Burns and Gillespie

National Labor Relations Board - Board Decisions

Dec 19, 1952

101 N.L.R.B. 1181 (N.L.R.B. 1952)

BURNS AND GILLESPIE 1181
Having found that the Respondent has refused to bargain with the Union as
the duly designated representative of employees in an appropriate unit, I shall
recommend that the Respondent , upon request , bargain collectively with the
Union as the exclusive bargaining representative of the employees in said unit.
The Respondent 's refusal to bargain , its action in dismissing its union em-
ployees from their jobs , and its threats of reprisal should its employees win
union representation , show an intent generally to interfere with its employees'
rights under the Act. Therefore it will be recommended that the Respondent
cease and desist from in any manner interfering with its employees ' rights under
the Act.
Upon the basis of the above findings of fact and the entire record in the
case, I make the following :
CoNCLUsIONs of LAW
1. The Union is a labor organization within the meaning of Section 2 (5)
of the Act.
2. All employees of Respondent 's Boise , Idaho, operations , excluding sales-
men, office and clerical employees , and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. The Union on March 10, 1952, was, and at all times thereafter has been,
the exclusive representative of employees in such unit for the purposes of col-
lective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit , the Respondent has engaged:
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
5. By expelling its employees from their jobs, thereby discouraging membership
in a labor organization, the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
(6) By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
T. H. BURNS AND R. H. GILLESPIE, D/B/A BURNS AND GILLESPIE and
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, AFL. Case No. 39-CA-115. December 19, 1952
Decision and Order
On June 30, 1952, Trial Examiner Stephen S. Bean issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
101 NLRB No. 187.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in the copy of the Intermediate Report attached hereto. There-
after, the Respondent filed exceptions to the Intermediate Report and
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. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendation.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, T. H. Burns and R. H.
Gillespie, d/b/a Burns and Gillespie, Gentry, Arkansas, its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL, or in any other labor
organization, by discriminatorily refusing to hire or discriminating
in any manner in regard to hire, tenure of employment, or any term
or condition of employment.
(b) In any other manner interfering with, restraining , or coercing
employees in the exercise of the right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all 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 by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Billie Evans, Gertrude Smith, Madeline Barbee, Lena
Weeks, Dovey Crowley, Kenneth Cox, Dale Bader, and Joe Hacker, in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy," the positions discriminatorily denied them or sub-
stantially similar positions, without prejudice to their seniority or
other rights and privileges.
(b) Make whole Billie Evans, Gertrude Smith, Madeline Barbee,
Lena Weeks, Dovey Crowley, Kenneth Cox, Dale Bader, and Joe
hacker in the manner set forth in the section of the Intermediate
S Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Houston and Murdock].
BURNS AND GILLESPIE 1183
Report entitled "The Remedy," for any loss of pay they may have
suffered as a result of Respondent's discrimination against them.
(c) Post at its plant at Gentry, Arkansas, copies of the notice at-
tached to the Intermediate Report and marked "Appendix A.27
Copies of the said notice, to be furnished by the Regional Director of
the Fifteenth Region, shall, after being duly signed by Respondent, be
posted by it immediately upon receipt thereof and be maintained by
it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fifteenth Region, New
Orleans, Louisiana, in writing, within ten (10) days from the date
of this Order, what steps the Respondent has taken to comply there-
with.
A This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof, the words "A Decision and Order." If this
Order is enforced by a decree of a United States Court of Appeals, there shall be inserted
in the notice before the words "A Decision and Order," the words "A Decree of the
United States Court of Appeals, Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a second amended charge filed on January 18, 1952, by Amalgamated
Meat Cutters and Butcher Workmen of North America , AFL, herein called the
Union , and upon complaint and notice of hearing issued and served by the
General Counsel ( and an answer having been filed), a hearing upon due notice
was held at Rogers , Arkansas , before me , as Trial Examiner , on May 9 and
20, 1952 . The complaint alleged violations of Section 8 (a) (1) and (3) of
the National Labor Relations Act, herein called the Act, by T. H. Burns and R. $..
