Southern Prison Co.

National Labor Relations Board - Board Decisions

Jan 22, 1943

46 N.L.R.B. 1268 (N.L.R.B. 1943)

In the Matter of SOUTHERN PRISON COMPANY AND SOUTIIERN STEEL
COMPANY, and INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL,
AND ORNAMENTAL IRON WORKERS SHOPMEN'S LOCAL 583
Case No. C-2312.-Decided January 22,1943
Jurisdiction : steel equipment manufacturing industry.
Unfair Labor Practices
Interference, Rest) aunt, and Coercion: charges of, 'dismissed, when isolated state-
ments made during the course of bargaining were found not to violate the Act
nor indicate bad faith.
Collective Bargaining: charges, of, dismissed, when upon request respondents ac-
corded union recognition as exclusive bargaining representative of employees
in an appropriate unit, and thereafter whenever requested met with union, hon-
estly considered its proposals, fully explained their own position as to each of
union's proposals, clearly set forth in various counterproposals the terms upon
which they would enter into a collective bargaining agreement with union, and
during course of, negotiations made substantial concessions to union's demands ;
grant of individual wage increases during negotiations held under circumstances
not to violate Section 8 (5) of the Act. °
Practice and Procedure : complaint dismissed.
DECISION
AND
ORDER
On August 27, 1942, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondents had
engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and ,take certain
affirmative action as set out in the copy of the Intermediate Report
attached hereto. Thereafter the respondents filed exceptions to the
Intermediate Report and a brief in support of the exceptions. The
Board has considered the rulings of the Trial Examiner at the hearing
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The board has considered the Intermediate Report,
the exceptions and brief, and the-entire record in the case, and hereby
adopts the Trial Examiner's findings to the extent consistent with the
conclusions hereinafter set forth.
Upon our consideration of the record we are satisfied and find, con-
trary to the finding of the Trial Examiner, that the respondents did
46 N. L. R. B., No. 156.
1268
I
SOUTHERN PRISON COMPANY 1269
not refuse to, bargain collectively with the Union within the meaning
of Section 8. (5) of the Act. On February 24, 1941, upon request, the
respondents accorded the Union recognition as the exclusive bargain-
ing representative of the employees in an appropriate bargaining unit.
Thereafter the respondents, whenever requested, met with the Union,
honestly considered its proposals, at all times fully explained, their
own position as to each of the Union's proposals, and, in addition,
clearly set forth in various counterproposals the terms upon which
they would enter into a collective bargaining agreement with the
Union. Further; during the course of the negotiations the respondents
made substantial concessions to the Union's demands.
It, is true, as the Trial Examiner found, that the respondents
granted individual wage increases during the period of the negotia-'
tions, but the record establishes beyond question that the Union re-
fused the offers of the respondents to bargain on individual wage
increases and insisted at all times throughout the lengthy negotiations
upon a blanket wage increase. Moreover, it is undisputed that these
wage increases were promulgated without discrimination pursuant to
a long-established policy of the respondents. The granting of in-
dividual wage increases averaging 16 cents an hour to the shopmen
who were continuously in the employ of the respondents throughout
the bargaining negotiations, does not establish, as the Trial Examiner
concluded, that the respondents were acting in bad faith in denying
the Union's request for a blanket increase of a substantially similar
amount. Only 33 or 34 of the approximately 165 employees in the
unit on the respondents' pay roll at the termination of the bargaining
conferences received the 16-cent increase. ,
Similarly, the Trial Examiner construed statements made 'by the
representatives of the respondents' during bargaining conferences to
be in derogation of the Union and its business agent and conse-
quently to be violative of the Act and indicative of an unwillingness
on the part of the respondents to bargain in good faith. We do not
attach any coercive significance to these isolated statements made dur-
ing the course of bargaining conferences under the circumstances here
disclosed and find that they were neither violative of the Act nor
indicative of bad faith.
Finally, the Trial Examiner found that the respondents' insistence
that a provision be incorporated into'a'contract providing that. the
International and its affiliates would not discriminate, against the
respondents, reflected bad faith, We find nothing in the inclusion of
The respondents contend that the purpose of this provision was (1) to avoid any dif-
ficulty which might arise from the fact that certain of its shop employees on occa-
sion worked as outside erectors and (2) to preclude the International from exerting its
influence upon the respondent's customers thereby causing them to cancel contracts with
the respondents.
1270 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
'this provision 'to warrant a finding That the respondents have failed
to bargain collectively in good faith.
We conclude, accordingly, that the respondents have not refused
to bargain collectively with the Union and have not interfered with',
restrained or coerced their-employees in 'the exercise of the.rights
guaranteed in Section 7'of the Act.
ORDER
,Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that.the complaint against Southern Prison
Company and Southern Steel Company, San Antonio, Texas, be, and
it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Bliss Daffan , for the Board.'
Mr. Theo F. Weiss and Mr. A. V. Knight, of San- Antonio , Texas, for the
respondent. - ' '
&!r. R-E. Swayze , of San , Antomo, Texas , for the Union. -
STATEMENT OF THE CASE
Upon an amended charge duly filed on May 9, 1942 , by International Association
.of -Bridge , Structural , and Ornamental Iron Workers, Shopmen 's Local 583,
affiliated with the American Federation of, Labor, herein called the Union, the
National Labor Relations Board, herein called the Board , by the Regional
Director for the Sixteenth Region ( Fort Worth, Texas ), issued its complaint
dated May •27, 1942 , against'the Southern Prison Company and Southern Steel
Company, herein called the respondents , ' alleging that the respondents had en,
gaged in and were engaging in unfair labor -practices affecting commerce within
,the•meaning _of.,Section 8 (1) and -( 5) , and , Seetion 2, ( 6) and . (.7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies'of the complaint,
accompanied by notices of hearing thereon, were duly served upon the respondent
'Southern Prison Company and the Union. At the hearing , service of the com-
plaint and of the notice of hearing thereon was waived by respondent Southern
Steel Company.
With respect to the unfair labor practices , the complaint alleged in substance
that the respondents , on or about February 28, 1941, and at all times thereafter,
refused to bargain collectively with the Union through its duly authorized agent
as the exclusive representative of all the employees in the unit described in the
complaint ; that the respondents from on or about April 1, 1941, to the date of the
issuance of the complaint urged, persuaded , and warned its employees to refrain
from aiding, becoming, or remaining members of the Union, interrogated em-
ployees relative to membership in said Union , threatened employees with dis-
charge and other reprisals if they aided said Union or engaged in concerted
activities with reference thereto, promised them benefits if they did not become
members of said Union , and, granted' individual wage increases to employees to
discourage membership in said Union.
