Tennessee Egg Co.

National Labor Relations Board - Board Decisions

Mar 20, 1951

93 N.L.R.B. 846 (N.L.R.B. 1951)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation representative because of his position as a supervisor had been
removed at the time of the filing of the petition and thereafter by his
loss of supervisory rank. Admittedly, the Petitioner here was not
at the time of the hearing qualified to initiate a decertification pro-
ceeding; we consider that he was no more qualified to maintain such
a proceeding.
We cannot agree with the argument of the majority that after the
decertification petition was filed the Petitioner became only "nomi-
nally" involved, and his further "presence and participation" unneces-
sary to the ultimate conclusion of the proceeding. Clearly had the
Petitioner withdrawn without the substitution of someone else (as we
believe he should have done after becoming a supervisor), the pe-
tition would have fallen for want of a petitioner; therefore his con-
tinuation as a petitioner was indispensable, not "nominal." This
conclusion finds further support in the practice in the field to dismiss
a decertification petition at the hearing if the petitioner does not then
appear. Moreover, a decertification petitioner has more than "nom-
inal" responsibilities to exercise iiz connection with any election di-
rected pursuant to his petition. He as well as the Employer and the
Union may select observers of the election, challenge the eligibility of
voters, object to the conduct of the election or conduct affecting the
results of the election, and except to any report made concerning chal-
lenged ballots or objections by other parties to the election. In our
opinion, therefore, a qualified petitioner is necessary to the continua-
tion as well as to the filing of a decertification petition.
For the foregoing reasons we would dismiss the petition.
TENNESSEE EGG COMPANY and AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, A. F. L.
TENNESSEE EGG COMPANY and AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, A. F. L. Cases Nos.
10-CA-158 and 10-CA-169. March .0, 1951
Decision and Order
On October 13, 1950, Trial Examiner Josef L. Hektoen issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of the Act, 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. The
Trial Examiner also found that the Respondent had not engaged in
93 NLRB No. 141.
TENNESSEE EGG COMPANY 847
certain other unfair labor practices alleged in the complaint and
recommended dismissal of these allegations. Thereafter the Gen-
eral Counsel filed exceptions to the Intermediate Report and a sup-
porting brief ; and pursuant to leave the Respondent filed a reply
brief?
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.3 The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent, and with the ad-
ditions and modifications, indicated below.
1. We agree with the Trial Examiner that the Respondent is en-
gaged in commerce within the meaning of the Act. The Respondent
operates a plant in Atlanta, Georgia, and a farm in Indiana, in ad-
dition to its plant in Chattanooga, Tennessee, with which we are here
concerned. The Respondent thus operates a multistate enterprise.
We find also that it will effectuate the policies of the Act to assert
jurisdiction in this case.'
2. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act during the period preceding the election
of October 22, 1946. In the absence of exceptions to his findings
and conclusions in this respect, we shall adopt them in toto.
3. Like the Trial Examiner, we find that the Respondent solicited
the withdrawal from the Union of the employees who did not strike
on November 8, 1946. Unlike the Trial Examiner, however, we find
that the Respondent thereby violated Section 8 (a) (1) of the Act.
We need not decide whether the Respondent would have been within
its rights if it had merely informed these nonstrikers of the agree-
ment it had concluded with the Union that they might withdraw
from the Union. In this connection we note that the testimony
adduced by the General Counsel indicates a further agreement that
the Respondent and the Union would jointly notify these employees
of their privilege to withdraw. However, the Respondent actually
1 The Respondent also requested leave to file exceptions after the period allowed for
such filing had expired Its request is hereby denied
8 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Herzog and Members Houston and Reynolds]
3 Among the rulings of the Taal Examiner were his refusal to permit amendments to
the complaint alleging that the Respondent violaled Section 8 (a) (4) of the Act, and that
the Respondent's refusal to bargain dated from October 1946 The General Counsel at-
tempted so to amend the complaint toward the close of the hearing, long after the case-in-
chief had been completed We are satisfied that the Trial Examiner did not abuse his
discretion by denying the motions to amend
' See The Borden Company, Southern Division, 91 NLRP. 628 , Avedis Baxter and Ben
Baxter, d/b/a Baxter Bros, 91 NLRB 1480
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did more than merely transmit information ; it volunteered an ex-
planation of what the employees should state in the withdrawal letter;
it supplied the necessary stationery ; it mailed the letters by registered
mail; and it paid a year's dues for each of these employees, although
the agreement between the Respondent and the Union did not pro-
vide that dues were to be paid by the Respondent. Significantly, the
Respondent made no mention to the employees, whose withdrawals
from the Union it solicited, that the contract required the payment
of dues even if they withdrew. We find, therefore, that the Re-
spondent unlawfully solicited the withdrawal from the Union of these
six employees.5
4. The Trial Examiner found that the Respondent, through W. B.
Jones, its supervisor, told two employees, at various times during the
contract term, that he knew what had transpired at union meetings .11
The General Counsel has excepted to the Trial Examiner's failure
to base an unfair labor practice finding thereon. We find merit
in this exception, and conclude that the Respondent, by thus fostering
the impression that it had engaged in surveillance ,7 has interfered
with, restrained, and coerced its employees in violation of Section
8 (a) (1) of the Act.
5. The General Counsel has excepted to the Trial Examiner's
apparent failure expressly to base unfair labor practice findings upon
the activities of Jones immediately before Labor Day of 1947, during
the contract term. As more fully detailed in the Intermediate Re-
port, Jones asked one employee, Lillie Henderson, if she were "going
on with the Union." This constituted interrogation, and a clear vio-
lation of Section 8 (a) (1) of the Act, and we so finds Additionally,
the Respondent solicited the withdrawal from the Union of at least.
five other employees at about the same time, thereby further vio-
lating Section 8 (a) (1) of the Act.'
6. The Trial Examiner recommended dismissal of the 8 (a) (5)
allegation of the complaint, principally on the basis of the Andrews
Company case.10 However, in New Jersey Carpet Mills, Inc., 92
NLRB 604, the Board overruled the Andrews decision, and held
that a union's noncompliance with Section 9 (f), (g), and (h) of the
Act did not automatically excuse an employer's otherwise unlawful
refusal to bargain.
6 See Empire Pencil Company, Division of Ilassenfeld Bros . Inc., 86 NLRB 1187 ;
National Biscuit Company, 83 NLRB 79
6 The evidence shows further that Jones was able to, and did, give these employees
correct accounts of events that had occurred at union meetings.
7 Ozark Hardwood Company, 91 NLRB 1443
$ Standard -Coosa -Thatcher Company, 85 NLRB 1358.
6 See footnote 5, supra
11 87 NLRB 379
TENNESSEE EGG COMPANY 849
As found in the Intermediate Report, the Union was certified by
the Regional Director on October 30, 1946, following a consent elec-
tion. Less than a year later, on or about September 15, 1947, the
Respondent received a bargaining request from the Union. Although
previous requests had been granted and a contract had in fact re-
sulted, the Respondent advised the Union that it would no longer
bargain because it doubted the Union's majority. The Respondent's
refusal thus related back to the date it received the Union's request n
As we have held '12 an employer's duty to bargain with a certified
union continues for at least a year after certification, except under
unusual circumstances not here present, and an alleged loss of ma-
jority by the union during that period is not a defense.
