Model Mill Co., Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1953

103 N.L.R.B. 1527 (N.L.R.B. 1953)

MODEL MILL COMPANY, INC . 1527
WE WILL make whole the following named employees for any
loss of pay suffered as a result of our unfair labor practices :
All our employees are free to become or remain or to refrain from
becoming or remaining members of the above-named union or any
other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act. We will not discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any employee
because of membership in or activity on behalf of any such labor
organization.
Employer.
Dated -------------------- By -------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
MODEL MILL COMPANY, INC. and INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS,
CIO, PETITIONER
MODEL MILL COMPANY, INC. and INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORKERS OF
AMERICA, CIO. Cases Nos. 32-RC-424 and 3f-CA-377. April 3,
1953
Decision and Order
On January 27, 1953, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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
Intermediate Report attached hereto. The Trial Examiner further
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal
of those allegations. Thereafter, 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-
1 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 Mem-
bers Styles and Peterson].
103 NLRB No. M.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following modifica-
tions and additions.
We agree with the Trial Examiner that the Respondent refused to
bargain with the Union on and after January 10, 1952, in violation of
Section 8 (a) (5) and (1) of the Act.
As found by the Trial Examiner, the Union represented a majority
of the Respondent's employees in the appropriate unit 2 on January 9,
1952. By letter of this date, the Union requested the Respondent to
bargain with it as representative of the Respondent's employees. On
this date, the Union also filed a representation petition with the Board,
pursuant to which the Board issued its notice of hearing on January
18 and conducted an election on March 25 3 On January 10, the Re-
spondent received the Union's letter as well as notice from the Board
that the Union had filed a petition. On January 14, the Respondent
replied to the Union's January 9 letter, but merely suggested that "you
direct your correspondence in the future to [Respondent's attorney],"
adding that the Union's January 9 letter had been forwarded to him.
The Union received no further reply to its request.
We find no merit in the Respondent's contention that it had a good-
faith doubt as to the Union's majority on January 10 and that the elec-
tion results confirmed its doubt. The record shows that the Respondent
never expressed this doubt to the Union when it refused to bargain!
Moreover, the record shows that, beginning on the day or the day after
receiving the Union's request to bargain, and continuing well beyond
the date of the notice of hearing, as is fully described in the Inter-
mediate Report, the Respondent engaged in a coercive course of con-
duct designed to undermine the Union and destroy its representative
status in the plant. Under these circumstances, and on the basis of the
entire record, we, like the Trial Examiner, are convinced that the Re-
spondent did not withhold recognition of the Union on January 10,
1952, because of a good-faith doubt of the Union's majority. We find,
on the contrary, that the Respondent's refusal to recognize the Union
was motivated by a desire to gain time in which to destroy the Union's
majority, and by a rejection of the collective-bargaining principle.5
Moreover, we cannot agree with the Respondent that it was excused
from answering the Union's letter requesting bargaining by the fact
9 The Respondent does not contest the appropriateness of the unit found by the Board
to be appropriate in Case No. 32-RC-424 ( not reported in printed volumes of Board
decisions ), and adopted by the Trial Examiner herein.
Case No. 32-RC-424 . The Union lost the election.
We construe the Respondent 's referral to its attorney, followed as it was by the absence
of any further communication from the attorney, to be further evidence of a refusal to
bargain . See Ken Rose Motors, Inc., 94 NLRB 868, enfd . 193 F. 2d 769 (C. A. 1).
5 Drummond Implement Corporation, 102 NLRB 596; Lingerie, Inc., 101 NLRB 1374;
Louisville Corporation, 99 NLRB 81.
MODEL MILL COMPANY, INC. 1529
that the representation petition was filed on the same day as the letter
was sent. Under these circumstances, the fact that a representation
petition has been filed furnishes no defense to a refusal to bargain.,,
We also find that the election was not an expression of the employees'
free choice, and that it did not represent their free, untrammeled, and
uncoerced wishes as to collective-bargaining representation, in view
of the coercive conduct engaged in by Respondent prior to the elec-
tion. Contrary to the Respondent's contention, the Union is not
estopped from urging as a basis for setting aside the election, unfair
labor practices which occurred after the date of the notice of hearing
in the representation case.7 Moreover, we find that no genuine ques-
tion concerning representation existed at any time, as the Respondent's
refusal to recognize the Union on and after January 10 was not moti-
vated by a good-faith doubt of its majority status.' We therefore
regard the election as a nullity. Accordingly we shall set the election
aside and dismiss the petition.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Model Mill Company, Inc.,
Jackson, Tennessee, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees with regard to their union sym-
pathies, affiliations, or activities.
(b) Threatening its employees with economic reprisals if they ex-
ercise their right to self-organization.