SOUTHERN PRISON 'COMPANY 1271
In their joint answer filed on June 4, 1942, the respondents admitted that they
were duly organized as Texas corporations doing business in the city of San
Antonio, Texas ; alleged that cthe Union, though a labor organization, was not
authorized to bargain and contract without authority from the International
Association of Bridge, Structural, and Ornamental Iron Workers -which,'it was
claimed, was•the real party in interest and it necessary party to zthisi proceeding;
alleged further that the respondents and the Union had agreed upon a unit other
than the one described in the complaint; recognized the Union as the exclusive
bargaining agent of their employees, though they stated that they did not know
whether a majority of their employees had designated the Union as their repre-
sentative, and, on information and belief, denied the allegations of the paragraph
of the complaint which alleged the existence of such majority; denied that any
one duly authorized by the Union to bargain and contract ever made a request
to bargain collectively with the respondents, that a majority of the employees
of the respondents in the unit described in the complaint designated the Union
as their representatives for the purpose of collective bargaining, that the Union
has been, or was at the time of the filing of the answer, the exclusive representa-
tive of the employees in said unit for the purpose of collective bargaining, that
it refused to bargain collectively with the Union and thereby engaged in unfair
labor practices, or that they have engaged in other unfair labor practices alleged
in the complaint.
Further answering, the4espondents•affii•matively alleged that,they made-bona
fide efforts to reach an agreement with the Union during a long series of collec-
tive bargaining conferences and claimed that failure to reach an agreement was
caused by the Union's unyielding, arbitrary, and unreasonable attitude. They
also stated that negotiations were finally terminated and broken off by the Union,
not by the respondents, and that the respondents had at all times been, and were
at the time of answering, ready and willing to bargain collectively with any
labor organization representing a majority of their employees.
Pursuant to notice, a hearing was held on June 18 through June 26, 1942, at
San Antonio, Texas, before Carl Wheaton, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondents were
represented by counsel and the Union by its international representative. At
the opening of the' hear! ng, 'counsel for the respondents made-a-motion for con-
tinuance on the ground that it was essential that Captain Charles M. Dickson
be present as chief attorney and witness for the respondent. This motion was
denied.' Counsel for the respondents then moved to strike the amended charge
on the ground that a prior charge based on the same facts had been withdrawn
and dismissed. This motion was likewise denied Counsel for the respondents
then moved to have International Association of Bridge, Structural, and Orna-
mental Iron Workers, hereinafter called the International, made a party on the
ground that it was a necessary party. This motion was denied. Counsel, then
moved to strike all references in the complaint to any 8 Cl) charge on the ground
that the paragraphs of the complaint relating thereto were not sufficiently con-
cise and that the amended charge does not refer to any such unfair labor prac-
tices. This motion was denied. Finally, respondents' counsel moved for a bill
of particulars in relation to the statement in the complaint, alleging the refusal
I Weiss, who' defended the case for the respondent, was entirely capable as an attorney
and, since he was a participant in each of the bargaining conferences , was able to give
testimony as a witness No definite showing was made with respect to the time needed to
secure Dickson's presence and participation on behalf of the respondents . The respond-
ents contended that any testimony by Dickson should come from him orally on the stand
and `not ' thr'ough 'depositions , but'no 'effort 'was made to o6tain'depositions.
1272 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
,to bargain. This motion was also denied. To all of these rulings the respond-
ents excepted. All parties-participated in, the hearing and were afforded, full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues. At the conclusion of the case, Board's
counsel moved that the pleadings be conformed to the proof. This motion was
granted'over,the respondents' objection. The parties were given opportunity-to
argue orally before, and to file briefs with, the-undersigned. There was no oral
argument, but a brief was filed with the undersigned by the respondents.
Upon the record thus made and from his observation of the witnesses, the
undersigned makes the following : ,
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The respondents are Texas corporations with their principal place of business
at San Antonio, Texas. The Southern Prison Company is engaged in the manu-
facture, sale, distribution, and installation of steel and iron prison and jail
equipment. Southern Steel Company is engaged 'in the manufacture, sale, dis-
tribution, and installation of tanks and butane gas systems and other steel and
iron equipment. The value of the materials used in the operations of the Southern
Prison, Company during the year 1941 amounted to approximately $73,000. The
value of the material received from sources outside the State of Texas by said
company was approximately $66,000 during said year and the volume of sales
during that period was aproximately $175,000. Of this amount about $52,000
represented sales in States other than the State of Texas.
The value of materials used ,in the operations of the Southern Steel Company
during the year 1941 was approximately $90,000. The value of the' material used
in said business and received from sources outside the State of Texas was
approximately $75,000. Sales of Southern Steel Company during 1941 amounted
to about $450,000. Of this amount approximately $225,000 represented sales in
States other than the State of Texas.
The respondents admit that their business operations affect interstate com-
merce within the meaning of the National Labor Relations Act.2
H. THE ORGANIZATION INVOLVED
The International Association of Bridge, Structural and Ornamental Iron
Workers, Shopmen's Local 583, is a labor organization affiliated with the American
Federation'of Labor and admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence-of events
Some effort at union organization was made, as early as 1938 and, again in
1940 by R. E. Swayze, special representative from San Antonio for the inter-
national and business agent for the local union. In September 1940, he went to
D. F. Youngblood, president of the respondents, requesting the latter to set a
date for negotiations. Receiving no reply, he did not follow the matter up at that
time. However, he continued his organizational work into 1941 and,, on or about
February 8, he called at the respondents' plant to see their president. , Not finding
2 These findings are based upon a stipulation entered into by the parties at the hearing.
SOUTHERN PRISON COMPANY - 1273
him present, Swayze again went, to the plant on February 10 and talked with
Hull Youngblood, vice president of the respondents. At this time he had a
number of signed applications for union membership with hun. He told the vice
president that he wanted a letter of recognition, and that he wished to bargain
with the respondents for the employees. Youngblood asked Swayze how the
latter knew-he represented a majority of the employees. Swayze suggested that
the only way in which he could prove a majority, was to make an application, to
the Board for certification ; the vice president told him that was unnecessary but
that he wanted Swayze to deal with his father, the president, who had just come
out of the hospital. Nothing further was done at this meeting.
About 4 days later Swayze met at the plant with the president, vice president,
and Dickson, treasurer of the company. Once, more he stated that he repre-
sented the employees and desired to bargain with the company for them.
Again, the question as to whether or not Swayze represented -a majority of the
employees arose. The president suggested that he himself go into the plant
and ask those men who wanted the Union to step over to one side and the
others to stay. where they were, or that he call the employees into his office
singly or in groups so that they might indicate their preference to him. Swayze
would,not agree to this, stating that the employer was supposed to be neutral.
The meeting was concluded shortly hereafter without further discussion.
On or about the 17th of February, Swayze and Clifton Brignac, organizer for
the International, called on Hull Youngblood, and Swayze asked Youngblood
to give him a letter stating that the respondents recognized the Union as the
bargaining representative of the employees. Swayze suggested .a Board election
to determine whether or not the Union had a majority of the men, but the vice
president said this was unnecessary. Swayze then suggested checking applica-
tions for membership against the pay sheet. The respondents made no reply
to this suggestion. The conference ended without the matter of recognition
being settled.
At one of these early meetings, the date of which was not recalled by the
witness, Swayze testified that D. F. Youngblood told him that the respondents
had always been opposed to unions. Youngblood, though not directly denying
that he had said this, stated that he had no recollection. of having done so.
The undersigned believes and therefore finds that Youngblood ` made this
remark.'
