Cary Lumber Co.

National Labor Relations Board - Board Decisions

Jan 21, 1953

102 N.L.R.B. 406 (N.L.R.B. 1953)

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction employees should preclude a finding that the unit of office
employees here sought is appropriate at the present time.2
The instant plant at Antioch, California, is one of 8 paper manu-
facturing plants of the Employer, located in 3 different States. The
Employer has 1 other such plant at Antioch. Although there is some
interchange of office workers between this plant and other plants of
the Employer, all hiring of new employees for this plant is done
locally by plant supervisors, and the personnel manager there han-
dles all plant labor relations matters.
Under these circumstances, and upon the entire record, we find
that the single-plant unit of office employees sought by the Petitioner
is appropriate. We shall, therefore, direct an election in the follow-
ing unit:
All office employees employed at the Employer's San Joaquin Divi-
sion plant, Antioch, California, including clerks, stenographers, ac-
countants, statisticians, and paymasters, but excluding confidential 3
managerial, professional, and all other employees, guards, and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
2 See Joseph E. Seagram & Sons , Inc., 101 NLRB 101; Miller & Miller Freight Lines,
101 NLRB 581; Lownsbury Chevrolet Company, 101 NLRB 1752
3In accord with the stipulatl n of the parties , we shall exclude as confidential em-
ployees the secretaries to the personnel manager and to the plant manager.
CARY LUMBER COMPANY and UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL, LOCAL UNION No. 2399. Case
No. 11-CA-258 (formerly 34-CA-258). January 01, 1953
Decision and Order
On March 18, 1952, Trial Examiner Louis Plost 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. The Trial Examiner also recom-
mended dismissal of the complaint with respect to certain conduct by
the Respondent alleged to be violative of the Act. Thereafter the
Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs. The Respondent also re-
quested oral argument. This request is denied as the record and briefs,
102 NLRB No. 49.
CARY LUMBER COMPANY 407
in our opinion, adequately present the issues and the positions of the
parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Murdock and Peterson].
The Board 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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following exceptions, additions,
and modifications: t
1. We agree with the Trial Examiner's finding that the Respondent
did not violate Section 8 (a) (5) of the Act, but for a different reason.
In its request for bargaining, the Union by letter dated November 16,
1950, claimed to represent "a majority of your employees in an appro-
priate unit, set out below," and further identified the unit as "all pro-
duction and maintenance employees" with certain specified inclusions
and exclusions.2 The Trial Examiner found, and we agree, that the
Union's request did not state that the unit was confined to the Re-
spondent's Durham, North Carolina, operation s
The Union's request, directed to the Durham office, could reasonably
be, and was apparently interpreted by the Respondent as, referring
to the Respondent's employees at both operations in an employer-wide
unit. Thus, the Respondent's reply of December 8, 1950, in answer
to the Union's letter of November 16, refers to the latter's request for
recognition as "the sole and exclusive bargaining representative of
all of its employees." The inference therefrom that the Respondent
believed that the Union was seeking to represent its employees in an
employer-wide unit is further supported by the fact that the Respond-
ent's president, immediately upon receipt of the union claim, took
steps to inquire whether the Union had members at the Tillery opera-
I The Intermediate Report contains certain misstatements of fact and inadvertences,
none of which affects the Trial Examiner ' s ultimate conclusions or our concurrence therein.
Accordingly we note the following corrections : ( 1) The Trial Examiner states that the
representation petition was filed on February 7, 1950. The record and exhibits reveal
that the petition was filed on December 7, 1950 ; (2) the Trial Examiner states that the
Union's local officers were elected at the meeting of November 29, 1950. The record
shows that they were elected at the union meeting held the 20th of November 1950;
(3) "Mr Henry" refers to Respondent President Satterfield, not to Satterwhite, the
assistant to the president as parenthetically indicated by the Trial Examiner.
3 The text of the request is set forth in full in the Intermediate Report.
8 The Respondent has a planing mill and manufacturing operation at Durham, North
Carolina , and a lumberyard at Tillery , North Carolina, 100 miles from Durham. Both
operations are controlled from a single office at Durham . Although the Durham operation
may properly form the basis of an appropriate unit, as found by the Trial Examiner in
his Intermediate Report and by the Board in the representation proceeding, an employer-
wide unit including both operations could also be appropriate.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. The record fails to disclose that the Union at any time prior
to the filing of the representation petition in any way imparted to the
Respondent that its interest was limited to employees at the Durham
operation. Under the circumstances, we find the Union failed clearly
to identify the unit for which it sought to bargain with the
Respondent.
