Lykes Bros. Inc. of Georgia

National Labor Relations Board - Board Decisions

Aug 11, 1960

128 N.L.R.B. 606 (N.L.R.B. 1960)

606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lykes Bros. Inc. of Georgia and United Packinghouse Workers
of America, AFL-CIO
Lykes Bros. Inc. of Georgia and United Packinghouse Workers
of America , AFL-CIO
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO and United Packinghouse Workers of
America, AFL-CIO
Robert Ackerman, individually, and as agent of Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO and Meat Cutters, Packinghouse and Allied Food Work-
ers Union Local No . 433, Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO and United
Packinghouse Workers of America , AFL-CIO
Meatcutters, Packinghouse and Allied Food Workers Local
Union No. 433, Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO and United Packing-
house Workers of America, AFL-CIO. Cases Nos. 10-CA-2950,
10-CA-3038, 10-CB-583,10-CB-584, and 10-CB-585. August 11,
1960
DECISION AND ORDER
On November 25, 1958, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-consolidated proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the General
Counsel, the Respondent Company, and the Respondent Unions, here-
in called the Amalgamated, filed exceptions to the Intermediate
Report and motions to reopen the record, and the General Counsel
and Respondent Company also filed briefs. On April 9, 1959, the
Board issued an order directing, in part, that the record be reopened
and that a further hearing be held for the purpose of (1) permitting
the General Counsel to amend the complaint to add Lykes Bros. Inc.,
as a party Respondent, and (2) to permit the parties to introduce
evidence relating to the physical arrangements at the hearing, insofar
as they affected the Trial Examiner's opportunity to observe witnesses.
On February 5, 1960, Trial Examiner Eadie issued his Supple-
mental Intermediate Report, a copy of which is also attached hereto,
in which he affirmed the findings of fact, conclusions of law, and
recommendations in his original Intermediate Report, with the addi-
tional recommendation that the Respondent Company withdraw and
withhold recognition of the Amalgamated until it shall have demon-
128 NLRB No. 68.
LYKES BROS. INC. OF GEORGIA 607
strated its exclusive majority status pursuant to a Board-conducted
election. Thereafter, the General Counsel, the Charging Party, and
the Respondent Company filed exceptions to the Supplemental Inter-
mediate Report and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
Except as they have previously been overruled in connection with the
remand order, supra, the rulings are hereby affirmed. The Board has
considered the Intermediate Report, the Supplemental Intermediate
Report, the exceptions and briefs, and the entire record in the cases,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner except as indicated below :
1. We find, in agreement with the Trial Examiner, that the Re-
spondent Company violated Section 8(a) (1) and (2) of the Act in
the numerous instances summarized in the Intermediate Report. The
Trial Examiner also stated in the Intermediate Report, but failed to
predicate a finding of violation thereon, that employees W. W.
Mauldin, Henry Holsey, Henry W. Salter, Clem Wisham, Benjamin
Soloman, Leroy Blackmon, and C. E. Willis testified without contra-
diction that either Supervisor J. O. Vaughn or Supervisor H. C.
McElvaine, or both, asked them to join the Amalgamated or to sign
its checkoff cards, and that Wisham, Mauldin, and Willis testified
credibly to the effect that Vaughn had threatened them with reprisals
if they did not do so. We find that by the above solicitations and
threats the Respondent Company further violated Section 8(a) (1)
and (2) of the Act.
2. We also agree with the Trial Examiner, for reasons stated in
the Intermediate Report, that the Respondent Company violated Sec-
tion 8(a) (3) of the Act in the selection of Mauldin, Solomon, Bryant,
Blackmon, Wisham, and Jenkins for layoff on June 3 and 14,1957, and
Carlton on August 27, 1957. However, unlike the Trial Examiner,
we find that the General Counsel has failed to show that the selection
of Arlie J. Pate for layoff on June 7, 1957, was discriminatory.
Pate was hired on October 11, 1956. He worked in the curing cellar
under Foreman A. B. Ward and occupied one of the lowest-rated jobs
in that department. Unlike the employees who were laid off in the
kill and cut department, Pate had been admonished by Ward on
1 As the exceptions filed by the Amalgamated and Respondent Ackerman to the Supple-
mental Intermediate Report were not timely filed, they were rejected . Lykes Bros. Inc.
of Georgia, 126 NLRB 1286. In its exceptions to the original Intermediate Report, the
Respondent Company also requested oral argument . This request is hereby denied as the
record, including the exceptions and briefs , adequately presents the issues and positions
of the parties.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several occasions for being slow and not keeping up with his work, and
about 3 months before his layoff was given a warning slip. Ward
testified , in effect, that he selected employees for layoff on the basis
of seniority , that Pate was laid off because of a low seniority standing,
and that several employees who had less seniority than Pate were
retained because they had more experience . In addition , employees
with more seniority than Pate were also laid off on June 7, and the
Respondent Company's cancellation of Pate's June 3 layoff is incon-
sistent with the conclusion that Pate was laid off because of his ad-
herence to the Charging Union. In these circumstances , therefore,
we find that the General Counsel has failed to prove that the Respond-
ent Company 's layoff of Pate on June 7,1957, violated Section 8 (a) (3)
of the Act . We shall , therefore , dismiss the complaint herein as it
applies to Pate.
3. The Trial Examiner found that the Respondent Company's
letter to VTisham dated October 6 , 1957, in which it offered him im-
mediate employment on the night shift in the sweet pickle cellar,
constituted a valid offer of reinstatement . We disagree . A formal
tender of employment , which merely offers new employment, is not
an adequate offer of reinstatement ? Moreover , Wisham had orig-
inally been employed on the day shift in the kill and cut department.
Thus, the Respondent Company's offer of employment on the night
shift in the sweet pickle cellar was not an offer of reinstatement to a
substantially equivalent position .' We shall therefore order the Re-
spondent Company to offer Clem Wisham immediate and full rein-
statement to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges , and to make
him whole for any loss of pay he has suffered from the date of his
layoff to the date of the Intermediate Report and from the date of
this Decision and Order to the date he is offered reinstatement.'
As the instant record does not disclose whether the other discrim-
inatees who returned to work prior to the hearing were, in fact, re-
instated to their former or substantially equivalent jobs without any
loss of their prior rights and privileges , we shall leave this question
to the compliance stage of this proceeding.'
4. The Trial Examiner found that Robert Ackerman, secretary-
treasurer of Respondent Meat Cutters, Packinghouse and Allied Food
Workers Union Local No. 433, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, was also an agent
of the Amalgamated 's International Union, and recommended that
the International remedy certain of the unfair labor practices found.
2 Lewis Coal Company, 108 NLRB 887, 889.
3 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
* See Denver Fire Reporter and Protective Company, Inc, 119 NLRB 1187, 1189.
6 Associated Wholesale Grocery of Dallas, Inc., 119 NLRB 41, 50.
LYKES BROS. INC. OF GEORGIA 609
We do not agree. In finding that Ackerman was an agent of the In-
ternational, the Trial Examiner relied upon (1) Ackerman's signature
to the contract between the parent corporation and the Amalgamated,
(2) his maintenance and enforcement of the contract as it applied
to the Respondent Company, and (3) his conduct of union meetings
on behalf of the Amalgamated. However, the record discloses that,
in each of these instances, Ackerman was acting on behalf of Local
433 rather than the International. Under these circumstances we find
that Ackerman was not an agent of the International,' and there is
no other evidence establishing that the International was responsible
for any of the unfair labor practices. We shall, therefore, dismiss the
complaint herein insofar as it applies to the International. However,
as Ackerman was named as a Respondent herein, we shall correct an
apparent oversight by the Trial Examiner and specifically name
Ackerman as an agent of the Respondent Local responsible for rem-
edying the unfair labor practices.
5. In his Intermediate Report, the Trial Examiner failed to recom-
mend that the Respondent Company withdraw recognition from the
Respondent Unions and the General Counsel excepted thereto. In his
Supplemental Intermediate Report, the Trial Examiner reversed him-
self and recommended that the Respondent Company cease main-
taining and enforcing its contract, and withdraw and withhold recog-
nition from the Amalgamated until it shall have demonstrated its
exclusive majority status pursuant to a Board-conducted election.
The Respondent Company excepts. In making this recommendation,
the Trial Examiner apparently construed the Board's remand order,
supra, as requiring acceptance of the General Counsel's contention
that Board practice requires a cease recognition order whenever a
violation of Section 8(a) (2) has been established, regardless of the
nature of the violation or the surrounding circumstances. We do not
agree, however, that such an order is appropriate here.
To the extent that the Trial Examiner, in making such a recom-
mendation, relied on the Board's remand order, he has misconstrued
the purport and intent of that order. The remand order did not
mention the Trial Examiner's recommended remedial order. Instead,
insofar as is pertinent here, the remand order granted the General
Counsel's request for a remand which the General Counsel requested
be granted only in the event the Board did not enter a cease recogni-
tion order upon the record as made at the original hearing.' Con-
sequently, insofar as it might be permissible to draw any inference
e Cf. United Construction workers, et al. v . Haislip Baking Company, 223 F. 2d 872
(C.A. 4) ; Mile Branch Coal Company v. United Mine Workers of America, 266 F. 2d
919 (C.A.D.C.).
'As noted in the Supplemental Intermediate Report , the General Counsel subsequently
withdrew the allegations of the complaint which were the subject of this aspect of the
remand order.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the Board's remand order, such an inference would be contrary
to that apparently drawn by the Trial Examiner.
Nor do we agree with the General Counsel that Board precedent
supports a cease recognition order here. The General Counsel relies
on two cases in support of this contention,' both of which cases are
clearly distinguishable from the situation involved in the instant case.
In the New Orleans Laundries case, unlike here, there had been a
recently expired closed-shop contract, and the respondent permitted
its personnel office and employees to be used in such a manner as to
convey to newly hired employees the impression that membership in
the union continued to be mandatory, or at least favored and sup-
ported by the respondent. It appeared, moreover, that at least some
of this conduct occurred before the execution of a later contract which
the Board had found, following its practice of not considering any
allegations of unfair labor practices in a representation proceeding,
to be a bar to a representation petition.' In the Sioux City Brewing
Company case the Board issued a cease recognition order, notwith-
standing the existence of a valid contract between the parties, because
there the assistance and support not only occurred in the midst of
the competing union's organizational campaign, but also, unlike here,
after a timely petition for an election had been filed with the Board by
the competing union.
In the Sioux City case, therefore, the unlawful assistance served to
strengthen the incumbent union's representative status at a time when
the employees affected could appropriately seek and were seeking to
change their representatives, while in the New Orleans case the unlaw-
ful assistance as found by the Board occurred against a background
of conduct which clearly served to strengthen the incumbent union's
status before the execution of the contract and in the face of a rival
union's organizational campaign. In such circumstances, it was ap-
propriate for the Board to require withdrawal of recognition so that
the employees might thereafter select their representatives free from
the effects of the unlawful assistance. In the instant case, however, the
considerations which impelled the Board's orders in the New Orleans
Laundries and Sioux City Brewing cases are absent, as all of the un-
lawful assistance occurred shortly after the execution of a presump-
tively lawful contract," and at a time when, because of that contract,
the employees could not appropriately seek to change their representa-
8 New Orleans Laundries , Inc., 114 NLRB 1077; Sioum City Brewing Company, 82
NLRB 1061.
'Because of a question involving the interpretation of Section 10(b) of the Act the
Board, in finding unlawful assistance , deemed it unnecessary to rely on the conduct which
antedated the execution of the contract . Such conduct was, however , of the same type
as that on which the Board relied in finding unlawful assistance
10 As the General Counsel withdrew the allegations of the complaint attacking this
contract , it must be presumed for purposes of this case that its execution and maintenance
were lawful.
LYKES BROS. INC. OF GEORGIA 611
tives, and there is no evidence of any background conduct before the
execution of the contract which could be said to have strengthened the
Amalgamated's representative status.
Our dissenting colleague seems to take the position that in every case
involving assistance in violation of Section 8 (a) (2), the Board must
mechanistically order the Respondent to cease recognizing the assisted
union. However, the Board has not so held," and the courts have re-
peatedly cautioned the Board that its remedial orders must be tailored
to fit the violations found. Although we have found that the Re-
spondent unlawfully assisted the Amalgamated to obtain additional
members and dues, this assistance does not on this record warrant an
inference that the Amalgamated's ability to represent the employees
in the daily administration of its contract was thereby adversely
affected. Nor can we understand how our colleague can find support
for his proposed order in the circumstances that the contract would no
longer be a bar. If that circumstance is relevant at all to the nature
of the order to be entered, and we doubt that it is relevant, it would
seem to militate against his proposed order as it would be more likely
to postpone than to hasten the day when an election could be held, since
compliance with a cease recognition order would be a prerequisite to
an election. And finally we cannot agree that the employees would be
deprived of no benefit under the contract, for they would most cer-
tainly be deprived of union representation in the administration of
the contract.
Under all the circumstances, therefore, we do not believe that an
order requiring the parties to suspend their bargaining relationships
pending an election is necessary to effectuate the policies of the Act.