About February 24 there was a meeting between Swayze and the company
officials. Swayze told them that the men in the Union, had instructed him
to inform the respondents-that unless the respondents gave him written recogni-
tion of the Union as bargaining representative of the employees, there would
be a strike on the following day. The respondents, asked Swayze for a letter
stating that he represented the majority of the men. Swayze replied that he
was orally stating that he represented a majority and that he would prove
it if he had to go to the Board. He was told that it was unnecessary to go to
the Board, but that they wanted a letter from Swayze stating that he repre-
sented the employees. He was then asked to step out of the office where the
meeting was being held. Shortly thereafter, he was recalled and was given a
letter of recognition dated February 24, 1941. Hull Youngblood then said to
Swayze, "If the men still want to strike, to hell with them." ` February 28
was set as the time fora collective bargaining conference. The letter of rec-
8 Swayze is credited , for he definitely recalled the occurrence and appeared to be a truth-
ful witness. D. F. Youngblood is 76 years of age, partially blind and deaf, and displayed
'a consistentlack of memory throughout his testimony.
4 Youngblood did not deny this statement and the undersigned finds that he made it.
1274 • DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
ognition , though formally directed to the International Association of Bridge,
Structural , and Ornamental Iron Workers, was addressed to the attention of
Swayze, business agent of the local union. Later events clearly show that not
only was the International recognized as a representative of the respondents'
employees , but that the local union was likewise acknowledged to ,he such
representative . This is indicated by the respondents ' letter of March 20, 1941,
which - related to•a contract '- submitted ,, by-the ' LDion -to the - respondents. It was
addressed to both the International and Local 583. Moreover , all the counter-
proposals prepared by the respondents either contained the name of the local
union as one of the agents of the employees , or named it as a party to the
contract.
The first bargaining conference was held on February 28, at which time
Swayze presented a printed blank form of agreement which was prepared and
customarily used by the International . It carried the names of the respondents,
the International , and the Union . Weiss , attorney for the respondents , criticized
the paragraph of the contract which named the parties , stating that it must
be re-written since, under the Texas law, the Union was not a legal entity and
the employees themselves would have to be a party to a contract . He further
stated that the contract was a closed-shop contract and that any contract made
with the respondents would have to be an open-shop contract . During this and
later bargaining conferences , the respondents presented various reasons for
their opposition to a closed or union shop , or any variation or modification
thereof:
They claimed that it would be unfair to compel any one to become a member
of any organization in order to work for them . Also, they asserted that expe-
rience had shown that it would be better with respect to efficiency and fitness
for the job for the respondents to select their own men rather than to be
compelled to take those selected by the Union . Again, they stated that some-
times their customers in buying prison equipment would require that local
labor , often non-union, be hired to erect the equipment. At the hearing, how-
ever , the respondents ' president denied that he objected to a closed shop in
San' Antonio on the ground that it would prevent employment of local labor on
erection jobs, conceding that a - closed shop at their plant would not affect men
who worked outside as erectors.5
Though the respondents argued against a closed shop, they admitted that
several times they' had consented ' to the use ' of union ' men- on outside -erection
jobs. However ,- they ' claimed that this did not involve a closed shop situation,
as they understood it, since such jobs were over in a few days and employment
of union ,labor was necessitated by contract with their customers.
Though they said they would not sign a closed-shop contract, every counter-
proposal offered by the respondents contained a section in which the Union
agreed to furnish union labor for any contract or sub-contract obtained by the
respondents which required the use of such labor . Respondents explained that
frequently , on outside work, customers insisted on union labor and that, there-
fore, in order to obtain contracts for such work, a provision that the Union
furnish men when so needed was fair.
Swayze testified that he would forego the closed shop , if the employees were
given the blanket wage raise requested by the Union . However, he added that
he thought a maintenance of membership provision was essential to protect
6 It is clear and the undersigned finds -that the real objection of the respondents to any
form - of closed-shop agreement rested upon their expressed antipathy toward compulsory
union membership as a condition of employment at their plant
I
SOUTHERN PRISON COMPANY 1275
the Union , and the Union throughout the period of negotiations never consented
to less than preferential hiring or a maintenance of membership clause.
Swayze, at the February 28 meeting , requested a blanket increase in wages.
He was told that such an increase would not be granted , as the policy of the
respondents was to take care of the individual inequities as they appeared and
that these increases would have to be decided upon by a wage committee con-
sisting of. supervisory employees . Further, Swayze was told that the wage
clause in any contract would have to provide for the wages being paid when
the contract was made.
The questions of ratio of apprentices to journeymen , of piece work, and of
subcontracting were considered , but nothing was decided in relation to those
matters. March 8 was set for the next conference.
At the March 8 meeting , the Union again presented its printed form of con-
tract with certain blanks therein filled in. Counsel for respondent and 'the
Union agreed'that the contract should be between the respondents and their
employees acting by and through the Union and the International, the thought
being that since a union was not an entity it could not make a binding contract.
The respondents insisted that the International should sign the contract and
that it should be an open-shop agreement , though they were told by both
Brignac and Swayze that , the International would not sign an open-shop con-
tract The reason given by the respondents for demanding the signature of the
International . was that Local,583 wLs ,a„weak union, having, ' at the time of the
hearing, only two contracts , together involving 21 men.
Brignac, at this conference, agreed to let the men already employed when
it contract was executed do as they wished about joining the Union, but said
that it would be almost mandatory that the new employees "come through the
Union organization" so that the men would have some protection.
The respondents again refused to agree to the closed-shop clause : Weiss, the
respondents' attorney , said :
We are perfectly willing to sit here for weeks 'and weeks and' nionths and
months and listen to you talk about the advantages of the closed shop and
why you have to have it and they are perfectly willing to consider anything
you say about a closed shop, but I am telling you . . . that I don't
believe the Board of Directors of this company is ever going to agree to a
closed shop contract.
The respondents said that they- could - not,give .the 20-cent-per-hour raise re-
quested, for , if they did, they could not meet competition , since at the time,
there was very little work to be had. They pointed out particularly that they
could not give this raise to welders ^ who would, if they obtained the increase,
receive 90 cents per hour. The record discloses , however, that they had recently
paid welders an average of $1.10 per hour or more for piece work, and the
undersigned so finds. '
At the close of this conference , the Union presented the same ' contract that
it had tendered at the commencement thereof, except that it had- tilled in the
wage clause for a 20-cent-per-hour blanket increase.
The next bargaining meeting occurred on the 15th of March. At that time,
the Union submitted the same contract that it had offered at the end of the
March 8 meeting and the respondents presented their first counter-proposal.
Prior to any discussion°of the respondents ' proposals , the respondents stated
that they had selected representatives who could deal finally on behalf of the
company and requested that the International appoint someone to represent it.
The. International representative , Brignae, said that the .International would `not
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do this but that the respondent could deal with the local union and bind it and
the employees without the consent of the International.
The conferees then began the consideration of the respondents' counter-pro-
posal to which several objections were made by the union representatives. These
objections and the negotiations with respect to the respondents' counter-proposal
will now be discussed in detail.
The final sentence of Section I, paragraph 2 of the respondents' counter-pro-
posal provided that, if at any time the Union should not represent more-than
50 percent of the respondents' employees, the contract should not be binding.
