McGough Bakeries Corp.

National Labor Relations Board - Board Decisions

Oct 10, 1944

58 N.L.R.B. 849 (N.L.R.B. 1944)

In the Matter of MCGOUGH BAKERIES CORPORATION and UNITED BAKERY
WORKERS LOCAL UNION No. 441 OF ALABAMA, AFFILIATED WITH THE
C. I. O. and SOUTHERN BIKERS EMPLOYEES, INC. AND BIRMINGHAM
CHAPTER No. 1 OF THE SOUTHERN BAKERS EMPLOYEES , INC., AFFIL-
IATED WITH SOUTHERN BAKERS EMPLOYEES, INC., PARTY TO THE
CONTRACT
Case No. 10-C-1328.Decided October 10, 19414
DECISION
AND
ORDER
On March 11, 1944, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it (;ease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
annexed hereto. Thereafter, the respondent and counsel for the Board
- filed exceptions to the Intermediate Report and briefs. The Board
has considered the rulings made by the Trial Examiner at the hearing
and finds that no prejudicial error was committed. The rulings are
hereby affirmed.
Pursuant to notice and at the request of the respondent, a lle^ring
for the purpose of oral argument was held before the Board at Wash-
ington, D. C., on June 8, 1944. The respondent appeared and partici-
pated in the argument; the Union and the Independent, a labor organ-
ization alleged in the complaint to be company-dominated, did not
appear.
The Board has considered the Intermediate Report, the exceptions
and briefs filed by the respondent and by counsel for the Board, and
the entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, except insofar as they
are inconsistent with our findings, conclusions, and order hereinafter,
set forth.
1. The Trial Examiner has found that on February 8, 1942, the date
the respondent first accorded recognition to the Union, and at all times
thereafter, the Union represented a majority of the respondent's em-
58 N. L. R. B., No. 168.
849
591-45-vol. 58-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in an appropriate unit and that, by violating the terms of their
existing closed-shop agreement and by refusing to meet to negotiate
a new contract with the Union, the respondent unlawfully refused to
bargain collectively with the Union at all times after February 23,
1943. 'We are unable to conclude that, under the circumstances herein-
after set forth, the Union represented a majority of the employees at
any time material herein.
The Union began its most recent organizing campaign at the re-
spondent's plant in the late summer of 1941, and thereafter an undis-
closed number of employees signed union membership applications.
On December 2, 1941, the respondent was advised by the Union that
it represented a majority of the employees, and the Union requested a
bargaining conference. The respondent questioned the Union's repre-
sentation claim and suggested that an election be conducted by the
Board. On December 16, 1941, the Union filed with the Board a repre-
sentation petition alleging, among other things, that the' respondent's
production and maintenance employees, exclusive of salesmen and
clerical' employees, constituted an appropriate unit and that the re-
spondent had agreed to a consent election among such employees.
However, an investigation by a Board Field Examiner disclosed that
the respondent and the Union were not in agreement as to the scope of
the unit.' On the basis of its administrative investigation, the Board
dismissed the Union's petition, without hearing, on December 31, 1941.
Thereafter, in the middle of January 1942, following' further un-
successful efforts by the parties to agree upon a bargaining unit as a
basis fora consent election, the Union notified the respondent of pos-
sible strike action. On the night of February 7, 1942, the Union called
a strike and established a large picket line at the entrance to the re=
spondent's plant. As a result the second shift did not enter the plant
and all baking operations were suspended. The Union proposed that
the respondent immediately recognize the Union as the exclusive rep-
resentative of the employees and agree to negotiate an exclusive bar-
gaining contract with the Union, and insisted upon acquiescence in its
proposal as the price for termination of the strike. In the early morn-
ing of February 8, the respondent reluctantly capitulated to the
Union's demands so that production could be resumed at the plant.
On February 10, the respondent and the Union entered into a closed-
shop contract for a term of about 3 months.
Meanwhile, at about the time the closed-shop-contract was concluded,
several employees, who were later promoted to supervisory positions,
started an anti-union movement in the plant with the respondent's
knowledge and approval and had a substantial number of employees
1 The Union desired to include salesmen in the unit and the respondent desired to exclude
them.
McGOUGH BAKERIES CORPORATION 851
sign petitions stating that they did not desire to be represented by the
Union. As mentioned below, on two occasions in February 1942, the
respondent wrote the Regional Director, calling attention to the events
leading up to the execution of the contract and the existence of the
employee petitions, and requesting an election for its employees.
Again in April 1942, shortly before the expiration of the February 10
contract, the sponsors of the anti-union movement obtained the sig-
natures of a substantial number of employees to other anti-union peti-
tions. These petitions were given to the respondent, who forwarded
them to the Regional Director in support of its further request for an
election, mentioned below. The Regional Director replied that since
there was only one labor organization involved, no action could be
taken on the respondent's request for an election. Thereupon, on May
13, 1942, the respondent and the Union concluded a second closed-shop
agreement, which was to expire on May 10, 1943.
Thereafter, the respondent dealt with the Union under the terms of
their agreement until February 1943, when the sponsors of the anti-
union movement in the plant formed the Independent, a company.
dominated labor organization, as found in the Intermediate Report.
immediately after its formation, the Independent requested the re-
spondent for exclusive bargaining rights; the respondent did not then
accede to the Independent's request, but suggested that it file a repre-
sentation petition with the Board. On March 5, 1943, the Independ-
ent filed such a petition, and several days later the Union filed herein
the original charge of domination with respect to the Independent.
Thereafter, the respondent, for reasons set forth below, properly re-
fused to bargain with the Union with regard to a renewal of their
closed-shop contract, which was about to expire. However, on May
15, 1943, shortly after the expiration of the Union's closed-shop con-
tract, notwithstanding the pendency of the afore-mentioned represen-
tation petition and unfair labor practice charge, the respondent, hast-
ily and without requiring proof of the Independent's alleged majority
status,' entered into an illegal closed-shop agreement with the Inde-
pendent, as found in the Intermediate Report. Thereafter, as the Trial
Examiner found, the respondent enforced the closed-shop provision
of its contract with the Independent and unlawfully discharged 10
employees, at the request of the Independent, for refusing to remain
members in good standing with the Independent by payment of dues.
It also appears, as found in the Interniediate Report, that in May and
2 At the hearing the Independent offered documentary evidence indicating that at the
time of the execution of its contract with the respondent, a majority of the employees in
the unit had joined the Independent. However, the record shows that at that time a
substantial number of the same employees were also Inembers of the Union. In view of the
showing of dual membership among the respondent's employees, there is no substantial
basis for finding that even a numerical majority of the employees had selected the Inde-
pendent as their exclusive representative.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 1943, the respondent discriminatorily discharged 4 members of
the Union because of their union activity, and; in December 1943,
unlawfully discharged another employee because he had testified
against the respondent in the instant proceeding.
The Trial Examiner based his finding that the Union represented
a majority as of February 8, 1942, on (a)- general testimony of Frank
Parker, a union organizer, that on February 7 and 8, 1942, the Union
represented a majority of the employees in the appropriate unit; (b)
the respondent's recognition of the Union as majority representative,
accorded on February 8 and 9, 1942; (c) a letter of the respondent,
dated May 4, 1942, stating "... the majority desired the C. I. O. at
the time when the original contract was entered into," namely, Feb-
ruary 10, 1942; and (d) the alleged fact that the respondent failed
to question the Union's status as majority representative until more
than a year had elapsed from the date of the execution of the respond-
ents' first contract with the Union.
The record is inconclusive as to the Union's representative status
upon the termination of the strike on February 8, 1942, when the
respondent consented to recognize the Union. At the hearing, Or-
ganizer Parker at first testified that he had no independent recollection
of the number of union members among the respondent's employees as
of February 8, 1942, and agreed to consult the Union's records for such
information; later recalled, he testified that membership applications
signed by employees prior to February 8 had been' lost or mislaid, but
nevertheless stated that the Union had then represented a majority
of the respondent's employees. Thus Parker's conclusion as to the
Union's alleged majority status is without, adequate foundation and
lacks probative weight." It is also significant that at the conference
on February 8, Just prior to termination of the strike, the respondent
questioned the Union's majority status and the Union failed to pro-
duce documentary evidence of its alleged majority. Indeed, McGough,
president of the respondent, testified without contradiction that
shortly after the respondent had contracted with the Union, he was
told by employee Cabaniss, then president of the Union, that of ap-
proximately 65 employees in the unit, the Union had 14 members.
We are also unable to attach controlling significance to the fact that
the respondent accorded exclusive recognition to the Union in Febru-
ary 1942. The Union established its picket line at the respondent's
plant about 6:30 p. in. on Saturday, February 7, when no one was at
work. A dough mixer was scheduled to report at 7 p. m., and the
3 In addition, counsel for the Board offered, and the Trial Examiner rejected, a document
purporting to be a union designation petition bearing the nanies'of-33 employees, a bare
majority. Not more than 15 or 20 of the signatures were authenticated, and there was no
showing that the 33 signatures were obtained prior to the execution of the closed-shop
contract The Trial Examiner's ruling excluding the petition from evidence is hereby
affirmed.
McGOUGH BAKERIES CORPORATION 853
balance of the shift of about 15 persons at about midnight. None
of these employees entered the plant during the strike. Estimates
by witnesses of the total number of persons, including employees of
the respondent and employees of other baking concerns who partici-
pated in the demonstration, varied from 25 to 400. In our opinion, the
Union's striking and picketing activity did not conclusively settle the
existing question concerning representation of the respondent's em-
ployees. The 'failure of those employees who were 'scheduled to work
fob' the respondent during the brief period of the strike, to cross the
picket line in front of the plant entrance does not necessarily mean
that. their participation in the strike indicated selection of the Union
as their collective bargaining representative. Employees may, and
frequently do, refuse to cross picket lines for reasons wholly unrelated
to the merits of the particular labor dispute involved or to union
membership and preference; often, for example, they are motivated
by fear of personal violence, social ostracism, or being termed "scabs."
Thus, in situations in which a union does not choose to use the pro-
cedure provided by the Act for determination of questions concerning
representation by the Board, the fact that such a labor organization
succeeds through strike action to compel recognition may not be con-
clusive as to whether a majority of the employees in an appropriate
unit desire representation by the sponsor of the strike.4 In the instant
case, it is not possible to determine from the record how- many of the
respondent's 65 employees participated in the picketing; nor can it
be ascertained. in the state of the record, whether the inability of the
respondent to induce employees during the strike to work is traceable
to adherence to the Union, to their intoxication,, or to effectiveness
of the picket line. At the conference-on the morning of February 8,
when the respondent questioned the Union's majority status, the union
representative -replied : ". . . you don't see your plant operating . .
your employees are outside the plant . . ." The respondent pro-
posed the termination of the strike and the holding of an election to
resolve the question of representation. The Union rejected the pro-
posal and demanded exclusive recognition as a condition to resumption
of plant operation.6 Having in the interim unsuccessfully implored
individual employees to resume production, the respondent thereupon
agreed to recognize the Union as the exclusive representative of the
employees, and thereafter the respondent and the Union signed the
closed-shop contract of February 10, 1942. President McGough testi-
fied that he did not believe that the Union then commanded a majority
+ Of. Matter of Solvay Process Company , 47 N L R . B. 1113
6 The Union had its strike headquarters at a tavern near the respondent ' s plant A num-
ber of'the pickets partook of intoxicating beverages and several pickets were drunk during
the strike.
6 The respondent refused to agree to a counterproposal made by the Union that an
"immediate" election be held during the course of the strike.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that he acceded to the Union's demand for recognition in order
to restore plant operations. Under the circumstances, we conclude
that the recognition agreement of February 8 and the closed-shop
contract of February 10 were the products of economic pressure exerted
by the Union and that they do not establish that the Union represented
a majority of the employees in the appropriate unit.
Indeed, contrary to the Trial Examiner's finding, the, respondent
questioned the Union's representative status, and requested that an
election be held to resolve the question of representation. Thus, on
February 10, the date of the execution of the closed-shop contract, the
respondent, in a letter to the Board's Regional Director, complained of
the Union's exertion of pressure, and, in effect, challenged the Union's
claim to majority status, and requested an election. On February 25,
the respondent notified the Regional Director by letter that the
respondent had surrendered to the Union on February 8 in order to
restore plant operations. Again, in May 1942, shortly before the ex-
piration of the first closed-shop contract, the respondent's attorney
questioned the Union's representative status and requested that -an
election be held before the conduct of negotiations with the Union for a
new contract. Finally, on May 7, 1942, in a telegram to the Board, the
respondent stated, among other things, that the employees had re-
pudiated the Union and that the Union had refused to consent to an
election. It is clear therefore that the respondent had not acquiesced-
in the Union's claim to majority status because of any real belief that
the Union commanded a majority.