(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 International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of Amer-
ica, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to
the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
e Inter-City Advertising Company of Greensboro, N. C., Inc„ 89 NLRB 1108 , 1110, enfd.
as modified , 190 F. 2d 420 (C. A. 4), cert. den. 342 U. S. 908 . See .8quirrei Brand Co.,
Inc., 96 NLRB 179; Drummond Implement Corporation, 102 NLRB 596 ; Howell Chevro-
let Company, 95 NLRB 410 , enfd . February 26, 1953 ; N. L. R. B . v. Ken Rose Motors, Inc.,
193 F . 2d 769, 771 (C . A. 1) ; N. L . R. B. v. Kobritz et al., 198 F . 2d 8, 14 ( C. A. 1) ;
X. L. R. B . v. National Seal Corporation, 127 F. 2d 776, 778 (C. A. 2).
7 Great Atlantic ci Pacific Tea Company , 101 NLRB 118.
BM. H. Davidson Company , 94 NLRB 142; Howell Chevrolet Company , 95 NLRB 410,
414; Squirrel Brand Co., Inc., 96 NLRB 179,181 ; Lingerie, Inc., 101 NLRB 1374.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized in Section 8 (a) (3) of the Act, as amended October 22,
1951.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively concerning wages, hours,
and other conditions of employment with International Union of
United Brewery, Flour, Cereal, Soft Drink and Distillery Workers
of America, CIO, as the exclusive representative of all employees at
its flour and feed mill at Jackson, Tennessee, including the office
janitress , but excluding office and clerical employees, technical and
professional employees, watchmen, guards, and supervisors , and em-
body any understanding reached in a signed agreement.
(b) Post at its plant in Jackson, Tennessee, copies of the notice
attached to the Intermediate Report marked "Appendix E." a Copies
of such notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, 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 there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that such notices are not altered, defaced,
or covered by any other material.
(c) Notify the said Regional Director, in writing, within ten (10)
days from the date of this Order, what steps it has taken to comply
herewith.
IT IS FURTHER ORDERED that the election of March 25, 1952, in Case
No. 32-RC-424 be, and it hereby is, set aside, and that the petition
filed in such case be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed in all other respects.
9 This notice shall be amended by substituting the words "A Decision and Order" for the
words "The Recommendations of a Trial Examiner" in the caption thereof . In the event
that this Order is enforced by a decree of a United States Court of Appeals , the notice
shall be further amended by substituting for the said words "A Decision and Order," the
words "A Decree of the United States Court of Appeals , Enforcing an Order."
Intermediate Report
On January 9, 1952 , International Union of United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers of America, CIO, herein called the Union,
filed with the National Labor Relations Board , herein called the Board, a peti-
tion in Case No. 32-RC-424 for certification of representatives for the employees
in a certain unit at the Jackson , Tennessee , plant of Model Mill Company, Inc.,
herein called the Respondent . A hearing on the Union's petition was held in
Memphis, Tennessee , on January 25, 1952, before a hearing officer of the Board.
Thereafter the Board , on March 11, 1952, directed that an election be conducted
among the said employees to determine whether not they desired to be represented
MODEL MILL COMPANY, INC. 1531
by the Union for the purposes of collective bargaining . Pursuant thereto, an
election by secret ballot was conducted on March 25, 1952. At the election, a
majority of the votes was cast against the Union' On March 28, 1952, the Union
filed with the Board timely objections to the results of the election. Thereafter,
on June 27, 1952, the Regional Director for the Fifteenth Region (New Orleans,
Louisiana ), issued his report on objections, in which he recommended that the
Board direct a hearing on the objections . No exceptions to the Regional Direc-
tor's report were filed by any party. On July 15, 1952, the Board issued an
Order directing a hearing on the issues raised by the Union's objections.
Meanwhile, on May 23, 1952, the Union had filed with the Regional Director
charges against the Respondent in Case No. 32-CA-277. Upon these charges,
the General Counsel of the National Labor Relations Board,' by the said Re-
gional Director, issued a complaint dated July 17, 1952, against the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleges in substance
that the Respondent had interfered with, restrained, and coerced its employees
since on or about January 1, 1952, by certain specified conduct. It further al-
leged that on or about January 9, 1952, a majority of the employees in the desig-
nated unit selected the Union as their bargaining agent, that the Union has been
their bargaining representative since that time, and that the Respondent since
that date has refused to bargain collectively with the Union, although requested
to do so . Simultaneously with the issuance of the complaint, the Regional Direc-
tor issued an order consolidating the hearing on the complaint with the hearing
on the Union's objections to the results of the election. Copies of the charge,
complaint, order of consolidation, and notice of hearing were duly served upon
the parties. The Respondent filed an answer admitting that it was engaged in
commerce, that the unit set forth in the complaint was appropriate, that the
Union had requested the Respondent to recognize it as the exclusive bargain-
ing agent of the employees in the unit on or about January 9, 1952, and that
it has since that date refused to recognize the Union as the bargaining agent
of the employees in that unit, but denying that the Union had been at all times
since January 9, 1952, the representative of a majority of the employees in the
unit, and denying the commission of any unfair labor practices.