Moreover, we find that any alleged loss of majority was caused by
the Respondent's unfair labor practices, some of which occurred (as
indicated i1i the preceding paragraph) as late as September 1947.
The Respondent's campaign against the Union did not end with the
signing of the agreement in 1946, but was immediately' resumed by
means of the unfair labor practices found above, and culminated in
its refusal to bargain with the Union within the certification year.
The Board is satisfied that the resignations from the Union September
1947 were inoperative with respect to the Union's continuing ma-
jority status . True, these particular withdrawals were not directly
solicited by Respondent. However, the immediately precedent inter-
rogation and solicitation of other employees cannot be so localized
as to affect only employees immediately involved. They cast doubt
upon the Respondent's good faith in contemporaneously question-
ing the Union's continued majority status. Furthermore, the evi-
dence does not show that the resignations, even if unstimulated, were
sufficient to destroy the Union's majority. Accordingly, we find,
contrary to the Trial Examiner, that the Respondent was obligated
to recognize the Union in September 1947, despite its temporary
failure to comply with Section 9 (f), (g), and (h) of the Act, and
that, by failing to do so, the Respondent violated Section 8 (a) (5)
of the Act.13
7. The Trial Examiner recommended dismissal of an 8 (a) (1)
allegation of the complaint with respect to a unilateral increase in
"West Boylston Manufacturing Company of Alabama, 87 NLRB 808
iz West Fork Cut Glass Company, 90 NLRB 944 , and cases cited therein.
is The Union came into full compliance on December 1, 1947 , before any action was taken
by the Board Chairman Herzog finds no merit in the Respondent ' s contention that this
case falls within the principle he espoused in the New Jersey Carpet case The Respond-
ent herein did not contemporaneously notify the Union that the latter noncompliance was
the reason for its refusal to bargain, nor indeed is there any proof that it was motivated
thereby
For reasons stated in his dissenting opinion in New Jersey Car pet, Member Reynolds
would dismiss the 8 (a) (5) allegation herein However , deeming himself bound by
the action of the majority in that case , he joins in the decision here.
943732-51-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay given by the Respondent about December 15, 1947, on the basis
of his finding that the Respondent was not then under a duty to
bargain with the Union. Because there is no evidence to rebut the
presumption of the Union's continuing majority, it necessarily follows
that the unilateral increase violated Section 8 (a) (1) of the Act,
and we so find.
8. We agree with the Trial Examiner in all other respects, and
therefore find, that the Respondent also violated Section 8 (a) (1)
of the Act on December 15, 1947, by threatening to discharge any
employee who went on strike in the future, but the Respondent did
not violate Section 8 (a) (1) or (3) of the Act by discriminatorily
discharging or refusing to reinstate or rehire any of its employees.
The Remedy
Having found that the Respondent has engaged in the unfair labor
practices set forth above, we shall order that it cease and desist there-
from and take certain action designed to effectuate the policies of
the Act.
It has been found that the Respondent refused to bargain collec-
tively with the Union as the representative of its employees in an
appropriate unit. Accordingly, we shall order the Respondent, upon
request, to bargain collectively with the Union as the exclusive repre-
sentative of its employees in the appropriate unit with respect to
rates of pay, wages, hours, and other terms or conditions of employ-
ment, and if an understanding is reached, embody such understanding
in a signed agreement.
The violations of the Act that the Respondent committed disclose
an intent to defeat self-organization and its objects, and an attitude of
opposition to the purposes of the Act. We are convinced that the
unfair labor practices found are persuasively related to other unfair
labor practices proscribed by Section 8 (a) of the Act, and that danger
of their commission in the future is to be anticipated from the Re-
spondent's conduct in the past. The preventive purposes of the Act
will be thwarted unless our order is coextensive with the threat.
In order, therefore, to make more effective the interdependent guar-
antees of Section 7, to prevent a recurrence of unfair labor practices
and thereby minimize industrial strife which burdens and obstructs
commerce, and thus effectuate the policies of the Act, we shall order
the Respondent to cease and desist from infringing in any manner upon
the rights guaranteed in Section 7 of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
TENNESSEE EGG COMPANY 851
Relations Board hereby orders that the Respondent, Tennessee Egg
Company, Chattanooga, Tennessee, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Meat Cut-
ters and Butcher Workmen of North America, A. F. L., as the exclu-
sive representative of all production and maintenance employees at
its Chattanboga, Tennessee, plant, excluding office and clerical em-
ployees, sales employees, guards, and supervisors as defined in the
Act;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Amalgamated Meat Cutters
and Butcher Workmen of North America, A. F. L., or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, and
to refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in %
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following action, which the Board finds will effectuate-
the policies of the Act:
(a) Upon request, bargain collectively with Amalgamated Meat
Cutters and Butcher Workmen of North America, A. F. L., as the
exclusive representative of all the employees in the appropriate unit,
described above, and, if an understanding is reached, embody such
understanding in a signed agreement;
(b) Post at its plant in Chattanooga, Tennessee, copies of the notice.
attached hereto marked Appendix A 14 Copies of such notice, to be,
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by Respondent, be posted by Respondent imme-
diately upon receipt thereof, and maintained by it for a period of
sixty (60) consecutive days thereafter in conspicuous places including
all places where notices to employees customarily are posted. Reason-
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps Respond-
ent has taken to comply herewith.
14 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words "A Decision and Order," the words "A_
Decree of the United States Court of Appeals Enforcing."
r
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent has violated Section 8 (a) (1) or (3) of the Act except
as found herein, be, and it hereby is, dismissed.
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, as amended, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, A. F. L.,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from any or all of
such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE WILL BARGAIN collectively upon request with AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA,
A. F. L., as the exclusive representative of all employees in the
bargaining unit described herein, and if an understanding is
reached, we Will embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees, excluding of-
fice and clerical employees, sales employees, guards, and
supervisors as defined in the Act.
All our employees are free to become or remain members of any
labor organization. We will not discriminate against any employees
because of membership in or activity on behalf of any labor organi-
zation
TENNESSEE EGG COMPANY,
Employer.
By ------------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
TENNESSEE EGG COMPANY 853
Intermediate Report -
Messrs. Herman Corennian and Charles M. Paschal, Jr., for the General
Counsel.
Spears, Reynolds, Moore & Rebman, by Messrs W. D. Spears and Mercer Reyn-
olds, of Chattanooga, Tenn., and Mr. Dan M. Byrd, Jr., Atlanta, Ga., for the
Respondent.
Mr. A. C. Allen, of Madison, Tenn., and Mr. C. F. Lawrence, of Chattanooga,
Tenn., for the Union.
