Superior Lime & Hydrate Co.

National Labor Relations Board - Board Decisions

Jan 23, 1943

46 N.L.R.B. 1299 (N.L.R.B. 1943)

In the Matter of SUPERIOR LIME & HYDRATE COMPANY AND W. F.
SCHAEFER, TRUSTEE and LOCAL #149, INTERNATIONAL UNION OF
MINE, MILL & SMELTER WORKERS
Case No. C-2359.Decided January 23 , 1943
Jurisdiction : limestone mining and processing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: threats of physical violence ; statements
that respondent would not employ members of union ; ordering members of
union off property ; warning employees to cease organizational activities on
behalf of union.
Discrimination: refusal to reinstate two strikers ; bad faith evinced by respond-
ent's failure to give adequate reasons for its refusal.
Remedial Orders : cease and desist order, offer of reinstatement, and award
of back pay, directed jointly and severally against company and trustee
although unfair labor practices were committed by company prior) to time
it was adjudicated a bankrupt, when both were made parties and participated
in the hearing.
DECISION
AND
ORDER'
On October 5, 1942, the Trial Examiner filed his Intermediate
Report in this proceeding, finding'that the respondent company had
engaged and was engaging in certain unfair labor practices affecting
commerce, and recommending that the respondents cease and desist
therefrom and take certain affirmative action designed to effectuate
the policies of the Act, as set forth in the copy of the Intermediate
Report annexed hereto. Thereafter the respondents filed exceptions
to the Intermediate Report and briefs in support of their exceptions.
During the hearing the Trial Examiner ruled upon various motions
and upon objections to the admission of evidence. The Board has
'reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the respond-
ents' exceptions and briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations' made
I See, as to propriety of the order as against respondent Superior Lime & Hydrate Com-
pany, ,Southport Petroleum Co. V. N. L. R. B., 1942, 315 U. S. 100.
46 N. L. R. B., No. 159. 1
1299
1300 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Trial Examiner in his Intermediate Report, with the excep-
tions, modifications and additions set forth below :
- 1. The Trial Examiner set forth in his Intermediate Report the
testimony of T. C. Lee that sometime after the strike Bridgewater,
in the presence of, several of the respondent company's employees,
threatened to kill Joshua Led, and-accused him of being the cause
of the strike ; the Trial Examiner failed, however, to credit T: C.
Lee's testimony in this regard on the ground that it was not cor-
roborated by others alleged to have been-present at the time. In this
respect we believe the Trial Examiner erred. Bridgewater testified
that he did not own a gun, and "made no, threats," but did not specif=
ically deny Lee's testimony as to this incident. As to lack of cor-
roboration of T. C. Lee's testimony, there is no reason to believe that
Board counsel's failure to examine Mims Alexander (said by Lee to
have been present) on this point was other than inadvertent.
Joshua Lee, another witness to' the'. episode, was not employed by the
respondent trustee at the time of the hearing, and the location of his
other-employment does not appear. Sykes was present on one of the
occasions when Bridgewater was ' alleged by Lee to have flourished
a gun and adopted a threatening attitude toward employees'_ gathered
at the depot; but it does not appear that he was present on the par-
ticular day when the threat to Joshua Lee was alleged to have been
made. Moreover, we note that Bridgewater's general denial that he
had uttered threats ,was not corroborated by his daughter, who was
with him on this occasion. No reason appears for disbelieving Lee's
testimony as to this threat, inasmuch as ' the - Trial Examiner has
credited him, not only generally, but as to a similar incident, without
corroboration and against Bridgewater's general denials.2 The
record demonstrates Bridgewater's readiness to employ threats 'of
violence as a means of interfering with the employees' exercise of the
rights guaranteed in the. Act. On the entire record, we find that
Bridgewater threatened to kill Joshua Lee- and accused him of being
the cause of the strike as testified by T. C. Lee, and that the respond-
ent company, hag thereby, interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act. ,
2. The Trial Examiner credited Lee's testimony that on two other
occasions Bridgewater flourished a gun at employees gathered at
the depot, and this testimony is corroborated by that of Sykes. The
Trial Examiner concluded, however, that these • acts did not con-
stitute a violation of the Act, on the ground that there was no in-
dication that they we induced 'by the, union activity of the em-
2 Cf. Intermediate Report, page 4, line 45, to page 5, line 3.
SUPERIOR LIME & HYDRATE COMPANY' 1301
ployees; and he 'found that the acts in question merely reflected'
Bridgewater's attitude toward his Negro employees. We ,do/ not be-
lieve that Bridgewater would have acted in the manner described to-
ward his employees, regardless of their race, had they not engaged
in some activity which had aroused his resentment; and, in view of
the violent hostility previously displayed by Bridgewater toward
these employees because of their union activity, as demonstrated
elsewhere in the record, we find that he menaced the employees with
a gun as described by Lee and Sykes in order to intimidate the em-
ployees and deter. them from supporting the Union or engaging in
other concerted activity. We find that by these acts on the part of
Bridgewater, the respondent company has interfered with, re-
strained, and coerced its employees in the exercise. of the rights
guaranteed in Section 7 of the Act.
