Erskine Baking Company

In the Matter of ERSKINE BAKING COMPANY and BAKERY AND CONFEC- TIONERY WORKERS INTERNATIONAL UNION, LOCAL No. 25 Case No. C-694.-Decided May 00, 19-39 Baking Industry-Interference, Restraint, and Coercion: expressed opposi- tion to "outside" labor organization-Company-Dominated Union: domination of and interference with formation and administration ; support ; activities of supervisory employees ; activities on company time and property ; disestab- lished, as agency for collective bargaining ; contract with, abrogated. Mr. Alexander E. Wilson, Jr. and Mr. David Shaw, for the Board. Shepherd, Curry & Levine, by Mr. Clifford Curry, of Chattanooga, Tenn., for the respondent. Mr. H. G. B. King, of Chattanooga, Tenn., for the Union. Mr. Alvin Moore and Mr. Jac Ch;armbliss, of Chattanooga, Tenn., for the Association. Mr. Louis Cokin, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a charge and amended charge duly filed by Bakery and Con- fectionery Workers International Union, Local No. 25,' herein called the Union, the National Labor Relations Board, herein called the Board, by Charles N. Feidelson, Regional Director for the Tenth Re- gion (Atlanta, Georgia), issued its complaint dated April 4, 1938, against Erskine Baking Company, Chattanooga, Tennessee, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and an amended notice of hearing were duly served upon the respondent, upon the Union, and upon Erskine Bakery Employees Association, Local Unit No. 10 of the League of Incorrectly designated as "Bakery and Confectionery Workers Local Union , No. 25" In the charge. 12 N. L. R. B., No. 110. 169134-39-vol 12--71 1107 1108 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD Democratic Unions,2 herein called the Association. On April 15, 1938, the Regional Director issued a notice of motion to amend the complaint to allege that the respondent had engaged in unfair labor practices within the meaning of Section 8 (3) of the Act in addition to the allegations in the original complaint. Copies of, the notice of motion to amend were duly served upon all the parties. The complaint as amended alleged in substance that the respondent promoted, assisted, and sponsored the formation of the Association, and has since contributed to the support, and dominated and interfered with the administration, of the Association and that the respondent discharged one of its employees because of her union activities. On April 8 and 18, 1938, respectively, the respondent filed 'an answer and an amended answer denying each allegation in the complaint except specified ones relating to the nature of its business. On April 20, 1938, the Association filed a motion with the Regional Director to intervene and participate in the proceeding. Pursuant to notice, a hearing was held on April 20, 21, 22, and 23, 1938, at Chattanooga, Tennessee, before Hugh C. McCarthy, the Trial Examiner duly designated by the Board. The motion to intervene was renewed at the commencement of the hearing and was granted by the Trial Examiner. The Board, the respondent, the Union, and the Association were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, upon agree- ment of the parties that the discharged employee would be reinstated, counsel for the Board moved that the charge alleging the violation of Section 8 (3) of the Act be dismissed. - The motion was granted. At the close of the Board's case,, counsel for the Board moved to con- form the pleadings to the proof. The motion was granted. During the- course of the hearing, the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 26, 1938, the Trial Examiner issued his Intermediate Re- port, copies of which were duly served upon 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) and (2) and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist therefrom, and, affirmatively, completely withdraw all recognition from the Association and dis- 2 Incorrectly designated in the charge and complaint as "Erskine Bakery Unit of the League of Democratic Unions." ERSKINE BAKING COMPANY 1109 establish it as a representative of any of its employees for the pur- poses of collective bargaining. Thereafter, on June 16 and 17, 1938, respectively, the Association and the respondent filed exceptions to the Intermediate Report. On July 9, 1938, the respondent filed a brief in support of its exceptions. All parties waived the opportunity accorded them to argue orally before the Board. The Board has considered the exceptions of the respondent and the Association to the Intermediate Report and finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Tennessee corporation engaged in the business of baking, selling, and distributing, cakes, cookies, and pies at Chat- tanooga, Tennessee. It purchases approximately 90 per cent of the raw materials used in its plant from points outside the' State and ships approximately 32 per cent of its finished products outside the State of Tennessee. The respondent employs an average of 50 employees and does an annual business of $102,000, of which $58,000 is derived from out-of- State sales. H. THE ORGANIZATIONS INVOLVED Bakery and Confectionery Workers International Union, Local No. 25, is a labor organization affiliated with the American Federa- tion of Labor. It admits to membership all workers in Chattanooga employed in the bakery and confectionery business, excluding sales- men, clerical employees, porters, and supervisors. Erskine Bakery Employees Association, Local Unit No. 10, is a labor organization affiliated with the League of Democratic Unions. It admits to membership only the employees of the respondent, ex- cluding porters and officers. III. THE UNFAIR LABOR PRACTICES Since 1934 the Union had engaged in organization activities among the bakery employees in Chattanooga. Although it succeeded in en- listing a number of the respondent's employees, all efforts to negotiate with the respondent proved fruitless. Shortly prior to August 1937 Curtis Sims, a union agent, requested H. P. Erskine, president of the respondent, to enter into an agreement with the Union. Erskine, however, delayed setting a date for a conference. 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the summer of 1937 there existed in Chattanooga, the League of Democratic Unions, herein called the League. Early in 1937 Jac Chambliss, the attorney for the Association, had organized unaffili- ated labor organizations in several lumber mills in and around Chat- tanooga. Shortly thereafter, he incorporated the League as a membership corporation composed of the presidents of these inde- pendent labor organizations. The League has no treasury, offices, or other property, and exercises no control over the labor organiza- tions whose presidents constitute its membership. Through Cham- bliss, the League has made available to persons interested in forming independent labor organizations a mimeographed plan, prospectus, constitution,, and bylaws. By merely filling in several blanks on these forms, an independent labor organization may be established in any type of plant. On August 9, 1937, H. E. Pierce, a foreman in the respondent's plant, and Frank Hickman, an employee, learned of the existence of the League and decided to form a local labor organization to com- pete with the Union in organizing the respondent's employees. On the same day, Pierce telephoned Chambliss and arranged an appoint- ment with him for the following day. On the morning of August 10, 1937, Pierce, with permission of Mrs. Pickering, the forelady in charge of the female employees, spoke to three