Godchaux Sugars, Inc.

In the Matter of GODCHAUX SUGARS, INC. and SUGAR MILL WORM MS' UNION, LOCALS No. 21177 AND No. 21881 AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Cases Nos. C-499 and 8-613.Decided April 209, 1939 Sugar Refining IndustryAgreement: not to press pending charges if an elec- tion is agreed to, between respondent and Union, acceded to by Regional Direc- tor, given effect in order to effectuate the policies of the Act-Alleged Unfair Labor Practices: only those occurring after date of agreement not to press charges considered-Complaint: dismissed-Election: held fair-Pleading: agree- ment not to press charges put in issue by Regional Director's reply to respond- ent's answer-Investigation of Representatives: petition for, dismissed without prejudice because consent election fair-Intervenor's Petition for Certification: denied because based on consent election held 18 months before order; election results may no longer represent desire of employees. Mr. Berdon M. Bell, for the Board. Mr. Emile Godchaux and Mr. G. H. Pierson, Jr., of New Orleans, La., for the respondent. Mr. Eugene D. Saunders and Mr. William A. West, Jr., of New Orleans, La., and Mr. C. H. Levet, of Lions, La., for Godchaux Sugars Employees Labor Council.2 Miss Carol Agger, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On November 2, 1937, Sugar Mill Workers' Union, Locals No. 21177 and No. 21188, herein called the Union, filed with the Regional Director for the Fifteenth Region (New Orleans, Louisiana) a peti- tion alleging that a question affecting commerce had arisen concern- ing the representation of employees of Godchaux Sugars, Inc., Reserve, Louisiana, herein called the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The petition further alleged that Godchaux Sugars Employees Labor Council, a labor organization, herein called the 1 The complaint erroneously refers to Local No. 21188 as Local No. 2188. 2 At times inaccurately referred to in the record as Godchaux Sugars, Inc., Employees Labor Council. 12 N. L. R. B., No. 67. 568 GODCHAUX SUGARS, INC. 569 Council, claimed to represent employees directly affected by the in- vestigation and that said organization had been formed and main- tained with the assistance and encouragement of the respondent. On November 2, 1937, the Union filed charges with the Regional Director alleging that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce, within the mean- ing of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. On November 13, 1937 , the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, Article III, Section 10 (c) 2, and Article II, Section 37 (b), of National Labor Relations Board Rules and Regu- lations-Series 1, as amended , ordered an investigation upon the peti- tion and authorized the Regional Director to conduct it and to pro- vide for an appropriate hearing upon due notice , and further ordered that for the purposes of hearing the two cases be consolidated and that one record of the hearing be made. On November 15, 1937, the Union filed its amended charges alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1), (2), and (3) and Sec- tion 2 (6) and (7) of the Act. Upon the charges and amended charges theretofore filed, the Boar , ZV by the Regional Director, issued its complaint dated November 18 C 1937, alleging that the respondent had engaged in and was engaging ii unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. A copy of the complaint and of the petition , accompanied by notices of a hearing thereon to be held before a Trial Examiner on Novem- ber 29, 1937, were duly served upon the respondent, upon the Union, and upon the Council. The complaint alleged in substance that the respondent, on or about September 1, 1937 , caused to be formed a labor organization of its employees at its Reserve plant, known as Godchaux Sugars Em- ployees Labor Council,8 and has since dominated, interfered with, and assisted, by financial and other support, in the administration of said organization ; that on or about October 26, 1937 , while a ballot was being taken of the employees of the respondent to determine the exclusive representative of said employees for purposes of collective bargaining, pursuant to an agreement by and between the respondent, the Union , and the Council, the respondent did cause its supervisory officials and employees to be stationed near the polling place and to question, intimidate, and instruct the employees in regard to their voting ; that the respondent on or about August 26, 1937, addressed a letter to and circulated it among its employees at the Reserve plant; that the contents of said letter were designed to, and in fact did, 8 See footnote 2. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discourage, restrain, and coerce said employees in their right of self-organization and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; that the respondent between September 1 and November 16, 1937, threatened to discharge employees who did not join the Council, thereby dis- couraging employees in their affiliation with the Union; that the respondent between October 1 and November 16, 1937, reemployed certain employees at its Reserve plant on condition that they join the Council, which said employees were coerced and compelled to do; that the respondent between October 27 and November 16, 1937, caused a petition to be circulated among its Reserve plant employees stating in effect that the aforesaid balloting among said employees on October 26, 1937, had been fairly conducted and that as a result of said