The Sturges Co.

National Labor Relations Board - Board Decisions

Aug 21, 1947

74 N.L.R.B. 1546 (N.L.R.B. 1947)

In the Matter of R. W. STURGES, SR., TRADING UNDER THE FIRM NAME
AND STYLE OF TILE STURGES COMPANY and INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREIIOUSEME AND HELPERS,
LOCAL UNION No. 591, A. F. OF L.
Case No. 13-C-1009.-Decided August 01, 1947
Messrs. Jerome A. Reiner and Charles G. Kessler, for the Board.
Messrs. Edward L. Snow and J. A. Covington, Jr., of Meridian,
Miss., for the respondent. '
Mr. Robert F. Sullivan, of Meridian, Miss., for the Union.
Mr. Paul Bisgyer, of counsel to the Board.
DECISION
AND
ORDER
On November 7, 1946, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceedii g, finding that
the respondent had engaged in and Was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are here-
by affirmed. The Board his considered the Intermediate Report, the
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, With the modifications, additions and exceptions noted
below.
1. We agree with the Trial Examiner that the respondent inter-
fered with, restrained, and coerced its employees, in violation of Sec-
tion 8 (1) of the Act. As. more fully discussed in the Intermediate
Report, this conduct occurred during the initial stages of the Union's
organizational campaign, and consisted chiefly of the following acts
and statements of Sturges and Warehouse Supervisor Stevenson: 1
1 We, like the Tiial Examiner , do not find it necessary to determine whether , under the
circumstances of this case , the respondent was responsible for the conduct of E T Newell,
one of his customers
74 N. L. R. B., No. 245.
1546
THE STURGES COMPANY 1547
(a) threats to discontinue business rather than deal with the Union; 2
(b) offering and granting a wage increase to offset the Union's organ-
izational drive; 3 (c) questioning employees concerning their -union
membership; and (d) warning employees that their jobs were jeop-
ardized by membership in the Union while simultaneously advising
them that non-members would receive raises.4
In addition to the foregoing, Chairman Herzog and Member Hous-
ton agree with the Trial Examiner that Harbin's discharge constituted
a further violation of Section 8 (1) of the Act.' However, Chairman
Herzog and Member Reynolds do not believe that the evidence sup-
ports the Trial Examiner's finding that Hooks' discharge also contra-
vened Section 8 (1) of the Act." This latter finding is, therefore,
not adopted.
The respondent denies that he or his agents committed any un-
fair labor practices, contending, inter alia, (a) that the wage increase
was not given for the purpose of discouraging union membership,
hut that, like other emmployers, he merely took advantage of the re-
laxation of the wage freeze, and (b) that Stevenson was not a super-
visory employee for whose acts he was responsible. We find no
merit in these contentions. It is reasonably clear from the timing of
the wage increase and the circumstances under which it was offered
and given, that it was calculated to discourage membership in the
Union, which was then endeavoring to organize the respondent's
employees.' With respect to the second contention, we find that it
is not supported by the record. Although the respondent character-
ized Stevenson as a straw boss without authority to hire or fire, the
evidence shows that lie supervised the work of warehouse employees,
the loading of trucks and the unloading of freight cars; assigned
2 We do not find ans meat in the respondent's argument that, even accepting the testi-
mony conceimng Sturges' threats to discontinue his business, the effect of these threats
was "eliminated" by the respondent's later contract negotiations, which are hereinafter
discussed
3 we, as the Trial Examinei apparently did, limit this finding to the wage increase given
to the white truck di leers on Tune 22, 1945, a few days after the diivei s' meeting discussed
in the Intermediate Repoit
' In concluding that the respondent violated Section S (1) of the Act, Nye find it unneces-
s,uy to adopt the Dial Examiner's further finding that Sturges' iefeual of employee
Cooksey to the former's lawvei for advice regarding the method of withdiawnig fiom the
Union, which information Cookscy had solicited, constituted, under the circumstances, a
part of the pattern of the respondent's unlawful conduct
c Member Reynolds disagrees with this view and does not rely on Harbin's discharge as
evidence of the respondent's unlawful conduct
°Mcnmber Houston dissents from the majority's determination in this respect and would
find that Hooks' discharge was also violative of Section S (1) of the Act
T'rlins, at the heaung, Sturges admitted that at the June dryers' meeting he inquired
of the assembled employ ees whether they had joined the Union and what they wanted ,
that, on being infoimed that it was more money they wanted, he told then that wages
wcie frozen but that he "would be glad" to give it to them if "there was any possibility"
lie could do so . and that a few days later, on learning that lie could Terse wages, he gi anted
an uuacase See Matter of IJudson hfosiemy Company, 72 N L It B 1434, and cases
there cited
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobs to employees; told them when to work overtime; had authority
to give his men time off; and was generally regarded by his Wien as
their boss. Significantly, according to Steven son's testimony, Sturges
arranged for him and Assistant Manager Kidd to receive unpub-
licized neutrality instructions from Sturges' attorney dLlrmg the
Union's organizational campaign. In view of the foregoing facts,
we are of the opinion and find that Stevenson was in a position to
translate management's policy to the employees and that, therefore,
his acts are imputable to the respondent.8
2. The Trial Examiner also found that the respondent, in violation
of Section 8 (5) of the Act, refused to bargain with the Union as
the exclusive bargaining representative of his employees. We do
not agree. It is undisputed that during the course of negotiations
the Union consented to the respondent's proposal for a cross-check
of the Union's membership cards, to determine its majority status, by
the Federal Conciliator, who was present at the. meeting at the
Union's invitation. It is also clear that, after the Conciliator com-
pleted the cross-check and announced the Union's lack of majority,
the meeting broke up without any objection or further request for
resumption of negotiations from the Union. Thus, although the
circumstances under which the respondent raised the majority ques-
tion cast serious doubt upon his good faith,-particularly in view
of his former recognition of the Union and opportunity to verify the
Union's majority claim,-the Union, nevertheless, acceded to the
proposal. Consequently, irrespective of the binding character of
the Conciliator's cross-check determination or the respondent's good
faith, the Union was, at least, required to demand a resumption of
negotiations before the respondent could be considered in default
of his bargaining obligations. This the Union failed to do; in fact,
it appears that the Union itself did not regard the respondent duty-
bound to reopen negotiations, for in its original charge, which it
filed 21/z weeks later, it made no reference to an unlawful refusal to
bargain by the respondent. Significantly, such an allegation was
made for the first time in the amended charge filed 5 months there-
after.
Accordingly, we find, contrary to the Trial Examiner, that the
respondent, under the circumstances herein, did not refuse to bargain
collectively with the Union, within the meaning of Section 8 (5)
8 Regardless of whether or not Stevenson 's conduct is attributable to the respondent,
the evidence, consisting in part of Sturges's admissions , shows that Sturges himself com-
mitted unfaii labor practices by threatening to discontinue business operations , offering
and granting a wage increase , and questioning employees , as discussed above and in the
Intermediate Report.
