Harris-Woodson Co., Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1949

85 N.L.R.B. 1215 (N.L.R.B. 1949)

In the Matter Of HARRIS-WOODSON Co., INC., and UNITED CANDY
WORKERS LOCAL INDUSTRIAL UNION No. 1274, C. I. O.
Case No. 5-C-2215
SUPPLEMENTAL DECISION AND AMENDED ORDER
September 12,.1949
On May 24, 1948, the Board issued its Decision and Order in the
above-entitled proceeding, finding that the Respondent had engaged'
in and was engaging in certain unfair labor practices and directing
that it cease and desist therefrom and take certain affirmative action.
Inter ilia, the Board found that the Respondent refused to bargain
collectively with United Candy Workers Local Industrial Union No.
1274, C. I. 0., herein called Local 1274, and ordered that the Re-
spondent bargain with Local 1274, conditioned upon compliance by
that labor organization with the provisions of Section 9 (f), (g),,
and (h) of the Act, as amended, within 30 days from the date of the.
Decision and Order.1
On February 14, 1949, the Board issued an Order to Show Cause,
why the Board should not substitute the name "United Candy Work-
ers of Lynchburg, affiliated with the Textile Workers Union of
America, C. I. O:" for the name "United Candy Workers Local In-
dustrial Union No. 1274, affiliated with the Congress of Industrial
Organizations," in its Order, dated May 24, 1948.
On February 28, 1949, the Respondent filed an answer in opposition
to the rule to show cause and a motion to amend the Decision and
Order, dated May 24, 1948, requesting, inter alia, that the bargaining
provisions of said Decision and Order be deleted on the ground that
neither union had complied with Section 9 (f), (g), and (h) within
the period specified by the Board.
On March 8, 1949, the Board issued an order denying the Re-
spondent's motion and directing that the record be reopened and that
a further hearing be held for the purpose of determining whether-
or not United Candy Workers of Lynchburg, affiliated with the Textile
Workers Union of America, C. I. 0., is the same union as United
1 77 N. L. R. B. 819.
85 N. L. R. B., No. 207.
1215
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Candy Workers Local Industrial Union No. 1274, affiliated with the
Congress of Industrial -Organizations.
On June 8, 1949, after a hearing in which the Respondent and the
Textile Workers Union of America, C. I. 0., participated, Trial Ex-
aminer James A. Shaw issued his Supplemental Intermediate Report,
in which he made findings of fact as to Local 1274's change in name and
affiliation and concluded that United Candy Workers of Lynchburg,
affiliated with the Textile Workers Union of America, C. I. 0., herein
called United, is the same union as Local 1274. Thereafter, the Re-
spondent filed a motion to remand the case to the Trial Examiner 2 and
exceptions to the Intermediate Report accompanied by a supporting
brief.
The Respondent's request for oral argument upon said exceptions is
hereby denied as the record, including the Respondent's exceptions and
brief, adequately discloses the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial. Examiner made at
the supplemental hearing and finds that no prejudicial error was com-
mitted. These rulings are hereby affirmed. The Board has consid-
ered the Supplemental Intermediate Report, the Respondent's excep-
tions thereto and its brief in support thereof, and the entire record in
the supplemental proceeding, and hereby adopts the findings and con-
clusions of the Trial Examiner, as set forth in the Supplemental Inter-
mediate Report, with the exceptions, additions, and modifications here-
inafter set forth.
In his Supplemental Intermediate Report the Trial Examiner based
his conclusion that the 2 unions are the same upon a finding that the
membership of United consists of the same individuals that constituted
the membership of Local 1274. Although the employees present at a.
membership meeting of Local 1274 voted unanimously to affiliate with
the Textile Workers Union of America, herein called TWUA, and
TWUA accepted the members of Local 1274 as members of TWUA,
only about 18 of a total membership of approximately 23 were present
at the meeting.' The Respondent therefore contends that the member-
2 The Respondent based its motion to remand upon the ground that the Supplemental
Intermediate Report was " insufficient and inadequate to advise Respondent of the record
basis for the Trial Examiner 's findings of fact and conclusion and the legal basis for the
Trial Examiner 's conclusion ," as required by Section 8 of the Administrative Procedure
Act and Section 203.45 of the Board 's Rules and Regulations . This motion is hereby
denied because , in our opinion, the Supplemental Intermediate Report adequately states
the reasons or the basis for the findings and conclusions made therein so as to comply with
those provisions of the Administrative Procedure Act and the Board's Rules and Regulations
relied upon by the Respondent.