ballot the Council was the duly elected bargaining repre- sentative of all the employees, and coerced employees into signing such petition; and that the respondent on or about October 1, 1937, terminated the employment of, and has since failed and refused to reinstate, nine named employees because of their membership in the Union and in order to discourage membership of employees in the Union.4 Pursuant to notice to all parties, the hearing was twice postponed. On or about January 19, 1938, the respondent filed its answer admit- ting that the respondent was engaged in interstate commerce and specifically denying the averments of unfair labor practices made in the complaint. The respondent's answer set up the following affirmative defense : That on September 13, 1937, a conference was held by the Union and the respondent concerning the Union's claim to having been con- stituted the exclusive collective bargaining agency of the respondent's Reserve plant employees; that at this conference the respondent con- tested an assertion by the Union that it had been designated collec- tive bargaining agent by a majority of these employees; that the Union then stated that it proposed to apply to the Board for an order directing an election for the designation of itself as the collective bargaining agency of said employees. The answer further alleged that at about the time of said conference the Council claimed to rep- resent a majority of the Reserve plant employees for collective bar- gaining purposes; that on or about September 25, 1937, the respond- ent received a certain letter from the Regional Director dated Sep- tember 24, 1937, advising the respondent that the Regional Director had received from the Union a Petition for Investigation and Cer- tification of Representatives wherein it was claimed that the Union 4 The names of these employees are Joe Cambise, Ellis Cambre, William Cambre, Mar- garet Champagne, Rawley Hymel, John Keating, Dennis Millet, Lance Madere, and Carlo Saragusa. GODCHAUX SUGARS, INC. 571 was the exclusive bargaining agency for all of the respondent's em- ployees at the Reserve plant, excluding certain classes of employees; that said letter stated that "articles" filed by the American Federa- tion of Labor further alleged that the respondent had attempted to form and dominate a company union, and requested the Board to take appropriate action to end this practice; that said letter set forth its purpose as being to ask the respondent whether it would agree to an election, by secret ballot, to be conducted by the Regional Director, pursuant to the Act and Board Rules and Regulations. The answer further alleged that on or about October 11, 1937, a cer- tain conference was held by the Regional Director and the respond- ent, attended by an official of the Union, namely, the Regional Direc- tor of the American Federation of Labor, at which conference the Regional Director of the Board, in the presence of said union official "and with his concurrence," "represented" to the respondent, and the respondent was "assured," that if all interested parties executed an agreement to the conduct of an election to determine which of the two organizations, the Union or the Council, if any, was the chosen representative of the Reserve plant employees, the charges of unfair labor practices under the Act, which it was alleged had been there- tofore engaged in by the respondent, "would be effectively quashed and finally disposed of by the effect of such execution, and that neither the National Labor Relations Board nor the American Fed- eration of Labor could or would in any event urge or press these charges thereafter." The answer then avers that the respondent, rely- ing upon the aforesaid representation and assurance, did on Octo- ber 19, 1937, agree to execute such an agreement; that, accordingly, on said date the respondent, the Union, the Council, and the Board executed a certain, agreement in writing providing for a consent election by secret ballot to be held on October 26, 1937, at Reserve, Louisiana, and expressly providing "Should either of the two organi- zations [the Union or the Council] obtain a majority of votes cast by the eligible employees, [the respondent] . . . will then recognize that organization as the exclusive agency of its eligible employees for the purpose of collective bargaining;" that on said October 26, 1937, an election as provided in said agreement was held among the Reserve plant employees; that in said election the Council received 511 of the 966 ballots cast; that on November 2, 1937, the respondent was advised by the Regional Director of the official count of the ballots, and, further, that the Union had filed with the Board a formal protest of the ballot. On January 22, 1938, the Council filed in the representation case a certain petition setting forth among other things the making of the afore-mentioned agreement of October 19, 1937, by the Board, by the respondent, the Council and the Union; the holding pursuant 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereto of said election of October 26, 1937; and the results of the ballot taken. It denied all allegations of the petition filed by the Union in the representation case "which affect adversely in any man- ner the right of the Council to be recognized as sole bargaining agent of the employees of" the respondent at its Reserve plant, and requested the Board to maintain its "vested rights" in the result of the election of October 26, and to certify the Council as a sole bar- gaining representative of the employees