STATEMENT OF TI F CASE
Upon charges and amended charges duly filed by Amalgamated Meat Cutters
and Butcher Workmen of North America, A. F. L., herein called the Union, the
General Counsel of the National Labor Relations Board, herein called the
General Counsel and the Board, respectively, by the Regional Director for the
Tenth Region (Atlanta, Georgia), issued his consolidated complaint dated
February 25, 1949, against Tennessee Egg Company, Chattanooga, Tennessee,
herein called the Respondent, alleging that the Respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the complaint accompanied by notice of hearing thereon were duly
served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint as amplified and
expanded by bills of particulars filed and read into the record by the General
Counsel pursuant to partially allowed motions made by counsel for the Respond-
ent and hereinafter more fully adverted to, alleged in substance that the
Respondent:
(1) On and after September 19, 1946, by President H. C. Carbaugh, Vice-
President J. B. Cole, Foreman W. B. Jones, and Sales Manager George Woods :
(a) Urged, persuaded, threatened, and warned its employees to refrain from
assisting or becoming members of the Union; (b) made statements to them not
protected by Section 8 (c) of the Act; (c) coerced and aided employees' with-
drawals from the Union; (d) interrogated employees respecting their union
sympathies and activities;' (e) spied upon and indulged in surveillance of
union members and meetings; (f) unilaterally promised and granted wage
increases to its truck drivers ; (g) unilaterally promised and granted wage
increases to its killing and dressing-room employees; (h) granted privileges
to nonunion employees which it withheld from members of the Union; (i) re-
fused to reinstate Lois Armor and Annie Ruth Newsom in October 1947 and
Mahalah Gurley in January 19472
(2) On and after September 15, 1947, refused to bargain collectively with
the Union upon request as the exclusive representative of its employees in an
appropriate unit.
(3) On or about the dates set forth after their names, discharged and there-
after refused to reinstate the following employees on account of their union
membership and activities :
' At the opening of the hearing, the General Counsel's motion to add the names of W. D.
Spears and Dan M. Byrd, Jr., counsel for the Respondent, to the list of these alleged to
have committed unfair labor practices on behalf of the Respondent in this respect, was
granted Later on the same day, the General Counsel moved to strike the name of Mr.
Byrd The motion was granted ,
' The General Counsel stated on the record that this allegation was made under Section
8 (a) (1) of the Act, not 8 (a) (3).
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corine S. Alexander, January 3, 1948!
Annie Mae Jackson, February 12, 1948.
Annie Elizabeth Richardson, February 13, 1948.
Odessa Tarpkin, February 13, 1948.
Lillian Benefield, April 5, 1948.
(4) And thereby interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed them in Section 7 of the Act.
Counsel for the Respondent thereafter filed motions for a bill of particulars
of the complaint and to dismiss it. The motions were referred to a Trial
Examiner and on about April 6, 1949, Trial Examiner Irving Rogosin issued
orders granting the former motion in part and denying the latter, with leave
to renew at the hearing. At about the same time, the Respondent filed its answer
denying the commission of any unfair labor practices. The General Counsel
thereafter filed a motion for a bill of particulars thereof and furnished to
counsel for the Respondent the particulars required by Trial Examiner Rogosin's
order.
. Pursuant to notice, a hearing was held April 12-22, 1949,' at Chattanooga,
Tennessee, before the undersigned, Josef L. Hektoen, the Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel and the Re-
spondent were represented by counsel and the Union by its representatives.
All parties participated in the hearing and were afforded full opportunity to
examine and cross-examine witnesses and to introduce evidence bearing upon the
issues. At the opening of the hearing, the Respondent filed an amended answer,
a further motion for a bill of particulars, and an amended motion to dismiss.
The undersigned granted, in part. the motion for a bill of particulars and particu-
lars were later orally furnished by the General Counsel on the record. Included
in the motion was a motion to dismiss the complaint insofar as it alleged that
Lillian Benefield was discriminated against for the reason that no charge to such
effect had been filed. The motion was denied. Benefield was alleged to have
been refused reemployment by the second amended charge filed on August 25,
1948, in Case No. 10-CA-169. In the amended motion to dismiss, counsel for
the Respondent contended that because the names of Jackson, Richardson, and
Tarpkin were contained in the second amended charge, a copy of which accom-
panied the notice of hearing and complaint and upon which the latter was
"based," the complaint as to them should be dismissed inasmuch as their dis-
charges had occurred more than 6 months prior to the date of the filing of the
last charge. Timely charges covering all of the dischargees alleged to have been
discriminated against in contravention of the provisions of Section 8 (a) (3)
having been immediately served upon the Respondent, the motion was denied!
8 As amended at the hearing upon motion of the General Counsel.
4 The preparation of this Report has been most materially delayed by the too sanguine,
long-held hope and lively expectation that the parties would amicably compose their
differences.
s The charge in Case No . 10-CA-158 was filed on December 26 and served on Respond-
ent on December 31, 1947. A copy thereof accompanied the complaint. The charge in
Case No. 10-CA-169 was filed on January 16 and served on Respondent on January 21,
1948; it alleged the discriminatory discharge of Alexander . An amended charge was filed
on March 12 and served on Respondent on March 18, 1948; it alleged the discriminatory
discharges of Alexander , Jackson, Richardson , and Tarpkin . Second amended charges
were filed on August 25 and served on Respondent on August 28, 1948; It added the name
of Benefield to those alleged to have been discriminated against. A copy of this charge
accompanied the complaint . See Waterfront Employees Association of the Pacific Coast
(International Longshoremen 's and Warehousemen 's Union ), 90 NLRB 1021, 26 LRRM
1314.
TENNESSEE EGG COMPANY 855
Counsel also moved to dismiss all allegations respecting violation of Section 8
(a) (5) of the Act except those specifically contained in the charge in Case
No. 1Q-CA-158 (failure to comply with the provisions of Section 8 (d) (1) and
(2) of the Act), "in that any other allegations would charge unfair labor prac-
tices occurring more than 6 months prior to the date of the filing of charges
herein." The motion was denied.' Counsel further moved to dismiss all allega-
tions of the complaint antedating by more than 6 months December 26, 1947,
the date of the filing of the charge in Case No. 10-CA-158. The motion was
denied. A further motion was made to dismiss that portion of the bill of par-
ticulars furnished by the General Counsel alleging refusals to reinstate Armor,
Newsom, and Gurley because no charge was filed as to them. The motion was
denied.' Further motions to dismiss certain allegations of the complaint because
the acts complained of antedated the filing of the early charge by more than 6
months and to dismiss the allegations of the bill of particulars as to the three
employees named immediately above because they were not responsive to the
motion for particulars and because no grievances were filed as to them, were
likewise denied. The General Counsel's motion for a bill of particulars of the
Respondent's answer was denied! The undersigned also denied an oral motion
of counsel for the Respondent to dismiss the complaint in its entirety except as
to those allegations thereof alleging activities in violation of Section 8 (c) of
the Act.
At the close of the General Counsel's case-in-chief, counsel for the Respondent
moved to dismiss the allegations of the complaint respecting withdrawals from
the Union and interrogation of employees in the latter parts of 1946 and 1947.
The motion was denied. Counsel also moved to dismiss as to Armor, Newsom,
and Gurley. Ruling was reserved. On the following day, counsel for the
Respondent reiterated his motion as to them, and moved to dismiss the complaint
with respect to the allegations of refusal to bargain and soliciting withdrawals
from the Union. The motions were denied.