The sole remaining basis for the Trial Examiner's finding that in
February 1942, the Union had attained majority status, is the state-
ment contained in a letter, dated-May 4, 1942, from the respondent's
attorney to the Board's Regional Director stating : "It was apparent
that the majority desired the C. I. O. at the time wlien the original
contract was entered into. It is apparent now that the majority,object
to the C. I. O. serving longer as their bargaining agent with reference
to the new proposed contract." We are of the opinion that such an
admission, standing alone, is insufficient to establish that the Union
represented a majority of the respondent's employees in February
1942, particularly in view of the fact that the statement was made at a
time when the Union's representative status, as of February 1942, was
not in issue. Under all the circumstances, we are doubtful whether on
February 9, 1942, or at any time thereafter, the Union represented a
majority of the respondent's employees in the appropriate unit. At the
time of the alleged refusal to bargain in February 1943, the respond-
ent's pay roll, as compared to that a year prior thereto, had undergone
a turn-over of approximately 50 percent. Because of the intervening
agreements requiring membership in• the Union as a condition of enI-
McGOUGH BAKERIES CORPORATION 855
ployment,' any bargaining authorization obtained by the Union dur-
ing the life of such agreements cannot be regarded as a free and
uncoerced selection of representatives contemplated by Section 9 (a)
of the Act, and, consequently, such designations cannot serve 1 o au-
thorize the Union to act as the employees' exclusive representative in
1,943, when the alleged refusal to bargain occurred.8 We shall, accord-
ingly, dismiss the complaint insofar as it alleges that the respondent
refused to bargain within the meaning of Section 8 (5) of the Act.
2. We are also of the opinion that, under the circumstances of
this case, the respondent should be ordered to reimburse each employee
for dues paid by him to the Independent since May 15, 1943. On that
date, as found in the Intermediate Report, the respondent executed an
illegal closed-shop contract with the Independent, a dominated labor
organization, thus requiring all employees as a condition of employ-
ment to become and remain members of the Independent. There-
after, the respondent insisted that its employees remain in good
standing with the Independent by payment of dues, and a number
of employees were discharged, pursuant to the closed-shop provision,
for their failure to do so. This arrangement, a device by which the
respondent assured the financial stability of the illegal organization,
gave the employees no choice, other than payment of dues to the
Independent, if they desired to continue in the respondent's employ.
We find that the payment of dues to the Independent was in effect
just as compulsory as membership therein, constituted the price of
retaining employment, and was coerced from the employees for
the purpose of supporting the Independent and thwarting the Union.
The money, which the respondent thus caused the employees to pay
the Independent to fulfill the respondent's illegal condition of em-
ployment, was a definite financial loss to them. It is appropriate that
the employees be-made whole by reimbursement of amounts thus ex-
acted from them for illegal purposes. Under the circumstances, we
find that the effects of the unfair labor practices may be fully remedied
and the purposes and policies of the Act may be completely effectuated
only by restoring the status quo, and we shall accordingly order the
respondent to reimburse its employees for the amounts paid by them
to the Independent in dues and assessments during the life of the
Independent's closed-shop contract.9
' The contract of February 10, 1942, was renewed in May 1942 The May 1942 contract,
which was to expire in May 1943 , also contained a closed -shop clause
8 Apart from the fact that the respondent operated tinder a closed-shop contract with
the Union and that employees paid membership dues to that organization , there was in-
troduced no evidence , written or otherwise , as to the employees' desire in 1943 that the
Union act as their bargaining representative.
9 See N. L R B. v. Baltimore Transit Company , 140 F ( 2d) 51 (C C. A. 4), enf'g as mod.
47 N. L R . B 109; Matter of Vitginia Electric and Power Company and Transportation
Workers Union of America , 44 N. L. R. B 404 , 436, ettf ' d 132 F ( 2d) 390 , aff'd 319 U. S 533.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Trial Examiner has found , and we agree , that the respond-
ent has discriminated in regard to the hire and tenure of employment
of 14 named employees , within the meaning of Section 8 (3) of the Act.
In accordance with our usual remedy for such violations , the Trial
Examiner recommended that the respondent be required to offer Will
Harrison , Rupert Mullally, Willie Mills, and Henry Mamon, among
others, immediate reinstatement with back pay from the date of the
respective discrimination against them to the date of offer of rein-
statement . However , at the hearing all the above -named employees
testified to the effect that they would be unwilling to accept an offer
of reinstatement unless the respondent recognized the Union as their
bargaining representative . In the light of their testimony , and for
reasons which impel our policy of denying strikers back pay while
out on strike and until they make unconditional application for work,
we believe that it will best effectuate the purposes of the Act to con-
dition the respondent 's offer of reinstatement to Harrison , Mullally,
Mills, and Mamon,10 upon their application for work and to suspend
the accrual of their back pay from the date they testified to the date
of application for reinstatement ."' In addition , we shall not require
the respondent to pay Mills back pay from September 30, 1943, to
October 8 , 1943, since it appears , as set forth in the Intermediate
Report, that during said period Mills in effect engaged in a strike
against the respondent 's unfair labor practices by voluntarily refusing
to work after he had complied with the respondent 's requirement that
he pay dues to the Independent ., We shall accordingly award back
pay to Mills," Mullally, and Mamon from September 28, 1943, and to
Harrison from May 8, 1943 , to the date they testified at the hearing,
and, in the event of a refusal of reinstatement after application there-
for, we shall award additional back pay to said employees during the
period from five (5 ) days after the date of such application to the
date of the offer of reinstatement . The Trial Examiner also recom-
mended reinstatement with back pay for James H. Prevo and Albert
Means. These two employees testified at the hearing that they were
satisfied with their present jobs elsewhere and that they did not desire
reinstatement . We shall accordingly not order their reinstatement,
and shall order back pay for them limited to the period from May48,
1943 , to the date they obtained the jobs which they had at the time
of the hearing . We adopt the Trial Examiner 's recommendation as
to the five employees who have been reinstated and shall accordingly
order back pay for them 'from September 28, 1943, the date of discrim-
ination, to the date of offer of reinstatement .13 No reason appears for
'10 These four employees are listed in Appendix C hereto.
11 See Matter of Hemp d Company etc., 9 N. L R. B. 449, 461.
12 Except for the limitation as to Mills noted above
11 The names of these five employees , Richard Ott, Frank Acey , Jr, Tom Duncan , Charles A,
Stone, and Tommy Butera , are listed in Appendix B hereto.
McGOUGH BAKERIES CORPORATION - 857
varying our usual remedy with respect to the remaining three em-
ployees,14 and we shall order their reinstatement with back pay from
the date of their respective discrimination to the date of offer of
reinstatement, as recommended by the Trial Examiner. Ed Bailie
was discharged in violation of Section 8 (4) of the Act, as, the Trial
Ex:lininer found, as well as in violation of Section 8 (3) of the Act.
We shall also order his reinstatement with back pay from December
6, 1943, the date of discrimination, to the date of offer of reinstate-
ment, as recommended by the Trial Examiner.
4. We find that the aforesaid unfair labor practices are unfair labor
practices affecting commerce, within the meaning of Section 2 (6)
and (7) of the Act.15
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, McGough Bakeries Corpo-
ration, Birmingham, Alabama, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Southern
Bakers Employees, Inc., and Birmingham Chapter No. 1 of Southern
Bakers Employees, Inc., affiliated with Southern Bakers Employees,
Inc., and each of them, or with the formation and administration of
any other labor organization of its employees, and from contributing
support to any such organization;
(b) Recognizing Southern Bakers Employees, Inc., and Birming-
ham Chapter No. 1 of Southern Bakers Employees, Inc., affiliated with
Southern Bakers Employees, Inc., or either of them, as the repre-
sentative of any of its employees for the purposes of dealing with the
respondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment;
(c) Giving effect to the contract of May 15, 1943, with Birmingham
Chapter No. 1 of Southern Bakers Employees, Inc., affiliated with
Southern Bakers Employees, Inc., or to any extension, renewal, modi-
fication, or supplement thereof, or to any superseding contract with
said organization which may now be in force;
(d) Discouraging membership in United Bakery Workers Local
Union No. 441, of Alabama, affiliated with the C. I. 0., or in any other
labor organization of its employees, by discharging its employees or in
any other manner discriminating in regard to their hire or-tenure of
employment or any term or condition of employment;
]{ The names of these three employees , Hubert Greene, Walter Turner, and H A. McGowan,
are listed in Appendix A hereto.
15 The Trial Examiner inadvertently omitted to state this formal conclusion of law in his
Intermediate Report.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Discharging any of its employees or otherwise' discriminating
against them, because they give testimony under the Act;
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist United Bakery Workers Local Union No. 441, of Ala-
bama, affiliated with the C. I. 0., or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid and protection, as guaranteed in Sec-
tion 7 of the Act. -
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Withdraw all recognition from Southern Bakers Employees,
Inc., and Birmingham Chapter No. 1 of Southern Bakers Employees,
Inc.. affiliated with Southern Bakers Employees, Inc., and each of them,
as the representative of any of its employees for the purposes of deal-
ing with the respondent concerning grievances, labor disputes, wages,
rates of'pay, hours of employment, or other conditions of employnmenti
and completely disestablish said labor organizations, and each of them,
as said representative;
(b) Offer to Ed Baine and those employees whose names are listed
in Appendix A hereto and, upon application, offer to those employees
whose names are listed in Appendix C hereto, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
(c) Make whole Ed Baine, James H. Prevo, Albert Means, and the
employees listed in Appendices A, B, and C, hereto, for any loss of
-pay they may have suffered because of the respondent's discrimina-
tion against them, by payment to each of them of a sum of money
equal to the amount he normally would have earned as wages during
the applicable'period or periods, as the case may be, hereinabove set
forth, less his net earnings during such period or periods;
(d) Reimburse each of its employees for all dues and assessments,
if any, paid by hi±n to Southern Bakers Employees, Inc., and Birming-
ham Chapter No. 1 of Southern Bakers Employees, Inc., or to either,
since May 15, 1943;
(e) Post immediately in conspicuous places throughout its Birming-
ham, Alabama, plant, and maintain for a period of at least sixty (60)
consecutive days, notices to its employees stating: (1) that the re-
spondent will not engage in the conduct from which it is ordered to
cease and desist in paragraphs 1 (a), (b), (c), (d), (e), and (f) of
this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; and
(3) that the respondent's employees are free to become and remain
McGOUGH BAKERIES CORPORATION - 859
members of United Bakery Workers Local Union No. 441 of Alabama,
,affiliated with the C. I. 0., and that the respondent will not discrimi-
nate against any employee because of his membership in or activity
on behalf of that organization or because of giving testimony under
the Act;
(f) Notify the Regional Director for the Tenth Region in writing,
within ten ( 10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed, Insofar as it alleges that the respondent has engaged
in unfair labor practices , within the meaning of Section 8 (5) of
the Act.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.
APPENDIX A
Hubert Greene H. A. McCowan
Walter Turner
APPENDIX B
Richard Ott Charles A. Stone
Frank Acey, Jr. Tommy Butera
Tom Duncan
APPENDIX C
Will Harrison Willie Mills
Rupert Mullally Henry Mamon
INTERMEDIATE REPORT
Mr T. Lowry Whittaker, for the Board.
Mr. J. A. Simpson, of Birmingham , Ala., for the respondent.
Mr. Frank I. Parker, of Birmingham , Ala., for the Union.
Mr R DuPont Thompson, of Birmingham , Ala., for the SBEI and the Chapter.
STATEMENT OF 'I HE CASE
Upon a third amended charge duly filed on August 17, 1943, by United Bakery
Workers Local Union No. 441 of Alabama, affiliated with the C. I. 0.,' herein
called the Union, the National Labor Relations Board, herein called the Board,
by the Acting Regional Director for the Fifth Region (Atlanta, Georgia), issued
its complaint dated September 28, 1943, against McGough Bakeries Corporation,
herein called the respondent, alleging that the respondent had engaged in, and
was engaging in, unfair labor practices, within the meaning of Section 8 (1), (2),
(3), and (5) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint, accompanied by notice of hearing thereon, were
I The designation of the Union was corrected upon motion of counsel for the Board, by the
addition of the words "of Alabama "
860 ^ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duly served upon the respondent,- the Union, and Southern Bakers Employees,
Inc., herein called the SBEI, and Birmingham Chapter No. 1 of Southern Bakers
Employees, Inc., affiliated with Southern Bakers Employees, Inc. herein called
the Chapter, and collectively herein called the Independent, both of which were
alleged to be dominated by the respondent.
With respect to the unfair labor practices, the complaint, as amended at the
bear-ing,' alleged, in substance, that the respondent: (1) from and after January
1,, 1943, dominated and interfered with the formation and administration, of the
Independent and contributed financial and other support thereto; (2) on or
about May 22, 1943, entered into an illegal one-year contract with the Inde-
pendent which provided for membership therein as a condition of employment
by the respondent; (3) on May 8 discharged and thereafter refused to reinstate
Will Harrison, James Henry Prevo, and Albert Means because of their union
membership and concerted activities and on July 27 discharged and thereafter
refused to reinstate Hubert Greene, on September 15, Walter Turner, and on
September 28, 1943, Rupert Mullally, Richard Ott, W. L. Mills, Henry'Manion,
Tom Duncan, Frank Acey, Jr., H. A. McCowan, Ray Ford, Charles A. Stone, and
Tommy Butera because of their union membership and concerted activities, and
because they failed and refused to pay dues to, and remain in good standing in
the Independent; (4) by' such discharges and refusals to reinstate caused a
strike among its employees on September 28, and prolonged such' strike, to--
September-30, 1943; (5) about February 1943, and at all times thereafter, par-
ticularly on May 10, 1943, refused to bargain collectively with the Union which
was at all such times the exclusive representative of its employees within an
appropriate unit; (6) and by such acts; from August 1940, by the statements
and acts of its supervisors discouraging union membership and concerted
activities among its employees; and in January and March 1942, by causing,
permitting, and encouraging the circulation in its plant of two petitions de-
signed to undermine the Union's majority representation, interfered with,
coerced, and restrained its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
The SBEI and the Chapter thereafter filed their joint answer dated October
8, 1943, denying that they were dominated by the respondent.' On October 11,
1943, the respondent filed its answer admitting certain allegations of the com-
plaint with respect to the nature- of- its business and denying the commission
of any unfair labor practices.