Gillespie , d/b/a Burns and Gillespie , a partnership, herein called Respondent,
by its refusing to employ eight applicants for employment ,' because of their
membership in, or other activities on behalf of, the Union and by its having
engaged in certain independent acts of interference , restraint , and coercion.
All parties were represented by counsel and were afforded full opportunity to
be heard , to examine and cross -examine witnesses , to introduce evidence bear-
ing on the issues, to argue the case orally upon the record , and to file briefs,
proposed findings of facts, and conclusions of law. A brief was received from
Respondent on June 23 , 1952 . Decision having ' been reserved on a motion to dis-
miss the complaint it is hereby disposed of in accordance with the findings and
conclusions of law.
Upon the entire record in this case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a partnership licensed to engage in and engaging in the business
of processing poultry in the State of Arkansas. Its main office and plant
'Billie Evans, Gertrude Smith, Madeline Barbee, Lena Weeks, Dovey Crowley, Kenneth
Cox, Dale Bader, and Joe Hacker.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are located in Gentry, Arkansas. Since it began business operations on June
12, 1951, Respondent has sold processed poultry valued in excess of $75,000,
over 90 percent of which has been shipped directly to places outside the State
of Arkansas. During the same period, Respondent's purchases of live poultry
and supplies have exceeded $50,000, over 90 percent of which has been shipped
to Respondent from places outside the State of Arkansas. I find that Respondent
is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
is a labor organization within the meaning of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and issues
Respondent commenced business on June 12, 1951. Before operations began
it had accumulated a list of applicants for employment, from which employees
were at first selected. Thereafter, as the occasion and vacancies arose, help
was hired on more or less of a current basis contemporaneously with their appli-
cations'
The plant started in with a complement of about 23 employees, the force
increasing to 41 on July 21 and to 53 on August 25. The 8 persons mentioned in
Appendix A, attached to the complaint and in footnote 1, herein called Com-
plainants, all were and several still are employees of Pluss Poultry Company,
herein called Pluss, formerly located in Decatur, Arkansas, and now doing
business in Siloam Springs, Arkansas. Pluss' employees perform the same
character of work as Respondent's.
On or before June 5, 1951, the complainants all became members of the Union
and left work at Pluss on strike on June 5, 1951. All eight were experienced in
the poultry processing business and all applied for employment with Respondent
in July 1951. It is the General Counsel's main contention that Complainants
were not hired by Respondent (although they were qualified to do the work they
sought and Respondent had work available), because they had been identified
with and had engaged in activities on behalf of a labor organization including a
strike at Pluss.
In defense, Respondent asserts that : Complainants made no bona fide appli-
cation for work ; the General Counsel failed to show the person to whom appli-
cations were made had authority to hire; no jobs were available when applica-
tions were made ; the treatment accorded the Complainants was no different
than that extended to other job seekers ; there was no showing that the alleged
applicants were qualified to hold jobs ; if jobs became available after the time
applications were made, the General Counsel has not shown the applicants were
then available ; the alleged antiunion statements were privileged as free speech
and made by a person without authority to hire; and it has not been shown
that the relationship of employee and employer existed between the alleged
applicants and Respondent.
B. The facts
On an afternoon in the middle of July 1951 (Mrs.) Billie Evans saw T. H.
Burns, one of the two individuals comprising the Respondent partnership, stand-
2 For example : Lula Tannehill applied for work on July 16, was notified she had been
accepted on July 17, and went to work on July 18 ; Lucille Carr applied for work on
BURNS AND GILLESPIE 1185
Ing in the door of his feed store in Gentry and, in the presence of a Mrs. Reynold
Baxley, told him she was looking for a job and asked him if he was in need of
any help at Respondent 's plant. Burns replied that he did need some women.