THE STURGES COMPANY 1549
of the Act.9 We shall, therefore, dismiss these allegations of the
complaint.
The Remedy
The Trial Examiner recommended that, in order to make the
Board's Order coextensive with the threat of future unfair labor
practices and thus effectuate the policies of the Act, the respondent
should be ordered to cease and desist from in any manner infringing
upon the rights of his employees guaranteed in Section 7 of the Act.
This recommendation is partially based on the Trial Examiner's
finding that the respondent violated the Act by discharging employee
Hooks and by refusing to bargain with the Union. Although we
have found that these acts did not constitute unfair labor practices,
we are nonetheless of the opinion that the other unfair labor prac-
i ices found herein, namely, threatening to discontinue business opera-
tions rather than deal with the Uiiion, offering and granting a wage
increase to offset the Union's organizational campaign, question-
ing employees concerning their union membership, warning em-
ployees that their jobs were jeopardized by membership in the Union
while simultaneously advising 'them that non-members would receive
raises, and discriminatorily discharging employee Harbin,10 amply
disclose an attitude of opposition to the purposes of the Act. WWTe
believe, therefore, that in order to satisfy the remedial objectives of
the Act, the respondent should be ordered to cease and desist, not
only from the unfair labor practices herein found, but also from in
any other manner infringing upon the rights guaranteed to employees
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 Relations
Board hereby orders that the respondent, R. W. Sturges, Sr., trading
under the firm name and style of The Sturges Company, Meridian,
Mississippi, and his agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discharging or refusing to reemploy any of his employees,
or in any other manner discriminating in regard to their, hire or
tenure of employment, or any terns or condition of their employment,
because of their membership in or activity on behalf of International
° In view of this finding, the question of the propriety of the Trial Exammei's denial of
the iespondent ' s application for a subpoena directed to the Federal Conciliator becomes
moot
'0 See footnote 5, supra
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 591, A. F. of L., or any other labor organization;
(b) Warning his employees that he will discontinue his business
rather than deal with the above-named union;
(c) Offering or granting a wage increase to discourage membership
in the above-named union or in any other labor organization;
(d) Questioning his employees concerning their union member-
ship, activities, or sympathies;
(e) Warning his employees that their jobs will be jeopardized by
membership in the above-named union or in any other labor organi-
zation, and advising them that non-members will receive wage raises;
(f) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union
No. 591, A. F. of L., or any other labor organization, to bargain col-
lectively 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 Board finds will
effectuate the policies of the Act :
(a) Post at his place of business and warehouses in Meridian,
Mississippi, copies of the notice attached hereto, marked "Appendix
A."" Copies of such notice, to be furnished by the Regional Director
for the Fifteenth Region, shall, after being duly signed by the re-
spondent or his representative, be posted by the respondent immedi-
ately upon receipt thereof, and maintained by him for sixty (60),
consecutive clays thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the respondent to insure that such notices are not
altered, defaced, or covered by any other material;
(b) Notify the Regional Director for the Fifteenth Region (New
Orleans, Louisiana) in writing, within ten (10) days from the date
of this Order, what steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, as amended, be,
and it hereby is, dismissed, insofar as it alleges that the respondent,
in violation of Section 8 (1) of the Act, discharged Pearlie Mae Bar-
field, Berry G. Wiggens, Willard May, Randolph B. Blackwell, Charles
Bell, Echo Brown, Ozie Lee Greer, Robert Lee Wilson, and Lewis C.
Hooks, and, in violation of Section 8 (5) of the Act, refused to bar-
gain collectively.
11 In the event this Order is enforced by decree of a Circuit Court of Appeals, there shall
be inserted, before the words "A Decision and Order" the words "A Decree of the United
States Cilcult Court of Appeals Enfoicing."
J
THE STURGES COMPANY
"APPENDIX A"
1551
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that :
WE WILL NOT discharge or refuse to reemploy any of our em-
ployees, or in any other manner discriminate in regard to their
hire or tenure of employment, or any term or condition of em-
ployment, because of their membership in or activity on behalf
of International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local Union No. 591, A. F. of L., or any
other labor organization.
WE WILL NOT warn our employees that we will discontinue busi-
ness operations rather than deal with the above-named union
or any other labor organization.
WE WILL NOT offer or grant a wage increase for the purpose of
discouraging membership in the above-named union or in any
other labor organization.
WE WILL NOT question our employees concerning their union
membership, activities, or sympathies.
WE WILL NOT warn our employees that their jobs will be jeop-
ardized by membership in the above-named union or in any
other labor organization, or advise them that non-members will
receive raises.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, Local Union No. 591, A. F. of L., or any other labor
organizatian, 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.
All our employees are free to become or remain members of
the above-named union or any other labor organization. We
will not discriminate in regard to hire or tenure of employment
or any term or condition of employment against any employee
because of membership in or activity on behalf of any such labor
organization.
R. W. STURGES, SR.,
Trading under the firm name and stgle of The Sturges Company,
Employer.
Date ----------------------------- By -------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
755420-48-vol 74-99
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Messrs Jerome A. Reiner and Charles G. Kessler, for the Board.
Messrs. Edward L. Snow and J. A. Covington, Jr., of Meridian, Miss ., for the
Respondent.
Mr. Robert F. Sullivan, of Meridian, Miss., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed on January 4, 1946, by International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers , Local Union No. 591,
A. F. of L., herein called the Union , the National Labor Relations Board, herein
called the Board, by its Regional Director for the Fifteenth Region (New
Orleans, Louisiana ), issued a complaint dated July 16, 1946, against R. W.
Sturges, Sr., trading under the firm name and style of The Sturges Company,
herein called the Respondent , or Sturges when referred to individually , alleging
that the Respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 ( 1) and ( 5) and Section 2 (6) and ( 7) of the
National Labor Relations Act, 49 Stat . 449, herein called the Act. Copies of
the complaint , accompanied by notice of hearing , were served upon the Respond-
ent and the Union.
