Wilson & Co., Inc.

National Labor Relations Board - Board Decisions

May 28, 1948

77 N.L.R.B. 959 (N.L.R.B. 1948)

In the Matter of WILSON & Co., INC. and INTERNATIONAL BROTHERHOOD
or TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL
No. 667, A. F. L.
Case 1170-15-C-1194.-Decided May P,8,1948
Mr. T. Lowry Whittaleer, for the Board.
Messrs. Johm L. Cockrill, Richard C. Winkler, and M. TV. Meyers,
of Chicago, Ill., for the Respondent.
Mr. James W. Caldwell, of Tupelo, Miss., for the Uuion.
DECISION
AND
ORDER1
On May 23, 1947, Trial Examiner Peter F. Ward issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, in violation of Section 8 (1), (3), and (5) of the Aet,2 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 and the attorney for
the Board each filed exceptions to the Intermediate Report with a
supporting brief, and the Respondent filed a reply brief. The Re-
spondent has requested oral argument. Because the record and the
briefs, m our opinion, adequately present the issues and the positions of
the parties, the request for oral argument is hereby denied.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-man
panel consisting of the undersigned Board Members.'"
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
r The power of the Board to issue a Decision and Ordei in a case such as this. whore the
charging union has not Complied with the filing requirements specified in Section 9 (f), (g),
and (h) of the National Labor Relations Act, as amended, was decided by the Board in
Matte? of Marshall and Bruce Company, 75 N I, H B 90
i The pros stuns of Section 8 (1), (3) and (5) of the National Labor Relations Act,
wwluch the Thal Examiner herein tound were Violated, are contii,nod in Section 8 (a) (1),
S (a) (3), and 8 (a) (5) of the Act, as amended by the Labor Management Relations Act,
1947
*Houston, Muidock, and Gray
77 N. L. It B, No 153 950
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the modifications and additions noted below.
1. We find, as did the Trial Examiner, that the Respondent has re-
fused to bargain with the Union as the representative of its employees
in an appropriate unit.3 The Respondent's letter of June 26, in reply
to the Union's request to bargain, states that "we cannot evaluate
your claim that you represent a majority of our employees." Under
some circumstances this might be viewed as a request for proof of the
Union's majority. In this case, however, the Respondent had ample
reason to know that the Union represented a majority of its employees.
This fact had been communicated to at least two of its four super-
visors; 4 Foreman Springer had reported to Plant Manager Bender
concerning the union meeting on June 23, which was presided over by
Union Organizer Caldwell and attended by practically all the em-
ployees; and Bender admitted that he saw the striking employees
waiting outside the plant as he talked to Caldwell.
Under these circumstances we find, as did the Trial Examiner, that
the Respondent knew the Union represented a majority of its employees
at the time the request to bargain was made.5 In addition, as the
Trial Examiner found, the Respondent had already attempted to
thwart organization of the Union by: (1) a wage increase timed and
designed to coerce employees in their right to self-organization; (2)
Colbert's threat to withhold wages on the day that union fees were to
be paid; and (3) several instances of interrogating employees as to
their union activities .13 Where, as in this case, an employer's request
for proof of a union's majority is made after knowledge of such ma-
jority is already in his possession, and against a background of co-
ercive acts designed to cause disaffection from the union, it cannot be
said that his request for proof was made in good faith. Such request
made in bad faith may not serve as a, valid defense to the Respondent's
refusal to recognize and bargain with the Union.7
2. We find, as did the Trial Examiner, that the strike, which was
an economic strike at its inception, was transformed, into an unfair
' The Respondent , in its brief , contends that the "laboratory " employees should be ex-
cluded as confidential employees . As there is no evidence that these employees have access
to confidential information , we find this contention without merit
4 The Respondent, In its brief , admits that at least the "lower management officials" had
knowledge of the Union ' s majority status prior to the request to bargain.
5 We do not rely, however, upon the strike as having proved the Union ' s majority because
there is no evidence that it was sponsored by the Union
6In addition to the instances of interrogation relied upon by the Tiial Examiner in deter-
mining that the Respondent violated Section 8 ( 1) of the Act , we find that on the day after
the men joined the Union , Cook, a managerial representative, asked employee Culpepper if
they had joined ; and, on that same day, Superintendent Neal asked employee Sullivan if the
men had had a union meeting the night before
7 Matter of Robeson Cutlery Company , Inc, 67 N L R B 481 ; Matter of Pacific Plastic
d Mfg Co , 68 N L R. B. 52
WILSON & CO., INC. 961
labor practice strike by the Respondent's unlawful refusal to bargain.
By engaging in an unfair labor practice, the effect of which was to
prolong the strike, the Respondent forfeited its right to replace per-
manently the striking employees," and we shall therefore order the
reinstatement, upon request, of those employees who were on strike
on June 24, 1946,-and who have not already applied for and accepted
reinstatement.9
The Respondent, in its brief, advances two objections to the rein-
statement of any of the strikers which are not considered in the Inter-
mediate Report. The Respondent contends : (1) that the strikers com-
mitted sabotage while leaving the plant, and thus lost their right to
reinstatement; (2) that the strike was illegal because of failure to give
the 60-day strike notice required by the War Labor Disputes Act. As
to the first contention, although there is evidence that certain switches
were found pulled after the strikers left, which, if not discovered in
time, might have caused damage, there is no evidence to connect this-
incident with any of the strikers. As to the second contention, viola-
tion of the notice requirement of the War Labor Disputes Act does not
deprive strikers of rights under the National Labor Relations Act io
The Respondent also contends that, if any reinstatement order is
issued, it should exclude Hannah, McKinney, and Judd. Hannah and
McKinney did not testify, but there was uncontroverted testimony by
other employees that they were at work on June 23 and participated in
the strike; and this is confirmed by the Respondent's employment
record of that date. We see no reason, therefore, for excluding Han-
nah and McKinney from the reinstatement order. As to Judd, the
Respondent maintains that Superintendent Colbert caught him steal-
ing cream on June 22, the day before the strike. Colbert admitted,
however, that he did not discharge him at that time, and there is there-
fore no evidence that Judd had lost his status as an employee of the
Respondent at the time of the strike. Absent such evidence, we find
no basis upon which Judd should be excluded from the reinstatement
order, either as a matter of law or in the exercise of our discretion in
effectuating the policies of the Act.
THE REMEDY
The Trial Examiner, among other measures designed to effectuate
the policies of the Act, recommended that the Board direct the Re-
eMatter of Vogue-TVrig/t Studios, Inc, 76 N L R. B. 773
' As found in the Intermediate Report , Baugh lost his employment status prior to the
stake, and is therefore not entitled to reinstatement.
1° Matter of Republic Steel Corporation, 62 N. L R. B. 1008; and see N. L. R. B. v.
lialanta oo Stationery Co, 160 F. (2d) 465 (C. C A. 6).
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, upon request, to bargain collectively with the Union as the
exclusive representative of the employees in the appropriate unit.
Since the issuance of the Intermediate Report, however, the Act has
been amended to preclude the Board from certifying as a bargaining
representative any labor organization which, like the Union herein,
has not complied with the provisions of Section 9 (f), (g), and (h) of
the Act, as amended. Accordingly, our Order directing the Re-
spondent to bargain with the Union will be conditioned upon com-
pliance by the Union with the above-cited section of the Act, as
amended, within thirty (30) days from the date of the Order herein."
We find, as did the Trial Examiner , that William Saxon and
Louishes Potter applied for and were denied reinstatement after the
strike became an unfair labor practice strike, and that they had not
been replaced while the strike was still an economic strike. We shall
therefore direct that the Respondent reinstate them, to their former
dr substantitilly equivalent positions,12 and make them whole for any
loss of wages they may have suffered as a result of the discrimination
by payment to each of them of a stun of money equal to the amount
which he normally would have earned as wages from the date of the
Respondent's discrimination against him to the date of the Respond-
ent's offer of reinstatement, less his net earnings 13 during said period.
The Trial Examiner found, and we agree, that Caldwell's request
on June 24, 1946, that the strikers be reinstated, was conditioned upon
the Respondent's reinstatement of Baugh. The Respondent's denial
of reinstatcment was therefore not in violation of Section 8 (3) of the
Act." Accordingly, we shall require that the employees other than
Saxon and Potter renew their request for reinstatement.
Although the Trial Examiner found that the Respondent violated
Section 8 (1) of the Act by interrogation of employees and other
acts of interference, restraint, or coercion, his recommended order
did not contain any provision directed at such violations. We are
convinced, upon the entire record, that the danger of the commission
11 Mattel of lta?shall and Bi ice Company , 75 N L R B 90
I` In accordance with the Board 's consistent mtei pretation of the term , the expression
"fornmer or substantially equivalent position " is intended to mean " former position wshen-
ever possible , but if such position is no longer in existence , then to a substantially equiva-
lent position " See Matter of The Chase National Bank of The City/ of New York, San Juan.
Puerto Rico , Branch, 65 N 1, It B 827, 829
'i By "net earnings" is meant earnings less expenses such as for transportation, ioou,
and board , incurred by an emplovee in connection with obtaining work and vwonking else-
wheie, which would not have been incurred but for his unlawful discrimination and the
consequent necessity of his seeking employment elsewhere Matter of Crossett Lumber
Company, S N L. R B 440 Monies received for work performed upon Federal , State,
county, municipal , or other work -relief projects shall be considered as eannmgs Republ.c
Steel Corporation-v N L R B , 311 U S 7
14 Matter of V-0 Milling Company, 43 N L B B 348
WILSON & CO., INC. 963
in the future of such acts of interference and of other unfair labor
practices is to be anticipated from the Respondent's conduct in the
past .1° We shall therefore order that the Respondent cease and desist
from such conduct, and from in any other manner infringing upon
the rights guaranteed to its 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, as amended, the National Labor
Relations Board hereby orders that the Respondent, Wilson & Co.,
Inc., Okolona, Mississippi, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local
No. 667, A. F. L., if and when said labor organization shall have
complied, within thirty (30) days from the date of this Order, with
Section 9 (f), (g), and (h) of the Act, as the exclusive representative
of all the production and maintenance employees of the Respondent
at its Okolona plant, excluding office and clerical employees, and all
,supervisors as defined in the amended Act, with respect to grievances,
labor disputes, rates of pay, wages, hours of employment, or other
terms or conditions of employment;
(b) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers, Local No. 667,
A. F. L., or in any other labor organization of its employees, by dis-
criminatorily refusing reinstatement to any of its striking employees,
or by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of their employment;
(c) Interrogating its employees concerning their union affiliations,
activities, or sympathies, or in any other manner interfering with,
restraining, or coercing its employees in the exercise of the rights to
self-organization , to form labor organizations , to join or assist Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, Local No. 667, A. F. L., or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
-bargaining or other mutual aid or protection, as guaranteed in Section
7 of the Act.