Pursuant to notice, a consolidated hearing was held at Jackson, Tennessee, on
December 15 and 16, 1952, before the undersigned, a Trial Examiner duly desig-
nated by the Chief Trial Examiner. The General Counsel and the Respondent
were represented by counsel, and the Union by representatives. All parties par-
ticipated in the hearing and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing upon the
issues.
At the beginning of the hearing, the Respondent moved to exclude witnesses
from the hearing room until after they had testified. The motion was granted
without objection. At the conclusion of the hearing the General Counsel moved
to conform the pleadings to the proof with regard to nonsubstantive matters.
The motion was granted without objection. Full opportunity was given to argue
1 There were approximately 72 eligible voters, and 72 valid ballots were cast , of which
21 were in favor of the Union and 51 against the Union . No ballots were challenged and
no ballots were declared void.
The General Counsel and his representative at the hearing are referred to as the
General Counsel.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
orally, and counsel made statements on the record. Although all parties were
granted an opportunity to do so, no briefs have been filed by any party.
After the close of the hearing, a motion by all parties jointly was granted,
making a certain stipulation part of the record herein . An order was also issued,
upon due notice to all parties, correcting the transcript in certain specified
respects.
Upon the entire record in these eases, and from my observation of the wit-
nesses, I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Tennessee corporation engaged in the manufacture and
distribution of cornmeal and livestock and poultry feed, and in the blending and
distribution of flour, with its principal office and place of business at Jackson,
Tennessee. During the year 1951, the Respondent purchased raw materials
exceeding $100,000 in value from points outside the State of Tennessee. During
the 12 months prior to January 25, 1952, the Respondent' s sales directly to points
outside the State of Tennessee were in excess of $100,000.
The Board has held, the parties agree, and I find that the Respondent is en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of United Brewery, Flour, Cereal, Soft Drink and Dis-
tillery Workers of America, CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Introduction
The Respondent operates a feed mill and a flour mill at Jackson, Tennessee.
The feed mill has only a day shift, but the flour mill has both a day and a night
shift. The Respondent also conducts similar operations at Nashville, Tennessee.
Prior to 1952, the Respondent's Jackson employees had never been organized
by any union, nor had the Respondent had any contractual relations with any
union with respect to its Jackson employees. On January 1, 1952, the Union
held a meeting at Jackson, which was attended by employees of the Respondent.
At that meeting, and within a few days thereafter, the Union obtained signed
membership applications from 40 of the 73 nonsupervisory employees on the
Respondent's payroll for the week ending January 12, 1952. On January 9,
1952, the Union wrote a letter to the Respondent claiming to represent a majority
of the employees of the Jackson plant, and requesting recognition as their
bargaining agent. On January 10, 1952, the Respondent received this letter, and
also received notice from the Board that the Union had filed the representation
petition in Case No. 32-RC-424, described above. On January 10 or 11, 1952,
Quinton D. Edmunds, the Respondent's president, called together all the em-
ployees of the flour mill and addressed them during working hours in the plant.
On January 12, 1952, Edmunds addressed the assembled feed mill employees in
a similar manner. The contents of these 2 speeches will be discussed below.
On January 12, 1952, the Union wrote to Edmunds stating that it had learned
he had held meetings of the Respondent's employees in the plant during the
course of which the Union was discussed, and requesting permission to hold a
MODEL MILL COMPANY, INC. 1533
similar meeting with the Respondent's employees "under the same conditions."
On January 14, 1952, Edmunds wrote two letters to the Union. The first in
reply to the Union's request for recognition-stated that the Union's letter had
been referred to the Respondent's attorney, and suggested that future correspond-
ence on the subject be directed to him. In the second letter, Edmunds agreed to
allow a representative of the Union to meet with the employees in the plant. In
accordance with this second letter, a representative of the Union was thereafter
permitted to address the employees during working hours on the Respondent's
premises. The Respondent's attorney did not reply to the Union's letter of
January 9.
B. Interference, restraint , and coercion
Paragraph 6 of the complaint, as amended at the hearing, alleges that the
Respondent has since on or about January 1, 1952, engaged in interference,
restraint, and coercion of its employees, in the following respects :
(a) Interrogating employees as to their union affiliations ;
(b) attempting to persuade certain employees to discourage other em-
ployees from union membership or activities ;
(c) promising benefit to employees in an attempt to discourage member-
ship in , or activities on behalf of, the Union ;
(d) threatening employees with loss of employment, loss of benefits, or
loss of promised benefits, if they became or continued active in the Union;
(e) attempting to persuade employees to cease their union membership
or activities;
(f) warning and threatening its employees with stricter discipline and
stricter rules if the Union came into the plant ;
(g) warning and threatening its employees that the Respondent would
close down or that it would move to another location if the Union came in;
(i) (sic) making statements interfering with and restraining activity on
the part of its employees for the purpose of collective bargaining and other
mutual aid and protection, and interfering with and restraining membership
and activities among its employees in the Union.
It is alleged that the Respondent engaged in such conduct through its repre-
sentatives, Quinton D. Edmunds, Billy S. Flowers, and Robert L. Castleman'
The testimony with respect to the conduct of each of these three individuals will
be discussed in turn.