In respect to the unfair labor practices , the complaint alleged, in substance,
that from about June , 1945 , to the date of the complaint , the Respondent had
interfered with, restrained , and coerced his employees in the exercise of their
rights guaranteed in Section 7 of the Act, by committing , authorizing , instigat-
ing, and acquiescing in the following acts: ( a) statement and conversations dis-
couraging membership and activity in and on behalf of the Union ; ( b) inquiring
and questioning the Respondent's employees about their union desires , sympa-
thies , membership, activities , meetings , and business ; ( c) making derogatory
and defamatory statements about the Union and union dues ; ( d) threatening
to discriminate against and discharge employees because of their membership
in, adherence to, and activities on behalf of, the Union ; ( e) enlisting the aid of
a friend of the Respondent to influence employees to discontinue membership in,
and activity on behalf of, the Union ; ( f) advising his employees to discontinue
membership in the Union with a promise of reward of future pay increases and
carrying out such promise and reward ; ( g) advising , stating, and predicting
that the Union could not benefit the employees in any way and that the employees
would benefit much more without the intervention of a union to represent them
collectively and bargain for them; ( h) inducing employees to resign , and assist-
ing employees to carry out the Respondent 's wish that they resign, from the
Union. The complaint further alleged that on about July 31, 1945, and at all
times thereafter the Respondent refused to bargain collectively with the Union
as the exclusive representative of the employees in an appropriate unit although
the Union was and is the representative of a majority of employees in said appro-
priate unit The Respondent ' s answer, dated July 29, 1946 , denied the com-
mission of all the alleged unfair labor practices
Pursuant to notice , a hearing was held in Meridian, Mississippi, from July 30
to August 2, inclusive , and August 5 to 8, inclusive , 1946,' before the under-
signed Trial Examiner , duly appointed by the Chief Trial Examiner . Full oppor-
tunity to be beard, to examine and cross -examine witnesses , and to introduce
evidence bearing on the issues was afforded all parties. During the course of
the hearing , Board's counsel moved to amend the complaint , by adding as
THE STURGES COMPANY 1553
clause (i) under the allegation of interference, restraint, and coercion: "Dis-
criminating and discharging employees because of their membership and ad-
herence to, and activities on behalf of the Union." The motion was granted over
the Respondent's objection, and a motion by the Respondent to amend his
answer to include a denial of the allegations in the amendment to the complaint
was granted. The Respondent moved for a bill of particulars giving the names
of employees allegedly discriminated against. The motion was granted., At the
close of the hearing, Board's counsel moved to conform the pleadings to the proof
as to formal matters The motion was granted. All parties were afforded
opportunity to argue orally and to file briefs with the Trial Examiner. None
of the parties chose to argue, and no briefs have been received.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is engaged in the wholesale feed, flour, and heavy grocery
business. In the operations of his business, the Respondent purchases feed,
flour, sugar, rice, salt, and other products. Goods of such kind of a value in
excess of $300,000 annually he purchases in places outside the State of Mississippi
and causes to be transported therefrom to his principal place of business in
Meridian, Mississippi. Such purchases constitute in excess of 20 percent of the
total quantity of such goods handled by him Of his total quantity of such goods
handled by him, in excess of 13 percent, of a value in excess of $200,000 annually,
is sold, transported, and distributed by him to places outside the Stale of
Mississippi. The Respondent's answer admits the jurisdictional allegations of
the complaint. He is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, Local Union No. 591, affiliated with the American Federation of Labor,
is a labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR, LABOR PRACTICES
A. Interference, restraint, and coercion
1. Anti-union conduct and statements
In the operation of his business, the Respondent employs truck drivers, truck
drivers' helpers, and warehouse helpers. He customarily employs white men
as truck drivers and colored men for the other jobs. On June 13, 1945, a
majority of the truck drivers signed applications for membership in the Union,
and on June 18, 1946, a majority of the helpers signed such applications. A few
days after the truck drivers signed their applications, Sturges, who spent a
great deal of his time on the road as salesman for two other companies, heard
rumors that the drivers had joined the Union and called them together in a
1 Board's counsel thereupon listed the following employees • Pearlie Mae Barfield, Berry
G Wiggins, Willard May, L. C Hooks, Randolph B. Blackwell, Woodrow Harbin, Charles
Bell, Echo Brown, Ozie Lee Greer, Robert Lee Wilson.
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting in his office.' There lie said that he understood some of them had
joined the Union and asked how many had joined and what they wanted. One
of them said seniority and priority and another said they wanted more money.
Sturges asked why they did not come to him first, and told them that wages had
been frozen, but that if he could get them more money he would do so. He said
that he had run his business in the past without anyone telling him what to do
and, before he would let anyone tell him what to do, he would close the business.
He said that by the time they had paid their initiation fees and dues they
would not be making any more than they were already making, that, if the
Union could get them a raise, he could too, that he was going to take the matter
up with the War Labor Board, that if he could not get them a raise in 10 days
he would tell them, and if they were then not willing to drive for their present
wages, they could quit. He asked for a little time to see what he could do for
them. He also said that he was willing to give the white drivers more money
but not the colored boys.
While Sturges was speaking, a customer, E. T. Newell, entered the office.
Sturges told him the men were trying to start a union on him. Newell then told
the men that they were doing wrong, that Sturges had always been fair and
would do what he could for them, that Sturges was not going to allow a union
in his business, and that it was best that they forget it. Newell had assisted
one of the drivers, L. C. Hooks, ill getting his job with Sturges, and after the
meeting, Newell spoke to Hooks and another driver in an effort to persuade
them to stay out of the Union. A few days after this, Sturges asked Albert
Mosley, a truck driver, if he had joined the Union. Mosley said that he.had not
joined.
On June 22, 1945, the white truck drivers received a pay increase of 10 cents,
or from 40 to 50 cents per hour, for the week ending that day. About 10 days
later, Walter Cooksey, one of the truck drivers, went to Sturges, told him that
he was satisfied with his pay and wanted to continue with him, and asked his
advice on how to get out of the Union. Sturges said he would telephone his
attorney and let Cooksey talk to him. He did so, and Cooksey told E. L. Snow,
Sturges' attorney, that he wanted to withdraw from the Union and asked how
it could be done. Snow told him it was a matter for Cooksey to decide as to
whether he wanted to stay in or get out, but that, if he were a member of a
union and wanted to get out, he would go to the Union and tell them, or, if he
could not find the union people, he would just write a letter.
During the latter part of June 1945, Charlie Stevenson, supervisor of the
warehouse employees,' spoke to various colored employees, asking them if
they belonged to the Union and telling them in substance that they would not
get more pay by belonging to the Union, that those who did not join would get a
5-cent raise and that those who joined would lose their jobs.`
2 Meetings of truck drivers, called by General Manager Causey or by Sturges, to discuss
matters of business were not unusual. Other matters of business were brought up at this
meeting.
3 The Respondent contended that this was not a supervsiory position. The undersigned
finds that it was and also that the employees regarded Stevenson and Griffin, who later
held the same position, as representative of management.
' Stevenson denied making the statements above found to have been made by him, but
he admitted having asked a number of the colored people if they belonged to the Union.
For the week ending October 19, 1945, all the warehouse helpers received an increase from
40 cents per hour to 45 cents. On the same day, the truck drivers were raised to 55 cents.
For the week ending July 12, 1946, each class received another 5 cent increase. Testimony
was adduced by Board counsel that similar statements were made by Lemar Griffin. Grif-
fin was a truck driver who did not join the Union. In about August 1945, he became a
supervisor of the warehouse helpers. The time when be was alleged to have made the
THE STURGES COMPANY _ 1555
By seeking to dissuade his employees from joining or remaining members
of the Union in the truck drivers' meeting, by threatening to close the business
before he would deal with the Union, by granting wage increases to induce
employees to abandon the Union, by questioning employees concerning their
union membership, and by threatening loss of employment to those who joined,
the Respondent has interfered with, restrained, and coerced his employees in
the exercise of the rights guaranteed in Section 7 of the Act.