This was objected to by the Union's representatives on the ground that the con-
tract should be effective throughout its term, no matter how many, or few, of
the respondents' employees the Union represented. No accord was reached on
this point at this meeting.
Section II, paragraph 2 stated that the Union should not "threaten, intimidate,
or coerce" the employees into joining the Union. Brignac objected to the use of
the word "threaten., The respondents, though wishing to retain this clause as
it was, agreed to add a sentence stating that they would not "threaten, intimidate,
or coerce" the employees into withdrawing from the Union or into refraining
from joining it. The Union's attorney consented to this inclusion but said that,
though Brignac might agree to the provision, he did not like it.
Section III provided that the respondents, would recognize a shop committee
of employees, the personnel of which should be determined by the employees and
that the respondents would consider any reasonable suggestions made by the
committee.
At the March 15 meeting the union representatives said they were satisfied
with this section, but later they criticized it because it did not give the Union
the right to select the committee, and because it merely stated that the respond-
ents would "consider" recommendations, whereas' the Union claimed that the
committee should have "some character of voice in the different affairs that the
law gave "the Union, including matters pertaining to discharge and employee
discipline.
Section IV,, paragraph 2 provided that the seniority status of any employee
was to be determined by the date of his last employment. The Union objected
to this provision on the-ground that there might be a temporary,lay-off or a lay-off
for insufficient cause, and that, therefore, when the employee involved was taken
back, his seniority would date only from'the date he returned to work for the
respondents after his temporary or improper lay-off. It was agreed that this
would be rewritten to provide for such contingencies.
Section V dealt with wages. Paragraph 1 thereof stated that wages were to
be those being paid when the contract was executed but that the respondents
were to have the privilege of increasing or lowering wages. The purpose of this
provision was to continue-the practice of caring for individual inequities. The
thought was well expressed by the respondents' president,.when he said : "We
always want the boys, any of them, to come in. This place is open. I don't know
who these boys are, but there isn't a man from janitor to the top who can't come
in and see me or see my son any time he wants to. Two or three can do that -
if you want and the committee can, but most of them all come in individually and
tell me 'Mr. Youngblood, I think I ought to have more money,' and we always
look into it and try to, do the thing that is right." He declared further that "any
man can come up and see me anytime . . . and they consider it and it is always
wide open for them, has been, and will be When he was asked if it was not a
6 D F. Youngblood was uncertain with respect to these statements. He did not deny
making them, but could not recall whether the statements were made as they appear above.
The undersigned finds that Youngblood did make the statements as set out above.
SOUTHERN PRISON COMPANY 1277
fact that the reason he did not ever offer a blanket increase was that he wanted
his employees to come to his office individually and desired to continue the practice
that had previously been in force, he replied in the negative.
During this and later conferences the respondents maintained their opposition
to any blanket raise. They gave various reasons for this. One was that some of
the men were already paid as much as they were worth and they were satisfied.
Another basis for the stand against a blanket increase was that business condi-
tions generally, and for the respondents in particular, would not permit it.
At one time the respondents' president declared that-they could not stand a
blanket raise. Then he asserted that they might survive a trivial blanket raise,
but no major increase. He added that he had not made up his mind stubbornl$
never to grant a blanket raise and that he was sure that was true of the directors.
On the other hand, the Union insisted on the principle of a blanket raise, for it
expressed the desire that the low-paid men be given a "living" wage. Swayze
said they could probably work out something on the higher paid men, such as the
welders. Swayze said, further, that he did not want raises decided individually
because he wished to have collective bargaining.
Section V, paragraph 3 gave the respondents a free hand in inaugurating or
continuing any system of piece or bonus work. They claimed that the-efficiency
of their operation required this arrangement. At one of the early conference
some of the men on the shop committee said they preferred the bonus system.
'Swayze admitted that the men had made this statement, but he said that it "was
drug out of them by one of the officials " At the meeting of March 15, Mahar,
an employee, when asked concerning his attitude toward the bonus system, re-
plied that if he, could draw, the same salary on straight time that he could on
piece work, he would rather have straight time but that at the hourly rate then
paid, he could do better on piece work. Swayze said the respondents contended
that their policy had always been to provide for piece work and bonuses and
that they were going to keep that plan. On the other hand, the Union was op-
posed to bonuses or subcontracting and preferred to establish a living wage on a
strictly hourly basis.
Section V, paragraph 2 provided that the shop committee once a month could
present to the respondents' wage committee any suggestions it might have as to
individual inequities in wages among employees. ' The practice had been for
an employee to make his request concerning his wages to a member of the
wage committee, which consisted of supervisory employees. No employee had
ever appeared before the whole committee, but, according to the respondents'
shop superintendent, employees could go before the committee, if they made
requests to do so. ' It was asserted by the Union that this practice had no
resemblance to collective bargaining.
Section VI, paragraph 1 stated that there should be a 40-hour week and that
time and a half should be paid for all time worked in excess of 40 hoiws in
any 1 week. This was subject to any change made in the law or regulations
of any Federal Agency in connection with the National Defense Program. No
provision • was made for an 8-hour day. The respondents contended that an
8-hour day would operate to the detriment of their employees. The respondents
argued that if a man missed a day, he could not make it up later in the week
at time and a half for any time over 40 hours since the respondents did not
pay such overtime after 40 hours. The respondents' president wanted to pass
by the matter of the 8-hour day. He contended that since the 40-hour week
presently enforced at the shop complied with the Wage and Hour Law, there
was no use to argue about the 8-hour day.
0
1278 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
On the other hand, the Union demanded an 8-hour day. It maintained that,
if provision was not made for this, the men could he worked long hours for a
few days without time and a half for overtime and could then be laid off.
The^Union also objected to the exception with respect to the National Defense
U Program claiming the saving clause was unnecessary, because the Union would
obey the law.
The second paragraph of Section VI dealt with holidays. The respondents
said that they included Labor Day as a definite holiday to satisfy the Union,
though their•past practice had not always been to have a holiday on that date.
Section VII, paragraph 1 gave the -respondents the right to make rules and
regulations in connection with employee 'discipline and allied matters. Em-
ployees and the Union, insofar as such rules and regulations were applicable
to it, were to comply strictly with them. Employees were, also, to be subject to
discipline or dismissal if they violated any such rule or regulation or any term
of the contract. • - -
The only dissatisfaction with this provision, of the, agreement, that was
expressed at this March 15 meeting was that it contained the word "strictly."
At the hearing Swayze declared that he objected to the inclusion of such a
provision in the-contract, since the Union would abide by any contract which
was executed by it, and if the International ratified the contract, the Inter-
national would see that the local obeyed it.
Paragraph 2 of this section stated that the respondents should retain their
right to lay-off or discharge employees when they might deem it'necessary in,
accordance with prudent managerial policy. Counsel for the Union said that
this term of the contract was "all right." However, Swayze testified that he
had objected to this paragraph because he wanted a committee "that had a
character of voice in this matter of discharging employees." He added that the
respondents did not agree with his stand, and that they said they did not need
any third party to run their business.