Accordingly, as there is no basis for a finding that the contract be-
tween the parties involved herein was a consequence of the unfair
labor practices found, or that this contract thwarts any policy of the
Act, we reject the Trial Examiner's recommendation for the issuance
of a cease recognition order.'2
6. The Trial Examiner further recommended that the Respondent
Company, jointly and severally with the Amalgamated, reimburse its
employees for all dues paid to the Amalgamated subsequent to May 1,
1957. The Respondents except. As indicated above, the record pres-
ently before us discloses no illegality in the May 1, 1957, contract be-
tween the Respondents. Thus, the assistance and interference found
herein is confined solely to coercion by the Respondents to force
certain employees to execute dues checkoff cards for the Amalgamated.
In these circumstances we find, unlike the Trial Examiner, that a. re-
fund of dues to all employees would not be appropriate. Accordingly,
11 See Alaska Salmon Industry, Inc, and its Member Employers , 122 NLRB 1552.
12 N.L R.B. v. Scullin Steel Company, 161 F. 2d 143, 147 ( C.A. 8).
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we shall order a refund of dues only to those employees who were in-
dividually coerced to sign dues checkoff cards.13
7. The General Counsel and the Charging Party except to the Trial
Examiner's failure to include Lykes Bros. Inc., the parent of the Re-
spondent Company, in the recommended order." As the record shows
that the Respondent Company is a wholly owned subsidiary of Lykes
Bros. Inc., that employees of both companies are included in the same
contract unit, and that the two companies are owned and controlled
by the same individuals, we find that, for purposes of this proceeding,
the two companies constitute a single employer within the meaning of
the Act. Accordingly, we find Lykes Bros. Inc. equally responsible for
the violations of the Act committed herein by the Respondent Com-
pany, and shall therefore order it to take appropriate remedial
action. 15
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent Company, Lykes Bros. Inc. and Lykes Bros.
Inc. of Georgia, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Packinghouse Workers
of America, AFL-CIO, or in any other labor organization of its em-
ployees, by discriminating in regard to their hire or tenure of employ-
ment or any term or condition of employment.
(b) Interrogating employees concerning their union membership
and activities in a manner constituting interference, restraint, or coer-
cion, or making threats of reprisal because of such activity.
(c) Threatening employees with reprisal for failure or refusal to
join Meat Cutters, Packinghouse and Allied Food Workers Union
Local No. 433, Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, or any other labor organization.
(d) Rendering assistance and support to Meat Cutters, Packing-
house and Allied Food Workers Union Local No. 433, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO,
or to any other labor organization.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights 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
11 Cf. N L R B v. McGongh Bakeries Corporation , 153 F 2d 420 , 425 (C. A 5) ; N L R B.
v. Parker Brothers and Company, Inc, 209 F 2d 278, 280 (CA. 5)
14 As indicated above, this case was remanded in part to permit the General Counsel to
add Lykes Bros Inc., as a party Respondent.
15 Margaret Ann Grocery Stores, 115 NLRB 1676, 1690
LYKES BROS. INC. OF GEORGIA 613
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Clem Wisham immediate and full reinstatement to his,
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges, and make him and Leroy
Blackmon, L. C. Mauldin, Lee Jenkins, T. Earl Bryant, O. G. Carlton,
and Benjamin Solomon whole for any loss of pay they may have
suffered as a result of the discrimination against them in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy," as modified herein.
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to compute the amount of backpay
due under the terms of this Order.
(c) Post at its plant, in Albany, Georgia, copies of the notice at-
tached hereto marked "Appendix A." 16 Copies of said notice, to
be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Company's authorized representative,
be posted by the Company immediately upon receipt thereof, and be-
maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Company-
to insure that these notices are not altered, defaced, or covered by-
any other material.
(d) Post at the same places and under the same conditions as set
forth in (c) above, as soon as they are forwarded by the Regional
Director, copies of the notice of the Respondent Union attached-
hereto marked "Appendix B."
(e) Mail signed copies of the notice attached hereto marked "Ap-
pendix A" to the Regional Director for the Tenth Region, for posting-
by the Respondent Union at its business offices and meeting halls in
Albany and Savannah, Georgia, in places where notices to members
are customarily posted. Copies of said notice to be furnished by the
Regional Director, shall, after being signed as provided above, be
forthwith returned to the Regional Director for such posting.
(f) Notify the Regional Director for the Tenth Region, in writing,
within 10 days of the date of this Order, what steps the Company
has taken to comply herewith.
B. The Respondent Union, Meat Cutters, Packinghouse and Allied
Food Workers Union Local No. 433, Amalgamated Meat Cutters
ie In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
577684-61--vol. 128-40
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Butcher Workmen of North America, AFL-CIO, its officers,
representatives, successors, assigns, and agents, including Respondent
Robert Ackerman, shall :
1. Cease and desist from:
(a) Restraining and coercing employees of the Respondent Com-
pany, Lykes Bros. Inc. and Lykes Bros. Inc. of Georgia, or of any
other employer, in the exercise of their rights guaranteed in Section
7 of the Act, except to the extent that such rights 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,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which the Board finds will
,effectuate the policies of the Act :
(a) Post at its business offices and meeting halls in Albany and
Savannah, Georgia, copies of the notice attached hereto marked "Ap-
pendix B." 11 Copies of said notice, to be furnished by the Regional
Director for the Tenth Region, shall, after being duly signed by an
official representative of the Union, be posted by the Respondent
Union immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by the Union to insure that these notices are not altered,
defaced, or covered by any other material.
(b) Post at the same places and under the same conditions as set
forth in (a) above, as soon as forwarded by the Regional Director,
copies of the notice attached hereto marked "Appendix A."
(c) Mail signed copies of the notice attached hereto marked "Ap-
pendix B" to the Regional Director for the Tenth Region, for posting
by the Respondent Company at the office and plant of the latter in
places where notices to employees are customarily posted. Copies
,of this notice, to be furnished by the Regional Director, shall be
returned forthwith to the Regional Director, after they have been
signed by an official representative of the Union, for such posting.
(d) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Order, what steps it has taken
to comply herewith.
C. The Respondent Company, Lykes Bros. Inc. and Lykes Bros.
Inc. of Georgia, shall jointly and severally with the Respondent
Union, Meat Cutters, Packinghouse and Allied Food Workers Union
Local No. 433, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, reimburse all employees who were indi-
vidually coerced to sign dues checkoff cards for the said Union for all
dues deducted from their wages subsequent to May 1, 1957.
17 See footnote 16, supra
LYKES BROS. INC. OF GEORGIA 615
IT IS FURTHER ORDERED that the allegations of the complaint to the
effect that the Respondent Company discriminatorily selected Arlie J.
Pate for layoff on June 7, 1957, be dismissed.
IT IS FURTHER ORDERED that the allegations of the complaint herein,
insofar as they allege that the International of the Respondent Union,
Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, violated Section 8(b) (1) (A) of the Act, be, and they
hereby are, dismissed.
MEMBER BEAN, concurring in part and dissenting in part:
I concur in the conclusion of the majority that the Respondent
Company violated Section 8(a) (1) and (2) by the solicitations and
threats engaged in by its supervisors, and 8(a) (3) by the layoffs of
employees, as part of an effort to enforce allegiance to the Respondent
Union and to discourage membership and activity in the rival unions
which were organizing in the plant. I also concur in the conclusion
that the Respondent Union and its agent violated 8(b) (1) (A) by
threatening to procure the discharge of employees who did not join
and cooperate with the Union or who engaged in activity On behalf of
its rival.
I dissent, however, from the failure to include in the remedy for
the unlawful support and assistance furnished by the Respondent
Company to the Respondent Union, the usual provision requiring the
Company to cease recognizing and dealing with the Union until and
unless it is certified, or has demonstrated its majority status, in a
Board-conducted election.
My colleagues' rejection of the General Counsel's request for this
customary remedy is based upon a purported distinction, here made
for the first time, between unlawful assistance and support of a union
which occurs prior to the employees' selection of an exclusive bar-
gaining agent, and similar unlawful assistance and support provided
to a union after it has negotiated an otherwise lawful contract. There
is in my opinion no adequate existing precedent for such a distinction 18
Nor do I believe that such a distinction is supported by the basic policy
of Section 8 (a) (2). The purpose of that section is twofold: to permit
the employees a free choice of their representative, and to insure that
the representative selected will perform the obligations with which it
is entrusted single-mindedly and in a manner free from taint of sup-
port or assistance by the employer with whom such representative is
required to deal on behalf of the employees.
The majority decision recognizes only the first of these objectives,
and, in rejecting the usual remedy of withdrawal of recognition,
7e The New Orleans Foundries and Sioux City Brewing cases relied on by the General
Counsel and sought to be distinguished by the majority are in my opinion factually close
to the present case and support the use of the traditional remedy. In any event, how-
ever, no such factual distinction as that now sought to be drawn was considered or dis-
cussed in those cases , which applied the usual remedy requiring the withdrawal of recog-
nition until the unions should be certified.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attaches significance to the timing of the unlawful assistance, as hav-
ing occurred when the employees "could not appropriately seek to,
change their representatives," i.e., at a time when, under representation
case principles, the Union's contract would constitute a bar to an
election. In other words, it is only the existence of a "presumptively
lawful contract" which precludes them from ordering the withdrawal
of recognition. I believe that this view is in error in several respects.
First and foremost, this approach ignores the importance of provid-
ing a remedy not only to preserve the employees' initial freedom of
choice but to expunge, if possible, the effects of employer assistance
and support as it impinges upon the Union's position as representative
in the daily administration of the collective-bargaining contract on
behalf of the employees. Especially in the presence of flagrant acts
of employer preference and support, such as the threats of discharge
and layoffs in this case, which the Union has quite evidently adopted
and approved as shown by its own commission of similar coercive act,19'
considerable doubt is cast upon the Union's ability fairly to represent
the employees, and no less a remedy than the requirement of with-
drawal of recognition pending an opportunity for expression of the
employees' desires in an election, would appear to be required.
Second, assuming that the contract might have barred an election
in a representation proceeding as of the time the unlawful assistance,
and support occurred, the record nevertheless discloses that the con-
tract between the Company and Union is for an initial term of 3 years
and 3 months and is now approaching the close of that term. As
more than 2 years of this contract have expired, the contract is no^
longer a bar under representation case principles, and thus it is evi-
dent that even under these doctrines the door is presently wide open
for the conduct of an election.
But last and most important, it is now established that the Board
is not precluded by considerations applicable only to proceedings in
representation cases from conducting an election such as may be re-
quired to remedy violations of Section 8(a) (2) in unfair labor prac-
tice proceedings under the authority of Section 10(c). The Supreme
Court has not only so held in the Bowman case 20 but has also indicated
therein its approval of the Board's use of the election as an appropriate
remedy for an employer's violation of Section 8(a) (2) by furnishing
unlawful assistance and support to a labor organization. In these
circumstances, the Board should not hesitate to employ the traditional
remedial requirement that further recognition of the Union should
await its selection in an appropriate Board-conducted election.
16 Such flagrant coercion was not present in Alaska Salmon Industry , the only case cited'
by my colleagues in which the Board has not ordered withdrawal of recognition in a
situation involving unlawful assistance in violation of 8(a)(2).
20 N L R B v District 50, United Mine Workers of America ( Bowman Transportation,
Inc.), 355 U S. 453.
LYKES BROS . INC. OF GEORGIA 617
Two further matters merit discussion : First, no problem of unit
should arise to preclude an appropriate remedial election. Although
the parties have recently included the plant here involved in a broader
contractual unit with other plants of the parent company, the Board
has twice previously found the employees of this plant to constitute
a separate appropriate unit and has held representation elections in
the plant on that basis. The brief history of bargaining on a broader
basis under the coverage of the multiplant contract is not a persuasive
history in view of the fact that practically from the beginning of such
coverage the Union's status as representative in this plant has been
substantially tainted by company assistance and support, as well as
by coercion practiced by the Union itself as a means of maintaining
its representative position. Especially for the purposes of a remedial
election to expunge the effects of this history of prejudice to the
Union's position as representative on behalf of these employees, a unit
limited to the employees of this plant is appropriate.
Moreover, if the Board should direct the Company to withhold
recognition from the Union pending the Union's designation in a
Board-conducted election, no benefits under the existing contract need
thereby be lost to the employees. Such an order customarily provides
that although there must be a withdrawal of recognition of the union
as bargaining agent, such action is not to be taken as requiring aban-
donment of any of the terms and conditions of employment established
by the contract. Indeed it is doubtful if the Board's remedial pro-
visions can in fact affect any of the employees' substantive rights
under the contract 21 In any event, such a remedial order, while not
depriving the employees of benefits gained by virtue of the contract,
would serve as an aid to freeing them from the burden of representa-
tion by an agent in administration of the contract whose position
as such agent has been prejudiced by unlawful company assistance
and support.
a J. I. Case Company v. N L R.B., 321 U.S. 332, 340.
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, we hereby notify our employees that :
WE WILL offer Clem Wisham immediate and full reinstatement
to his former or substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and make him
and Leroy Blackmon, W. W. Mauldin, Lee Jenkins, T. Earl
Bryant, O. G. Carlton, and Benjamin Solomon whole for any loss
of pay suffered as a result of our discrimination against them.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interrogate our employees concerning their mem-
bership in or activities on behalf of United Packinghouse Workers
of America, AFL-CIO, or any other labor organization, in a
manner constituting interference, restraint, or coercion, or make
any threats of reprisal because of such activity.