In the circumstances of the case, following Sturges' expression of disapproval
of the Union in the truck drivers' meeting and his giving a wage increase so
that the truck drivers would not carry their efforts on behalf of the Union any
further, the undersigned regards Sturges' reference of Cooksey to his lawyer
for advice in withdrawing from the Union as part of the pattern of interference,
restraint, and coercion.
2. The discriminatory discharges and alleged discriminatory discharges
Randolph Blackwell was employed by the Respondent on April 27, 1945. When
he applied for work to Harry Causey, the Respondent's general manager, he did
not disclose the fact that he had previously been convicted of a crime.' He was
given a job as helper to a truck driver at 40 cents per hour with a promise of a
driver's job. About two weeks later he was made a truck driver. Sometime be-
tween the middle and the end of May, a Welfare Agent telephoned Causey and
told him that Blackwell was on parole, and later Blackwell brought papers to be
filled in by Causey for the Parole Board.6
Blackwell along with all but two of the truck drivers signed an application card
for the Union on June 13, 1945. On June 23, 1945, a few days after the meeting
of the truck drivers in Sturges' office, and the day after the 10 cent increase
became effective, Causey discharged Blackwel1.7 Sturges told Blackwell at that
time that he could not get Blackwell's bond approved by the bonding company
although it had been sent in twice. Actually, no effort had been made by the
Respondent to procure a waiver of the provisions of the Respondent's blanket
fidelity bond as to Blackwell, although the bond did not cover him from the time
the Respondent first learned of his criminal record.
The Respondent's retention of Blackwell in his employ for more than three
weeks after learning of his criminal record and the discharge of Blackwell soon
after the Respondent learned of the fact that some of his truck drivers were
organizing the Union, together with Sturges' misstatement that Blackwell's bond
had been refused by the bonding company after it had been sent in twice, create a
strong suspicion that Blackwell's employ was terminated because of his union
statements was not fixed with certainty as after the time he became a supervisor. The
undersigned therefore makes no findings thereon.
5 In 1937, when he was 16 years old, Blackwell was convicted of the crime of burglary
and committed to the penitentiary . In about 41h months his sentence was suspended and
he was released . He procured a job driving a truck. He testified that, while he was driv-
ing the truck , it broke down one night about 2 miles from town ; that while he was tele-
phoning for help, his truck was broken into. The suspension of his sentence was revoked
and he was returned to the penitentiary , where he remained for about 101/ months. He
was then paroled . He then went to work for his father -in-law until he applied for the
job at the Respondent's. He is now married, the father of a child, and working for an-
other company in Meridian . The undersigned was very favorably impressed with his
appearance and demeanor on the witness stand. His testimony was given in a straight-
forward manner and the undersigned credits it.
6 Such papers were sent to the State Parole Board by the Welfare Agent on June 1, 1945.
Causey reported the matter to Sturges and they decided to think about the matter.
° Causey testified he did so to avoid embarrassment after he had heard some employees
gossiping about Blackwell 's criminal record.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership. But the record does not reveal that the Respondent had knowledge
of Blackwell's membership in the Unions While possible sources of such informa-
tion suggest themselves, the undersigned finds the evidence not sufficiently sub-
stantial to support an inference of knowledge. The Respondent's explanation of
Blackwell's discharge is therefore accepted.
Pewrlie May Barfield, a colored woman, was employed by the Respondent in
February, 1945, to sweep, sew torn sacks, and help sack feed and flour in the
warehouse. It was contrary to the Respondent's policy to employ women in the
warehouse, but a labor shortage existed and the Respondent was obliged to make
more than one exception to obtain employees. Barfield was the only woman
employed while she was there. The aforementioned odd job§ were usually per-
formed by a man, Eddie "Red" Wiggens, but because of the labor shortage, he was
transferred to heavier work.
On June 18, 1945- Barfield, along with the other colored employees, who all
made application to the Union for membership at the same time, signed her
application for membership. Between that time and the time of her discharge,
Stevenson, supervisor of the warehouse, told Barfield that by the time those that
joined the Union "got through paying out" they would make no more than the
others, that those who did not join would get a nickel raise, that Sturges would
not sign a contract, and that those that joined the Union would be sorry they
joined because it would result in loss of their jobs.'
On July 3, 1945, Stevenson told Barfield that he would not need her on July 4.
When she came to work oil July 5, Stevenson told her he would not need her any
more. Barfield got her pay and did not return thereafter.
The Respondent adduced evidence that, at the time Barfield was released, feed
was getting short and that Wiggens was returned to the job that Barfield had been
doing. No one else was employed to do such work until October 1945, when
another woman was employed for a few weeks. Although there is evidence that
or. the date of her release, the Respondent knew thtat Barfield was a member of
the Union," there was also evidence that the Respondent was constantly employ-
ing and laying off help, depending on the amount of work to be performed While
Stevenson's anti-union statement to Barfield shortly before her discharge is sig-
nificant and creates a grave suspicion that Barfield's discharge was in part
motivated by the Respondent's desire to eliminate union adherents, the under-
signed is unconvinced, on all the evidence, that Barfield would have been retained
in the absence of her union membership. The undersigned therefore finds that
,Barfield's discharge was based on lack of work.
Berry G. Wiggens, the son of Red Wiggens, was first employed by the Re-`
spondent in 1941 as a helper on a truck. He quit after about nine months but was
reemployed in the last week of April 1945 as a warehouse helper 11
On July 3, 1945, Wiggens told Stevenson he wanted to be off July 4. Stevenson
gave his permission. Wiggens did not wait until the end of the day however.
'Blackwell testified that he had not informed Sturges that he was a member of the
Union, even when Sturges asked the truck , drivers in the mid-June meeting how many had
joined.
° The foregoing is based on Barfield's credited testimony . Stevenson denied making the
statements The undersigned received the impression that Stevenson was biased and was
reluctant to furnish information on cross-examination His denial is not credited
10 On July 3 , 1945 , union representatives met with Sturges to request recognition and at
that time showed him the application cards.
11 Wiggens testified that he was reemployed in 1943 or 1944 and that he worked about 9
or 10 months before his discharge . An exhibit introduced in evidence by the Respondent,
covering the weekly employment records for a period starting in March 1945 , indicates
that B G . Wiggens did not work at all during March 1945 nor during the first 3 weeks
of April 1945 . If Wiggens worked at all in 1944 , therefore , his work was not continuous
before April 1945.
THE STURGES COMPANY 1557
Ile left at about 3 p. in. with no further word to Stevenson and without finishing
the work he had been doing. He had previously walked off the job and had been
warned about it. Stevenson ascertained from other employees that Wiggens had
gone home, and apparently indicated that Wiggens would be discharged, for
Wiggens learned of it from one of the employees on July 4. He thereupon went to
the home of Assistant General Manager Kidd and asked him why he was to be
,discharged. According to Wiggens, Kidd said he did not know and that Wiggens
should go to the arehouse the next day to find out" Wiggens testified that Kidd
asked him at that time why the employees had joined the Union and said that
they were going to get themselves mixed up because of it.13
On the following morning, July 5, Wiggens reported for work and Stevenson
told him to wait outside. When Stevenson came out, he told Wiggens to get his
time.