Section VII permitted a disciplined or aggrieved employee to present alleged
injustices to the respondents individually or through their shop committee. Such
a claim was to be considered by the respondents and a decision was to be reached
thereon by them within 30 days after its presentation. The original , objection
of the Union to this was that too much time was permitted in which to make a
-decision. Brignac objected to this on the ground that it would result in nothing
being done-about the grievance after it was received. • A suggestion was made
that any grievance should. be presented to the-respondents within 3 days after it,
occurred and that a decision thereon should be reached by the respondents within
3 days after the grievance was called to their attention. Nothing definite was
agreed upon iii this regard.
Section X contained an agreement that neither the International, nor any local
connected with it, would discriminate against the respondents, but that the Union
would co-operate with the respondents in carrying out the tatters' contracts.
At this March 15 conference there was no discussion of this provision, except
that Brignac said it was unacceptable. Later, the Union objected to this on the-
ground that it was too broad, since it attempted to bind all the affiliates of the
International and covered too many situations. Furthermore, it was said to be,
unnecessary since if the contract was ratified by the International, there would
be no discrimination.' The respondents claimed that the inclusion of such a,
7In their brief the respondents claimed that the Union did not bargain fairly because-
Swayze was willing to give an oral, but not a written,, assurance that the Union would not
discriminate against the respondents, if 'a collective bargaining contract was made between
the respondents and the Union. It should be noticed that Swayze in the cross-examination
SOUTHERN PRISON COMPANY 1279
stipulation in the contract was essential Hull Youngblood testified at length
with respect to a situation in which the International dispatched a telegram
to a customer for whom the respondents had contracted to perform a job, offering
the lowest bid thereon. • Youngblood testified that the. telegram was the reason
the respondents did not secure the job.
Section XII asserted that the contract should not be construed as a release of
any claim which the respondents had against the International. The Union
made no objection to this provision at the March 15 meeting. Swayze testified
that he objected to it, since any claim referred to in this section was against the
International and such a terra should not be part of a contract signed by the
local union.
The last section of the respondents' first counter-proposal declared that the
agreement should be for a term of 3 years Brignac said'that if they could reach
an accord, it "would be fine and dandy to have the shop under agreement for
three years."
On March 17 the Union presented the reslondents with a typewritten contract.
It differed in many respects from earlier agreements proposed by the Union. For
example, it allowed the respondents .to be the sole judges .of the qualifications of
their employees, and it permitted. the respondents to choose non-union workmen,
if the Union failed to provide the employees required of it by the respondents.
Promotions, transfers, lay-offs, suspensions, and discharges were put more
definitely under the respondents' control than previously. A 20 percent, rather
than a 20-cent-per-hour, raise was provided for. There was a new section agreeing
not to collect dues or solicit members on the respondents' premises.
Provisions prohibiting sub-letting work and permitting plant visitation of a
union representative during working hours to investigate matters covered by the
agreement, which had been included in earlier Union contracts, were omitted
from this one. In this agreement there was an unconditional promise not to
strike as long as the respondents coniplied with the contract, whereas, under
former union agreements, there might be a strike if it was based upon an investi-
gation of a general representative of the Union and the approval of the Union's
general Executive Board.
Opposition to this counter-offer was voiced by the respondents in a letter dated
March 20. They insisted that the International, which was for the first time not
named by the Union in the body of its agreement, but for whose signature a place
was provided'at the'end thereof, be made a party. They objected to nearly every
paragraph of the Union's counter-proposal.
This letter was accompanied by a counter-offer of the respondents. By way of
concessions not formerly granted, this proposal added a sentence to the effect •
that the respondents agreed not to threaten, intimidate, or coerce any employee
into withdrawing from, or into refraining from joining, the Union. There was
also included a new provision promising , with few exceptions, a minimum'of 2
hours of work to any employee reporting for duty as requested. The agreement
also stated that a temporary lay-off should not, under the seniority rule, be con-
sidered it termination of employment. And the time within which the respondents
could decide grievances presented to it was cut from 30 to 20 days from the date
referred to in the respondents ' brief , gave two reasons for not wanting in a contract the
non-discrimination proposal offered by the respondent . One ground was that it attempted
to bind not only the Local and the International, which would be parties to the contract,
but also all affiliates of the International The other reason was that if the International,-
whose policy was to sign nothing but closed -shop agreements and whose signature was in-
sisted upon by the respondents, did sign a contract, there would be no basis for discrimina-
tion, since all employees would then be forced,to become or remain members of the Union.
1280 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
of presentation. But the respondents made no concessions concerning a closed
shop, an over-all increase in wages, the 8-hour day, or piece or bonus work.
The meeting of March 22 was consumed with a discussion of the terms of the
counter-offers. -
During a consideration of the closed-shop question, the Union agreed to exempt
from union membership -employees who were non-union men at the time the
contract was executed. However, the respondents maintained their objection,
contending that notwithstanding this change there would in effect still be a
closed shop as they understood it.
Though the demand as to the size of a blanket raise had been materially
reduced by the Union, the respondents' attorney, Weiss, said, "No blanket wage
increase can be granted at this time of any kind, not even one cent." He declared
further that a 20 percent increase in wages would break the company "probably."
He also asserted that it would be unfair to the man meriting special treatment
to give 'a blanket raise.. However, a union representative pointed out that an
over-all increase would not keep the company from giving extra raises.
Before the close of the discussion concerning wages, the respondents requested
the Union to give them permission of take care of individual inequities. Weiss
warned his clients that, if the Union did not consent to individual raises, the re-
spondents could not safely give them, for otherwise-,the Union could contend
that the giving of raises was discriminatory, no matter how much the respondents
would like to grant wage increases He said that it seemed unfair to the men
to have their raises held up during all the time that apparently was going to be
consumed in bargaining At this point, Oliver, Swayze's attorney, commented
on the fact that the shop committee men were present and said that be did not
know whether or not Weiss was saying what he did for their benefit. Weiss denied
having such a purpose. Oliver also said that, if giving raises did not prejudice
any one, nobody would object. He also declared that since the Union had no con-
tract with the respondents, the companies were in the same position in which they
had always been, except that they were now dealing with their shop organization
collectively. Swayze's attitude with respect to this request is found in his com-
ment, "We are right here now bargaining to take care of those inequities."
When asked, "Which inequities are you trying to take care of, which employees?"
he answered, "All of them; more or less all of them, you might say." 8 At this
conference, D. F. Youngblood suggested adding three members of the shop com-,
mittee to the respondents' wage committee. No comment was made on this
suggestion.
Neither side would recede from its' original position on the 8-hour day. The
respondents asserted, that such a day was not elastic enough for its business.
Further, they claimed that an 8-hour day would be unfair to the men. This
they explained by declaring that on their narrow margin of profit, they could
not pay time and a half for work done beyond 8 hours a day. Hence, they could
not let employees make up lost time, which would involve in most cases working
more than 8 hours per day.
During a discussion of rules and regulations, the union representatives said
that the shop committee should not merely have the right to make suggestions
as to what the rules and regulations shotild be, as was provided in the respond-
ents' proposals, but that it should have a share in making them. The Union
contended that, if the employees and the respondents could not agree on them,
8 Swayze at this conference had a list of names of employees who he claimed were de-
serving of raises. When asked what was the purpose in bringing in such a list, Swayze
answered in effect that it was a partial list of inequities and if he had time he could have
listed all union nien as examples of inequities.