Evans told Burns that she would like to have a job and Burns asked her if she
had had any experience. Upon Evans informing Burns she had, he asked her
where she had gained it and she replied she had worked at Pluss. Then Burns
asked her if she were one of those that walked out on strike. Evans answered
affirmatively and Burns replied, "Well I can't hire you then . If you take that
union card and just tear it like that , I would hire you in a minute, but since you
belong to the Union and walked out on strike, I just can't use you ." When Evans
asked him why her belonging to the Union would make any difference, Burns
replied he did not want any of those workers and that he had fired one boy
because he belonged to the Union and had walked out on strike. Burns added
that he and Mr . Simmons, Pluss' manager , were real good friends and that he
just did not tolerate the Union . However , Evans gave Burns her name and
address and the latter told her if he needed anyone he would come after her. A
few days later in the company of Complainants Gertrude Smith and Madeline
Barbee ( who, as will subsequently appear, had already unsuccessfully sought
employment with Respondent ), Evans met Burns in front of Steele's Drug Store
In Gentry . Smith said to Burns that the three women were hunting or looking
for jobs and asked him if he had any work for them . Burns replied that be was
in need of two or three good women . When Barbee said she had previously
applied for work and had been told no help was needed , Burns stated none was
needed then but was wanted now . Addressing Evans, Burns stated that he had
almost come after her the previous morning. He then said that he would hire
the three women in a minute if they would tear their union cards in two and
throw them away but that he would not employ them unless they did.a Burns
went on to say that he would not have a union in the shop , that he was going to
fight the Union, that he might have to fight it on his back , and that if the Union
should prevail he would shut the plant down . Burns further said that a union
would never do the women any good in Arkansas because a closed shop was not
allowed in that State, and that the white -collared union men did not care about
union members and only wanted their money.
About 2 weeks before Barbee , Evans, and Smith had their conversation with
Burns, Barbee had been at Respondent 's office where she talked to Lucille Gil-
lespie,4 wife of R . H. Gillespie , the second individual comprising the Respondent's
August 1 and went to work on August 2 ; and Bud Harper applied for work around August
1 and went to work on August 9. (Tannehill inadvertently referred to June rather than
July, the correct month , as shown by Lucille Gillespie 's testimony and the payroll
records.)
A Burns' unsubstantiated version of this part of the conversation was that Evans said
the Union had failed to live up to its promises and that she hated to go back to Pluss and
face Simmons , and that he then said if he belonged to a union and felt as Evans did he
would tear up his union card In the face of Evans ' denial of making the statement
attributed to her and the credited testimony of Evans, Barbee , and Smith , the appearance
of whose honesty favorably impressed me, that Burns stated he would not employ them
unless they should tear up their union cards , I am convinced that the testimony of these
three women does , and the testimony of Burns does not, reflect the truth.
,'Mrs. Gillespie was the only female employed in Respondent 's office. On the strength
of her testimony that she takes applications for employment , employed Emma Springer
on July 18, Eva Hall on July 27 , Desmond Baker on August 2, Roy Comstock on August 9,
and Douglas Baldridge and Charles Hughes on July 23, that she took the names of appli-
cants whose appearance she liked , and that she considers she had pretty good judgment
of people , and on the basis of Burns ' testimony that as far as he knew Mr. and Mrs.
Gillespie do the employing , I am satisfied that Lucille Gillespie had authority to select
for hire and did hire employees and I determine, under Section 2 (13) of the Act , that she
acted as an agent of Respondent so as to make Respondent responsible for her acts.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partnership. Mrs. Gillespie asked her if she were experienced and when Barbee
stated she had worked at Pluss, Mrs . Gillespie asked how long since she had
worked there . Barbee replied the last date was June 5 , 1951 . Thereupon, Mrs.
Gillespie stated Respondent did not need any help at the time.
About July 18, Complainants Dovey Crowley and Lena Weeks went to the plant
and asked Mrs. Gillespie for jobs. They were informed they would have to see
Burns at his feed store .5 The two women then went to the store, saw Burns,
asked him if he were hiring help and applied for jobs . Burns said he could not
tell them that day , but that he would have Crowley and Weeks in mind , that he
was not exactly hiring unless someone quit and he should put somebody in his
place. When Burns, upon inquiry , learned that the two had struck at Pluss, he
told them he could not use them, that because of the Union he would not hire
them and that he did not want to get mixed up in the strike. In response to
Crowley's direct question , Burns stated he would not hire her or Weeks because
they belonged to the Union.6
About the middle of July 1951 , complainants Kenneth Cox , Dale Bader, and
Joe Hacker went together to Respondent 's plant to apply for work . Upon their
arrival , Burns drove into the plant premises in a truck and walked over to them
in front of the chicken barn . Bader asked Burns if he would put the three to
work . Burns asked them if they were from Pluss. Cox replied that they were.
