Valentine Sugars, Inc.

VALENTINE SUGARS, INC. 313 under similar circumstances, that such conduct by the Employer was discriminatory and prejudiced that atmosphere we believe is essential to a fair exercise of their franchise by the voters.a We shall, therefore, adopt the Regional Director' s recommendation that the election be set aside; and we shall also direct that a new elec- tion be conducted. Order IT is HEREBY ORDERED that the election held on September 6, 1952, among employees of the Employer be, and it hereby is, set aside. [Text of Second Direction of Election omitted from publication in this volume.] CHAIRMAN HERZOG and MEMBER PETERSON took no part in the con- sideration of the above Supplemental Decision, Order, and Second Direction of Election. A The Hills Brothers Company, 100 NLRB 964. VALENTINE SUGARS, INC., AND VALITE CORPORATION and UNITED PACKINGHOUSE WORKERS OF AMERICA , CIO. Case No. 15-CA-167. January 16,1953 Decision and Order On May 13,1952, Trial Examiner Lloyd Buchanan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were 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. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor prac- tices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Respondents, the United Packinghouse Workers (CIO), hereinafter referred to as the CIO, and the Valentine Independent Union, hereinafter referred to as the Independent, filed exceptions and the Respondents also filed a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. 1 Pursuant to the provisions of Section 3 (b) of the Act, as amended , the National Labor Rela' ions Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. 102 NLRB No. 38. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner except inso- far as they are inconsistent with our findings and Order as herein set forth. 1. The Trial Examiner found, and we agree, that the Respondents supported the Independent (1) by permitting it and its executive board to hold meetings on the Respondents' premises and on company time, (2) by making the boardinghouse available for the Independ- ent's suppers which were prepared by an employee of the Respondents, (3) by supplying the members of the Independent with transporta- tion to and from such suppers, (4) by paying the Independent's rep- resentatives for time spent in negotiating and executing its contracts with the Respondents, (5) by providing the representatives of the Independent with the private automobile of one of Respondents' offi- cers, paying for their meals and other incidental expenses, without loss of regular pay, for trips to the Board's Regional Office in New Orleans for the purpose of consulting the latter concerning its con- tract with the Respondents, the compliance status of the Independent, and other Independent's problems, and (6) by assisting the Inde- pendent through Respondents' employees in the preparation of affi- davits concerning compliance, the preparation of election ballots, the use of machines, and other incidental types of assistance. In addi- tion to the foregoing, as the Respondents were on notice of the exist- ence of a question of representation by the filing of the CIO's petition on May 3, on which a consent election was held June 6, Respondents' actions on May 14 implicitly favoring the ratification of the yet un- ratified contract with the Independent of April 30 at the Independent's meeting, even if not expressly asking it, is further evidence of illegal support, in violation of the Act 2 We also agree with the Trial Ex- aminer that the Respondents interfered with the administration of the Independent through the activities of Assistant Superintendent Curole,3 who we find, as did the Trial Examiner, was a supervisor within the meaning of the Act. In view of the foregoing findings, including those set forth in the Intermediate Report, it is clear that aHorton-Hubbard Mfg. Co., 94 NLRB 921, 932; William Penn Broadcasting Co., 93 NLRB 1104. Contrary to the contentions of the Respondent, we find, in agreement with the Trial Examiner for reasons fully set forth in the Intermediate Report , that Curole has been a supervisor within the meaning of the Act since April 25, 1947. We find no merit in the Respondents' contention that because the CIO agreed to let Curole and the other alleged supervisors herein vote in the last consent election , the CIO cannot now contend that these men are supervisors . The decision to allow these alleged supervisors to vote was the result of an agreement between the parties settling their differences as to the voting eligibility of certain employees . Merely consenting that alleged supervisors be allowed to vote is not a determination of their status by the Board. See Brewster Pateros Processors, Inc., 73 NLRB 833; The Murray Company, 77 NLRB 481 ; Crescent Ink and Color Company of Pennsylvania, 100 NLRB 663. VALENTINE SUGARS, INC. 315 Respondents' conduct with regard to the Independent and the partici- pation of Supervisor Curole in the latter's affairs are violative of Section 8 (a) (2) of the Act, and warrant our adoption of the recom- mendation of the Trial Examiner in this respect .4 The Respondents, while admitting the factual truth of the acts of assistance and support, nevertheless contend that the recommended order of the Trial Examiner to withhold further recognition of the Independent is not warranted, on the following grounds : (1) The CIO knew prior to the consent election of June 5, 1951, of the alleged assistance and support and therefore must be held to have waived the right to raise those charges after the election which it lost; (2) the successful bargaining for more than 6 years with the Independent to the satisfaction of the employees warrants the continuation of the rela- tionship; and (3) the assistance and support are justifiable because the plant is located in a rural community. We find no merit in these contentions. It is true the Board has held that where a union files unfair labor practice charges which are followed by a settlement agreement or agreement for consent election, which in effect settles existing unfair labor practice charges, the Board, as a matter of policy, will not consider events prior to the election or the agreement as a basis for a charge of illegal support and assistance thereafter filed by the union which lost the election.5 However, it is well established that where such unfair labor practices have continued after the settlement agreement or consent election, the Board will consider the Employer's entire course of conduct under an 8 (a) (2) charge subsequently filed by the defeated union e The Respondents urge notwithstanding, that even though no unfair labor practice charges were filed prior to the consent-election agreement, the CIO 4 Dolores, Inc., 98 NLRB 550 (use of Employer's premises ) ; Long-Lewis Hardware Company, 90 NLRB 1403, 1416 (use of company's time and property) ; The Carpenter' Steel Company, 76 NLRB 670, 688 (payment for time spent outside regular hours) Consumers Lumber & Veneer Company, 63 NLRB 17, 27 ( supplying transportation) Fogel Refrigerator Company, 82 NLRB 1302 , 1317 ( contribution for refreshments) Crowley's Milk Company, 88 NLRB 1049, 1050 (use of Employer's office facilities). We find no necessity to pass upon and therefore do not adopt the conclusion of law stated by the Trial Examiner in the Intermediate Report to the effect that unfair labor practices under Section 8 (a) (2) of the Act which occurred prior to December 18, 1950, unless otherwise purged, continued beyond that date into the statutory 6-month period "by the continued functioning and recognition of the supported or dominated labor organization." 5 Hope Webbing Company, 14 NLRB 55 ; Wickwire Brothers, 16 NLRB 316. In these and in a long series of decisions the Board has held that the dismissal of any complaint is in exercise of the Board 's discretionary power as "the Board exercises ultimate super- vision over all steps in the procedural process before the Board and the courts. . . . See Waitresses and Cafeteria Women's Local No. 305, 86 NLRB 1166 , 1168. The Board is not estopped from prescribing an adequate remedy for unfair labor practices, nor is it relieved from its public duty to do so, merely because a union may be precluded by its waiver or other circumstances from objecting to the results of the election on certain grounds. Radio Corporation of America, 74 NLRB 1729, 1732. 