WE WILL NOT threaten our employees with reprisal for failure
or refusal to join Meat Cutters, Packinghouse and Allied Food
Workers Union Local No. 433, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any other
labor organization.
WE WILL NOT discourage membership in United Packinghouse
Workers of America, AFL-CIO, or in any other labor organiza-
tion of our employees, by the discharge of any employees or by
discrimination in any other manner in regard to their hire or
tenure of employment or any term or condition of employment,
except to the extent permitted by Section 8(a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed in
the Act, except to the extent that such rights 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, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL, jointly and severally with Meat Cutters, Packing-
house and Allied Food Workers Union Local No. 433, Amalga-
mated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, reimburse our employees who were individually co-
erced to sign dues check off cards for the aforesaid Union for all
dues paid subsequent to May 1, 1957, pursuant to the contract or
any superseding agreement between Lykes Bros. Inc. and the
aforesaid Union.
All our employees are free to become or remain or refrain from
becoming or remaining members of the United Packinghouse Workers
of America, AFL-CIO, 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 member-
ship in or activity on behalf of any such labor organization.
LYKES BROS. INC. AND LYKES BROS.
INC. OF GEORGIA,
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.
LYKES BROS. INC. OF GEORGIA 619'
APPENDIX B
NOTICE TO ALL MEMBERS OF MEAT CUTTERS, PACKINGHOUSE AND ALLIED
FOOD WORKERS UNION LOCAL No. 433, AMALGAMATED MEAT CUTTERS
AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, AND TO,
ALL EMPLOYEES OF LYKES BROS. INC. AND LYKES BROS. INC. OF
GEORGIA
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 you that :
WE WILL NOT restrain or coerce employees of Lykes Bros. Inc.
and Lykes Bros. Inc. of Georgia, or any other employer, in the
exercise of rights guaranteed by Section 7 of the Act, except to.
the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as' authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL jointly and severally with the said Company, reim-
burse all employees of the Company who were individually
coerced to sign dues checkoff cards for our Union, for all dues
paid subsequent to May 1, 1957, pursuant to the contract or any
superseding agreement between Lykes Bros. Inc. and our Union.
MEAT CUTTERS, PACKINGHOUSE AND ALLIED
FOOD WORKERS UNION LOCAL No. 433,
AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
ROBERT ACKERMAN, AGENT, MEAT CUTTERS,
PACKINGHOUSE AND ALLIED FOOD WORK-
ERS UNION LOCAL No. 433, AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN
OF NORTH AMERICA, AFL-CIO,
Individual.
Dated---------------- By-------------------------------------
(ROBERT ACKERMAN)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by United Packinghouse Workers of America , AFL-CIO,
herein called United , the General Counsel of the National Labor Relations Board,
by the Regional Director for the Tenth Region , issued a consolidated complaint,
dated December 5, 1957, again Lykes Bros. )Inc. of Georgia , herein called the Com-
pany; Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO; Meat Cutters , Packinghouse and Allied Food Workers Union Local No. 433,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
herein referred to collectively as the Amalgamated or as Amalgamated and Local
433, respectively ; and Robert Ackerman, individually and as agent of said Amal-
gamated and Local 433. With respect to the Company , the complaint alleged that
it had engaged in unfair labor practices within the meaning of Section 8 (a) (1), (2),
and (3 ) and Section 2(6) and ( 7) of the National Labor Relations Act, as amended
herein called the Act. As to Amalgamated , Local 433, and Respondent Ackerman,
the complaint alleged that they had engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and Section 2(6) and ( 7) of the Act.
The Company filed an answer about December 16, 1957 , in which it admitted the
jurisdictional allegations of the complaint , but denied the commission of any unfair
labor practices . The answers of the Amalgamated , Local 433, and Respondent
Ackerman denied the commission of any unfair labor practices and denied having
knowledge sufficient to form a belief as to the jurisdictional allegations of the
complaint.
Pursuant to notice , a hearing was held at Albany, Georgia, on various dates, start-
ing on April 1 , 1958, and ending on May 27, 1958, before the duly designated Trial
Examiner. At the start of the hearing the General Counsel moved to amend para-
graphs 6 ( a) and ( d) of the complaint . The motion was granted over the objections
of the Respondents . During the course of the hearing , the Trial Examiner , over the
objections of the General Counsel , granted motions of the Company and Amal-
gamated to dismiss paragraphs numbered 5 and 6 ( e) of the complaint . At the close
of his case , the General Counsel moved to strike the name of Jack Deal from para-
graph numbered 7 of the complaint . The motion was granted without objection.
During the hearing , the Company and Amalgamated made a number of motions to
dismiss the complaint in whole or in part. Each renewed its motions at the close
of the whole case. Ruling was reserved . The motions to dismiss are disposed of
as hereinafter indicated . After the conclusion of the hearing , the General Counsel,
the Company , the Amalgamated , and Respondent Ackerman filed briefs with the
Trial Examiner . The Company also filed a motion to correct the record. No ob-
jections to the motion having been made, the motion is granted , and the motion is
marked and received in evidence as Trial Examiner 's Exhibit No. 5.
Based upon the record as a whole, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a Georgia corporation , with its principal office and place of busi-
ness located at Albany, Georgia , where it is engaged in livestock slaughtering, meat
processing , and meat packing. During the year 1957 , the Company sold and shipped
directly from its Albany plant to points outside the State of Georgia finished products
valued in excess of $ 100,000.
IT. THE ORGANIZATIONS INVOLVED
United. Amalgamated, and Local 433 are labor organizations which admit to
membership employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Company , a wholly owned subsidiary of Lykes Bros. Inc, a Florida corpo-
ration , purchased its Albany plant during the latter part of 1954. The parent or
Florida corporation operates a packing plant in Tampa, Florida, and three branch
houses in other parts of Florida For about the past 10 years the parent corporation
has had contractual relations with Amalgamated covering its Florida establishments.
LYKES BROS. INC. OF GEORGIA 621
A petition seeking a Board election and certification for a production and main-
tenance unit at the Company's plant was filed on December 24, 1954, by United.
Amalgamated intervened in the proceeding. Neither union prevailed in the subse-
quent election directed by the Board. United filed another petition with the Board
in March 1956. Amalgamated did not intervene. A majority of the Company's
employees voted against United in the resulting election.
On May 1, 1957, a new contract was executed between Amalgamated and the
parent corporation, "for itself and its wholly-owned subsidiary, Lykes Bros. Inc. of
Georgia." The Company's employees were included in the unit for the first time.
Shortly after the signing of the contract, the employees were solicited to sign checkoff
authorizations cards for Local 433. On May 27, 1957, a meeting was held by Amal-
gamated for the Company's employees, at which time the contract was ratified.
At about the same time and during May 1957, United and the Moultrie, Georgia,
local of Amalgamated were conducting campaigns to organize the Company's em-
ployees. On Friday, May 31, 1957, United held its first meeting for the Company's
employees. On the following Monday the Company began to lay off employees,
allegedly for economic reasons.
B. Supervisors and agents
No dispute exists concerning the supervisory status of L. N. Moore, plant manager;
Walter (Jack) Smith, plant superintendent; A. B. Ward, foreman over the "sweet
pickle" department; J. C. Carlton, foreman over the "kill and cut" department; and
R. E. Horne, foreman over the "sausage" department. There is a dispute concerning
the status of W. O. Vaughn, J. O. Vaughn, H. C. McElvaine, W. R. Baxter, and
Thelma Ward.
1. W. 0. Vaughn
Vaughn, referred to frequently in the record as "Shorty," works under Foreman
A. B. Ward. Ward supervises the "sweet pickle" or "curing cellar," an area about
100 feet wide by 200 feet long; the "smoked meat hang," a separate room covering
an area about 35 by 15 feet; the "smoked meat pack" and "sliced bacon" departments,
both in the same room covering an area about 40 by 100 feet; and the "ham boning"
department, which is located in the curing cellar. Ward's office is in the "center" of
the curing cellar. As of June 1, 1957, there were approximately 15 employees in the
curing cellar, 11 in .the smoked meat hang, 14 in the smoked meat pack, 7 in sliced
bacon, and 4 in ham boning.
Employee Arlie Pate testified that during December 1956,1 Ward called "the whole
crew" together and told them that he was appointing Vaughn as his "assistant fore-
man" and wanted them to obey Vaughn and follow his orders. Employee Carley
Bryant testified that "about two months before I was laid off" (June 7, 1957) Ward
told all the employees as a group that he was making Vaughn an assistant foreman
and that they were "to cooperate and go along with him and do what he said." Em-
ployee Horace Salter testified that during March 1957, Ward called all the employees
together "around the ham pumping table" and told them that he did not want them
"to talk back" to Vaughn, as he was his "assistant." 2
Pate, Bryant, Salter, Saunders, and employee C. E. Willis testified, in substance,
that Vaughn assigned work to the employees; that he transferred them from job to
job; that he told them when to punch out from work or when to work overtime; that
they reported to Vaughn when a job was completed; and that Vaughn granted time
off from work. Salter testified that during June 1957 he was at his father's home,
together with Ward and Vaughn, and that when Vaughn complained about employees
watching the clock "every evening," Ward replied, "Anybody that don't work to suit
you, you just bring them to me and I'll get rid of them." 3
Vaughn was carried on the Company's records as a "ham pumper " Ward testified,
in substance, that Vaughn received a wage increase and became a gangleader "offi-
'It appears that Pate was not sure of the date, as he testified, "in December of
'57-'56, somewhere along in there."
2 Employee Glenn Saunders testified to a similar meeting, also during March 1937
s Vaughn did not appear as a witness at the hearing Ward did not deny the above
statement attributed to him by Salter. Saunders testified that about 3 or 4 weeks after
Ward made Vaughn his assistant he overheard Ward tell Vaughn that if he did not want
employee J. L. Brown, he should "let him go" Ward testified that at one time he told
Vaughn to let Brown "go home" when his work was finished for the day, but denied that
he ever told Vaughn that he could discharge Brown Ward 's testimony is credited in
this connection.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cially" during August 1957, in the sweet pickle department; 4 that previously he had
used Vaughn unofficially as a gangleader in the sweet pickle department only; that
Vaughn spent 80 to 90 percent of his time doing ordinary work such as "pumped
picnics, salted dry bellies down, salted picnics down, put them in bins"; 5 that as a
gangleader he used Vaughn to relay his orders to the employees, to "tell the various
gangs ... to make a change," and to keep buggies and tubs up so as to avoid work
stoppages; that the type of work that Vaughn performed did not change "too much"
after he became a gangleader officially; that he never referred to Vaughn as his
"assistant foreman"; that at various times he used other employees, including Salter,
to relay his orders; that he had never authorized Vaughn to grant employees time
off; and that Vaughn did not have the authority to hire or fire or to recommend such
action. Concerning a group meeting with the employees during the early part of
1957 and the reason for it, Ward testified,
At one particular time I called them together, I didn't necessarily call them just
for Vaughn. . . . I don't remember who it was in particular, but I sent someone
up to the freezer, I believe it was, to tell the ones I had working up there what
to do. Well, there was three or four of them wouldn't believe the fellow. So
when I came back and found the work wasn't done like I had . sent word
for them to do, well, I called them all together and told them regardless of who
I sent word for them to change their work orders, to change them, . . . and
that more than likely Shorty would be doing most of the passing on of the
orders; that I would use him because he was right there where I could get hold
of him in the cellar and I would use him; but there would be other people
coming up there to tell them to change the orders, too, at times and to do
what they said to do; and if anyone came up there and told them to do anything
I hadn't told them to tell them, they would have to answer to me about it.
In brief, insofar as supervisory status is concerned, Vaughn during the times
material herein was on the fringe. Both Ward and Smith testified that Vaughn had
never attained the status of foreman or assistant foreman, and that he was not even
designated as a gangleader until August 1957. In fact, the records of the Company
show that he had a nonsupervisory classification, that of pumper, during the times
in question. It is undisputed that he was paid an hourly rate as a pumper, and that
he did not receive a wage increase until he was promoted to gangleader.
It is admitted that Ward used Vaughn unofficially as a gangleader for at least 3
months before August 12, 1957. Ward's testimony, however, indicates that a gang-
leader is not a supervisory employee within the meaning of the Act, since a gangleader
merely sees to it that the employees are supplied with work and relays the foreman's
orders. The question of whether or not Vaughn was delegated or permitted to
exercise supervisory authority beyond that of gangleader remains.
I credit Ward's version of his remarks to the assembled employees in March or
April 1957. It is possible that he referred to Vaughn as an "assistant," but I do not
believe that he used the term "assistant foreman," especially in view of his uncon-
tradicted testimony that he used a number of named employees, including Salter,
to transmit his orders at that time. Ward's explanation of the reason for his talk
to the employees appears plausible. Since Ward did not mention any other employee
by name and told the employees that "more than likely Shorty [Vaughn] would be
doing most of the passing on of the orders," it is understandable that they arrived
at the conclusion that Vaughn was being made an "assistant" to Ward or an "assistant
foreman."
From the above, it would appear that Vaughn was not a supervisory employee.
Directing employees to transfer to other jobs or to work overtime is not conclusive.
This could have been a mere relay of orders from Ward. There remains the un-
contradicted testimony to the effect that Vaughn granted time off to employees with-
out consulting Ward and concerning Ward's statement to Vaughn in Salter's presence.
