Tennison Brothers, Inc.

National Labor Relations Board - Board Decisions

Oct 8, 1941

35 N.L.R.B. 1252 (N.L.R.B. 1941)

In the Matter of TENNISON BROTHERS , INCORPORATED and STEEL WORK-
ERS ORGANIZING COMMITTEE, AFFILIATED WITH THE C. I. O.
Case No. C-1948.-Decided October 8,1941-
Jurisdiction : metal products manufacturing industry.
Settlement : stipulation providing for compliance with the Act
Remedial Orders : entered on stipulation.
Mr. Earle K. Shawe, and Mr. Alexander E. Wilson, Jr., for the
Board.
King, King d Laughlin, by Mr. Earl King, of Memphis, Tenn., and
Mr. James D. Head, of Texarkana, Ark., for the'respondent.
Mr. Yelverton Cowherd, of Birmingham, Ala., for the S. W. O. C.
Mr. Sydney S. Asher, Jr., of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges' duly filed by the Steel Work-
ers Organizing Committee, affiliated with the C. I. 0., herein called
the S. W. O. C., the National Labor Relations Board, herein called the
Board, by the Regional Director for the Tenth Region (Atlanta,
Georgia), issued its complaint dated March 22, 1941, against Tennison
Brothers, Incorporated, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices
affecting commerce' within the meaning of Section 8 (1), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. On March 24, 1941, copies of the com-
plaint, accompanied by a notice of hearing, were duly served upon the
respondent and the S. W. O. C.
In respect to the unfair labor practices, the complaint, as amended
at the hearing, alleged in substance: (1) that the respondent had dis-
charged and refused to reinstate certain employees because they joined
and assisted the S. W. O. C. and engaged in activities for the purpose
1 The original charge was filed on December 16, 1940 , and amended charges on January
14 and March 24, 1941 , respectively
35 N. L R . B., No 219.
1252
TENN'ISON BROTHERS, INCORPORATED 1253
of collective bargaining; (2) that the respondent interfered with, re-
strained, and coerced'its employees in the exercise of the rights guar-
anteed by Section 7 of the Act, by advising its employees not to join or
remain affiliated with the S. W: O. C., threatening its employees with
disciplinary action if they engaged in union activity, threatening to
close the Memphis and Texarkana plants if its employees were active
on behalf of the S. W. O. C., offering employees rewards if they with-
drew from the S. W. O. C., maintaining surveillance over the S. W.
O. C. meetings, and making statements derogatory to the S. W. O. C.
representatives; (3) that all production and maintenance employees
of the respondent at its Memphis and at its Texarkana plants, exclud-
ing supervisory and clerical employees, each constitute a unit appro-
priate for purposes of collective bargaining; (4) that pursuant to con-
sent elections held at each of the aforesaid plants,2 the S. W. O. C. was
designated by a majority of the employees in the aforesaid units, re-
spectively, as their exclusive representative for the purposes of collec-
tive bargaining, and that thereafter the respondent; upon request,
refused to bargain collectively in good faith with the S. W. O. C. as
the representative of the employees in the aforesaid units; and (5) that
as a result of, and in protest against, the aforesaid unfair labor prac-
tices of the respondent, a large number of the respondent's employees
at both the Memphis and Texarkana plants event on strike on Decem-
ber 3, 1940, and have remained on strike since that date.
On April 2 and 7, 1941, respectively, the respondent filed its answers
to the complaint in respect to the allegations in the complaint relat-
ing to its Memphis and Texarkana plants, respectively, in which it
admitted certain allegations of the complaint concerning the nature
of its business but denied that it had engaged in or was engaging in
the alleged unfair labor practices.
Pursuant to notice, a hearing was held from April 14 to 17, 1941,
at Memphis, Tennessee and on April 18 and 19, 1941, at Texarkana,
Arkansas before W. P. Webb, the trial Examiner duly designated by
the Chief Trial Examiner. The Board, the respondent, and the
S. W. O. C. were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issue
afforded the parties.
On August 1, 1941, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon all the parties, in
which he found that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act,
2 The elections were held on September 24, 1940, at the Memphis plant, and on October
12, 1940, at the Texarkana plant.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and recommended that the respondent cease and desist therefrom
and take certain specified affirmative action designed to effectuate the
policies of the Act. On August 20 , 1941, the Board issued its order
transferring the proceedings to the Board.