The fact that Wiggens had not previously been discharged for walking off the
job and that he was discharged shortly after the Union had organized appears
suspicious. But the evidence discloses that Wiggens had been warned and the
undersigned is satisfied that Wiggens was not a responsible employee in relation
to his attendance. Even on his own testimony, Wiggens made an unwarranted
assumption that he could leave in the middle of the afternoon, although he had
requested permission to be absent only on the following day. The undersigned
finds, therefore, that Wiggens was discharged for walking off the job and that
the evidence does not establish that he would have been retained but for his
union membership.
Woodrow Harbin was first employed in 1943 as a warehouse helper. For
about six months he served as a truck driver and thereafter served as a warer
house helper and truck-driver helper.14 On June 18, 1945, he signed an applica-
tion card for membership in the Union. A week or more after he signed the
card, Stevenson, warehouse supervisor, asked him if he had joined and he told
Stevenson that he had. At the same time, Stevenson told him that it was a
mistake for the employees to join the Union because they would get nothing
out of it, that when they got through paying their dues they would have no
more than those that did not join, and that those that joined would lose their
jobs while those that did not join would get a 5 cent raise."
On July 28, when Harbin reported for work, Stevenson told him that the
Respondent did not need him any more. The evidence is not clear as to whether
v Kidd testified that Wiggens, at the time when the latter had come to his home, asked
why he was discharged and said that he needed work, and that he told Wiggens he did not
need work as long as Wiggens had been doing as he had done and that Wiggens was "all
done." In view of the fact that Wiggens returned the next day, the undersigned believes
that Kidd did not discharge him then and there and that he had not yet received from
Stevenson a-report of Wiggens' early departure.
12 Kidd denied that anything was said in regard to the Union in the conversation.
Although Wiggens had a criminal record, which has caused the undersigned to scrutinize
his testimony carefully, Wiggens' testimony is credited. Wiggens made frank admission
against is own interest anj when asked a leading question by Board's counsel as to
whether Kidd had said anything about closing down the plant, Wiggens answered in the
negative. The undersigned received the impression that Kidd was not disposed to volun.
teer information and that he was placing restrictive interpretations on questions to avoid
giving answers that might be against the Respondent's interests. For example :
Q. Did you know, Mr. Kidd, whether he [B. G. Wiggens] belonged to the Union or not?
A. No, sir ; I couldn't swear that he did.
14 It was the Respondent's policy to use white men as truck drivers, and Harbin, a colored
man, was used as a truck driver during a period when there were insufficient white truck
drivers.
16 The foregoing is based on Harbin's credited testimony. Stevenson denied having
discussed the Union with Harbin and testified that he did not know but thought he had
not asked Harbin whether he belonged to the Union. For reasons previously stated, his
denial is not credited.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this was before Harbin had done any work on that day or whether he had worked
for an hour before he was so informed. A canceled check payable to Harbin
for one hour's pay was introduced in evidence. Harbin testified that he did
not remember having worked any that day and that he did not remember endors-
ing the check.16 Stevenson testified that he thought that Harbin was "one of
these kind that wouldn't work," that he would come one day and not the next.
He also testified that he did not think Harbin was discharged but that he "just
walked off." No records showing Harbin's daily attendance were offered in evi-
dence, but his pay-checks for July 14 and 21, offered in evidence by the Respond-
ent, do not bear out Stevenson's recollection, for they indicate that Harbin had
worked in excess of 50 hours each of those weeks.7 Sturges testified from a
memorandum book which he kept that "they told him they didn't need him, and
he walked off." That there was need for employees during the latter part of
July is indicated by the fact that from the week ending July 13 to Monday,
July 30, the Respondent hired no less than 10 employees.18 On all the evidence
the undersigned concludes and finds that Harbin was discharged on July 28,
1945, because of his union membership. By such discharge the Respondent
interfered with, restrained, and coerced his employees in the exercise of the
rights guaranteed in Section 7 of the Act.
On Charles Bell and Echo Brown Board's counsel offered little proof. They
were warehouse helpers, employed during the week ending June 22, whose
employment was terminated on August 3, 1945. They were among those who
signed union applications. The Respondent's witnesses testified that they
walked off without permission in the middle of the day and were discharged
when they returned. There was no evidence to the contrary, and the under-
signed accepts the Respondent's explanation.
Ozie Lee Greer was employed early in July 1945. He had signed a union
application card. His employment terminated on August 17, 1945. Assistant
General Manager Kidd testified that he was not discharged but left one day and
never returned. There was no evidence to the contrary and the undersigned
accepts the Respondent's explanation.
Robert Lee Wilson, another union applicant listed in the particulars fur-
nished by Board counsel, pursuant to Respondent's motion, as one of those
allegedly discharged discriminatorily, was employed in May or June 1945, as a
truck-driver's helper. He was absent for 2 or 3 days, during which time another
helper was put in his place. The truck driver told Kidd that Wilson was no good
and that he did not need him. He was discharged for this reason.
Lewis C. Hooks was employed by the Respondent in June 1944, at 40 cents
per hour. After he had served 2 weeks as a truck-driver's helper, he was made
a truck driver. E. T. Newell, previously identified herein as the customer who
spoke to the truck drivers against the Union in the meeting which Sturges called,
16 When pressed by Respondent's counsel to identify the endorsement, Harbin said it was
not his signatur.. The signature appeared to be genuine, and when asked by the under-
signed why he thought it was not his, he answered : "No more than I don't remember sign-
ing that check, and that the first letter is a little different." The undersigned does not
regard Harbin's denial of the signature as seriously impairing his credibility even if he
did sign r.. A time card, not signed by Harbin, credited Harbin with one hour's work
from 7 to 8 a. in. on Saturday, July 28. The pay week ran from Saturday through the
following Friday.
17 Harbin received 40 cents per hour. On July 7 he received $15.44, on July 14, $23.05,
and on July 21, $24.20. His check for July 28 was not offered in evidence.
"Of three hired during the pay week ending July 27, one was a truck; driver ; of four
who started work on July 30 one was a truck driver and one had previously been employed
in January and February.