at Reserve. Pursuant to notice, a consolidated hearing in the representation and complaint cases was held from January 24 to February 5, 1938, inclusive, at Reserve, Louisiana, before Eugene P. Lacy, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Council were represented at the hearing by counsel; the Union by its representative.5 Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing on the issues tried, was afforded all parties. At the beginning of the hearing, counsel for the Board moved to strike from the respond- ent's answer certain paragraphs and attached exhibits, and from the afore-mentioned petition of the Council certain paragraphs, on the ground that the allegations therein contained and such exhibits had no relationship with the cause being heard. In sum, these paragraphs and exhibits, so far as here material, related to the circumstances sur- rounding the consent election of October 26, 1937, as heretofore set forth in connection with the affirmative defense of the respondent's answer. The motion was granted by the Trial Examiner. Pursuant to this ruling, no evidence was permitted to be introduced on the subject excluded. Accordingly, no opportunity was afforded to the respondent to make proof of its afore-mentioned affirmative defense, nor to the Council of the allegations stricken from its petition. Dur- ing the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. In view of the Decision and Order herein, the Board finds it unneces- sary to review these other rulings of the Trial Examiner. On March 11, 1938, the Trial Examiner issued his Intermediate Report, a copy of which was duly served on all parties, finding that the respondent had engaged in, and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and recommend- ing that the respondent cease and desist from such unfair labor practices, and that it take certain affirmative action to remedy the situation brought about by the unfair labor practices found. The Trial Examiner dismissed the allegations of the complaint with a g The Intermediate Report of the Trial Examiner notes that the Union was represented at the hearing by Mr. Jack Adams of Vicksburg, Mississippi. GODCHAUX SUGARS, INC. 573 respect to the discriminatory discharges of five of the nine named persons.° Thereafter, the respondent and the Council filed exceptions to the Intermediate Report, and the Council submitted a written argument. Notice was served upon all the parties of a hearing to be held before the Board on April 12, 1938, in Washington, D. C., for the purposes of oral argument. Said hearing was called, but none of the parties appeared. On December 15, 1938, the Board issued an order overruling the above ruling of the Trial Examiner in striking from the answer of the respondent the paragraphs and attached exhibits relating, among other things, to the circumstances surrounding the election of Octo- ber 26, 1937, and restoring said paragraphs and exhibits to the record. A copy of said order was duly served upon the respondent, the Union, and the Council. On January 11, 1939, the Regional Director lodged with the Board and duly served upon the respondent, upon the Union, and upon the Council, a certain document entitled "Motion and Reply of Regional Director, as Agent for the Board, to Answer of the Respondent," herein called the "Regional Director's Reply" or "Reply." In said Reply the Regional Director, as agent for the Board, requested leave to file herein the document. The Board, by order issued February 2, 1939, granted this request and also directed that the Regional Director's Reply be incorporated in the record. The Regional Director, as agent for the Board, in and by his Reply, denied "each and all of the material allegations contained and made in said [paragraphs and exhibits restored by the order of December 15, 1938 to the record] ... except those [therein] .. . expressly admitted," and alleged that he wrote the letter of Septem- ber 24, 1937, referred to in the respondent's answer; that on or about October 11, 1937, a conference was held between the Regional Attor- ney 7 and representative of the respondent; that during the course of said conference, the Regional Attorney conferred with representa- tives of the Union by telephone and then advised the respondent that it was the disposition of the Union representatives that if the respondent consented in writing to the conduct of an election by secret ballot among its employees in terms agreeable to the said Union and pursuant to the Act, the Board Rules and Regulations, and the decisions of the Board in representation cases, for the purpose of determining the preference of said employees of the Reserve plant as between the Union and the Council as an exclusive bargaining agency, then certain allegations of unfair labor practices would not 6 The names of the four persons with respect to whom the charges were sustained are : be Cambise, William Cambre, Rawley Hymel, and John Keating. 7 Said Regional Attorney referred to is the Regional Attorney for the Board assisting the Regional Director for the Fifteenth Region. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be pressed ; that on or about October 19, 1937, a conference was held by the Regional Director, and representatives of the respondent and of the Union ; that at this conference the representatives of the Union repeated that if the respondent consented in writing to the conduct of an election by secret ballot among said employees , in terms agree- able to the Union and under and pursuant to the Act , the Board Rules and Regulations, and the decisions of the Board in representa- tion cases, for the purpose of determining the representation prefer- ence of said employees as between the Union and the Council, the Union would not instigate or press charges of unfair labor practices against the respondent on matters then pending ; that on or about October 19, 1937, the respondent executed such a consent and agree- ment in writing ; that said consent and agreement also was signed by the Board, the Union , and the Council ; that on October 26, 1937, an election pursuant to said agreement was held under the direction of the Regional Director. On February 2, 1939, the Board duly served upon the respondent, upon the Union , and upon the Council, a copy of its order of said date, afore-mentioned, accompanied by written notice to said parties, notifying each of said parties that the Board "may rely upon the material allegations of the `Reply of Regional Director , As Agent for the Board, to Answer of the Respondent' heretofore served upon you by Charles H. Logan, Regional Director for the Fifteenth Region, unless, within ten days from the receipt of this Notice, the material allegations of the Reply are expressly denied." Within the time thus prescribed, the respondent filed with the Board two documents entitled respectively, "Return or Response of Respondent to Ruling or Notice of the Board of February 2, 1939, to the effect that the Board may rely upon the material allegations of the Reply of the Regional Director to Answer of Respondent unless the mate- rial allegations of the Reply are expressly denied, " and "Exception and Return of respondent, Godchaux Sugars, Inc., to the Order of February 2, 1939, granting leave to Regional Director of the Fif- teenth Region to file reply to Answer of respondent, Godchaux Sugars, Inc." In the first of these documents the respondent states that it has "no objection whatever to the Board relying upon those allegations of the reinstated portion of the respondent's answer and accompanying exhibits that the Regional Director in his so-called `Reply' has expressly admitted to be true . . ." Neither within the time allowed by the notice of February 2, 1939, nor at any other time since that date has the respondent, the Union, or the Council denied all or any of the allegations contained in the Regional Director's Reply. The Board has considered the exceptions to the Intermediate Re- port of the Trial Examiner, as well as the various objections and GODCHAUX SUGARS, INC. 575 contentions which the respondent has made in papers filed herein since the filing of its Exceptions. We find the Exceptions and said objections and contentions, and each of them, save those which are consistent with the findings, conclusions, and order set forth below, to be either without merit or unnecessary to determine in view of the order below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a Louisiana corporation having its principal place of business in New Orleans, Louisiana. It owns and operates plants located at Raceland and at Reserve, Louisiana, and is licensed to do business in the States of New York, Arkansas, Indiana, Mis- sissippi, Oklahoma, Tennessee, Florida, Iowa, Missouri, Texas, Geor- gia, Kansas, Nebraska, Wisconsin, Illinois, Kentucky, Oklahoma, and Alabama. These proceedings involve only the plant at Reserve. The respondent's operations include the cultivation, transporta- tion, and milling of sugar cane,8 refining of raw sugar, and the proc- essing of various byproducts. More than 80 per cent of the raw materials and supplies used at the Reserve plant in the course of manufacture during the past several years was obtained and shipped to the plant from outside of the State of Louisiana. Raw sugar, the principal of these raw materials, is procured part from within Louisiana, and part, by boat and rail, from Puerto Rico, the Philip- pine Islands, and Cuba. About 871/2 per cent of the refined sugars regularly produced at the Reserve plant are shipped by rail or water from the plant to customers located in States other than Louisiana. An even greater percentage of the byproducts are sold and shipped to points outside Louisiana. The average monthly sale of refined sugar produced at the Reserve plant during past years has amounted to 45 million pounds. In October 1937 the respondent employed 996 employees in the Reserve plant, excluding clerical, supervisory, and agricultural employees. II. THE ORGANIZATIONS INVOLVED Sugar Mill Workers' Union, Locals No. 21177 and No. 21188, are labor organizations affiliated with the American Federation of Labor, admitting to membership employees of the respondent working in the "mill proper," excluding supervisory, clerical, and certain other employees. The Union also admits to membership employees en- gaged in loading and unloading shipments to and from the plant, 8 The employees engaged in the agricultural operations are not here involved. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and firemen, engineers, and other employees who work on the respondent's narrow gauge railroad. Godchaux Sugars Employees Labor Council is an unaffiliated labor organization, with membership limited to persons employed by the respondent. Certain supervisory employees and agricultural workers are ineligible for membership. HI. TIIE UNFAIR LABOR PRACTICES ALLEGED TO HAVE BEEN ENGAGED IN BY THE RESP('NDENT ON OR BEFORE CCTCBER 26, 1937 In accordance with the notice of February 2, 1939, the Board, in the exercise of its discretion and for the purpose of these proceedings, has determined to and hereby does rely upon the material allegations contained in the Regional Director's Reply, as allegations of fact admitted to be true by all parties. Upon the facts thus admitted and upon the record the Board finds: On September 24, 1937, the Regional Director, by written communi- cation, advised the respondent of the receipt by the Board from the Union of a petition for investigation and certification of representa- tives; of the claim therein made by the Union that, under the Act, it was the exclusive bargaining representative of all the respondent's Reserve plant employees, with certain exceptions: and of the pend- ency of charges by the American Federation of Labor, the labor organization with which the Union was and is affiliated, concerning the formation and domination of a company union by the respondent. The company union thus referred to was the Council. The Regional Director, in this communication, further made inquiry of the respondent whether the respondent was agreeable to the conduct of an election by the Board among the Reserve plant employees for the purpose of determining their preference of a collective bargain- ing representative. Thereafter, on or about October 11, 1937, the Regional Attorney and the respondent met in conference during which time the Regional Attorney advised the respondent, follow- ing inquiry made by him of the Union in that respect, that it was the disposition of the Union that if the respondent consented to an election to determine the choice, if any, of the Reserve plant em- ployees as between the Union and the Council for collective bar- t aining representation, certain allegations of unfair labor practices would not be pressed. On October 19, 1937, another conference took place, this one participated in by the Union as well as by the Regional Director and the respondent, during the course of which the Union reiterated its position. that if the respondent consented to an elec- tion, the Union would not instigate or press charges of unfair labor practices against the respondent on matters then pending. Accord- ingly, on October 19, 1937, the respondent, the Union, the Council, and the Regional Director, said Director acting in that behalf as GODCHAUX SUGARS, INC. 577 agent for the Board, executed a written consent and agreement pro- viding for the conduct of an election on October 26, 1937, under the direction of the Board among certain specified classes of employees employed at the Reserve plant, for the purpose of determining whether a majority of these employees desired to have either the Union or the Council represent them in collective bargaining with the respondent. The consent and agreement specifically provided that if either of the interested labor organizations obtained a ma- jority of the votes cast in such an election, the respondent would recognize such organization as the exclusive collective bargaining agency of all the employees eligible to vote. On October 26, 1937, pursuant to the consent and agreement, an election was held in which the Council obtained a majority of the votes cast. It is apparent from the foregoing, and we find, that on October 19, 1937, the respondent executed the above written consent and agree- ment of that date, in reliance upon a representation then made by the Union, in the presence of the Regional Director, that if the respondent would execute said consent and agreement the Union would not instigate or press charges with respect to unfair labor practices allegedly engaged in by the respondent prior to that time. While this representation originated with and was put forth by the Union and not by the Regional Director, it is manifest that the presence of the Regional Director at the conference, coupled with his execution of the written consent and agreement, reasonably were calculated to and did indicate to the respondent an acquiescence by the Board through its agent in the representation made, and, in con- sequence, in the undertaking implicit. It is true that under the Act the Board upon charges of unfair labor practice being filed and a hearing upon complaint had, may in its discretion proceed to a deter- mination of such charges irrespective of whether a representation or undertaking, such as the above, was made or assumed. Neverthe- less, effective administration of the Act and furtherance of its poli- cies require that the Board pay scrupulous regard to such a repre- sentation and undertaking of its agent, where, as here, they relate to matters of adjustment.' However, it is charged and alleged that subsequent to October 19, 1937, and prior to the holding of the election of October 26, as well as during the election, the respondent engaged in various unfair labor practices, which, among other things, interfered with, re- Cf. Matter of Shenandoah-Dives Mining Caapany and International Union of Mine Mfll & Smelter 11 'orheis. Local 00 6, 11 N L. It B 885, where in an analogous situa- tion involving an agreement of the emp :oyei, participated in by an agent o, tile bluaid, to remedy alleged unfair labor practices. the Boaud said "Although we do not agree that the compromise agreement estop$ the Board from proceed- ing herein, we believe that effective administration of the Act requires that the Board's agents have the respect and confidence of labor organizations and employers with whom DECISIONS OF NATIONAL LABOR RELATIONS BOARD 578 strained, and coerced its Reserve plant employees in their exercise f a free choice of representatives at that election. Plainly, were uch charges and allegations proved, we should have