3 The record does not show the number of employees in the appropriate unit at the time
of the supplemental hearing. Our Decision and Order, dated May 24, 1948, states that
there were 26 employees in. the unit at all times material therein.
HARRIS-WOODSON CO., INC. 1217
ship of the 2 groups is not identical. Even if this were true,' it is not
controlling in view of the fact that at least approximately three-fourths
of the members of Local 1274 are members of United.
The Respondent also contends that United was not "officially" recog-
nized by TWUA and thus the members of Local 1274 have not become
members of United, because TWUA's constitution provides that a local
union becomes such upon receipt of a charter and United has not re-
ceived a charter. Admittedly, United is not yet formally a local of
TWUA and has not operated as such. The relationship between
United and TWUA appears to be an informal arrangement of affilia-
tion pending negotiation of a contract with the Respondent, at which
time it is contemplated that a local charter will issue. The absence of
such a charter does not preclude membership in United. Moreover, in
view of the fact that both United and TWUA have complied with
Section 9 (f), (g), and (h), it is immaterial whether United has
formally affiliated with TWUA 5 We therefore reject this contention.
The Respondent's principal contention is that, by reason of the
change in affiliation, the employees have changed their representative
and that the TWUA and the CIO, the parent of. Local 1274, are
different entities in view of the introduction of a new contract of
association and new supervision and control in connection with such
matters as financial affairs, collective bargaining, and other forms of
collective action. This contention places emphasis on the change with
respect to the parent organization with which the employees' own
organization is affiliated. We regard, as did the court in Continental
Oil v. N. L. R. B., 113 F. (2d) 473 (C. A. 10), "continuity of [the
employees' own] organization" as the governing test in determining
whether one labor organization is identical with another having a
different name and affiliation. In that case, an employer refused to
bargain with a labor organization. affiliated with the AFL. Subse-
quently this labor organization became affiliated with the CIO. With-
out making a new request for bargaining, the CIO organization filed
a charge of refusal to bargain upon which a complaint was issued.
In enforcing the Board's order directing the employer to bargain with
the CIO organization, the court stated that ". . . there was no such
disruption or change in identity as to affect in any manner the validity
of the order requiring the Petitioner to bargain collectively with the
union." 6
4 So far as appears , however, those employee members absent from the meeting have
not split off from those who voted to affiliate with TWUA on that or any other question.
Cf. Matter of Lane-Vella Co., 79 N. L. R. B. 252.
8 Cf. also, Matter of Michigan Bell Telephone Company, 85 N. L. R. B., No . 58, where
we held that a change in affiliation of the contracting unions' parent organization did not
render the unions' contract with the employer ineffective as a bar to a determination of
representatives.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the present case, despite the change in name and affiliation and
the resulting consequences, we find that continuity of organization has
been preserved, in view of the fact that the great bulk of the member-
ship of United is the same as that of Local 1274 and the further fact
that the officers of United are the same as those of Local 1274.7 We
conclude therefore that United Candy Workers of Lynchburg, affili-
ated with the Textile Workers Union of America, C. I. 0., is, for
purposes of our 'original bargaining order, the same labor organiza-
tion as United Candy Workers Local Industrial Union No. 1274, affil-
iated with the Congress of Industrial Organizations. We shall
therefore substitute the name "United Candy Workers of Lynchburg,
affiliated with the Textile Workers Union of America, C. I. 0.," for
the name "United Candy Workers Local Industrial Union No. 1274,
affiliated with the Congress of Industrial Organizations," in our Order
dated May 24, 1948.
In that Order we directed that the Respondent bargain with the
Union, conditioned, however, upon compliance by the Union with
Section 9 (f), (g), and (h) of the Act, as amended, within 30 days
from the date of the Order. We will delete this condition from our
Order, hereinafter set forth, as United and TWUA have complied
with this condition within the time specified.