6 The Wallace Corporation, 50 NLRB 138, 152, enforced 323 U . S. 248; Radio Cor- poration of America, supra, 74 NLRB 7129, 1732. Cannon Manufacturing Corporation, 71 NLRB 1059 , 1080 ; Pacific Mansfolding Book Company, 64 NLRB 1256, 1276; Famous- Barr Company, 59 NLRB 976, 1063; Thompson Products, Inc., 57 NLRB 924, 935. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was well aware of the alleged assistance and support and should there- fore be precluded from filing such charges after losing the election. We do not agree. The Board has held that a consent-election agree- ment without more does not purport to be a settlement agreement within the meaning of the Board policy indicated above.7 Accord- ingly, we find that such policy is inapplicable in the present case.8 Moreover, assuming, arguendo, that the consent-election agreement constituted in effect a settlement of known, though uncharged, viola- tions of Section 8 (a) (2) of the Act, it is clear from the record herein that the Respondents continued their unlawful support and assistance after the agreement and the election, thereby opening up their entire course of conduct for the consideration of the Board.° The CIO urges that the Respondents not only assisted and supported the Independent, in violation of Section 8 (a) (2) of the Act, but that they also sponsored its formation and dominated its affairs thereafter through the agency of one Frosch. Although Frosch, who is at present a supervisor, admittedly played a leading role in the establishment of the Independent, which activity he began some 2 months after the CIO first filed its petition for representation in November 1945, Frosch was not a supervisor at that time.10 Accordingly, we find no basis for the CIO's contention that the Respondents, acting through Frosch, sponsored the Independent. The CIO further urges as a basis for a finding of domination, the fact that on May 14, 1951, the Respondents' three high-ranking super- visors attended a meeting of the Independent, and that because the supervisors urged the employees to state openly if they had any ob- jections to the Respondents' contract with the Independent, which contract was before the meeting for purposes of ratification, the super- visors impliedly if not directly placed the Respondents on record as urging the approval of the contract. While it would appear that this act of Respondents' supervisors constituted interference with the fune- 4 The Locomotive Finished Material Co., 52 NLRB 922; Everett Van Kleeck, 88 NLRB 785. g The Respondent contends that the instant case should be governed by our decision in ,intone Pagliero, etc., et at., 99 NLRB 21 . We do not agree. In the case cited, the charging union filed an 8 (a ) (2) charge. After hearing and before the Intermediate Report was issued , the charging union filed a petition for certification of representatives and executed a waiver of its right to protest an election on any grounds set forth iq the complaint case. The charging union lost the election , and the Board held that, under the circumstances , it would not adopt the Trial Examiner's recommended order that the Respondent be required to cease and desist from recognizing the contracting union. No such specific waiver was executed in the instant case, as no specific charges which the CIO could waive were filed. Y See cases in footnote 5, supra. Obviously, under the amended Act, any finding of an 8 (a) (2) violation must be based on conduct within the 6-month statutory period in Section 10 (b) of the Act. Cf. Courier Post Publishing Company, 102 NLRB 26. 10 Contrary to the contentions of the CIO, we agree with the Trial Examiner and find that Frosch became a supervisor more than a year after the Independent was established and that there is no basis in the record to support a finding that the other alleged supervisors had been and are such at the present time. VALENTINE SUGARS, INC. 317 tions of the Independent,' this act alone is not a sufficient basis for a finding of domination. In the absence of additional evidence, we do not find, as contended by the CIO, that the activities of the Respondents constitute domination of the Independent. We find no merit in Respondents' remaining defenses to the recom- mended order of the Trial Examiner. The fact that the members of the assisted union appeared to be satisfied with the Independent and the latter was successful in its bargaining relations over a number of years, do not justify the Respondents' violation of the Act.12 There is furthermore no validity in the contention that, because of the location of Respondents' plant in a rural community, it was lawful for the Respondents to assist and support the Independent; accordingly, we find such assistance and support to be violative of Section 8 (a) (2) of the Aces 3. The Trial Examiner found, and we agree, that the Respondents did not discharge Joseph L. Saia in violation of Section 8 (a) (3) of the Act. The record contains support for the finding that the general manager discharged Saia for having lied about his part in inducing one Savoie, a former employee, to ride on the company bus.'' Although this reason for the discharge appears somewhat improbable and lack- ing in substance, the Trial Examiner credited the explanation of the general manager. The CIO excepts to the finding. While the matter is by no means free from doubt, we do not overrule a Trial Examiner's resolutions as to credibility except where the clear preponderance of all the relevant evidence convinces us that the Trial Examiner's resolu- tion was incorrect 1S In the present case, we cannot say, on the basis of the record, that this finding of the Trial Examiner is of such a char- acter. We therefore affirm the Trial Examiner's finding that Saia, ss See H. N. Thayer Company, 99 NLRB 1122. a Bun Oil Company, 89 NLRB 833, 848; N. L. R. B. v. Link Belt Co., 331 U. S. 584. n The Respondents contend that because the plant is located in a rural community some 6 miles from 2 small towns, that it was therefore justified in offering its facilities to the Independent, arguing that had it refused such facilities, the Respondents might have been charged with unfair labor practices . We find no merit in this contention . There is no evidence in the record that the employees lived in a "company" town , where all practical places for meetings are owned by the employer and where the employer refused the use of such meeting places. Cf. Stowe Spinning Co., 336 U. S. 226, 70 NLRB 614; W. T. Carter and Brother, 90 NLRB 2021, and cases cited in footnote 11. ' The evidence shows that Savoie was discharged on June 11 , 1951, and that he filed an 8 (a) ( 3) charge on June 18. At a conference with the Regional Office, a settlement was reached on September 17, in which the Respondents agreed to reinstate Savoie. The Respondents contended that the reinstatement would not take place until the grinding season which would not begin until October or later . Savoie was under the impression that hg was to be returned to work immediately and he therefore went to the plant on the 19th of September to see about his reinstatement. It was on the basis of this promise to reinstate Savoie, that Saia suggested that Savoie might take the company bus. That Sala should be discharged because he was instrumental in suggesting to a former employee about to be reinstated to take the company bus to work, is difficult to believe. However, because it appears that Saia's explanation was also not entirely forthright , it is reason- able to conclude that the general manager believed that Saia was not telling the truth as to his part in the bus incident and for this reason discharged him. 35 Standard Dry Wall Products, Inc., 91 NLRB 544. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD despite his known prominence in the CIO, was not discharged because of his union activities, in violation of Section 8 (a) (3) of the Act 16 We shall therefore dismiss this allegation of the complaint. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Valentine Sugars, Inc., and Valite Corporation, Lockport, Louisiana, jointly and sev- erally, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Contributing support to Valentine Independent Union, or any other labor organization, and from otherwise interfering with the rep- resentation of their employees through a labor organization of their own choosing. (b) Recognizing or in any other manner dealing with the Valen- tine Independent Union, or any successor thereto, as the collective- bargaining representative of any of their employees unless and until such organization shall have been certified such representative by the Board. (c) Performing or giving effect to their agreement of April 30, 1951, with the Independent, or to any modification, extension, supplement, or renewal thereof, or to any other contract, agreement, or under- standing entered into with said labor organization or any successor thereto, unless and until said labor organization shall have been certi- fied by the National Labor Relations Board, provided, however, that nothing herein shall be construed to require the Respondents to vary any substantive provisions of such agreement, or to prejudice the as- sertion by the employees of any rights that they may have thereunder. (d) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organi- zation, to form labor organizations, to join or assist labor organiza- tions, 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, or 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. (2) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : 'e Chance Vought Aircraft Division of United Aircraft Corporation, 85 NLRB 183, 187-189. VALENTINE SUGARS, INC. 319 (a) Withhold all recognition from Valentine Independent Union, as the representative of any of their employees for the purpose of deal- ing with the Respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or any other condition of em- ployment, unless and until said organization shall have been certi- fied by the Board as such representative. (b) Post at their plant at Lockport, Louisiana, copies of the notice attached hereto and marked "Appendix A." 17 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's respective repre- sentatives, be posted by the Respondents immediately upon receipt thereof, and be maintained by them for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to their employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fifteenth Region, in writing, within ten (10) days from the date of this Order, what steps Respondents have taken to comply therewith. IT Is FURTHER ORDERED that the complaint insofar as it alleges that the Respondent violated Section 8 (a) (3) of the Act by discharging Joseph L. Saia on September 20, 1951, be, and it hereby is, dismissed. 17 In the event that this Order Is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." Appendix A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT contribute support to VALENTINE INDEPENDENT UNION or any other labor organization of our employees. WE WILL NOT recognize or in any other manner deal with VALEN- TINE INDEPENDENT UNION as the collective-bargaining representa- tive of any of our employees unless and until such organization shall have l*en certified as such representative by the National Labor Relations Board. WE WILL NOT perform or give effect to the agreement of April 30, 1951, or to any other contract, or to any modification, exten- sion, supplement, or renewal thereof, entered into with VALEN- TINE INDEPENDENT UNION, or any successor thereto, until the said 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization has been certified by the National Labor Rela- tions Board. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All of our employees are free to become, remain, or to refrain from becoming or remaining members in good standing of United Pack- inghouse Workers of America, CIO, or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. VALENTINE SUGARS, INC., Employer. Dated -------------------- By ----------------------------- (Representative) (Title) VALITE CORPORATION, Employer. Dated -------------------- By ----------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order The complaint herein, as particularized and amended at the hearing, alleges that the Respondents have violated Section 8 (a) (2) of the National Labor Relations Act, as amended, 61 Stat. 136, by sponsoring, dominating, supporting, checking off dues for, and negotiating an agreement with the Independent, and Section 8 (a) (3) by discharging and refusing to reinstate Joseph L. Saia ; all in violation of Section 8 (a) (1) and Section 2 (6) and (7) of the Act. The answers of the Respondents and the Independent deny the allegations of unfair labor practices, the former alleging that Saia was discharged for lawful cause. A hearing was held before me at Lockport, Louisiana, from March 17 to 21, 1951, inclusive. Pursuant to leave granted to all parties, a brief was thereafter filed by the Respondents. Upon the entire record in the case and from my observation of the witnesses, I make the following : c FINDINGS OF FACT 1. THE RESPONDENTS' BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED It was stipulated that the Respondents, Louisiana corporations which have Jointly succeeded to the interests of a predecessor partnership, are operated as VALENTINE SUGARS, INC. 321 one enterprise ; ' they are engaged in business on common property in Lafourche Parish, midway between the towns of Lockport and Larose and approximately 6% miles from each ; the Respondents' buildings and operations are located in the open country, and in these buildings Valentine grinds sugar cane into sugar and Valite makes byproducts principally from the waste material of the cane ; and in the 6 months immediately preceding the hearing each corporation sold products valued at more than one-half million dollars, more than 50 percent of Valentine's and more than 65 percent of Valite's being sold and transported out- side the State of Louisiana. The Respondents admitted and I find that they are engaged in commerce within the meaning of the Act. It was admitted and I find that the CIO' and the Independent are labor organi- tions and admit to membership employees of the Respondents. II. THE UNFAIR LABOR PRACTICES Faulty recollections were the rule at the hearing, and the record shows that witnesses on both sides contradicted fellow witnesses. But witnesses' incon- sistencies do not prohibit a finding based on substantial evidence offered by them and consideration of the whole record.' References hereinafter made to the evidence, not ascribed to named witnesses, represent uncontradicted testi- mony, or findings where conflicts have been resolved ; findings are made on the basis of reliable, probative, and substantial evidence on the record considered as a whole and the preponderance of the testimony taken. No finding is made herein of violation prior to December 18, 1950, the original charge having been served on June 18, 1951. But activities prior to the former date have been considered not only because they explain and make subsequent events clear, but also because, in cases of support or domination of labor organiza- tions, any taint or disability found continues until purged ; the disability identi- fied, violations may be found to have occurred within the statutory 6-month period by the continued functioning and recognition of the supported or dominated labor organizations.` Because various employees, about whose status as alleged supervisors there are conflicting claims, are or have been active in the Independent, it is well to determine first which if any are in fact supervisors. Named in the complaint and bill of particulars as supervisors are Frosch, Hector Curole, Hubert Gau- treaux, Beenel, Boudreaux, Hebert, Philip Gautreaux,' and Larousse.' General Counsel alleges that all have been supervisors within the meaning of the Act, and have been members and officers of and controlled the Independent. It was testified that, after they had questioned the right of some of them to do so, the CIO representatives agreed to let them' vote in the 1951 election, here- inafter further referred to, only after Barker declared that they were not super- visors and had previously voted; and that, as a compromise, these and others, whose eligibility was questioned by the Respondents, were agreed upon as eligible. Whether or not estoppel might be urged against the CIO in this connection, the Board is not estopped from proceeding to protect the rights of employees. Certainly, the Respondents, aside from their knowledge of the facts, were put 1 They have been referred to and considered as one throughout this proceeding. 