' 3. For the same reasons as those stated in paragraph 2 above, the
Trial Examiner also failed to make any finding as to the evidence
that Bridgewater attempted to strike Sykes with his automobile.
Sykes testified that a few days after the incidents at the depot Bridge-
water, driving a car, met him as he was walking along the road, and
turned the car out toward him so 'far that both wheels were off the
road, so that the car brushed Sykes and, if Sykes had not jumped out
into the weeds; would have driven over him. Bridgewater denied the
truth of this testimony. Sykes is a credible witness and, like the
Trial Examiner, we find Bridgewater's testimony generally to be un
convincing and unreliable. The record shows that Bridgewater knew
of Sykes' union activities and repeatedly displayed hostility toward
him on this account. We find that Bridgewater attempted to strike
Sykes with his automobile, and that he did so in reprisal for Sykes'
activities on behalf of the Union. We further find that the re-
spondent company has thereby interfered with, restrained, and, co-
erced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
4. The Trial Examiner found that the respondent company was not'
acting in good faith in advancing the reasons it did for refusing to
reinstate Alexander. He based this conclusion largely upon his find-
ing that Alexander gave his true age when he first applied for employ-
ment with the respondent company in October 1940. We agree with
the Trial Examiner's findings in this regard. In 'considering whether
the respondent company was acting in good faith, we have also given
consideration to the patently false testimony of Bridgewater con-
cerning the manner in which he claimed to have learned of Alexander's
true age. Bridgewater stated that he learned Alexander's true age
when it became "common talk" among the men in town that Alexan-
der had not registered for the draft, and had changed his age from 21
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the true one of 18 in order to avoid doing so. Bridgewater testi-
fied that he first heard this talk "back when they started drafting
men." When reminded that' registration for men over 20 had taken
place in October 1940, a few weeks after Alexander had first been
employed, Bridgewater stated that he referred to "the last registra-
tion when they wanted boys of ' 18 to 21." When Board counsel
pointed out that a change in Alexander's age would not have saved
him from participating in such a registration, Bridgewater again re-
verted to the 1940 draft, then stated that he could not say when he-
first heard talk of an attempt by Alexander to avoid registering, and
that he did not "pay any attention to it"; and finally reverted again.
to the position that he referred to a registration of men from 18 to 21
and that he had heard of Alexander's failure to register after April 1,.
1941, the date of the strike.
5. The inference that the respondent company's real reason for
refusing to reemploy Alexander was its resentment of the latter's
union activities is further supported by the inconsistency of the rea-
sons which it advanced at various times to justify its rejection of
Alexander. When Alexander first applied for reinstatement, Super-
intendent Anderson told him that he "looked too young" to fire a kiln,
although Alexander had always previously performed this work for
the respondent company. Two weeks later, Anderson appeared to
have abandoned his doubts as to Alexander's ability to perform the
work in question, and gave as his reason for not employing him that
the company was "slow-firing," stating that if business picked up he
would put Alexander back to work. It was sometime after this that
the respondent company for the first time notified the Union of its
alleged policy against hiring men under 21, in order to be on the,
"safe side" of a State law restricting employment in quarries to rnen:
of 19 or over, Alexander's then age.3
ORDER
Upon the basis of the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to, Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
hereby orders that- the respondent, Superior Lime Sc Hydrate Com-
pany, Pelham, Alabama, and its officers, agents, successors, and as-
signs; and the respondent, W. F. Schaefer, Trustee, and his officers,
agents, successors and assigns, jointly and severally, shall:
1. Cease and desist from :
s The last reason advanced by the respondent company does not appear to be related at
all , to Andeison's first statement to Alexander , that he looked too young to be a fireman,
which seems to have referred only to Alexander's possible physical incapacity to perform
the work in question
SUPERIOR LIME & HYDRATE COMPANY 1303
(a) Discouraging membership in Local #149, International Union
of Mine, Mill & Smelter Workers, affiliated with the Congress of In-
dustrial Organizations, or in any other labor organization of its
employees, by discriminating in regard to hire and tenure of employ-
ment or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor, organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed 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 will
effectuate the policies of the Act :
(a) Offer to Mims Alexander and Al Sykes immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges;
(b) Make whole Mims Alexander and Al Sykes for any loss of
pay they may have suffered by reason of the discrimination against
them, by payment to each of them of a sum of money equal to that
which lie normally would have earned as wages during the period
from November 1, 1941, to the date of offer of reinstatement, less
his net earnings during such period;
(c) Post immediately in conspicuous places throughout the plant
at Pelham, Alabama, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to the employees
stating : (1) that the respondents will not engage in the conduct
from which they are ordered to cease and desist in paragraphs 1 (a)
and (b) of this Order; (2) that the respondents will take the
affirmative action set forth in paragraphs 2 (a) and (b) of this
Order; and (3) that the respondents' employees are free to become
or remain members of Local #149, International Union of Mine,
Mill & Smelter Workers, affiliated with the Congress of Industrial
Organizations, and that the respondents will not discriminate against
any employees because of membership or activity in that or any other
labor organization ;
(d) Notify the Regional Director for the Tenth Region, in writing;
within ten (10) days from the date of this Order, what steps the
respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent company and/or
the respondent trustee have engaged in unfair labor practices within
the meaning of Section 8 (1) of the Act by questioning employees as
to who was active in the Union, spying on union meetings, and break-
ing up union meetings.