Burns said two women had applied for work the previous day and he could have
hired , but did not hire, them because they belonged to the Union , that he had fired
one man because he belonged to the Union , that he and Simmons were good
friends and he did not want to get involved , that he would not hire anyone he
knew belonged to the Union and if he found out that any employees did belong
he would kick them out. Burns also stated that he had an opening for one man
right then and could use the other two later , but that he would not hire any of
the three because they were union . Burns further said that he might have to
take the Union some day but that he would be flat on his back if he did and that
he would fight the Union until he was flat on his back.?
Between July 13 and September 12, inclusive , 1951, Respondent hired 24
employees , including at least 10 males, to replace hands who quit and to increase
its working force. About 10 of these 24 still remained in Respondent 's employ
at the time of the hearing."
8 Mrs . Gillespie 's slightly different version that she said it was "perfectly all right" for
them to see Burns ( who incidentally she testified had once gone out to notify an applicant
that he or she had been hired ) impressed me as being a less accurate recital of what was
said than Crowley's and Week 's account.
6 Burns' testimony with respect to this conversation was that Crowley and Weeks in-
quired for employment at the store , that he asked them if they had worked elsewhere,
was told that they had worked at Pluss and had gone out on strike, that he told them
Simmons and he were on good terms and Respondent hoped it could carry on work without
trouble and that he referred the women to the plant . Over the General Counsel 's objection,
I allowed Burns to testify that ( not in proof of the fact , but by way of his explanation
of the use of the term ) the "trouble" was a fatal accident that he had been informed
occurred at Pluss during the strike. Based upon my observation of Crowley , Weeks, and
Burns, and upon the credited and corroborated testimony of other witnesses to whom
Burns made similar statements , I am convinced that among other things he said during
this interview , that Burns told Crowley and Weeks he would not hire them because of
the Union and because they belonged to the Union.
1 Burns' answer to this testimony was that he has no recollection of Cox and Bader
asking for jobs. I am satisfied , despite Burns ' testimony , that Cox, Bader , and Hacker all
made known to Burns the fact they desired to be employed at Respondent 's plant and that
the conversation took place as I have found above.
8 R. H. Gillespie 'testified Respondent had about 45 to 50 employees at the time of the
hearing. Lucille Gillespie testified that Respondent 's business was not too good in 1951,
has been much better since February 1952, that the Respondent has employed 23 to 25
women practically all the way through, and that all through 1951 the plant worked very
few men but this year employs more men than ever before.
BURNS AND GILLESPIE
C. Conclusions
The Law and Respondent's Contentions
1187
It is well settled that where an employer has employment available for
which he intends to hire persons he may not refuse employment to qualified
applicants merely because such applicants are identified with or have been en-
gaged in activities on behalf of a labor organization. Montgomery Hardwood
Flooring Company, 72 NLRB 113; Jos. N. Fournier, Rome-Lincoln-Mercury Corp.,
86 NLRB 397; N. L. R. B. v. Waumbec Mills, Inc., 114 F. 2d 226 (C. A. 1).
Unless there is merit in one or more of the defenses interposed by Respondent,
it must follow, on the facts as found, that Respondent violated Section 8 (a) (1)
and (3) of the Act.
Let us proceed, therefore, to examine Respondent's contentions :
1. The Complainants did not make bona fide application for work
Respondent urges that the Union engaged in a scheme of entrapment ; that the
Union inspired its members to apply for work with it for the sole purpose of
making out a case of violation of the Act s
The record is bare of evidence of any reason for the Union desiring to ensnare
this Respondent or of any indication the Union had the slightest idea its member&
would encounter the reception accorded them when they did apply. All of the
applicants who testified, with the exception of Crowley, had assiduously sought
work at other places of business before asking Mrs. Gillespie or Burns for jobs,
at least one of them having applied at as many as five different establishments.