THE STURGES COMPANY 1559
assisted Hooks in procuring his job with the Respondent. Hooks signed an ap-
plication card for membership in the Union along with the other white drivers
on June 13, 1945, and attended the meeting which Sturges called about a week
thereafter to inquire why the drivers were organizing. He was identified by
Sturges and Newell as one of the two drivers who answered Sturges' question
as to what they wanted. After the meeting, Newell attempted to prevail upon
Hooks several times to drop the Union. In one conversation, which Newell had
with Hooks when the former stopped at the latter's house, Newell told Hooks
that if he did not change and do what Sturges wanted him to do, he (Newell)
would give Hooks a pair of mules if Hooks were still employed by Sturges a
year from then. Hooks said, according to Newell, that Sturges was a hard man
to get up to and that if he was in a union Sturges could not discharge him. Al-
though Newell purported to be speaking at Sturges' request Sturges denied that
he had requested Newell to speak for him. However, it is a fair inference
that Newell, who had been friendly with Sturges for 12 or 15 years, who was
admittedly loquacious, and who was frequently at the Respondent's place of
business , reported to Sturges his unsuccessful efforts to get Hooks to drop the
Union.
On about September 1, 1945, Hooks' truck was being loaded to make a delivery
in Cromwell, Alabama. After the truck was loaded, his regular helper, Willard
May, was taken off the truck and Melvin Puckett," a truck driver who had been
hired on July 25, was assigned to take May's place for the trip. Kidd testified
that he had been informed by Griffin, the loading clerk and warehouse super-
visor, that May was from time to time concealing extra sacks of merchandise on
the hand truck and loading it onto Hooks' truck, that he told Griffin to let it
pass the next time it occurred because he wanted to see what became of it, that
Griffin reported such an occurrence on the day Hooks' truck was being loaded
to go to Cromwell, and that he then ordered the switch of helpers pursuant
to prior instructions from Sturges.
When Hooks and Puckett returned from Cromwell that evening, Puckett went
into the warehouse. Griffin asked him how the load checked out, and Puckett
replied that there was an extra 10-pound sack of Freeberg flour left over . Griffin
said that he knew. Hooks, on his return, removed his private automobile from
the garage, parked it by the warehouse, and drove his truck into the garage. He
then bought a sack of meal from General Manager Causey and put it in his auto-
mobile. Hooks testified that he thought he drove away immediately but that he
might have gone back into the office.
On Monday morning, September 3, when Hooks came to work, Sturges called
him into his office. There Sturges told Hooks that it had been reported that
Hooks had had a 10-pound sack of flour in his car on Saturday. Hooks denied
it and said that he had a sack of meal which he had bought. Sturges called
in Griffin, Kidd, and Causey. Sturges said Kidd and Williams, a salesman, had
seen a 10-pound sack of flour in his car, and Griffin said that Hooks had had an
extra sa,k of it in his truck. Hooks denied that there had been any flour in
his truck or car. Sturges said the shipping clerk reported that Hooks had ob-
jected to the shipping clerk's counting the sugar sacks on his truck. Hooks re-
plied that he had no objection to his counting the sugar but objected to his tear-
ing the outside bag from around the small sacks (because the small sacks were
1
19 This was a brother of H. D . Puckett, who had been warehouse supervisor and shipping
clerk until he went into military service in the early part of 1945. Stevenson replaced
him. Lamar Griffin, one of the truck drivers who had not joined the Union, became ware.
house supervisor in the latter part of August 1945.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more likely to scatter and break ). Sturges said he guessed Hooks wanted to quit.
Hooks said he did not . Sturges then said he would have to get Snow, his lawyer,
down there to settle it. Hooks said that, if Sturges had to bring Snow in, he
would have to quit. Sturges told him to get his time card filled out and get
his pay from Causey.
Hooks testified on cross-examination by Snow, Respondent 's counsel , that the
reason he resigned when Snow 's name was mentioned was because Snow had
represented the defendant in a suit involving the death of Hooks' father which
Snow had won and because he would not have doubted that Snow could have
proved he had a barrel of flour in his car whether he had or not, and he did not
want to be involved in a suit with Snow against him.
Griffin, Williams , and Kidd testified that they saw a 10-pound sack of flour
in Hooks' car lying label side up on top of a sack of meal . Griffin and Kidd testi-
fied that they were looking in Hooks' car to see if there was a sack of flour
there. There was no evidence that Hooks was seen putting a sack of flour
in his car or that there was one there when he drove away. Kidd, Williams, and
Griffin testified that they had not seen the flour put there . Kidd testified that
after they saw the flour in Hooks' car , the three of them went on with their
work of taking inventory for 45 minutes to an hour and that then he went to
Causey and asked him if Hooks had bought a sack of meal or flour. Williams
testified that, when they saw the flour and meal in Hooks' car , Kidd told him that
Hooks had bought the meal.
All the circumstances surrounding the incident of the extra sack of flour leave
the undersigned skeptical as to whether anyone saw any flour in Hooks' car..
If there was any extra flour on Hooks ' truck at all , which Hooks denied, it was
allowed to go on Hooks ' truck for the purpose of testing his honesty . Yet no one
made any effort to clinch the case by watching Hooks from the time when he
returned from Cromwell until he got in his car and drove away. Puckett's report
that there was a sack of flour on the truck was accepted without investigation.
Griffin did , indeed, testify that he waited in front of the warehouse for about
30 minutes for Hooks to check the extra sack of flour in. But this was either
untrue or a gross exaggeration . It is doubtful if it took Hooks half an hour
after his return to, get his car out, put his truck away , check in, buy his meal and
leave. If Griffin had been outside all that time , he would have seen all of Hooks'
actions and would have seen whether or not Hooks put any flour in his car, but he
did not so testify. Griffin was in the warehouse when Hooks returned , for that
is where Puckett made his report to him, and he testified that he did not see
Hooks remove his car from the garage. He also testified that between 5: 15 and
5: 30 p; m. he saw Hooks in the office and asked how his load checked out, and
that Hooks had then said it checked all right . He further testified that he saw
the flour in Hooks' car when he, Williams , and Kidd were moving from one ware-
house to another taking inventory . Kidd testified that he and Williams and-
Griffin had been- taking inventory in the second warehouse, that when they finished
they went through the office and out to the door of the south warehouse , at which
place they looked in Hooks' car and saw a sack of flour there . Causey testified
that Hoo s had bought the sack of meal from him at about 5 p. m. immediately
on his return . He remembered making out the ticket for it but did not see
Hooks get the meal. Kidd testified that the usual practice was for employees to
purchase the meal in the office , get a ticket therefor , and then give it to the ship-
ping clerk to get the meal. If this procedure had been followed in Hooks' case,
Griffin or Kidd would have known , at the time, that Hooks had bought meal
but no flour and would then be expected ( since they were looking for proof that.
THE STURGES COMPANY 1561
Hooks took a sack of flour) to watch him closely.20 Yet they contented themselves
with a peep into Hooks' car in passing and then left, making no effort to confront
Hooks when he entered his car or to stop him and charge him with theft as he
drove away. And after he left they made no complaint to the police.21 Another
peculiar circumstance is that Sturges, in an effort to get Hooks to resign, threat-,
ened to call, not the police, but his lawyer. If Hooks had wished to purloin
a sack of flour, he would not be expected to put it label-side up on top of the 25-
pound sack of meal which he bought, when the latter would have covered and
fairly well concealed a 10-pound sack of flour, especially if he were going to leave
his car before driving away, as he would have had to do if Williams, Kidd, and
Griffin were to have an opportunity to look into his car and see what they testified
they saw.