1304 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
INTERMEDIATE REPORT
Mr. William M. Pate, for the Board. -
Mr. Needham,A. Graham, Jr.. of Birmingham, Ala., for the respondent.
Mr. C., TV. Taylor, of Birmingham, Ala., for the respondent trustee.
Mr. Alton Lawrence and' Mr. Jesse Doster, of Bessemer, Ala., for the 'Union
STATEMENT OF THE CASE
Upon an amended charge duly filed by Local #149, international Union
of Mine, Mill & Smelter Workers, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Acting Regional Director for
the Tenth Region (Atlanta, Georgia), issued its complaint dated August 7,
1942, against Superior Lime & Hydrate Company, Pelham, Alabama, -herein
called the respondent, and W. F. Schaefer, Trustee, Birmingham, Alabama,
herein called the respondent trustee, alleging that the, respondent and/or the
respondent trustee had engaged in and were engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint and amended charge accompanied by notice
of hearing were duly served upon the respondent, the respondent trustee, and
the Union.
With respect to the unfair labor practices, the complaint alleged in substance :
(1) that the respondent on or about October 15, 1941, refused and at all times
since that date the respondent and/or the respondent trustee have refused to
employ Henry Toney, Mims Alexander,' and Al Sykes because of their mem-
bership in and activity on behalf of the Union; and (2) that the respondent
and/or the respondent trustee by their officers and agents have at all times since
January 1, 1941, (a) warned employees to refrain, from joining or remaining
members of the Union, (b) threatened employees with discharge or other dis-
ciplinary measures if they joined or remained members of the Union, (c)
questioned employees about union members, spied upon and broke up union
meetings, (d) made derogatory statements to employees concerning the Union
and its representatives, (e) stated to employees that the Union would not bene-
fit them and would cause, them to lose their jobs, (f) urged and persuaded
employees by physical threats not to join the Union, and (g) attacked em-
ployees and threatened them with physical violence because of their union
membership.
On August 18, 1942, the respondent filed its answer to the complaint, con-
testing the jurisdiction of the Board for the reason that on February 27, 1942,
the respondent was adjudicated a bankrupt by the District Court of the United
States for the Southern Division of the Northern District of Alabama, and that
all the property and assets of the respondent had been taken from its possession
under decree of said court and that the respondent had not since engaged in any
business . Without waiving its objection to the jurisdiction of the Board the
respondent denied the allegations of the complaint that it had committed any
of the alleged unfair labor practices. On August 19, 1942, the respondent' trustee
filed his answer to'the complaint, likewise contesting the jurisdiction of the
Board by reason of the fact that. the respondent trustee had been appointed
i
I Sometimes referred to in the record as Will Alexander.
SUPERIOR LIME & HYDRATE COMPANY 1305
trustee in bankruptcy of the respondent's estate and that the respondent trustee
was now operating the business of the bankrupt as trustee in bankruptcy under
appointment by and direction of the said District Court. The respondent trustee
denied all knowledge of or the commission of any of the alleged unfair labor
practices. -
Pursuant to notice, a hearing was held on August 24 and 25, 1942, in Briming-
ham, Alabama, before the undersigned, the Trial Examiner duly designated by
the Acting Chief Trial Examiner. The Board, the respondent, and the respondent
trustee represented by counsel, and the Union by its international representatives,
participated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses and to introduce evidence bearing on the issues was afforded
all parties. '
Counsel for the respondent and the respondent trustee appeared specially at
the hearing to contest the jurisdiction of the Board and moved at the outset to
quash or stay the proceeding on the grounds that the respondent had been
adjudicated a bankrupt on an involuntary petition in bankruptcy, and the re-
spondent trustee had been appointed trustee by the Bankruptcy Court subsequent
to the commission of the alleged unfair labor practices. The motions were denied.
The respondent trustee's motion for a ruling to exclude the witnesses was granted
by the undersigned. At the conclusion of the Board's case counsel for the Board
moved to strike from the complaint the name of Henry Toney as one of the em-
ployees whom the respondent allegedly refused to reemploy. The motion was
granted. The undersigned granted without objection of opposing counsel, the
motion of the Board's counsel to conform the pleadings to the proof as to minor
matters. Decision was reserved on the motions of the respondent and the re--
spondent trustee toldismiss the complaint. All pending motions are now denied.