The Board has held that where a union's request to bargain is am-
biguous as to the scope of the unit sought and may reasonably be
construed as a request to bargain for either of two equally appro-
priate units, the union must have in fact represented a majority in the
larger, as well as the smaller, appropriate unit .4 In the present in-
stance, it is clear that although on the occasion of its request to bargain,
the Union represented a majority of the employees in the unit of
Durham plant employees,5 it did not represent a majority of the em-
ployees in the employer-wide unit. Accordingly, as the Union's
request to bargain was not supported by a majority representation in
the larger of the units covered by its bargaining request, we find that
there was no obligation on the part of the Respondent to bargain as
requested .6 We shall therefore dismiss the complaint herein, insofar
as it alleges that the Respondent unlawfully refused to bargain with
the Union.
2. Like the Trial Examiner, we find that the Respondent independ-
ently violated Section 8 (a) (1) of the Act by acts of interrogation,
threats of economic reprisal, and other coercive conduct as outlined
in the Intermediate Report. In agreeing with the Trial Examiner's
finding that President Satterfield's statements to employee Richardson
that "we don't want any Union and not going to have one" 7 and that
Respondent was "not going to have a union," 8 and Treasurer Angier's
4 Smith Transfer Company, Inc , 100 NLRB 834 . See also The C. L. Bailey Grocery
Company, 100 NLRB 576 ; cf. International Broadcasting Corporation , 99 NLRB 130
6In view of our determinati,n with respect to the bargaining request, we find it un-
necessary to determine the cause of the subsequent loss of the Union ' s majority in the
smaller unit.
9 See cases in footnote 4, supra . Under the circumstances , it is immaterial that the
Respondent did not , in its communications with the Union , request clarification of the
scope cf the unit claimed, as it is not incumbent on an employer to resolve an ambiguity
in a request to bargain . The C . L. Bailey Grocery Company, supra
i Richardson was brought to Satterfield ' s office by the Respondent 's treasurer on the
morning following the union meeting at which Richardson had been elected vice president
of the Local . Satterfield opened the conversation by registering complaints purportedly
made by neighbors of Richardson concerning Richardson ' s conduct at his home, an estab-
lishment owned by Satterfield . Upon Richardson ' s protest that the complaints were not
justified . the conversation qu-ted by the Trial Examiner follosied.
B The occasion of this statement was preceded by a conversation between Richardson
and Satterfield wherein Satterfield , while consenting to take care of a traffic ticket
received by Richardson on official duty, urged Richardson to dissuade the employees from
continuing their interest in the Union . In so doing , Satterfield stated "we are going to
take care of this ticket for you, and I want you all to take care of me . . . I want you
to go out there and work with the boys and tell them not to pay the Union any attention,
it won't gain you anything." Later Satterfield came to Richardson at his work and
engaged in conversation regarding the Union following the statement that Respondent
was "not going to have a Union ," with "I want you to get out here and talk to these
boys and tell them we ain ' t going to have no Union."
CARY LUMBER COMPANY 409
statement to employee Burton that "we don't need any Union, do
we?" a constitute violations of the Act, we rely in part upon the sub-
stance and context of the statements, and the position of the speaker
in relation to his audience-factors which the Board has regarded as
significant in determining whether a statement is free from any threat
of reprisal or promise of benefit.lo
3. Contrary to the Trial Examiner, we do not find that the state-
ment by Satterwhite to Campbell to the effect that under a union it
would cost Respondent more and other plants would get the business,
constitutes a threat of economic loss; nor do we find the statement by
Superintendent McGranahan to employee McDaniel to the effect that
the union scale would be 8 hours and might cut his salary, constitutes
a threat. We regard both of these statements as expressions of opin-
ion regarding the possible effect of unionization protected by Section
8 (c) of the Act 11
4. On November 21, 1950, the day following the election of union
local officers, the Respondent's president, Satterfield, engaged in a
conversation with employee Moore, the newly elected local president.
Moore testified to this conversation as follows :
... and he asked me what did we want, time and a half. I told
him I didn't know what they wanted. He told me to go back
and talk to the boys and get together and come on over to the
office and talk to him.
and about a week later Satterfield is quoted by Moore as stating to him,
... the plant had been run for fifty-six years without any union,
his father worked shoulder to shoulder with the employees and
he was willing to do something if we got together and came over
to the office and talk to him, if he was not at the office we know
where he lived at. [Emphasis supplied.]