little hesitancy n disregarding the representation and undertaking of October 19. Conduct of such character by the respondent would vitiate any claim to exoneration. The evidence adduced at the hearing, however, fails to establish any unfair labor practices committed by the respondent during the period following October 19, 1937, to and including the election of October 26. As to matters directly relating to the election, it is shown that during the taking of the ballot, certain individuals, in- cluding several so-called "foremen," sat at a table near the polling place, making notations of the names of employees who came to vote. It is not clear that the so-called "foremen" were foremen ill, the usual sense of persons identified in interest with the employer. They ap- pear to have been acting solely for the Council in determining what employees had not voted in order to furnish such employees trans- portation facilities to the polling place. Upon request of the Union, these individuals transferred their activities to a point farther away from the polls. It also is shown that a company policeman was stationed near the polling place part of the day, but it does not ap- pear that he did anything more than direct traffic and generally observe events. There likewise was some proof of electioneering car- ried on by the Council near the polls; however, there is no evidence of employer-action in that connection. No objection to any of these activities of the Council, save the request regarding the individuals noting the voters, was made by the Union to persons in charge of the election at the time of their occurrence. There also was proof regarding a parade, barbecue, and dance held by the Council for its members and friends on the night preceding the election. The witnesses were in agreement that this celebration was the most elaborate they ever had attended or heard of occurring in Reserve. The cost of the affair, an amount in excess of $400, was met, for the most part, with money furnished by one C. I. James, a businessman of Reserve. James testified that loans made by him to the Council prior to February 1, 1938, aggregated $1,270, that he promised the Council to advance all funds needed to meet the ex- penses of its participation in these proceedings which the Council their work brings them in contact. Repudiation of agreements entered into and relied on in good faith necessarily impairs such respect and confidence . It may well be that the Regional Director intended the instant agreement to be subject to acceptance by the complainant, Gliecek, or approval by the Board, or both . There is, however, no evidence to that effect. The respondent apparently relied and acted upon the agreement , reinstating an employee the legality of whose discharge had not been adjudicated . We believe the policies of the Act will best be effectuated by giving effect to the agreement and refraining from consideration of the alleged unfair labor practices. The complaint will be dismissed." GODCHAUX SUGARS, INC. 579 itself could not pay, that he never discussed these loans or advances with the respondent nor does he look to it for repayment, that he expects to be paid by the Council some time in the future. While James' testimony about these loans and undertakings is incredible, and, while we have no doubt that he failed to disclose on the witness stand the true nature of these transactions, yet the record is barren of proof establishing that in engaging therein he acted at the instance of the respondent. Upon the evidence before us we cannot conclude as concerns the election that the respondent intimidated, restrained, or otherwise interfered with its employees in their voting, as alleged in the complaint. We find that the election of October 26, 1937, was a proper one, in conformity with the terms of the consent and agree- ment therefor of October 19. We believe, because of the representation and undertaking of Octo- ber 19, 1937, that the policies of the Act will best be effectuated in this case if we refrain from considering the record in so far as it relates to unfair labor practices allegedly engaged in by the respond- ent on or before that date. Since we also have found that the re- spondent engaged in no unfair labor practices after October 19, to and including October 26, 1937, the complaint and the proceedings, with regard to all such practices, allegedly occurring prior to and includ- ing October 26, 1937, should, and will be, dismissed. IV. THE UNFAIR LABOR PRACTICES ALLEGED TO HAVE BEEN ENGAGED IN BY THE RESPONDENT AFTER OCTOBER 2 6, 19 3 7 A. Alleged domination of and interference wit1i, the administration of the Council and support thereof The evidence with respect solely to acts, events, and occurrences after October 26, 1937, does not establish that the respondent subse- quent to that date dominated or interfered with the administration of the Council, or contributed financial or other support to it, and we so find. Accordingly, we will dismiss the complaint in so far as it alleges that the respondent after October 26, 1937, dominated and interfered with the administration of the Council and contributed financial or other support to it, that the respondent thereby inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. B. Alleged interference, restraint, and coercion in the exercise of rights guaranteed by Section 7 About November 13', 1937, following the filing by the Union with the Board of a protest to the election of October 26, various employ- ees at the Reserve plant who were members of the Council