Pursuant to notice,,- a hearing was held at Birmingham, Alabama. from,^Oc-
tober 11 through 23;` 1943, before the undersigned; Jesgf L. Hektoen, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board, the re-
spondent, the SBEI; and the Chapter were represented by counsel and the Union
by its Acting Regional Director; all participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence-
bearing on the issues was afforded to all parties.
On October 0, 1943, counsel for the Board served written notice upon the parties that
he would move to amend the complaint at the opening of the hearing , by adding the names
of 11 employees to the list of those alleged to have been discharged by the respondent in
contravention of the provisions of the Act, thereby causing a strike among its employees
on September 28. and prolonging such strike to September 30, 1943. On October 11, 1943,
the Union filed a supplement to the third amended charge alleging the illegal discharge of
such employees On October 11, 1943, at the opening of the hearing, the motion of counsel
for the Board to amend the complaint in accordance with the notice previously served upon
the parties was allowed without objection.
8 At the opening of the hearing the undersigned construed such answers to be in the nature
of petitions to intervene and allowed them without objection.
McGOUGH BAKERIES CORPORATION 861
During the hearing, the motion of counsel for the Board to dismiss the com-
plaint as to Ray Ford was granted without objection and at the close of the
hearing his motion to conform the pleadings to the proof in respect to formal
matters was likewise granted At the close of the hearing the parties argued
orally upon the record before the undersigned ; no briefs have been received
by him.
On December 30, 1943, the Union filed a second supplement to the third
amended charge. On the same day, counsel for the Board served upon all parties
a written motion to amend the complaint and to reopen the hewing. On January
12, 1944, the Chief Trial Examiner overruled the objections of counsel for the
respondent to said motion, allowed the amendment to the complaint and the
reopening 'of the hearing, and continued the designation of the undersigned as
Trial Examiner in the case.
The complaint as ainended additionally alleged that the respondent had engaged
in and was engaged in unfair labor practices , within the meaning of Section 8 (1)
and (4) of the Act, in that on'or about December 6, 1943, it discharged and there-
after refused to reinstate Ed'Baine for the reason that he had given testimony-
under the Act at the former hearing herein.
Pursuant to notice and after a postponement, a second hearing was held at
Birmingham, Alabama, on January 27, 1944, before the undersigned Trial Exam-
iner. All parties were represented as at the prior hearing and participated
therein. Full opportunity to be heard , to examine and cross -examine witnesses„
and to introduce evidence bearing on the issues was afforded all parties. At the
opening of the hearing, counsel for the respondent orally denied upon the record
that the respondent had engaged in any unfair labor practices. At the close of
the hearing, the motion of counsel for the Board to conform the amended complaint
to the proof was allowed without objection ; the parties waived oral argument
before the undersigned as well as the privilege of filing briefs with him.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF 713E RESPONDENT
The respondent, McGough Bakeries Corporation, is an Alabama corporation
engaged in the general bakery business having its principal place of business and
o fice in Bixmi ngham, Alabama ,' and also maintaining plants in Montgomery and
Decatur, Alabama, and Hattiesburg, Mississippi. The raw materials used by the
respondent are flour, sugar, syrup, molasses, malt, lard, milk, yeast, and salt.
During August 1943,' it bought such materials in an amount in excess of $25,000,
about 80% of which originated outside the State of Alabama. During the same
period, it sold finished products in an amount in excess of $50,000, all of which
were sold to dealers within the State of Alabama.
II TIIE ORGANIZATIONS INVOLVED
United Bakery Workers Local Union No. 441 of Alabama , is a labor organization
affiliated with the Congress of Industrial Organizations ; Southern Bakers Em-
ployees, Inc ., is an unaffiliated labor organization ; and Birmingham Chapter No. 1
of the Southern Bakers Employees , Inc, is a labor organization affiliated with
' Only the Birmingham plant of the iespondeiit is involved in this pioceeding
i
This period was stipulated to be representative of the respondent s monthly purchasex^
and sales from 1940 to the time of the hearing..
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern Bakers Employees , Inc All admit employees of the respondent to
membership.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events; iatei felence, restlarnt and coercion
1. The Background .
The Union made organizational efforts at the respondent's plant in the
summer of 1940.° Employee Thorlas M. Pair became a member, and shortly
thereafter, its president. About August 2, the plant superintendent, a son
of President T. A. McGough,° discharged Pair because his "attitude was not
right." The Union thereafter filed a charge with the Board alleging discrii nina-
tion against Pair. The charge was settled through the intervention of the Re-
gional Director, Pair was reinstated with back pay, and the respondent posted
notices to its employees.e
The Record reveals no further union activity at the plant until the summer
of 1941.
2 The Union renews its drive; the events of February 7-8, 1942
The Union renewed its drive during the suiuiner of 1941 Employee Earl Brooks
became one of its early members Immediately after lie did so, Brooks, according
to his undenied testimony which the undersigned credits, asked President Mc-
Gough for a loan. McGough told him that he understood Brooks was "the head of
that union going around there." Brooks denied the imputation. McGough then
told him that unions were peopled by "racketeers," that their sole purpose was to
get "the poor man's dollar," that they would do him no good, that the respondent
had existed for a long period of trine without them and dewed to so continue,
and suggested that Brooks return to his former position with a local electrical
concern. Brooks received his loan, however; and continued in his employment
with the respondent until November 1942, when he resigned
On December 2, 1941, John J. Schulter, regional director of the Union, wrote
the respondent stating that it represented the majority of the respondent's pro-
duction employees and requested a conference for the purpose of negotiating a
contract. On December 6, McGough replied noting the Union's claim with refer-
ence to "our production employees" and suggested that the Board conduct an
election of those eligible to join the Union "to determine whether they want a
union or not." On December 10, Schulter wrote McGough that hey agreed to
the latter's suggestion and that he would notify the Board accordingly.
On December 15, Schulter telegraphed the Board's Regional Office that the
respondent agreed to a consent election and on December 16. the Union filed a
Petition for Investigation and Certification of Representatives ° alleging that the
'The evidence reveals that theme had been "talk" of the Union since 1938 . In 1940, the
Union was known as United Bakery Workers Local Industrial Union No 1029 At various
times during the period covered by the complaint , it was also known as Birmingham Bakery
Workers Joint Board and Birmingham Bakery Workers Union These organizations were
predecessois or parent bodies of the present union They are jointly and seveially herein
called the Union
' He was identified as "Tommy" by Pair and as "McGough, Jr ." by counsel for the
respondent. The record discloses the identity of two sons of T A. McGough • Joseph M . the
respondent 's vice-president , and William P., an attorney formerly counsel for the respondent
and now in the Armed Forces of the United States It is not clear whether "Tommy" Is one
of these, or a third son No son of T . A. McGough testified
8 The Board does not contend that this incident constituted an unfair labor practice, the
evidence respecting it being adduced merely as "background."
° Docketed as Case No . X-R-579.
McGOUGH BAKERIES CORPORATION 863
respondent's "Production and shipping employees, excluding supervisory, clerical
employees and salesmen" constituted a unit appropriate for the purposes of col-
lective bargaining.
A Board Field Examiner thereafter investigated the petition He conferred
with McGough and' reported to Schulter that the respondent insisted upon the
inclusion of the respondent's salesmen in the unit. The Union did not at that
time include salesmen in the same unit with production employees for collective
bargaining purposes The consent election was never held.
On January 3, 1942, the Regional Director notified Schulter that the Union's
petition had been dismissed by order of the Board dated December 31, 1941.10
During the first part of January-1942, Schulter on several occasions con-
splted with Attorney McGoagh, urging that he endeavor to persuade his father to
agree to a consent election of the employees in the unit claimed by the Union.
The attorney's efforts to do so were unsuccessful and on January 15, Schulter
wrote the respondent notifying it that "as a result of our inability to arrive at
an ainic`able agreement as to the bargaining unit and because of our failure to
mutually conclude a satisfactory agreement," the Union might "suspend work
within the near future"
At about this time,`when the employees were gathered in the plant awaiting
their pay on a Saturday, the pay roll was delayed. President McGough appeared,
informed the assemblage that he had heard rumors of the Union's activities at
the plant, that he had conducted his business for some 30 years without outside
interference, that he wished to continue to do so, and that he (lid not "want
anybody tearing this business] down for him
During the latiei part of January of early February-1942, employees Glenn
Bunch. Charles Wins!ow,'2 and J D Martin, during working hours openly solicited
the signatures of employees in the plant to a petition addressed to the Union
and the respondent. The petition stated that those signing it did not wish to
be represented by the Union and that "we are satisfied with our working conditions
and relations with the company and do not need any outsidq agency to repiesent
us." Bunch and his helpers obtained the signatures of 49 employees thereto The
petition was thereupon presented to McGough,.who, so far as is revealtd by the
record, took no action respecting it at the time 13
'On Saturday night," February 7, most of the respondent's employees,` togo,her
with a nuiabei of those of other Birmingham bakeries, gathered outside the
respondent's plant and at a neighboring restaurant. They refused to enter the
plant and persuaded other employees of the respondent iroin doing so DlcGongh
arrived on the scene about 8. 30 p in. and called the local sheriff's office for aid
"In response to it request for information regarding it, lie also so notified Attoi ney
McGough on January 18 The record is silent as to the Board ' s reason for dismissing the
petition
11 This finding is based upon the undenied and credible testimony of Brooks and employee
Howard Robinson
11 Winslow, then "acting foreman on the roll table," became a full supervisor on March 1,
1942 Ile resigned on July 11. 1942
13 Employee J. C. Tidwell, was also concerned with the petition His signature was the
first affixed thereto Employee Robinson testified without contradiction , and the under-
signed finds, that Tidwell, who became a supervisor on April 4, 1942, and continued as such
during the time of the heating, and who was Ilobinson's brother-in-law, until May 10, 1943,
when Robinson left the plant to join the Armed Forces, continually warned lam against
having anything to do With the Union
14 Production for Monday sales begins at the respondent's pant at about 7 p ni Satui day,
when the "sponges ," or doughs , are set by the sponge setter They stand until about mid-
night, when other employees begin to come to work and production gets underway.
is The respondent employed about 60 to 65 production and maintenance workers at this
time. The number remained unchanged through the time of the hearing.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in &iding James Stack, the sponge setter, who normally began work at 7 p. iii.
McGough subsequently located Stack, but the latter, despite McGough's entreaties
that he do so, refused to enter the plant and set the sponges. Deputies from the
sheriff's office and police arrived, tound the scene peaceful, and departed leaving
one of their number at the plant.1' At about 1 a. in., February 8, having mean-
while with other executives of the respondent fruitlessly sought to prevail upon
the employees to begin operations, McGough called Schulter and T. C. MeVea,
union representative, to his office. He stated that he desired the plant to begin
operating. The union spokesmen stated that it could do so provided the re-
spondent first recognized the Union as the representative of the production em-
ployees. McGough suggested that operation's begin and that air election among
the employees be thereafter conducted. The Union refused, suggesting an mime-
diate election; McGough refused this alternative. Thereupon, McGough executed
an agreement whereby the respondent recognized the Union as the exclusive
representative of the employees in the plant, maintenance, and shipping depart-
inents, exclusive of supervisors and foremen, and agreed to "open negotiations
with the Union on February 9th for the purpose of negotiating a [n] agreement."
Thereafter, at about 2 or 2: 30 a. ni., the work stoppage ceased, the plant opened,
and operations resumed.
On February 9, McGough appointed a committee consisting of Manager C. E.
Jackson, Production Superintendent John Wissendanger,14 and W. S. Pritchard,
counsel for the respondent, to meet with representatives of the Union. The
parties made an appointment to meet the same afternoon. On the same day,
McGough wrote the Union informing it of his action, stating that on the clay
before he had accepted the statement of its spokesmen that it represented the
majority of the respondent's employees," and that he hoped the meeting between
the parties would "result in an agreement satisfactory to both the Union and the
Corporation."
3 The contract of February 1 0, 1942
The parties met as planned , and on February 10, the respondent and the Union
entered into a written contract effective March 1, and expiring May 10, 1942. By
its terms the respondent recognized the Union as the exclusive representative
of the production , shipping, and maintenance employees , excluding superintend-
ents , foremen, and any employee having authority to "employ or discharge." The
contract further provided for a union shop , the employees, to join the Union within.
30 diiys and remain in good standing during the term of the agreement ; a 6 day,
40 hour week , with time and one-half after 40 hours , and after 8 hours on any
.day during a week of less than 40 hours ; one week 's vacation with pay after one
year of service and a nlaxnnumi of two weeks ' after five years of service; time
and one-half for work on July 4 and Labor , Thanksgiving, and Christmas Days;
plant seniority ; union labels on plant products ; work permits from the Union
before new employees began work ; a Friday pay-day ; seniority and reinstatement
upon application by employees after their discharge from the Armed Forces of
the United States; arbitration of disputes respecting the discharge , discipline,
and demotion of employees ; a grievance procedure ; and the wage scale then in
effect.