1. Quinton D. Edmunds'
Quinton D. Edmunds was, at all material times, president of the Respondent.
It is not disputed that he was a supervisor within the meaning of the Act. The
testimony concerning Edmunds can be divided roughly into 3 parts, namely, his
2 speeches to the assembled employees in January 1952, his discussions with
individual employees shortly before the election, and certain notices posted on
the bulletin boards or letters mailed to the employees.
a. Speeches to the assembled employees
As has been previously mentioned, Edmunds, after having learned that the
employees were being organized, called them together and addressed them re-
8 Paragraph 6 of the complaint originally also contained the name of Edward Hicks, the
Respondent's vice president. However, at the end of the hearing , the General Counsel
moved to amend the complaint by striking Hicks ' name from paragraph 6. The motion
was granted without objection.
4 Referred to in the complaint as O. E . Edmonds.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
garding the Union. Because it was not possible to assemble all the employees
at one time, Edmunds spoke to the flour mill employees on January 10 or 11,
and to the feed mill employees on January 12. However, in both instances the
subject covered and the nature of Edmunds' remarks were substantially the
same.
Five employees testified with regard to these speeches, as witnesses for the
General Counsel. Four of them attended the January 12 speech, and one at-
tended the January 10 or 11 speech. While differing in some details, all agreed
substantially that Edmunds stated that he heard they were thinking of joining
a union, that it was up to them to decide if they wanted a union, and that before
he would let anyone tell him how to run his business, he would reduce the
number of men employed there to 6, 8, 10 men, or would shut the plant com-
pletely. The witnesses who attended the meeting of January 12 further testified
that, during the course of that speech, Edmunds directed Lonnel Lyons, a colored
employee,' to take his (Edmunds') chair behind his desk, as an illustration of
what the advent of the Union might mean, remarking, in effect : "How would
you like someone to come into your home and tell you how to run it?"
Edmunds testified that during the week in which the speeches occurred, he
was a member of a Federal grand jury and consequently was away from the
plant most of the time. On January 8, 9, or 10, he learned that the employees
were being approached to join the Union, and that some were "considerably
worried" about the matter. Employees not named in the testimony reported to
Edmunds that "pressure" was being brought to bear upon them to join the
Union. He thereupon determined to assemble the employees for the purpose of
educating them with regard to their rights. He particularly wanted to explain
to them that, under Tennessee law, they could not be compelled to join a union
against their will. He testified that he told the employees that they had a
right to join a union if they wished and they did not have to join one unless they
wanted to, and tried to convey to them that he wanted them to know what they
were doing and after they had had time to study the matter, if they were con-
vinced they wanted a union they should have it. He admitted that during the
course of the January 12 meeting, he directed Lyons to sit in his chair. How-
ever, he denied that he had at any time threatened to close the plant if it became
unionized, or to operate the plant with 6, 8, or 10 men. Edmunds' testimony
in this respect was substantially corroborated by 3 representatives of manage-
ment, witnesses for the Respondent, who attended the earlier speech.
After considering the record and the demeanor of the witnesses while testify-
ing, I conclude that the witnesses for the General Counsel presented a more
accurate view of what occurred during these speeches than did the witnesses for
the Respondent. Accordingly, it is found that during the course of these speeches,
Edmunds made it plain to the employees that if the Union came into the plant,
the Respondent would either close the plant entirely, or reduce its personnel to
6, 8, or 10 employees.
b. Discussions with individual employees prior to the election
During the period prior to the election, Edmunds talked individually to approxi-
mately 40 employees. Five of them testified as witnesses for the General Counsel
regarding their respective conversations with Edmunds.
Thurman Cox, an employee of the feed mill, testified that about a week before
the election, Edmunds called him into his office. No one else was present.
Edmunds showed Cox a sample ballot and pointed out to him how to mark the
4 The Respondent employs both white and Negro employees.
MODEL MILL COMPANY, INC . 1535
ballot if he did not want the Union and how to mark it if he did want the Union.
Edmunds then read from a paper, but Cox could not recall the contents. Ed-
munds also told Cox to vote any way he wanted, adding : "Let your conscience
be your guide."
Leonard Dicson, an employee of the flour mill on the night shift, testified that
sometime before the election, he had a conversation with Edmunds in Edmunds'
office. No other person was present. Edmunds asked him if he had attended
any meeting. Dicson replied that the meetings were all held at night and he
worked at night. Edmunds asked Dicson how he felt about the Union and if
he had signed a union card. Dicson answered that he had. Edmunds remarked
that signing a card was not the main point, it was the vote that counted. Dicson
told Edmunds he did not know which way to vote. Edmunds replied that 10 or
15 of the employees had said that they were going to vote against the Union,
and that he had heard that in some plant after a union had been voted in, the
colored employees had been laid off.' Edmunds had in his hand a sample ballot.
He showed Dicson how to mark the ballot if be did not want the Union and how
to mark the ballot if he did want the Union, explaining that he could vote either
way he wanted.