circulated a certain petition, on the respondent's time and property, addressed 169134-39-vol. 12-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARB to the Board and stating, in substance, that the signers thereof be- lieved the election of October 26 to have been fairly conducted, that the results were satisfactory to them, and that they desired the Coun- cil to be certified as an exclusive bargaining agency. The petition was circulated and the signatures thereto obtained with the knowledge and acquiescence of at least one foreman. How- ever, the evidence does not establish that the respondent, through its officers, supervisory employees, or otherwise compelled employees to sign the petition. We have held that a grant by an employer under certain circumstances of its time and property to a labor organiza- tion for organizational purposes constituted a violation of the Act.lo The question in all cases, however, is whether by such grant the employer has interfered with self-organization or collective bargain- ing.l" We think that the respondent's grant of its time and property for the circulation of a petition of the kind here involved, under the circumstances here presented, did not contravene the Act. The complaint alleged that the respondent imposed membership in the Council as a condition to its reemploying a number of persons whom it reemployed during the period from October 1 to November 16, 1937. With respect to persons allegedly so reemployed subse- quent to October 26, 1937, the record does not satisfactorily establish the imposition of such a condition by the respondent. While there is some testimony of conduct by supervisory employees, which may have occurred after that date, tending to show that pressures were brought to bear upon reemployed employees to join the Council, we cannot say that the evidence of acts and circumstances after October 26 warrants such a finding. Moreover, it appears that, of the persons reemployed subsequent to the election who testified at the hearing, some joined the Council after their reemployment, some never joined, and several joined preceding their reemployment but not pursuant to any compulsion attributable to the respondent. We find that the respondent, subsequent to October 26, 1937, did not interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed therein by Section 7 of the Act, as alleged in the complaint. We, therefore, will dismiss the complaint, in so far as it so alleges. C. Alleged discrimination in regard to hire and tenure of employment The complaint alleged that the respondent on or about October 1, 1937, terminated the employment of nine named employees and has at all times since failed and refused to reinstate them, because of their 10 Matter of Servel, Inc and United Electrical, Radio and Machine Workers of America, Local No 1002, 11 N L R B 1295, and cases there cited. n Cf. Matter of Aeolian-American Corporation and Amalgamated Piano Workers of America, 8 N. L. R. B. 1043. GODCHAUX SUGARS, INC. 581 membership in the Union and in order to discourage membership of employees in the Union. Three of these employees 12 were laid off prior to October 1, 1937, during the seasonal shut-down of the plant, and were not reemployed when the plant reopened on or about Octo- ber 1, 1937. However, the record does not show that by acts subse- quent to October 19, 1937, the respondent discriminated in regard to their hire or tenure of employment. They made no application for reinstatement after that date. One other of the nine employees is was laid off in September 1937 and never applied for work thereafter. We, therefore, cannot find any discrimination as to him subsequent to October 19. Of the remaining five employees, all but one were found by the Trial Examiner not to have been discriminated against in their hire or tenure of employment.' In view of the failure of the Union to file exceptions to the Intermediate Report, and its acquiescence in the Trial Examiner's findings'15 we shall not consider whether the respondent discriminated in regard to their hire and tenure of em- ployment subsequent to October 19, 1937. We affirm the findings of the Trial Examiner in this respect. The remaining employee had been laid off, apparently, in the seasonal lay-off and made applica- tion for reinstatement after October 1. The date of his last appli- cation is not shown. He testified that when he made this application he was told by the plant manager that "after the election and every- thing was settled that he [plant manager] expected everybody to go back to work." It would appear from this that the application was prior to October 19. In response to interrogation at the hearing whether he had applied after November 1, 1937, the employee testified "I wouldn't know." Under these circumstances, we cannot find that the respondent by acts subsequent to October 19, discriminated against him. We find that the respondent, subsequent to October 26, 1937, did not discriminate in regard to the hire or tenure of employment of any of its employees, or as to any term or condition of their employ- ment, within the meaning of the Act, thereby interfering with, re- straining, or coercing its employees in the exercise of rights guaran- teed them by Section 7 of the Act. We, therefore, will dismiss the complaint in so far as it so alleges that the respondent terminated the employment of nine named employees and has at all times since failed and refused to reinstate them, because of their membership in the Union and in order to discourage membership of employees in the Union. 