Pursuant to leave, counsel for the respondent trustee filed a brief. The Board,
the respondent, and the Union did not file briefs with the undersigned.
Upon the entire record thus made and from his observation of the witnesses,
the undersigned makes, in addition to the foregoing, the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS "
The respondent, Superior Lime & Hydrate Company, is an Alabama corpo-
ration organized in 1923, having its principal office and place of business at Pel-
ham, Alabama, where it is engaged in the mining of limestone and the processing
of such limestone into lime. During 1940 the respondent's sales amounted to
$36,600.95, approximately 25 percent of its finished products being sold and
shipped to points outside of the State of Alabama., In 1941, the respondent pro-
duced and shipped 23,495 barrels of lime, approximately 10 percent of which
was sold and shipped to points outside the State of Alabama
On February 23, 1942, involuntary proceedings in bankruptcy were instituted
against the respondent and on February 27 the respondent was adjudicated a
bankrupt. On the same day W F. Schaefer was appointed receiver and on March
30, 1942, trustee in bankruptcy. Since taking possession on.February 27, 1942,
and down to July 1942, Schaefer as receiver and trustee produced and shipped
20,843'barrels of lime of which approximately 2% percent was sold and shipped
to points outside the State of Alabama. Thelprincipal customers of the respond-
ent trustee are located in Alabama and include among others the Reynolds Metal
i Tlie facts .found herein are based in part upon a stipulation entered into between counsel
for the Board, the respondent, and the respondent trustee.
1306 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
Company, Aluminum Company of America, Sloss-Sheffield Steel and Iron Co,
Republic Steel Corporation, and the Tennessee Coal, Iron and Railroad Company.
II. THE ORGANIZATION INVOLVED
International Union of Mine, Mill & Smelter Workers, Local #149, affiliated
with the Congress of Industrial Organizations, is a labor organization which
admits to membership employees of the respondent.
III THE UNFAIR LABOR. PRACTICES
A. Background
In 1933, the Union, while affiliated with the American Federation of Labor
carried on an extensive organizational campaign among the employees of lime
plants in the vicinity of the respondent's place of business. A general strike was
called and the Union attempted to stop work at the respondent's plant by induc-
ing its employees to join the strike. Some of the employees were assaulted and
union leaders were subsequently indicted. Henry G. Bridgewater, the respond-
ent's president, "broke" the Union's organizing drive by warning the employees
not to join the Union and by further warning those who bad joined to cease
paying their dues.
Again in 1937 the Union' tried to organize the respondent's employees. As
in 1933, Bridgewater interfered with this campaign by warning an employee,
Al Sykes, not to leave the plant for the purpose of paying dues, threatening hint
with physical violence if he did so and stating that lie would lose his job if his
-wife paid his dues.' I
B Interference, restraint, and coercion
On April 1, 1941, all of the respondent's employees stopped work because of
the respondent's inability to meet its pay roll and refused to return to work
when ordered to do so by Bridgewater, demanding that they first be paid. It
appears from the uncontradicted testimony of Jesse Doster, international rep-
resentative of the Union, that a day or two before this event, the employees
had obtained union application cards. When the employees refused to work,
Bridgewater demanded to know who caused the strike and was told by one
of the employees that it was not a strike but a stoppage of work to force
payment of wages- that were due. According to John Wallace, respondent's
witness, the employees said that they "wanted to jine" the Union. Al
Sykes testified for the Board that- Bridgewater thereupon ordered the men
off the property, threatened to put them in jail, and stated that there was no
need for a union and he was not "going to have the union there." Sykes'
testimony was corroborated by T. C. Lee who stated he was present on April
1. Bridgewater denied Lee's testimony, and stated that Lee was not on the
property on April 1, having quit a few days before. The respondent's pay-roll
record for the 2 weeks ending March 31, 1941, indicates that Lee was not an em-
ployee during that period. Nevertheless, in view of the fact that a stoppage
was called on April 1, the undersigned is convinced and finds that Lee was
8It is not clear from the testimony whether the Union was affiliated with the American
Federation of Labor or Committee for Industrial Organization at this time. Subsequently,
this Union did affiliate with the Committee for Industrial Organization.
4 The findings concerning Bridgewater's activities in 1933 and 1937 are based upon the
credible testimony of Sykes. Bridgewater denied that he acted in the manner attributed
to him by Sykes. His denials were not convincing. In 1941 when the Union renewed its
organizing activity, Bridgewater, as hereinafter found, met its attempt with threats of force
and violence that indicated his opposition to the Union.
SUPERIOR LIME & HYDRATE COMPANY 1307
on the premises that day acting in concert with other employees. Bridgewater
generally denied making any threat or deprecation about the Union at any
time ; and the respondent 's' witnesses , in addition to Bridgewater , denied that
on April 1; 1941, they heard Bridgewater make any threats or statements
derogatory of the Union or its members . The undersigned finds that Bridge-
water made the remarks attributed to him by Sykes and Lee on this occasion in
light of the mutual corroboration of the latter two witnesses.