On the final day of the hearing, the General Counsel moved to amend the
complaint by adding thereto certain allegations based upon charges of violations
of the provisions of Section 8 (a) (4) of the Act, filed on that day. The motion
was denied. Motions by the General Counsel to amend the complaint in a
minor particular and to conform the pleadings to the proof in formal matters
were allowed. Counsel for the Respondent moved to dismiss the entire com-
plaint ; ruling was reserved and is made as hereinafter appears. No oral
argument was had at the close of the hearing, but briefs were thereafter
received from the General Counsel and counsel for the Respondent .9
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
9 See N L. R. B v. Itasca Cotton Manufacturing Company, 179 F 2d 504 ( C A 5), hold-
ing that Section 10 (b) of the Act imposes no limitation upon the issuance of complaints
in which charges were filed and served within 6 months after August 22, 1947, the effective
date of the amendments to the Act. Contra, Superior Engraving Company v. N. L R. B,
183 F. 2d 783 (C. A. 7) ; rehearing denied August 31, 1950.
' See Cathey Lumber Company , 86 NLRB 157.
8 See Columbus Manufacturing Company, Case No. 10-C-2056, Board order dated Novem,
ber 30, 1948.
9 The latter also filed a reply brief. Although reply briefs are not normally filed in
these proceedings , it, like the principal briefs of the parties , has had the close attention
of the undersigned.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT '
1. THE BUSINESS OF THE COMPANY
The Respondent, Tennessee Egg Company, is a Tennessee corporation main-
taining its principal place of business at Chattanooga, Tennessee,10 the only
operation herein involved. It is there engaged in the handling, processing, and
distribution of eggs, cheese, poultry, and related products. Its annual pur-
chases of produce and raw materials exceed $50,000 in value, some 50 percent of
which is shipped to it from points without the State of Tennessee. It annually
sells produce and finished products valued at more than $100,000, a small per-
centage of which is shipped by it to points without the State of Tennessee. The
Respondent admits, and the undersigned finds, that it is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, A. F. L.,
is a labor organization admitting employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent interferes with the Union's organizational campaign
The Union, by Local 600 thereof, began its organizational drive of the Respond-
ent's employees on September 19, 1946, when organizers began soliciting member-
ship applications at the plant gates. On October 22, the Union won a consent
election, 36 to 27, and on October 30, the Regional Director issued his consent
determination finding the Union to be the exclusive representative of the em-
ployees in a production and maintenance unit."
According to the undenied and credible testimony of employees Clara Jackson
and Willie Ruth Lott, Foreman Jones, on September 19 when union organizers
first appeared at the plant gates, warned the employees in the killing and dress-
ing room against meeting with them. The undersigned so finds.
The employees disregarded his admonition and many signed union applications
at the lunch hour on that day.
Later on the same day, according to the testimony of employees Charlie Mae
Gurley and Clara Jackson, Vice-President Cole appeared in the killing and
dressing room and asked the employees working there how many of them had
joined the Union. He received an answer by a show of hands. Cole denied
having done so. Both the employees who testified were still employed by the
Respondent at the time of the hearing, Jackson being chairman of the union
grievance committee having acted as such since 1946. Gurley's testimony was
convincing and that concerning other matters was corroborated as well. The
undersigned was particularly impressed by Jackson's demeanor on the witness
stand and he is unable to find, particularly in the light of developments here-
inafter related, that she fabricated Cole's question. Cole, although a not unpre-
possessing witness, is found to have forgotten an incident no doubt insignificant
to him. It is therefore found that the events transpired substantially as related
by Gurley and Jackson.
Employee Lillie Henderson credibly testified that Foreman Jones, immediately
after she had signed a union application, asked her if she had done so and why,
10 It also owns and operates a plant at Atlanta, Georgia, and a farm in Indiana
n Case No 10-R-2245.
TENNESSEE EGG COMPANY 857
adding that she should stick to President Carbaugh, that he was the one who
paid her, not the Union She answered that she had done so.
Employee Lillian Benefield credibly testified that Foreman Jones, after she
had joined the Union, told her not "to go with the union," but rather the Re-
spondent since it took care of her, that she should talk to the other employees
along that line, and that if the employees had consulted Carbaugh, they could
have achieved an increase in pay without the Union.
Employee Lucy Williams credibly testified that Foreman Jones, after she had
joined the Union, asked her if she had done so, that when she answered that she
had, he stated that be was surprised, and that when she answered that the
majority of the employees had done so, Jones "laughed and walked off on me."
Jones, on direct examination by counsel for the Respondent, testified that on
September 19, the first day of the Union's organizational campaign, the three
employees and employee Ezell Barnes asked him what to do about the matter
of joining, that he answered that they could do as they pleased, but admitted
that the "next day or so" he asked each of the four whether she had joined the
Union and that each answered in the affirmative. It is found that he spoke to
the four employees substantially as they testified.
Employee Odessa Tarpkin credibly testified that, on September 19, after she
had signed a union application, Jones led her aside, asked her if she had done so,
and when she answered in the affirmative, told her that she should "stick to" Car-
baugh and that if she joined the Union it would mean the end of eggs and chickens
at discounts and of Christmas bonuses. She replied that it did not matter,
whereupon Jones told her to inform employee Annie Richardson to the same
effect. Jones denied the conversation. He was not an impressive witness and
in view of his activities related above and hereinafter set forth, the undersigned
finds that the conversation took place substantially as testified by Tarpkin.
Former employee R. W. Stein, who signed a union application on Septem-
ber 19, credibly testified that on the same day while he was at work, Sales
Manager Woods told him that by having done so he was unfair to the Respondent
and that "the Company took care of you." He further testified that on the same
evening Jones told him much the same thing. Both Woods and Jones denied
the statements attributed to them. In view of the activities of Woods herein-
after related and the fact that Jones has been found to have been a less than
impressive witness, the undersigned, upon the whole record in the case, finds
that they spoke to Stein substantially as the latter testified.
About a week after she had, on September 19, signed a union application,
Foreman Jones called employee Mahalah Gurley, who had been ill, to the plant.
According to her testimony, he asked her if she had joined the Union and upon
receiving her affirmative answer, told her it was the wrong thing to do, that
the Respondent had been generous in giving its employees work, and when she
inquired as to returning to work, stated that things were dull and did not
suggest her return .12 Jones admitted asking Gurley whether she had joined
the Union, but denied the balance of her testimony. It is found that he spoke
to her substantially as she testified.
Employee Stein testified that, after a mid-October 1946 union meeting, he
heard a conversation between Foreman Jones and deceased employee Georgia
Langston, of whom more later, in which she told Jones of the date of the next
meeting, whereupon he told her that on that date he would cause the employees
to work past their usual quitting hour, to the end that they might be late to the
12 She was later the subject of a grievance filed by the Union and eventually was returned
to her job Her case is more fully discussed, tinfra.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting, that "that's the only way to break it up," and that at the time of the
next meeting, held about 2 weeks thereafter, Jones worked the employees later
than usual, thus causing those attending it to arrive tardily. This testimony
was not directly denied, and the incidents are found to have transpired
substantially as testified by Stein.
Sales Manager Woods testified that he was opposed to the Union and there-
fore, before the election, made it a point to interview the truck drivers, some five
of them, who were under his supervision, asking them "what they thought about
the union" adding, "You can join or not join; whichever you might prefer
to do." He explained that since he was personally opposed to the Union's
coming into the Respondent's plant, lie "naturally' 'desired to have knowledge
as to how the drivers felt about the matter and that he asked Stein "what he
thought about the Union, like I did the other boys."