On September 9,_1941, the respondent , the S. W. O. C., and counsel
for the Board entered into a stipulation , subject to the Board's ap-
proval, in settlement of the case . The stipulation provides as
follows :
STIPULATION
The duly designated Trial Examiner for the National Labor
Relations Board (hereinafter called the Board ) on August 1,
1941 , having issued his Intermediate Report in the above -entitled
matter, and it being the desire of the parties to conclude all pro-
ceedings before the Board in this case,
IT IS HEREBY STIPULATED AND AGREED by and between Tennison
Brothers , Inc.; Steel Workers Organizing Committee ; and Earle
K. Shawe and Alexander E. Wilson, Jr., Attorneys for the Na-
tional Labor Relations Board; as follows:
(1) That the findings of fact made by the Trial Examiner
in his Intermediate Report may be adopted by the Board as its
findings of fact.
(2) That, without further and other procedure before the
Board to which the parties may_ be entitled under the National
Labor Relations Act, or the Rules and Regulations of the Board,
the Board may, upon the basis of the entire record in the case
and this stipulation , make findings of fact and enter the follow-
ing order :
1. That the respondent , Tennison Brothers , Inc., its officers,
agents, successors , and assigns , shall cease and desist from:
(a) Refusing to bargain collectively with Steel Workers Or-
ganizing Committee , affiliated with the Congress of Industrial
Organizations , as the exclusive representative of all production
and maintenance employees of the respondent , at its Memphis and
Texarkana plants, respectively , exclusive of clerical and super-
visory employees , in respect to rates of pay, wages , hours of em-
ployment, and other conditions of employment;
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organiza-
tion, to form, join, or assist labor organizations , to bargain col-
lectively through representatives of their own choosing, and to
engaged in concerted activities for the purposes of collective bar-
gaining and other mutual aid and protection , as guaranteed in
Section 7 of the National Labor Relations Act;
TENNISOON BROTHERS, INCORPORATED 1255
(c) Giving effect to any existing contract or agreement with
any of its employees in the Texarkana plant with respect to
rates of pay, wages, hours of employment, or other conditions
of employment, particularly the contract entered into with the
president and secretary of Local No. 2239, Steel Workers Organ-
izing Committee, under date of February 11, 1941, without preju-
dice, however, to any rights or benefits conferred upon any
individual employee under said contract.
2. That the respondent, Tennison Brothers, Inc., its officers,
agents, successors, and assigns, shall take the following affirmative
action, which the Board finds will effectuate the policies of the
Act :
(a) Upon request, bargain collectively with Steel Workers
Organizing Committee, affiliated with the Congress of Industrial
Organizations, as the exclusive representative of all the produc-
tion and maintenance employees of the respondent at its Memphis
and Texarkana plants, respectively, exclusive of clerical and su-
pervisory employees, in respect to rates of pay, wages, hours of
employment, and other conditions of employment;
(b) Offer to the employees whose names are listed in Appendix
A of this stipulation immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges;
(c) Make whole the employees whose names are listed in
Appendix A of this stipulation for any loss of pay that they
may have suffered by reason of the respondent's discrimination
in regard to their hire and tenure of employment, by the pay-
ment to each of them, respectively, of a sum of money equal to
that which he normally would have earned as wages from the
date of such discrimination against him to th3 date of the offer
of reinstatement, less his net earnings during said period;
(d) Make whole the employees whose names are listed in
Appendix B of this stipulation for any loss of pay they may
have suffered by reason of the respondent's discrimination in re-
gard to their hire and tenure of employment, by the-payment to
each of them, respectively, of a sum of money equal to that which
he normally would have earned as wages from the date of the
respondent's discrimination against him to the date that he was
reinstated in the Memphis plant, less his net earnings during
said period;
(e) Offer to H. L. Williams immediate and full reinstatement
to his former or substantially equivalent position in the Memphis
plant, without prejudice to his seniority or other rights and
privileges ;
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Make whole H. L. Williams for any loss of pay lie may
have suffered by reason of the respondent's discrimination in
regard to his hire and tenure of employment, by payment to hint
of a sum of money equal to that which he normally would have
earned as wages from the date of such discrimination against
him to the date of the offer of reinstatement, less his net earn-
ings during said period;
(g) Upon application, offer to the empployees who went on
strike on or after December 3, 1940, in the Memphis plant and
who have not since been fully reinstated, immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, all employees hired in the
Memphis plant since December 3, 1940, in the manner set forth
in the Trial Examiner's Intermediate Report in the section en-
titled "The Remedy," and place those for whom employment is
not immediately available upon a preferential list and offer them
employment as it becomes available, in the manner set forth in
said section;
(h) Make whole such striking employees for any loss of pay
they may suffer by reason of the respondent's refusal to reinstate
them, or place them upon a preferential list as provided above,
by payment to each of them respectively, of a sum of money
equal to that which each would normally have earned as wages
during the period from five (5) days after his application for
reinstatement to the date on which he was reinstated or placed
upon a preferential list, less his net earnings, if any,'during said
period ;
(i) Personally inform, in writing, Local No. 2239, Steel
Workers Organizing Committee, and employees Jack Harris
and W. B. Adams, who signed the contract dated February 11,
1941, that, insofar as such instrument relates to rates of pay,
wages, hours of employment, or other conditions of employment,
the respondent will cease and desist from enforcing or attempt-
ing to enforce it;
(j) Immediately post notices in conspicuous places through-
out its Memphis and Texarkana plants, and maintain such
notices for a period of at least sixty (60) consecutive days from
the date of posting, stating (1) that the respondent will not
engage in the conduct from-which it is ordered that it cease and
desist in paragraphs 1 (a), (b), and (c) of this order; and (2)
that the respondent will take the affirmative action set forth in
paragraphs 2 (a), (b), (c), (d), (e), (f), (g), (h), and (i) of
this order;
TENNISON BROTHERS, ITT'O0'R'P'0'RIAfTEID 1257
(k) Notify the Regional Director for the Tenth Region (At-
lanta, Georgia) in writing, within twenty (20) days from the
date of this order, what steps the respondent has taken to comply
herewith.