2. Take the following affirmative action, which the Board finds w ill
effectuate the policies of the Act:
11 See V 7. P, B v E'rpress Pubhsinng Company, 312 U S 426.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, and upon compliance by the Union with the filing
requirements of the Act , as amended , in the manner set forth above,
bargain collectively with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers, Local No. 667, A. F. L., as
the exclusive representative of all its employees in the aforesaid appro-
priate unit, with respect to grievances, labor disputes, rates of pay,
wages, hours of employment, or other terms or conditions of employ-
ment;
(b) Offer to William Saxon and Louishes Potter immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and
make each of them whole for any loss of pay that he may have suffered
as a result of the discrimination against him by payment to each of
them of a sum of money equal to that which he normally would have
earned as wages during the period from the date of the Respondent's
discrimination against him to the date of the Respondent's offer of
reinstatement , less his net earnings during said period;
(c) Upon application, offer to those employees who went on strike
on June 23 , 1946, and continued on strike from and after June 24, 1946,
and who have not previously applied for reinstatement, immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, dis-
missing, if necessary , any persons hired on or after June 24 , and not in
the Respondent's employ on that date. If, thereupon, despite such
reduction in,force, there is not sufficient employment available for the
employees to be offered reinstatement , all available positions will be
distributed among such employees without discrimination against any
employee because of his union affiliation or activities , following a sys-
tem of seniority or other non-discriminatory practice to such an extent
as has heretofore been applied in the conduct of the Respondent's busi-
ness. Those employees, if any, remaining after such distribution, for
whom no employment is immediately available, shall be placed upon a
preferential list and offered reemployment to their former or substan-
tially equivalent positions of work , in the order determined among
them by such system of seniority or other non -discriminatory practice
as the Respondent has heretofore followed ;
(d) Make whole the striking employees, who have not previously
applied for reinstatement , for any loss of pay they may suffer by
reason of the Respondent 's refusal , if any, to reinstate them, by pay-
ment to each of them of a sum of money equal to the amount which he
normally would have earned as wages during the period from 5 days
after the date of his application for reinstatement , less his net earnings
during said period;
WILSON & CO., INC. 965
(e) Post at its plant at Okolona, Mississippi, copies of the notice
attached hereto and marked "Appendix A." 16 Copies of said notice,
to be furnished by the Regional Director for the Fifteenth Region,
after being signed by the Respondent's representative, shall be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for thirty (30) consecutive days thereafter, and also for an
additional thirty (30) consecutive days in the event of compliance by
the Union with the filing requirements of the Act, as amended, in
conspicuous places, including 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;
(f) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days from the date of this Order, and again
within ten (10) days from the future date, if any, on which the Re-
spondent is officially notified that the Union has met the condition
hereinabove set forth, what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges : (1) that the Respondent discriminated
in regard to the hire and tenure of employment of Clifford L. Baugh;
(2) that the Respondent kept union meetings under surveillance; (3)
that the Respondent threatened employees with firearms in order to
secure information pertaining to the Union; and (4) that the Re-
spondent discriminated in regard to the hire and tenure of employ-
ment of those employees who went on strike on June 23, 1946, as a
result of Baugh's termination of employment, by ordering them to
check out and leave the Respondent's plant on that same day.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
affiliations, activities, or sympathies, or in any other manner inter-
fere 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, CHAUF-
11 In the event that this Order is enforced by a decree of a Circuit Court of Appeals, there
shall be inserted before the words "A DECISION AND ORDER" the words : "DECREE OF
THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING."
788886-49-vol. 77-62
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FEURS, WAREIIOUSEDIEN AND IIELPERS, LOCAL No. 667, A. F. L., or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL OFFER to William W. Saxon and Louishes Potter imme-
diate and full reinstatement to their former or substantially
equivalent positions, without prejudice to any seniority or other
rights and privileges previously enjoyed, and make them whole for
any loss of pay suffered as a result of the discrimination against
them.
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 grievances,
labor disputes, rates of pay, wages, hours of employment, or other
terms or conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement, pro-
vided said labor organization complies within thirty (30) days
from the date of the aforesaid order of the Board With Section
9 (f), (g), and (h) of the National Labor Relations Act, as
amended. The bargaining unit is :
All production and maintenance employees engaged at our Oko-
lona, Mississippi, plant, excluding office and clerical employees,
and supervisors as defined in the Act.
WE WILL, upon application, offer reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges, to the employees who
went on strike on June 23, 1946, and continued on strike from and
after June 24, 1946, and who have not previously applied for re-
instatement. We will dismiss, if necessary, any persons hired
on or after June 24, and not in our employ on that date. If there-
upon, despite such reduction in force, there is not sufficient em-
ployment available for the employees to be offered reinstatement,
all available positions Will be distributed among such employees
Without discrimination against any employee because of his union
affiliation or activities, following such a system of seniority or
other non-discriminatory practice to such an extent as has here-
tofore been applied in the conduct of our business. Those em-
ployees, if any, remaining after such distribution, for whom no
employment is immediately available, Will be placed upon a pref-
erential list and offered reemployment to their former or sub-
stantially equivalent positions as work becomes available and
before other persons are hired for such work, in the order de-
WILSON & CO., INC. 967
termined among them by such system of seniority or other non-
discriminatory practice as we have heretofore followed.
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 the 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.
WILSON &C CO., INC.,
Employer.
Dated------------------ By -------------------------
(Repiesentative ) ( Title)
This notice must remain posted for thirty (30) clays from the date
hereof, and for an additional thirty (30) days if the above-named
Union has by that time complied with Section 9 (f), (g), and (h)
of the National Labor Relations Act, as amended, and must not be
altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mi 7'. Lowry Whittah;ei, for the Board.
Messrs. John L GoeArill, Richard C Winkler, and M IV. Meyers, of Chicago,
111., for the Respondent.
llr. James W. Caldwell, of Tupelo, Miss, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed January 6, 1947, by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local No. 667,
affiliated with the American Federation of Labor, herein called the Union, the
National Labor Relations Board, herein called the Board, by its Regional Di-
iector for the Fifteenth Region (Nevi 0,-leans, Louisiana), issued its complaint
dated January 8, 1947, against Wilson & Co, Inc., herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the ineaning of Section S (1), (3) and (5)
and Section 2 (6) and (7) of the National Labor Ralations Act, 49 Stat 449,
herein called the Act Copies of the complaint together with notice of hearing
thereon were duly served upon the Respondent and the Union
With respect to the unfair labor practices, the ccmplanit, as amended at the
hearing, alleged, in substance, that the Respondent (1) by its officers, agents and
representatii-cs, namely, B D Bender. T. S Colbert, 1-larold Neal, W E Springer
and Frank Cook committed, authorized, instigated and acquiesced in certain
acts of interference, restraint, and coercion;' (2) did on o_ about June 17, 1946,
' Such acts stated generally that the Respondent interrogated the employees concennng
their Union desires, sympathies, membership dues, and Union meetings. kept Union meet-
ings under surveillance , threatened and wan ned the employees that because of a union
meeting they would receive their checks late in order to prevent paying Union dues,
threatened and warned that active. union adheients would lose their fobs. put into ef-
fect a ietroactive wage mciease and payment for oveitinne on the day the Union or-
w zrd denied and ievoked certain euiploee privileges and custoins because of the advent
if the Union , aed threatening employees with fireai ms to secure information pertaining
to the Union
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demote and assign Clifford L. Baugh to more arduous and less desirable work
because of his union and concerted activities; (3) did on or about June 3. 1946,
discharge certain of its employees because of their union and concerted activ-
ities; z (4) by such acts, caused and provoked an unfair labor practice strike on
or about June 23, 1946; (5) on or about June 24, 1946, refused and failed to rein-
state all of said named employees with the exception of William W. Saxon and
on or about June 28, refused and failed to reinstate said Saxon; (6) on or about
June 23 and June 24, 1946, and at all times thereafter, dui fail and refuse to
bargain collectively with the Union although the Union was the duly designated
representative of its employees within a stated appropriate unit, and (7) by the
acts described above, the Respondent interfered with, restrained and coerced its
employees in the rights guaranteed in Section 7 of the Act
On or about January 22, 1947, Respondent filed its answer wherein it admitted
certain allegations of the complaint but denied that it had engaged in the alleged
unfair labor practices.
Pursuant to due notice, a hearing was held at Tupelo, Mississippi, on various
dates between February 11 and 22, 1947, before Peter F. Ward, the Trial Exam-
iner duly designated by the Chief Trial Examiner The Board and the Respond-
ent were represented by counsel and a union official appeared for the Union All
parties participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties At the close of the Board's case-in-chief. Respondent
moved for a dismissal of the complaint. The motion was denied by the under-
signed. At the close of the hearing, Respondent renewed its motion to dismiss
the complaint and ruling thereon was reserved by the undersigned, and for reasons
set forth below, is now denied. Also, at the close of the hearing, counsel for
the Board moved, without objection, that the complaint be amended in formal
matters to conform to the proof. The motion was granted
The parties were afforded an opportunity to argue orally before, and file pro-
posed findings and conclusions and briefs with, the undersigned Oral argument
was waived by the parties and no briefs or proposed findings and conclusions have
been filed with the undersigned
From the entire record in the case, and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation with its principal office and place of
business located at Chicago, Illinois, and is, and has been, duly qualified and
licensed to do business in the State of Mississippi, in which it owns and operates
a plant at Okolona, Mississippi (its only plant involved in this proceeding), where
it is engaged in the production, sale and distribution of cheese products. During
the calendar year 1946, which is representative of all times material herein, the
Respondent purchased raw materials consisting mainly of raw milk, valued in
excess of $250,000, of which value approximately 5 percent was shipped to its
2 Allegedly discharged employees are as follows • Clifford L Baugh, Paris Bean, H. Royce
Culpepper, 0 A. Hannah, Albert Herron, Felix Jones, Murry Jumper, Jr., Luther Excel]
McKinney, William L. Morrow, Jake O'Barr, M T. Hatten, Louishes Potter, Odel Sample,
L. E Sullivan , Ell! Judd and William W. Saxon.
WILSON & CO., INC. 969
Okoloua plant from points outside the State of Mississippi. During the same
period, the Respondent manufactured finished cheese products valued in excess
of $250,000, of which approximately 95 percent was shipped from said Okolona
plant to points outside the State of Mississippi. Respondent admits that it is
engaged in commerce as defined by the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers, Local No. 667, 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, g estratnt, and coercion
1. Sequence of events
Prior to on or about June 1, 194G, there had been no union activity at the
Respondent's Okolona plant. A union did exist at the Carnation Plant located
in Okolona. On or about June 12, one of the Carnation Plant union members
got in touch with employee Culpepper and discussed union organization at the
Respondent's plant. The Carnation Plant employee delivered a number of union
applications to Culpepper at the Respondent's plant in the presence of Harold
Neal, an assistant superintendent. Neal was requested by Culpepper to say
nothing about the matter.
