy maker
and a candy maker's helper. He also told them, in substance, that their jobs
had been filled by new employees and that "production is just as good as it was
when the old employees were out on strike." " Laughorn then thanked Harris
for his courtesy in condescending to talk to the committee. They then left the
respondent's plant and returned to the Union hall, where the membership of the
local awaited them, for a report on what had occurred at the meeting with Harris.
Laughorn reported to them the results of the interview with Harris. The mem-
bership then decided to go ahead with their original plan and report in a body
at the respondent's plant at 8 :00 a. in , Monday morning, November 18, 1947,
ready for work.
In accordance with the above plan the striking employees reported in a body
at the respondent's plant, Monday morning, November 18, 1947. Upon arrival
at the plant they found the doors guarded, and were refused admission to the
plant. Laughorn and Vaughan then told Torrence, who was standing at the
time clock, guarding the door into the plant, that they wanted to see Harris. He
informed them that Harris was on his way to the plant. Shortly thereafter
Harris appeared, and informed Laughorn and the others that he had told them
the previous Friday that he did not have "any openings for any employees except
candy makers and candy helpers." Laughorn then told him that since the
employees had gone out on strike as a unit, they wanted him to tell the entire
union membership the respondent's position regarding their status. At the same
time Laughorn gave Harris a copy of the letter that Vaughan had written him on
November 16. Harris again reiterated his previous statement that no employees
were needed except candy makers and candy makers' helpers. He then offered
two of the striking employees employment, Smith Fletcher, a candy maker and
20 Laughorn testified that it had been "rumored" that Harris would put a few of the
strikers back to work
21 It is clear from the record that an overwhelming majority of the strikers had long
tenure with the respondent, ranging" from 15 to 45 years of continuous service. Harris
admitted that most of the striking employees had worked for the respondent for many years.
HARRIS-WOODSON CO., INC. 839
Arthur Edmonds, a candy maker's helper. Both accepted the offer and returned
to work. The striking employees lingered around the time clock for a few minutes
after this incident, and were then ordered by Harris to get out. At this time
several of them asked Harris if they could go to the dressing room and get their
clothes, which they had left there when they went out on strike, October 4, 1946.
Harris refused to permit them to do so, but did arrange to have them brought
down to them. The striking employees then left the plant and went out on the
sidewalk, and waited for their clothes to be brought down from the dressing
room. During the entire course of this meeting, Harris was accompanied by a
Lieutenant Wilson, of the City Police Force.
Shortly after the striking employees left the respondent's premises, Vaughan
went to Harris' office and asked him if he could talk to him for a little bit. Harris
refused to talk to Vaughan and ordered him out of the office. Vaughan did not
press his request and left the office. He was accompanied by a policeman, who
also requested him to leave and to not attempt to continue the conversation.
At the time of the hearing only one of the striking employees had been rein-
stated by the respondent, Otis Lipscomb, on May 19, 1947. The respondent
admitted at the hearing that since November 18, 1946, it has had numerous
openings for employees at its plant, and could have reinstated all the employees
named in "Appendix A" on numerous occasions 22
Conclusions
As found hereinabove the strike which began on October 4, 1946, and ended
on November 18, 1946, was an unfair labor practice strike and was prolonged
by the continuation of the respondent's unfair labor practices.
The law is well settled that employees who participate in a strike in protest
to an employer's unfair labor practices, are entitled to be reinstated to their
former positions from the date they unconditionally request reinstatement.
Moreover, they are entitled to their positions even though an employer has re-
placed them with new employees. An employer's obligation in such a situation
has been well stated by Judge Frank in the Remington-Rand case, 130 F. (2d) 919,
wherein he said :
. . . An employer whose employees have struck and who has com-
mitted no unfair labor practices is not obligated to discontinue his business
but may hire others in the place of the strikers. The employer's obligation
in such case extends only to such of the striking employees as have not been
replaced during the strike. Where however, the employer has been guilty
of an unfair labor practice, he is under a duty to reinstate all striking
employees, even though this may occasion the discharge of those employees
hired to take the place of the strikers during the strike. [Italics supplied.]