Salter testified that at some unspecified time Vaughn granted him time off from
work when he was sick. Saunders testified that sometime during the months of
`Superintendent Smith testified that he changed Vaughn's classification to gang-
leader about August 12, 1957. The undisputed evidence shows that gangleaders were
paid hourly rates, as were other employees, and that foremen were paid weekly salaries.
'Saunders testified that he had never seen Vaughn pumping hams and that Vaughn
performed "different" manual jobs "just a little bit at a time." Salter testified that
Vaughn "don't work much, just does as he pleases" ; and that he did not see him do any
ham pumping during May and June 1957. Bryant testified that he saw Vaughn perform-
ingsome of the jobs in the department ; that Vaughn pumped hams for "a short period
,of time" ; and that Vaughn helped employees by showing them how to do their jobs "fast."
LYKES BROS. INC. OF GEORGIA 623
April, May, and June, 1957, Vaughn granted him time off from work.6 Salter, when
questioned as to the date of the conversation between Ward and Vaughn, testified,
"It was, I'd say, June." The complaint alleges that Vaughn engaged in illegal conduct
on behalf of the Company on or about May 15 to June 7, 1957. The evidence shows
that Vaughn engaged in such conduct during May 1957.
In my opinion, while the question is close, this evidence is not sufficient in order
to sustain the burden of proof. At most, the General Counsel has proved that
during the time material herein on one occasion Vaughn granted an employee time
off from work without consulting Ward first. Even if Salter's testimony with respect
to Ward's statement to Vaughn is considered relevant and material on the question
of supervisory status, disregarding the time element, nevertheless there is no evidence
that Vaughn at any time recommended, effectively or otherwise, the discharge of an
employee. Further, it should be noted that the conversation took place away from
the plant and apparently at a social gathering at the home of Salter's father. Finally,
in view of the fact that Ward used a number of employees to relay his orders, I do
not believe that a conclusion that the Company held out Vaughn to the employees
as a representative of management or that the employees regarded him as such is
warranted.
The complaint also alleges that Vaughn was an agent of the Amalgamated. In
this connection, Pate, Bryant, and Saunders testified that Vaughn told them that he
was getting $2 for each card of the Amalgamated that he got an employee to sign.
Vaughn did not reveal to them the identity of the person or organization allegedly
making such payments.
Employee Henry Holsey testified without contradiction that during the end of
May 1957, he attended a meeting of the Amalgamated for the colored employees
of the Company at which Robert Ackerman, secretary-treasurer of Local 433, pre-
sided, and that the following conversation took place at the end of the meeting:
Graham, the colored organizer, he was talking with Mr. Ackerman and my-
self. . And he [Graham] said, "You are giving these other fellows a couple
of dollars to get these people to sign up, two dollars a head, why don't
you give him [Holsey] the same benefits that you do the others if he gets some
signed up?" Mr. Ackerman said, "Well, if he can get them signed up,
good. . . . You just write your name up on the top corner where I'll know
that you got those signed up."
Counsel for the Amalgamated objected to the above testimony on the grounds
of hearsay. He points out in his brief,
Nowhere in the record is there evidence of the fact of the payment of monies
to Vaughn [by anyone] for getting signed checkoff cards. Hearsay testimony
that he told others that he received such payments does not prove the fact of
payment. . The absence of the fact of payment is not remedied by hearsay
testimony from another source that "these other fellows . . " [unidentified]
receive such payments. Nor does a direct offer of payment to Holsey prove
that Vaughn did in fact receive such payment from anyone, much less the Union.
I agree with this argument. Since there is no direct evidence in this connection, I
find that the General Counsel has failed to sustain the burden of proving agency.
Accordingly, it will be recommended that the complaint be dismissed insofar as it
relates to W. 0. Vaughn.
2. J. 0. Vaughn 7
J. 0. Vaughn, also referred to in the testimony as "Shorty," worked in the Com-
pany's "freezer." Moore testified that during the latter part of 1956, E. G. Morgan,
an official of the Company, told Vaughn, "Shorty, you've done a good job over
there. We are going to make you foreman of the freezer now" 8 Concerning
Vaughn's duties, Moore testified, in substance, that although Vaughn was "in charge"
of the freezer, he had no employees to supervise as no employees were assigned to
the freezer on a permanent basis; that Vaughn was referred. to as foreman of the
freezer in much the same manner as in the Army a person is referred to as "captain
of the latrine"; that from time to time employees were sent from other departments
to work in the freezer as they were needed; that when employees were assigned to
such temporary work in the freezer, they remained under the supervision of their
own foremen; that at such times Vaughn worked with the employees, but had no
8 This testimony was in answer to a leading question propounded by the General Counsel.
7 Vaughn did not appear as a witness at the hearing.
8 B. G. Martin, the Company's office manager, testified that Morgan told him to give
Vaughn a raise effective October 8, 1956, and to put him on the payroll as "freezer man."
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervision over them; and that employee B. S. Hathcock, who was assigned to the
"loading dock," worked in the freezer "quite a bit." 9
Hathcock testified that he worked for the Company from October 1956 until
February 1957; that he worked on the loading dock for about a month and then
was transferred to the freezer where he remained until his employment was termi-
nated; that about January 25, 1957, Vaughn gave him a warning notice; 10 that
Vaughn told him and another employee "when to go to work and when to quit";
that about the end of February 1957, he received a discharge slip which was signed
by both Vaughn and Smith, with the former's signature in the space provided for the
"foreman"; that several weeks later he returned to the plant and had a conversation
with Smith; and that when he asked Smith why he was discharged, Smith replied
that he did not know the reason and that Hathcock should ask Vaughn."
Concerning Hathcock's discharge and the reason for Vaughn's signature on the
slip, Moore was questioned and testified as follows:
Q. Do you recall that lay-off9
A. Yes, sir. I believe he was fired.
Q. Do you recall anything about the lay-off slip?
A. Yes, sir. Jack came in the office-Jack Smith came in the office and
said he was letting Hathcock go, and I asked him what was the matter. He
said he was too slow. I said, "Is that that big boy that works over there in
the freezer"
He said, "Yes."
I said, "Well, let him go."
He said, "What do you want me to put on the slip?" And I've forgotten
now what I told him, "Lack of work," or something like that. And Jack
started out.
I said, "Wait a minute." I said, "Is that the boy that's been working over
there in the freezer?"
He said, "That's right."
I said, "Let Shorty Vaughn sign that thing." Shorty had just stepped in the
office. I said, "Let Shorty sign it. That will make it official." And Shorty
signed it.
Q. What did you mean by saying, "Let Shorty sign it. That will make it
official"?
A. Well, we had been kidding Shorty about being freezer foreman, and so I
just thought I would give him a boost and let him put his name on it. He
said he would be glad to do it.
Q. This was some more of the kidding?
A. Yes, sir.
Q. Well, was this sort of a private joke, or something , or was somebody else
in on it?
A. Well, just Morgan and myself, as far as I know. And Jack was in there
when Morgan said he was going to make him freezer foreman.
Employee Henry Salter testified without contradiction that on or about May 30,
1957, he overheard a conversation between Vaughn and employee R L. Edge;
that "he [Vaughn] said that he was somewhat confused over his job now, that Mr.
Ackerman had told him that he was not a foreman, that he was a gangleader, for
Mr. Morgan, the Personnel Manager at Tampa, was up here and he made him a
foreman"; and that when Edge asked him if he had anyone to help him in the
freezer, Vaughn replied, "Yes, . I've hired me a boy [who] will be in in the
morning. . . . He's the Turner boy." 12
Vaughn's appointment as a foreman may have been a private joke between
Moore, Morgan, and Smith, but it is clear from the record that it was not so regarded
9 Moore admitted that when he was reviewing a seniority list of the kill and cut
department in preparation for it general layoff , he wrote the word "freezer" after each of
the names of Vaughn and employee C H. Turner.
10 This notice was received in evidence In the space provided for the signature of the
"Foreman or Supervisor" appears the writing "J. 0 Vaughn " The notice is dated
January 25, 1957, and sets forth Hathcock's name, clock number, and department as
"Freezer " On printed reasons for the warning the words "Conduct " and "Disobedience"
are checked . Under "remarks" there is the notation "playing on fob "
11 Smith did not deny the above statement attributed to him by Hatheock
13 The Company's records disclose that C. H Turner was hired on March 15, 1957. As
noted above , Moore wrote the word "Freezer" after his name on the seniority list. This
list will be discussed in more detail hereinafter
LYKES BROS. INC. OF GEORGIA 625
by Vaughn. He held himself out to the employees as a foreman, as shown by his
issuance of a warning notice to Hathcock and by his conversation with Edge. That
the Company encouraged Vaughn in his belief cannot be questioned in view of
Moore's request for him to sign Hathcock's discharge slip. It is undisputed that the
Company did nothing to disabuse the minds of the employees, since Moore testified
that the purported joke was not made known.
Hathcock's undenied testimony to the effect that Smith told him to inquire of
Vaughn as to the reason why his employment was terminated is indicative of the
fact that Vaughn at least effectively recommended the discharge. Further, Hath-
cock's testimony, which is credited in this connection, shows that Vaughn had at
least two employees under his direct supervision. Moore's testimony is contradictory
in some respects. He testified that no employees were assigned permanently to the
freezer. However, as noted above, his testimony indicates that Hathcock and
Turner were so assigned.
For the above reasons, I find that J. O. Vaughn at the times material herein was
either a supervisory employee within the meaning of the Act or a representative of
management for whose conduct the Company was responsible.
The complaint also alleges that Vaughn was an agent of the Amalgamated.
There is no substantial evidence in the record in support of this allegation. Accord-
ingly, it will be recommended that the complaint be dismissed in this respect.
3. W. R. Baxter 13
Before October 1, 1956, Baxter was a salesman on the road for the Company.
From October 1, 1956, until June 10, 1957, he was a beef salesman in the shipping
office. From June 10, 1957, until his employment was terminated about September
1957, he relieved salesmen who were on vacation, with the exception of 2 weeks
when no salesmen were on vacation. During this period of 2 weeks he returned to
the job of beef salesman in the shipping office. As beef salesman, Baxter spent part
of his time in the "beef cooler," where he directed the work of two or three em-
ployees. He was paid a straight salary, as were the other salesmen, and did not
punch a timeclock.
Employees O. G Carlton and C. E. Willis worked in the beef cooler. Concerning
Baxter's duties, Carlton testified that Baxter "tagged the beef to be shipped out. He
told us what beef to bone, what beef to ship, and where to ship it to"; that Baxter
told him when to report for work and when to quit; that Baxter on some occasions
let him off from work early without consulting with anyone; that when Baxter was
on the road (as a relief salesman), Moore and Smith gave the orders to the em-
ployees in the beef cooler; and that "at times he'd [Baxter] go home and leave us
at work when we'd have a real big day, and he'd tell me when we get through to
knock off. . . Most of the times we went home generally when we got through
with runs and things."
Employee C. E. Willis testified that the hours of work were irregular in the beef
cooler; that "a couple of times" Baxter granted him permission to get off early
from work; that Baxter "mostly checked beef, what beef was going out, showed us
what to get out, told us when to clock in and when to clock out, . . . [customers]
would call in over the telephone . tell him what kind of beef they wanted; and
he would go in, pick out the kind of beef, tag it, and tell us which to get out . . .
Some times they would come in; . . they would go in the cooler and pick out
the beef they liked, and he would put a tag on it or either point out which one for
us to get out"; that on occasions Carlton acted as beef salesman during Baxter's
absences; that the hours of work were governed by the amount of orders, that "some
times [Baxter] would tell us that he was leaving, as soon as we got through with a
certain job, to check out"; that at other times Baxter told them to "clean beef hooks"
or to help out on the loading dock when there were no orders to be prepared for
shipment; and that when Baxter was on the road as a relief salesman, "Carlton, he
kind of looked after it. Mr. Jack [Smith] and Mr Moore would come in and talk to
him and tell him what to do, and we would do that."
Concerning Baxter's duties, Moore testified, in substance, that "I don't think
[Baxter] had the authority to hire or fire.14 He never did any hiring or firing. It
was handled through Jack Smith"; that Baxter "could make recommendations [such
as hiring or firing or wage increases], I suppose. I don't know. He never did";
that Baxter's work "was carried out under the orders of either myself or Jack Smith.
is Baxter did not appear as a witness at the hearing.
14 Moore admitted that he had told a field examiner of the Board that although Baxter
had never exercised such authority, he did have authority to hire and fire employees.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And he, in turn, would give the orders to the boys working in the beef cooler"; that
Baxter "was in charge of the beef sales, and naturally the beef boning. In other
words, he would pick out which cattle was to be boned. And this beef job, I don't
know whether you would call that a supervisory job or not, but he did direct";
that Baxter spent more of his time in the shipping office than he did in the beef
cooler; that if an employee had performed his work improperly, it would have been
Baxter's duty to have noticed it and to have reprimanded the employee; that "it
would have been [Baxter's] job to, if the work was being done improperly, to have
reported it to Jack Smith. . . . He might have told them they were doing it wrong,
but I don't know about reprimanding"; that Carlton acted as beef salesman before
October 1956 and when Baxter was a relief salesman during the summer of 1957; that
Army contracts were responsible for almost all of the variations in the working hams
in the beef cooler; and that the decision on the hours to be worked was made either by
him or Smith, and not by Baxter.