On or about June 12, and before Bean joined the Union, Neal asked him if
he was going to join the Union. Bean replied in the negative.4
Neal also talked to Herron before the latter joined the Union, and addressing
him by his nickname of "Steamboat" asked hiin if he were going to join the
Union. When Herron replied, "I don't know exactly, Mr. Neal," the latter said,
"Aw Steamboat."
Neal also asked Hatten if he was going to join the Union. When Flatten
replied, "I don't know sir," Neal suggested that Hatten wait a while before he
joined. On June 22, Neal asked Hatten if lie paid his "Union dues last night."
When Hatten answered "Yes," Neal merely laughed.'
I Unless otheiwise specified , all events herein occurred in 1946.
4 This finding is based on Bean's credited testimony . Neal was asked if he ever asked
Bean about the Union and replied , "I don't think so." Neal's credibility is further
discussed below
i This finding is based on Herron's credible testimony Neal ' s categorical denial is not
credited See footnote next below
U These findings are based on Hatten 's credited testimony Neal's categorical denial is
not credited The credible evidence in the record indicates that Neal discussed unions
in general and the Union herein with white employees Baugh, O 'Barr, Sullivan, Cul-
pepper, Saxon and Fleming In his discussion with Baugh , which antedates the advent
of the Union by some 2 or 3 weeks, Neal said,
What this place really needs is a union to get the wages up, and get all these colored
boys out and get a bunch of white boys in here so that the thing could be carried
on like it should be and get the wages up.
In his discussion with the white employees , after the advent of the Union , Neal made
no effort to discourage them from joining other than to state that he did not believe
in the Union . But he did seek to discourage the Negro employees from joining the
Union and thereby, to some extent at least, sought to promote the ideas expressed to
Baugh as above set forth.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about the evening of June 13,' a large majority of the plant einployee;S
attended a Union meeting held outside and adjacent to the Cal nation Plant.
All Respondent-employees present signed Union application cards After the
Carnation Plant meeting, Culpepper went to the homes of Saxon, Ray Fleming,
and Sample and procured their signatures to application cards On the day
following the meeting, Baugh procured Jake O'Barr's signature to an application
card.
On the day following the initial union meeting, Culpepper discussed this meet-
ing with Neal and told him that all of the employees who event to the meeting
!oined the Union ° On the afternoon of that same day, Flank Cook, a managerial
employee, talked with Culpepper concerning the Union meeting and asked if
the employees had joined Culpepper told Cook that they had.°
A Union meeting was schedule(] to be held on the evening of Fi iday, June 21,
at O'Barr's house, for the purpose of having the employees pay initiation fees.
Friday was the Respondent's normal pay day.'0 During the afternoon of such
Friday, Thomas S Colbert, who became plant superintendent on or about June
1, told a,number of the Negro employees that their checks would not be paid
that day and thus they would not have money with which to pay their initiation
fees." The checks were however delivered before the employees left the plant
on that day.
At the meeting which was conducted by Earl Smith, it general organizer for
the A F of L, and a former Carnation Plant employee, substitute(] for James W.
Caldwell, who had charge of organizing the Respondent's plant, Smith collected
dues from 171' employees On June 24, 1946, Caldwell collected vitiation fees
from Muri y Jumper, Jr
The record discloses that on or about March 1, 1946, the Respondent's Chicago
office approved a wage increase, with overtime payments after 48 hours, applicable
to its Okolona and certain other plants; that such increase in the amount of 10
cents per hour wwa to be put into effect in two parts, with the first 5-cent increase
r ffective on or about March 1, and the second 5-cent increase to become effective
after on or about GO days; and that the second raise put into effect at the Okolon.t
'Alost of the wituesses attending this meeting fixed the date as either June 13 or
June 14 , AI E Springer, it foreman who joined the Union, fixed the date as of June 12
Front all the evidence the undersigned is of the opinion that the meeting was held on
iithei June 13 or Tune 14
a Noal denied that Culpepper had told him that the emploiees had joined the Union
and testified that Culpepper said they were "going to try to form a union " and that
he had replied, "Well , it is all light with me" Neal admitted that he knew of Cul-
pepper receiving union application raids from a Carnation Plant truck driver The
nuclei signed is convinced that Culpeppei discussed the union meeting with him on the
clay following the meeting, and credits Culpepper's version of the conversation
Cook did not deny Culpepper's testimony in tins regard He testified)
Q What was the conversation)
A I don't remember how the conversation Caine about, but I do remember that he
said they had all joined the Union . and also asked, if Air Bender [manager] knew
about it I told him that I had heard him [Bender] mention it to tie and that
lie did know about it
Further along in his testimony, Cook aniended his ansiier to say,-"Mr Bender had
mentioned that lie had heard rumors of the Union."
° Respondent's workweek ends on Thursday
This finding is based on the credited testimony of O'Balr, Jones, Hatten. Herron,
audl Morrow Colbert's categorical denial is not credited by the undersigned . Colbett's
credibility is discussed further below
'3 Fleming, McKinney. Culpepper, Baugh, Bean, Hannah, Potter, 'Morrow. Herron , Hatten,
Jones, Sample, Saxon, Sullivan, O'Barr, Judd, and Foreman Springer
WILSON & CO., INC. 971
plant was announced on June 21, the day on which the Union member employees
were scheduled to meet and pay their Union initiation fees The raise was
made retroactively effective as of June 14, the day on or about which the Union
held its organizational meeting
Respondent in effect contends that it put the second 5-cent raise into effect
without knowledge of any Union activities on the part of its employees and after
2 or 3 weeks notice had been given The record does not support either conten-
tion. With reference to an announcement of the second 5 cent increase, Bender
testified, that 2 or 3 weeks betore the raise came thi ough, "I think I told Mr
Neal that they were to get 5 cent an hour increase, and I believe he told the men"
and that while the Respondent had a bulletin board in the plant no such
announcement was posted.
Bender's indefinite testimony above was not corroborated by that of Neal or
any other witness The undersigned is convinced that if the Respondent had,
in fact, notified any of its rank-and-file employees of the proposed increase prior
to June 21, it would have been able to and would have produced positive testimony
to such effect.
The increase, retroactive to June 14, was put into effect on June 21, the clay
set for the employees to pay their union initiation fees. That the Respondent
knew of the Union's plans for a meeting on that date for such purpose is dis-
closed by Colbert's statements, found above, that lie proposed to withhold checks
of the Negro employees on June 21 so that they would not ham e funds with which
to pay initiation fees" From the foregoing it is clear that although the Respond-
ent's Okolona plant officials had known for more than 60 clays that the second
5-cent raise was to be granted, they ntithheld notice of it until June 21, the day
the employees had set for payment of initiation fees, for the purpose, as the
undersigned is convinced and finds, of inducing the employees to abandon self-
organization and refuse to pay their initiation fees in the Union
The Board has held "campaigning with wage increases" is a violation of Section
8 (1) of. the Act See Hatter of Hudson Hosiery Cornpa1rJ, 72 N L R B.
1434, and see cases cited in footnote No. 5, of this citation.
While in the instant case the respondent was entitled to grant and an nouuce
it wage increase and overtime pay plan during the Union's organizational cam-
paign, it was not entitled to do so at the particular time and in the particular
manner in which it did, since its action was manifestly tinted and designed to
induce its employees to refuse to pay their initiation fees in the Union and thus
i eject the latter as their representative for collective bargaining.
2 Conclusions
Upon the basis of the foregoing and upon the entire record rn the case, the
undersigned concludes and finds that, by Neal' s action in questioning Bean, Her-
ron, and Hatten concerning their union activities. by Colbert' s statements to cer-
tain Negro employees that their pay checks would be held to the end that they
would have no funds with winch to pay their union initiation fees . and by the
announcement of a retroactive pay increase on Julie 21, all as found above, the
]i During the afternoon of June 21 , Culpepper asked Foreman Springer , who had joined
the Union, if he was gong to the meeting that night and pay his "union dues " Springer
stated that he saw no point in going to the meeting since "All of the boys wieie getting a
mice, and the colored boys would not show up to pay their dues and they would not have a
niajority to pay them " The colored boys did show up at the meeting and paid their initia-
tion fees , after winch Culpepper , O'Barr , and Earl Smith , the union official , went to
Sin finger's home and collected his initiation fee.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, and thereby violated Section
8 (1) thereof.
B. The alleged discrimination against Baugh
On or about May 16, Baugh asked Bender if there were any vacancies in the
plant. Bender replied that he needed a man to run the pasteurizer. When
Baugh informed him that he had no experience in operating a pasteurizer, Bender
stated that he would be taught to operate it and hired Baugh for the job.
Superintendent Neal " was Baugh's immediate supervisor and had charge of
his training until sometime in the forepart of June, when Colbert became
superintendent.
Baugh was among those who joined the Union at the Carnation Plant meeting
on or about June 13. He received some application cards from Culpepper and
secured the signature of Morton E. Springer, a mechanical foreman for the
Respondent, James E Springer, a son of the foreman, and Jake O'Barr.