12 The names of these employees are Cambise , William Cambre, and Saragusa. Is His name is Keating. 14 The names of these employees are Ellis Cambre, Champagne, Madere, and Millet. 15 The Union notified the Board that it had no exceptions to file and was satisfied with the hearing and procedure of the Trial Examiner. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE QUESTION CONCERNING REPRESENTATION The petition of the Union for an investigation and certification of representatives alleges that a question has arisen concerning the rep- resentation of certain of the respondent's Reserve plant employees, in that, although the Union claims to represent a majority of these employees, within a unit appropriate for collective bargaining pur- poses, the respondent denies this claim and refuses to bargain collec- tively with the Union as the exclusive representative of all the em- ployees in such unit unless and until the Board certifies that the Union is such exclusive representative. It is apparent from the char- acter of evidence introduced at the hearing in support of the petition, and from other circumstances shown, that the Union is here seeking merely the direction of an election to determine representatives, not a certification of representatives upon the record. The employees who the Union in its petition alleges constitute an appropriate collective bargaining unit and whom it claims to repre- sent, were all included substantially in the group of employees eligible to vote in the election of October 26. That election was held 1 week before the filing herein of the petition for investigation, an election which we have found was a fair and proper one, in accordance with the consent and agreement of October 19. Moreover, we see no reason for finding, especially in view of said consent and agreement, that the unit in which the election was held was not an appropriate one for collective bargaining.',, Since we have found that the election of October 26 was fair and proper, and the unit in which it was held not inappropriate, we shall dismiss the petition of the Union filed November 2, 1937. We construe the request of the Council for certification made in its petition filed herein on January 22, 1938, as based upon the results of the election of October 26. Some 18 months have intervened since the conduct of that election, a period in which circumstances may have so changed that the Council no longer represents a majority of the employees employed by the respondent within an appropriate col- lective bargaining unit. Under these circumstances, we shall deny this request 1T For the same reason, our dismissal of the petition shall be without prejudice. 1e Cf. Matter of Marlin-Rockwell Corporation and Local No. 338, United Automobile Workers of America, 5 N. L. R B. 206, 210-211. The election was conducted among all "plant employees," that is, "all employees at the Reserve , Louisiana, plant paid by the hour or by piece except those in clerical or supervisory capacities , and those whose normal employment is in agricultural or field work." 11 Matter of Bamberger-Reinthal Company and International Ladies' Garment Workers Union, 9 N. L. R. B. 1057 . Matter of American France Line et at. (Seatrain Lines, Inc.) and International Seamen's Union of America , 10 N. L. R. B. 1169. GODCHAUX SUGARS, INC. 583 Upon the basis of the foregoing findings of fact and upon the entire record in these proceedings, the Board makes the following : CONCLUSIONS OF LAW 1. The operations and business of the respondent constitute a con- tinuous flow of trade, traffic, and commerce among the several States, and between the States and foreign countries, within the meaning of Section 2 (6) of the Act. 2. Sugar Mill Workers' Union, Locals No. 21177 and No. 21188, and Godchaux Sugars Employees Labor Council, are labor organiza- tions, within the meaning of Section 2 (5) of the Act. 3. The respondent, since October 19, 1937,18 has not dominated or interfered with the administration of, or contributed financial or other support to, Godchaux Sugars Employees Labor Council, within the, meaning of Section 8 (2) of the Act. 4. The respondent, since October 19, 1937, has not interfered with, re- strained, or coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, within the meaning of Section 8 (1) of the Act. 5. The respondent, since October 19, 1937, has not discriminated in regard to the hire or tenure of employment, or any term or condi- tion of, employment of its Reserve plant employees, within the mean- ing of Section 8 (3) of the Act. 6. No question concerning the representation of employees of the respondent, Godchaux Sugars, Inc., for the purposes of collective bar- gaining has arisen, within the meaning of Section 9 (c) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the com- plaint, as amended, against the respondent, Godchaux Sugars, Inc., be, and it hereby is, dismissed. AND IT IS FURTHER ORDERED that the Petition for Investigation and Certification filed by Sugar Mill Workers' Union Locals No. 21177 and No. 21188, affiliated with the American Federation of Labor, be, and it hereby is, dismissed, without prejudice. AND IT IS FURTHER ORDERED that the application by Godchaux Sugars Employees Labor Council for certification as representative of the employees of the respondent, Godchaux Sugars, Inc., be, and it hereby is, denied. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Order. Is "Since October 19, 1937," as used in the Conclusions of Law, means from October 19, 1937, until the date of the hearing , January 24, 1938.