Employee Lonnel Lyons testified that sometime before the election, he was
called into Edmunds' office alone. Edmunds asked him if he believed in a union.
Lyons replied that he thought it was a pretty good thing. Edmunds then said
if he wanted to join the Union that was all right, that was his business.
A. D. Rivers, an employee of the Respondent, testified that, about a week or
two before the election, he was summoned to Edmunds' office alone. Edmunds
asked him if he had signed a union card. He replied that he had done so, and
that "all of them" who had gone to the meeting had signed a union card.
Edmunds replied, "That is right. Tell the truth. Don't be like the others and
tell the wrong thing." Rivers answered, "No sir, I won't do that." Edmunds
then showed Rivers on a piece of paper how to mark his ballot if he wanted the
Union and how to mark it if be did not want the Union.
Employee Pat Walrick testified that about a week before the election, he was
called into Edmunds' office alone. Edmunds told him that he was free to vote
any way he wanted, and showed him on a piece of paper how to mark his ballot.
He added that if the Union came in, "we won't let you all have any more money out
of the office." According to Walrick, it had been customary for the Respondent
to grant any employee who requested it an advance on his wages, for which he
signed a receipt. The amount of the advance was then deducted from his next
paycheck.
Edmunds testified that employee Peewee Green had complained to him prior
to the election that two other employees with whom he rode to and from work
had threatened "to throw him out of the car" if he did not join the Union.
Edmunds also received reports that the employees were confused as to the correct
method of marking the ballots. For this reason, Edmunds ralked to some of the
employees individually prior to the election, and in each case told them that
whether they voted for or against the Union he wanted them to vote and he
wanted them to know what they were doing. He denied that he used any threats
or told them there would be any reprisal if they joined the Union. He further
denied that he had ever asked any employee whether or not he belonged to the
Union.
In view of the general nature of Edmunds' denials, and taking into considera-
tion my observation of the witnesses while testifying, I adopt the versions of the
witnesses for the General Counsel as the more accurate accounts of what occurred
Dicson is a colored employee.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during these interviews. I conclude that Edmunds did not make any coercive
statement to Cox, but that he did threaten Walrick with loss of the privilege of
obtaining advances on his wages if the Union succeeded in organizing the plant.
I further find that Edmunds interrogated Dicson, Lyons, and Rivers concerning
their union sympathies, affiliation, and activities.
c. Notices posted on bulletin boards or mailed to employees
During the period prior to the election, Edmunds either caused to be posted on
the bulletin board or mailed to the employees certain statements in writing regard-
ing the Union and the coming election. These notices and letters were intro-
duced into evidence by the Respondent, and are set out in full in Appendices A
through D attached hereto. The General Counsel makes no contention that any
of these statements is violative of Section 8 (a) (1). I find nothing in any of them
which can fairly be considered intimidatory or coercive. Nor does the language
used reasonably lend itself to an interpretation that they contain any threat of
reprisal or promise of reward. Accordingly, I consider the statements in question
as the exercise of free speech protected by Section 8 (c) of the Act.
2. Billy S. Flowers
Billy S. Flowers was, at all material times, the Respondent's night miller and
foreman. It is not disputed that he was a supervisor within the meaning of
the Act.
Dicson, an employee under Flowers, testified that on the evening of the same
day he was interviewed by Edmunds, he was present during a conversation in
the plant between Flowers and Floyd and Henry Maness, two brothers, who
were employees working under Flowers. According to Dicson, Flowers asked the
Maness brothers whether they had signed union cards, and they admitted that
they had. Flowers then remarked, "I would rather for the night boys not have
anything to do with that." He added that the Respondent did not have to operate
through Jackson but could operate through Nashville. Floyd Maness testified
that he was an employee on the night shift, that Flowers was his foreman, and
that on one occasion in January 1952, when the Maness brothers and other em-
ployees were in Flowers' office, Flowers asked employee Oscar Longmire if he
had signed a union card. Longmire replied that he had. Flowers then said that
If the Union came in, they could run the mill with 8 or 10 hands. According to
Maness, Flowers added that they could "make the stuff at Nashville if it was
necessary." Maness did not name Dicson as being present during this conver-
sation.
Flowers denied that he had ever told any employee that if the Union came in,
the plant would either be closed or its operations curtailed. He further denied
that he had, in the presence of Floyd Maness, asked Longmire if he had signed
a union card, or that he had indicated to the employees that he did not want them
to join a union. At first, he testified that the subject of the Union "might" have
come up in discussions, but that he did not mention it and that no employee had
ever asked him anything about it. Later, however, he admitted that the em-
ployees had asked him how he felt about the Union, and that he had replied
that it was none of his business how they voted. Neither Henry Maness nor Oscar
Longmire was called as a witness by any of the parties.