J
SOUTHERN PRISON COMPANY 1281
the matter should be arbitrated. The companies would. not agree .to .this.
However,,Weiss said he thought the word "strictly" could be eliminated from
the clause which called for strict compliance by the employees and Union with
rules and . regulations. -
As will be. recalled, the respondents' counter-proposal of March 15 gave the
shop committee .the authority to present grievances to the respondents. The
Union thought the committee should have a greater part to.play in relation to
grievances .- Oliver said, "You give us the right to present grievances, but you
don't give us any right of saving ourselves in the event the decision.is against us.'.'
He added that having presented its position, all the.shop committee could do was
to walk off, "and let you do whatever you want to do,about it." The Union
wanted to share in making decisions in grievance cases and it. proposed arbitra-
tion, if the shop committee and the respondents could not-reach. an agreement
in any case.' -
At the conclusion of this conference Swayze suggested an arbitrator, but though
the respondents had no objection to a conciliator coming in later if it was thought
he could help, they saw no need for an arbitrator.
Tliere followed meetings in April, May, and June at which no new proposals
were offered by either the -Union or the respondents. The first of these confer-
ences took place on April 12. At that time there was some discussion concerning
parties to the contract. Also, the union shop was considered, and -Swayze said
that if any other contract than a union shop contract was made it would have
to contain an arbitration clause. The respondents refused to agree to such a
provision on the ground that they were able to run their business and did not
want anybody to dictate their policies.
The chief problems considered at this conference dealt with wage increases.
Swayze's memory was that a 20-percent rather than a 20-cent-per-hour over-all
increase was again requested by the Union. The undersigned is'of the opinion
and finds that Swayze's recollection is in accord with the facts since the last
union contract made the smaller request. A blanket raise was once more denied
and the respondents insisted on dealing with individual inequities. They said
there would be no raises except on an individual basis. Swayze, on the other
hand, demanded collective bargaining as to wages.
For the second time, the respondents endeavored to obtain permission from
the Union to grant individual increases in wages. They said they wished to
raise wages, as the company was losing many men to the Government. On this
occasion 29 individual inequities were spoken of. Swayze said he was ^ present
for the purpose of collective bargaining and inquired why he should be asked to
agree to these particular raises when others had been granted by the companies
during the bargaining negotiations without prior consultation with him. He was
told that the reason they had not gone to the Union before giving some earlier
wage increases was because only a few men then had been involved. They said
they "had been following that procedure every month," but when they came to a
big group they felt they ought, "in fairness, to discuss it a little, because it might
have some effect on" the Union's plans.
To this Swayze replied that he knew of nothing in the law that should preclude
them from doing what was right in the matter. This seemed to anger Hull
Youngblood, the respondents' vice president, and he said, "Now here we are anxious
and willing to grant the wage increases and we will make them a part of the con-
tract." Turning to the shop committee, he added, "Apparently, the Union 4s
standing in the way of the wage increase we want to grant."
° The respondents later submitted proposals which gave enlarged authority to the shop
committee.
504086-43-vol. 40--81
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swayze inquired whether or not he could have the list of inequities which had
been presented to him, so that he could take it before the men, and see what
they would say about it'. He was told he could not do this, but that he could
call up, if he wanted to know anything about it. The wages of the 29 men named
in this list were raised on April 14. The companies' president admitted that
after April 12 and during the balance of the bargaining period there might have
been wage increases granted without consultation with the,Union, but that in-
creases were not given to any major group. He said that the Union's treatment
of the April 12 request for permission to grant increases led the respondents,
thereafter, to do what they wished about raising wages.
The May 20 meeting was highlighted by several 'concessions by Swayze. He
suggested that he would be willing to exclude from the wage raise some "old
pensioners" who were not in good physical condition, but whom the respondents'
president did not care to discharge, because they had worked for him since. his
business was started. Moreover, Swayze offered to say nothing about wages, if
the respondents would grant a closed shop, or to forget about the closed shop if
the wage increase requested was given Further, he said he would wait for the
wage increase until all the work in the plant obtained under old contracts or
bids .was completed.
These propositions were rejected on the. ground that the policy of the re-
spondents was to take care of individual inequities and that the intention was
"to carry that policy through."
The respondents now began to press for a contract with the outside erectors.
At this conference on May 20 and at the commencement of the meeting held on
June 17, they insisted that the erectors should be part of the bargaining unit.
Later on that day they modified their stand, saying that they would agree to a
separate contract with the erectors, but demanded that it should contain the same
terms as those contained in any contract covering the fabricators, that it should
be signed simultaneously with it, and that one of the signatories to each con-
tract should be the International. Swayze told the respondents that the erec-
tors in some towns and in most of the major cities had nothing but closed-shop
contracts, and that, therefore, the International could not be expected to sign
an open shop contract involving outside erectors employed by the respondents.
During July and August, Swayze and D. F. Youngblood held several confer-
ences. At some of them Swayze presented union contracts which provided that
only those hired after the making of the agreement need belong to the Union.
He also informed the respondents that he would forego a closed shop, if an
agreement could be reached which would offer the men the protection they
needed and were entitled to, since the high point to the men, who did not ap-
preciate the value of the closed shop as he did, was wages.
At one of these meetings, Mr. Youngblood asked Swayze why he did not forget
about the inen for a while, since his organizational efforts kept the Men stirred up.
Swayze replied that it was the low wages, "the grocery money," that stirred
them,up.10
At a September conference the Union presented a standard printed form of
agreement with the blank spaces therein unfilled, though at the conference just
before this one the Union had been requested' by the respondents to draft a
contract satisfying as far as possible the objections raised by the respondents
to former union contracts On the other hand, the respondents submitted new
proposals The respondents yielded to the Union's demands on several new
points They treated the Union as parties, not as mere agents of the respondents'
10 Swayze so testified ; D F Youngblood could not recall such a statement The under-
signed credits Swayze
SOUTHERN PRISON COMPANY 1283
employees . The employers agreed to give due consideration to all suggestions
of a shop committee, rather than merely to consider reasonable recommenda-
tions made by it. They eliminated the earlier provision for wage decreases
and they reduced the term of the contract from 3 to 2 years.
Swayze again said he'was willing to concede the closed shop to some other
form of contract, but that the Union itself would have to sign that, type of con-
tract. The reaction of the respondents to this proposal was to remain adamant
in their demand that any agreement must be signed by the International.
Further conferences were held on October 22 and 24. ' At the first one of
them, the Union presented a contract calling for an over-all wage increase.
Swayze testified that at this meeting D. F. Youngblood told the shop committee
that if they did not think they were getting justice through their wage com-
mittee they had a perfect right at any time to come to his office. And he added
that they did not need a high priced man like Swayze to represent them in rela-
tion to wages. Mr. Youngblood's testimony was that he had no recollection that
he made such a statement concerning Swayze and that he did not think he did.
The undersigned credits Swayze."