Although Kidd testified that a few weeks before Hooks' employ was terminated
he was morally certain that May was intentionally putting extra merchandise
on Hooks' truck and that he was morally certain that May had put an extra sack
of flour on Hooks' truck on the day Hooks made his last trip, May's employment
was not terminated for nearly 2 months after Hooks was forced to resign, and
when May's employment was finally terminated, it was not on the ground of
dishonesty. On all the evidence, the undersigned concludes and finds that Hooks'
union membership and adherence motivated the Respondent to discharge Hooks. -
By so doing, the Respondent has interfered with, restrained, and coerced his
employees in the exercise of the rights guaranteed in Section 7 of the Act.
Willard May was hired by the Respondent in February or March 1945 as a
truck driver's helper. He started with Griffin, but for most of the period prior
to Hooks' discharge, May was Hooks' helper. May made application for mem-
bership in the Union on June 18. May testified that, about 3 weeks after he had
joined the Union, Griffin asked him if he belonged to the Union and that he replied
affirmatively. At that time Griffin had not yet become a supervisor . Causey
testified that Griffin and Kidd were suspicious that Hooks and May were stealing
merchandise. As previously stated, Kidd testified that he. became certain May
was intentionally putting extra merchandise on Hooks' truck about 3 weeks
before Hooks' discharge early in September.
On or about Friday, October 26, 1945, at noon, Griffin laid May off , telling him
to return on the following day. When May reported for work on Saturday,
Griffin told him to return on Monday, and when he came on Monday, Griffin told
him there was nothing to do and that he should come back Tuesday. May told
Griffin that he could not make -a living that way, and Griffin said he could not
help it-that there was nothing to do. May did not return thereafter. In view
of the evidence that the Respondent had periods of time when work was light;
that no new employees were added at the time, and that the Respondent had
about six or eight fewer employees on the pay roll in the first 2 weeks of Novem-
ber, the undersigned finds that May was laid off during a slack period for lack
of work and that he was not discharged because of his union membership or
activity. -
20 May tes,ified that he heard Puckett report to Griffin that there was an extra sack of
flour on Hooks' truck, that he saw Hooks when he came out of the garage, that Hooks had
nothing in his hands but invoices, and that Hooks went into the office. If Hooks had trans-
ferred a sack of flour from his truck to his car before he took his car from the garage and
put his truck away, the flour would have been under the sack of meal and not on top of it
as Kidd, Williams, and Griffin testified. As previously stated, Williams testified that when
they looked in Hooks' car, Kidd told him that Hooks had bought the sack of meal.
21 In a previous case where Kidd was suspicious that sugar was being stolen , he caught
the guilty employee in the act and had him arrested.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The refusal to bargaiin. collectively
1. The appropriate unit
The complaint alleges and the Respondent 's answer admits that all drivers,
warehousemen , and helpers of the Respondent , excluding office, clerical, and
supervisory employees with authority to hire, promote, discharge , discipline, or
otherwise effect changes in the status of employees , or effectively recommend
such action, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act . The undersigned so finds.
2. Representation by the Union of a majority in the appropriate unit
A comparison of union application cards introduced in evidence with a list of
employees for the week ending July 6, 1945 (Recognition of the Union was given
on July 3) , shows that on that date the Union represented 23 of 29 employees.
On July 31, the date of the refusal to bargain, the Union represented 17 of the 33
employees listed by the Respondent as employed on that date. If Harbin, hereto-
fore found to have been wrongfully discharged on July 28, were included, the
Union would have 18 of 34 employees.` Accordingly, the undersigned finds that
on July 3 and 31 and at all times material herein, the Union was and is the duly
designated representative of a majority of the employees in the aforesaid appro-
priate unit, and that by virtue of Section 9 (a) of the Act, the Union was and is
the representative of all the Respondent's employees in such unit for the purpose
of collective bargaining with respect to rates of pay, wages , hours of employment,
or other conditions of employment.
3. The refusal to bargain
On June 26, 1945, Charles Farley, business agent for the Union, wrote to the
Respondent that the Union represented a majority of the employees in the unit
heretofore described and requested a meeting. A few days later Sturges tele-
phoned Farley and told him to come down when he was ready. On July 3,
pursuant to arrangement, Farley, accompanied by Sullivan (who later succeeded
Farley as business agent) and Pendergast, a business agent from Mobile, met with
Sturges. Sturges requested proof of the Union's majority, and he was handed
the application cards. Sturges looked through them and said that they were
his men and that he would recognize the Union. July 13 was set as the date of
the next meeting at which the Union intended to present a proposed contract.
On July 9, the Respondent's attorneys wrote to Pendergast asking a postpone-
ment to July 20. On the latter date, the three union representatives met with
Sturges and Snow and presented the proposed contract. Snow read from it aloud
and Sturges interposed objections to portions. Finally Snow said that he would
have to study the contract and that he would prepare a contract which he would
present to the Union. On about July 24, Sullivan picked up the contract which
Snow uad prepared and read it to the members of the Union, who voted against
accepting it.
On July 31, pursuant to arrangement, Sullivan and Farley, accompanied by
W. G. Byers, a Federal Conciliator, went to Snow's office, where Snow, Sturges,
and J. A. Covington, Jr., Snow's law partner, were present, informed Snow
22 Board's counsel contended that one employee , Baker , should not be counted because
he was a mechanic and not within the appropriate unit, and that eight other employees
should be excluded from the July 31 pay roll because they were part-time or temporary
employees. Since the Union had a majority without the exclusion of such employees, it is
unnecessary to pass on the contention.
THE STURGES COMPANY 1563
that the Union had voted against accepting his proposed contract, and returned
it to Snow. Snow then said that before proceeding any further he wanted to
know whether the Union had a majority. Sullivan said it had. Snow said he
wanted to be shown and proposed a card check against the Respondent's pay
roll. Sullivan agreed, and Snow said he would bargain if the Union then had
a majority. Sullivan, Byers, Sturges, and Covington went to the Respondent's-
office. There Byers asked for the pay-roll records and the bookkeeper brought
in records and read. the names to Byers as he took them down. When Byers
had prepared a list of 31 or 32 employees, Sullivan called out the names of the
union members from the application cards and Byers checked them off. Byers
then announced that the Union did not have a majority." There was no
explanation as to why there were only 31 or 32 employees and 15 valid cards
when Byers checked the cards, while at the hearing the Respondent offered
evidence that 33 employees were in the appropriate unit on July 31, 1945, and
17 valid application cards were produced by the Union. There is no evidence
as to which employees, included on the list introduced in evidence at the hearing,
were omitted from Byers' list, nor was there evidence as to which union mem-
bers were not counted when Byers made his check.