Smith's testimony was substantially the same as Moore's in connection with
Baxter's duties. When questioned as to whether or not Baxter had the authority
to reprimand employees, Smith testified, "Well, yes, I'd say he did; if he saw one
of them was not boning beef right or if he would see one did not cut a cattle down
right, why, yes, he would. As far as having authority, I don't know; but he probably
would say something to them, I imagine. I don't recall him ever doing it." Smith
also testified that he did not "recall" if Baxter had even made any recommendations
concerning employees; and that if Baxter had made such recommendations, he
would not have acted without checking personally.
I credit the above testimony of Carlton and Willis. Their testimony shows that
Baxter directed them as to what orders were to be prepared for shipment, told them
when to clock in and out, transferred them to other jobs when their regular work
was completed, and granted permission for them to leave work early.
While there are some contradictions in Moore's testimony, he impressed me as a
credible witness in this connection, as did Smith. It is apparent from their testimony
that they were not sure as to just what authority Baxter did have over the employees,
in the beef cooler. However, it is clear from the record that Baxter never did make
any recommendations concerning employees either to Moore or to Smith. There is
no evidence that Baxter ever did reprimand an employee. The testimony of Moore
and Smith in this connection was in answer to hypothetical questions.
The record shows that the employees involved 15 did not receive orders or instruc-
tions from Baxter as to how they were to bone beef or otherwise perform their work.
His directions, usually made merely by tagging the beef, were confined to the prepara-
tion of orders for shipment. It must be remembered that Baxter was a salesman, in
charge of beef sales at the times material herein, who probably knew little or nothing
about the actual work of beef boning or other preparation of a carcass, and that
his supervision over the employees in the beef cooler was more or less incidental
to the job of beef salesman.
In my opinion, the question of Baxter's status is close, as was that of W. O.
Vaughn, above. The beef cooler was a small operation, at least insofar as the
number of employees is concerned. It appears that these employees received very
little, if any, supervision over their actual work. The fact that Baxter granted
employees time off from work without consulting a higher authority is not sufficient.
For the above reasons I find that Baxter was not a supervisory employee within the
meaning of the Act.
4. H. C. McElvaine is
McElvaine worked in the kill and cut department under Foreman J. C. Carlton.
He was made a gangleader in that department on August 12, 1957. Before that
time he was classified by the Company as a "rumper and backer." At the times
material herein, there were two employees in the kill and cut department who were
classified as "floorsman," a higher paying classification than that of McElvaine.
There was one other employee, B. W. Ferguson, who held the same classification as
McElvaine.
The department is divided between two floors with connecting stairs. It is possible
to view most of the operation by standing on the stairs. There were approximately
47 employees in the department on or about June 1, 1957.
Employee Henry Holsey testified that during the normal working day of 10 hours
Carlton was absent from the department "approximately an hour and a half overall
is It is undisputed that J. O. Vaughn, whose status has been discussed above, at times
performed beef boning work in the beef cooler.
10 McElvaine did not appear as a witness at the hearing.
LYKES BROS. INC. OF GEORGIA 627
. throughout the day"; that during Carlton's absences McElvaine "gave us
orders"; 17 that McElvaine "a lot of times" ordered him to perform various jobs;
and that on one occasion, when Carlton was absent due to illness, McElvame sub-
stituted for him as supervisor of the department.
Employee Henry W. Salter testified that during the normal working day of 10
hours Carlton was absent from the department on the average of 1 hour; that during
such absences McElvaine "takes over" and transfers employees to other jobs; that
nobody had told him that McElvaine was an assistant foreman; that during the latter
part of 1956 or the early part of 1957, Carlton was absent from the plant for a few
months; that Jude Willis acted as foreman during part of this time; that when Willis'
employment was terminated, and before Carlton returned to work, "Mr. Morgan
from Tampa was up here, and he . . . put Holsey, told him to go over there
and gut hogs [McElvaine's job at the time], and he took `Mac' downstairs and
`Mac' took over as far as I know"; that McElvaine at the time "started giving orders"
but at times returned to the top floor and "gutted hogs"; that during the time that
McElvame "took over" he discharged an employee by the name of Vernon Crosse;
that during October 1957, McElvame granted him time off from work because of
illness, without first talking to Carlton who was present in the department at the
time, that when McElvaine was made a gangleader, "I couldn't tell any difference.
He gave orders right on"; that during the fall of 1957 Carlton was on vacation for
2 weeks; that McElvaine and Ferguson each acted as foreman for about a week
during this period of time, that Carlton at times relayed orders to him by employees
other than McElvaine; and that McElvaine spent most of his time performing
manual work "right across the table from me."
Employee W. W. Mauldin testified that Carlton was absent from the department
on an average of an hour a day; that during such absences McElvaine gave the
orders, transferred employees to other jobs, and told them when to take rest periods
and when to clock out; and that usually the employees clocked out without being
told since they know when the work for the day was finished. Employee L. C.
Mauldin testified that he worked in the kill and cut department for about 6 weeks
before his layoff on June 3, 1957, and that "many times" McElvaine gave him his
working orders.
Smith testified that McElvaine has never had the status of foreman or assistant
foreman. Carlton testified that McElvaine "was a cattle romper on beef, and on
the hog kill he snatched guts, and on pork cut he took the neck bones out of the
shoulder. . He was carried as a rumper . . . the classification. . . He done
anything I told him to do, or we called on him, what we called all-around man."
I credit the above testimony of Holsey, Salter, W. W. Mauldin, and L. C. Mauldin.
Their testimony shows that McElvaine, in addition to acting unofficially as a gang-
leader during the times material herein, "took over" or substituted for Carlton during
his absences from the plant. It is undisputed that on one such occasion he was
responsible for the discharge of an employee. Accordingly, I find that he was a
supervisory employee within the meaning of the Act.
The complaint also alleges that McElvaine acted as the agent of the Amalgamated.
There is no substantial evidence in the record in support of this allegation. There-
fore, it will be recommended that the complaint be dismissed in this respect.
5. Thelma Ward 18
Thelma Ward, the wife of Foreman A. B. Ward, worked as the "spice room girl"
under Foreman Horne. She was an active adherent of the Amalgamated. The
General Counsel contends that the evidence shows that she "acted as an agent for
the Respondent Employer in soliciting employees to sign checkoff authorization cards
for the Respondent Unions. .
J. L. Williford worked in the sausage department under Foreman Home. He
testified credibly that on about May 23 or 24, 1957, Horne told him, "I want you to
go ahead with me and Thelma Ward and sign one of the [Amalgamated] cards."
Horne denied the statement attributed to him by Williford. His denied is not credited.
Employee D. J. Blanchard testified credibly that he worked in the "sausage
kitchen" as a "chopper" under Foreman Horne, that Horne's office was in the spice
room where Ward worked; that at the end of May 1957, Ward told him that Horne
wanted to see him in his office; that Horne told him, "Mrs. Ward will tell you
what to do," and that after Horne left the office, Ward solicited him to sign a card
for the Amalgamated and told him that he would be laid off from his job if he did
17 Holsey had the classification of floorsman.
18 Ward did not appear as a witness at the hearing
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not do so. Horne testified , in substance , that Blanchard used "lots of spices" in his
work as a chopper ; that "the only time there would be any occasion for [ telling an
employee to see Ward] was when we probably would make test blocks of sausage
and they were spiced, spices fixed specifically for that sausage , and I would tell
them to go in and ask Thelma where the spices was , to give them that spice"; and
that although he did not recall any specific occasion , he might have told Blanchard
"to go to the spice room and get the spices and Mrs. Ward would show him which
one to get ." Horne denied that he told any employee that Ward "would tell them
what to do ." His denial is not credited.
I find that Ward acted as the agent of the Company for the purpose stated above.
Horne's statement to Williford indicates that he and Ward were working together in
securing signatures on checkoff cards. That his direction to Blanchard was not
related to the business of the department is shown by the fact that Ward 's remarks
to Blanchard were confined to the subject of unions.19
The complaint also alleges that Ward acted as the agent for the Amalgamated.
Outside of the fact that she was active on behalf of the Amalgamated , there is no
substantial evidence in support of this allegation . Accordingly, it will be recom-
mended that the complaint be dismissed insofar as it relates to Thelma Ward as
an agent of the Amalgamated.
C. The Company
1. Violations of Section 8(a)(1) and (2) 20
T. E. Bryant worked in the kill and cut department under Foreman J. C. Carlton.
About the middle of May 1957, he had a conversation with Carlton . Concerning
this conversation , Bryant testified credibly as follows:
He said, "Earl , got a question I want to ask you ." I said , "Okay." He said,
"Have you saw any unionmen?" I said, "Yes , I saw both kind ." He said,
"What do you mean by both kind?" And I said , "A.F. of L. men from Moultrie
and the CIO man from Tifton ." And he said-well, he said , "If the plant
finds out about it," he said , "you'll be fired or laid off." He said , "The CIO
from Tifton or the A.F. of L. from Moultrie is not going to come in here
because the plant won 't put up with it." He says , "If the CIO was to have an
election and win it, the company would not have it because they would not
sign the contract ." He said, "I know both parties are going to try to come in,"
but he said , "they are not going to come in , not going to have any union ex-
cepting the same union they have in Tampa." Said, "It ain 't worth a damn,"
but said "that 's the only one they are going to have."
Carlton denied that he ever had a conversation with Bryant about any unions.
His denial is not credited . The above statements of Carlton are found to be vio-
lative of Section 8(a) (1) of the Act because of the illegal interrogation and because
they contain a threat of reprisal.
About 3 or 4 days after the above conversation , McElvaine solicited Bryant to
sign a checkoff card for the Amalgamated . J. O. Vaughn also solicited him to
sign such a card a few days later . It is found that such conduct on the part of
supervisors and representatives of management is violative of Section 8(a)(1)
and (2 ) of the Act.21
Horace W. Salter worked in the curing cellar under Foreman Ward. Salter
testified , in substance , that he had several conversations with Ward about the
Unions ; that on May 14, 1957 , he asked Ward about the checkoff cards of the
Amalgamated that W. 0 Vaughn was getting signed ; that Ward replied, "Salter, I'll
tell you as a friend , ... the company don't want the - CIO . They want what
they've got in Tampa. . Hawkins [an official of the Company] said he would
not give [United ] a contract . Before he 'd give them a contract he'd dump that
new building [part of the Albany plant ] as a total loss and go back to Tampa":
that a day or two later he told Ward that he was going to sign a checkoff card of
the Amalgamated ; that Ward replied, "that's what the company wanted "; and that
10 The above conversations will be related hereinafter in more detail
In their testimony the witnesiPs frequently referred to the United as the "CTO," to
the Amalgamated as the "AFL ," and to the Moultrie local of the Amalgamated as the
"AFL from Moultrie."
21W W Mauldin , Henry Holsey, Henry W Salter , Clem Wisham , Benjamin Solomon,
Leroy Blackmon , and C. E. Willis testified without contradiction that either J 0 Vaughn
or McElvaine , or both, asked them to join the Amalgamated or to sign its checkoff cards.
Wisham , Mauldin , and Willis testified credibly to the effect that Vaughn threatened them
with reprisal if they did not sign a card.
LYKES BROS. INC. OF GEORGIA 629
on about May 16 Ward asked him to try to get employee Glenn Saunders to sign
a checkoff card for the Amalgamated.
Ward denied the statements attributed to him by Salter. He denied that he had
any conversations with Salter about unions or about employee Saunders. He testi-
fied, "[Salter] could have asked me about signing the card. I don't remember
whether he did or not. As I say, there was about half the people at one time or
another did ask me, and I gave them the answer I couldn't tell them any way what
to do. . "
Ward's denials are not credited. I credit the above testimony of Salter and find
that Ward's conduct and statements are violative of Section 8(a)(1) and (2) of
the Act.
It has been found above that Foreman Horne had a conversation with Williford
on or about May 23, 1957. Concerning this conversation, Williford testified credibly
as follows:
He said, "Jim," he said, "you're a good boy." He said, "I think a lot of you and,"
said, "I don't want you to go wrong." Said, "I want you to go ahead with me
,and Thelma Ward and sign one of the A.F. of L. cards." And said that if the
CIO come in that they'd have to shut down the plant, and said that if he found
out that any of us were for the CIO that he'd have to fire us.
It is found that the above conduct and statements of Horne are violative of
Section 8(a) (1) and (2) of the Act.
Williford testified without contradiction that on the same day as the above con-
versation Thelma Ward interrupted his work and told him, "If you don't want a
colored boss man . . . you'd better take and sign this [Amalgamated] card, and
if you want to keep the job." This solicitation and implied threat of reprisal is
found to be violative of Section 8 (a) (1) and (2) of the Act.
The incident involving Foreman Horne, Blanchard, and Thelma Ward has been
related above. A few days before, or on or about May 26, 1957, Blanchard had
a conversation with Horne. Blanchard testified credibly concerning this conversa-
tion as follows:
He just told me, said "I knew that you worked with the CIO with Armour &
Company in Tifton before you come here; and," said, "if they find out that
you are for the CIO, you'll go out the gate just like you come in." Said that
"We don't want this CIO in here at all." Said, "If we do get the CIO in here,"
that they would shut down the plant and they would take the foremen and load
out what meat they had and send it to Tampa and they would open up in
about 60 days and they would be ready to go back again where they would not
hire any of the employees that voted for the CIO.