The Trial Examiner found Moore to be a credible witness. Satter-
field did not specifically deny engaging in these conversations. Al-
though the Trial Examiner did not treat this testimony in his
Intermediate Report, we find that this conversation, directed to the
union president, was an invitation to the employees to bargain directly
with the Respondent at a time when the Respondent knew of the
organizational activities of the employees and the Union's claim of
majority representation and a suggestion of concessions and benefits
if they did so. This approach was clearly a part of the Respondent's
0 This statement was made while empl,yee Burton was in the process of attempting to
secure an advance of money from the Respondent 's treasurer , and was so interwoven
with the conversation regarding the loan as to clearly label the loaning practice as a
bargaining price for relinquishing union interest.
10 See J. S Abercrombie Company, 83 NLRB 524, 530 ; See also Union Asbestos and
Rubber Company 98 NLRB 1055 ; The Jackson Press, Inc., 96 NLRB 897, 899.
11 See Safeway Stores , Incorporated, 99 NLRB 48; The Jackson Press, Inc., 96 NLRB
897, 922-923.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign to undermine the Union. We therefore find that the Re-
spondent by this conduct engaged in unlawful interference in violation
of the Act 12
5. The Trial Examiner found that the Respondent revived the
insurance plan for the purpose of counteracting the efforts of the
Union after the Respondent obtained knowledge of the Union's efforts
to organize its employees. On the other hand, he recommended dis-
missal of the complaint insofar as it alleges violation of the Act by
the announcement of a vacation plan for the year 1951. As both the
insurance plan and the vacation plan were announced simultaneously,
we believe the same result must be reached with respect to the purpose
and intended effect of both announcements.
Respondent's entire operations at Durham, including the office, are
located on adjoining property. There are only 83 employees involved.
The Union began organizing Respondent's plant in September 1950,
after inquiries had been made by a designated spokesman for the
employees. Membership applications were actively distributed and
received from October 2 through November 3, 1950. This was done
at the plant during working and lunch time by 2 employees, Camp-
bell and Richardson.
With the above-mentioned union activity as a background, the long
dormant employee insurance policy plan was suddenly announced on
October 9, 1950. The Respondent has advanced no reason for so
timing this announcement. Moreover, as the plan was not to become
effective until the following year and no definite arrangements for
the plan had yet been completed, there would appear to have been
no immediate necessity for such announcement. In the same announce-
ment the Respondent advised its employees of its plan to grant vaca-
tions during the year 1951. Although it claims that the decision
to grant a 1-week vacation the following year was made on July 1,
1950, the Respondent advanced no reason why it delayed such an-
nouncement until October 9, 1950, or why it selected this date for
the announcement other than that it wanted to give its employees an
opportunity to make plans for their vacation the following year.
What plans could be made without the benefit of a specific date is not
suggested. The Respondent's established practice was one of "no
vacation" except at its discretion upon a specific request by an in-
dividual employee. According to Respondent's testimony, very few
employees made individual requests for vacation.
Although the Trial Examiner was unwilling to conclude that Re-
spondent had knowledge of the union activity on October 9, 1950, he
regarded the circumstances here as creating a doubt not entirely
12 See Rehrig -Paciftc Company , 99 NLRB 163; Graham County Electric Cooperative,
Inc, 96 NLRB 884.
CARY LUMBER COMPANY 411
dispelled by Respondent's denial of any knowledge of union activity
prior to the date of the Union's demand for recognition. Because the
Trial Examiner did not specifically credit such denial, and under the
circumstances of this case, particularly the small size of the operation
and Satterfield's acknowledged custom of mixing freely and regularly
with the employees,13 we infer that Respondent knew of the employ-
ees' interest in and activity on behalf of the Union 14 Accordingly,
we find that the Respondent announced both the insurance plan and
the vacation plan on October 9, 1950, for the purpose of undermining
the employees' organizational activities, and thus interfered with the
free exercise of their statutory rights in violation of Section 8 (a) (1)
of the Act 15
6. The Trial Examiner failed to make any finding with respect to
the granting of wage increases by the Respondent. The General
Counsel excepted to the Trial Examiner's failure to pass upon this
issue. According to Satterfield's testimony, wages were increased "the
Christmas of 1950 . . . the latter part of the year."
The only reason the Respondent has given for granting a wage
increase which had not been requested by its employees was "we were
on some Government orders there toward the latter part of the year."