Simultaneously with this stoppage the men left the property and all but one
of the employees signed a union application card. It is clear from all the
evidence that the respondent's failure to pay wages precipitated the stoppage
and that the actual signing of union cards took place immediately thereafter.
Following the stoppage of April 1 the plant did not resume operations. Rob-
ert Williams testified that he returned to the plant in April to get his pay and
Bridgewater said to him ". . . I ,have told you I don't want any of you union
boys on my property." In October 1941, after the respondent had resumed
'operations, T. C Lee applied for reinstatement. According to Lee's testimony,
,Bridgewater told him at this time that he was under no obligation to re-
'employ him and ordered him from the property. Lee testified: "He said he
didn't want no union men over there and if I came back again he would shoot
me or have me arrested . . . " Although Bridgewater denied generally the utter-
ance of any threats concerning the Union or to its members, he did not spe-
cifically deny the above testimony of Williams and Lee. The undersigned finds
that Bridgewater made these remarks to Williams and Lee.
The undersigned concludes and finds that on and after April 1, 1941, the
respondent, through Bridgewater, by threats of physical violence to its em-
ployees, by statements that it would not employ members of the Union, ordering
members of the Union off its property, and warning employees to cease organi-,
zational activities on behalf of the Union, has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act
Sometime after the stoppage heretofore referred to, a group of men including
former employees were lounging on the porch of the Pelham railroad depot when
Bridgewater drove up in his car accompanied by his daughter. According to
T. C. Lee, Bridgewater stopped and asked Lee's brother, Joshua, what he was
doing in the road in front of his car and that Bridgewater brandished a pistol,
exclaiming : "You are the one I want to kill any way. You are' the cause of
that strike " On two other occasions, according to T. C. Lee, Bridgewater
brandished a gun before a group of employees in a threatening manner. Bridge-
water admitted that he had seen men congregated at the depot which, according
to his testimony, was "the general hang out of all the loafers" but denied owning
a gun or making any threats. He did not otherwise deny Lee's testimony. Al
Sykes testified to an incident following the work stoppage wherein Bridgewater
allegedly attempted with his car to run over Sykes while the latter was trudging
along a road Bridgewater denied that he acted in this manner. Lee's testi-
mony that Bridgewater threatened to kill Joshua Lee for causing the strike was
not corroborated by others who were allegedly present, and to this extent his
testimony is not credited There is no clear indication that any of these alleged
actions were induced by the union activity of the respondent's employees ; It
reflects nothing other than Bridgewater's attitude toward his negro employees;
no violation of the Act is based upon these findings.`
I There is no evidence to support the allegation of the complaint that at all times since
January 1 , 1941, the respondent and/or the respondent trustee questioned employees as to
who was active in the Union , and spied upon and broke up union meetings . It will be
recommended hereafter that this allegation of the complaint be dismissed.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The refusals to hire
The respondent resumed operations at Pelham about October 1, 1941. On
October 17, 1941, Robert T. Frazier, then Regional Director for the Tenth
Region, wrote McNeill, a representative of the Union, following a conference
with Bridgewater, that the latter, "would be glad to take back all former em-
ployees who applied to him for reinstatement," and that Bridgewater had not
refused employment to any former employee. This letter had followed unsuc-
cessful attempts of some of the employees to secure employment. In late Oc-
tober, and following thereafter in November and December, the Union at various
conferences with the respondent attempted to negotiate a contract and to secure
the further reinstatement of employees who had not yet returned to work. Of
the 28 employees on the respondent's pay roll for the 2-week period ending
March 31, 1941, only two had been reinstated by October 16, and eight by De-
cember 15. Following the resumption of operations on October 1, the plant
was not operating at full capacity due to damage to some of the equipment.
The respondent had stated to the Union during the conferences that it would
take back the rest of the employees who had quit work as soon as it was able
to do so The differences between the Union and the respondent over the pro-
posed contract and the employment of other employees were finally narrowed
down, and by December the Union and the respondent had agreed upon all terms
of the proposed contract, and the Union had waived further reinstatement of
other employees except Mims Alexander, Al Sykes, and Duinis Alexander ° This
contract was never signed by the parties. The complaint alleges that the -re-
spondent refused to employ Minis Alexander and Sykes because of their union
membership and activities. The respondent denies any refusal to reemploy Alex-
ander and Sykes because of their union membership or activities
1. Al Sykes
Sykes was first employed by the respondent in 1931, and worked more or
less continuously for the respondent until April 1, 1941. Sykes was a member
of the Union in 1933 and in 1937 at the time of previous organizing activity. He
joined the Union again on April 1, 1941. Sykes was a member of the union
committee that conferred at various meetings with the respondent in the fall of
1941 about a` contract and the reinstatement of the employees who had quit work
in April. Sykes applied for employment to Superintendent Anderson sometime
in October 1941. Anderson told Sykes to return in the morning and that he
would be put to work. When Sykes returned the following day, Anderson told
liim that they had a full crew and that be could not be used, although, according
to 'Sykes' uncontradictecl testimony, another applicant "that come out in a car
right behind me" was put to work.