In November several letters were exchanged between the respondents anre
Swayze. The respondents wrote Swayze that it was agreed at an October meet-
ing that the respondents' wage committee would prepare a list of inequities, that
Swayze and the shop committee would do likewise, and that Swayze and the
respondents would then try to reach an agreement on the wage question, but
that Swayze had failed to keep his part of the bargain They told him that if he
would not cooperate with them in this matter, they would have to raise the wages
its suggested by their committee. Swayze wrote in reply that he had not prom-
ised to deal with individual inequities ." A final letter was written to Swayze
in which the respondents said that they were still ready to bargain collectively.
Swayze said he did not answer this letter because negotiations had been broken
off.
Negotiations between the respondents and the Union were at a standstil from
November 1941 until June 1942. On June 1 Hull Youngblood, in response to it
letter from the Regional Director, telephoned the latter and arranged for a con-
ference between the respondents and the Union at which Mr Daffan, one of the
Board's attorneys, was to be present. That meeting was held on June 4. The
record does,not disclose what transpired at this meeting It was agreed then,
however, that another conference would be held on June 6 ,
At the June 6 meeting the Union offered proposals for consideration, but the
respondents did not Testimony is conflicting as to whether or not the'respond-
ents had promised to present proposals at that time. However, during the con-
ference, the respondents promised to send Swayze a counter-proposal. The
union representatives both claimed that this was to be done by Monday. June S
There is no direct denial of their assertions. There is also testimony that there
was to be a later meeting to discuss this counter-offer and that Weiss, respond-
ents' counsel , was to arrange for it. This is not specifically contradicted.
Swayze finally received the respondents' proposal on June 10. It was dated
June 6 but Weiss claimed that it was not typed until he returned to'his office
11 See footnote 10, supra. 1I I
"In this game letter Swayze said the closed shop was not the issue that was hindering
the making of a contract , and that , if the matter of wages could be adjusted , the closed shop
question could be satisfactorily adjusted. The respondents in their brief claim that, in
saying this , Sii ayze v. as insincere and that this can be shown by the evidence. But the
record shows that Swayze made the same statement at other times during the bargaining-
conferences..
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from • the June 6 meeting and that it .was not approved by the respondents
until June 9.
This proposed agreement included outside erectors in the suggested unit. It
acceded to several of the Union's wishes to which the respondents had not
yielded in their previous counter-offers. For example, 'it omitted the sentence
found in earlier contracts which voided the agreement if the Union at any time
lost its majority. It provided for a shop committee appointed by the president
or business agent of the Union and gave it substantial authority. It defined
temporary lay-offs in more detail than former proposals- of the respondents had
done and declared that seniority status should terminate when an employee
had not performed any work for the respondents for a period of 6 months.
It omitted the statement found in former proposals by the respondents to the
effect that an employee might be disciplined or dismissed for violating com-
pany rules or regulations or any term of the contract between the Union and
the employees. It provided for arbitration of disputes as to the application of
the terms of the contract. It added a sentence declaring that the agreement
should not be construed as an admission by the Union that the respondents had
any claim or cause of action against it. And, finally, it reduced the term of
the contract to 1 year. On the other-hand, no concessions were made as to the
closed or union shop, piece or bonus work, the 8-hour day, or an over-all
increase in wages. _
Neither the respondents nor the Union made an effort' to hold a meeting
after the respondents' counter-offer was received by the Union. Swayze said he
did, nothing about a conference because Weiss at the June 6 meeting had
agreed to call such a conference. There is no contradiction in the record of
Swayze's statement as to the understanding concerning a further meeting.
'Brignac admitted that he had never read the respondents' last proposal,
although 'he had ample opportunity to do so, since he had been in San Antonio
approximately 24 hours during which the proposals were in the possession of the
Union.
On February 22, 1941, the date of the pay roll on which was based the,
question of majority, the respondents employed 111 men in their shop.
By June 14, 1941, an average increase in wages of 5 cents per hour had
been given to 38 out of 64 of the original 111 men who still worked in the
respondents' shop. By October 18,_ 1941, an average increase of between 8
and 9 cents per hour had been granted to 49 out of 54 of the original group of
shop employees, and by June 6, 1942, all but perhaps 1 of the 34 men who had been
employed in the respondents' shop on February 22, `1941, and who were still
working there on June-6, 1942, had received an average raise in wages of 16
cents per hour.
B. The refusal to bargain collectively
1. The appropriate unit
It was stipulated between the parties early in the hearing that the appropriate
unit here involved consisted of all employees of the respondents, except the plant
superintendent, non-working foremen, drafting-room employees, and all clerical,
stenographic, office, administrative, and executive employees.
Nevertheless, the testimony shows that the outside erectors are not admitted
to membership in the Union, though provision is made for erectors' unions." The
description of the unit in the charge and in the complaint did not include them.
>s Constitution of the International Association of Bridge, Structural and Ornamental-
Iron Workers, Art. IV and Art . XXV, See. 2. -
SOUTHERN PRISON COMPANY 1285
All of the Union contracts and the earlier agreements proposed by the respond-
ents omitted the erectors from the described unit. The contacts between the
outside erectors and the fabricators are few and their conditions of employment
differ. Moreover , the Board's attorney stated at the hearing that he inadvert-
ently entered into the stipulation including erectors in the unit by using the term
"all employees " without qualification. The evidence further discloses that the
Union cannot admit to membership truck drivers whose work takes them to the'
plant merely to perform loading or unloading operations before and after trips.
Brignac testified these were properly under the jurisdiction of the Teamsters
Union. The general plant superintendent of both of the respondent corporations
is the same, their Board of Directors are identical, their businesses are conducted
at a single plant, their labor policy is the-same, and a'single sales office is used
jointly by both of them.14
The undersigned, finds, therefore, that all of the employees of the respondents
at their plant in Bexar County, Texas, except the plant superintendent, non-
working foremen, drafting-room employees, truck drivers whose work takes them
to the plant only to load or unload, clerical, stenographic, office, administrative,
and executive employees, at all times material herein constituted, and that they
now constitute, a unit appropriate for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, or other conditions of em-
ployment, and that said unit insures to employees of the respondents the full
benefit of their right to self-organization and to collective bargaining and other-
wise effectuates, the policies of the Act.
2. Designation of the Union by a majority of the employees in the
appropriate unit
In a letter" dated February 24, 1941, the respondents recognized the Union
as the representative of a majority of all their employees - The evidence also
shows that the Union rep esented a majority of all the respondents' employees-
This is true notwithstanding the fact that one of the applications for member-
ship indicated that its signer was an erector and therefore not to be included
in the unit above found to be appropriate. His application could be ignored and'
the Union would still have a majority. Evidence introduced to prove that a
large part of the respondents' employees were erectors was unconvincing. Pegues,
the shop superintendent, who testified concerning this matter, was usually unable
to tell with certainty when or where the work was done, or on how many erec-
tion jobs any man had gone. In most cases the work done was common labor.
Brignac, an erector, testified that one who merely did common labor was never
an erector.
The undersigned finds, therefore, that on, and all times after, February 24,
1941, the Union was the duly designated representative of a majority of the
employees in the aforesaid appropriate unit and that by virtue of Section 9 (a)
of the Act, the Union was at all times material herein, and is, the exclusive
representative of all the employees in such unit for the purpose of collective
bargaining in respect to rates of pay, wages, hours of employment, or other
conditions of employment.