There is a profusion of credited testimony that all the complainants were in need
of work and genuinely desired it, that the union representative told them the
strike at Pluss was likely to be of long duration and advised them to seek
employment at various places of business including Respondent's. Respondent
endeavored strenuously to induce all the Complainants who testified to admit
that the union representative had coached them on how to approach Respondent
but without exception they all credibly testified that they received no instructions
concerning their manner of presenting themselves. I am convinced that the
Complainants were sincere in their desire to work for Respondent both at the
time they applied and continuously thereafter up to at least the time they were
able to return to work at Pluss or found jobs elsewhere.
2. T. H. Burns had no authority
Clearly Burns was one of the two partners of Respondent. Although Gillespie
devoted his full time to Respondent's business and received a salary, and Burns
spent but little time in the conduct of the plant, he nevertheless was a full
partner and received his share of the partnership profits. Even if he never did
any actual work in connection with the operation of the plant (and the record
shows that he frequently visited the plant and followed the affairs of the busi-
ness, that he bought live poultry for the plant, and went to notify an applicant
of his or her acceptance as an employee), his authority to bind Respondent, under
elementary principles of partnership law is clear. Even were this not sufficient
9I allowed the General Counsel 's objection to a question addressed to T. H. Burns
seeking to elicit testimony of what the Union' s international representative said at a
meeting , represented by the General Counsel to have been held for the purpose of endeavor-
ing to effect a settlement of the charge , between two of Respondent 's counsel , Burns, the
Gillespies , the union representative , and a Board field examiner . Ford Motor Company,
23 NLRB 342 , 367, footnote 45.
242305-53-76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to establish Burns' authority, his repeated statements (he being a principal) to
the Complainants to the effect that he ran the plant, that it was his business, and
that jobs were available or in prospect for which he would hire them but for their
union activities, furnish proof of the fact that he possessed complete authority.
3. No jobs available
The complaint alleges that Respondent discriminatorily refused to employ the
eight applicants on dates beginning between July 18 and August 8, 1951, and
continuously thereafter. It is the General Counsel's position that in some in-
stances the discrimination occurred on the day of application and that in other
instances, the discrimination took place at a time subsequent to the day of appli-
cation, when jobs did become available. The evidence, understandably enough,
does not definitely disclose the actual day in July when each applied and was
rejected ; nor is it vitally important for the purposes of the case to ascertain the
precise date (see footnote 10, supra), since the record, even apart from Burns'
statement that some jobs were open, establishes the fact that 6 females and 3
males were hired to fill positions between July 18 and August 9. The General
Counsel's motion to conform the pleadings to the proof in matters of dates, and
other matters, was allowed. Suffice it to say here, the great weight of testimony
was to the effect that the applications of the 5 female Complainants were made
around the third week of July and the applications of the 3 male Complainants
were made the day following the denial of employment to Crowley and Weeks.
The General Counsel urged that because the complaint alleged a continuing
refusal to hire subsequent to July and August, evidence of the availability of
work down to the date of the hearing should be received. Respondent contended
that since the last date of beginning of discrimination was alleged to have oc-
curred on August 8, no evidence of the hiring of employees after that date should
be taken. Over the objection of both Respondent and the General Counsel, I
ruled that evidence of hirings up to but not after September 12, 1951, would be
admitted. Fifteen were hired between August 9 and September 12. It is my
belief, contrary to the contention of the General Counsel, that under the facts of
this case, wherein it appeared that most, if not all, of the applicants had become
employed elsewhere by mid-September, the employment situation at Respondent's
plant subsequent to a date nearly 2 months after Respondent had originally
refused to hire them, bore no more than a remote relationship to the availability
of work within a reasonable length of time following the applications, and
accordingly I feel it would needlessly encumber the record with irrelevant testi-
mony to admit evidence of hirings after the second week in September. It is also
my belief, contrary to the contention of Respondent, that evidence tending to
show that jobs were available for a reasonable period subsequent to the time of
the applications, was admissible. On the days the Complainants applied for
work, Respondent had work immediately available for some of them and informed
most, if not all, of the others that it expected to have work available within a
short time. As previously found, 24 hirings (3 times as many as the number of
applying Complainants) were made between July 13 and September 12. All but
3 of these were made on various dates between July 27 and September 12. The
Complainants, other than Evans and Barbee, did not reapply after their applica-
tions, were rejected. However, it is apparent that, even if they had, they would
have received the same treatment as before, because Respondent had flatly told
them they would not be hired because of their union activities and membership.