In December, after the differences between the respondent and the Union had
been limited to the issue of employing Alexander and Sykes, Needham A. Graham,
Jr., the respondent's counsel, wrote Alton Lawrence, a union representative, a
letter which, among other things, stated that the right of Sykes to be reemployed
might be determined' as provided in the provision establishing a grievance pro-'
cedure in the proposed contract between-the Union and the respondent. The
Union, however, was unwilling to submit the issue of Sykes' reemployment to a
procedure to be established in the proposed contract between' the parties, and
after receiving Graham's letter, broke off further negotiations and' filed charges
with the Board.
The Board makes no contention with respect to the respondent's alleged refusal to
reemploy Dumis Alexander.
SUPERIOR LIME & HYDRATE COMPANY - 1309
During the conferences between the Union and the respondent, the. latter'
maintained that Sykes had been "discharged" because he "discouraged the men
from returning'to work."' Bridgewater testified that Sykes was "hard to get,
along with," was "picayunish with the men," removed some of the respondent's
property after being warned, and for these reasons he refused to reemploy him
He admitted that Sykes was not discharged because he was "hard to get along
with" or "picayunish." He failed to explain Sylies' alleged removal of company
property after being warned, nor did the respondent elaborate upon, by calling
any other witnesses, Sykes' other alleged failings.
Bridgewater's reasons for his refusal to employ Sykes had never theretofore
given rise to any occasion for discipline and were not convincing in view of
Sykes' long employment record. The undersigned is of the opinion that none,
of Sykes' alleged imperfections, including the removal of company property,
was the real cause for the respondent's excluding him from further employment.
Rather, the undersigned believes and finds that those reasons were concocted to
avoid employing Sykes because of his union membership and concerted activities,-
and particularly for the reason that he discouraged the employees from returning
to work on April 1, 1941. The undersigned concludes and finds, therefore, that
the respondent refused to employ Sykes because the respondent was opposed to his
union membership and activities, and by this refusal, the respondent discrimi-
nated in regard to his hire and tenure of employment, and thereby discouraged,
membership in the Union and .interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Mims Alexander
Alexander was first employed by the respondent on October 1, 1940, and worked
thereafter until the stoppage on April 1, 1941. He was employed as a fireman
on the lime kiln. Alexander joined the Union on April 1, 1941, and attended
union meetings with other employees.
On a day following the letter of October 17 written by Frazier to McNeill,
Alexander together with other employees acting on instructions of Doster, applied
to Superintendent Anderson for reinstatement. Two of the former employees,
George Niaon and Robert Stevenson, union members, were hired by Anderson
that day but Alexander was told that he was too young to fire a kiln and if he
was needed, he would be notified. Two weeks later Alexander again returned
seeking work and Anderson told him that the kilns were under "slow fire" and
that he was not needed at that time.
On December 23, 1941, when Graham wrote Lawrence the letter above men-
tioned, he also stated therein that the respondent would employ Alexander-if
reasonable proof was offered that Alexander was 21 years of age or older for the
reason that the respondent did not knowingly employ minors at its plant. Bridge-
water testified that in October 1940 when Alexander was hired, he falsified his age
by stating that he was 21, and after the stoppage in April 1941 the respondent
obtained knowledge that he was not yet 21. The, respondent contends that under
Alabama law, no one under the age of 19 may be employed in a quarry and as-a
matter of policy it did not employ individuals under the age of 21. Bridgewater in
the various conferences held with the -Union stated that he would employ Alex-
ander if he could prove his age to be 21 or over. Alexander testified that at the
time he was hired he stated that he was 18, that the respondent knew this and
that he did not misrepresent his age.
' This is the uncontradicted testimony of Alton Lawrence.
1310 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
The respondent's reason for its refusal to reemploy Alexander is that at the
time of his application for reinstatement and at all times thereafter, he was not 21
years of age; that when he was hired he misrepresented his age as being 21.
Alexander is not yet 21 but at the time of his application for reemployment was*
19 and over the minimum employment'age permitted by the respondent's under-
standing of the Alabama law. He denied that at the time he was hired he falsified
his age or stated other than that he was 18 years of age The respondent did not
produce any employment record to substantiate its assertion that Alexander mis-
represented his age and Bridgewater's daughter who allegedly received his ap-
plication was not called as a witness to confirm Bridgewater's testimony that
this misrepresentation had in fact been made. The undersigned finds therefore,
that Alexander did not misrepresent his age when hired No other reasons were
advanced for the respondent's refusal to employ Alexander. The undersigned
is of the opinion that the respondent was reluctant at all times to reemploy any
union members and did so only after the Union fought for the reinstatement of its
members.' This reluctance is reflected in Alexander's case The respondent's
insistence as a prerequisite to hiring Alexander that the Union or Alexander
furnish proof of what. the respondent presumably knew they could not offer was
not made in good faith. The undersigned concludes and finds that Miens Alexander
was refused 'employment because of his union membership and the respondent
discriminated in regard to his hire and tenure of employment, and thereby dis-
couraged 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
IV. THE EFFECT OF THE UNFAIR LABOR PRACIICES UPON COMMERCE
The activities of the respondent set forth in Section III (B) and (C) above,
occurring in connection with its operations 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.