A day or two before the election of October 22, President Carbaugh made
separate speeches to the Negro employees in the killing and dressing room and
the white employees in the egg room. In the former, he stated among other things
that if the Union "fell out" with another organization "and decided to call a
general strike or a sympathy strike-you would be forced to quit work .. . you
would be out of work on account of something neither you nor I was concerned
about." Further, that "if we were forced to pay higher wages than justified,
we would of course try to get it out of you in demanding more work out of you
in the course of a day." And finally: "Don't forget this, going into the Union
is not something you can be in today and out tomorrow. You will be in for
good as long as you work there. You will pay your $2.00 or more dues per
month from now on. There is no turning back."
It is found that the Respondent, through Foreman Jones, by his expression of
threat in warning the employees under his supervision against talking to the
union organizers at the plant entrance ; Vice-President Cole's conducting a ballot
to determine which of the employees in the killing and dressing room had
joined the Union ; Jones' questioning of employees Henderson, Barnes, Benefield,
Gurley, Williams, and Tarpkin as to their having joined the Union; the implicit
threat of reprisal to employee Stein by Sales Manager Woods and Jones; and
Woods' asking Stein and "the other boys" (all of the drivers) what they
"thought about the Union"" has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act." It is
further found that, by Jones' activities in conversation with Langston and
causing tardy attendance at a (probably) second union meeting, the Respondent
has similarly violated the same provisions of the Act. It is also found that
by President Carbaugh's statements to the Negro employees shortly before the
election to the effect that a strike by the Union would deprive them of their
jobs, that wage increases would result in a speed-up of the work, and that
once having joined the Union, they would be forced to remain members thereof
in order to retain their jobs, the Respondent also acted in violation of the
provisions of Section 8 (a) (1) of the Act 16
13 Woods was "frankly opposed to the Union " See N L R. B v. Minnesota Mining and
Manufacturing Company, 179 F. 2d 323 (C. A 8), enfg 81 NLRB 557.
14 See Standard-Coosa-Thatcher Company, 85 NLRB 1358. The record indicates that
Union Representative Clarence F Lawrence protested to Carhaugh respecting Jones'
questioning of the employees' membership in and attitude toward the Union and that Car-
baugh requested that Jones cease his activities. No notice, written or oral, of the
Respondent ' s request nor disavowal of Jones' acts was given the employees , however.
Under such circumstances the instruction to Jones cannot, as is hereby found, exculpate
the Respondent of the consequences of Jones' illegal activities ; Woods' were not mentioned.
15 As is liberally demonstrated by the record , Carbaugh , as is hereby found , was also
"frankly opposed to the Union ." See footnote 13, above.
TENNESSEE EGG COMPANY 859
B. The strike, the contract, and the truck drivers
After the consent determination was issued, contract negotiations between
the Respondent and Local 600 of the Union were entered into. An impasse as
to wages and union security was reached, and on November 8, 1946, the Union
struck the plant. On November 16, the parties entered into a 1-year contract
and on November 18, the striking employees returned to work.
The contract provided for seniority, arbitration of grievances, maintenance
of membership, and checkoff of dues, and contained detailed provisions re-
specting working conditions. It further set forth a wage scale, the accuracy
and application of which are in sharp dispute.
Five union truck drivers and one other union employee, Georgia Langston, did
not strike. The Respondent purported to have been apprehensive of disciplinary
measures by the union against the nonstriking drivers and a supplemental agree-
ment providing that those employees who had continued to work during the strike
might withdraw from the Union upon 5-day notification and "If they see fit to
withdraw from the Union, dues shall be paid to the Union for a period of one
year."
On November 18, the day upon which the employees returned to work, Presi-
dent Carbaugh, who admitted that he talked individually to all of the drivers
during the strike, caused them to be "notified" of the supplementary agreement
and individually told by him that they might withdraw from the Union, should
they so desire. According to the credible testimony of William E. Benton, one of
the drivers, he was informed, after he had applied for union membership, by
driver Ezra Frazier that Carbaugh wished to see him ; he interviewed Carbaugh
alone and was told by the latter that he (Benton) had the choice of joining or
not joining the Union. On November 18, Benton "went in there" (Carbaugh's
office again), once more at the call of Frazier, and according to his testimony
asked who had joined the Union. Carbaugh replied that none of the drivers had
done so 1G and informed him that he and the others could resign from the Union
and explained to him what to state in a letter to it to that effect. Benton received
paper from Carbaugh and wrote Lawrence, of the Union : "I wish to withdraw
my application for membership in your union." He also addressed an envelope
bearing the Respondent's return address and left the sealed letter with Carbaugh
whose office mailed it, also that of Langston, and those of the other drivers who
had applied for membership in the Union by consecutively numbered registered
mail. All drivers were given a simultaneous 10-cent increase in pay.
Shortly thereafter, Carbaugh gave the Union the Respondent's check for some
$144 representing 1 year's dues for the drivers and employee Langston.
The General Counsel contends that by its activities in aiding the withdrawals
from the Union as well as by unilaterally bestowing upon the drivers a higher
wage rate than that specified by the contract, and by itself paying the dues of
the withdrawn employees, the Respondent has acted in contravention of the pro-
visions of Section 8 (a) (1) of the Act.
The record is confusing as to the facts respecting the wage issue. When con-
tract negotiations were being conducted on November 15-16, 1946, the parties
appear to have worked from a copy of a contract in existence between the
Respondent and another local of the Union at the Atlanta operation of the
Company. Confusion in the final draft of the contract at Chattanooga resulted,
1e Driver Frazier, who testified to an experience with Carbaugh similar to that of Benton,
testified, on the other hand, that Carbaugh had informed him that he, Frazier, "was some-
how in the union." In any event it is clear that Carbaugh stressed to all drivers the
fact that they could withdraw from the Union by writing a letter to that effect to Lawrence.
0
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
according to witnesses for the Respondent, in an inadvertent inclusion therein
of the Atlanta wage rate. According to witnesses for the General Counsel, and
the latter's own position, no confusion existed, the wage rates appearing in the
contract were correct, and were those arrived at through bargaining between
the parties. Both the Respondent's representatives and those of the Union
purported not to have read the final contract. President Carbaugh's under-
standing of the wage terms was that all employees were to receive a 10-cent
wage increase ; that of Union Representative Lawrence that the rates were to
be governed by the terms of the contract. That instrument stated that "Truck
drivers shall be paid 55¢ per hour the first month of their employment and after
a period of thirty (30) days the rate shall go to 60¢ per hour, and after six
months shall be paid 65¢ per hour." The working copy of the Atlanta contract
indicates that rates should be 55 cents for beginners and 65 cents after 30 days.
Their 10-cent increase brought the drivers to 70 or 75 cents per hour and con-
stituted a deviation from the contract as executed. Lawrence explained that
he first learned of the larger payments in 1947, after the contract had expired,
when one of the drivers spoke to him in connection therewith.
From all of the evidence revealed by the record, particularly Lawrence's
acceptance without demur, of the check for a year's dues for the drivers, and
the fact that the supplementary agreement under which the payment was made
merely stated "dues shall be paid to the Union for a period of one year," with-
out specifying by whom the payment was to be made, the undersigned is per-
suaded and finds that by such payment the Respondent has not committed any
unfair labor practice.