In these circumstances, I conclude that the Complainants, once having made their
application and having been informed of Respondent's discriminatory hiring
policy, were not obliged to continue making the useless gesture of continuous
BURNS AND GILLESPIE 1189
reapplication in order to establish Respondent's responsibility for the discrimina-
tion against them. Daniel Hamm Drayage Company, Inc., 84 NLRB 458, affd.
185 F. 2d 1021 (C. A. 5).
4. No disparate treatment
Respondent's contention that the General Counsel's case must fall because he
failed to prove that the treatment accorded the Complainants differed from
that shown all applicants for employment, is without merit. The fact is clear
that during the period with which we are concerned, Respondent hired 24 hands.
If Respondent had in its possession evidence that some or all of the employees
it did hire at this time were union members or had engaged in a strike or other
union activities, it could have, and it may be reasonably assumed that it would
have, offered such evidence. The General Counsel made out a prima facie case
of discrimination. At that stage of the hearing, there shifted to Respondent
the burden of going forward in rebuttal with evidence, if it had any, to show
that persons who were hired also were known by it to be union adherents,
thereby tending to prove no discriminatory practices had been engaged in. This
it was unable or failed to do.
5. Applicants not qualified or available for employment
It is manifest from the record that the Complainants were all experienced
hands in the performance of the type of work done in Respondent's plant. Most
of them had 2 or more years of experience in carrying on the jobs they sought.
On the other hand, very few of the employees who were working for Respondent
in its new enterprise in mid-July had had more than a month's experience and it
does not appear that the employees hired within the succeeding 2 months were
employed on the basis of their training in the work or indeed that more than
possibly one or two of them had any previous experience whatsoever. I therefore
find no merit in Respondent's contention that the General Counsel failed to
show the Complainants were qualified to hold the jobs they sought.
If instead of refusing employment to those among the Complainants for whom
jobs were not open on the precise day they applied, it had expressed an interest
in employing them when the jobs it indicated were likely to open up later, should
become available, and if those particular Complainants had then failed to pursue
the possibility of obtaining work, Respondent's contention that, as to them, the
case should be dismissed because the General Counsel failed to show that they
continued to be available for employment, would be worthy of serious con-
sideration. Such, however, was not the situation here because, once having
been refused work on account of their union activities, those applicants could
not be expected to go through the futile motions of repeatedly informing Re-
spondent they continued to be available for work they had unequivocally been
told they would never obtain. Moreover, since several of them gave their names
and addresses to Burns when they talked to him in three groups and others
among them residing in the small community of Gentry and environs were
personally known to him, Respondent would have experienced no difficulty in
locating them had it so desired.
6. Lack of employee-employer relationship
Respondent's contention at the hearing, but not advanced in its brief, that it
is not an unfair labor practice for an employer to refuse employment because
of union membership or activity to one who is not his "employee" as that term
is defined in Section 2 (3) of the Act is unsound. This theory was rejected in
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Phelps Dodge Corporation v. N. L. R. B., 313 U. S. 177, where the Supreme Court
said "Discrimination against union labor in the hiring of men is a dam to self-
organization at the source of supply."