Flowers' testimony was somewhat contradictory in nature, and he did not
impress me as a sincere and forthright witness. Although the testimony of
Dicson differed in some important respects from the version given by Floyd
Maness, both agreed that Flowers threatened that the plant would close or its
MODEL MILL COMPANY, INC. 1537
operations would be curtailed if the Union succeeded in organizing the em-
ployees . It is so found.
3. Robert L. Castleman
Robert L. Castleman was, at all material times , the Respondent 's superin-
tendent. It is not disputed that he was a supervisor within the meaning of the
Act.
The Respondent owns 23 trucks and employs 13 truckdrivers. Between 90 and
98 percent of the Respondent's finished products are delivered directly to retail
merchants by truck. The remainder is shipped to jobbers or warehouses, either
by truck or by rail
A. L. Oliver, a truckdriver in the employ of the Respondent, was a witness
for the General Counsel. He testified that approximately 2 or 3 weeks prior
to the advent of the Union, he noticed the Respondent was getting more trailers
and doing away with bob trucks. He asked Castleman if the Respondent was
thinking about discontinuing hauling directly to retail stores and starting deliver-
ing to warehouses. Castleman replied that the Respondent had built its business
on store-to-store delivery and he did not believe it would change this policy.
About the second week in January 1952, after the advent of the Union, the
subject of the Union came up in a discussion between Oliver and Castleman.
Castleman said that if the Union succeeded in organizing the plant, the Re-
spondent would probably discontinue hauling store-to-store and instead merely
ship to warehouses . Oliver further testified that shipping to warehouses would
possibly be done by rail, not by truck, and that it might cause him to lose his
job if the Respondent discontinued hauling store-to-store. Castleman testi-
fied that Lyon and another employee, Luther Dodd, asked him if the Re-
spondent would close the plant if the Union came. He replied that he did
not think that the Respondent would close the plant merely because the Union
came in . Castleman explained how the Respondent could either ship by rail
or ship by truck. He discussed with Oliver the difference in rates and pointed
out that if the cost of trucking got too high the Respondent might have to
use rail shipments. He added that he thought they had good jobs and were
doing as well as they could. Dodd was not called as a witness by any party.
In view of Castleman's admission that he told Oliver that if the cost of truck-
ing became too high the Respondent might have to use rail shipments, and in
view of my observation of the witnesses, it is found that Castleman informed
Oliver that if the Union succeeded in organizing the plant, there was danger
that the Respondent might change its system of shipping. It is further found
that such a change, if it occurred, might adversely affect Oliver's employment.
4. Conclusions with regard to interference, restraint, and coercion
It is found that the Respondent interfered with, restrained, and coerced its
employees by the following acts :
(1) Edmunds' interrogation of employees Dicson, Lyons, and Rivers, regard-
ing their union sympathies , affiliation , and activities.
(2) Edmunds' threat to the assembled employees that the Respondent would
either close the Jackson plant or curtail its activities if the Union came in, and
Flowers' similar threat to the Maness brothers.
7 Edmunds testified that delivery to warehouses and jobbers was by truck , but Castleman
testified that these shipments were made by rail. I deem it unnecessary to resolve this
conflict.
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) Edmunds' threat to Walrick that if the Union came in, the Respondent
would discontinue making cash advances to employees against their wages.
(4) Castleman's threat to Oliver that if the employees organized, the Re-
spondent might change its method of shipping from truck to rail.
It is now well settled that such interrogation e and threats of economic reprisal
for union activities ° constitute interference, restraint, and coercion of employees
violative of Section 8 (a) (1) of the Act. It is so found. It is true that Ed-
munds told some of the employees that they were free to vote as they pleased.
However, these statements, occurring in the very same conversations with im-
proper interrogation, cannot serve as a defense to such conduct. 10
The following conduct is not found to constitute interference, restraint, or
coercion, but is considered as the exercise of protected free speech :
(1) Edmunds' direction to Lyons to sit in his chair, and his remarks per-
taining to that incident.
(2) Edmunds' individual interview with Cox.
(3) Edmunds' explanations to individual employees regarding the correct
method of marking the ballots.
(4) The statements contained in Appendices A through D.
(5) Flowers' alleged remark to the effect that he would rather the employees
under him would not have anything to do with the Union.
There is no evidence to support the complaint's allegations that the Respond-
ent attempted to persuade employees to discourage other employees from union
activities, promised benefits to employees to discourage union membership, or
threatened its employees with stricter discipline and stricter rules if the Union
came in, as set forth in paragraph 6 (b), (c), and (f) of the complaint. More-
over, paragraph 6 (e) of the complaint does not allege a violation of the Act.
Mere persuasion, unaccompanied by promises of benefit or threats of reprisal,
is protected by Section 8 (c) of the Act.'
C. The refusal to bargain
1. The appropriate unit
The Board has held, the parties agree, and I find, that all employees at the
Respondent's flour and feed mill at Jackson, Tennessee, including the office
Janitress, but excluding office and clerical employees, technical and professional
employees, watchmen, guards, and supervisors, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section 9 (b) of
the Act.