AMENDED ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby directs that its Order, dated May 24, 1948, be,
and it hereby is, amended to provide as follows : 8
The Respondent, Harris-Woodson Co., Inc., Lynchburg, Virginia,
and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Candy Workers
of Lynchburg, affiliated with the Textile Workers Union of America,
C. I. 0., as the exclusive representative of all the production employees
employed at the Respondent's Lynchburg, Virginia, plant, excluding
maintenance and clerical employees, firemen, and supervisory em-
ployees as defined in the Act, as amended, with respect to rates of pay,
wages, hours of employment, or other conditions of employment;
(b) Discouraging membership in United Candy Workers of Lynch-
burg, affiliated with the Textile Workers Union of America, C. I. 0.,
' The fact as to the identity of the officers is not mentioned in the Supplemental Inter-
mediate Report.
8 Except as specifically modified herein, our. Decision and Order, dated May 24, 1948,
remains in full force and effect.
HARRIS-WOODSON CO., INC. 1219,
or any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees, or in any other manner
discriminating in regard to their hire or tenure of employment or any
term or condition of employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Candy Workers of Lynch-
burg, affiliated with the Textile Workers Union of America, C. I. 0.,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, 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 as amended :
(a) On request, bargain collectively with United Candy Workers.
of Lynchburg, affiliated with the Textile Workers of America., C. I.0.,
as the exclusive representative of all the production employees em-
ployed at its Lynchburg, Virginia, plant, excluding maintenance and
clerical employees, firemen, and all supervisory employees as defined
in the Act, as amended with respect to rates of pay, wages, hours of
employment, or other conditions of employment, and if an understand-
ing is reached, embody such understanding in a signed agreement;
(b) Offer all those employees named in "Appendix A," attached,
hereto, who have not been reinstated, immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, dismissing, if neces-
sary, any employees who have been hired to replace said employees ; and
with respect to those employees who went on strike on October 4, 1946,.
or thereafter, and were subsequently reinstated and have not since left
voluntarily, restore them to their seniority and other rights and
privileges ;
(c) Make whole all employees listed in "Appendix A" for any loss.
of pay that they may have suffered as a result of the Respondent's
discrimination against them in the manner set fQrth in the decision
herein of May 24, 1948, and in the section of the Intermediate Report,,
attached thereto, entitled "The remedy" ;
(d) Post at its plant in Lynchburg, Virginia., copies of the notice
attached hereto and marked "Appendix B." 9 Copies of said notice, to
be furnished by the Regional Director for the Fifth Region, shall,
In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words : "A DECISION AND ORDER ," the words: "A,
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
857829-50-vol. 85-78
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and 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;
(e) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as'
it alleges that the Respondent violated Section 8 (1) of the Act by
failing to comply with the Board's Decision and Order in Case No.
5-C-1900, as alleged in Paragraph XIII, subsection (b) of the
complaint.
APPENDIX A
Alice Bowen
Gracie Campbell
Margaret Carter
Mamie Childress
Carrie S. Eckhardt
Louise Franklin
Nettie Holt
Rayland Jackson
Callie Johnson
Gertrude Laughorn
APPENDIX B
Otis Lipscomb
Robert Phelps
Frank Richardson
Edith Shephard
Lucy Stillwill
Annie Tyree
Mary Tyree
Ida Wilkerson
Bessie Witt
NOTICE TO ALL EMPLOYEES
. Pursuant to a Decision and Order 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
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist UNITED CANDY
WORKERS OF LYNCHBURG, AFFILIATED WITH THE TEXTILE WORKERS
or AMERICA, C. I. 0., or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
HARRIS-WOODSON CO., INC. 1221
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them, including Otis
Lipscomb, whole for any loss of pay suffered as -a result of the
discrimination.*
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representatives of all employees in
the bargaining unit described herein with respect to rates of pay,
wages, hours of employment, or other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All production employees employed at the respondent's Lynch-
burg, Virginia, plant, excluding maintenance and clerical em-
ployees, firemen, and all supervisory employees as defined in the
Act, as amended.
*Alice Bowen Gertrude Laughorn
Gracie Campbell Robert Phelps
Margaret Carter Frank Richardson
Mamie Childress Edith Shephard
Carrie S. Eckhardt Lucy Stillwill
Louise Franklin Annie Tyree
Nettie Bolt Mary Tyree
Rayland Jackson Ida Wilkerson
Callie Johnson Bessie Witt
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 mem-
bership in or activity on behalf of any such organization.
HARRIS-WOODSON , Co., INC.,
Employer.
By -------------------------------
(Representative ) (Title)
Dated --------------------
NoTE.-Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.