On February 10, Helen McGough , secretary of the respondent , wrote the Re-
gional Director bitterly complaining of the events of February 7-S "when two hi'
11 No ariests were made
17 Incorrectly spelled "Weisendanger" in the transcript
s McGough denied that Scliulter or McVea had so stated. The undersigned rejects hia
_denial and finds that the events transpired as McGough set foith in his letter.
McGOUGH BAKERIES CORPORATION 865
iackers" allegedly forced her father "into signing away certain of his rights as a
free citizen in a democratic country," and inquired as to the rights of the 49 em-
ployees who had signed the earlier petition and concerning what steps she could
"take to stop the negotiations until a legal election has been held in the plant.""
On February 25, President McGough wrote the Regional Director stating that
on February 7-8, the respondent had "hoisted the white flag" and recognized the
Union in order to put the plant into operation, and that he had heard rumors
that the respondent's salesmen were to be similarly organized. He requested
that all election of the salesmen be conducted in order to determine their wishes
respecting representation. . The record does not reveal whether these letters were
answered.
William Jarrett, night shipping clerk" for some 11 years before he was dis-
charged early in 1942, testified that McGough, both before and after the respond-
ent entered into its contract with the Union, frequently expressed himself as
being hostile to the Union and "outside interference" and told him that as to
the union employees, ". . . we can't fire them, we don't have a right to fire them,
and whenever you find anything out there that you can fire them for, let them go
and I will back you up." Jarrett also testified, and the undersigned finds, that
Head Shipping Clerk Kewish similarly often expressed himself." McGough
denied the remarks attributed to him. In the light of all of the surrounding
circumstances, including the respondent's continuing and undeviating hostility to
the Union during the entire period covered by the complaint and McGough's stated
purpose to drive the Union out of the plant, hereinafter detailed, as well as the
fact that-he found- Jarrett a credible witiiess, the walersigned-is persuaded and
finds that McGough spoke to Jarrett substantially as the latter testified.
All the employees became members of the Union within 30 clays after March 1„
1942, pursuant to the terms of the contract.
4. Countermeasures against the Union ; the second contract
Late in March or early in April 1943, Bunch, according to his undenied testi-
inony, told McGough that he had been "forced to join the CIO," that he did not
like "the working conditions," 22 and that he wanted to do something about it
and "get out of it." He further testified that McGough and he "probably dis-
cussed" the feasibility of his circulating petitions in the plant against the
Union, but could not recall whether McGough told him that "it was all right"
that he do so. Because the respondent, as hereinafter found, at all times ex-
hibited its approbation of his doing so, the undersigned is convinced and finds
Immediately after the execution of the contract between the respondent and the Union
on February 10, the respondent , without consulting the Union as to their content, posted a
series of 15 "Rules & Regulations ." Aside from instructions respecting cleanliness and the
like, incident to the respondent 's manufacturing process, they embodied rules against laying
off without notifying the plant , penalties in case of absence and tardiness , and prohibitions
against leaving the plant during working hours without permission , reporting to work more
than 15 minutes before starting time and staying on the property after work, visiting while
on duty , ` loud whistling and unnecessary loud talking," and finally , an announcement that
garnishment of an employee ' s wages subjected him to discharge.
20 A supervisory position
2' Kewish , although he was employed by the respondent at the time of the hearing , was not
called as a witness
22 He explained that by "working condition," he had reference to the requirement of the
Union that the employees attend its meetings and that upon their failure to do so without
excuse or good cause , they pay fines.
609591-45-vol 58--56
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that McGough and Bunch discussed the proposed petitions and that McGough
approved of their circulation in the plant '
Following his conference with McGough, Bunch, assisted by King, Martin. and
employee R. B. Giiflln, openly circulated a petition prepared by Bunch among
the employees in the plant during working hours It was addressed to the
respondent and stated that those who signed it did "not want the C. I. 0. to
represent [them] with the company any longer " Forty-two employees coN ered
by the contract signed it. Bunch in the same manner also obtained the signatures
of substantially all of the 25 employees in the sales department to another
petition prepared by him. It was similarly addressed and stated that the signers
understood "that the new contract zs includes the Sales Department and we do
not want the C. I. 0. to represent its "
Bunch thereafter immediately delivered the petitions to McGough The latter
told Bunch, "That is fine" and thereupon sent them to Attorney Pritchard
At the time the petitions were circulated, McGough, accordnq to employee
James C. Rivers,' asked him if he had signed "the company's petition." River s
answered in the negative. McGough then told hint that the purpose of the
petition was "to get the boys together and vote the Union out of the plant, ,
that lie was in the dark respecting a vote of the employees because he w_is
able to obtain information from neither the Board nor the Union, that he had
retained "a high priced lawyer that couldn't kick the Union out," and that it
appeared that he himself would be forced to take steps to accomplish that task.
McGough categorically denied the remarks attributed to him by Rivets The
undersigned found Rivers an impressive witness He does not believe Niat he
fabricated McGough's remarks for purposes of the hens inq. F urthei inoi e, his
testimony was entirely consistent with the events otherwise proved. For these
reasons, and upon the entire evidence in the case, the undersigned rejects
McGough's denial and finds that he spoke to Rivers substantially as the latter
testifled.26
On April 22, Pritchard sent the Bunch petitions to the Regional Director
In his covering letter he stated that the Union had submitted a new contract
including the salesmen in addition to the production workers, urged that the
Board send a representative to the plant for the purpose of holding an election,
and warned that the plant was threatened with a strike.
On April 23, the Regional Director replied to Pritchard, enclosing forms for
the filing of a petition for investigation . Pritchard later telephoned Bunch at
the plant and summoned him to his office, where on May 1, Bunch, "on behalf of
himself and the employees" who signed his petitions, executed a petition for
investigation addressed to the Board. He alleged no appropriate unit, merely
stating that the respondent's employees no longer desired to be represented by
23 McGough denied knowledge of the petitions liuor to their being later presented to
iiiin The undersigned does not believe that , in a small plant such as that of the respond-
ent, a man of McGough's energy, determination , and exceedingly lively interest in the
affairs of its employees could have failed to be aware of the activities of Bunch and his
-colleagues He therefore rejects McGough's denial
24 Although the record does not explicitly so indicate negotiations for the renewal of
the contract which was to expire on May 10, had apparently begun at this time
Rivers had been employed by the respondent for mole than 5 years at this time
20 Rivers testified on cross-examination that the purpose of the petition he discussed
with McGough was "to throw the Union out of the plant " and to "kill the Union," but
that while he had seen that circulated by Bunch, he had not seen the petition McGough
referred to No petitions other than those described above are in evidence or revealed by
the record Rivers' name does not appear on any petition . The undersigned concludes and
finds that since the Bunch petition was aptly described by both McGough and Rivers, the
latter, although exhibiting some confusion regarding its identity , in fact had reference
thereto. -
McGOUGH BAKERIES CORPORATION 867
the Union On the same day Pritchard mailed the petition to the Regional
Director and reiterated his request for an election.
On May 2, the Regional Director replied, returned the petition, and inquired
whom Pritchard represented. On May 4, Pritchard wrote the Regional Director
that lie then, as lie had for "many years last past," represented the respondent
and inquired why the petition had not been entertained. He also stated that "It
was apparent that the Majority desired the C. I. O. at the time when the original
contract was entered into It is apparent now that the majoiity object to the
C. I O. serving longer as their bargaining agent with reference to the new
proposed contract."
On May 7, McGough telegraphed the chairman of the Board stating that the
respondent's employees had repudiated the Union, that the latter refused to
consent to an election, that the Regional Office declined to act, and that the
respondent was threatened with a strike. On May 9, the Acting Regional
Director, by telephone and telegraph, informed the respondent that the Board
could act on a petition filed by an employer only when two or more labor organi-
zations had presented conflicting claims of representation to him. So far as
is revealed by the record, the respondent at this point abandoned its efforts to
rid itself of the Union by directly invoking Board action.
On May 10, the Union at a meeting of its membership, approved the terms of
a new contract with the respondent, including a 10 cent per'hour raise in pay
for all employees. Schulter told those present that the Union had made its gains
in spite of the harmful activities of King According to Schulter, King spoke
to him after the meeting and told him that because he was a long-time employee
of the respondent and because McGough had advanced him money, he could do
nothing "to hurt him, even though I would like to see the boys yet what is coming
to them " King denied the conversation. McGough, asked if he had advanced
King money, answered, "No, sir, not that I know of." The undersigned found
King an unimpressive witness, whose testimony was rendered untrustworthy
by his obvious anxiety to render the respondent any assistance that he could.
The undersigned accepts Schulter's testimony and finds that King spoke to him
as he related.
On May 13, 1942, the Union and the respondent executed a second contract.
It provided that it be effective until May 10, 1943, embraced the same unit as
the previous contract, added New Year's Day to the holidays on which the em-
ployees were to receive time and one-half, stipulated that new employees register
with the Union within 48 hours and become members within 15 days of their
employment, and as related above, that all employees receive a 10 cent per hour
increase in pay
Because,of their part in circulating the petitions against it, the Union procured
the suspension from work of Griffin and Martin." After about a month, at a
meeting held in the plant and arranged by the respondent, they were voted
permission to return by the employees McGough thereafter made a speech of
appreciation for the employees' action and urged that they strive for harmony
in the future.
Employee Willie Mills testified that during the suspension of Griffin and
Martin, McGough told him that he did not think it right that they be suspended
and that he disliked the Union, Representative Parker, and all who "had any-
thing to do with the C I 0." McGough could not recall so expressing himself to
Mills„adding "In fact, I never did state I did not like the C. I. 0 in the plant or
27 The record contains no explanation of why the Union failed to ask for the suspension of
Bunch and King as well
28 His discharge is discussed Infra.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anywhere." Because the evidence overwhelmingly indicates the exact opposite,
the undersigned rejects his denial and finds that he made the remarks attributed
to him by Mills.
Employee Brooks testified that in the summer of 1 942, during a grievance meet-
ing with McGough, the latter told a Union deputation , "Damn the men I don't
care anything abut the men nohow ," told Brooks his work was not satisfactory,
and that when the latter , asked him why he did not discharge him, McGough
answered that the union had taken that power from him. McGough - denied
stating that he did not care about the men, and testified that he could not
recall'the-grievance meeting-in=question. The undersigned has found McGough
a not wholly reliable witness. He found Brooks a witness worthy of belief.
He credits Brooks' testimony and finds that McGough spoke as he testified.
The undersigned finds that the respondent, by the statements and acts of
McGough, Winslow, and Tidwell, above set forth, and by participating in, per-
mitting, and approving the' circulation of the antiunion petitions in the plant,
the respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
B. Domination and interference
1 The Independent is formed
Early in 1943, the group responsible for the circulation of the anti-union
petitions in the plant the yeas before, again became active. liuulch,-I{ing,.Murtm,
and Grlffiui togethef with employees J. -T. -J4nwright and W. L.-Yates, determined
to set up an independent organization opposed to the Union. Under Bunch's
leadership the group met on several occasions in January and February,' and
employed Attorney R. DuPont Thompson 30
During February, Thompson incorporated the SBEI as a nonprofit corporation
under Alabama laws. Its constitution provided that it might "affiliate with or
. . form chartered local units by locality and businesses" and negotiate for itself
"or with or through the local or other units chartered" by it, with employers
respecting all matters concerning employer-employee relationships. Control of
the organization was vested in a board of trustees 3' which was charged, among
other things, with the duty of electing its officers. The constitution specifically
interdicted contribution of any funds to "any candidate for office or any political
party or club." Its bylaws contained no provision for discipline of members-
compelling attendance at meetings, or taking strike votes. Dues were fixed at 50
cents per month with a $2 initiation•fee" Bunch testified, and the undersigned
finds, that employees were told that the dues would be distributed pro rata at the
end of the year or that a picnic would be conducted therewith, there being no
purpose to build up a fund in the Independent's treasury. No salary was paid
to any officer of the organization. The bylaws also provided that "Any ten or
more employees . . . employed in the baking industry . . . may, upon applica-
tion be granted a charter to organize a chapter of this Association" and that
only one such chapter might be established "in any one employer organization."
29 They posted at least one notice of an organizational meeting on the respondent 's bulletim
board in the plant with Superintendent Wissendangei's knowledge and- approval.
30 Thompson acted as counsel for the SBEI and the Caaptei in both hearings.
ai Referred to in the bylaws as the "Executive Committee."
The evidence reveals that only 25 cents per month was collected , however. The Union s
dues were $1 monthly . It also reveals that in at least one instance , that of employee Hazel
Sherod; the Independent accepted 75 cents foi the initiation fee.
McGOUGH BAKERIES CORPORATION 869
On February 20, the Bunch group met at Thompson's office." They approved
the constitution and bylaws of the SBEI and apparently set up the Chapter at
the same meeting.' They named themselves to offices in the two organizations,
Bunch becoming president, Sweatt vice president, and King secretary-treasurer
of the SBEI, and Griffin president, Jinwright vice president, and Martin secretary-
treasurer of the,Cliapter. This-group, also named themselves trustees or execu-
tive committee, members, apparently' of both organizations. Bunch, King; and
'Mai tin. contributed $10 each toward Thompson's $50 fee.'' The six signed mem-
bership applications in the Independent" and received printed applications for
distribution among the employees from Thompson Thompson also handed them
a proposed contract between the Independent and the respondent which he had
prepared.