2 Reference is to United Packinghouse Workers of America, CIO, as Independent refers to Valentine Independent Union. Cf. N. L. R. B. v Deena Products Company, 195 F. 2d 330, (C. A. 7). ' Cf. General Shoe Corporation, 90 NLRB 1330; Duro Test Corporation, 81 NLRB 976. 5 The transcript is hereby amended to show this correct spelling. E T. M. Barker and Woodruff, also named, admittedly are and have been supervisors. The former is hereinafter referred to as Barker ; his brother as Frank Barker. 7 Except Frosch, who, it is agreed , was a supervisor at that time. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on notice by the CIO's claim that certain employees were supervisors,' although that claim was later withdrawn. Vis-a-vis the Board, the Respondents are ac- countable if they sponsored supervisors as employees entitled to vote in the election,' and, of course, if supervisors participate in union affairs.1° The issue, then, is whether given individuals are or have been supervisors within the mean- ing of the Act. Hebert, it was stipulated at the hearing, is not a supervisor. Frosch was promoted to foreman or plant superintendent in April 1947;1 and he thereupon resigned from the Independent. Hebert testified that at that time Frosch was doing the work which Hebert is currently doing, and that he was in charge of approximately 30'u employees in 1946. The latter statement sug- gests supervisory authority during the earlier period, but Hebert concededly does not have such authority and Cancienne, who was most uncertain of the date of Frosch's promotion, testified that as a CIO representative he had no objection to Frosch's being an observer or voting in the 1946 election. Cancienne, who was elected president of the Independent after that election but has since left the Respondents' employ, and who was called by General Counsel, further testified that Frosch was promoted to foreman after the election in 1946. I find that Frosch became a supervisor within the meaning of the Act on April 25, 1947. Larousse's election to the executive board of the Independent on May 14, 1951, would be an element of unlawful support were he a supervisor. Saia testified that he got his orders from Larousse on the midnight to noon shift during the grinding season and that Larousse had three maintenance men under him during the 1951 grinding 1' season. Alcee Curole testified that Larousse directed him during the grinding season. While Saia also testified that Larousse's and Hector Curole's jobs were similar as far as he knew, he refused to speak positively concerning Curole's responsibility or the number of men under him during the last grinding season. Larousse testified that he is a machinist;' and has 2 men working with him during the nongrinding season and 3 or 4 who help him on repairs during the grinding season ; he neither hires, fires, nor allows time off, nor does he recommend hiring or firing or increases in pay. His rate is $1.05 during the nongrinding season, and $1.15 during the grinding season; to the extent that rates of pay are indicative of status, his rate does not suggest that he is a supervisor. (It does not appear that his present status differs from that in 1946, when a grievance filed on his behalf by the Independent was acknowledged and acted upon by the Respondents' predecessor.) I find that Larousse is entrusted with repairs on his shift during the grinding season, and that helpers are needed to take the machines apart and to clean the parts; but there is no indication that Larousse has supervisory authority or that he is more than a leadman. Philip Gautreaux, who was elected vice president of the Independent in April 1951, was included by Saia, without any suggestion that he was a super- visor, among the employees who worked on repairs during the nongrinding 8 It is inaccurate to say that the Respondents were in the complaint told for the first time that these employees are supervisors. ° See footnote 21, infra. n° Duro Test Corporation, supra. 11 His rate was increased from $1.03 to $1.33 on April 25, 1947. The transcript, which gives the date as April 25, 1946, is hereby corrected. 12 Cancienne placed the number at 10 to 15. 38 The grinding season extends roughly from October to January, and the nongrinding from January to October. 14 Cancienne referred to himself as "chief electrician ," but it is not claimed, nor does It appear, that he was a supervisor. He had a helper. VALENTINE SUGARS, INC. 323 season. Nor is there any suggestion of supervisory status while Gautreaux evaporated cane juice or did common labor. Hector Curole was his foreman during those months. Testifying as General Counsel's witness," Gautreaux declared that during the grinding season he had been assistant fabrication superintendent and had about 20 men under him, he and Larousse being in charge on the midnight to noon shift. This testimony, placing him on Larousse's level, does not prove supervisory status. The CIO apparently considered him a rank-and-file employee when it solicited and obtained his membership 1° I find that Philip Gautreaux was not a supervisor within the meaning of the Act. Hubert Gautreaux was named 1 of 4 commissioners to assist at the Inde- pendent's nominations and elections in 1951. He drives a tow-motor, fires the boiler, and lifts, sews, and stacks sacks. There are about 8 employees on his shift at Valite, although the number may rise to 18, and in some manner not quite clear or to some extent he "keeps check" on the others. Frosch testified that Gautreaux translates and transmits orders to non-English speaking em- ployees who work with him, and that he has no supervisory authority but calls Frosch if anything out of the ordinary occurs. It appears, and I find, that Hubert Gautreaux is not a supervisor within the meaning of the Act. Becnel is the chief and only chemist. After declaring that Becnel has no assistants, Philip Gautreaux testified that 3 girls bring samples to the laboratory and that some 4 others work there. There is no evidence that Becnel, who was elected secretary-treasurer of the Independent in April 1951, is a supervisor within the meaning of the Act. Boudreaux is a cooker in the Valite plant on the smaller night shift. He has no supervisory duties, and I so find. A great deal of testimony was received concerning Hector Curole's duties. (He was named commissioner to assist in the Independent's nominations and elections, was elected to its executive board in May 1951 and participated in its discussions, and voted in the June 1951 election. Saia and Alcee Curole, while differing over the number of proposals made by the former, testified that Hector Curole argued against various contract proposals at the meeting of April 30, 1951. Mulligan, who is currently the president of the Independent, maintained that Hector Curole did not take the Respondents' side but argued for the employees' advantage.) At the outset it may be noted that Cancienne, on behalf of- the CIO, did not object to his voting in the 1946 election ; but the nature of his duties and the extent of his authority at that time were not indicated. Curole worked on the noon to midnight shift during the grinding season. General Counsel adduced evidence to the effect that he is in charge of mechanical repairs and, during the nongrinding season, supervises some 40 repair workers or, as otherwise stated, about 20 mechanics besides laborers who assist. Saia testified that he worked under Curole during the nongrinding season and during the 1948 grinding season, when he worked on Curole's shift. Alcee Curole testified that during the off season he asked his brother for assignments most of the time, and also for advice. It appears that Hector Curole's duties take him from repair job to repair job throughout the plant, and that it is sometimes a problem to find him. As a highly skilled mechanic, he instructs others, showing them what to do ; but he also checks on the various jobs and assigns employees to them. An indication of authority may be found in the fact that although Barker and Frosch arrived before the polls were opened on June 6, 1951, Curole had the key and opened the scalehouse building where the election was held. 75 He was dissatisfied and quit in January 1952. ' This was presumably in April or later since Sala, who solicited his membership , joined in that month. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On behalf of the Respondents it was testified that Curole's work differed from that of other mechanics only in that it was more skilled. His giving orders to others was explained as the mere transmission in French of the orders of Frank Barker and Frosch to those who do not understand English. Hebert testified that when he needs information, his procedure is to see Frank Barker, who "most probably (would) send (him) to tell Hector to come give (him) a hand." That Curole himself works with tools is not determinative of the question of his authority since it does not preclude the existence or exercise of supervisory power. Nor does his ownership of tools suggest that he is not a supervisor. On the other hand, in making assignments he might be serving only as a trans- mitting agent. But it appears further that he determines the division of work and the assignment of each part as he reads from a print the requirements of a job. Further, and as an example, when he needs a part for a job which he is doing, he shows other employees what he needs and directs them to make it. While his duties are largely mechanical, he also exercises authority in assigning men to such other work as unloading trucks. Hector Curole's rate is $1.50 throughout the year. This compares with 75 cents to $1.13 for other mechanics and helpers. Unlike other mechanics, he re- ceives a minimum wage each week . He is more than the general mechanic that Frosch was until 1947. While his duties and authority are not similar to Frosch's as plant superintendent, his expertise and services as a mechanic being com- plementary, Curole because of his knowledge and skill effectively supervises and directs the work of others, and I so find's A final point may be noted in this connection : various agreements between the Respondents and the Independent refer to an assistant engineer and his rate of pay ; and despite conflicting testimony concerning reference to Curole as assistant engineer, it is clear that he is the assistant to Frank Barker, the chief engineer. The title is here of importance since those same agreements name the assistant chief engineer as the Respondents' representative in grievance procedure. There can be no question concerning the identity of the assistant engineer and the assistant chief engineer : Hector Curole was directly below Barker in machine work actually performed and in authority. A. The alleged violation of Section 8 (a) (2) Recalling that Frosch withdrew from the Independent when he became a supervisor, Hector Curole's activity in the Independent might be overlooked as isolated. But it is not isolated in the context of other support of the Independent, and it warrants a finding of violation of the Act. The earliest union activity mentioned is the filing of a representation petition on November 23, 1945, by the CIO's predecessor" The Independent was organ- ized a month or two later, Frosch being instrumental in its formation. Early in 1946, both unions participated in a Board-conducted election; the Independent won and was certified. In 1947, the CIO filed a petition, which it later withdrew. It commenced an organization drive in the latter part of March 1951, a consent election was held on June 6, and again the Independent won. 11 Without the inference which may be drawn from the Respondents' unexplained failure to call him.. While an employee may not prove his authority, he may properly be questioned concerning his activities. I note also that Hector Curole lives in a house on the Respond- ents' property ; of the other 0 mentioned who occupy houses similarly located, 3 are admittedly supervisors while the other 3 are not further identified in this respect. 18 The Congress of Industrial Organizations, as distinguished from the CIO union herein, Case No. 15-R-1547. VALENTINE SUGARS, INC. 325 As a preliminary issue not quite the same as that of estoppel considered eupra, and pointing to the election results in 1946 " and 1951, the Respondents argue that we cannot now go behind the determinations made. It appears that no protest was filed to raise the issue of support in the earlier election proceeding, but that CIO objections to the conduct of the more recent election were pending before the Regional Director at the time of the instant hearing. Regardless whether, because of past acquiescence by the CIO, there may be no warrant for setting the election aside," the Board is not limited in an unfair labor practice pro- ceeding by a union's objections or failure to object." Considering then the merits of the major issue, it is undisputed that the Re- spondents have made its boardinghouse available to the Independent for meetings and suppers. Food for the suppers was paid for by the Independent and pro- vided and prepared by a company employee, and the Respondents provided transportation ^ for employees to and from the suppers. Meetings of the Independent's negotiating committee were held in the Re- spondents' "back office," and lunchtime meetings of the Independent were ad- mittedly held on company property, in the boardinghouse ; whether on company time is disputed. Whether, as Saia, Alcee Curole, and Philip Gautreaux testi- fied, 3 or 4 meetings of the Independent ran over into working time, or, as Mulli- gan and Barker (and Hebert) testified, there was only 1 such and it was followed by a rebuke and warning, need not be decided. (Mulligan testified that the meeting which ran over was that of April 30 or another at which insurance was discussed ; there is every probability that the meeting of May 14 also ran over since it included speeches by three of the Respondents' representatives, election of the executive board and grievance committee, and a vote on the contract.) Payment by the Respondents for other activities engaged in on behalf of the Independent is clearly established. Employee representatives were paid for time spent in negotiating and executing a contract with the Respondents. (It is noted that Saia was called from his work when the CIO and the Respondents checked the election eligibility list on June 4, 1951. Whether or not he was paid for the time does not appear.) More serious and clearly violative of the Act so that whether the Respondents authorized or knew of the executive board's 10-minute meeting in the electrical shop in the middle of May becomes relatively unim- portant, is the uncontradicted evidence that Barker had previously agreed to and did provide an automobile, and Mulligan, Saia, Hebert, and Becnel thereupon went to the Board's office in New Orleans , the purpose as variously stated being to discuss the contract between the Independent and the Respondents or to find out how to "get in compliance." The Respondents also provided $20 for meals 10 The 1946 determination of representative covered the employees of the predecessor partnership. 40 Denton Sleeping Garment Mills, Inc., 93 NLRB 329. # Cf. the rule that in a postelection investigation the Board is not limited to the issues raised by the parties (Hobart Manufacturing Company, 92 NLRB 203 ). See also supra, at footnote 9. 