The General Counsel contends that the six withdrawals, being caused by the
Respondent's unfair labor practices, were ineffective. The Union itself, how-
ever, as is shown by the record, acquiesced in the drivers' withdrawals, stating
that they were "scabs" and could be dispensed with. Nothing was said re-
specting Langston. Furthermore, the Union never recorded them as being
members of the organization Under all of the circumstances revealed by
record, it is concluded and found that the six withdrawals were made with the
Union's approval and that the Respondent's activities with respect thereto,
including the granting of the questionable wage increase, were not violative
of the provisions of the Act.
C. The events during the contract year prior to September 15, 1947
The complaint contains no allegation of a refusal to bargain antedating Sep-
tember 15, 1947. The undersigned therefore rejects the contention of the
General Counsel that the wage increase just described constituted a violation
of the provisions of Section 8 (a) (5) of the Act. Similarly he rejects the
contentions of the General Counsel that, during the major part of the contract
year, the Respondent, mainly through Carbaugh, did not bargain collectively
with the Union in the fashion contemplated by the Act. The record reveals
that a number of grievances were filed, were settled, that only one matter went
to arbitration, and that it was decided in favor' of the Respondent by the arbi-
trator. Among these matters was the case of Mahalah Gurley, referred to
above, who was reinstated with back pay of $59 shortly after the election. The
Respondent's records indicate that she thereafter ceased employment on Janu-
ary 12, 1947, on account of the prospective birth of a child. Her child was born
on May 28, 1947, and Gurley applied for reemployment late in September 1947,
was told by Foreman Jones that there existed no opening for her, later on more
than one occasion applied again with the-same result, and, together with Lois
Armor, who had taken leave for the same reason and without making written
TENNESSEE EGG COMPANY 861
application therefor as required by the contract, became the subject of a griev-
ance. The matter was settled on the basis that both should be reinstated when
and if needed by the Respondent, but as new employees without seniority.
Neither was called back to work by the Respondent.
The General Counsel complains that the failure by the Respondent to again
employ them, as well as Annie Ruth Newsom, a third employee alleged by the
General Counsel's bill of particulars to have been discriminatorily denied re-
instatement on account of union membership and activity, constituted unfair
labor practices within the meaning of the provisions of Section 8 (a) (1) and/or
(3) of the Act As to Newsom, the evidence reveals that she took a week's leave
of absence and stayed away for 31 days, a period longer than that permitted by
the terms of the contract under the circumstances. Newsom was denied rein-
statement upon her return and was the subject of a grievance which was settled
upon the same basis. The General Counsel contends that because some 14 new
employees were hired in the period June-December 1947, the Respondent's failure
to reinstate the 3 employees was discriminatory.
From all of the evidence revealed by the record, including the fact that no
persuasive evidence of antiunion bias in the three cases appears, that the Union
settled its grievances upon the basis of the employees' losing their employment
rights and did not take the matter to arbitration, and the fact there is no showing
of applications by the three for existing vacancies which were refused by the
Respondent in favor of nonunion workers, the undersigned is persuaded and
finds, that although the matter is by no means free from doubt, the record fails
to establish the allegations of the complaint as to Newsom, Gurley, and Armor.
It will therefore be recommended that it be dismissed as to them.
The General Counsel contends that certain allegedly discriminatory activities
of the Respondent caused the eventual resignation of employee Stein and
constituted his constructive discriminatory discharge. Stein testified, and Vice-
President Cole denied, that after Stein joined the Union, Cole ceased giving
him a lift toward his home after work and permitting his use of company trucks
over week ends. Cole explained that he had never refused Stein a ride and that
the latter himself owned an automobile. As to the truck, he explained that Stein
had been given permission to use one for the purpose of hauling certain concrete
blocks from the Respondent's premises to the site of a home Stein was building,
but that it had never'been kept out overnight, and that the Respondent's insurer
objected to such loans of property.
Stein, an old-time employee of varied activities and very strong union per-
suasion, well known to the Respondent, suffered a nervous breakdown which,
together with certain domestic difficulties, prevented his performing as much
work in 1947 as in the previous year. He was reluctant to perform some of the
rather menial tasks of which the Respondent considered him capable. At the
hearing, he complained of a precipitate falling off of hours of work extended him
by the Respondent. Documentary evidence demonstrates the partial validity of
his complaint," but as is hereby found, explanations therefor by witnesses for
the Respondent counteract the initial impact of the bare figures. Stein was a
rather unpredictable figure, whose appearance on the witness stand substantiated
at least some of the difficulties with which his Employer purported to have been
faced in the course of his latter tenure of employment. In May 1947 he resigned
his employment and at the time of the hearing was employed at a national
17 During the last 6 weeks of his employment, April 6-May 11, 1947, Stein 'earned 70•
cents per hour for 191/4, 51, 251/2, 461/2, 301/2, and 13s/4 hours, respectively He also.
received a final "bonus" check for $31 57 about the middle of May, the nature of which is-
not fully revealed by the' record He had previously worked as much as 73% hours a week.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cemetery as caretaker and gravedigger , an occupation which he testified he
greatly preferred to the allegedly more tedious and difficult tasks that had, been
his lot while in the employ of the Respondent. The Union filed no grievance
respecting Stein and the matter was ventilated for the first time at the hearing
herein. Again, although by no means free from doubt, the undersigned, upon
the entire record, is persuaded and finds that the Respondent cannot be found to
have behaved in respect to Stein in a way violative of either Section 8 (a) (1) or
(3) of the Act.'8
Union employee Lillie Henderson testified that before Labor Day of 1947,18
Foreman Jones spoke to her as she was at work in the plant and asked if she
were "going on with the Union . . . The Union ain't going to benefit you any
.. . Why don't you stick to the man that's paying you? That's Mr. Car-
baugh," and invited her, without her request, to resign from the Union by
writing a letter to that effect to Carbaugh forthwith. Employees Willie Ruth
Lott, Virgie Knox, Lillian Benefield, and Corine Alexander testified to much
the same effect respecting Jones' unsolicited advice respecting writing letters
to Carbaugh stating that they wished to "get out of" the Union, and his gen-
eral denigration thereof. Combined with his past activities, as found above,
and the extreme improbability of these employees having fabricated almost
identical stories out of whole cloth, the undersigned, having seen and heard
them testify, and also Jones, concludes and finds, upon the entire credible evi-
dence contained in the record, that he spoke to them substantially as they
testified. 20
On various dates, beginning on September 11, 1947, employees Rice and Ezell
Barnes, assisted by Foreman Jones, and employees Zenobia Thompson, Lois
Cuzzort, Ethel Edgeworth, Thelma Martin, Opal Pevehouse, and Mary Sharp,
assisted by Vice-President Cole, wrote letters to President Carbaugh stating
18 Further purported incidents respecting alleged discrimination were litigated . Alleg-
edly Foreman Jones, or his substitute , at times not specified , deprived union members of
the right to sing and laugh while at work. This was denied by witnesses for the Respond-
ent and is not considered to warrant further discussion . There is further testimony that
the same members of management denied union members the right to eat luncheon on the
second story of the plant , according to the record , a curiously unpleasant place. The
record establishes that most employees preferred to take luncheon outside the plant, at
least during clement weather , and the incident , if any, is also considered and found to
be unworthy of further discussion . There is further testimony that during a week in
February 1947, certain union employees "missed" afternoon rest periods . Suffice it to
say that the matter was settled between the Union and the Respondent and no further
complaint was heard . The undersigned considers that these complaints , if that be the
proper name for them, were of a rather unimportant nature, especially during the term
of a collective bargaining contract . He accordingly , and still without some doubt as to
their validity, nevertheless finds that the record, taken as a whole, does not justify
nor support any finding of unfair labor practices by the Respondent in connection therewith.