He said that he heard, learnt that L. C. Mauldin was for the CIO the year before
and he transferred him up to the Cut and Kill to get shed of him there... .
So he said, as he understood, ViErra Woods voted for the CIO the year before;
and if he found out for sure, she's going out the gate.
Horne denied all of the above statements attributed to him by Blanchard. His
denials are not credited. Since his statements to Blanchard contain threats of
reprisals, it is found that they are violative of Section 8(a) (1) of the Act.
Concerning his conversation with Thelma Ward a few days later, Blanchard
testified without contradiction that she asked him to sign a card of the Amalga-
mated; that she said, "We don't want the CIO in here . . . they will shut the plant
down, if the CIO comes in here. . . . This is the one [the Amalgamated] we want
like we got in Tampa"; and that she told him that he would be laid off or lose his
job if he did not sign the Amalgamated card. The above solicitation and threats
of reprisal by Thelma Ward are found to be violative of Section 8(a)(1) and (2)
of the Act.
Employee L. E. Hodge testified that during September 1957, Superintendent
Smith came to him on the loading dock and asked him why employee David Gid-
dens (Hodge's brother-in-law) was "getting out of the union"; that he told Smith
that he did not know the reason unless it was because other employees were "signing
cards to get out"; and that Smith replied, "Just tell him if he gets out he's on the
[scatological] list."
Smith denied that he had any conversation such as the one testified to by Hodge.
His denial is not credited. It is found that Smith's statement to Hodge constitutes
interference, restraint, and coercion.
577684-G1-vol 128 41
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee C . E. Willis testified credibly that he was laid off from work on August
13, 1957; that be was recalled to work in September 1957; and that after he was
recalled to work and during September 1957, he had a conversation with Foreman
Ward and J. O. Vaughn as he left the plant . Concerning this conversation , Willis
testified, "J. O. Vaughn and Mr . A. B. Ward was sitting in the car. They called
me to the car . . . Mr. A. B. Ward asked me then if I had joined back up with
the A.F. of L., which I had signed to come out before. . . And I told him yes,
I signed back up, I was back in it. He told me he wanted to tell me one thing, if I
sticked with Bob [Ackerman] that he'd do anything he could do to help me, but
if he caught me fooling with Flanagan's 22 CIO again , he'd fire [me]."
Ward denied that he ever had any conversation such as the one testified to by
Willis. His denial is not credited. It is found that Ward's interrogation and threat
of reprisal are violative of Section 8(a) (1) of the Act.
O. G. Carlton testified credibly that about June 7, 1957, Ackerman was in the
plant; that Ackerman solicited and obtained his signature on a checkoff card of the
Amalgamated; that Smith was present at the time, about "three or four feet" away;
that when Ackerman asked him to sign the card, "somebody came through and
started talking with Mr. Smith just off to the side"; and that "I wouldn't say [Smith]
had [his attention] directly to Mr. Ackerman and myself."
Ackerman testified, in substance, that he was in the Company's plant on a number
of occasions "for the purpose of re-evaluating each job" under the contract; and
that on such occasions Smith accompanied him as "the company will not let me go
through the plant alone." Smith testified that he accompanied Ackerman during
his visits in the plant; that "I went in the plant with him, but we have a telephone in
each department, and the phone would ring, and maybe it would be long distance
or somebody calling me, and I would look around and Mr. Ackerman would be
gone"; that Ackerman never talked to employees about the Amalgamated or made
union solicitations in his presence, and that he was not present during any conver-
sation between Ackerman and Carlton.
It is undisputed that on or about June 10, 1957, Moore denied the request of Sey-
mour Flanagan, a representative of the United, that he be permitted "to roam" the
plant in order to solicit employees to join the United.
The General Counsel contends that the Company's refusal to grant Flanagan
access to the plant was violative of the Act. Since a contractural relationship existed
with the Amalgamated, I do not agree. In so finding I credit the above testimony
of Ackerman and Smith. Carlton's own testimony indicates that Smith was not
aware that Ackerman was engaging in union solicitation at the time.
2. Violations of Section 8(a)(3)
The evidence discloses that T. E. Bryant, Benjamin Solomon, Leroy Blackmon,
L. C. Mauldin, and Clem Wisham were laid off by the Company on June 3, 1957.
Arlie Pate and Lee Jenkins were laid off on June 7 and June 14, respectively. The
General Counsel contends that he has proved that the Company "discriminatorily
laid off" the above employees. The Company maintains that these employees were
laid off for economic reasons, namely, a reduction in force necessitated by a decline
in business. The General Counsel does not dispute the need for a reduction in the
working force, but contends that "the manner of selection . . . was discriminatory."
On the Friday evening preceding a general layoff on Monday, June 3, 1957, United
held a meeting for the Company's employees at the "wrestling arena" in Albany.
All seven of the above employees attended this meeting.
Employees Horace Salter and B. W. Ferguson also attended the meeting 23 After
the meeting Salter and Ferguson went to the home of Foreman J. C. Carlton. Con-
cerning the incident, Salter testified that Ferguson had asked him to attend the
meeting; that at Ferguson's suggestion they drove to Carlton's house and parked in
the driveway; that Carlton came out of his home and sat in the car with them: that
when Carlton asked "who-all was at the meeting," Ferguson produced a "list of
names . written with a pencil"; that Ferguson read off the names on the list,
including "Earl" (T E.) Bryant, Solomon. Blackmon, L C Mauldin. Wisham Pate,
and Jenkins; that when Ferguson read off the names of "two Vaughns" and Mc-
Elvaine, Carlton said that they were "supposed to be there"; that Ferguson did not
Seymour Flanagan is a representative of the United
13 It has been related above that Ferguson acted as foreman for about a week during
the fall of 1957 when Foreman Carlton was on vacation Ferguson did not appear as a
witness at the hearing Salter testified that he held the office of "chief steward" in
the Amalgamated.
LYI{RS BROS. INC. OF GEORGIA 631
give Carlton the list of names; that Ferguson read the names of "quite a few more"
employees from the list in addition to those named above; and that with one excep-
tion he could not recall other employees whose names were mentioned by Ferguson
to Carlton.
Foreman Carlton admitted that he had a conversation at his home with Ferguson
and Salter about the time testified to by Salter. In this connection he testified that
about 10:30 or 11 p.m. Ferguson called him and said "I want to talk to you"; that
although he advised Ferguson that he had retired for the night, Ferguson insisted
that he wanted to "talk"; 24 that Ferguson, together with Salter, arrived at his home
about 15 minutes later and parked their car in his driveway; that he got in the car
with them; and that he did not see any paper in Ferguson's possession. Concerning
the ensuing conversation, Carlton was questioned and testified as follows:
Q. Tell me, if you remember, and what you remember of the conversation,
Mr. Ferguson's conversation and Mr. Salter's conversation and yours.
A. Well, first, Mr. Ferguson asked me if I wanted a drink. I told him no, I
didn't want a drink. And he said that they had a CIO meeting up there.
I said, "They did?"
He said, "Yes."
I said, "Well, that's their business." I says, "I don't care if they had a CIO
meeting." And we just talked, and he called over a number of names that was
up there at the meeting, but I don't remember any of the names that he called
off right now. I might have a day or so later, but now I don't.
Q. You don't remember any names that he called off?
A. No, sir, I sure don't.
Q. Do you recall at all whether the names were familiar to you at the time?
A. Yes, sir, some of them were familiar at the time.
Q. Some of them were names as you recall of people you knew?
A. Yes, sir, they were people I knew.
Q. But you can't recall specifically who they were?
A. Not specifically, not right now; no, sir.
Carlton testified that he believed that Ferguson mentioned McElvaine's name; that
he did not recall either of the Vaughns being mentioned by Ferguson; that he did
not "recall" if he (Carlton) made any statement about McElvaine at the time; that
Salter "just listened" and did not enter into the conversation; and that the first
knowledge he had of United's meeting was when Ferguson told him about it during
the conversation. Carlton denied the statement attributed to him by Salter con-
cerning the "two Vaughns" and McElvaine.
I credit Salter's version of the above conversation. Carlton's testimony has been
discredited heretofore. As pointed out in the Company's brief, there are some few
contradictions and inconsistencies in Salter's testimony, but in my opinion these are
minor.25 He impressed me as an honest and reliable witness.
The Company maintains that the layoffs in June had been under consideration
since about March or April 1957. In this connection the Company adduced in
evidence a document entitled "Kill & Cut Floor Employees," which the Company
contends is the seniority list used to select employees to be laid off in that depart-
ment.26 The names of employees and their seniority dates are typed on the document.
There are checkmarks in pencil after the names of 16 employees. Two additional
checkmarks, after the names of L. Bryant and H. M. Jones, appear to have been
erased. Checkmarks appear after the names of L. C. Mauldin, T. E. Bryant, L.
Blackmon, and Clem Wisham. None appears after the names of L. Jenkins or
B. Solomon. Moore, Smith, and Foreman Carlton testified at length concerning
this exhibit and the manner in which the employees were selected for layoff.
Moore testified, in substance, that "all things being equal," the Company followed
"department seniority" rather than plantwide seniority; that the seniority list for
the kill and cut department was made up sometime in March 1957; that in April
1957, "hogs . .. were high and getting short . . . we were running about 200 to
225 hogs an hour on the chain"; that he and Hawkins "decided to cut some employees
off and slow up some so that we could give the ones that were working enough hams
to get by on"; that during April he called Foreman Carlton to his office and in-
structed him "to see how many men he could cut off by cutting the chain down to
150 or 160 hogs an hour, and I told him to take into consideration seniority plus
a' Salter testified that Ferguson called Calton.
25 Salter was cross-examined extensively.
21 The above exhibit has been referred to heretofore in connection with J. 0 Vaughn
and C H. Turner
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ability, absenteeism and so forth , workmanship ; that if we cut down we would have
to have dependable employees , because we would be running a little short on the
gang" ; that he gave the seniority list to Carlton and told him to note the employees
which he recommended for layoff ; that Carlton marked the list "in about 10 or 15
minutes"; that he told Carlton at the time that before making the layoff, "we'll see
how the work goes"; that he then gave .the list to Smith; that in June he told Smith
and Carlton , "Let's go ahead and make the lay-off. . . . I believe you 've got too
many men on here checked off. I don't believe you can get 150 or 160 hogs an
hour if you lay this many off. Be sure you 've got enough men left"; that Smith and
Carlton "got together and laid them off"; and that otherwise he did not have any-
thing to do with the mechanics of the layoff.
Smith testified substantially the same as Moore concerning the layoff in the kill
and cut department . However, he testified that the second conference between him,
Moore, and Carlton took place "two or three weeks , probably, before the lay-off."
He testified further that no additional markings were made on the seniority list
at the time of the second conference ; that on the day of the layoff Carlton came to
him and "wrote down the ones that he could lay off" on a separate list; that
employees McElroy, J. T. Grant , Tompkins , Scott , and Cason , who names had
been checked on the seniority list, were not laid off "because when J. C. had first
made this list out, why, he had put more people down there than we thought that
he could lay off and still get 150 or 160 an hour" ; 27 that employee Benjamin
Solomon , whose name was not checked on the list , was laid off by "mistake"; and
that Solomon was rehired as soon as Ackerman called the mistake to the Company's
attention.
Carlton testified that he put the checkmark on the seniority list; that he recon-
sidered the list on the day of the layoff and decided which employees whose names
had been checked should be retained ; that in selecting the employees for layoff he
took into consideration "seniority , ability and production"; that Mauldin , Bryant,
Wisham , and Jenkins were not "knife men," the skilled category in the department;
that although Blackmon was a knife man, he "had been trying to butcher for 15
years, and he's one of the few persons that won't never be a butcher , a good one,
I mean. . . . He can do the job, but it 's so slow you can't put up with him. It
takes him too long"; that Bryant "was a partial knife man , but he was not a good
knife man, and he was bad absenteeism "; that Mauldin had the least seniority in
the department ; 28 that Wisham had "bad absenteeism"; that Hadley, Grant,
McElroy, and Cason were not knife men; 29 and that employee Hatcher, a knife
man, had "bad absenteeism."
The evidence shows that the employees mentioned above were hired on the fol-
lowing dates:
Jenkins --------------- 10-18 -54 Blackmon 7-11-55
Solomon 10-23-54 Wisham --------------- 8- 6-56
Mauldin --------------- 1-11-55 Hadley ---------------- 8- 8-56
Bryant - --------------- 9-27-55 Grant ----------------- 8-23-56
Hatcher --------------- 9-27-55 McElroy 11-29-56
Cason ------------------ 12-15-55
It is undisputed that the Company did not hire any new employees until all of
the laid-off employees had either been called back to work or offered reinstatement.
The evidence shows that the employees , named in the complaint , were rehired as
follows :
Blackmon ------------- 10-10-57 Solomon 6-25-57
Mauldin 7-30-57 Jenkins ------------- 6-24-5730
Bryant ---------------- 10- 7-57
The evidence establishes that by letter, dated October 6, 1957, and sent by certi-
fied mail , the Company offered immediate reinstatement to Wisham ; that the letter
n The evidence shows that employees H T Hadley and J. C. Hatcher , whose names had
been checked on the list, also were not laid off on June 3.