The record is clear that the respondent herein has failed and refused to rein-
state any of the striking employees who unconditionally requested reinstatement
to their former positions, by letter to the respondent dated November 16, 1946,
and personally on November 18, 1946 24 Moreover, the record is also clear that
22 The respondent 's own exhibit , offered and received in evidence at the hearing shows
that since November 18, 1946 , it has hired 22 women and 20 men in jobs which the strikers
could have filled
23N L. R B. v. St . Diary 's Sewer Pipe Company, 146 F ( 2d) 995 ( C C A. 3) 54
N L R B 1226 ; Mooresville Cotton Mills v. N L. R B , 94 F. (2d ) 61 (C C. A 4), 2
N L R. B . 952 , In the Matter of The Barrett Company , 41 N L R B 1327
24 On May 19 , 1946 , the respondent reinstated Otis Lipscomb , one of the striking em-
ployees, to his former position.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent at all times material herein has had the same number and classi-
fications of jobs as it did at the time the employees went on strike October 4 and
7, 1946.
In view of the foregoing and upon the record as a whole, the undersigned is
convinced and finds that the respondent herein refused to reinstate its striking
employees after their unconditional offers to return to work, and thus discharged
them because they had exercised their rights under the Act to engage in union and
concerted activities. The respondent's course of conduct over the years shows a
planned and determined intention to frustrate its employees' organizational
efforts, which intent it proceeded to -accomplish by the foregoing acts. Accord-
ingly, the undersigned finds that the respondent by discharging the 19 striking
employees listed in "Appendix A" and by refusing to reinstate them, discriminated
in regard to their hire and tenure of employment, thereby discouraging member-
ship in the Union and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
V. THE EFFECT OF TILE UNFAIR LARO1 PRACTICES UPON COIIIIERCE
The activities of the respondent set forth in Section IV, above, occurring in
connection with the operations of the respondent described in Section II, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead and have led to labor disputes bnrdi'n-
ing and obstructing co inierce and the free flow of commerce
VI. 171E REUEnY
Since it has been found that the respondent has engaged in and is engaging in
certain unfair labor practices affecting commerce, it will be recommended that it
cease and desist therefrom and take certain affirmative action which the under-
signed finds will effectuate the policies of the Act.
It has been found that the respondent has refused to bargain collectively with
the Union as the exclusive representative of its employees in the aforesaid
appropriate unit It will therefore be recommended that the respondent, upon
request, bargain collectively with the Union as the exclusive representative of its
employees within such unit
It has also been found that the employees of the respondent concertedly went
on strike October 4 and 7, 1946, as a result of the respondent's unfair labor
practices, and that the said strike was prolonged thereafter by the said unfair
labor practices, and the additional unfair labor practices occurring thereafter.
The undersigned will therefore recommend that the respondent oi'l'er the said
employees, who went on strike on October 4 and 7, 1946, and who unconditionally
applied for reinstatement November 18, 1946, and have not since been reinstated,
immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges,
dismissing , if necessary, and employees who have, since October 4 and 7, 1946,
been hired to replace said employees, and make the said employees whole for any
loss they may have suffered by reason of the respondent' s discrimination, by
payment to each of them of a sum of money equal to the amount they normally
would have earned from November 18, 1946, when they unconditionally applied
HARRIS-WOODSON CO., INC. 841
for, and were denied, reinstatement, to the date of the respondent's offer of rein-
statement, less each employee's net earnings 2G during said period.20
Having found that the respondent has engaged in conduct violative of Section
8 (1), (3), and (5) of the Act, the undersigned will recommend that the respond-
ent cease and desist not only from engaging in such conduct but also from in any
other ,manner interfering with, restraining, or coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, for the following reasons:
The respondent's whole course of conduct discloses a definite purpose to defeat
self-organization and its objects among its employees. Soon after the Board
issued its Decision and Order in Case No. 5-C-1900, the Union on several occa-
sions attempted to meet with the respondent for the purposes of discussing com-
pliance with the above Decision and Order, and the negotiation of a contract
The respondent not only refused to discuss these matters with the Union but
refused to even meet with their representatives. Moreover, the respondent con-
tinned its illegal conduct of attempting to circumvent the Union by urging its
employees to abandon the Union, and deal with it as individual employees. When
the employees protested these illegal acts of the respondent. and exercised their
statutory rights under the Act, and went on strike to force the respondent to cease
its illegal conduct, the respondent then replaced its striking employees with new
employees, and when the respondent's striking employees officially ended the
strike and asked for reinstatement the respondent refused to reinstate them to
their former or substantially equivalent positions and thus discharged said em-
ployees, as named in "Appendix A." Such conduct on the part of the respondent
strikes at the very "heart of the Act." The Circuit Court of Appeals for the
Seventh Circuit observed in N. L. R B. v. Automotive Maintenance Machinery
Company, 116 F. (2d) 350 (C. C. A. 7) that "No more effective form of intimidation
nor one more violative of the N. L R. A. can be conceived than discharge of an
employee because lie joined a union " Because of the respondent's unlawful
conduct and its underlying purpose, the undersigned is convinced that the unfair
labor practices found are fairly related to the other unfair labor practices pro-
scribed by the Act, and that, based upon the past conduct of the respondent as
related herein, there exists a real danger that any or all of such proscribed
practices may be committed in the future by the respondent. Therefore the
preventive purpose of the Act may be frustrated unless the cease and desist order
is coextensive with the general threat as indicated.