Discrimination
Upon the foregoing considerations, I deny the motion to dismiss and find and
conclude that by refusing to hire Billie Evans, Gertrude Smith, Madeline Barbee,
Lena Weeks, Dovey Crowley, Kenneth Cox, Dale Bader, and Joe Hacker because
of their membership in, or activities on behalf of, the Union and because they
engaged in, and because Respondent feared they would engage in, concerted
activities for the purposes of collective bargaining or other mutual aid or pro-
tection, Respondent discriminated against these applicants in regard to their
hire and tenure of employment. I also find and conclude that Respondent
thereby interfered with, restrained, and coerced employees in the exercise of
the rights guaranteed in Section 7 of the Act, and thereby committed unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act.
Independent Acts of Interference, Restraint, and Coercion
Much of what was said by Burns and Lucille Gillespie to the various complain-
ants manifested no more than an inalterable opposition to the Union and. those
who belonged to and supported it. It is not to be gainsaid that they had the
right to oppose the Union and that, in expressing their hostility, no violation.
of the Act was committed. But the fact that Respondent made clear its oppo-
sition sharply gives point to the validity of the General Counsel's contention„
and lends support to my finding, that Respondent engaged in discrimination.
Respondent insists that all that was said by Burns was privileged as free
speech . I do not agree. Although much that was said was indeed an expression
of views, argument, or opinion containing no threat of reprisal or promise of
benefit, other statements he made constituted, I find, interference with, restraint
of, or coercion of, employees, and therefore violative of Section 8 (a) (1) of the
Act. In making this finding I rely on the following incidents :
(a) Burns' inquiry of Evans if she was out on strike.
(b) Burns' statement to Evans that if she would destroy her union card he
would hire her in a minute.
(c) Burns' statement to Evans that since she belonged to the Union and walked
out on strike, he could not use her.
(d) Burns' statement to Evans that he had fired one boy because he belonged
to the Union and walked out on strike.
(e) Burns' statement to Evans, Smith, and Barbee that he would hire them in
a minute if they would tear up and throw away their union cards.
(f) Burns' statement to Evans, Smith, and Barbee that if the Union should
succeed in entering his plant he would shut it down.
(g) Burns' statement to Crowley and Weeks that because of the Union he
would not hire them.
(h) Burns' statement to Cox, Bader , and Hacker that two women who had
applied for work had not been hired because they belonged to the Union.
(I) Burns' statement to Cox, Bader, and Hacker that he had fired one man
because he belonged to the Union.
(j) Burns' statement to Cox, Bader, and Hacker that he would not hire anyone
he knew belonged to the Union and that if he found out that any employees did
belong to the Union, he would kick them out.
(k) Burns' statement to Cox, Bader, and Hacker that he would not hire any-
of them because they were union.
BURNS AND GILLESPIE
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
1191
The activities of Respondent set forth in section III, above , occurring in con-
nection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and such of them as have been found to constitute unfair labor practices, tend
to lead to labor disputes burdening and obstructing commerce and the free flow
,of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8 (a) (1) and (3) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action designed to effectuate the
,policies of the Act.
Having found that Respondent discriminated in regard to the hire of the eight
'Complainants, it will be recommended that Respondent offer them employment
without prejudice to seniority or other rights they otherwise would have enjoyed
from the time employment was discriminatorily denied them and make them
whole by payment to each of them of a sum of money equal to that which each
would have earned as wages from the date of the discrimination against them"
to the date of offer of employment, less the net earnings of each during such
period." The back pay shall be computed in the manner established by the Board,
and the Respondent shall make available to the Board payroll and other records
to facilitate the checking of the amount due."
The character and scope of the unfair labor practices engaged in indicate an
Intent to defeat self-organization of employees. It will therefore be recom-
10 Although it is not the function of a Trial Examiner initially hearing a complaint case
to project himself determinatively into matters requiring consideration at its compliance
stage, it is not amiss for him to point out yin an Intermediate Report , factors which may
assist or guide parties and the Regional Director in reaching an accord in conformity with
an order . Since an establishment in this case of the date of discrimination on which
the obligation of making payment of back wages accrues, depends not only upon a deter-
mination of the date of application for work but also upon an ascertainment of time of
availability of work , it becomes important to recall and consider the following credited
evidence and testimony :
Smith and Barbee testified they and Evans were denied employment by Burns about the
middle of July. Barbee testified the three to?ked with Burns on a Saturday , not as late
as July 21 and that the date could have been July 14. Evans testified that this talk took
place on a Thursday ; all three testified Burns told them he had openings for two or three
women on the date they talked with him. Evans testified that a week or 10 days earlier
than she, Smith , and Barbee talked to Burns, she was denied employment and that Burns
told her then he needed some women . Two women , Lula Tannehill and Emma S . Springer,
went to work on July 18. Tannehill applied on July 16 ( under an acceptable aspect of
Barbee's testimony this date was 2 days after she, Evans , and Smith had been denied em-
ployment ). Crowley testified she and Smith were rejected around the middle of July.