2 Mauldin testified that he worked in the sausage department as an "assistant foreman"
under Foreman Horne , and that he was transferred to the kill and cut department about
'6 weeks before June 3, 1957. The conversation between Blanchard and Horne on or
about May 26, which in part concerned Mauldin, has been related and found above
29 The names of the above employees were checked on the seniority list, but were not
included in the layoff.
20As noted above, Jenkins was laid off on June 14, 1957 . It is undisputed that
Ackerman protested Jenkins' layoff to Moore and Smith, and that as a result of this
protest Jenkins was reinstated as above with vacation pay for the time off from work.
LYKES BROS. INC. OF GEORGIA 633
was sent to Wisham at his last known address; and that his letter was returned to
the Company marked "unclaimed." I find this to be a valid offer of reinstatement.
Mauldin, Jenkins, Wisham, Bryant, Solomon, and Blackmon signed authorization
cards of United during April and May 1957. Bryant and Wisham signed dues
checkoff cards of the Amalgamated on May 27 and May 28, 1957, respectively.
During May 1957, McElvaine solicited Blackmon to sign a checkoff card of the
Amalgamated. Blackmon refused. About 1 week later McElvaine tried to pin an
Amalgamated button on him. Blackmon refused the button. About the last of
May 1957, McElvaine solicited Solomon to sign a checkoff card of the Amalgamated.
Solomon did not sign it.
During June, July, and August, 1957, the Company laid off a total of 65 employ-
ees. Of this number, 12 were laid off on June 3, all from the kill and cut depart-
ment. The Company contends that the evidence shows that it was not motivated
discriminatorily in selecting the employees for layoff since many of them, including
Bryant and Wisham, had signed checkoff cards of the Amalgamated before they
were laid off. I disagree.
The evidence conclusively shows that the Company actively opposed United's
campaign to organize the employees. Its interrogation of employees and threats of
reprisal have been related and found above. On the other hand, the Company, by
its supervisors and agents, supported the Amalgamated.
Carlton had knowledge of the employees who attended United's meeting on May
31.31 Although the Company contends that a tentative list of employees to be laid
off had been prepared weeks in advance of the actual layoff, by checking their names
on the seniority list, Carlton admitted that he made the final selection on June 3.
The employees who attended the meeting and whose names allegedly had been
checked, Blackmon, Wisham, Mauldin, and Bryant, were laid off. Solomon, whose
name was not checked, also was laid off. However, Hadley, Hatcher, McElroy,
Grant, Scott, and Cason who were not mentioned as having attended United's meet-
ing, and whose names also had been checked on the seniority list, were retained.
If, as the Company contends, seniority was taken into consideration, it would
appear that the selections should have been the other way around. As noted above,
each of the employees named in the complaint, except Mauldin on departmental
seniority, had greater seniority than some or all of the above employees who were
not laid off.
The Company contends that Solomon 's layoff was a "mistake ." I am unable to
believe this, considering the careful preparation that allegedly had been made for
the layoff. Further, since the department was operating with a short crew after
the layoff, it would appear that a good "knife man" would be missed immediately,
rather than after 3 weeks had passed.
In preparing for the layoff the Company apparently decided that Jenkins was a
necessary man for the short crew, since his name was not checked on the seniority
list. However, the Company changed its mind and laid him off 11 days later,
although no employee in the department had greater seniority than he. The reason
for this change is not explained.
Carlton testified that Bryant and Wisham were selected for layoff, in part, because
of "bad absenteeism." Bryant, called in rebuttal, denied such absenteeism. He
testified credibly and without contradiction that he had not been absent from work
"more than any average employee"; that early during his employment he was absent
"about three or four weeks" because of an operation; that aside from his operation,
during all of his employment, from September 1955 to June 3, 1957, he was absent
about 10 or 11 times; that he never received any warning about absences, and that
he was never absent without notifying Carlton. In this connection it is noteworthy
that Carlton testified that Hatcher also was guility of "bad absenteeism." If ab-
senteeism actually was a factor, why was Hatcher retained rather than Solomon, also
a knife man?
It is possible that, absent discriminatory motivation, one or more of the above
employees may have been selected for layoff, but I am unable to differentiate between
the cases . Accordingly, for all of the above reasons, I find that the Company
violated Section 8(a) (3) of the Act in selecting for layoff Mauldin, Jenkins, Bryant,
Blackmon, Wisham, and Solomon.
As found above, Ferguson told Carlton that Arlie Pate was at the meeting of
United on May 31, 1957. He was hired on October 10, 1956, and worked in the
curing cellar under Foreman Ward. Pate was laid off by the Company on June
7, 1957.
' While the evidence indicates that the Company engaged in illegal surveillance of the
above meeting , I do not believe it is sufficient to so find.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pate testified credibly that Ward "had gotten after me a few times about not
lkeeping up . . . too slow"; that about 3 months before his layoff Ward gave him
.a "warning slip" for "being slow" in his work; that on June 3, 1957, he received
.a "slip" notifying him of his layoff; that when he went to the office to get his check,
.Smith revoked the layoff order by calling Ward and telling him, "I didn't tell you
to let Pate off"; that he worked the rest of that week; that at Ackerman's request he
signed a checkoff card of the Amalgamated on May 27, 1957; that he signed an
authorization card of United about the middle of April 1957; that he also signed
an authorization card for the Moultrie local of the Amalgamated about the end of
April; and that he had one of the "lowest" rated jobs (unskilled) in the department.
Concerning the layoffs in the curing cellar, Ward testified, in substance, that "in
general" he selected the employees on the basis of seniority; that regardless of
seniority, he retained those employees in the unskilled or semiskilled classifications
if they had experience on the job; that seniority was applied separately for the night
and day shifts; that Pate was laid off because of a low standing or seniority; that
Pate was laid off "by mistake" (on June 3); that Pate did not lose any time because
Smith discovered the error; and that other employees who had less seniority than
Pate were retained because they had more experience.
The Company's records disclose that in the curing cellar employee Haire was
laid off on June 4 and that employees Posey, Hartsfield, Bryant, and Horne were
laid off on June 7. Of the above, Hartsfield and Bryant had more seniority than
Pate. The records also show that Pate had more seniority than at least six unskilled
employees who were retained, namely, Sandifer, Dickson, Norton, Smith, Walls,
and Jarrell.
By letter dated August 30, 1957, and sent by certified mail, the Company offered
Pate immediate reinstatement. The letter was returned to the Company marked
"refused." In this connection, Pate testified that he was away from Albany when
a "registered letter" arrived; that as soon as he returned to Albany he went to the
plant on a Saturday morning; and that a plant guard would not let him in or
"talk to nobody." Smith testified credibly that the plant was not operating on
Saturday during August and September 1957, and that the guard's instructions were
to admit no one to the plant on Saturday.
For the reasons set forth above in connection with the kill and cut department,
I find that the Company violated Section 8(a) (3) of the Act in the selection of Pate
for layoff on June 7, 1957. I also find that the Company made a valid offer of
reinstatement on August 30, 1957. Pate's testimony shows that he knew the mean-
ing of the "registered letter." Under the circumstances, he should have returned to
the plant again or at least made some other effort to notify the Company that he was
available for work.
O. G. Carlton, a cousin of Foreman J. C. Carlton, worked in the beef cooler
during all of his employment by the Company, from January 14, 1955, until his
layoff on Angust 27, 1957. He was recalled to work on October 9, 1957.
Carlton signed an authorization card of United about May 21, 1957. He attended
several of its meetings, including the one held on May 31, 1957. He also signed
an authorization card for the Moultrie local of the Amalgamated about April 1,
1957. He signed a checkoff card of the Amalgamated on June 7, 1957.32
Carlton testified credibly that "a few days" before his layoff he revoked the
authorization for checkoff of dues; that Ackerman "mailed [the revocation] in" for
him; that he had a conversation with Foreman Carlton about May 28; that Carlton
"said he wanted to see me the day before. He wanted to get me to sign one of
Mr. Ackerman's union cards; but at a meeting .. . the night before . . . he had
got enough signed"; that he told Carlton, "it wouldn't have done any good to talk
to me about it no way; I wouldn't of signed one of them"; that within 2 weeks of
his layoff he had another conversation with Foreman Carlton; that he told Carlton
that he would "vote for the CIO if they ever had an election"; and that "he told
me if I didn't like the job and the union they had why didn't I quit and go some, °
else and get a job." 33
Concerning his layoff on August 27, Carlton testified,
He [Smith] came in and gave me a [layoff] slip.. . He told me he was going
to have to let me go, what beef they killed from then on that J. O. Vaughn
s2 The testimony concerning Ackerman's solicitation of 'Carlton to sign a checkoff card
has been set forth above.
a9 Foreman Carlton denied the statements attributed to him by 0. G. Carlton His
denial is not credited.
LYKES BROS. INC. OF GEORGIA 635
and Bill Baxter would take care of, that J. O. Vaughn had more seniority than
I did. . He said they was going to stop killing boners [beef] or as many
bones as they had been killing.
Smith testified substantially the same as Carlton in this connection . He testified
that he told Carlton, "We're going to have to lay you off, because they're not getting
too much beef to bone now, and we can buy beef on the outside cheaper than we
can kill it and bone it here. . . . As soon as business picks up . . . we'll call you
back." Smith testified that Baxter returned to work (as beef salesman) in the beef
cooler the day before Carlton's layoff.
The Company adduced in evidence a record of cattle killed and boned during
1957. It shows that 75 cattle were boned during the week ending August 10, none
for the week ending August 17, 14 for the week ending August 24, and 8 for the week
ending August 31. It also shows that from January 1 to June 1 only 333/4 were
boned, and that 267 were boned from June 1 to August 3.
It has been found above that J. O. Vaughn worked in and was the foreman over
the freezer. In fact, the seniority list used for the kill and cut department has the
notation, "Freezer," after Vaughn's name. The Company's records show that C. E.
Willis worked in the beef cooler; that he was hired on September 5, 1957; and that
he was laid off on August 13, 1957.34
I find that the Company discriminatorily selected Carlton for layoff. The evidence
shows that Carlton was replaced by Vaughn. Therefore, it appears that an exception
was made in this case of the Company's alleged policy of seniority by department.
Further, as pointed out in the General Counsel's brief, although there was a sharp
drop in the number of beef boned at the time of Carlton's layoff, very few beef
were boned during the first 5 months of 1957. Carlton was not laid off at that time.
Carlton attended United's meeting held on May 31. Although it has not been
proved that the Company had knowledge of this, the conversation between O. G.
Carlton and Foreman Carlton remedies the defect. O. G. Carlton let Foreman
Carlton know without mincing words that he was a strong adherent of United. As
stated above, the record is replete with evidence showing that the Company had a
policy of actively opposing United and of supporting Amalgamated. In view of this
policy, it is noteworthy that Carlton was laid off some few days after he revoked his
authorization for checkoff of dues of Amalgamated. For the above reasons I am
of the opinion that the Company's economic defense is not sufficient to overcome the
prima facie case made out by the General Counsel.
D. The Amalgamated
Robert Ackerman is secretary-treasurer of Local 433. He was a signatory to the
contract between the parent corporation and Amalgamated, and handled the
maintenance and enforcement of the contract as it applied to the Company. During
the times mentioned herein he conducted union meetings on behalf of Amalgamated.
It is found that he acted as an agent of Amalgamated and of Local 433.
A meeting of Amalgamated was held for the Company's employees on May
27, 1957, at the wrestling arena in Albany. Ackerman presided at the meeting, at
which the contract was discussed and ratified.35 Employees T. E. Bryant, C. E.
Willis, and Arlie Pate did not attend the meeting, but talked to Ackerman when he
left the arena building. Bryant testified that Ackerman said,
Earl, . if it had not been for me, . . . you would have done been laid
off or fired. . . . Now, you can either get in or get out. . If you want to
make it hard on me, . . I can make it hard on you, . .. I'll have your
throwed out that gate.
Concerning the conversation with Ackerman, Pate testified,
When he spoke to me he said, "Pate, they tell me you're against me too." And
I said, "Yes, sir, and I still am." He says, "Okay, if that's the way you want it,
but I want to tell you this-" and he pointed his finger straight in my face:
"If you fight me, I'll fight you. And in the end I'll put your out the gate.
3'Willis testified that he was recalled to work sometime during the last part of
September.
ac Employee Henry W. Salter testified that Ackerman stated at the meeting, "Any man
that does not sign in my union will be fired " This statement was denied by Ackerman.
His denial is credited. Employees Williford and Blanchard testified to the effect that
Ackerman said that he could not "guarantee" their jobs; if they did not sign the checkoff
cards. Ackerman testified that be made a similar stab orient.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Either you join my union , become a part of it and work with us, or else you'll
go." ... I did hear him tell [Bryant] if it hadn't of been for him Earl would
have been discharged.
Willis testified that Ackerman said,
Pate . . . you and Bryant pulled against me and . you-all made it hard
going. . . . If you are going to fight against me, I'll fight you. . . I already
got the contract. It's all sealed. . The best thing for you to do now is to
join up and go along with us, or in the end I'll throw you out the gate.