On February 21, the six officers of the Independent met with two or three
other employees at a restaurant close to the plant. They "adopted" the contract
and "re-elected" officers On February 24, Bunch, King, Griffin, and John N.
Sweatt" met with McGough pursuant to an appointment made by Bunch 2 days
before. Bunch announced that the Independent represented the majority of the
respondent's employees in the unit covered by the Union's contract and produced
either the signed applications or a list thereof or both, of the between 45 to 50
employees whose applications they had obtained since their meeting with Thomp-
son 4 days before: He also-. presented the proposed'-contract to, McGough. -The
latter looked through the documents proffered him and stated that because the
respondent was under contract with the Union, it could not then negotiate with
the Independent. He advised its representatives, according to his own testimony,
"Boys, you will ha% e to have it certified, or whatever is necessary in a legal way."
He explained at the hearing that he used the term "certified" in "a general way"
and did not know whether he had meant the Independent or its contract. The
undersigned is convinced and finds that McGough intended to and did in fact
suggest to the Independent that it procure certification by the Board."
2 Tho respondent violates the terms of its contract with the Union
Simultaneously with the beginning of the Independent's organizational activity,
the respondent embarked upon a course of action designed to weaken and de-
stroy the Union and to discredit it:with its membership.
Beginning about February '1, 1943; the respondent ceased causing new em-
ployees tovisit theUnion's officein order to register." On February 23, having
twice unsuccessfully endeavored to reach him by telephone, Parker wrote Mc-
Gough asking that the respondent suspend Btinch, Griffin, and King."' McGough
"J E. Sweatt attended in place of Yates who had joined the Armed Forces of the United
States.
"There is no evidence as to how the Chapter came into being . So far as is revealed by
the record , it is the only subsidiary of the SBEI.
They were subsequently reimbursed from funds of the SBEI.
Since the distinction between the Chapter and the SBEI , is, under the circumstances,
unimportant, the undersigned hereafter collectively calls them the Independent.
" Bunch explained that he had "appointed " Sweatt to the Independent board of trustees
at a meeting in a cafe that morning.
" On March 5, 1943, the Independent filed a petition for investigation and certification
of representatives with the Board . It was docketed as Case No 10-R-825. On September
28. 1943 , the Board dismissed the petition.
" The contract provided : "The Company agrees that all new employees . .. shall rn gis-
ter with the Union office without cost to the employee, within forty -eight ( 48) hours after
the employee starts to work."
11 On account of their connection with the Independent.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquired as to why their suspension was asked, and on March 2, Parker wrote
stating that they were in arrears respecting the payment of dues and had been
guilty of working in opposition to the Union. Hearing nothing from McGough,
Parker telephoned him on March 5. McGough stated-with respect to his refusal
to suspend the three employees in question, that it was "not the first time a
contract had been violated." 41 Parker thereafter again unsuccessfully endeavored
to talk to or meet with McGough who, on one occasion, refused to meet with
Parker and V. C. Finch of the Conciliation Service of the United States Depart-
ment of Labor. On March 11, Parker wrote McGough, recited these matters,
requested a meeting with the respondent, and informed him that the Union had
filed a charge with the Board.42 McGough did not answer the letter. On March
30, Parker wrote the respondent respecting the suspension of the three men and
asked for a conference respecting the discharge of union member Robert Brad-
ford.43 No reply was received On April 8, Parker wrote the respondent respect-
ing the Bradford matter, invoked arbitration thereof under the terms of the
contract, and suggested the names of nine arbitrators and "Anyone appointed by
the United States Department of Conciliation" as satisfactory to the Union. He
requested that, if none was satisfactory to the respondent, it submit names of
individuals satisfactory to it. The Union received no reply from the respondent."
On April 7, Parker wrote the respondent stating that the Union desired certain
changes in the contract expiring May 10, and enclosing contract clauses embody-
ing the suggested changes. On April 14, McGough replied stating that on account
of the petition filed by the Independent and the charges filed by the Union, "I am
returning the contract to you without consideration."
At 10: 00 a. in May 10, Parker telephoned McGough, told him that the Union
had "just about reached an agreement with the other operators on a renewal
contract," and that he would like to "get together" with McGough in an effort
to arrive at an agreement with the respondent as well. McGough answered, "My
contract with you expired last night . . . We don't have a contract with you any
more, and I don't want to meet with you to talk about it, there is no use to
meet with you to talk about it.f 4b
3. The respondent ,contracts with the Independent
After their unsuccessful effort to obtain recognition by the respondent on
February 24, the Independent met on February 27.'° Jnwright replaced Griffin,
who resigned, as president of the Independent, and Chester Hari is replaced
Sweatt as its vice president. On March 13, another meeting was held Harris
having resigned, was replaced by Sweatt. Thereafter, two further meetings, the
minutes of which King was unable to produce, were announced on the plant
bulletin board: Jake Sweatt testified, without contradiction, and the under-
signed finds, that a meeting scheduled for May 8 and announced as one at which
91 McGough denied so informing Parker. The undersigned, because he has found McGough
a not completely reliable witness and because he found Parkes a witness of outstanding
truthfulness who was thoroughly credible, rejects McGough's denial and finds that he spoke
to Paiker as found above
92 The original charge was filed on March 10, 1943
,43Parkei had previous'j teleplioned 11IcGough on three occasions without being able to
speak to him. -
41 The Union and the respondent had on a prior occasion satisfactorily submitted a matter
to arbitration.
45 This finding is made upon the uncontradicted and credible testimony of Parker The
respondent is hereinafter found to have refused to bargain collectively with the Union.
Such finding is in large part based upon the findings made in this Section hereof.
4° The meeting was announced by general invitation to all employees posted on the plant
bulletin board and was attended by about 20.
McGOUGH BAKERIES CORPORATION 871
"There will be important business to come before the meeting" and which all
members were urged to attend, failed to take place on account of lack of
attendance.
On May 8, 1943, the respondent discharged three members of its maintenance
crew. They were members of the Union and, as is found infra in the discussion
of their discharges, had refused to join the Independent.
On the afternoon of May 15, King" conducted a meeting of about 20 employees.
A proposed contract to be submitted to the respondent was discussed. King sug-
gested that the Independent ask for a 10 hour day before overtime and was voted
clown. He then suggested a guaranteed 48 hour week with overtime after 8 hours
on any day.de Those present agreed to this provided King would first endeavor
to procure overtime after 40 hours from the respondent A reduced vacation
policy, as compared to that provided for by the expired contract between the
Union and the respondent was also accepted. As to wages, King testified, "we
knew we could not get any more money per hour," adding that he pointed out
that "there was 3,000 cases pending before the ... War Labor Board then, and,
why not, just take what we could get then," and that he demonstrated to the
employees the utter futility of seeking any increase
At the close of the meeting, King arranged that Jinwright, Sweatt, and Martin
meet him at the plant at S o'clock that evening for'the purpose of negotiating the
contract with the respondent He thereafter made an appointment for that
purpose with McGough and at the designated time the Independent representa-
tives met with McGough, Manager Jackson, and Secretary Helen McGough at the
plant. King stated that his group were otticers of the Independent and were
present for the purpose of negotiating a contract with the respondent. He there-
upon handed the proposed contract to, TAIeGough who read it over and at first
objected to a guarantee of 48 hours per week but after consulting Jackson, agreed
to it McGough inquired whether the Independent represented the majority of
the employees within the appropriate unit and accepted King's assurance that it
did so without requiring documentary proof thereof 49 King thereafter typed out
three amendments to the contract: (1) the work week to be 48 hours guaranteed
with time and one half after S hours on any one day, (2) the contract might "be
opened" on 30 days' notice for amendments to be mutually agreed upon by the
parties, and (3) it was to be effective May 20, 1943 As so amended, it was
thereupon executed by McGough for the respondent and by the committee present,
for the Independent.50 '
41 Bunch was not present, having the day before sustained a foot injury which kept him
from work for 2 months.
4A Sweatt testified without contradiction, and the undersigned finds, that King told those
present that lie would "have to take it easy with the old man [McGough]" lest he be
prevented from achieving the execution of a contract with the respondent. The Union had
entered Into a master contract with the other Birmingham bakeries, effective May 10, 1943,
by which the employees received wage and vacation increases. The contract provided for
a 48 hour week with overtime after 40 hours
99 According to Sweatt's testimony, which the undersigned accepts, McGough asked King
"did the majority of them vote it [the contract] that way down at the meeting" and upon
being told that they had, added that he wanted them to be sure they were satisfied, because
"You know what they are liable to do ; you know they are liable to turn the other way if they
ain't." King testified that 2 days later, on Monday nioining, May 17, he procured the Inde-
pendent's membership cards and "took them up there and showed then to Mr. Mack,
[McGough ] to show him we did have sufficient membership ." Since the contract was signed
without such proof, its subsequent alleged production is academic. The undersigned there-
fore makes no finding with respect to King's testimony concerning the matter.
60 No ratification by the Independent 's membership of the contract as amended in its final
form is revealed by the evidence.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As compared with the recently expired contract bete een the Union and the
respondent, the Independent contract differed with respect to hours and over-
time, as found above. It contained a less favorable vacation policy, omitted
provision for overtime on holidays and New Year's clay from the list thereof,"
and omitted the provision against requiring 'employees to take time off to corn-
pensate for overtime"recei-ved during a given week"
On June 15, the Independent posted a notice to employees stating that the
respondent on May 22" had entered into a contract with it providing that all
employees become members of the Independent within 30 days after being em-
ployed or, if presently employed, within 30 days of the effective date of the
contract. Pursuant to the terms of the contract, the employees thereafter be-
came members of the Independent and paid dues of 25 cents per month.
On July 26, Parker telephoned McGough requesting that he he allowed to
post a notice of a union meeting in the plant. McGough• refused On July 27
Parker wrote McGough reiterating his request ; he received no answer 54
During the period preceding the execution of the contract between the re-
spondent and the Independent, Bunch, Martin, Sweatt, Griffin, and King openly
solicited employees for membership therein in the plant. Members of the re-
spondent's supervisory staff were well aware of the activities of the Bunch
group. Thus in-February or,March 1943, employee Robert `Bradford's father
informed- Superintendent Wissendanger of the strenuous solicitation of his son
and protested the pressure being put on him in the plant ' Employee Ed Baine
testified that his foreman, Burl Craft of the maintenance crew, on February
23, asked him if he had signed an Independent application card for Bunch the
day before. Baine replied that he had, whereupon Craft said that McGough
would do more for the employees than could Parker, who, although he had under-
taken to get them a raise in pay, had not done so. Craft denied speaking to Baine
respecting the Independent or the Union. Craft is hereinafter found to have
been a witness of dubious credibility, while Baine is found to have been a reliable
witness. The-undersigned credits the latter's testimony and finds that Craft
spoke to him as he stated.
After the contract was executed, intensive solicitation of membership, aided
by the contract provision requiring employee membership in the Independent,
continued 60
During the late -summer of 1943, Superuttend'ent Wissendanger resigned his
position: In the ensuing-adjustment, those principally responsible for the Inde-
61 Testimony to the effect that overtime was thereafter paid for work on holidays was not
contradicted , however, and the undersigned finds that the respondent paid overtime for such
work even though not required to do so by the terms of the contract The first hearing
preceded New Year 's Day and no inquiry was made at the second as to whether it was
deemed a holiday by the respondent.
0 In contrast to the Union , which published the text of its contracts in its newspaper, the
Independent neither published the text of its contract with the respondent nor did it post a
copy thereof.
63 The evidence is conflicting as to whether the contract was executed on May 15 or 22,
1943. The undersigned , from the weight of the credible evidence , finds that the notice was
in error and that the contract was in fact executed on May 15.
64 On the same day the respondent discharged Hubert Greene for failure to pay dues to
the Indpendent . His case is discussed infra.
66 Wissendanger was not shown to have taken any steps to abate the Independent's
tactics.
6e Among many instances thereof related by witnesses for the Board without contraihc-
tion , was that of employee Hazel Sherod whom King solicited in the plant on June 21, 1943.
Sherod who did not have the required payment on his person, went home during working
hours to get it, returned , paid it to King, and received a receipt therefor from him outside
the plant.
McGOUGH BAKERIES CORPORATION 873
pendent were given supervisory positions by the respondent. Bunch became sec-
ond foreman of production, King foreman in the shipping department, and Martin
foreman of the wrapping room."
The evidence reveals that the independent maintains no quarters and that as
of October 1943, it had presented no grievance to the respondent. Officers were
named by the small group tchich directed the Independent's affairs, despite re-
peated requests therefor, no meetings of the membership had taken place since the
execution of the contract. As is found infra, the respondent zealously enforced
the provisions of the contract with respect to its employees' remaining in good
standing with the Independent and discharged a number of employees, whose
cases are hereinafter considered, for their failure to do so.