(3) That the parties hereby consent to the entry by the United
States Circuit Court of Appeals for the Sixth Circuit, or any
appropriate Circuit Court of Appeals of the United States, upon
,application by the Board, of a decree in the form attached hereto
and made a part hereof, enforcing the Order of the Board as
above set forth, without further notice of said, application.
(4) That the parties hereto will cooperate with the Agents of
the Board in arriving at the amount of back pay due the em-
ployees referred to in the above order pursuant to paragraphs
2 (c), (d), (f), and (h) of said order.
(5) That the execution of this stipulation and entry of said
decree shall conclude all proceedings before the Board in the
above-entitled case.
(6) That the entire agreement is contained within the terms
of this stipulation and that there is no verbal agreement of any
kind which varies, alters or adds to this stipulation.
(7) That this stipulation is subject to the approval of the
Board and shall become effective immediately upon the granting
of such approval.
APPENDIX A
(Employees in the Memphis plant, not reinstated after
June 28, 1940)
Burgess, William
Bouldon, Luke
Byrd, Leonard
Davis, J. D.
Frame, Rex
Horn, Leo
(Employees in
APPENDIX B
the Memphis plant,
June 28, 1940)
Cannon, John
Galloway, Claude
Gardner, Ernest
Gruver, Raymond
Hall; Paul
Huckaby, A. E.
Manuel, Joe
Pierce, George
Sarten, Clinton
Whitaker, Claude
reinstated after
Highfill, Finis
Manning, E. C.
Tidwell, John
Wilson, Edgar
On September 20, 1941, the Board issued its Order approving
the above stipulation and making it a part of the record in the
proceedings.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above stipulation and the entire record in
the case, the Board makes the following : _
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The respondent is a Delaware corporation, duly licensed to do
business in Tennessee and Arkansas, with its principal offices and place
of business in Texarkana, Arkansas. It also owns and operates a
plant in Texarkana, Arkansas, and another plant at Memphis, Ten-
nessee. The respondent is engaged at both of its plants in the manu-
facture, sale, and distribution of metal wash tubs, buckets, pails,
metal roofing, and similar products. During the fiscal year from
December 1, 1939, to November 30, 1940, the value of the raw ma-
terials purchased and used by the respondent was approximately
$539,000, about 55 per cent of which was shipped to the Memphis
plant and the balance to the Texarkana plant from points outside
the States of Tennessee and Arkansas. For the same period, the
respondent sold and distributed finished products valued at approxi-
inately $719,000, about 70 per cent of which was delivered to points
outside the States of Tennessee and Arkansas. The respondent ad-
mits that it is engaged in interstate commerce within the meaning
of the Act.
We find that the above-described operations constitute a continu-
ous flow of trade, traffic, and commerce among the several States.
II. THE ORGANIZATION INVOLVED
Steel Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, is a labor organization admitting to
membership employees of the respondent, both at its Memphis and
Texarkana plants. Local No. 2218 is located at Memphis, and Local
No. 2239 at Texarkana.