14 See In the Matter of Shenango Mold Co et al., 19 N. L. R. B 328.
16 Though this letter was addressed to the International , it, was sent to attention
of Swayze, the business agent of the Union. There was some claim by the respondents that
they had only recognized the International, but the Union was treated as a representative
of the respondents ' employees even in the respondents ' initial, counterproposal.,
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 The refusal to bargain
The record discloses that the respondents gave wage increases to their em.
ployees during the collective bargaining period without first consulting the
Union. It also shows that, during bargaining conferences attended, by the shop
committee, representatives of the respondents made derogatory statements
concerning the Union and its business agent by saying that the men had no
need of a high-priced executive like Swayze, its business agent, to represent
them in relation to wages, and, by stating, when the union refused to agree
to individual raises that, apparently, the Union was standing in the way of
wage Increases which the respondents wanted to give and that it seemed unfair
to the men to have their raises held up during the time that it seemed was
going to be consumed in bargaining. The record further discloses that, although
the respondents said they could at most give but a trivial general wage increase,
they gave an average raise of sixteen cents per hour to all ^hopmcri wl'o had
been working for them when the bargaining conferences began and who were
still in, their employ when the last conference was held. It likewise shows
that the respondents insisted on including an agreement by the International
that neither it nor any of its affiliates would discriminate against the respondents
anywhere, which subject matter did not pertain to rates of pay, wages, hours
of employment, or other conditions of employment of the respondents' em-
ployees. In view of these facts the undersigned finds that the respondents on
February 28, 1941, and at all times thereafter, refused to bargain collectively
with the Union as the exclusive representative of its employees in an appro-
priate unit and has thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act 18
C. Conclusions as to interference, restraint, and coercion
By giving wage increases during the bat gaining period without consulting
the Union 17 by making derogatory statements concerning the Union in the
presence of employees, and by telling employees that they had no need of
assistance corcermng wages from the Union's representative,18 the respondent has
interfered with, restrained and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act. -
The undersigned finds that the respondent did not interrogate employees rela-
tive to membership in the Union, did not threaten employees with discharge
or other reprisals if they aided the Union or engaged in concerted activities
with reference to it, and did not promise benefits to the employees if they
would not become members of the Union 1°
IV THE EFFECT OF THE UNFAIR LA,ROR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above, occurring in
connection with the operations of the respondents described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening -and
obstructing commerce and the free flow of commerce.
16 In reaching this conclusion the undersigned has considered the evidence of negotiations
pertaining to the closed shop, but finds no violation in the Act in the respondents' refusal
to accept the closed shop as demanded by the Union
1Y See In the Matter of Taylor Milling Corporation, et al., 26 N. L. R. B. 424.
18 See In the Matter of the Citizen -News Co., et al., 21 N. L it. B. 1112.
1e No evidence was introduced to support the allegations hereby recommended to be
dismissed.
SOUTHERN PRISON COMPANY 1287
V. THE REMEDY -
Since it has been found that the respondents have engaged in unfair labor
practices, it will be recommended that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the-respondents increased the wages of some of its
employees during the period of collective bargaining without having consulted
the Union concerning the matter of raising wages, and that, in the presence of
some of their employees, their representatives made deprecatory , statements
concerning the Union, and depreciated the value -of the use of the Union's busi-
ness agent in matters concerning wages. It will be recommended that the
respondents cease and desist from such actions.
It has been found that the respondents have refused to bargain collectively
with the Union as the representative of a majority of the- employees in an
appropriate unit. It will therefore be recommended that the respondents,
upon request, bargain collectively with the Union. Furthermore, to make ef-
fective the interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, and thereby to minimize strife which burdens and ob-
structs commerce, and thus effectuate the policies of the Act, it will be recom-
mended that the respondents cease and desist from in any manner infringing
the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CoNcLusIONS OF LAW
1. International Association of Bridge, Structural, and Ornamental Iron
Workers, Shopmen's Local 583, affiliated with the American Federation of
Labor, is a labor organization within the meaning of Section 2 (5) of the
Act.
2. By interfering with, restraining, and coercing their employees in the
exercise of the rights guaranteed in Section 7 of the Act, the respondents
have engaged in and are engaging in unfair labor practices , within the mean-
ing of Section 8 (1) of the Act.
3. By refusing to bargain collectively with International Association of
Bridge, Structural, and Ornamental Workers, Shopmen's Local 583 (A. F. L.)
as the exclusive representatives of their employees in the appropriate unit, the
respondents have engaged in and are engaging in unfair labor practices, within
the meaning of Section 8 (5) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
5. The respondents have not engaged in unfair labor practices within the
meaning of Section 8 (1)- of the Act insofar as the complaint alleged that they
interrogated employees relative to membership in the Union, threatened em-
ployees with discharge and with other reprisals if they aided said Union or
engaged in concerted activities with reference thereto, and promised them
benefits if they did not become members of said Union.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondents, Southern Prison Company and South-
ern Steel Company, and their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Association of Bridge,
Structural, and `Ornamental Iron Workers, Shopmen's Local 583 (A. F. L.),
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the exclusive representative of all the employees of the respondents at their
plant in Bexar County, Texas, except the plant superintendent, non-working
foremen, drafting-room employees, truck drivers whose-work takes them to the
plant only to load or unload, clerical, 'stenographic, office, administrative, and
executive employees ;
(b) In any other manner interfering with, restraining, or coercing their
employees in the exercise of the 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 activities for the purpose of
collective bargaining or other mutual aid or protection as guaranteed in Section
7 of the Act.
2. Take the following. affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with International Association of
Bridge, Structural, and Ornamental Iron Workers, Shopmen's Local 583
(A. F. L.), as the exclusive representative of all the employees of the respondents
at their plant in Bexar County, Texas, except the plant superintendent, non-work-
ing foremen, drafting-room employees, truck drivers whose work takes them to
the plant only to load or unload, clerical, stenographic, office, administrative,
and executive employees ;
(b) Post immediately in conspicuous places in its plant at San Antonio,
Bexar County, Texas, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stating: (1)
that the respondents will not engage in conduct from which it is recommended'
that they cease and desist in paragraphs 1 (a) and (b) of these recommenda-
tions; (2) that the respondents will take the affirmative action set forth in
paragraph 2 (a) of these recommendations ;
(c) Notify the Regional Director for the Sixteenth Region in writing within
twenty (20) days from the date of the-receipt of this Intermediate Report what
steps the respondents have taken to comply herewith.
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondents interrogated employees, relative to membership in
said Union, threatened employees with discharge and other' reprisals, if they
aided said'Union or engaged in concerted activities with reference thereto, and
promised them benefits if they did not become members of said Union.
It is also recommended that, unless, on or before twenty (20) days from the
date of the receipt of this Intermediate Report, the respondents notify said
Regional Director in writing that they will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring them
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 2-as amended-any party may within
thirty (30) 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, Shoreham Building, Washington, D. C., an original and
four copies of a statement in writing setting forth such exceptions' to the Inter-
mediate 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. 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 twenty
(20) days after the date of the order transferring the case to the Board.
CARL C. Wffi+:ATON,
Trial Examiner.