4 Concluding findings
When the Union first began organization at the respondent's plant in 1942,
the group responsible for the Independent and which was thereafter promoted
to supervisory status, promptly undertook countermeasures against the Union
with the approi al of the respondent. Their efforts to frustrate the Union having
proved unsuccessful, the same group in February 1943, again began a strong
anti-union movement prior to the expiry of the Union's contract with the respond-
ent. When they approached McGough in that month, he advised them to seek
certification by the Board
Coincidentally with the renewed movement for an independent organization,
the respondent, as is found above, began a series of calculated violations of the
Union's contract, as well as refusals to bargain collectively with the Union,
culminating in a point-blnk refusal to so much as discuss with it a. renewal
of its contract. During the entire period to the execution of the May 15, 1943,
contract with the Independent, the respondent permitted and participated in open
solicitation of employees on company time and property by the Independent. A
week prior to that date, the respondent. as is found infra, discriminatorily dis-
charged three union adherents in its maintenance department. ,
On May 15, 1943, the iespondent precipitately granted the Independent ex-
clusive recognition and entered into a closed shop contract with it without requir-
ing proof of its majority representation 68
The chronology of events, the provisions of the Independent's constitution and
bylaws, the terms of its contract with the respondent, and the circumstances
surrounding its execution, together with all of the circumstances revealed by the
record, lead inexorably to the conclusion, and'the undersigned finds, that the
iespondent sponsored, aided, and on May 15, 1943, granted its creature exclusive
recognition, all for the purpose of destroying the Union and frustrating the rights
of its employees guaranteed in the Act. The undersigned-further finds that the
May 15, 1943, contract was the fruit of the respondent's'unfair labor practices
and that it tends to perpetuate their effects.
The undersigned finds that the respondent has dominated and interfered with
the formation and administration of the SBEI and the Chapter, and each of them,
and has contributed support to them, and by such acts, and by the acts and state-
ments of McGough, Wissendanger, and Craft, found above, has interfered with,
64 At the time of the October 1943 hearing, the officers of the SBEI were James Wise,
president, John Sweatt, vice president, and Arthur Odom, secretary-treasurer ; those of the
Chapter were Jinwright, president, Fred Green, vice president, and Ralph Murray secretary-
treasurer.
68 McGough explained that after the Union's contract expired on May 10, 1943, ". .. the
other folks presented their contract and asked for a contract. It seemed tome like the
way was clear, and I negotiated with them."
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrained , and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
C The refusals to bargain
1. The appropriate unit
The complaint alleged that all production, maintenance, shipping, and cleaning
employees of the respondent's Birmingham, Alabama, plant, exclusive of super-
intendents and foremen with authority to hire and fire, constituted a unit ap-
propriate for the purposes of collective bargaining As found above, there is
an extensive plant history of collective bargaining embodying such unit No
objection to the unit was raised by the respondent at the healing.
The undersigned finds that all production, maintenance, shipping, and cleaning
employees of the respondent's Birmingham, Alabama, plant, exclusive of super-
intendents and"foremen with authority to litre and tire, at all times material
herein, constituted and now constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
2. Representation by the Union of the majority of the respondent's employees
within the appropriate' unit
Parker credibly testified that the Union , on February 7-8, 1942, represented the
majority of the respondent 's employees within the unit above found to be ap-
propriate . fe McGough accepted the Union's statement to that effect at the time
and embodied recognition of the Union in the February 8 agreement as well as
in his letter to the Union of February 9. Attorney Pritchard , in his May 4 letter
'to the Board , stated "It was apparent that the Majority desired the C. I. O. at
the time when the original contract was entered into." The respondent at no time
questioned the fact of the Union 's majority representation until more than a year
thereafter when it on May 15, 1943, entered into an illegal contract with the
Independent.00
The undersigned finds that the Union was on February 8, 1942, and at all times
thereafter has been,81 the exclusive representative of all the respondent's em-
ployees in the appropriate unit for the purposes of collective bargaining with
respect to rates of pay , hours of employment , and other conditions of employment,
within the meaning of Section 9 (a) of the Act.
3. The refusals to bargain
As is found above, the respondent embarked upon a course of illegal conduct
in early 1943, including a calculated series of wilfull violations of the provisions
of its contract with the Anion and absolute refusals to meet with Parker respecting
the relations of the Union and the respondent thereunder. McGough thereafter
w Parker testified that the Union 's documentary evidence of such representation had been
lost or mislaid , the Union having obtained new membership applications from all employees
in the unit after its February 10, 1942 , contract with the respondent was executed.
60 McGdugh testified at the hearing that he did not believe that the Union represented the
majority at the February 7-8 meeting . The documentary evidence is to the contrary The
respondent , by its actions , clearly foreclosed itself from iaising any question regarding it
21 months thereafter.
61 Any shift of membership fioni the Union to the Independent must, under the circum-
stances of this case , be attributed to the respondent's unfair labor practices in its promo-
tion of the Independent . The unfair labor practices of an employer cannot operate to change
the bargaining representative freely selected by his employees . N. L R B . v. Bradford
Dyeing Ass 'n, 310 U S. 318.
McGOUGH BAKERIES CORPORATION 875
refused to so much as discuss the terms of new contract with the Union's repre-
sentative and instead entered into the illegal agreement with the Independent.
The refusals of the respondent to bargain collectively with the Union in violation
of the Act, are patent.
The undersigned finds that the respondent on February 23, 1943,62 and at all
times thereafter,, has refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit, and has thereby
interfered with, restrained, and ecereed its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
D. The discharges
1. Harrison, Prevo, and Means
The maintenance crew of the plant consisted of six Negro porters under Fore-
man B. H. Craft 62 Late in April and early in May 1943, the respondent trans-
ferred four porters to work on the ovens. Harrison, Prevo, Means and J. J.
Thompson were hired to replace them. The first three were discharged on
May 8, 1943, allegedly for unsatisfactory work.
The three dischargees joined the Union on May 4, 1943, through employee
Benny Collins, who took them to its headquarters. All three refused to join the
Independent.
Will Harrison. On May 6, Bunch asked Harrison to join the Independent
while he was working in the plant. Bunch told him that if he did so lie would
have a job as long as he wanted to work. Bunch also remarked that employee
Collins had been "getting all the boys . . . down to join the C. I. O. union."
Harrison said he was uncertain regarding joining the Independent, but would
let Bunch know. On May 7, Bunch again asked him to join the Independent and
sent another employee to see Harrison with an application card. Harrison re-
fused to sign it" At quitting time on May 8, Craft, according to Harrison, dis-
charged him for unsatisfactory work saying that he did so on orders from the
respondent's management, but told Harrison he believed his work to be satis-
factory. Craft denied speaking to Harrison as the latter testified, testified that
he had himself concluded to discharge Harrison because he could neither read
nor write and was therefore unable to perform certain tasks assigned him,'
and because he was old 66 and slow, and that he had no knowledge of Harrison's
union affiliation.
The evidence reveals that the porters mowed lawns, swept out the locker and
mixing rooms as well as the plant offices, sharpened blades, stacked materials,
and did other unskilled work necessary about the plant. It further reveals
that there was sufficient such work of this kind, not involving reading and writ-
ing, to occupy Harrison. Applications for employment were taken by an office
worker and indicated the applicant's education. Craft admittedly did not
examine Harrison's application. He discovered his illiteracy 2 or 3 days after
his employment, but said nothing to Harrison about it. Craft testified that he
62 The date of the Union 's letter requesting that Bunch , Griffin , and King be suspended by
the respondent because of their bad standing with the Union As found above, McGough
thereafter refused the Union's request, admitting that the respondent violated the terms of
the contract by doing so.
62 Craft became foreman of the gang in December 1942. Earlier that year, he had signed
the two petitions circulated against the Union by Bunch.
64 These findings are based upon Harrison 's undenied and credible testimony which the
undersigned accepts.
65 Weighing out ingredients used by the respondent in its baking operations.
06 Harrison was but 43 years of age when he testified.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
watched Harrison the day before the latter's discharge, found him-slow and
unable to do "everything," spoke to him about his deliberateness, and concluded
to dismiss him-"There was no special reason. He was fired for all of that."
Harrison credibly testified that he had received no criticism of his work.
Craft displayed an anxiety to be of assistance to the respondent so marked
as to render his testimony of little value. Thus in the second hearing herein,
he testified with. respect to the Baine discharge of December 6, 1°43, that he
(lid not know whether Baine had testified at the first hearing, that if he had,
he did not know the content of his testimony, that he did not remember denying-
the statements attributed to him by Baine at,that hearing, and that he did
not -know that Baine -was the sole union employee whp -testified respecting
Craft's anti-union statements in the plants.67 Linder the circumstances in the
case, Craft's testimony was clearly unreliable and the undersigned so finds.
He further finds that Craft did not in fact complain to Harrison of his work
either before or, at the time of his discharge and that he spoke to Harrison as
the latter testified.
In considering the discharges of May 8, it is to be borne in mind that they
occurred on the eve'of the execution by the respondent of its May 15 contract
with the illegal Independent and were clearly a part of its campaign to oust
the Union from the plant ; that Harrison, Prevo, and Means were union members
who stubbornly refused to join the Independent; and that the respondent, as
the undersigned, from the entire record, now finds, had knowledge of their union
membership. The fact that Thompson, who was simultaneously hired by the
respondent, was not discharged,e8 is also significant. He was not a union member
and had joined the Independent on May 5.
These facts, together with Craft's completely unconvincing explanation of
the respondent's reasons for dismissing Harrison, combine to convince the
undersigned that the respondent discharged him not for the reason that his
work was unsatisfactory, but because it desired to rid itself of a union adherent
whose presence in the plant might well interfere with the respondent's planned
ousting of the Union. He so finds.
James H. Prevo. On May 6, Bunch. asked Prevo to join the Independent,
stated that he knew Prevo was a member of the Union, and warned him that if
lie did not join the Independent within 10 days, he would be discharged. Prevo
refused to do as Bunch asked and denied his union membership.' On May 8,
according to Prevo, Craft discharged him for unsatisfactory work, stating that
he had received orders from the respondent to do so. Craft admittedly found
67 On cross-examination by counsel for the.Board , the•followmg colloquy occurred :
Q. Ed Baine was the only witness called on behalf of the Board that testified as
to something you had said against the CIO, wasn't he?
A. I don't know.
Q Well, you denied it, didn't you?
A. (No response.)
Q You don't recall that?
A. (No response.)
Mr. WHITTA KER May I have an answer from the witness?
The WITNESS . You will have to make your questions clearer I don ' t understand
what you want.
68 He was not employed by the respondent at the time of the hearing, however.
09 Asked by counsel for the respondent if he had ever told any employee that he bad
"heard [that the employee] had been to the CIO hall," Bunch answered, "No, Sir, I don't
recall saying anything about it." The undersigned does not consider Bunch ' s answer to
have constituted a denial of his knowledge of Prevo's membership in the Union . He makes
the above findings upon Prevo's credible testimony.
M cGOUGH BAKERIES CORPORATION 877
Prevo's work not unsatisfactory, and testified that it was "pretty fair." He
.denied telling Prevo that the respondent had ordered his discharge and testi-
fied that the decision to do so was his own. The undersigned has found Craft
an unreliable witness. He accepts Prevo's credible testimony respecting the
events surrounding his discharge, and finds that Craft spoke to him as he related.
Craft testified that Prevo whistled in the plant, was guilty of loud talking, wore
"toot suits" at work, and that although his work was "pretty fair," he discharged
him for these reasons and because Prevo "more or less was just not interested
in his work." The evidence reveals that the respondent had never previously
discharged an employee for making too much noise in the plant. The under-
signed found Prevo a young man of spirit who may well have exhibited some
exuberance in the plant. He testified, however, that he did not make excessive
noise while working for the respondent and that no warning had been given
him as to his conduct in this respect. The undersigned so finds. The respondent
had no rule governing the clothing which might be worn by porters and had not
warned Prevo on the subject.
Upon all of the circumstances surrounding Prevo's discharge, as well as the
considerations stated above in connection with that of Harrison, the undersigned
is convinced and finds that the respondent rid itself of Prevo,- not-for.the reasons
variously advanced by it, but because of his union membership and his refusal to
join the Independent.
Albert Means. On May 4, Bunch asked Means, according to the latter's testi-
mony, to join the Independent. Means expressed doubt about doing so. Bunch
then told him that unless he did so he would not be "recognized," that Bunch
wanted all the employees to "join the contract with the company union" to the
end that he would become "top foreman," and that he "figured" that Means "pulled
with" employee Collins."
Bunch denied having told Means that he might become "top foreman." In the
light of the events previously found, including Bunch's subsequent elevation to
foremanship, as well as all the surrounding circumstances, together with the
fact that he found Means a credible witness, the undersigned rejects Bunch!s
denial and finds that lie expressed himself to Means as the latter testified. On
May 7, according to Means' undenied testimony, which the undersigned accepts,
Bunch again asked him to join the Independent in the plant. Means refused.
On May, 8, Craft; discharged Means, telling him ". . . your work is not satisfac-
tory, is what they told me."
Craft testified that he discharged Means because the latter "did not seem to
take any pains with [his work], . . . and it just seemed like I could not get
anything out of him, lie more or less just was not interested in his work."
Means testified without denial, and the undersigned. finds, that he received no
criticism of his work while in the employ of the respondent.
The undersigned is convinced, upon the entire record in the case, that the
respondent did not discharge Means because his work was unsatisfactory, but
in fact dispensed with his services on account of its desire to rid itself of him
because of his membership in the Union and his refusal to join the Independent.