Upon the basis of the foregoing findings of fact and the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1 United Candy Workers Local Industrial Union No. 1274, affiliated with
the Congress of Industrial Organizations, is a labor organization within the
meaning of Section 2 (5) of the Act.
2 All production employees employed by the respondent at its Lynchburg,
Virginia, plant, excluding maintenance and clerical employees, firemen, and all
supervisory employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recommend
25 See Matter of Crossett Liunber Co . S N L R B 440 , Republic Steel Co,poration v.
N. L R. B , 311 U S . 7 See tootnote 27, infra, as to employees Campbell and Stillwell.
26 With respect to Otis Lipscomb , who went on strike October 4 or 7, 1946 , and was
reinstated by the respondent on May 19 , 1946 , it will be recommended that such reinstate-
ment be without prejudice to his seniout3 and other rights and privileges
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such action , at all times material herein constituted and now constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Sec-
tion 9 ( b) of the Act.
3. United Candy Workers Local Industrial Union No. 1274 , affiliated with the
Congress of Industrial Organizations, was on August 26, 1946, and at all times
thereafter has been the exclusive representative of all the employees in the afore-
said appropriate unit for the purposes of collective bargaining , within the meaning
of Section 9 (a) of the Act.
4. By refusing on September 23, 1946, and at all times thereafter , to bargain
collectively with United Candy Workers Local Industrial Union No. 1274, affil-
iated with the Congress of Industrial Organizations , as the exclusive representa-
tive of its employees in the aforesaid appropriate unit, the respondent has
engaged in and is engaging in unfair labor practices , within the meaning of
Section 8 ( 5) of the Act.
5. The strike of the respondent 's employees which began October 4 and 7,
1946, was caused and subsequently prolonged by the respondent 's unfair labor
practices.
6. By discriminating in regard to the hire and tenure of employment of the
employees named in "Appendix A" attached hereto, thereby discouraging member-
ship in United Candy Workers Local Industrial Union No. 1274 , affiliated with
the Congress of Industrial Organizations , the respondent has engaged in and
is engaging in unfair labor practices , within the meaning of Section 8 ( 3) of the
Act.
7. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
9. The respondent by refusing to comply with the Board 's Decision and Order
in Case No . 5-C-1900, as alleged by the Board in Paragraph XIII, subsection
(b) of the Complaint , has not violated Section 8 (1) of the Act. -
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent , Harris-Woodson Co., Inc.,
Lynchburg , Virginia , and its officers , agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Candy Workers Local Indus-
trial Union No. 1274, affiliated with the Congress of Industrial Organizations,
as the exclusive representative of all its employees in the aforesaid appropriate
unit, with respect to rates of pay , wages, hours of employment , or other conditions
of employment ;
(b) Discouraging membership in United Candy Workers Local Industrial
Union No. 1274 , affiliated with the Congress of Industrial Organizations, or any
other labor organization of its employees , by discharging or refusing to reinstate
any of its employees , or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of employment;
(c) In any other manner interfering with, restraining , or coercing its em-
ployees in the exercise of the right to self-organization , to form labor organiza-
tions, to join or assist United Candy Workers Local Industrial Union No. 1274,
affiliated with the Congress of Industrial Organizations , or any other labor
HARRIS-WOODSON CO., INC. 843
organization , to bargain collectively through representatives of their own choosing,
and to engage in concerted activities , for the purpose of collective bargaining or
other mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request , bargain collectively with United Candy Workers Local
Industrial Union No. 1274 , affiliated with the Congress of Industrial Organizations,
as the exclusive representative of all its production employees employed at its
Lynchburg , Virginia , plant, excluding maintenance and clerical employees, fire-
men, and all supervisory employees with authority to hire, promote, discharge,
discipline , or otherwise effect changes in the status of employees or effectively
recommend such action , with respect to rates of pay , wages, hours of employment,
or other conditions of employment , and if an understanding is reached , embody
such understanding in a signed agreement;
(b) Offer all those employees named in "Appendix A," attached hereto, who
went on strike October 4 and 7, 1946 , and unconditionally applied for rein-
statement on November 16 "-and November 18, 1946, and have not since been
reinstated ,'e immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority and other rights and
privileges , dismissing , if necessary , any employees who have, since October 4