On or about Friday, June 14, Baugh permitted a vat of milk to overflow with
the result that there was a loss of some milk. On Sunday, June 16, while Baugh
was taking his day off 's the Respondent placed Raymond Fleming, a brother-
in-law of Neal, in charge of the pasteurizer.
When Baugh reported at the plant on Monday, June 17, Neal told him to report
to Foreman Springer for work, which he did. During the forenoon of that
Monday, Baugh was assigned to work in the paraffin room. In the afternoon
Baugh performed such tasks as Springer assigned him to Baugh told Springer
that he felt like he had been "kicked" around, to which Springer replied :
We will get along alright, . . . when they get ready to get rid of someone
they generally shifted them out here on me to get rid of them . . . I will
take care of you'0
On June 21, Baugh along with other employees attended the Union meeting at
O'Barr's home and paid his union initiation fees.
On Sunday, Baugh, as had been his custom during the preceding week, weighed
and boxed cheese during the forenoon. In the afternoon he, along with James
Springer, was assigned to do some outside painting. Sometime between 2 and
3 o'clock, the two painters took "time out" to smoke and went into the work
shop where they found Springer, Sr., and Culpepper discussing and figuring the
14 Neal remained superintendent until on or about June 1, when Thomas S Colbert, a
pre-war employee , became superintendent . While Bender testified that Colbert became
superintendent about May 1, the record indicates that he was in error and that Colbert
began to act as superintendent on either May 31 or June 1.
15 The plant operated 7 days a week . The employees took 1 day off each week. The
"of day" was staggered so as to have a normal number of employees on duty each day.
16 This finding is based on Baugh 's credited testimony . Springer did not specifically deny
making the above statement . He testified :
Q. Now did you have a conversation with him that day?
A. Yes, sir.
Q What was that conversation'+
A Baugh came up to me and told me he felt like lie had been kicked around. Some-
thing like that. And I told him that if he would keep busy we would get along fine.
Of course , I didn't expect him to sit around on the job . To keep busy.
On cross-examination Springer testified :
Well , I believe I told him that they had his number or something like that ; he was
likely to get fired if he didn ' t work better.
WILSON & CO., INC. 973
cost of a vat of milk and the amount of, cheese it would produce. Baugh and
James Springer joined in the discussion.
While these four men were thus engaged, Colbert entered the shop and after
learning the nature of the discussion, said :
If you fellows are figuring up the profits of this stuff-I will tell you where
the expense runs up.
Colbert then referred to Baugh and James Springer in foul and obscene lan-
guage and called attention to the fact that they were sitting down, doing nothing.
Baugh then said, "Well, I don't see that you are hurting yourself around here."
Colbert replied :
Well, I am not supposed to work. I tell you what to do ; I give orders.
Baugh then replied :
You don't tell me what to do. I am working for Mr. Springer. He tells
me what to do.
Colbert then stated that he could tell Baugh what to do and ordered him
to go to work. Baugh replied, "Mr. Springer tells me when to go to work."
Thereupon Colbert told Baugh "to get up and go check out." Baugh again
referred to Springer and stated, "Mr. Springer will tell me when to check out" ;
and made no move toward returning to work."
After the above exchange between him and Baugh, Colbert left the work shop.
Baugh and James Springer then returned to their painting job. Shortly there-
after, Colbel't, accompanied by Bender, returned to the plant and accosted Baugh
at his painting job. Bender asked Baugh if Colbert told him to check out.
Baugh said, "Yes, he did," and further said that he had also told Colbert that
Springer was his boss and would tell him when to check out. Baugh added,
"but if you want me to check out, I'll go check out." To this Bender replied,
"Colbert told you and I'm telling you, go check out." Baugh then stated that he
was being treated "dirty" and continued :
First, I was pulled off the pasteurizer and put on every damn odd job you've
got around here, first sweeper work and just the job of a flunkey.
To this Bender replied, "Well, you couldn't run the pasteurizer. You spilt some
milk." Baugh then asked, "When do I get my check?" Bender replied, "Come
back Saturday and get your check." 18
Counsel for the Board contends, in substance, that Baugh was demoted on
June 17, and discharged on June 23, because of his union membership and
activities.
17 The record indicates that Colbert was employed for a time during May running certain
laboratory tests before lie was installed as superintendent It was admitted in the record
that no formal notice of Colbert's new position was given to the employees Colbert testi-
fied that during the first week in June, Baugh asked him what his job was and that he re-
plied that he was superintendent While Baugh denied asking Colbert what his position
was, the record clearly indicates that Baugh knew Colbert was in charge of the plant on
June 23 Baugh testified
Q. Do you know what he [Colbert] was doing that Sunday?
A No, sir I don't Mr. Neal was off that Sunday, and Mr Colbert was there in
his place, I suppose.
18 Colbert and Bender testified that Baugh was told to "check out" merely in order to dis-
cipline hint for his insubordination on June 23, for refusing to return to work when ordered
to do so by Colbert. According to Colbert and Bender, it was expected that he would lose
only the balance of the Sunday work-day and would return to work on the following day.
Bender testified , however, that when Baugh asked for his check , Bender concluded that
Baugh had quit and thereafter did not expect him to return the next day.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent contends, in effect, (1) that Baugh's transfer from the pas-
teurizer to other work was not a demotion in fact and was occasioned by Baugh's
inefficient operation of the pasteurizer; and (2) that Baugh was not discharged
but was told to check out because of his insubordination, after which Baugh
voluntarily quit.19
As to Respondent's first contention, the record indicates that Neal was dis-
pleased when Bender hired Baugh as a pasteurizer At or about the time Baugh
was hired, Neal told Culpepper that Bender hired Baugh and he could train Min;
that he (Neal) was going to have nothing to do with Baugh "whatsoever" about
,training; that he was going to show him how to operate it, and that was all he
was going to show him. Neal also indicated to Saxon that he. was displeased
with Baugh's employment and "wasn't going to try to train him" ; that-he was
going to get rid of him " Neal added that he was just going to push Baugh "into
harder jobs and see if he could fire himself."" In connection with Baugh's
training, Neal testified in part:
Q And did you tell him and show him what to do?
A. I trained him; I did.
Q. Did you have any difficulty with Mr Baugh in connection with his work
as a pasteurizer
A. No, sir, I didn't take a hand with that
Q. Well, who did take care of that part of it?
A. Well. I carried on with him a few weeks and turned it over to Mr.
Colbert.
Q Is that when he was superintendent?
A. Yes, sir.
Q. Well, did you observe Mr Baugh in the performance of his duties as
a pasteurizer there between the middle of May when lie was hired, and
June, around the middle of June's
A No, sir
Q Well, did you work near him or with him since?
A Yes, sir
Q Did it ever come to your attention that Mr Baugh was not making
acid test?
A Well, I didn't watch him on that, I carried him and learned him how
to run a test on the vat, and in other words, I told him to watch me That's
the way I had trained the man
As above related, Neal's brother-in-law, Raymond 11leming, was placed in charge
of the pasteurizer on June 16.
Neal testified to no dereliction on Baugh's part, while the latter was under
his supervision He testified that while he had knowledge of the spilt milk,
he had no knowledge that Baugh was not making the acid tests, or that Baugh
" Baugh received his check on June 29, together with a slip giving the reason for termi-
nation of his lob as "voluntarily quit "
20 These findings are based on the credited testimony of Culpepper and Saxon While Saxon
was not certain as to whether Neal made the statements before or after the employees joined
the Union, the recoil indicates that Neal's responsibility for Baugh's training ceased on or
about June 1, when Colbert became superintendent and Neal was demoted to assistant super-
intendent Thus there would be ro occasion for Neal to train Baugh after June 1 Since
Neal'A statements implied future action and responsibility on his part such statements must
have been made prior to June 1 or some 2 weeks before Baugh joined the Union This con-
clusion is fuithei confirmed by Neal's testimony quoted above.
WILSON & CO., INC, 975
had let unpasteurized milk get into the vat, but stated that Calbeit had in-
formed him of the latter two alleged incidents
Colbert, on the other hand, testified to numerous alleged derelictions on Baugh's
part. He testified that Baugh never ran an acid test or put it down right if
he did run it; that he was negligent in adding coloring, rennet, and starter-
milk, that Baugh, without authority, utilized the services of three-fourths of
the Negro employees to add rennet and coloring used in the cheese-making
process and to remove paddles from the vats ; that Baugh spent much unneces-
sary time in the laboratory, loafing; and finally ran over a vat of milk with
the result that, after a conference with Bender, Neal and himself, it was decided
to transfer Baugh to work under the supervision of Foreman Springer Colbert
further testified that lie had not called Baugh's attention to his many alleged
derelictions, other than the spilt milk episode nor had he warned hun in con-
nection therewith 21
As to Baugh's union activities, the record discloses that he ,joined the Union
at the Carnation Plant meeting, secured the signature of the two Springers and
Jake O'Barr to Union application cards, prior to his alleged demotion. Counsel
for the Board contends, in effect, that Baugh was, to the knowledge of the
Respondent's officials, the ringleader in organizing the Union, and that the
Respondent first demoted and then discharged him because of his Union activities
Jake O'Barr testified that lie did not attend the Carnation Plant meeting but
signed a union card at Baugh's request at the Respondent's plant the following
morning; that immediately thereafter, Neal called him outside the plant and
asked him how lie felt toward the Union , that lie informed Neal that he had
nothing against the Union, had belonged to one when he worked "at the rail-
road"; and that Neal then stated that he wanted no union in the plant as lie
"couldn't fire the niggers" when he got ready.
O'Barr further testified that during this conversation, Neal asked hint if
Baugh had said anything to him about the Union or had given him a slip to
sign, and that he had replied in the negative. O'B-ur testified
Q. Was that the truth?
A Yes, sir,-no, sir He had given me the slip and I had signed a slip
that m01 11inq with Baugh
Q. Why didn't you tell Mr Neal, Mr Baugh had given you a slip.
A I didn't want them, to do any more to hint titan tlici had already done"
Q Did Mr Neal say anything else about Baugh?