V. THE,REMEDY
Having found that the respondent has engaged in unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act and to restore
as nearly as possible the status quo existing prior to the commission of the
unfair labor practices. It has been found that the respondent discriminated in
regard to the hire and tenure of employment of Mims Alexander and Al Sykes
because of their union membership and activity. , To effectuate the policies of
the Act the undersigned will recommend that the respondent and/or the re-
spondent trustee offer to Alexander and Sykes immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority and other, rights and privileges. It does not 'appear affirmatively from
this record just when Alexander and Sykes first applied for reinstatement.
Bridgewater was aware of the fact that they were seeking employment by
reason of the various conferences between the Union and the respondent com-
mencing in October 1941. It will be recommended, therefore, that the respondent
and/or the respondent trustee make each whole for any loss of pay he has
suffered by reason of failure to employ him by payment to him of a sum equal
8 The pay-roll records show that on October 16, 1941, only 2 union members had been-em-
ployed. After the Union commenced negotiations and by December 15, six additional union
members were added to the pay roll. 1
SUPERIOR LIME & HYDRATE COMPANY 1311
to that amount which he would normally have earned as wages from November
1, 1941, to the date of their offer of reinstatement, less his net earnings "during
said period.
As the undersigned has noted above, the respondent trustee appeared specially;
denied the jurisdiction of the Board, and moved for the dismissal of the pro-
ceeding as to him for the reason that the Court which had appointed him had
not consented to the institution of the proceeding, and for the further reason
that the Board had no jurisdiction of him as an employer, within the meaning
of the Act.
The undersigned believes this contention to be unsound. The Act defines
an "employer" as "any person acting in the interest of an employer, directly or
indirectly . . . Sec. 10 (a) of the Act empowers the Board to prevent any
person from engaging in any unfair labor practice affecting commerce, and
Section 2 (1) defines the term "person" as including ". .legal representa-
tives, trustees, trustees in bankruptcy, or receivers." It also provides that the
power granted to the Board shall be exclusive." The respondent trustee was in
sole charge of the business subject to the instructions of the bankruptcy court.
The respondent trustee delegated routine responsibilities for the production and
personnel, including hiring and discharge of employees, during the trusteeship
to Bridgewater, who at all times acted as agent for the respondent trustee.
In no legally significant sense can the respondent be differentiated from the
respondent trustee insofar as the employer-employee relationship is concerned.
This relationship is of primary consideration, since it is all important in effectuat-
ing the purposes and policies of the Act. As stated by the United States Circuit
Court of Appeals in N. L. R B v. Arthur L Colton and Abe J Colman, Co-Partners
doing business as Kiddie Kover Manufacturing Company: __
It is the employing industry that is sought to be regulated and brought within
the corrective and remedial provisions of the Act in the interest of industrial
peace . . . It needs no demonstration that the strife which is sought to be
averted is no less an object of legislative solicitude when contract, death, or
operation of law brings about change of ownership in the employing agency.
9 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred -but for his unlawful
discharge and the consequent necessity of his seeking employment elsew here See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Ameitea,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B 440 . Monies received for
work performed upon Federal, State, county, municipal, or other work-ielief projects shall
be considered as earnings See Republic Steel Corporation v. N. L R B , 311 U. S. 7.
=o In N. L R B. v. Baldwin Locomotive Works, 128 F. 1(2d) 39, the United States Circuit
Couit of Appeals for the Third Circuit stated :
In the very nature and purpose of the power which the Board exercises in laying
a charge for back pay upon an offending employer , such power must needs be unem-
barrassed by an intervening plan of reorganization conceined with the readjustment of
the same employer ' s liability for its private obligations.
The jurisdiction of a United States District Court in bankruptcy does not embrace
the power to treat mtli a debtor's unfair labor practices which affect commerce Nor
is such a court's leave to the Board to proceed in appropriate manner required. By
Section 10 (a) of the National Labor Relations Act the Board is expressly empowered
to prevent any person from engaging in any unfair labor practices affecting commerce ;
and that power is exclusiie in the Board and unaffected "by any other means of ad-
luetuient or prevention that has been or may be established by agreement, code, law,
or otherwise." The Act moreover explicitly removes the possibility of any restraint
upon the Boaid 's power which might be thought to arise where the employer ' s properties
and business are operated under an order of a District Court in a reorganization
proceeding in bankruptcy
105 F. (2d) 179 (C. C. A 6).
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is apparent that the purposes and policies of the Act can best be effectuated
during the bankruptcy by recommending that the respondent trustee take those
steps which will remedy the unfair labor practices committed by his predecessor
Otherwise there is no one in interest to carry out the Board's order. The ex-
perience of the Board demonstrates the need for assurance that in effectuating the
policies of the Act, workers in industry will feel assured not only of their rights
to self-organization but against the economic consequences, that due to no fault
.of their own, may follow the legitimate exercise of these rights. In N. L R. B. v.