2. The Union's majority
As has been previously mentioned, within a few days after January 1, 1952,
the Union obtained signed membership applications from 40 of the 73 non-
supervisory employees on the Respondent's payroll for the week ending January
12, 1952. It is therefore clear that the Union represented a majority of the
employees in the unit on January 9, 1952. It is found that on January 9, 1952,
the Union was, and at all times since has been, the exclusive representative of
the Respondent's employees in the bargaining unit described above.
8 Standard-Coosa-Thatcher Company, 85 NLRB 1358.
° A. Kravitz t Company, 89 NLRB 1415.
io Graniteville Company, Sibley Division, 96 NLRB 456, 472; Empire Pencil Company,
Division of Hassenfeld Bros., Inc., 86 NLRB 1185, 1208 , enforced 187 F. 2d 334 (C. A. 6) ;
Craddock-Terry Shoe Corporation, 82 NLRB 161
12 Compare Editorial "El Imparcial," Inc., 92 NLRB 1795, 1798.
MODEL MILL COMPANY, INC. 1539
It is true that, on March 25, 1952, the Union was defeated in the election.
However, assuming without deciding that the Union had lost its majority by
the date of the election, any loss of membership occurring after January 10,
1952, is clearly attributable to the prior unfair labor practices of the Re-
spondent described above. Accordingly, such loss is immaterial.'
3. The Union's demand and the Respondent's refusal
As described above, the Union on January 9, 1952, requested recognition as
the bargaining agent of the employees. Other than Edmunds' letter of January
14, 1952, advising the Union that its letter had been referred to the Respondent's
attorney, the Union received no reply. The General Counsel contends that the
Respondent has therefore refused to bargain in good faith with the Union since
on or about January 9, 1952. The Respondent, conversely, contends that its
refusal to recognize the Union was based upon its good-faith doubt of the
Union's majority status, and that it therefore did not constitute a violation
of the Act.
In support of the Respondent's position, Edmunds testified that he did not
recognize the Union because he did not know which of his employees belonged
to the Union and which of them did not. Moreover, during the course of the
hearing, the Respondent's attorney stated that he did not reply to the Union's
demand because he "took the position that the Union did not represent a
majority of the employees involved." However, nothing in the record indicates
that the Respondent communicated to the Union or to anyone else its alleged
doubt of the Union's majority. Moreover, at no time did the Respondent re-
quest the Union to produce evidence of its majority status. Under other cir-
cumstances, the mere failure of the Respondent to reply to the Union's letter
of January 9, 1952, standing alone, might perhaps be insufficient to indicate
the Respondent's bad faith. However, the Respondent's asserted doubt of the
Union's majority-a doubt expressed, so far as the record shows, for the first
time at the hearing-must be considered in the light of the unfair labor prac-
tices committed by the Respondent almost immediately after receipt of the
Union's demand for recognition and continued again during the period before the
election. Nor can the Respondent at any time have seriously doubted the ap-
propriateness of the unit contended for by the Union, for at the hearing on
the representation petition, on January 25, 1952, the Respondent agreed sub-
stantially to the unit proposed by the Union, and raised only a question with
respect to the inclusion or exclusion of the janitress. In view of the unfair
labor practices, it is clear, and I find, that the real reason for the Respondent's
failure to reply to the Union's demand for recognition was not, as asserted by the
Respondent, that it had a good-faith doubt of the Union's majority status,
but actually was its desire to obtain time in which to undermine the Union's
position." Moreover the fact that the Respondent, upon the Union's request,
permitted a representative of the Union to address the assembled employees
at the plant during working hours, although it has been considered, does not
destroy the validity of the above conclusion as to the Respondent's bad faith.
It is accordingly found that on January 10, 1952,' and at all times thereafter,
the Respondent has refused to bargain with the Union as the exclusive repre-
"Franks Bros. Company v . N. L. R. B., 321 U. S. 702 ; Eva-Ray Dress Manufacturing
Company, Inc., et oil., 88 NLRB 361, 363, enforced 191 F. 2d 850 (C. A. 5).
1 The M. H. Davidson Company , 94 NLRB 142; Lingerie, Inc., 101 NLRB 1371.
It The date of the receipt of the Union's demand is the date of the refusal to bargain
rather than January 9, 1952, the date when the Union dispatched the demand. See
Apex Toledo Corporation, 101 NLRB 807, footnote 11.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of the employees in the unit described above, although requested by
the Union to do so, and that by such refusal it has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed by the Act1b
Upon the basis of the foregoing findings of fact and upon the entire record
in these cases, I make the following :
CONCLUSIONS OF LAW
1. International Union of United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. All employees at the Respondent's flour and feed mill at Jackson, Ten-
nessee , including the office janitress, but excluding office and clerical employees,
technical and professional employees, watchmen, guards, and supervisors, con-
stitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. International Union of United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, CIO, is now, and has been at all times since
January 9, 1952, the exclusive representative of all employees in the said ap-
propriate unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4. By refusing on January 10, 1952, and at all times thereafter, to bargain col-
lectively with International Union of United Brewery, Flour, Cereal, Soft Drink
and Distillery Workers of America, CIO, as the exclusive representative of its
employees in the said 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 the above conduct, by interrogating its employees with respect to their
union sympathies, affiliations, and activities, and by threatening them with
economic reprisals if the Union succeeded in organizing its plant, the Respond-
ent has interfered with, restrained, and coerced its employees, and is interfer-
ing with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce, and constitute un-
fair labor practices within the meaning of Section 2 (6) and (7) of the Act.