51 This is not to be equated with individual employees ' occasional use of a truck to go home. As further noted infra, other forms of otherwise lawful support may not be rendered to a labor organization. sa While there is a suggestion of CIO activity in the plant in 1946 , the reference being to a request by Cancienne in the washroom during working hours that Becnel sign a CIO card, it is an isolated instance and it does not appear to have occurred while they should have been working or to have come to the Respondents' attention. Nor in the absence of further details concerning the extent of Frosch 's activities, the Respondents ' threat, and the CIO's activity at the time, do I connect the present situation with Frosch 's statement concerning 1946 activities : "If I caught somebody on company time, if I didn't have much to do, I signed them up too." 250983-vol. 102--53-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and incidental expenses of the trip. Although they were away, the 4 were also paid for the day. Mulligan and Becnel, as officers of the Independent, made several other trips on working time, and Mulligan made yet another with Barker to New Orleans, all without loss of pay. The record discloses additional instances of assistance. Non-Communist af- fidavits for the Independent's officers were prepared by Gaubert, the Respondents' office employee, and executed in the office. At the request of Hebert, then secre- tary-treasurer of the Independent, Barker had Gaubert prepare the 1951 election ballots on the office mimeograph machine. A company typewriter u was also used by the Independent's secretary-treasurer for his correspondence. Barker testified to a history of assistance to employees and others in the com- munity, from furnishing water and pumps in time of drought to supplying equip- ment at fairs and meeting facilities for various civic and political organizations. This, he explained, was a carryover from the time when the Respondents had the only telephone in the community, and people came to the plant whenever assistance was needed. Such a general charitable or paternalistic attitude does not, however, warrant assistance to a labor organization in the face of the plain terms of the Act. (Provision of supper and transportation to employees, cited by the Respondents as a lawful possibility, is manifestly different from their provision to an employees' labor organization.) To justify their provision of the boardinghouse for meetings and parties of the Independent, the Respondents claimed that no other place was available in the vicinity and that the situation in that respect was thus comparable with that in company towns. It appears without contradiction, however, that in 1946, when the CIO called meetings in connection with its organizational drive and while the Independent was using the Respondents' boardinghouse, the Lockport Town Hall was available and was used by the former. Whether the town hall is now available for meetings does not appear. But assistance lent then constituted unlawful support, and the taint or effect thereof would in any event continue. Again, Barker could properly address his employees to urge them to speed up their work.U (There is no claim of independent interference with their union activities.) But his appearance, on invitation 29 after he had requested it, at a meeting called by the Independent, while itself not proof of unlawful support, is another indication of a less-than-arm's-length relationship which points to support of the Independent by the Respondents. On the other hand, the allegation as particularized that Barker and Woodruff asked the employees to ratify the April 20 contract remains unproven. Saia and Hebert testified in this connection only that Barker declared that he "would like to know how they stand on" the contract ; and Mulligan that Barker asked the employees to speak up if they had any objections to the contract. Whether this constituted interference in violation of Section 8 (a) (1) of the Act need not be determined since independent interference is not alleged. as This continued use of the Respondents' typewriters prompts the comment that the letter which Frosch distributed in 1946 for formation of the Independent was in longhand : the example could have been followed. Again, clerical and typewriting facilities granted to a labor organization do not parallel similar aid to individuals in veterans' or income- tax matters. ss Barker first testified that be called a general meeting of all employees. But that it was a meeting of the Independent as various other witnesses declared is borne out by his further testimony that Mulligan announced his request for "permission" to talk to the employees. 20 Sala's testimony that Barker declared that he had invited himself conflicts with my impression of Barker's character and manners and with Barker's and Mulligan's more credible testimony. VALENTINE SUGARS, INC. 327 Considering the testimony concerning Mulligan' s remarks upon his election on April 30, 1951, I do not credit Saia's testimony 22 or Alcee Curole's that Mulligan in a most unusual manner urged that the contract be signed although he was not acquainted with its contents. But even if Mulligan were at that time as sub- servient to the Respondents as such testimony suggests, the allegation of domina- tion and support would not be sustained thereby. Mulligan was elected by vote of the members of the independent. It is not claimed that the Respondents con- trolled that vote (except as they otherwise interfered with the administration of the Independent, for proof of which we must look to evidence thereof), nor, beyond this testimony, that it controlled Mulligan and prompted the alleged statement. If the testimony in this connection was offered to prove the effect of earlier acts of domination or support, it appears that such acts can be evalu- ated more directly and accurately. Having observed the witnesses and their demeanor, I not only doubt that Mulligan spoke in the curious manner attributed to him, but I conclude that the witnesses who offered that testimony are not quite forthright. Where General Counsel offers evidence of unauthorized dues deductions, it becomes incumbent on the respondent to show authorization. If validity of sig- natures or authority is in issue the respondent, who urges such validity, must prove it. P8 But here we have only a general allegation of unauthorized checkoff ; at the time he rested, General Counsel conceded that his case in this connection rested on Alcee Curole's testimony. Comparison of the latter's signature with the questioned authorization dis- closes elements of clear similarity. The dissimilarities may be explained by Curole's testimony that his signature varies greatly. It is to be noted that Sala admittedly signed 28 the authorization immediately below Curole's name, and that there was no question of authorization either at that time or when the dues deductions were made. Authorization aside, Curole testified that when he joined the Independent in 1949, in the month when Saia joined, he agreed to pay the initiation fee and monthly dues, although he doesn't now think that he said that dues were to be taken out of his pay. In view of these facts and the undisputed reference to many authorizations actually received, Curole's testi- mony being unique, we need not now consider the question of an employer's liability for acting on an authorization which may have been or was forged. I find that the Respondents did not violate Section 8 (a) (2) of the Act by making unauthorized checkoffs. On June 5, 1951, the day before the more recent Board election, Frank Barker called Frosch, told him he had heard a rumor that Saia was going to pick some trouble 8o with Mulligan during the lunch hour, and asked him to keep the peace. Words did pass between Saia and Mulligan during the lunch hour, and Frosch, who was nearby, told Saia that "he could not talk like that, start an argument 27 Philip Gautreaux testified similarly. He impressed me as honest but forgetful ; he did not recall any agreement to sign the contract with the Respondents in 1951 , nor the later vote to "accept" it. 28 The Respondents' counsel's argument to the contrary notwithstanding, such a situation is not analogous to the Board's acceptance of cards as prima facie evidence of interest to t4 arrant an election, the latter being an administrative determination. 29 Saia signed checkoff authorizations in 1949 and 1951 While both were produced, they were not respectively identified until later testimony concerning another employee, who left in 1949, indicated that the one which purports to include Alcee Curole's signature is that of 1949. ao Both Frosch and Frank Barker testified to this. Hebert, too, testified that he heard a rumor that Saia was going to beat up Mulligan. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on company property," and sent Mulligan to the electric shop." It is alleged that this incident constituted illegal support of the Independent, Mulligan being permitted to solicit votes while Saia was censured when he attempted to speak in favor of the CIO. I do not credit Saia's testimony, which indicated that Frosch here favored the Independent ; it may be noted further that CIO activi- ties were not circumscribed by the Respondents. Here were dissension, tension, and apprehension. There is no question about the first two of these ; Frosch's testimony concerning the third is credible, and the action which he took was reasonable and proper. From the testimony gen- erally and as I observed Saia and Mulligan (I note for the record that the latter is approximately half again as large as the former, and twice as old), the former appeared to be the more aggressive, the latter more calm and reliable. I find no interference in the extent to which Frosch addressed himself more directly to Saia and told him not to start an argument on company property. Further, while attention was directed at the hearing to the fact that each of the three employees who have served as president of the Independent was elected in absentia, the fact appears to be of no more than historical interest. No con- nection or claim of support is based thereon. Nor does the contract provision limiting membership in the Independent to employees with a minimum of 120 days' service indicate unlawful support. The Sun Oil Company case ffi referred to by General Counsel deals with representation by departments, which is clearly within the control of the employer. Whether the limitation herein is in viola- tion of Section 8 (a) (1) or (3) of the Act need not now be determinedEO Although some of the instances of support, considered separately, were slight, the Respondents have supported the Independent by providing facilities for its meetings and suppers, permitting employees to engage in its business without loss of pay, providing transportation and expenses for travel on its behalf, and making office facilities and equipment available to it, and by Curole's activity in the Independent. (If and where affiliated unions receive support from em- ployers the Act is violated. Independent unions are not thereby exculpated. One lawless act does not justify another.) On the other hand, it does not appear that the Respondents sponsored the Independent's formation ; and the latter's demands," its negotiations, which admittedly included concession and compromise by the Respondents, and the contracts entered into indicate that there was no domination,86 and I so find. el Saia testified that Frosch told him if he "wanted to incriminate a union to go to the store" ; when Sala refused , told him to shut up ; and that he told Frosch that "he had no authority to make ( him) . . . shut up." az 89 NLRB 883. ds See Huffman, etc. v. Ford Motor Company, 195 F. 2d 170 (C. A. 6), March 3, 1952; Williams et at. v. Yellow Cab Company of Pittsburgh, Pa., et al. (U. S. D. C., W. D. Pa.), March 3, 1952. a* It is noted that Saia, who was outspoken, was appointed to the committee which negotiated with the Respondents. =That the Independent had neither constitution nor bylaws , nor a regular schedule of meetings is material. (It collected initiation fees and dues, and, to cite another material if trivial item , had printed letterheads ) But I do not base the finding of support on those facts, nor do they show domination . As Cancienne testified, meetings were held to negotiate new contracts with the Respondents . That relatively few grievances were processed may reflect the existence of harmonious relations or, with a credit line to Horatio Alger, "poor but honest" administration . Hebert testified that as secretary- treasurer he, rather than the grievance committee, handled and settled several grievances ; there was earlier correspondence concerning such matters. Absence of domination is further suggested by the fact that Cancienne , who had been an active CIO worker, was elected president of the Independent over Frosch , who had been instrumental in the latter's formation ; and the additional fact that CIO representa- VALENTINE SUGARS, INC. 329 (This finding is in harmony with what I regard as the proper remedy to be applied in this case since the facts indicate that a cessation in the relationship between the Respondents and the Independent can suffice to remove the effects of the support found ; disestablishment of the Independent is neither warranted by the facts nor necessary to remedy the violations to date.) B. The alleged violation of Section 8 (a) (3) Saia was employed by the Respondents from October 1948 until his discharge on September 20, 1951. Although conditions at the plant, hours, and number of employees vary as between the grinding and nongrinding seasons, he worked as a house mechanic on repairs throughout the year. His activity in the Inde- pendent and on behalf of the CIO has been noted supra. The original charge in this proceeding was based on the alleged discriminatory discharge of Savoie, a sewing machine operator, on June 11, 1951. In Septem- ber, Savoie's claim was settled, the Respondents agreeing to reemploy him in the grinding season." During a discussion between Savoie, Saia, and Sutton, the CIO representative, on September 18, the latter "advised Mr. Savoie to go down to the plant and see Mr. Barker with regard to getting his job back." (That it was unnecessary for Savoi to see Barker at that time in view of the arrangement made is here immaterial ; I can see no improper motive or other basis for the suggestion that he see Barker than Sutton 's misunderstanding.) Saia suggested or joined in the suggestion that Savoie take the company bus to the plant the next morning, and these two agreed to meet that morning. Barker was away on the morning of the 19th and did not see Savoie. That afternoon it was reported to him that Savoie had ridden the bus, having boarded it with Saia. As Sala passed by later, Barker summoned him, asked about his part in Savoie's decision to use the bus, and was in the midst of an explanation for the rule against use of the bus by nonemployees when Sala remarked that he was busy and had to get back to work, and walked off. The next day, after Savoie (he did not use the bus that day) reported that Saia had told him to use the bus, Barker charged Saia with lying, and discharged him. Saia testified that he told Barker that he had not told Savoie to ride the bus, but asked him why he didn't, and his disclaimer on the 19th was based on that distinction. It is unnecessary and might be unwarranted H7 to find that Saia , as far as the Respondents knew, was the most active on behalf of the CIO. He was con- cededly active, and one of the most active of the employees. It is clear that since April 1951, when he joined the CIO, he had actively favored it over the Independent, and it is to be presumed that the Respondents had knowledge that he was active, as General Counsel must claim. I cannot see any basis in the record for finding that the Respondents harbored such knowledge and an intent to discriminate against him and yet withheld action until Septem- ber 20, 1951. Unlawful motivation could certainly have expressed itself on the tives were permitted by the employees to address an early meeting of the Independent at the boardinghouse. The Respondents' officials did not attend any meetings of the Independent other than that in May 1951, or any suppers other than one to which they were invited in 1949. ae Despite Sutton's testimony that Savoie was to go back to work on the 19th, he was not in fact reemployed until later ; delay was not charged. 87 Although they remained available, neither Saia nor Alcee Curole was called to deny Barker's testimony that Curole said more at the preelection meeting with the Respondents in June 1951 ; or Hebert's that others argued for benefits as much as Sala did at negotia- tions with the Respondents in 1951. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 19th. Nor does the fact that Saia was not discharged on that day indicate unlawful motivation when he was discharged on the following day. If the failure to discharge him on September 19 be explained away, one need go no further back than June 5, 1951, for another clear opportunity to discharge him with impunity as an alleged troublemaker or for insubordination as he main- tained that a plant superintendent 98 had no "authority" over him. There was no dearth of opportunities to exercise unlawful motivation. Nor is there evidence to show that such motivation was recently developed. This is not to urge that Saia should have been discharged; but if the Respondents sought an excuse to do it, one can only wonder why they waited until Septem- ber 20. Barker's explanation of the reason for the action taken is credible. While authorized use of the bus was not permitted," it was not cause for discharge. Savoie was "spoken to" about it, as was Saia on September 19. The latter was discharged not because he asked Savoie to ride the bus, Barker testified, but because he had lied when spoken to about it, and he was so told. (Sala's story about the arrangement which led Savoie to board the bus with him is too thin. It serves to emphasize the rule against nonemployees riding the bus and Sala's knowledge of it: he avoided a direct arrangement '0 to ride with Savoie, but invited him for early morning coffee; Savoie joined Saia, but did not join in the only ostensible reason for his visit-he had no coffee.) In his insistence on employees' truthfulness and reliability because of the possibility of serious injury, Barker found a difference in Savoie's allegedly unwarranted claim of discrimination : Barker "knew it was ridiculous, and it wasn't true," and further, Savoie had never lied to a company official. This attempt to distinguish between untruths and between the reliability of employees who utter them is not altogether convincing. But I am not prepared to find that Barker did not, in his own mind, maintain that distinction. His appraisal, as testified to by Saia, that asking Savoie why he didn 't ride the bus was "the same thing (as) . . . telling him to get on the bus" was quite accurate ; at any rate it is reasonable and supports the action which Barker took. The same paternalistic attitude noted in connection with the 8 (a) (2) viola- tion, supra, appears to have prompted Saia's discharge. Barker would not be lied to-perhaps his amour propre'I was piqued by Saia's manners, or lack of them, the day before. But the motivation for the discharge was not Saia's union activities, or any refusal to engage in such activities, of which there is no evi- dence, and I so find. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section II, above, occurring in connection with the operations described in section I, above, have a close, P8 Here again without distinction between the two companies. 80 There is no real issue in this connection . Everyone appears to have known the rule. In the entire proceeding, only two nonemployees so-called were mentioned as having ridden the bus: Savoie and Louis Gautreaux, the latter later identified as having been granted permission once or twice, his family having lived on the Respondent' s plantation for some 65 years, and he being almost blind. Sutton's testimony indicates that Savoie was aware of the rule and that Sutton himself was : "I assume that, inasmuch as an agreement has been reached that you are going back to work, that you can ride the company' s bus. . . . 40 His testimony concerning the colloquy with Savoie on September 18 with respect to the bus is incredible . I have not overlooked Sutton's testimony in this connection. i' It is clear from the testimony and manner of the various witnesses , including his brother, that Barker exercises active and sole direction of the Respondents as far as employees are concerned. Significant were Frank Barker's reply and his manner when he was asked why he had not interceded for Saia : "Mr. T. M. Barker is the General Manager of the Company." VALENTINE SUGARS, INC . 331 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. IV. THE REMEDY Since it has been found that the Respondents have engaged in and are engaging in certain unfair labor practices affecting commerce, I shall recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondents' activities in connection with the Independent constituted support of that labor organization in violation of Section 8 (a) (2) of the Act. I shall therefore recommend that the Respondents with- hold all recognition from the Independent as the representative of any of their employees for the purpose of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment ; and cease giving effect to their agreement of April 30, 1951, or to any other contract, or to any modification, extension, supplement, or renewal thereof, entered into with the Independent or any successor thereto. 42 The violation of Section 8 (a) (2) is clear, and its extent is as clearly del- eterious to the rights of employees. But that extent and the apparent willing- ness '3 of the Respondents to permit CIO activities do not indicate any fell intent or broad purpose to interfere with employees' lawful concerted activities gen- erally, or any "general attitude of disregard for the rights of employees."" (The Respondent did not discriminate against CIO members, nor were they guilty of independent violations of Section 8 (a) (1).)" I shall therefore not recommend that the Board issue a broad cease and desist order. For the reasons stated in the subsection entitled "The alleged violation of Section 8 (a) (3)," I shall recommend that the complaint be dismissed insofar as it alleges the discriminatory discharge of and refusal to reinstate Joseph L. Saia. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. United Packinghouse Workers of America, CIO, and Valentine Inde- pendent Union are labor organizations within the meaning of Section 2 (5) of the Act. 2. By contributing support to the Independent, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 3. By such support, thereby interfering with, restraining, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act, the Re- spondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. "This is not intended to require that the Respondents vary or abandon the substantive features of their relations with their employees, established in the performance of the agreement, or to prejudice the assertion by the employees of any rights they may have thereunder. ( Salant 4 Salant, Inc., 88 NLRB 816.) d9 Cancienne appeared to indicate that he was encouraged to campaign for and "represent" the CIO. 44 Leo Katz, et al. v. N. L. R. B., 196 F. 2d 411 (C. A. 9). " See facts noted, supra, in connection with the finding that the Independent was not dominated by the Respondents. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondents have not engaged in unfair labor practices within the meaning of the Act by discharging and refusing to reinstate Joseph L. Saia. [Recommendations omitted from publication in this volume.] ESSEX WIRE CORPORATION, CHICAGO TRANSFORMER DIVISION and INTER- NATIONAL ASSOCIATION OF MACHINISTS, LODGE 1234, AFL, PETITIONER ESSEX WIRE CORPORATION , CHICAGO TRANSFORMER DIVISION and INTER- NATIONAL ASSOCIATION OF MACHINISTS , AFL, PETITIONER. Cases Nos. 8-RC-1794 and 8-RC-1814. January 16,1953 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles A. Fleming, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Employer moved to dismiss the petition in Case No. 8-RC- 1794 on the ground that its current contract with International Brotherhood of Electrical Workers, AFL, Local 1623, herein called the Intervenor, is a bar to the proceeding. On September 12, 1952, the Petitioner wrote a letter to the Employer claiming recognition on behalf of "tool and die makers, machinists, and other tool room em- ployees." The petition, filed 4 days later, describes the unit sought as "all tool room employees." On September 30, 1952, the Employer and the Intervenor executed a contract covering all the employees in the plant. At the hearing .which followed, it appeared clearly that the unit sought is the usual machine shop group. The Employer argues that the employees sought at the hearing are not the ones requested by the Petitioner, and that therefore it had a right to make a contract with the Intervenor covering the various mechanic categories in the machine shop. This argument rests en- tirely on the fact that there exists in the plant an enclosure, called the "tool room" by the Employer, situated adjacent to its conventional machine shop. One or two toolroom crib attendants work in this 102 NLRB No. 40.