ORDER
Upon the basis of the above findings of fact, conclusions of law,
stipulation, and 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 Tennison Brothers,, Incorporated,
Texarkana, Arkansas, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Steel Workers Organiz-
ing Committee, affiliated with the Congress of Industrial Organiza-
tions, as the exclusive representative of all production and main-
T'ENNISON BROTHnRSI , INCORPORATED 1259
tenance employees of the respondent at its Memphis and Texarkana
plants, respectively , exclusive of clerical and supervisory employees,
in respect to rates of pay, wages , hours of employment , and other
conditions of employment ;
(b) 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 labor organizations , to bargain collectively through
representatives of their own choosing , and to engage in concerted
activities for the purposes of collective bargaining and other mutual
aid and protection , as guaranteed in Section 7 of the National Labor
Relations Act;
(c) Giving effect to any existing contract or agreement with any
of its employees in the Texarkana plant with respect to rates of
pay, wages , hours of employment, or other conditions of employment,
particularly the contract entered into with the president and secre-
tary of Local No. 2239, Steel Workers Organizing Committee, under
date of February 11, 1941, without prejudice , however , to any rights
or benefits conferred upon any individual employee under said
contract.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Steel Workers Or-
ganizing Committee, affiliated with the Congress of Industrial Or-
ganizations , as the exclusive representative of all the production and
maintenance employees of the respondent at its Memphis and Tex-
arkana plants , respectively , exclusive of clerical and supervisory em-
ployees, in respect to rates of pay , wages , hours of employment, and
other conditions of employment;
(b) Offer to the employees whose names are listed in Appendix A
of the Stipulation immediate and full reinstatement to their former
or substantially. equivalent positions , without prejudice to their
seniority or other rights and privileges;
(c) Make whole the employees whose names are listed in Appendix
A of the Stipulation for any loss of pay that they may have suffered
by reason of the respondent 's discrimination in regard to their hire
and tenure of employment, by the payment to each of them, re-
spectively , of a sum of money equal to that which he normally would
have earned as wages from the date of such discrimination against
him to the date of the offer of reinstatement , less his net earnings
during said period;
(d) Make whole the employees whose names are listed in Appendix
B of the Stipulation for any loss of pay they may have suffered by
reason of the respondent 's discrimination in regard to their hire and
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenure of employment, by the payment to each of them, respectively,
of a sum of money equal to that which he normally would have
earned as wages from the date of the respondent's discrimination
against him to the date that he was reinstated in the Memphis plant,
less his net earnings during said period ;
(e) Offer to H. L. Williams immediate and full reinstatement to
his former or substantially equivalent position in the Memphis plant,
without prejudice to his seniority or other rights and privileges.
(f) Make whole H. L. Williams for any loss of pay he may have
suffered by reason of the respondent's discrimination in regard to his
hire and tenure of employment, by payment to him of a sum of money
equal to that which he normally would have earned as wages from
the date of such discrimination against him to the date of the offer of
reinstatement, less his net earnings during said period;
(g) Upon application, offer to the employees who went on strike
on or after December 3, 1940, in the Memphis plant and who have
not since been fully reinstated, immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, dismissing, if neces-
sary, all employees hired in the Memphis plant since December 3,
1940, in the manner set forth in the Trial Examiner's Intermediate
Report in the section entitled "The Remedy," and place those for
whom employment is not immediately available upon a preferential
list and offer them employment as it becomes available, in the manner
set forth in said section;
(h) Make whole such striking employees for any loss of pay they
may suffer by reason of the respondent's refusal to reinstate them
or place them upon a preferential list as provided above, by pay-
ment to each of them, respectively, of a sum of money equal to that
which each would normally have earned as wages during the period
from five (5) days after his application for reinstatement to the date
on which he was reinstated or placed upon a preferential list, less
his net earnings, if any, during said period;
(i) Personally inform, in writing, Local No. 2239, Steel Workers
Organizing Committee, and employees Jack Harris and W. B. Adams,
who signed the contract dated February 11, 1941, that,, insofar as
such instrument relates to rates of pay, wages, hours of employment,
or other conditions of employment, the respondent will cease and
desist from enforcing or attempting to enforce it;
(j) Immediately post notices in conspicuous places throughout its
Memphis and Texarkana plants, and maintain such notices for a
period of at least sixty (60) consecutive days from the date of post-
ing, stating (1) that the respondent will not engage in the conduct
from which it is ordered that it cease and desist in paragraphs 1,(a),
`T'EINrNISON BROTHEIRS, INCORPORATED 1261
(b), and (c) of this order; and (2) that the respondent will take the
affirmative action set forth in paragraphs 2 (a), (b), (c), (d), (e),
(f), (g), (h), and (i) of this order;
(k) Notify the Regional Director for the Tenth Region (Atlanta,
Georgia) in writing, within twenty (20) days from the date of this
order, what steps the respondent has taken to comply herewith.