_Killoren , Trustee of Hamaltov Broum Shoe Compan'y/2 the United States Circuit
,Court of Appeals for the Eighth Circuit stated:
There could be no real force in such an assurance, however, if the Board's
order awarding back pay in a particular case would not actually be made
effectual. An unvindicated or paper decree would hardly tend to encourage
self-organization efforts and peaceful industrial relations. And so, public
policy cannot permit such a valid order of the Board to be thwarted or
escaped, if there is any sound way to prevent it. The mere fact that an em-
ployer may cease to do business certainly does not end the public interest
involved in seeing that a back pay award under the Act is satisfied. The
public wrong -that has been done cannot, be regarded as being .righted by
the simple expedient of the employer's resort to bankruptcy, so that it can
be judicially declared that payment of the back pay award will no longer
serve any useful purpose in effectuating the policies of the Act, as.was assumed
by the Referee and the District Court.
The undersigned's recofiimendations will run, therefore, against the respondent
-trustee with the same force and effect as against the respondent. and hereafter
the word "respondents" when used shall refer to the respondent and the respondent
-trustee.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Union of Mine, Mill & Smelter Workers, Local #149, affiliated
with the Congress of Industrial Organizations, -is a labor organization, within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Mims
-Alexander and Al Sykes-and thereby discouraging membership in International
Union of Mine, Mill & Smelter Workers, Local #149, affiliated with the Congress
of Industrial Organizations, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (3) of the Act.
3. 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.
4. The aforesaid unfair labor practices,are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent and/or the respondent trustee Were not engaged in unfair
labor practices within the meaning of Section 8 (1) of the Act by questioning
,employees as to who was active,in - the, Union, spying on union meetings, and
breaking up union meetings.
12 122 F. ( 2d) 609.
SUPERIOR LIME & HYDRATE COMPANY 1313
RECOMMENDATIONS
, Upon the basis of the above findings of fact and conclusions of- law, the
tmdersigned- recommends that the respondent, Superior Lime & Hydrate Com-
pany, Pelham, Alabama, and its officers, agents, successors, and assigns, and
for the reasons stated in the remedy above, W. F. Schaefer, respondent trustee,
and his officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union of Mine,'Mill & Smelter
Workers, Local #149, affiliated with the Congress of Industrial Oi ganizations,
or in any other labor organization of its employees, or in any other manner
discriminating in regard to their hire and tenure of employment or any term or
condition of their employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the, purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of
the Act.
2 Take the following affirmative action which the undersigned finds ,will
effectuate, the policies of the Act:
(a) Offer to Mims Alexander and. Al Sykes immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges;
(b) Make whole Mims Alexander and Al Sykes for any loss of pay they may
have suffered by reason of the respondent's discrimination in regard to their
hire and tenure of employment, by payment to each of them bf a sum of money
equal to that which he normally would have earned as wages during the period
from November 1, 1941, \to the date of the respondent's offer of reinstatement,
less his net earnings during such period,
(c) Post immediately in conspicuous places throughout the plant at Pelham,
Alabama, and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating: (1) that the respondents
will not engage in the conduct from which it is recommended that they cease
and desist in paragraph 1 (a) and (b) of these recommendations; (2) that
the respondents w,11 take the affirmative action set forth in paragraph 2 (a)
and (b) of these recommendations; (3) that the respondents' employees are'
free to become or remain members of International Union of Mine, Mill &
Smelter Workers, Local #149, affiliated with the Congress of Industrial Or-
ganizations, and that the respondents will not discriminate against any em-
ployees because of membership or activity in that or any other labor organ-
ization,
(d) Notify the Regional Director for the Tenth Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report what
steps the respondents have taken to comply therewith.
It is further recommended that unless on or before twenty (20) days from
the receipt of this Intermediate Report the respondents notify said Regional
Director in writing that they will comply with the foregoing recommedations,
the National Labor relations Board issue an order requiring the respondents
to take the action aforesaid.
It is further, recommended that' the complaint be dismissed insofar as it
alleges that the respondent and/or the respondent trustee have engaged in
unfair labor practices, within the meaning of Section 8 (1) of the Act, by
504086-4 3-vo 1 40--53
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questioning employees as to who was active in the Union, spying on union meet-
ings, and breaking up union meetings.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-any party may within
thirty (30) days from the date of the entry of the order transferring the case
to the Board, pursuant to Section 32 of Article II of said Rules and Regulations,
file with the Board, Shoreham Building, Washington, D. C., an original and four
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he relies upon, together with the original and four
copies of a brief'in support thereof. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within twenty (20) days after
the date of the order transferring the case to the Board.
MORTIMER RIEMER,
Trial Examiner.
Dated October 5, 1942