Smith testified that they were denied employment on a Thursday during the third week of
July. The Thursday in the third week of July was the 19th . Crowley testified that Burns
told them he was not exactly hiring them unless vacancies arose and Smith testified that
Burns told them he could not tell them he could hire them that day because Re-
spondent did not know when women would quit and that he would have them in mind.
Eva Nell Hall and Betty Lou Sierks entered Respondent 's employ on July 27 and July 30.
Cox and Hacker testified their requests for employment were denied by Burns around
the middle of July and that Burns told them that the previous day two women from Pluss
had sought and been denied employment . Hacker testified that he couldn 't say the exact
date the three men sought employment ; it was around 2 or 3 days after a Thursday.
The first three male employees hired by Respondent after Friday , July 20 , were Desmond
Baker on August 2, Roy Comstock on August 8, and Bud Harper on August 9.
ss Crossett Lumber Company, 8 NLRB 440.
F. W. Woolworth Company , 90 NLRB 289.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended that the Respondent cease and desist from in any manner interfering
with, restraining , or coercing employees in the exercise of rights guaranteed by
the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
is a labor organization within the meaning of the Act.
2. By discriminating in regard to the hire of Billie Evans, Gertrude Smith,
Madeline Barbee, Lena Weeks, Dovey Crawley, Kenneth Cox, Dale Bader, and,
Joe Hacker, thereby discouraging membership in the Union, Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) and (1) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
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 ( a) (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Eaminer of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce any persons
or employees in the exercise of their right to self-organization, to form labor
organizations , to join or assist AMALGAMATED MEAT CUTTERS AND BUTCHES
WORKMEN or NORTH AMERICA , AFL, or any other labor organization , to bar-
gain collectively through representatives of their own choosing and to en-
gage in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, and to refrain from any or all of such
activities except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT discourage membership in AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN of NORTH AMERICA, AFL, or any other labor organiza-
tion, by discriminatorily refusing to hire employees, or by discriminating in
any other manner in regard to hire, or tenure of employment , or any term
or condition of employment.
WE WILL offer to the following eight persons, immediate and full employ-
ment, with all rights of seniority and other privileges which would have
accrued to them had they been accepted for employment when they applied
for same and when employment was or became available , and make them
CLIMAX SPINNING co3FPANY 1193
whole for any loss of pay they may have suffered as a result of the dis-
crimination :
Billie Evans Dovey Crowley
Gertrude Smith Kenneth Cox
Madeline Barbee Dale Bader
Lena Weeks Joe Hacker
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of such labor
organization.
T. H. BURNS AND R. H. GILLESPIE,
D/B/A BURNS AND GILLESPIE,
Employer.
By -------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material.
CLIMAX SPINNING COMPANY and TEXTILE WORKERS UNION OF AMERICA,
CIO. Cases Nos.11-CA.-396,11-CA-348,11-CA-365, and 11-CA-
399 (Formerly Cases Nos. 34-CA--336, 34-CA-348, 34-CA-365, and
34-CA-399). December 19,1592
Decision and Order
On May 15, 1952 , Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above -entitled proceeding , finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended dismissal of those allegations . There-
after, the Respondent filed exceptions to the Intermediate Report,
and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed . The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief , and the entire record in the case, and hereby
p Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the Board has delegated its power in connection with this case to a three -member
panel [ Members Houston , Murdock, and Styles].
101 NLRB No. 185.