A Ile said he ought to fire hi;n for getting up that union. [Emphasis
added ]
21 Colbert (lid not impress the undersigned as a credible witness While the undersigned
believes that Baugh may have been guilty of sonic of the lapses nuth which he was accused.
lie is convinced that Colbert greatly exaggerated both the number of the misdeeds and
the times they allegedly occurred It would seem doubtful that Baugh had cried so many
times in the approximately 12 days lie was under Colbert's supervision or that Colbeit
would have spent the time necessary to note so many alleged errors Moreover, it would
he unreasonable to expect an inexperienced employee to acquire the technical knowledge
covei.ng the manufacture of cheese, that Colbert sought to require of Baugh in just a few
weeps Finally it is incredible that Colbert would have ueprnnanded or warned Iiaugli
on but one occasion, had the lattei been derelict to the extent testified to by Colbert
By this answer O'Barr was undoubtedly referring to Baugh's transfer off the pas-
teurizer The iecord clearly discloses that such tiansfer did not occur until at least a
days after O'Barr signed the union slip at Baugh's request, in view of which the under-
signed does not credit O'Barr's testimony concerning the alleged eonveis.ition between
him and Neal on the day 0 Barr signed the union card
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The credible evidence in the record indicates that Culpepper and O'Barr were
much more active in organizing the Union than was Baugh ; and the record further
discloses that Neal knew that Culpepper brought the application- for-membership
cards to the plant. The June 21 union meeting was held at O'Barr 's home at
which time the employees.paid their initiation fees among whom were Fleming,
Neal's brother-in-law, who lived in the same house as did Neal Both Neal and
Fleming testified that they discussed the advisability of Fleming joining the
Union. Thus it is most likely that Neal learned of the Union meeting at O'Barr's
home. From the foregoing, it would appear that if the Respondent wished bti
discharge the "ringleader" of the union movement, it would have selected either
Culpepper or O'Barr before selecting Baugh for discharge.
The record as a whole indicates that Neal's desire for removing Baugh from
the pasteurizer may have been for the purpose of placing his brother-in-law,
Fleming, in the position. Prior to his transfer Baugh operated the pasteurizer
during forenoons only, and spent the afternoons at miscellaneous tasks. After
his transfer he spent all of his time at such miscellaneous tasks He received
the same rate of pay after the transfer as he did before Moreover, all employees
were required to spend part of their time at odd or irregular jobs as the occasion
arose. In the last analysis it is more reasonable to infer that Baugh was trau-
ferred either to place Fleming on the pasteurizer or because of his inefficiency,
than it is to infer that such transfer was occasioned by Baugh's union activities
The record will not support a finding that Baugh was tiansferred front the
pasteurizer because of union activities.
This contention has merit.
As to Respondent's second contention, based upon the undisputed testimony, it
is clear that Baugh was guilty of insubordination, first, by refusing to return to
his work when ordered to do so by Colbert and second, by refusing to "check out"
when told to do so.
This contention has merit
Upon the foregoing and upon the entire record, the undersigned concludes
and finds that, by, on June 17, transferring Baugh from pasteurizing to other
types of work and by, on June 23, terminating his employment, the Respondent
did not discriminate in regard to his hire and tenure of employment as alleged
in the complaint. It is recommended below that insofar as the complaint so
alleges, it be dismissed.
C. The strike ; the alleged discriminatory discharges
Immediately following Bender's orders for Baugh to "go check out," Baugh
met Culpepper and Hannah and informed them that he had been "fired." Cul-
pepper and other employees then went through the plant and passed out word of
Baugh's alleged discharge . Some of the Negro employees were told that Baugh
was fired, "and we are going out, we are all in the Union." 2i
2a This finding is based upon the credited and uncontradicted testimony of William M.
Morrow , a part-time preacher , who had been employed by the Respondent during the sum-
mer months over a period of 3 years Morrow was the only witness who expressly stated
that attention was called to the fact that the employees were "going out" (because) "We
are all in the Union " In this connection employee Sullivan testified ". , I didn't intend
to go back to work until I found out what Baugh was fired for " Most of the other wit-
nesses testifying in this connection merely stated that they heard "Baugh has been fired"
and that they then assembled in the paraffin room.
WILSON & CO., INC. 977
The employees were told to assemble in the paraffin room. Among the first to
arrive was O'Barr'24 who said to Colbert, there present, that he had heard that
Colbert had fired Baugh. Colbert answered "Yeah," and when O'Barr asked,
"Why did you do that?", Colbert replied, "Well, he wasn't worth a damn." When
Culpepper joined the group, he told Colbert that the group "did not think he had
(lone the boy right," to which Colbert replied,
Well, if you'all want somebody . . . 22 all the time and do nothing and
draw pay and you'all do the work, all right then.
Culpepper then stated that the employees did not see it that way and that they
wanted "to see Bender."
Immediately thereafter, Cook, who was present when the group began to
assemble, left the plant along with Raymond T. Dollar, his father-in-law, in the
latter's truck and started to look for Bender .26 They found Bender on the street
and Cook informed him, "We are having a walk-out at the cheese factory." When
Bender said, "You don't mean it"; and "where are the boys?", Cook replied that
when he left the plant the boys were in the paraffin room, "signing out." 27 Bender,
accompanied by Cook and Dollar, returned to the plant where he first donned
coveralls, preparatory to completing the day's unfinished work, and went to the
door of the paraffin room, where, according to Board witnesses, he stated,
If you haven't signed out, sign out, get going and good bye.
Bender's version of this incident was to the effect that after Cook had informed
him that the men had walked out he returned to the plant and found the "make
room" empty and then went to the paraffin room and found all employees there
with the exception of James Springer and Foreman Springer. Bender testified :
I walked to the door and asked them if they's quit, and some of them said,
"Yes."
I asked them if they'd check out and they said "Yes." I asked them what
they were waiting for.
When asked if he recalled whether the above were the exact words, Bender
replied, "I believe it is."
While these two versions may appear to be in conflict as to whether Bender
asked the employees whether they had "quit" or had "signed out," they are not
necessarily so.
All but one of the employees had in fact quit their jobs and assembled in the
paraffin room, where some of them, at least, had signed out; Bender was informed
24 Colbert testified that when O'Barr came into the paraffin room he asked for the loan
of a pencil and said he was "checking out"; and when Colbert asked what the "trouble"
was, O'Barr replied, "We don't like the way Baugh was treated." O'Barr denied having
asked for a pencil or that lie "signed" out. The credible evidence discloses that the time
sheet hung in the paraffin room ; that Hannah took it from its place and exhibited it at the
union meeting held at Sullivan's room that Sunday night , and that it contained a number
of employees' signatures Caldwell testified that he received a "sheet" of paper which he
could not swear was the time sheet and that he saw Culpepper 's name on it . From the
foregoing the undersigned is convinced and finds that O'Bair, Culpepper, and others
"signed out" at the time they assembled in the paraffin room
21 Obscenity deleted
26 Bender had left the plant immediately after asking Baugh to check out
'27 All Board witnesses testifying in this connection stated that they did not sign out as
the time sheet was not in its customary place when they left the plant. The credible evi-
dence indicates however that some of the employees had signed out (See footnote No. 24
above )
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Cook that they had walked out ; when he arrived at the plant he found none
of them in the make room; thus when he went to the paraffin loons door he knew,
and believed that they had quit their jobs, for that day at least; so whether
lie asked the employees if they had "quit" or if they had "checked out" would
snake little if any difference, since either term, under the circumstances, would
indicate that Bender wanted to know whether the employees had discontinued
work for that day
While the record discloses that Culpepper 28 had informed Colbert that the men
wanted to talk to Bender concerning Baugh's discharge, it does not disclose that
such request had been relayed to Bender after he reached the plant following
Cook's report of the alleged walk-out, and before he went to the paraffin room
door. It is undisputed that the subject of Baugh's discharge was not broached
on this occasion Bender testified that he thought the men had quit because
he had disciplined Baugh, that while he was not "mad," neither was he "per-
tectly calm, . . cool, and collected," but was 'a little excited on this occasion "
On the above and the record the undersigned is of the opinion and finds that
when Bender went to the paraffin room on the occasion above referred to, he
believed the employees had either quit in fact or had gone on strike because of his
"disciplining of" Baugh; that at this time he was somewhat angry and did tell the
assembled employees that if they had not checked out, "to check out and good-bye" ;
and that by such statement he (lid not believe that he was discharging not did
lie intend to discharge any of the employees so addressed
Following Bender's statements above, O'Barr and the Negro employees left the
plant by the way of the west door, without going to the shower room, while most,
it not dl, of the white emplo} ees, went to the locker room, took a shower, and
changed clothes there before leaving the plant.
Springer was pi escnt in the paraffin room before the men began to assemble.
When the first few arm ed he left the plant and went to a cafe across the street
joi a cup of cctfee On his ietuin fioni the cafe he suet OBari• and the Negro
einnloyees just as they left the plant Ile suggested to 0 Barr that the employees
n cmain nearby for a few ninnies and he would talk to Bender "and maybe things
would be all light and they would go back to work" Springer tailed to retiu•u
in a fe.v nin utes, or at all Most of the Negro clap'oyee' and some of the w-h,te
employees who were informed of Springei's suggestion, weileci for more than an
hour before they left the N icimty of the plant -'
Counsel for the Board contends in cffeet that the ehnplovees had merely aesein-
bled in the paraffin room to discuss Baugh's terni,nation of employment with
Bender; that they weie given no opportunity for such discussion by reason of
Bender's abrupt and niandatoiy-ohdeis to sign out and get out; and the fact that
any, if not most of them remained in the vicinity for some time with the hope
and expectation of being called back to work, indicated that they had neither quit
limb' jobs nor gone on strike, but were, as a result of Bender's order s to sign out
and get out, discharged.
The iespondent contends, in effect, that inasmuch as the employees had con-
cen ledly left their jobs before the end of the workday, leaving pei^shable products
hnica i'cd for, that they had in fact quit their jobs and lost thee' status as employees.
Neither contention has merit The record clearly discloses that all production
:w Colbeit denied that either 0 Barr of Culpeppei said that they wanted to talk with
Bender on this occasion The undersigned does not credit this denial
Springer te,,tified that it was 2 hours before lie got a chance to talk to Bender and
then when lie suggested that Itendei try to get the boys back, the latter replied, "Let them
i oine back on then own accord "
WILSON & CO., INC. 979
and maintenance employees then on duty," except James Sponger, left their
jobs and went on strike because of Bough's termination of employment. Since,
as found above, Baugh's termination of employment, the motivating cause of the
,,tiike, was non-disc ininatory, the strike may not be found to have resulted at
its inception from an unfair labor practice on the part of the Respondent
Inasmuch as the strike grew out of a current labor dispute, the stokers remained
employees of the Respondent within the meaning oL Section 2 (3) of the Act, and
the strike became an economic rather than an unfair labor practice strike "
Upon the above and the entire record, the undersigned concludes and finds.