of the female employees during working hours about his decision to form a local labor organization. Shortly afterwards, he, Hickman, and the three girls, who had received permission from Pickering to leave their work, proceeded to Chambliss' office, where after a brief discussion they were supplied with mimeographed instructions, bylaws, contract forms, and articles of association. The girls were not docked for the time spent at Chambliss' office. Early in the afternoon of the same day, Pierce called a meeting of the employees on the day shift. At this meeting, which was held on company time and property, Pierce read the plan for the organi- zation of the Association to the employees, told them that "they could do better with the League of Democratic Unions than with the A. F. of L.," and promised them a 10-per cent increase in salary and a 48-hour week if they signed the articles of association for the Association. Pickering urged several employees to join the Asso- ciation at this meeting and both she and Pierce signed the articles of association. The same evening Pierce came to the plant and called the employees on the night shift to a meeting in Erskine's office. He repeated his statements made at the afternoon meeting and induced many of the employees to sign the articles of association. On August 14, 1937, Pierce, having received permission from the treasurer of the respondent, summoned the employees who had joined ERSKINE BAKING COMPANY 1111 the Association to a meeting on company property. Pierce presided over the meeting, during which the members adopted bylaws and a constitution and elected officers. By decision of the members pres- ent, Pierce and Pickering were excluded from voting or holding any office in the Association by reason of their supervisory duties. In September 1937 the executive committee of the Association re- quested the respondent to recognize the Association as the exclusive bargaining representative of the employees. At the same time, the committee demanded a closed-shop agreement and wage increases. The respondent denied these requests. On April 4, 1938, the Union called a strike for recognition. On the same day the respondent recognized the Association as the exclu- sive representative of its employees and entered into a closed-shop agreement under which existing working conditions in the respond- ent's plant were continued. The record does not disclose that any union members were discharged as a result of the execution of the closed-shop agreement. At the hearing, it was stipulated by the parties that the employees who had become members of the Association, if called as witnesses, would testify that without coercion they had designated the Asso- ciation as their collective bargaining representative and that they had signed the articles of association voluntarily. In view of the facts in this case, however, such testimony is immaterial in that it would not show that the Association in its inception and administra- tion was free of the respondent's domination and support.8 Further- more, it is incredible that the open and vigorous participation of Pierce and Pickering in the formation and administration of the Association exerted no influence on the actions of the employees, and to the extent that the stipulated testimony purports to set up such a claim, we do not credit it. We conclude that the respondent through its foreman, and with the active assistance of its forelady, organized the Association and foisted it upon the employees. Although the respondent denies that it had knowledge of the activities described above, it is chargeable with responsibility for the acts of its supervisory employees 4 It is apparent that the Association is not the free choice of the respond- ent's employees. We find that the respondent dominated and interfered with the formation and administration of the Association and contributed support to it and thereby interfered with, restrained, and coerced its 8Cf Matter of West Kentucky Coal Company and United Mine Workers of America, District No fS, 10 N. L. R B. 88. •See Matter of Virginia Ferry Corporation and Masters, Mates, and Pilots of America, No. 9; International Seamen's Union . 8 N. L. R. B 730: order enforced in Virginia Ferry Corporation v. National Labor Relations Board, 101 P. (2d) 103 (C. C. A. 4th). 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the exercise of the rights guaranteed in Section 7 of the Act. The closed-shop contract described above, having been made with a labor organization established, maintained, and assisted by the unfair labor practices of the respondent, was not entered into pursuant to the proviso of Section 8 (3) of the Act and is therefore illegal and void. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent dominated and interfered with the formation and administration of the Association, and contributed support thereto. Therefore, in order to restore to the employees the full measure of their rights under the Act, the respondent will be ordered to withdraw all recognition from the Association as a repre- sentative of its employees for the purpose of dealing with the re- spondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, and conditions of employment, and to dises- tablish it as such representative. We have further found that on April 4, 1938, the respondent exe- cuted an unlawful agreement with the Association. We shall order the respondent to cease and desist from giving effect to said agree- ment. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Bakery and Confectionery Workers International Union, Local No. 25, and Erskine Bakery Employees Association are labor organi- zations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Erskine Bakery Employees Association, and by contribut- ing support thereto, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. ERSKINE BAKING COMPANY 1113 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above 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 respond- ent, Erskine Baking Company, Chattanooga, Tennessee, and its offi- cers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Erskine Bakery Employees Association, or dominating or interfering with the formation or administration of any other labor organization of its employees or from contributing financial or other support to Erskine Bakery Employees Association or any other labor organ- ization of its employees ; (b) Giving effect to the contract of April 4, 1938, with Erskine Bakery Employees Association, or any renewal thereof; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Erskine Bakery Employees Association as a representative of any of its employees for the pur- pose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other condi- tions of employment and completely disestablish Erskine Bakery Employees Association as such representative ; (b) Immediately post notices to its employees in conspicuous places throughout its plant, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stat- ing (1) that the respondent will cease and desist as aforesaid; (2) that the respondent withdraws and will refrain from all recog- nition of Erskine Bakery Employees Association, as a representative of any of its employees for the purpose of dealing with the respond- 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment; (3) that the respondent completely disestablishes it as such representative; and (4) that the contract executed with the Erskine Bakery Employees Association is void and of no effect; (c) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Order.