He so finds.
10 The undersigned infers and finds that Bunch warned Means that unless the latter
joined the Independent, he could not keep his job and that Bunch informed Means that he
knew of his=union leanings.
nA`het upd6ralk4sd'-rejects Crafts' testimony that he discharged Means at his own
discretion.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
• 2 Hubert Greene
Greene was discharged by the respondent on or about July 27. 1943, because he
failed to remain in good standing with the Independent." He had joined the
Union on July 7, 1943 The May 15, 1943, contract having been found illegal
because entered into with a dominated labor organization, the respondent was not
justified in discharging Greene for the reason advanced The undersigned finds
his discharge to have been discriminatory and in violation of the provisions of
tl}e Act.48
3 Walter Turner
Turner worked as a mechanic in the respondent's garage from 1937 to _May
1943, when he was transferred to the ovens in the plant. He joined the Union
during May 1943, and thereafter obtained seven applications for membership
from fellow employees in the plant. He also urged his colleagues to attend
meetings of the Union. During May, King asked him to join the Independent
but 'turner refused to do so." During July, Turner asked a number of fellow
Negro employees to refuse to pay dues to the Independent, received their promises
to do so, and prophesied that the Union would "get another contract with Mr.
McGough." There were defections among the employees and Turner thereafter
told them at work that they "were mighty dirty, yellow up the back, to sneak
upstairs and pay their dues, where we all agreed to stick together and not pay
our dues . . . [to the Independent] " Later the same day, Supervisor, Doss told
Turner to stop "cussing men around there " Turner took part in an abortive
work-stoppage directed against paying dues to the Independent at the time of
Greene's discharge in July, but later, on Parker's advice, paid his dues to that
organization and returned to good standing therein.
On September 13,1943, Bunch discharged Turner as "undependable" Docu-
mentary evidence produced by the respondent reveals that he was 15 minutes
late to work on August'22, that he was""Out-Did Not Call." on august 29, was
penalized therefor by the respondent with the usual 2-day lay-off, and was 40D
minutes late on September 12. Turner testified that he had experienced trans-
portation difficulties and overslept on one of these occasions. The record indi-
cates that other-employees who had lateness records similar to Turner's were
not discharged therefor.'" Bunch told him that his September 12 tardiness wag
the cause for his discharge.7'
72 Earl Doss , superintendent of production , so testified The Independent had ceitifled!
Greene to the respondent as being delinquent in the payihent of his dues to it
73 International Ass'n of Afach .nists v N L R B , 311 U. S 72
74 Shortly after the respondent contracted with the Independent , Turner told Bunch that
the respondent ' s employees were losing pay under the contract since it was less favorable
to them than those between other bakeries and the Union Bunch referred him to McGough.
The evidence is silent as to whether Turner spoke to the latter , however At or about this
time , according to Turner 's undenied testimony , which the undersigned accepts, Bunch
asked him where he got the idea that the Union's contracts were more favorable for the
employees covered than the Independent's, and told Tuiner to " leave the men alone" respect-
ing the Union
75 Ciceio Jordan was 15 minutes late on August 26, 30 minutes on September 6, and 15
minutes on September 13 , Henry Mamon was a total of an hour late on three occasions dur-
ing August ; W. L. Mills was a total of 2 hours late on two occasions (luring August and
about 15 others were late from one to three times during the same period
71 Bunch also testified that Turner had recently had a disagreement with employee Collins
during which he allegedly tried to strike Collins with a hot'pan and that Turner did'not
follow orders in "dumping" bread as he was told to Since Bunch mentioned neither of
these incidents to Turner before or at the time of his discharge and based the dismissal solely
on Turner 's tardiness on September 12. the undeisigned does not accod them more than
slight weight in evaluating the real reason for his discharge
McGOUGH BAKERIES CORPORATION 879
Superintendent Doss could name no other employee discharged by the re-
spondent for being late."
Turner's active antipathy for the Independent and militant advocacy of the
Union were well known to the respondent. His was the only discharge for
tardiness in the fnemory of the plant superintendent In view of the respondent's
unrelenting campaign to oust the Union from its plant, it is clear to the under-
signed that it was motivated in discharging Turner by its easily understood
desire to rid itself of him oil account of his undeviating adherence to the Union
and continued anti-Independent activities. that it seized upon his tardiness on
September 12 merely as a pretext for doing so. and that it advanced its further
pretended reasons in an effort to furnish retrospective justification therefor.
He so finds
E The etents of September 1943
1 The strike
Resistance by the Union to the Independent. particularly its dues collections
enforced by the respondent's supervisors in the plant, continued after Turner's
discharge, and reached a climax on September 28, 1943. On that day the
respondent refused a number of employees admission to the plant to work because
of their failure to pay their dues to the Independent. Others walked out in
protest. Parker, accompanied by a union committee," urged Doss to permit the
employees to go to work, but was refused. The strike continued to September
30, 143, when those who had walked out returned to work
Directed against the respondent's enforcement of the dues provision of its
illegal contract with the Independent, the strike was clearly one of protest
against the unfair labor practices of the respondent. It follows, and the under-
signed finds, that the strike was caused and prolonged by its unfair labor
practices.
2• The discriminatory discharges
The Independent certified to the respondent the names of the employees whose
cases are hereinafter discussed, as delinquent as of September 28, 1943.
Rupert Mullally, a union member who had worked for about a year for the
respondent, was told by Superintendent Doss in the plant on September 27, 1943,
that if lie did not regain good standing with the Independent he would not he
permitted to work the next day Mullally refused He did not work on Septem-
ber 28. On September 29 or 30, he told Doss that he desired to pay his dues,
and was referred to Jinwright, an officer of the Independent. Mullally offered
to pay his dices to Jinwright on that day in the plant 'O Doss thereupon told
him he was no longer needed by the respondent. Mullally finally spoke to Jin-
wright that evening outside the plant, but the latter refused to accept his
proffered payment, saying, "I think I will let it go a day or two until this thing
sort of cools under." On about October 1, he received his release, marked "quit"'
from Doss and left the plant. He testified and the undersigned finds, that he,
did not resign his position.
" Doss testified that Turner ' s "laying out " was also responsible for his discharge Under
all of the circumstances revealed by the record in connection therewith, the undersigned does
not credit Doss' testimony in this regard
43 The evidence reveals that after the Independent ' s contract ii as executed a large number
of the respondent ' s employees paid dues to the Independent and simultaneously maintained
their good standing in the Union Parkei urged them to pay their dues to the, Independent
to the end that they be allowed to continue to work for the respondent.
i° On one occasion Doss refused the 25 cent coin proffered him by Mullally who asked that
he give it to Jmwright in payment of dues
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mullally's discharge was the result of the operation of the illegal contract be-
tween the respondent and the Independent . The undersigned finds that the re-
spondent discriminatorily discharged him.
Richard Ott , a union member , was warned by Doss to attain good standing with
the Independent on September 27. ' Ott informed Doss that he.would not work
on the following day. On September 29, Jinwright refused to accept Ott's
proffered payment of dues. On Septeiber 30, Doss prevented his._seeipg Jin-
wright in the plant , but he finally spoke to the latter with Mullally that evening.
Jinwright refused to accept his proffered payment, saying that it would be a day
or two before Ott could return to work. On October 1 or 2 he asked Doss for
permission to return to work and was refused. On the morning of October 3 lie
paid his dues to Ralph Murray, an officer of the Independent , and Bunch there-
upon permitted him to return to work.
The undersigned finds that the respondent discriminated against Ott in regard
to the hire and tenure of his employment.
Willie Mills, a union member, was told by Doss on September 27 to get in good
standing with the Independent . Mills did not do so. On September 28, he did
not work and accompanied Parker and the union committee when Doss informed
the deputation,that the well would not be permitted to work before paying their
dues to the Independent . On September 30, he informed Doss and Bunch that
he had paid his dues to the Independent the night before, but wanted a release
"until they got things straightened out." b0 He received a separation notice marked
"quit." On October 8, he applied for work to Doss. Doss told him that his old
job was filled and that it would disturb arrangements it it were given to Mills.
Mills offered to come back as a new employee. He was not employed."
The undersigned is of the opinion that the illegal requirement , enforced by
the respondent , that Mills pay dues to the Independent in order to remain in
its employ constituted a constructive discharge by the respondent and-that when
Mills left his employment rather than do so, he did so as the result of such
discharge and, under all of the circumstances disclosed in the record, involun-
tarily. The undersigned so finds. The undersigned further finds that the re-
spondent upon his application 'for work at the plant as a new employee, dis-
criminatorily refused to employ Mills because of his union membership and
activity and resistance to the Independent and its management , exemplified by
his fruitless endeavor to obtain a meeting thereof, his September-28 visit to, Doss
with Parker and the union committee , and his final refusal to pay dues to the
creature of the respondent.8'
Henry Manton , a union member who had worked for the respondent since
April 1940 , was told by Doss on September 27, while at work in the plant, that
he would have to attain good standing in the Independent in order to work on
September 28, and that Doss was tired of being compelled to speak to him every
month respectiiig his dues in that organization . Maroon did not work the fol-
lowing day . On September 29, he offered his dues payment to Jinwright who
told him he would have to wait 3 or 4 days before returning to work. That
evening he spoke to President McGough about his predicament . McGough told
him that the respondent had "nothing to do with it." On October 1 he procured
a separation notice from the respondent . It was marked "quit."
The undersigned , finds that the respondent has discriminated against Marron "
in regard to the hire and tenure of his employment.
41 He testified and the undersigned finds , that "he was tired working the way things were
there," and that he resented that Martin , who, though he had promised Mills to do so, failed
to "give" the employees a meeting of the Independent
81 Although the amended complaint did not allege the respondent ' s refusal to employ Mills
as discrimination , it was litigated as an issue of alleged discrimination.
McGOUGH BAKERIES CORPORATION 881
Frank Acey, Jr. On Septetmber 27, Foreman J. M. Moss told Acey to pay up his
dues to the Independent. He did not do so and did not work on September 28.
On September 29,•he paid them to Jinwright to whom he was directed by Moss.
Jinwright told him to come to work on September 30 and to say nothing about
it to the other employees who were not working `2
The undersigned finds that the respondent has discriminated against Acey in
regard to the hire and tenure of his employment.
Tom Duncan. Duncan began working for the respondent in 1926. He joined
the Union in February 1942. On September 27, 1943, Jinwrigbt announced to
Duncan that if his dues to the Independent were not paid by the next day he
would be unable to work. Duncan did not pay then and reported for work on
September 28. Superintendent Doss, to whom he spoke on his way in to the plant,
told him he could not work without paying hi§, dues. He thereupon entered the
plant and spoke to Foreman Bunch. Bunch reiterated Doss' statement. Duncan
told Bunch he thought the Independent should "give us it meeting." He did not
work September 28 or 29, paid his dues to Jinwright on September 30, and was
thereupon permitted to return to work where he again spoke to Bunch respecting
a meeting. Bunch told him that but for Mills' having tried to "force" a meeting,
he, Bunch, would have "given" the employees a meeting.'
The respondent prevented Duncan from working on September 28 and 29 be-
cause he did not pay dues in conformity to the requirement of its illegal contract
with the Independent. The undersigned finds that by so doing, it has discrimi-
nated against him in regard to the hire and tenure of his employment.
H. A. McCowan, Charles A Stone, and Tommy Butera, all members of the
Union, were likewise prevented by the respondent from working on September 28
because they were in arrears in dues to the Independent. Stone and Butera
thereafter paid their dues and were permitted to return on October 1, and Octo-
ber 3, respectively. McCowan did not return to work."
The undersigned finds that the respondent has discriminated against McCowan,
Stone, and Butera in regard to the hire and tenure of their employment.
F. Ed Baine
Baine was employed by the respondent as a porter in 1937, and continued as
such until December 6, 1943, when it discharged him.
On October 18, 1943, he testified in the first healing herein, that Foreman
Craft, as found above, during February 1943, asked him whether he had joined
the Independent, and upon being informed that Baine had done so, stated that
McGough would do more for him than could the Union and that Parker had not-
procured for the Union members the increase in pay he had promised them.
Baine credibly testified that after his appearance on the stand, Foreman Craft
and Bunch watched his work more carefully than before and that with one ex-
ception, although other porters with less seniority than his continued to re-
ceive overtime, he thereafter received none. Bunch did not testify in the second
hearing. Craft denied watching Baine more closely' than before. The under-
signed has found him an unimpressive witness. The respondent produced no
eY Acey ' s credible and undenied testimony.
83 Bunch denied speaking to Duncan about a meeting. The undersigned in the light of
all of the circumstances revealed in the record . and because he found Duncan a reliable
witness, rejects Bunch 's denial.
83 Although the record is silent respecting McCowan's actions after September 28, the
undersigned finds from the entue evidence.in the case , that while Stone and Butera paid
their dues to the Independent , Mc.Cowan refused to do so.
609591-45-vol. 58-57
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records in refutation of his being denied overtime. The undersigned finds that
the events transpired as related by Baine.
On November 17, Baine became ill, so informed Superintendent Doss and Fore-
man Craft, and received their permission to go home. He remained out of the
plant for more than 2 weeks. On December 4, he notified the respondent that he
would return to work on December 6. When he reported to Craft-on the morning
of that day, Craft told him, "I don't think they intend to let you work any
more . . . you just seem to be out so long until it don't seem like you have been
here " Baine told Craft that, in view of the respondent's actions respecting him
since the prior hearing, he was not surprised at its decision to discharge him.