Although no further efforts to bargain were made after July 31, 1945, it
is evident that the Respondent intended not to bargain if the card check of
that date showed that the Union did not have a majority and that the Union
so understood. In view of the unfair labor practices heretofore found to have
been committed by the Respondent prior to July 31, the Respondent's demand
for proof of the Union's majority on that day as a condition precedent to further
bargaining assumes character as an attempt to profit by any loss of majority
which the Union may have suffered as a result of such unfair labor practices.
That the Respondent may not rely upon a loss of majority under such circum-
stances is well established 24 It is therefore found that on and after July 31,
1945, the Respondent refused to bargain with the Union as the majority repre-
sentative of the employees in an appropriate unit in violation of Section 8 (5) of
the Act, thereby interfering with, restraining, and coercing his employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent 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 burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent has engaged in unfair labor practices
by refuc'ng on and after July 31, 1945, to bargain with the Union, by seeking to
dissuade his employees from becoming or remaining members of the Union, by
threatening to close the business before he would deal with the Union, by
granting wage increases to forestall organization, by questioning employees
concerning their union membership, by threatening employees with loss of
employment if they joined the Union while promising an increase to those
=Covington testified that Byers said there were 32 employees and only 13 cards. Sulli-
van testified that Byers said there were 31 employees and 15 cards.
24 N. L. R. B. v. Dixie Motor Coach Co., 128 F. (2d) 201 (C. C. A. 5) ; N. L. R. B. v.
P. Lorillard Co., 314 U. S. 512. Cf. Matter of Bausch & Lomb Optical Co., 69 N. L. R. B. 1104.
1564 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD _
that did not join, and by discharging Harbin and Hooks. It will be recom-
mended that the Respondent cease and desist therefrom and take certain
'affirmative action designed to effectuate the policies of the Act.
Upon the entire record, the undersigned infers and finds that the Respondent
by the aforesaid conduct has displayed an attitude of opposition generally to
the purposes of the Act. The unfair labor practices heretofore found are
persuasively related to the other unfair labor practices proscribed by the Act.
The danger of their commission in the future is to be anticipated from the
Respondent's conduct in the past." Unless the order is coextensive with the
threat, the preventive purpose of the Act will be thwarted. In order, therefore,
to make more effective the interdependent guarantees of Section 7 of the Act,
to prevent a recurrence of the unfair labor practices, and thereby minimize
industrial strife which burdens and obstructs commerce, and thus effectuate
the policies of the Act, the undersigned will recommend that the Respondent
cease and desist from in any manner infringing upon the rights guaranteed in
Section 7 of the Act.
Since it has been found that the Respondent on and after July 31, 1945, refused
to bargain collectively with the Union as the exclusive representative of its
employees in an appropriate unit, the undersigned will recommend that the
Respondent, on request, bargain collectively with the Union as the exclusive
representative of his employees in said appropriate unit.
Since the complaint did not allege a 'violation of Section 8 (3) of the Act
and since Board's counsel took the position that, under the amendment adding
to the allegations of violation of Section 8 (1), reinstatement and back pay
were not sought on behalf of the employees whose discharge was therein alleged,
the undersigned will make no recommendation regarding reinstatement or back
pay for Harbin or Hooks.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, Local Union No. 591, A. V. of L., is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All drivers, warehousemen, and helpers of the Respondent, excluding office
and clerical employees, and supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes,in the status of employees, or
effectively to recommend such action, at all times material herein have con-
stituted, and now constitute, a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. International Brotherhood of Teamsters,; Chauffeurs, Warehousemen and
Helpers, Local ??nion No. 591, A. F. of L., was on July 3, 1945, and at all times
material thereafter has been the exclusive representative of all the employees in
the above described appropriate unit for, the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing op and after July 31, 1945, to bargain with the Union, the
Respondent has engaged in, and is engaging in, unfair labor practices within'
the meaning of Section 8 (5) of the. Act.
5. By interfering with, restraining, and coercing his employees in. the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in,
25 N. L. R. B. v. Express Publishing Company, 312 U. S. 426.
THE STURGES COMPANY 1565
and is engaging in, unfair labor practices within the meaning of Section 8 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
7. The Respondent has not interfered with, restrained,, or coerced his em-
ployees in violation of Section 8 (1) of the Act, by discharging Pearlie May Bar-
field, Berry G. Wiggens, Willard May, Randolph B. Blackwell, Charles Bell,
Echo Brown, Ozie Lee Greer, or Robert Lee Wilson.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that R. W. Sturges, Sr., trading under the firm name
and style of The Sturges Company, his agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 591, af-
filiated with the American Federation of Labor, as the exclusive representative
of his employees in the unit herein found to be appropriate ;
(b) Discharging any of his employees because of their union membership or
activities or in any other manner interfering with, restraining, or coercing his
employees in the exercise of the rights to self-organization, to form labor or-
ganizations, to join or assist International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers, Local Union No. 591, affiliated with the
American Federation of Labor, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act.
(a) Upon request bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers, Local No. 591, affiliated with
the American Federation of Labor, as the exclusive representative of all the
Respondent's drivers, warehousemen, and helpers, excluding office and clerical
employees and supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or effectively
to recommend such action, in respect to rates of pay, wages, hours of employment,
and other conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement ;
(b) Post immediately at his warehouses in Meridian, Mississippi, copies of
the notices attached hereto and marked "Appendix A." Copies of said notices,
to be furnished by the Regional Director of the Fifteenth Region (New Orleans,
Louisiana), shall. after being duly signed by the Respondent or his authorized
representative, be posted by the Respondent immediately upon receipt thereof,
and maintained by him for sixty (60) consecutive days thereafter in conspicuous
places, ' achtding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director of the Fifteenth Region (New Orleans,
Louisiana) in writing within ten (10) days from the date of the receipt of this
Intermediate Report what steps the Respondent has taken to comply herewith.
It is further recommended that, unless on or before ten (10) days from the
date of the receipt of this Intermediate Report the Respondent notifies the said
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director in writing that he will comply with the said recommendations,
the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
It is further recommended that, insofar as the complaint, as particularized by
the bill of particulars, alleges the discharge of Pearlie May Barfield, Berry G.
Wiggens, Willard May, Randolph B. Blackwell, Charles Bell, Echo Brown, Ozie
Lee Greer, and Robert Lee Wilson to be a violation of the Act, the complaint be
dismissed.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof ; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203.39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
JAMES R. HEMINGWAY,
Trial Examiner.
Dated November 7, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discharge any of our employees because of their union
membership or activity or in any manner interfere with restrain, or coerce
our employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers, Local Union No. 591, A. F. of L.,
or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the
pu: pose of collective bargaining or other mutual aid or protection. All our
employees are free to become or remain members of this union, or any other
labor organization.
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment or
other conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is:
THE STURGES COMPANY 1567
All drivers, warehousemen, and helpers, excluding office and clerical em-
ployees and supervisory employees with authority to hire, promote, discipline,
or otherwise effect changes in the status of employees, or effectively recom-
mend such action.
Dated--------------------------------
THE STURGES COMPANY,
Employer.
By---------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
755420-48-vol. 74-100