Ackerman denied the statements attributed to him by Bryant, Pate, and Willis.
He admitted that he had a conversation with Bryant and Pate, but testified that he
had never met or seen them before. He testified, in substance, that when he left
the arena he was called over to a group of men by a representative of Amalgamated;
that he then was introduced to Bryant and Pate; that after he explained the seniority
provision of the contract to them, Bryant said, "Oh, it's a lousy contract"; that when
a representative of Amalgamated from Moultrie stated that Ackerman had obtained
a "good contract" and urged Pate and Bryant to "join up," Bryant said, "I don't
want to sign up"; that he (Ackerman) said, "Well, if you don't want to sign up,
don't, because when you do sign up I expect that you will give me your full co-
operation and your full loyalty"; that Bryant then said, "Well, I may sign a card,
but I won't lift a finger on the inside to help you"; that he replied, "That's all right,
but, by the same token, I'll expect that you won't do nothing to hurt us, because if
you hurt us you are not hurting me you are hurting yourself, because you are the
Union"; and that Bryant and Pate then signed checkoff cards and shook hands with
him 36
L credit the above testimony of Bryant, Pate, and Willis, and find that Ackerman's
threat of discharge was violative of Section 8(b) (1) (A) of the Act.
Henry W. Salter testified credibly that "about maybe a week or two weeks"
after May 27 he and some other employees, including W. W. Mauldin, had a con-
versation with Ackerman in front of the Company's plant; and that after a dis-
cussion of union matters Ackerman said "that if he caught any man going up to
the hotel to see the CIO man that he would be fired." Mauldin testified credibly
that Ackerman, referring to some employees who were leaving the plant at the
time, said, "Some of thems going up to the hotel to see that CIO man.. . If
I catch them up there, . I'm going to have them fired." Ackerman denied
the statements attributed to him by Mauldin and Salter. His denials are not credited,
and I find that his statement is violative of Section 8(b)(1) (A) of the Act.
Employee Horace Salter testified to the effect that he was a steward for the
Amalgamated until about October 1957; that in the presence of Smith he told
Ackerman that he was going to withdraw from the Amalgamated and would no
longer act as steward; and that about a week later when he was transferred by
management to a different job, Ackerman came to him while he was working and
engaged in an argument. In this connection Salter testified,
So I went up to the chill room and pulled out some bacon. Ackerman came
in. . . He saw me up there, and he came running up there where I was at,
and said, "Who put you in here?" I said the management. He said, "I'll get
your out of here," and he started running upstairs. He was gone a few
minutes and came back and had Mr. Ward with him. They stood over and
talked a little bit. Mr. Ward ran out. Ackerman came over to where I was at.
I asked him what was he going to fire me for . . . and he said, "I'm the big
boy. I'm telling you, male or female, I'll fire your if you tear down my
union. It took me 13 years to build it, and you're not going to tear it down " 37
About that time Ward came back. . . . He had me moved out to ham, pumping
ham to ham grading. He [Ackerman] told me, says, "All I'm going to tell
you, . . . I'm going to fire your I want to see Flanagan get
your job back. . . The Company's been wanting to fire you for a
long time, . I've been holding you . . . I'm going to let them fire you now.
You just make one bobo, and your is gone " So I started out
the door, and he followed me every step of the way, cussing me and telling me he
was going to fire my until he got out the door. He stonoed and says,
"I've got affidavits from male and female saying that I [Salter] threatened their
jobs too if they did not come out of the [Amalgamated]."
ae Louis Judge, an organizer of the Amalgamated, and Mario Cobrera, business agent
of Local 433, testified substantially the same as Ackerman concerning the above incident.
17 Salter testified during cross-examination that while he was a steward for Amal-
gamated he went to some meetings of United.
LYKES BROS. INC. OF GEORGIA 637
Ackerman denied the statements attributed to him by Salter. He testified, in sub-
stance, that his conversation with Salter was concerned for the most part with a
violation of the seniority provision of the contract. I credit the above testimony of
Salter, and find that Ackerman's conduct and statements constitute a violation of
Section 8 (b) (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company and Amalgamated set forth in section III, above,
which occurred in connection with the operations of the Company set forth in
section I , above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Company, the Amalgamated, Local 433, and
Robert Ackerman have engaged in unfair labor practices, it will be recommended
that each of them desist therefrom and take certain affirmative action, including the
posting and distribution of appropriate notices, designed to effectuate the policies of
the Act.
It has been found that the Company discriminatorily laid off Leroy Blackmon,
T. Earl Brylant, L. C. Mauldin, Arlie J. Pate, Clem Wisham, O. G. Carlton, Lee
Jenkins, and Benjamin Solomon. Therefore, it is recommended that the Respondent
make whole said employees for any loss of pay they may have suffered by reason
of the Company's discrimination by payment of a sum of money to each employee
equal to that which he would have earned as wages from the date of the discrimina-
tion to the date of reinstatement, or to the date of an offer of reinstatement as in
the cases of Wisham and Pate, less his net earnings during such period, the loss of
pay to be computed on a quarterly basis in accordance with the formula adopted by
the Board in F. W. Woolworth Company, 90 NLRB 289.
It has been found that both the Company and Amalgamated unlawfully coerced
certain employees to authorize the checkoff of union dues from their wages. Accord-
ingly, it will be recommended that the Company and Amalgamated, jointly and
severally, reimburse all employees for all such dues paid.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Amalgamated, Local 433, and United are labor organizations within the mean-
ing of Section 2(5) of the Act.
2. By discriminating against Leroy Blackmon, T. Earl Bryant, L. C. Mauldin,
Arlie J. Pate, Clem Wisham, O. G. Carlton, Lee Jenkins, and Benjamin Solomon,
the Company has engaged in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
3. By soliciting employees to authorize the checkoff of Amalgamated's dues, the
Company has rendered, assistance and support to Amalgamated and thereby has
engaged in unfair labor practices within the meaning of Section 8 (a) (2) and (1) of
the Act.
4. By interfering with, resti'@ining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Company has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
5. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, Amalgamated has engaged in unfair labor practices within
the meaning of Section 8(b) (1) (A) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.?
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
On November 25, 1958, the duly designated Trial Examiner issued his Intermediate
Report in the above-entitled proceeding. On April 9, 1959, the Board issued an order
directing, in part, that the record be reopened and that a further hearing be held
before the same Trial Examiner "for the purpose of (1) permitting the General
Counsel to amend the complaint to add Lykes Bros. Inc. as a party Respondent;
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) permitting the parties to introduce evidence relevant to the issues raised by
paragraphs 5 and 6 (e) of the complaint, and when the complaint is amended as
aforesaid, to said amendment; and (3) permitting the parties to introduce evidence
relating to the physical arrangements at the hearing, insofar as they bear on the Trial
Examiner's opportunity to observe the witnesses."
Pursuant to notice, a hearing was held before the Trial Examiner at Albany,
Georgia, on September 1, 1959. At the opening of the hearing the General Counsel
moved to amend the complaint so as to include Lykes Bros. Inc. as a party Respond-
ent. Following the above order of the Board, the Trial Examiner granted the
motion. The General Counsel also moved "to withdraw from the complaint, the
allegations of paragraphs 5 and 6 (e)." The motion was granted over United's
objection. At the conclusion of the hearing counsel for the Respondent Unions
and the Respondent Companies moved to dismiss the amended complaint insofar as
it relates to Lykes Bros. Inc. Ruling was reserved. The motion to dismiss is hereby
denied.
After the conclusion of the hearing, the General Counsel and the Respondent
Companies filed briefs with the Trial Examiner. The Respondent Companies also
filed a motion to correct the official transcript of record. Since none of the parties
have objected to said motion, it is granted and the record hereby is corrected in
accordance with the motion, which is received in evidence and marked as Trial
Examiner's Exhibit No. A.
Physical Arrangements at Hearing
The Respondent Companies called as witnesses J. D. Browne and John A. Curtiss,
both attorneys. Browne testified, in substance, that while the hearing was held in
the Dougherty County courthouse the witnesses "consistently" sat about 1 foot in
front of the judge's bench and to the left of the position occupied by the Trial
Examiner on the bench, "facing away from the Judge's bench"; that "the witnesses
. were tilted back in their chairs at times during the proceedings and resting their
heads on the back of the chair [sic] in front of the Judges bench"; and that "It is
my opinion that the Trial Examiner could not consistently witness the face of the
witnesses as they gave their testimony during these proceedings while I was present
to observe." Curtiss testified that he was present at the hearing from May 20 through
May 23; and that according to his recollection the witnesses "generally sat either
in front or to [the Trial Examiner's] right." As to the Trial Examiner's ability to
observe the witnesses, Curtiss testified,
My observation or recollection is that he had very limited opportunity to
examine the face of any of the witnesses that testified while I was in attendance
there, because as I say, the witnesses had their backs to the Trial Examiner and
most of the time the witnesess were so close to the bench that the Trial Ex-
aminer could not have seen even a part of the tops of their heads. Many times
the witnesses actually rested their chair against the bench with their back resting
against the vertical face of that bench, and my recollection is further strengthened
by my observation of that courtroom this morning. I sat in a witness chair
this morning and Mr. Browne measured the distance from the top of my head
to the top of the bench and my recollection is that it was about 9 inches. So
when those witnesses were leaning up against the bench, I do not believe that
even the tops of their heads were visible.
The undisputed measurements show that the judge's bench is 21/2 feet wide; that
the top of the bench is 4 feet 9 inches above the courtroom floor; and that the top
of the bench is 2 feet, 61/2 inches above the floor of the platform in back of the bench.
According to the Trial Examiner's best recollection, the first witness at the original
hearing in the county courthouse occupied the regular space provided for witnesses,
which was on the bench and to the Trial Examiner's left. Due to the noise of an
air-conditioning motor or fan, all counsel complained that they were unable to hear
the witness. In order to suit the convenience of counsel, the Trial Examiner left it
to counsel as to where the witnesses should sit so that they could best be observed
and heard. In accordance with this arrangement the position of the witness chair
was changed at least once thereafter. All of the witnesses sat to the Trial Ex-
aminer's left and sufficiently in front of the bench so that they could be observed to
his satisfaction. Unfortunately, the colloquy concerning these arrangements was
"off the record" since none of the parties at the time or thereafter objected.
I am sure that both Browne and Curtiss testified to the best of their recollection.
However, it is to be noted that their recollections differ as to whether the witnesses
sat to the right or the left of the Trial Examiner. It is possible that my recollection
AMERICAN LINEN SUPPLY CO., ET AL. 639
also is faulty . I did not take any particular note of the position of the witnesses,
especially since no objection was raised at the time. I am sure however , that I was
able to and did observe the witnesses when necessary . At all hearings I take notes
as to my observations of the witnesses , as I did in this case. Since these notes were
destroyed upon completion of my Intermediate Report, I have no specific recol-
lection of any individual witnesses with one exception . This exception, whom I am
sure all counsel will recall, had a pronounced southern accent and was somewhat of
a comedian . During his testimony I was required to interrupt several times with an
"off the record" until the laughter subsided. This witness was one of those who sat
in front of the judge's bench. I have no recollection as to the number of feet he
sat away from the bench, but I definitely recollect observing not only his face but
most of his body. I recall that he appeared nervous as a witness and was constantly
shifting his position in the witness chair.
RECOMMENDATIONS
The General Counsel urges in his brief that the remedial order in addition to that
previously recommended in my Intermediate Report, should "include the directive
that Respondent Employer cease maintaining and enforcing the contract with Re-
spondent Unions . should provide affirmatively that the Respondent Employer
withdraw and withhold recognition of Respondent Unions until they `shall have
demonstrated [ their] exclusive majority status pursuant to a Board conducted elec-
tion ' " In view of the Board's order reversing the Trial Examiner , I agree with the
General Counsel insofar as the above directive applies to the operations of Re-
spondent Lykes Bros. Inc. of Georgia, and so recommend . With this exception, I
find no reason for changing any of the findings of fact, conclusions of law, and
recommendations as set forth in my Intermediate Report dated November 25, 1958.
American Linen Supply Co., et al. and Laundry and Dry Clean-
ers International Union, Local 361. Case No. AO-12. August
1 2, 1960
ADVISORY OPINION
This case is before the Board upon a petition filed by Laundry and
Dry Cleaners International Union, Local 361 (herein called Local
361), under the provisions of Section 102.98 of the Board's Rules and
Regulations, for an advisory opinion.
A. Succinctly stated, said petition alleges the following :
1. Laundry and Dry Cleaners Section of Retail Clerks, Local 1116
(herein called Local 1116), has filed seven petitions for representation
and certification with the State of Minnesota, Division of Concilia-
tion, and five similar petitions with the State of Wisconsin Employ-
ment Relations Board, "involving the various employers named in
paragraph II." Said paragraph II names 12 employers, 6 of whom
are located in Duluth, Minnesota, 5 in Superior, Wisconsin, and 1 in
Cloquet, Minnesota, and also refers to General Drivers Union, Local
288 (herein called Local 288) as a party to the State proceedings.
2. The general nature of the business involved in the State board
proceedings is the laundry and dry cleaning industry in Duluth,
Minnesota , and Superior, Wisconsin.
3. At the present time the various laundry and dry cleaner em-
ployers located in Duluth and Superior have a collective -bargaining
128 NLRB No. 85.