(1) by quitting their work at the time and in the manner described, the employees
then on duty went on strike, (2) that the strike was, at its inception, an economic
and not an unfair labor practice strike, (3) that by, on June 23, ordering the
siriking employees to sign out and get out, Bender did not thereby discharge
the assembled employees: (4) that at the time said employees left the plant on
the evening of Jane 23 they were economic strikers who retained their status as
employees of the Respondent; and (.;) by ordering said employees to sign out
and get out of the plant as above set forth, the Respondent has not discnuunated
in i egard to the hire and tenure of employment of said employees It will be
recommended below that the complaint, insofar as it so alleges, be dismissed
D. The refusal to bargain collectively.
1. The appropriate unit
The complaint alleges that a unit composed of Respondent's production and
ni:nntenance employees at its Okolona, Mississippi, plant, excluding office and
clerical employees and all supervisory employees with authority to lice, pro-
mote, discharge, discipline or otherwise effect changes in the status of employees
or effectively recommend such action, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of the Act.
Counsel for the Respondent submitted job classifications which the Respondent
contended constituted an appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act The unit thus contended
for differs from that alleged in the complaint only in that the Respondent
would exclude "laboratory employees" As to such employees, the record dis-
closes that they test milk and test cream and cheese for fat and moisture. that
t hey had no special training for such work at the time they were hired ; and
that they were hired and trained on the job In addition, Bender testified that
he knew of no re:,-,,n clay they should not be included with other production
employees in "a u__it for bargaining purposes " The laboratory workers will
be included in the appropriate unit as production employees The undersigned
accordingly finds that the unit alleged in the complaint, as set forth above, at
all times material herein constituted and now constitutes a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act
"The iecord discloses that Saxon and Flenung, who were not on duty when the stile
started, failed to ieport for work on Monday, and as detailed below, joined the strikers on
that date
'1 See .IeJfei y-De Wttt Insulator Co. v N L R. B , 91 F (2c1) 134 (C. C A 4) enforcing
1 N L R B 618, cent denied 302 U S 731 , Blau Diamond S S Coip v N L R B, 94
F (2d) 875 (C C A 2) enforcing 3 N L It B 84, N L R B v Recd it Piince Mfg Co,
118 F (2d) 874 (C C A. 1) enforcing 12 N L I{ B. 944, cert denied 313 U S 595
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Representation by the Union of a majority in the appropriate unit
The complaint alleges that on or about June 21, 1946, a majority of the
employees in the above-described appropriate unit designated and selected the
Union as their representative for the purposes of collective bargaining with the
Respondent. The record discloses that as of June 21, 1946, the Respondent had
a total of 21 production and maintenance employees including laboratory workers,
on its pay roll. The record further discloses, without dispute, that a majority
of said employees had signed union application and authorization cards between
June 12 and 14, 1946.32 The record also discloses that a union meeting was
held at the home of Jake O'Barr on the night of June 21, at which time those
employees who had theretofore applied for membership in the Union paid their
initiation fees in the amount of $6.25 each. Such payments were evidenced in
the record by duplicate receipts issued to 16 33 non-supervisory employees, by Earl
Smith, a general organizer for the A. F. of L., who substituted for Organizer
Caldwell on this occasion and by a duplicate receipt issued to Murry Jumper,
Jr., on June 24, 1946, by Caldwel1.34
The undersigned accordingly finds that on June 21, 1946, and at all material
times thereafter, the Union was and now is the duly designated representative of
a majority of the employees in the aforesaid appropriate unit for the purposes
of collective bargaining with respect to rates of pay, wages, hours of employment
and other conditions,of employment, within the meaning of Section 9 (a) of the
Act.
3. The refusal to bargain
(a)' Sequence of events
Following the walk-out and the ensuing strike of Sunday evening, June 23,
certain union members got in touch with Organizer Caldwell and arranged with
him to attend a meeting of the union members that night at Sullivan's room
The meeting was held as planned with the result that Caldwell advised all of
the employees who had left their work before quitting time on that day, together
with Saxon and Fleming,35 to assemble at the cafe across the street from the
Respondent's plant early on the next morning, Monday June 24, and that be
would then talk with Bender in an effort to get all the employees back to work.
Caldwell informed the employees that if Bender refused to take them back, the
Union would file unfair labor practice charges against the Respondent.
Pursuant to such plans the production and maintenance employees, except
James Springer, and two laboratory workers, assembled at the designated cafe
between 6: 30 and 7: 30 on Monday in their work clothes ready to go to work 3°
Caldwell then went to the plant where he talked with Bender and told him
in substance that he represented "the boys that left" work the day before ; that
they.had all signed up in the Union; that the trouble had arisen in connection
33 Thirteen non-supervisory employees testified that they had signed union cards on or
about June 13
93 Those who paid their Initiation fees on June 21 were Fleming, McKinney, Culpepper,
Baugh, Bean, Hannah, Potter, Morrow, Herron, Batten, Jones, Sample, Saxon, Sullivan,
O'Barr, and Judd
3' Foreman Springer testified that he had signed a union authorization card on or about
June 12 and paid his initiation fee on June 21 when Smith and OBarr called at his home
following the meeting at O'Barr's residence
35 Saxon and Fleming who had not been on duty when the walk-out occurred, were notified
of the Sunday night meeting and attended it.
35 Saxon who had been instructed on June 22 to take a 2-day lay-off did not expect to
return to work on Monday in any event, but was among those present at the cafe meeting.
WILSON & CO., INC. 981
with Baugh's termination of employment ; and that if the Respondent put Baugh
back to work the rest of the employees would return to work.
Bender replied in substance that he did not know that Caldwell represented
the employees ; that the employees had quit ; and that as long as they had quit,
he did not have to take them back" During the conversation , Caldwell informed
Bender that a "contract" had been mailed to him from the union headquarters in
Memphis, Tennessee , and that he would get a letter from the Union that morning.
The record discloses that Bender did receive the letter on that morning but after
his talk with Caldwell. The letter written on the Union's letterhead, dated June
22, 1946, addressed to Bender, as superintendent, in care of the Respondent, read
as follows :
This is to officially notify you that we represent the majority of your em-
ployees working at the Wilson Company Plant at Okolona, Mississippi.
You will find enclosed a copy of a Contract for your perusal.
We would like to hear from you immediately on a meeting, date and time,
when we can set down and negotiate a Contract for these employees.
I remain,
Yours truly,
(S.) J. L. BIGGERS,
Secretary-Treasurer.
The record discloses that on June 26, Bender replied to the Union letter as
follows :
DEAR MR. BIGGERS : I have received your letter of Saturday, June 22nd, in
which you state that you represent the majority of the employees in this
plant. You also included a copy of a proposed labor agreement covering
this matter.
This is to advise you that we have always assumed a neutral and impartial
attitude towards our employes in regard to the subject matter of union activ-
ities. In other words, we hire our employes to work for a specified rate of
pay and expect a given quality of work. We have never inquired into the
Union status of any of our employes ; therefore, we cannot evaluate your
claim that you represent a majority of our employes. Furthermore, some
of our employes may be members of labor organizations other than your own.
For this reason we cannot voluntarily recognize your Union In view of this
fact, I would say that the presentation of the contract of your proposal is
premature.
I trust that this answers your letter, and in the event you feel further
action is necessary, the matter should be handled through regular channels
Yours very truly,
WILSON & Co. INC.,
(S) B. D. Bender
The record discloses that on the night of June 23, Bender and Colbert attempted
to engage a number of new employees to replace the strikers. While they pro-
cured the promise of a number of men to report to work at the plant on June 24,
31 These findings are based upon a reconciliation of Bender and Caldwell's testimony.
Caldwell testified that he asked Bender to take all employees , including Baugh , back to
work and inferentially denied that he had imposed a condition to the effect that unless
Baugh was returned to work , the other employees would refuse to return . Since it is
clear that the walk -out and strike grew out of Baugh's termination of employment, the
undersigned is convinced that Caldwell offered to have the employees return to work upon
the condition that Baugh be reinstated.
788886-49-vol. 77 63
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only two new employees reported on that day , namely Kenneth Bender, a ,,on of
Manager Bender , who quit his job September 4, 1946 , and Abraham Hughes, who
quit his job on June 25, 1946.
Following the exchange of the foregoing letters, there was no further conuuuni-,
cation between the Union and the Respondent , either written or oral . On July
31, 1946, the Union filed a charge alleging that in violation of Section 8 (1) and
(3) of the Act , the Respondent terminated and thereafter refused to reemploy
those employees named in footnote 2 above.
(b) Issues; contentions; conclusions
The Respondent in effect contends that, assuming the employees had retained
their status as employees,38 that since the Union had submitted no evidence of
proof of its claim of majority representation, the Respondent had no basis upon
which to "evaluate" the Union's claim of majority representation and thus was
under no obligation to recognize or bargain with the Union.
The record discloses that, other than Caldwell's statement to Bender on June 24,
and Biggers' letter which Bender received on that same day, each to the effect
that the Union did'represent a majority of the Respondent's employees, the Union,
as such, submitted no evidence, either written or oral, to the Respondent in
further support of its claimed majority.
(c) Events prior to the strike of June 23 indicatniq Respondent's h,nolcledge of,
the Uniona's majority
The record discloses that within a day or two after a majority of the employees
had joined the Union as a result of the Carnation Plant meeting, Culpepper, as
related above, informed Neal that all the employees who attended such meeting
had joined the Union; that Frank Cook, admittedly a "management" employee,
questioned Culpepper on the day following the Carnation Plant meeting con-
cerning the meeting and asked if the employees had joined the Union and was
informed that the employees "had all joined the Union"; that after joining the
Union, Saxon, in a conversation concerning the Union, also informed Neal "We're
all in it, and we'll get along all right" ; 39 that on June 21, Colbert threatened
to withhold pay checks from the Negro employees in order to discourage them
from paying initiation fees at the Union meeting to be held on that day , and
that on June 22, at a time when Bender instructed Saxon to take a lay-off on June
23 and 24, Saxon stated to Bender, "I've always tried to work with you, and if
1 get in too much time and it suits you better [for Saxon] to take otf, . I'm
willing to still work on with you " Saxon added, "This little organization we're
in why, that ain't going to affect inc to keep me from doing the right thing and
help carry on the business as I always have." Saxon ended his statement with
Bender as follows, "I don't know much about it, what I'm in, what we joined, we
joined up, but . . . we can all work on and go together and it probably will be
38 Respondent's contention that the strikers had lost their status as employees by leaving
their jobs before quitting time on June 23 has been determined adversely to this contention
in Section III C above
39 Neal denied that he had "a conversation with Saxon on June 13th about not believing
in the Union." Neal was not asked whether Saxon had informed him that "We' re all in
it [Union] . . ." and hence did not specifically deny Saxon 's statement to such effect.