19 Henderson and employee Rosetta Rice testified that Jones , during the contract term,
indicated to them that he knew what had transpired at meetings of the Union. Jones
categorically denied their testimony. Jones was the sort of person who might well have
had a "source " in a matter of this kind , and it is found , from the credible evidence
revealed by the record as a whole, that he made the statements attributed to him sub-
stantially as Henderson and Rice testified.
20 The General Counsel also contends that certain statements of Jones allegedly made
to employee Rice respecting other employees, to the effect that "if they didn't obey the
rules," certain employees would be discharged, was violative of the provisions of the Act.
A close reading of the record reveals that the incident was not clearly recalled by the wit-
ness, nor was the further contention that Jones stated, in what is alleged to have been a
threatening manner, that many other employees were leaving the Union . In view of
Jones' denial thereof and despite his having been previously discredited in another con-
text , it is found that the Respondent did not act in violation of Section 8 (a) (1) of the
Act in this regard. ,
TENNESSEE EGG COMPANY 863
that they desired to resign from the Union "when the contract is tip" or "as
soon as possible." The General Counsel contends that the resignations were
inspired by the Respondent. From the record as a whole, however, it appears
that the movement was spontaneous and that Jones and Cole merely answered
the employees' questions as to how they should go about withdrawing from the
Union There being no compelling proof that the resignations were sponsored
or initiated by the Respondent, the undersigned, again with some hesitation,
reaches the conclusion that it did not thereby violate the provisions of the Act.
D. The alleged refusal to bargain collectively
1. The appropriate unit and representation by the Union of a majority therein
The complaint alleges and the Respondent's answer admits that the consent-
election unit is appropriate.
It is found that,
All production and maintenance employees, except for office and clerical
employees, sales employees , guards, supervisors of the rank of foreman
or higher and all other supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of em-
ployees or effectively recommend such action 21
constitute a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
As set forth above, on October 30, the Regional Director issued his consent
determination that the Union was the exclusive representative of the employees
within the appropriate unit. It is found that the Union was on October 22,
1946, the date of the election, and continued to be, as hereinafter more fully
set forth, their representative for purposes of collective bargaining, within the
meaning of Section 9 (a) of the Act.
2. The alleged refusal to bargain
The complaint alleges the first refusal to bargain to have occurred on Sep-
tember 15, 1947, when the Union wrote the Respondent outlining certain proposed
changes in the contract and requesting a meeting for the purpose of discussing
them. On October 11, the Respondent replied stating that it doubted the Union's
majority.
On October 3, counsel for the Respondent had written the Regional Director
respecting the matter, and on October 27 the Respondent filed an employer pe-
tition for certification naming Local 600 and docketed as Case No. 10-RM-2.
On October 30, the Regional Director notified Local 600 thereof, pointed out that
it had not complied with the filing requirements of Section 9 (f), (g), and (h) of
the Act, and gave it 10 days in which to do so. The Union did not come into
compliance, and on November 18 the Regional Director dismissed the petition.
No appeal was taken from this ruling.
The undersigned has caused an investigation to be made of the compliance
records of the Board and has been administratively advised that Local 600 first
came into compliance on December 1, 1947 22
21 The quoted matter appears in the consent determination. Present Board practice
describes supervisory employees by the phrase "supervisors as defined by Act." The defini-
tion of "supervisor" appears in Section 2 (11) of the amended Act.
n The General Counsel states in his brief that compliance occurred on November 20, 1947.
The date given above is found In his reply brief, counsel for the Respondent appears to
contend that the Union's compliance status is a matter litigable by the parties. The Board
has often held to the contrary. See e. g., Rubin Brothers Footwear, Inc, 91 NLRB 10,
26 LRRM 1454 , and cases cited therein.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent did not raise the question of the Unions compliance status
during the period involved, but did so in its brief in this proceeding Adherence
to the Board's holding in the Andrews Company case, 87 NLRB 379, 25 LRRM
1117, compels the conclusion that the Respondent was under no duty to bargain
with the Union after the effective date of the Act, August 22, 1947, until com-
pliance was achieved on December 1, 1947.3'
By the latter date, the Union's majority status had deteriorated and the con-
clusive presumption of majority representation for a period of at least 1 year
after certification no longer obtained 24 It is quite possible that the Respondent's
refusal to bargain with the Union on September 15, 1947, and thereafter, may
have adversely affected the Union's majority status. Under the Andrews hold-
ing, however, the Union has no redress against what might otherwise be found
to have constituted unfair labor practices by the Respondent.
The record clearly demonstrates that on and after December 1, 1947, the date
of the Union's compliance, it no longer was the majority representative of the
employees25 Thus the Respondent owed it no duty to bargain. It will therefore
be recommended that the allegations of the complaint as to the Respondent's
refusal to bargain be dismissed.
E. Carbavgh's Christmas speech
On or about December 15, 1947, Carbaugh addressed the killing and dressing
room employees. He stated that the Union was extinct, that a 5-cent increase in
pay was being granted them by the Respondent, that they would be given a $10
Christmas bonus, and that if any of them went on strike in the future, that act
was tantamount to being discharged '
With matters in the posture reflected above, there is no question but that the
unilateral increase cannot be found to have been violative of the Act. However,
the threat in respect of a strike cannot be so written off Such threat consti-
tuted a violation of the provisions of Section 8 (a) (1) of the Act .2' It is obvious
that an unfair labor practice strike might occur. Under such circumstances,
the Respondent would forfeit "the right to permanently replace the strikers." "
It is therefore clear, and the undersigned finds, that Carbaugh by his statement
that any employee who struck would be discharged exceeded the bounds of
peimissible expression as provided by the terms of the Act.
F. The alleged discrimination after the expiration of the contract
Employee Corine Alexander began work for the Respondent in January
1945 under Foreman Jones. She was discharged on January 3, 1948, by Acting
23 The undersigned is of the opinion that the rationale and conclusion expressed by the
two dissenting members of the Board in the Andrews case, now buttressed by the decision
of the court in West Texas Utilities Co , Inc v N L R B , 184 F 2d 233 (C. A. D C ),
reaches a more desirable result However , absent any change in Board policy , the under-
signed deems himself bound by the Andrews doctrine
24 See a g., West Fork Cut Glass Company, 90 NLRB 944, 26 LRRM 1302.
25 As of November 9, 1947 , even including the 8 withdrawn employees, the Union
mustered only 34 members while the nonunion employees numbered 36 The General
Counsel contends that the truck drivers should be considered out of the unit . The basis
for the contention is obscure They were included in the Atlanta unit He also specifies
several other persons as to whom there is question of their appropriately being in the
unit . So far as the undersigned can ascertain from the record , all of those who are
sought to be excluded , voted , of were entitled to Note, in the election Furthermore, there
is very grave doubt that his claims as to their capacities are justified The question
needs no further elaboration The record is f clear . The Union had lost its majority
representation status.
River Falls Co-Operative Creamery, 90 NLRB 257 , 26 LRRM 1208.
2' Old Town Shoe Company , 91 NLRB 240 , 26 LRRM 1479.