and 7 , 1946, been hired to replace said employees ; and with respect to those em-
ployees who went on strike October 4 and 7, 1946 , and were subsequently rein-
stated and have not since left voluntarily , restore them to their seniority and
other rights and privileges ;
(c) Make whole all those employees who went on strike on October 4 and 7,
1946, and unconditionally applied for reinstatement on November 16 and Novem-
ber 18, 1946 , and have not yet been reinstated , for any loss they may have
suffered in the manner set forth in the section entitled "The remedy," above ;
(d) Make whole Otis Lipscomb who went on strike October 7 , 1946, and uncon-
ditionally applied for reinstatement on November 18, 1946, and who was rein-
stated May 19, 1947, for any loss he may have suffered in the manner set forth
in the section entitled "The remedy ," above ;
(e) Post at its plant in Lynchburg , Virginia , copies of the notice attached
hereto marked "Appendix B." Copies of said notice , to be furnished by the
Regional Director for the Fifth Region, shall , after being duly signed by the
respondent 's representative , be posted by the respondent immediately upon receipt
thereof, and maintained by it for sixty ( 60) consecutive days thereafter , in con-
spicuous places , including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material ;
(f) Notify the Regional Director for the Fifth Region in writing within ten
(10) clays from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply with the foregoing recommendations
"The record shows that Gracie Campbell and Lucy Stillwell were ill at the time the
strike officially ended and thus unable to return to work. However, the Union by its
letter to the respondent dated November 16, 1946, advised the respondent that they would
return to work when they were able to do so. At the time of the hearing Stillwell was still
unable to work The record is not clear as regards the status of Campbell. Back pay for
these individuals shall run only from the date they were physically qualified to perform their
duties.
'8 The only employee reinstated by the respondent at the time of the hearing was Otis
Lipscomb, who was rehired May 19, 1947.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies the said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent violated Section S (1) of the Act, by failing to comply
with the Board's Decision and Order in Case No 5-C-1900, as alleged in Para-
graph XIII, subsection (b) of the complaint.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel
for the Board may, within fifteen (15) days from the date of service of the order
transferring the case to the Board, pursuant to Section 203.38 of said Rules and
Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an
original and four copies of a statement in writing, setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, and any
party or counsel for the Board may, within the same period, file an original and
four copies of a brief in support of the Intermediate Report. Immediately upon
the filing of such statement of exceptions and/or briefs, the party or counsel for
the Board filing the same shall serve a copy thereof upon each of the other
parties and shall file a copy with the Regional Director. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as
required by Section 203 65 As further provided in said Section 203.39, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
service of the order transferring the case to the Board.
JAMES A. SHAW,
Trial Examiner.
Dated July 14, 1947.
APPENDIX A
Alice Bowen Rayland Jackson Lucy Stillwell
Gracie Campbell Callie Johnson Annie Tyree
Margaret Carter Gertrude Laughorn Mary Tyree
Mamie Childress Otis Lipscomb Ida Wilkerson
Carrie S. Eckhardt Robert Phelps Bessie Witt
Louise Franklin Frank Richardson
Nettie Holt Edith Shephard
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist UNITED CANDY WORKERS LOCAL INDUSTRIAL
UNION No. 1274, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZA-
TIONS, or any other labor organization, to bargain collectively through repre-
HARRIS-WOODSON CO., INC. 845
sentatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or' substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them, including Otis Lipscomb, whole for any loss of pay suffered
as a result of the discrimination.*
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All production employees employed at the respondent's Lynchburg
Virginia, plant, excluding,maintenance and clerical employees, firemen,
and all supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees or
effectively recommend such action.
*Alice Bowen Gertrude Laughorn
Gracie Campbell Robert Phelps
Margaret Carter Frank Richardson
Mamie Childress Edith Shephard
Carrie S. Eckhardt Lucy Stillwell
Louise Franklin Annie Tyree
Nettie Holt Mary Tyree
Rayland Jackson Ida Wilkerson
Callie Johnson Bessie Witt
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
HARRIS-WOODSON CO., INC.,
Employer.
Dated ------------------------------- By -------------------------------
(Itepresentative) (Title)
NOTE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the-Armed
Forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.