The undersigned is convinced and finds that the conversation occurred substantially as
testified to by Saxon.
WILSON & CO., INC. 983
better for us all. . . I still don't know much about it." To which Bender
replied, "I don't either, but I wish I did know more " 40
(d) Events on and after June 23 indicating Respondent's knowledge of this
Union's majority
As found and detailed in Section III C, above, all the production and mallr-
tenance employees except James Springer and two laboratory workers went on
strike on the evening of Sunday, June 23.
Following the strike "all of cheese hands" 41 attended a union meeting over
which Caldwell presided. During the meeting it was decided that all employees
there present would assemble at the cafe across the street from the Respondent's
plant before working time on Monday, June 24, at which time Caldwell would
call on Bender and attempt to have all of the employees returned to work. As
set forth hereinabove, Bender refused to reinstate the employees when requested
to do so by Caldwell.
The record discloses that Foreman Springer, after helping Bender and others
complete the day's work left by the striking employees, attended the June 23
night Union meeting at Sullivan's room. Following this meeting, Springer re-
turned to the plant and informed Bender that he had attended the Union meeting ;
that Caldwell was there and in charge ; and that plans had been made for the
employees to meet at the nearby cafe the next morning and ask for their jobs
back .12
(e) Concluding flndtu-gs on the Iefitsal to ba?gain
Respondent , in effect , bases and justifies its refusal to bargain With tie
Union on the contention that it lacked knowledge of the Union's majority.
It is clear from the record however , that on or about June 14, the day after
the Union 's organizational meeting, Neal and Cook learned from Culpepper that
a majority of the employees had then joined the Union; and that on June 22,
Saxon informed Bender that all the employees 4' had joined the Union Thus the
Respondent had knowledge of the Union 's majority in advance of the strike
4'These findings are based on Saxon 's credited testimony Bender's veision was to the
effect that lie was aware of "union activities at the plant prior to June 23rd, 1946, only as
i unnors;" that he and Saxon had a conversation in the boiler room, in which Saxon "sand
that the inen were ti,inlinq about getting a union in, the plant " ( Emphasis added )
Since the employees had, to Saxon's rersonal knowledge, already organized the Union and
paid their initiation fees, it is doubtful that he would h:ne told Bender that they were
"thtnl-mg about getting a union in the plant" Saxons quoted and credited testimony
above, in wh.ch lie seeks to justify his union membership and to assure Bender that "it
probably will be better for us all," indicates that lie may have felt that his 2-dav lay-ofC
grew out of the fact that the Union had organized with him as a member On the fore-
Loin:: and the iecoid the undersigned is convinced and finds that on June 22, Saxon m-
fo:med Bender in words substantially as found above, that the Respondent's employees had
in fact organized a union in the plant
41 Since James Springer did not join the strike lie was not present at the union meeting-
The two laboratory workers did not join the Union.
42 This finding is based on Bender 's credited testimony . While Springer at first denied
telling Bender of the employees ' plans for action on Monday morning , June 24, he finally
testified that he told Bender about the meeting on Sunday night. Under all the circum-
stances the undersigned is convinced that Bender learned substantially all that occurred
at the Sunday night meeting, including the fact that Caldwell was in charge of the meeting
and the fact that all employees except James Springer and the two laboratory workers
attended the meeting.
4' James Springer signed a union membership card. When it came to paying initiation
fees he announced that inasmuch as he expected to go to school in the fall , lie should not
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assuming that the Respondent had any doubts of the Union 's majority before
the strike of June 23, the strike , the events of the Union meeting on the night
of June 23 ( which were reported to Bender ), and the meeting of all but three
of the employees at the cafe opposite the plant on June 24 , together with Cald-
well's statement that he represented the employees and Secretary Biggers' letter
to the same effect, should have dispelled any doubt that Bender may have had
as to the Union 's majority on the day he was requested to recognize and bargain
with it."
The Board and the Courts have frequently held that a union had proved that
it was designated by a majority when a majority of the employees in the ap-
propriate unit responded to the strike call and remained on strike for its dura-
tion.96 In the Chicago Casket Company case 98 the Board referring to employees
who had gone on, and remained on strike , said, "In so doing, these employees
:affirmatively designated the Union as their bargaining representatives."
In his letter of June 26 , Bender did not actually question the Union 's majority
.status, but stated, in substance , that since the Respondent had not "inquired into
the union status" of any of its employees it could not "evaluate" the Union's
claim as a majority representative . Bender made no request for proof for such
majority and failed to fix a date for meeting with the Union representative as
requested.
In the Crown Can Company case 44 the Court said in part :
It is true, of course , that an employer may request reasonable proof that
the union represents a majority of the employees , and in the absence of such
proof he need not bargain , if he in good faith doubts the union ' s majority.
N. L. R. B . v. Wm. Tehl Bottling Co., supra, and cases cited . In the instant
case [Crown Can Co case] no inquiry was made or proof requested by the
Respondent , so that it is now in no position to complain that the union failed
to present convincing proof that it represented a majority.
The foregoing and the record disclose that the Respondent had knowledge prior
to the strike of June 23 that a majority of its employees had joined the Union;
that such knowledge was amply confirmed is shown by the advent oL the strike,
the union meeting on the night of June 23 , of which the Respondent had notice,
and by the meeting of the employees held opposite the plant on June 24, together
with Caldwell 's oral demand and Biggers ' written demand that the Respondent
recognize the Union received on June 24 From all of which the undersigned
finds that the Respondent 's claim that it lacked knowledge of such majority was
not made in good faith.
The undersigned accordingly finds that on June 24 , and at all times there-
after, the Respondent refused to bargain collectively with the Union as the repre-
sentative of its employees in the appropriate unit and thereby interfered with,
be required to pay initiation fees. The promoters of the Union then agreed to waive his
payment of dues for a time since he had been in the Army . He was informed , however, that
in the event he did not go to school he would be required to pay dues . It appears that no
attempt was made to include the women employed as laboratory workers in the Union at
the time it was organized.
44 Fleming was the only striking employee who abandoned the strike and was reinstated.
He returned to work on or about June 26.
95 The strike in the instant case had not been settled or abandoned at the time of the
hearing Only 2 of the striking employees had made an unconditional offer to return to
ww ork, and each offer was rejected.
45 21 N L . R B. 235; and see Stehlti d Co. Inc ., 11 N. L. R . B 1397; Theurer Wagon
Works, Inc, 18 N L R B. 837; and Max Ulman, Inc., 45 N. L R. B 836.
4i 138 F. ( 2d) 263 (C. C. A. 8), rehearing denied November 9, 1943.
WILSON & CO., INC. 985
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act. The undersigned further finds that the strike at the
Respondent's plant from and after the Union's written request received by the
Respondent on June 24, that the Respondent recognize and bargain with it, was
prolonged by the Respondent's unfair labor practices in refusing to bargain col-
lectively with the Union.
The undersigned further finds that on June 24, Caldwell requested reinstate-
ment for the striking employees conditioned upon the reinstatement of Baugh,
whose employment had been terminated prior to the strike ; and that the request
was denied. The Board has held 98
So long as the employees were unwilling to return to work tinder the condi-
tions existing at the time the strike was called, however just the grounds on
which their position was based, it cannot be said that the respondent was
refusing to reinstate them.
So in the instant case it appears and the undersigned finds that by refusing
reinstatement to the strikers on June 24, 1946, pursuant to Caldwell's conditioned
request for such reinstatement, the Respondent did not discriminate in regard to
their hire and tenure of employment in violation of Section S (3) of the Act.
E. The dlscrinviatorp refusal to reinstate William W. Saxon and
Louishes Potter 49
Saxon had, prior to June 22, been employed by the Respondent for some 3
years and S months as a fireman." He joined the Union on or about June 13,
and on June 21 paid his initiation fees. As found above, Bender required him
to take leave on June 23 and June 24. After the strike got under way on June
23, Saxon was notified of and attended the union meeting held that night. He
joined the strikers at the cafe opposite the plant on the morning of June 24.
On or about July 5, 1946," Saxon, after consulting with Culpepper, went to the
plant to request reinstatement to his job. He located Bender at the cafe above
referred to, and told him, in substance, that he was ready to return to his job.
Bender replied, "I can't use you, probably later on I can."
Potter was employed by the Respondent some 5 or 6 weeks prior to June 23.
He helped to paraffin cheese during the forenoons, and worked as a yard man
during the afternoons. He was listed on the pay roll as a janitor. He joined the
Union ; paid his union initiation fees ; and went out on strike with the other
employees on June 23.
It was admitted that "quite a little while" after Saxon had requested rein-
statement to his job, that Potter went to the plant and asked Bender "for his
job back," at which time Bender informed Potter that he had no work for him
"right then."
The issues; contentions; conclusions
The Respondent in effect contends: (1) that the strike of June 23 began and
continued as an economic strike; and (2) that inasmuch as it had replaced all
strikers before either Saxon or Potter had requested reinstatement, they had
48 In re Pi cayman et al, 12 N L. R. B 640; see also in re V-0 Milling Company, 43
N L. R B 348.
41 Sometimes in the record referred to as "Lucian" Potter
50 Since his job as fireman did not require all of his time, Saxon performed different types
of work during the intervals that he could safely absent himself from the boiler room
"Both Saxon and Bender testified that the former asked for reinstatement to his former
position about a "wtieek or 10 days' after June 23, 1946
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lost their status as employees of the Respondent , therefore it was under no
obligation to reinstate either Saxon or Potter.