TENNESSEE EGG COMPANY 865
Foreman Gordon Sisk who was in charge of the killing and dressing room during
Jones' illness. In April 1947 through the Union, of which she was an early
member, she contrived to get onto the day shift. She was shortly placed in the
task of "hanging" chickens, a process involving reaching into a "battery" con-
taining live chickens, withdrawing them therefrom, and hanging them on
shackles on a moving conveyance. There is much conflicting and rather technical
testimony as to how many chickens a single operator could or should be able to
hang. It appears, and is found, from the record as a whole, that the Respondent
asked that Alexander perform a normal one-operator job. On January 2, 1948,
President Carbaugh, who had had information that Alexander was not doing
her best, nor the normal amount of work expected of her at her position, warned
her that she should do so. She performed satisfactorily for the remainder of the
day, but on the following morning she again performed in a too relaxed manner.
Acting Foreman Sisk testified that she simply took "her own good time in
[turning a battery around] . . . and skip fifteen' shackles where she would have
skipped four or five . . .
The evidence revealed by the record is not altogether satisfactory, but the
total impact thereof is that Alexander was simply not performing what has been
found to be her required task on the date of her discharge. The undersigned
is fully aware of the futility of any endeavor to establish minimal rates of
production for employees of varying ability and desire to do their best. The
record, however, clearly demonstrates that Alexander was definitely not per-
forming as she should have on the day of her discharge. She told Sisk, accord-
ing to his testimony which is credited, that President Carbaugh to the con-
trary notwithstanding, she simply would not "hang" three chickens and "skip"
one shackle, a rate of activity hereby found to have been properly exacted of her.
Sisk thereafter furnished her assistance "to get the production out."
On a report from Vice-President Cole, President Carbaugh, having been
telephoned at his home, directed that Alexander be discharged. That action
was taken forthwith. The undersigned is compelled to the conclusion that,
while Alexander was an excellent worker during most of her tenure, on this
occasion she deliberately refused to perform the work that has been found
justifiably to be expected of her, and that she thereby sacrificed her being
entitled to her position, insofar as the Act is concerned. In fine, it is found that
she 'was discharged for cause.
Employee Lillian Benefield, also an early union member, was employed by the
Respondent in 1941, and became singer of chickens. She also performed other
work from time to time. In April 1948 the Respondent abolished her job. It
installed an automatic, gas-operated singeing operation. Benefield was laid
off on April 5, 1948. The evidence, taken as a whole, amply demonstrates, as
is hereby found, that Benefield was unwilling or unable to take other jobs in
the plant and that, while they were in part filled by new employees after her
departure, she was not, on account of comparative inefficiency, available there-
for. It is found, upon the total record, that the Respondent did not discrimi-
natorily discharge Benefield.
Employees Annie Elizabeth Richardson, Annie Mae Jackson, and Odessa Tarp-
kin, all union members, were discharged because of the improper punching of
Richardson's time card by Jackson, and Tarpkin's sympathetic resignation.
A flood of the river on the banks of which Richardson lived took place on
February 12, 1948. On that morning Jackson, as she testified, punched Richard-
son's time card when work began. The evidence demonstrates that she did so,
not in error, but with purpose. She was indebted to Richardson for assistance
943732-51-56
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in her work in which she was handicapped by apparent illiteracy , did not reveal
the alleged error until about noon of the same day when a delegation of the
Respondent's officials became interested in the situation , and employee Lott,
who was also informed of Richardson 's necessitous absence, failed to report
the fact to management on that day . The Respondent discharged Jackson for
the improper card punching on February 12, 1948 Z8
Having investigated the matter , and having Jackson's belated confession of
alleged error , the Respondent 's management determined to discharge Richard-
son on the following day. It did so, and as a consequence , employee Tarpkin
resigned . There is much testimony respecting Tarpkin's quitting her job, the
General Counsel taking the position that she did not, but was discharged for
discriminatory reasons. Suffice it to say that , when given a separation slip
stating "voluntarily quit," she made no protest respecting it to Vice-President
Cole, who accepted her resignation.
These discharges , while suspicious , appear to the undersigned to have been
based upon cause. The Union had disintegrated in November or December of
1947. The General Counsel contends that the five early 1948 discharges con-
stituted a sort of "mopping-up" operation by the Respondent against the Union.
The undersigned cannot agree . There is no proof to that effect and there
appears to have been , as has been found, due cause for the discharges29
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in Section III, above , occurring
in connection with the operations of the Respondent described in Section I,
above, have a close, intimate , and substantial relation to trade, traffic, and
commerce among the several States , and tend to lead, and have led, to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in cer-
tain unfair labor practices within the meaning of the Act, it will be recom-
mended that the Respondent cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , the undersigned makes the following :
CONCLUSIONS OF LAW
1. Local 600 , Amalgamated Meat Cutters and Butcher Workmen of North
America, A. F. L., and Amalgamated Meat Cutters and Butcher Workmen of
North America , A. F. L., are labor organizations within the meaning of Sec-
tion 2 ( 5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exer-
cise of rights guaranteed them by Section 7 of the Act , the Respondent has
28 Employees were permitted to punch cards for others present in order to save time
during crowded conditions of ingress and egress , but it was a dischargeable offense to do
so for an employee who was not at the plant.
' The record shows that certain witnesses were asked by counsel for the Respondent or
officials thereof, at prehearing interviews whether they were , or had been , members of the
Union Apparently the General Counsel contends that such questioning constituted an
infringement of their rights under the Act. The undersigned cannot agree It appears
to him that such questioning , under the circumstances , was justified and that it did not
extend beyond permissible activity in preparation for the hearing herein.
CONOVER MOTOR COMPANY 867
engaged in and is engaging in unfair labor practices , within the meaning of
Section 8 ( a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 (6) and ( 7) of the Act. ,
4. The Respondent has not violated the provisions of Section 8 (a) (3) and
(5) of the Act.
[Recommended Order omitted from publication in this volume.]
CONOVER MOTOR COMPANY and LODGE No. 750, INTERNATIONAL ASSO-
CIATION OF MACHINISTS . Case No. SO-CA-126. March 20, 1951
Decision and Order
On January 23, 1951, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, 'the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Houston, Murdock, and Styles].
The Board has considered the stipulation entered into by the parties,
the Intermediate Report, the exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions :
1. The Trial Examiner found that the Respondent is engaged in
commerce within the meaning of the Act.- The Respondent has ex-
cepted to this finding and contends that it is not so engaged. The
record shows, and the Respondent admits, that it has a dealer agree-
ment with Chrysler Corporation. Under the terms of this agreement,
the Respondent is made a "Direct Dealer" for Chrysler and Plymouth
automobiles in Colorado Springs, Colorado.2 It purchases these auto-
mobiles from the manufacturer in Detroit.
The Respondent has also excepted to the Trial Examiner's charac-
terization of this dealer agreement as a "franchise." We do not
consider the characterization of the dealer agreement controlling.
What is controlling is the fact that by virtue of its dealer agreement,
'The Trial Examiner, in the Intermediate Report , sets forth in detail the pertinent
commerce facts relating to the Respondent ' s business
2 The agreement gives the Respondent exclusive rights with respect to the sale of Chrysler
automobiles and nonexclusive rights with respect to the sale of Plymouth automobiles
within a limited geographical area
93 NLRB No. 145.