Later the same day he received his discharge from Superintendent Doss who, for
the first time told him that be was becoming too slow in his work Baine's
separation notice was noted "Not satisfactory."
Baine testified without contradiction, and the undersigned finds, that the
respondent at no time criticized his work prior to his discharge on December 6.
The respondent contended at the hearing that it dismissed Baine because: (1)
he was not in fact ill from November 17 to December 6. but quit work because
he resented being required to "break in" new employees, (2) he was slow in the
performance of his duties as porter, and (3) could not get along with other
porters.
As found above, neither Doss nor Craft raised any question regarding Baine's
good faith in going home on November 17. Craft testified that a week or 10 days
thereafter, he sent employee Sam Arrington to Baine's home to inquire as to his
condition and that Arrington reported to him that he had found Baine's door
locked. Baine denied having been away from home during his absence from the
plant except for short walks in the neighborhood during the later stages of his
illness He further testified, without contradiction, and the undersigned finds,
that shortly after Arrington's alleged visit, the latter again appeared at his home
and procured the key to a church which Baine ordinarily swept out for Foreman
Kewish, in order that someone else might perform that task while he was unable
to do, so. Although Craft was aware of this event, he testified that he did not
inquire of Arrington respecting Baine's condition. Although he was employed
by the respondent during the second hearing, Arrington was not called as a wit-
ness. The undersigned, in the light of all of the circumstances revealed by the
record, concludes and finds that Baine was not absent from his home on the
occasion which Arrington allegedly reported to Craft. He further concludes and
finds that, although Baine did riot obtain the services of a physician during his
absence from the plant, his illness was nevertheless genuine.
Baine admitted that he did not enjoy instructing new employees in their
duties in the department because doing so resulted in his having to devote longer
periods to the accomplishment of his own work than would otherwise have been
necessary. He also admitted that he had so informed fellow porters but denied, as
testified by employees Melvin Smith and Cleveland Love, that on November 17 he
had told them that be would quit or pretend to be ill in order to avoid doing so.
Both Smith and Love testified that they first informed Craft to that effect during
the latter part of January 1944, shortly before the second hearing herein, and
that they had not so informed any other foreman. Craft testified that Smith
had so informed him on the day Baine left the plant. The undersigned, from all
of the evidence, finds that Baine'did not tell Smith and°Love that lie was pretend-
ing to be ill in order to avoid instructing new employees, and that they did -not
inform Craft that he had done so until just prior to the second hearing herein.
As to Baine's alleged slowness, it is undisputed that neither Doss nor Craft
ever spoke to him about it before his illness, that the respondent had no records
McGOUGH BAKERIES CORPORATION 883
demonstrating such alleged slowness, and that Craft never complained about it
to Doss. Both Doss and'Cratt testified that they determined to discharge Baine
while he was ill, Cratt adding that while there was nothing wrong with the way
Baine did his work and that it was not unsatisfactory, he was discharged for
"just everything together, just got tired of the same thing over and over, seeing
none of the men could get along with him, of anything else." No evidence by
fellow porters that they had difficulty in getting along with Baine was adduced
by the respondent.
The undersigned is convinced and finds, from the entire record in the case,
that the respondent discharged Basile not because of any of the reasons variously
advanced by it in retrospective justification therefor, but because it resented
his damaging testimony at the former hearing By discharging him because he
gave testimony under the Act, it has acted in violation of the provisions thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above , occurring in
connection with the operations of the respondent 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 and have led to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in and'is engaging
in certain unfair labor practices, it will be recommended that it cease and desist
therefrom and take certain affirmative action which the undersigned finds will
effectuate the policies of the Act.
It has been found that the respondent has dominated and interfered with the
formation and administration of the SBEI and the Chapter, and each of them,
and has contributed support to them. The effects and consequences of such
domination, interference, and support render the SBEI and the Chapter, and
each of them, incapable of serving the respondent's employees' as genuine col-
lective bargaining agencies, and the recognition of -both or either of them as
the bargaining representative(s) of the respondent's employees constitutes a
continuing obstacle to the free exercise by the employees of their right to self-
organization and to bargain collectively through representatives of their own
choosing. It will therefore be recommended that the respondent withdraw all
recognition from and completely disestablish the SBEI and the Chapter, and
each of them, as the representatives of any of its employees for the purposes of
dealing with the respondent concerning grievances, labor disputes, wages, rates
of pay, hours of employment or other conditions of employment.
It has been found that the contract bet« een the respondent and the Chapter,
dated May 15, 1943, is invalid because it was made with a labor organization
which had been assisted by unfair labor practices. It will therefore be recom-
mended that the respondent cease and desist from performing or giving any
effect to such contract, as well as to any extension, renewal, modification, or
supplement thereof, or any superseding contract which may now be in force
with the SBEI, the Chapter, or both, relating to grievances, labor disputes, rates of
pay, hours of employment or other conditions of employment. Nothing herein,
however, shall be deemed to require the respondent to vary or abandon those
wage, hour, seniority, and other substantive features of its relations with the
employees themselves, which the respondent may have established in perform-
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance of the contract , as extended, renewed, modified , supplemented , or superseded.
It has been found that the respondent has refused to bargain collectively with
the Union. It will therefore be recommended that the respondent , upon request,
bargain collectively with the Union.
It has been found that the respondent has discriminated in regard to the hire
and tenure of employment of the employees whose names are listed in Appen-
dices A and B hereof, and has discriminated against and discharged Ed Baine.
The undersigned will therefore recommend that the respondent offer those whose
names are listed in Appendix A and. Ed Baine' immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges 86 The undersigned will fur-
tiler recommend that the respondent make them whole for any loss of pay they
may have suffered by reason of the respondent's discrimination against them,
by the payment to each of them of a sum of money equal to that which lie would
normally have earned as wages from the date of such discrimination to the date
of the offer of reinstatement, less his net earnings n during said period. The
undersigned will further recommend that the respondent make whole those
whose names are listed in Appendix B for any loss of pay they may have suffered
by reason of the respondent's discrimination against them by the payment to
each of them of a sum of money equal to the amount he would normally have
earned during the period of the respondent's discrimination against him to the
date he returned to its employ, less his net earnings sa during said period.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. United Bakery Workers Local Union No. 441 of Alabama, affiliated with
the C. I. 0., Southern Bakers Employees, Inc., and Birmingham Chapter No. 1
of Southern Bakers Employees, Inc., affiliated with Southern Bakers Employees,
Inc., are labor organizations, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration
of Southern Bakers Employees, Inc., and Birmingham Chapter No. l 'of Southern
Bakers Employees, Inc., affiliated with Southern Bakers Employees, Inc., and
each of them, and contributing support to them, the respondent has engaged iii
and is engaging in unfair labor practices, within the meaning of Section S (2)
of the Act.
ss Those whose names are listed in Appendix B, having subsequently returned to uuork for
the respondent , the usual recommendation that they be offered reinstatement will not be
made as to them
86 Several of those whose names are listed in Appendix A testified that they did not wish
to ietuin to w oik foi the respondent under the conditions obtaining when they were dis-
charged Under the circumstances of this case , the undersigned finds that , irrespective of
such testimony , it will effectuate the policies of the Act to require the respondent to offer
them reinstatement . The undersigned makes the sane finding in the case of those, if any,
who may have obtained substantially equivalent employment elsewhere subsequent to the
respondent 's discrimination against them.
87 By "net earnings " is meant earnings less expenses , such as for transportation, room, and
board, incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent , Which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking employment elsewhere See Matter of Crossett
Lumber Company and United Brotherhood of Carpenters and Joiners of America , Lumber
and Sawmill Workers Union, Local 2590 , 8 N L R B 440 Monies received for work per-
formed upon Federal , State, county , municipal , or other work-relief projects shall be con-
sidered as earnings . See Republic Steel Coiporatioa v N. L R B , 311 U. S 7.
sa See footnote 87, above.
McGOUGH BAKERIES CORPORATION 885
3. All production , maintenance , shipping, and cleaning employees of the re-
spondent 's Birmingham , Alabama, plant, exclusive of superintendents and fore-
men with authority to hire and fire, at all times material herein constituted and
now constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
4. United Bakery Workers Local Union No 441 of Alabama, affiliated with the
C. I. 0., was on February 8, 1942, at all times thereafter has been, and now
is the exclusive representative of all employees of the respondent in such unit
for the purposes of collective bargaining, within the meaning of Section 9 (a)
of the Act.
5. By refusing on February 23, 1943, and at all times thereafter, to bargain
collectively with the United Bakery Workers Local Union No. 441 of Alabama,
affiliated with the C. I. 0., as the exclusive representative of its employees in
the appropriate unit, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (5) of the Act.
6. By discriminating in regard to the hire and tenure of employment of the
employees whose names are listed in Appendices A and B, the respondent has
engaged in and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
7. By discriminating against and discharging Ed Baine, because he gave testi-
mony under the Act, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (4) of the Act.
8. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, McGough Bakeries Corporation,
Birmingham, Alabama, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the administration of
Southern Bakers Employees, Inc. and Chapter No. 1 of Southern Bakers Em-
ployees, Inc, affiliated with Southern Bakers Employees, Inc, or either of them,
or with the formation and administration by any other labor organization of its
employees, and from contributing support to such organizations;
(b) Recognizing Southern Bakers -Employees, Inc., and Chapter No. 1' of
Southern Bakers Employees. Inc., affiliated with Southern Bakers Employees,
Inc., or either of them, as the representative(s) of any of its employees for the
purpose'of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employment;
(c) Perfoiming or giving effect to its agreement of May 15, 1943, with Chapter
No. 1 of Southern Bakers Employees, Inc., affiliated with Southern Bakers Em-
ployees, Inc, or to any extension. renewal, modification, or supplement thereof,
or to any superseding contract with said organization which may now be in force;
(d) Refusing to bargain collectively with United Bakery Workers Local Union
No. 441 of Alabama, affiliated with the C. I. 0., as the exclusive representative
of all production, maintenance, shipping, and cleaning employees of its Birming-
ham, Alabama, plant, exclusive of superintendents and foremen with authority
to hire and fire, with respect to rates of pay, wages, hours' of employment, "and
other conditions of employment ;
(e) Discriminating in regard to the hire and tenure of employment of any
of its employees because of their membership in or activities on behalf of United
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bakery Workers Local Union No. 441, of Alabama, affiliated with the C. I. 0.,
or because they give testimony under the Act;
(f) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization. to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted actii'ities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7 of the
Act
2. Take the following affirmative action which the undersigned finds will
effectuate the purposes of the Act: '
(a) Withdraw and withhold all recognition from Southern Bakers Employees,
Inc., and Birmingham Chapter No 1 of Southern Bakers Employees, Inc., affiliated
with Southern Bakers Employees, Inc, and each of them, as the representative(s)
of any of its employees for the purposes of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, and completely disestablish them as such
representatives;
(b) Upon request, bargain collectively with United Bakery Workers Local Union
No. 441 of Alabama, affiliated with the C I 0 , as the exclusive representative
of all production, maintenance, shipping, and cleaning employees of its Birming-
ham, Alabama, plant, exclusive of superintendents and foremen with authority
to hire and fire, with respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(c) Offer to the employees listed in Appendix A and Ed Baine, immediate and
full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges;
(d) Make whole the employees listed in Appendices A and B, and Ed Baine for
any loss of pay they may have incurred by reason of the respondent's discrimina-
tion against them, in the manner set forth in the Section entitled "The remedy"
above;
(e) Post immediately in conspicuous places throughout its Birmingham, Ala-
bama, plant, and maintain for it peiiod of at least sixty (60) consecutive days,
notices to its employees stating (1). that the respondent will not engage in the
conduct from which it is recommended that it cease and desist in paragraphs
1 (a), (b), (c), (d), (e), and (f) hereof; (2) that the iespondent will take the
affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) hereof; and
(3),that the respondent's employees are free to become and remain members of
United Bakery Workers Local Union No 441 of Alabama, affiliated with the
C. I 0., and that the respondent will not discriminate against any employee
because of his membership in or activity on behalf of that organization ;
(f) Notify the Regional Director for the Tenth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply therewith
It is further recommended that unless on or before ten (10) days from the date
of the receipt of this Intermediate Report the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any party
or counsel for the Board may within fifteen (15) days from the date of the entry
of the order transferring the case to the Board , pursuant to Section 32 of Article
II of said Rules and Regulations , file with the Board, Rochambeau Building,
McGOUGH BAKERIES CORPORATION 887
Washington, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof Immediately upon the filing of such statement or exceptions and/or
brief, the party or counsel for the Board filing the same shall serve a copy thereof
upon each of the other parties and shall file a copy with the regional Director.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case- to
the Board.
JOSEF D. HEKTOEN,
Trial Examiner.
Dated March 11, 1944.
APPENDIX A
Will Harrison Rupert Mullally
James H Prevo Willie Mills
Albert Means Henry Mainon
Hubert Greene 11. A McCowan
Walter Turner
APPENDIX B
Richard Ott Charles A. Stone
Frank Acey, Jr. Tommy Butera
Tom Duncan
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