As to the first contention , the undersigned has found in Section III D, above,
that the Respondent on June 24 , and at all times thereafter , refused to bargain
collectively with the Union as the duly designated representative of its em-
ployees in an appropriate unit ; and that the strike on and after June 24 was
prolonged by the Respondent 's unfair labor practice in refusing to bargain col-
lectively with the Union. This contention is without merit.
As to the second contention„ the record discloses that between the evening of
June 23 and prior to June 25, only three new employees 62 were hired, none of
whom was hired as either a fireman or as a janitor. Inasmuch as Saxon's
and Putters positions had not been filled prior to the commencement of the
unfair labor practice strike they were entitled to reinstatement upon application,
inasmuch as the plant continued in operation and their jobs were therefore
available." This contention is without merit.
Conclusions
From the foregoing and the entire record the undersigned concludes and finds
that by refusing on or about July 5, 1946, to reinstate William M. Saxon upon
application , to his former or substantially equivalent position, and by refusing
upon application to reinstate Louishes Potter,54 Respondent discriminated with
regard to their hire and tenure of employment , discouraged membership in the
Union, and interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
The complaint alleges inter elia that, in violation of the Act, the Respondent,
(1) kept union meetings under surveillance; ss and (2) threatened employees
with firearms in order to secure information pertaining to the Union. Upon a
consideration of all the evidence introduced in connection with these two allega-
tions, the undersigned is of the opinion that credible evidence in the record will
snot support a finding to the effect that the Respondent was guilty of either charge.
It will be recommended below that the complaint, insofar as it refers to these
allegations, be dismissed.
IV. THE EFFECT OF TILE 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 burdening and
obstructing commerce and the free flow of commerce.
i2 Kenneth Bender was hired as a vat man on June 24 , and quit on September 24 ; Abraham
Hughes was hired as a vat man on June 24, and quit on June 25 ; and Clone Whatley, Jr,
was hired as a vat man on June 24 and at the time of the healing was still on the pay roll
63 See footnote 52 above.
b4 The record is silent as to the exact time Potter made his application for reinstatement.
The undersigned assumes that the Board's Compliance Division and the Respondent's
representatives will be able to arrive at the approximate date on which Potter asked
reinstatement.
sa While Foreman Springer joined the Union and was present at the Union meetings
held on or about June 14, June 21 , and June 23, there was no contention that he did so
at the request of or on behalf of the Respondent . He did however make a report of the
June 23 meeting to Bender on his return to the plant on the night of the meeting.
WILSON & CO., INC.
V. THE REMEDY
987
HaN ing found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent, on June 24, 1946, and at all times there-
after, refused to bargain collectively with the Union as the exclusive representa-
tive of its employees in an appropriate unit, it will be recommended that the
Respondent, upon request, bargain collectively with the Union.
The undersigned has found that the unfair labor practices of the Respondent
1)rolonged the strike which began as an economic strike on June 23, 1946. In
order to restore the status quo as it existed prior to the time that the Respondent
'committed the unfair labor practices, the undersigned will recommend that the
Respondent, upon application, offer reinstatement to their former or substantially
equivalent position, without prejudice to their seniority or other rights and
x,rivileges, to those employees who went on strike and who have not previously
'applied for and accepted reinstatement, dismissing if necessary, any persons
hired by the Respondent on and after June 24, 1946, and who were not in the
employ of the Respondent on said date. If thereupon, despite such reduction in
force, there is not sufficient employment available for the employees to be offered
reinstatement, all available positions shall be distributed among such employees
without discrimination against any employees because of their union affiliation
or activities, following such a system of seniority or other non-discriminatory
practice to such an extent as has heretofore been applied in the conduct of the
Respondent's business. Those employees, if any, remaining after such distribu-
tion, for whom no employment is immediately available, shall be placed upon
a preferential list and offered employment to their former or substantially
equivalent positions as such employment becomes available and before other
persons are hired for such work in the order determined among them by such
system of seniority or other non-discriminatory practice as has heretofore been
followed by the Respondent.
The undersigned will also recommend that the Respondent make whole those
employees who went out on strike, and who have not previously applied for
reinstatement for any loss of pay they may suffer by reason of the Respondent's
refusal, if any, to reinstate them as provided above, by payment to each of them
of a sum of money equal to that which he would normally have earned as wages
during the period from five (5) days after the date on which he applied for
reinstatement to the date of the Respondent's offer of reinstatement or place-
ment on a preferential list, less his net earnings," if any, during such period.
The undersigned has further found that the Respondent discriminated in
regard to hire and tenure of employment of William W. Saxon and Louishes
Potter, thereby discouraging membership in the Union. It will be recommended
that the Respondent offer to both of the aforesaid employees immediate and
full reinstatement to their former or substantially equivalent positions 64 without
prejudice to their seniority or other rights and privileges, and that it make
°G Matter of Crossett Lumber Co , 8 N. L R. B. 440 , 497-8.
51 In accordance with the Board ' s consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position ." See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch , 65 N L R B 827.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each of them whole for any loss of pay he may have suffered by reason of the
discrimination practiced against him by payment to him of a sum of money
equivalent to that which he normally would have earned as wages, from the
date of the refusal to reinstate to the date of offer of reinstatement, less his
net earnings during such period.
Upon the basis of the above findings of fact and the entire record in the case,
the undersigned makes the following :
CONCLUSIONS OF LAw
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No. 667, affiliated with the American Federation of
Labor, is a labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the Okolona , Mississippi,
plant of the Respondent, but excluding office and clerical employees and all
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 bargain-
ing within the meaning of Section 9 (b) of the Act.
3. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No. 667, affiliated with the American Federation of
Labor, was on June 21 and June 24, 1946, and at all times thereafter has been
the exclusive representative of all the employees in the aforesaid unit, for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
4. By refusing on June 24, 1946, and at all times thereafter, to bargain collec-
tively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local No. 667, affiliated with the American Federation of
Labor, as the exclusive representative of all its employees in the appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of
William W. Saxon and Louishes Potter, thereby discouraging membership in
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local No 667, affiliated with the American Federation of Labor,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
S. The Respondent's acts in terminating Baugh's employment on June 23, 1946,
and Bender's orders to the striking employees to sign out and leave the plant on
that same day, were not in violation of Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the Respondent,
Wilson & Company, Inc., Okolona, Mississippi, its officers, agents, successors, and
assigns shall:
WILSON & CO., INC. 989
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Local No. 667, affiliated
with the American Federation of Labor, as the exclusive representative of all its
production and maintenance employees at the Okolona plant of the Respondent,
but excluding office and clerical employees and all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees or effectively recommend such action, with respect to rates
of pay, wages, hours and conditions of employment ;
(b) Discouraging membership in International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local No. 667, affiliated
with the American Federation of Labor, by refusing reinstatement to any of
its employees or in any other manner discriminating in regard to the hire and
tenure of employment or any condition or term of employment
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 667,
affiliated with the American Federation of Labor, as the exclusive representa-
tive of all of its employees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours of employment and other conditions of employment ;
(b) Offer to William W. Saxon and Louishes Potter immediate and full rein-
statement to their former or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges ;
(c) Make whole the said William W Saxon and Louishes Potter for any loss
of pay they may have suffered by reason of the Respondent's discrimination
against them in the manner provided in the section entitled "The remedy" ;
(d) Upon application offer to those employees who went on strike on June
23, 1946, and continued on strike from and after June 24, 1946, and who have
not previously applied for reinstatement, immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, in the manner provided in the section
entitled "The remedy" above; and place those employees for whom employ-
ment is not immediately available upon a preferential list in the manner set
forth in said section, and thereafter, in said manner, offer them employment as
it becomes available ;
(e) Post at its plant at Okolona, Mississippi, copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Fifteenth Region, after being signed by the Re-
spondent's representative, shall be posted by the Respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including 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;
(f) Notify the Regional Director for the Fifteenth Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the Respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the Respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that insofar as the complaint alleges (1) that the
Respondent discriminated in regard to the hire and tenure of employment of
Clifford L. Baugh ; (2) that the Respondent kept Union meetings under surveil-
lance; (3) that the Respondent threatened employees with firearms in order to
secure information pertaining to the Union; and (4) that the Respondent dis-
criminated in regard to the hire and tenure of employment of those employees
who went on strike on June 23, 1046, as a result of Baugh's termination of em-
ployment, by ordering them to check out and leave the Respondent's plant on
that same day, it 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) clays from the date of service
of the order transferring the case to the Board, pursuant to Section 20° 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 lie
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 the 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.
PETER F. WARD,
Dated May 23, 1947. Trial Examiner.
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 in any manner interfere with, restrain, or coerce our em-
ployees 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 OF AMERICA, LOCAL NO. 667, (A.
F. of L ), or any other labor organization, 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.
WE WILL OFFER to the employees named below, immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay as a result of the discrimination.
Employees referred to above are :
William W. Saxon
Louishes Potter
WILSON & CO., INC. 991
WE WILL bargain collectively upon request with the above-named union
as the exclusive representative of all employees of the bargaining unit de-
scribed 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:
All production and maintenance employees engaged at our Okolona,
Mississippi, plant 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 recom-
mend such action.
WE WILL, upon application, offer reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority and other
rights and privileges, to the employees who went on strike on June 24, 1946,
and thereafter, and who have not previously applied for reinstatement. We
will dismiss, if necessary, any persons hired on or after June 24, and not in
our employ after that date. If thereupon, despite such reduction in force,
there is not sufficient employment available for the employees to be offered
reinstatement, all available positions will be distributed among such em-
ployees without discrimination against any employee because of his union
affiliation or activities, following such a system of seniority or other non-
discriminatory practice to such an extent as has heretofore been applied
in the conduct of our business. Those employees, if any, remaining after
such distribution for whom no employment is immediately available, will be
placed upon a preferential list and offered reemployment to their former or
substantially equivalent position as work becomes available and before other
persons are hired for such work, in the order determined among them by such
system of seniority or other non-discriminatory practice as we have here-
tofore followed.
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 the hire or tenure of employment
or any term or condition of employment against any employee because of
membership in or activity on behalf of such labor organization.
WILSON & Co., INC.,
Employer.
By ---------------------------------
(Representative) (Title)
Dated ---------------------------
This notice must remain posted for sixty days from the date hereof, and must
not be altered, defaced, or covered by any other material.