7. The General Counsel has failed to prove by a preponderance of the evi-
dence the allegations of paragraph 6 (b), (c), and (f) of the complaint.
8. Paragraph 6 (e) of the complaint does not set forth a violation of the Act.
[Recommendations omitted from publication in this volume.]
u The Board's Order of July 15, 1952, directing a hearing on the Union's objections to
the results of the election in Case No. 32-RC-424 does not direct that any findings, con-
clusions , or recommendations shall be made. Accordingly , I make no findings , conclu-
sions, or recommendations with regard to the validity of the Union's objections.
Appendix A
The management has been informed that rumors have been circulating among
the employees that in order to keep their jobs it is necessary to become a member
of a Union. Any statement to this effect is untrue. The Company would be
violating a statute of Tennessee if it required an employee, in order to hold his
MODEL MILL COMPANY, INC. 1541
or her job , to belong to a Union . Your job does not depend upon membership in
a Union . No one can force you to join or not to join a Union.
Appendix B
When you go to vote, you can vote for or against any organization to repre-
sent you regardless of anything you have signed or promised . You cast a secret
ballot and nobody will know how you vote.
Appendix C
Some of you are new employees but you will find the management is always
sympathetic and desirous of being cooperative . You are a part-not a little
part-of the organization . We must work together . I have always welcomed
conferences with any employee as it has been the desire of the management to
maintain close relationships with its employees.
I have always thought that each employee was intelligent enough to decide
whether he or she should join any Union to bargain for them.
The National Labor Relations Board has held that where an employee has
given an authorization card to a Union to represent him or her, he or she is not
bound to vote in favor of the Union in an election.
If you want to pay dues and be bound by the by-laws of a Union and to have
it represent you concerning wages , hours and working conditions , that is your
privilege . On the contrary , if you feel that you should continue to rely on your
own intelligence and to conduct your own affairs , you should not vote in favor
of the Union . I do not feel that you need a Union to represent you. Why the
necessity for an outsider?
You will be allowed to cast a secret ballot at the oncoming election and no
one will know how you vote . You vote independently and not as a group or
faction . A representation not based on facts is no good . Nobody can speak for
or make any binding promises for the Company except the Company itself.
------------------------------
President.
Appendix D
FEBRUARY -, 1952.
We have been informed that the Union has been making promises to you as
to what it could do for you In the event it is selected as your bargaining agent.
On the eve of the election, I desire to call your attention to certain facts:
1. You do not have to pay anybody to hold your job with us . If you join
the Union , you will have to pay dues . Is there anything to prevent the Union
from increasing the amount of the dues or assessing you for various sums if
it sees fit to do so? Has the Union told you that it would make an iron-bound
contract with you that your dues would never be raised and that no assessments
would ever be made against you ? I know of no such contracts made by any
Union.
2. No Union is authorized to bind the Company by any promises it might make.
The Company will do as much for you as any Union can accomplish for you.
3. If you feel that we are not treating you fairly , come to me and tell me so
and I will be pleaded to discuss the situation with you . You do not have to
choose a representative , for you are welcome to see me individually or as a
group any time you desire to talk with me about anything concerning your wel-
257965-54-vol . 103- -98
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fare. If you choose the Union, our conferences in the future will be with its
representatives.
We are not promising you anything whether you vote for or against the Union
to represent you. I can only advise that you vote according to your conscientious
convictions which should not be based upon any wild promises or representations.
Sincerely yours,
President.
Appendix E
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 interrogate our employees concerning their union sympathies,
affiliations, or activities.
WE WILL NOT threaten our employees with economic reprisals if they exer-
cise their right to self-organization.
WE WILL NOT in any other 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 INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, CIO, or
any other labor organization, to bargain collectively through representatives
of their own choosing, to engage in other concerted activities for the purposes
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 the National Labor Relations Act, as
amended.
WE WILL bargain collectively upon request with the above-named union as
the exclusive representative of all employees at our flour and feed mill at
Jackson, Tennessee, including the office janitress, but excluding office and
clerical employees, technical and professional employees, watchmen, guards,
and supervisors, with respect to rates of pay, hours of employment, or other
conditions of employment, and embody any understanding reached in a
signed agreement.
All our employees are free to become, remain, or refrain from becoming mem-
bers of the above-named union, or any other labor organization, except to the
extent that this right may be affected by an agreement in conformity with Sec-
tion 8 (a) (3) of the National Labor Relations Act, as amended October 22,
1951.
MODEL MILL COMPANY, INC.,
Employer.
Dated -------------------------------- By ------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.