However, when asked what Government orders Respondent had,
Satterfield replied, ". . . we were figuring a lot of work in anticipation
of receiving it for the Government which would require our wages
being raised." The witness added that "to do Government work
we have to be on a minimum wage," and indicated that if a minimum
standard is not in effect, wages must come up to the standard when
Government contracts are received. When asked whether the
Respondent was "working on" Government contracts at the time when
wages were raised, Satterfield replied, "that is right." Thus, within
two pages of testimony Satterfield stated that the Respondent raised
wages in anticipation of receiving Government work and that it was
"working on" Government contracts at the time when wages were
raised. These two statements are directly opposed and contradictory
unless the latter statement is interpreted to mean that Respondent was
attempting to obtain Government contracts at the time when wages
were raised. There is no showing that any Government contracts
were in fact awarded to the Respondent. Accordingly, we adopt this
interpretation of Satterfield's latter statement and find that the Re-
spondent claims to have raised wages in anticipation of receiving
"President Satterfield stated that , as has been his custom, he mixed with employees a
lot This statement is supported by employee McDaniel's testimony to the effect that in
his 13 years with the Respondent Company, President Satterfield came around every day
that he was present at the plant.
14 See Jackson Daily News, 90 NLRB 565 , and cases cited therein.
15 See Indiana Metal Products Corporation , 100 NLRB 1040
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Government contracts. However, by its own admission , Respondent
need not have raised its wages to the minimum standard until Govern-
ment contracts were actually obtained. No reason has been given
for such anticipatory action. We find it significant that the wage
increase was put into effect while the Union's representation petition
was pending before the Board and immediately following the Respond-
ent's intensive campaign to undermine the Union's organizational
efforts. In view of the circumstances set forth above and the fact that
the Respondent was intensely interested in defeating the Union at the
coming election,- we find that the wage increase was part of its
campaign to defeat the Union and was therefore violative of the
Act 17
The Remedy
Having found that the Respondent has engaged in the unfair labor
practices set forth above, we shall order that it cease and desist there-
from and take certain affirmative action designed to effectuate the poli-
cies of the Act. Due to the character and scope of the Respondent's
unfair labor practices as revealed herein, it appears likely that these
and other similar practices may be continued in the future. Therefore,
we shall order that the Respondent cease and desist from in any man-
ner interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed them in Section 7 of the Act.
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, Cary Lumber Company,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their union activities,
membership, and sympathies, or attempting to induce them to report
the Union's activities or affairs, or threatening reprisals of economic
loss, actually or by implication, if a union is formed, or granting
benefits to circumvent union organization.
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist United Brotherhood of Carpen-
ters and Joiners of America, AFL, Local Union No. 2399, or any other
labor organization, to bargain collectively through representatives
10 We particularly note Satterfield 's inquiry of Richardson "how many of these fellows
would vote if it was time to vote," and his statement "I am going to leave it up to you
to see to these boys that they don't vote for the Union when the time come," all a part
of the conversation referred to in footnote 8, supra
17 See Scott & W2lliams, Incorporated, 99 NLRB 919.
CARY LUMBER COMPANY 413
of their own choosing, to engage in concerted activities 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 rights may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in 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) Post at its plant in Durham, North Carolina, copies of the
notice attached hereto and marked "Appendix A." "s Copies of such
notice, to be furnished by the Regional Director for the Eleventh
Region, shall, after being duly signed by the Respondent's author-
ized representative, be posted by the Respondent immediately upon
receipt thereof, 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.
(b) Notify the Regional Director for the Eleventh Region, in writ-
ing, within ten (10) days from the date of this Order what steps the
Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent violated Section
8 (a) (5) of the Act.
Appendix A
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 interrogate our employees concerning their mem-
bership, sympathies toward, and activities on behalf of UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL,
LOCAL UNION No. 2399, or any other labor organization.
WE WILL NOT threaten our employees with reprisals because of
such activity.
WE WILL NOT grant benefits to employees in order to circumvent
the above-named union, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self- organi-
zation, to form labor organizations, to join or assist UNITED
18 If this Order is enforced by a decree of a United States Court of Appeals , there shall
be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a
Decree of the United States Court of Appeals , Enforcing an Order."
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL,
LOCAL UNION No. 2399, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities 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 in Sec-
tion 8 (a) (3) of the Act.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate 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 any such labor organization.
CARY LUMBER COMPANY,
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.
Intermediate Report
STATEMENT OF THE CASE
Upon a third amended charge duly filed March 22, 1951,1 by Local Union No.
2399, United Brotherhood of Carpenters and Joiners of America, AFL, herein
called the Union, alleging the Cary Lumber Company of Durham, North Carolina,
had engaged in and was engaging in unfair labor practices within the meaning
of Section 8 (a) (1), (3), and (5) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act, the General Counsel of the National
Labor Relations, herein called the Board, by the Regional Director for the Fifth
Region (Baltimore, Maryland), issued a complaint against Cary Lumber Com-
pany, Durham, North Carolina, herein called the Respondent, alleging that
the Respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7)
of the Act.
The complaint was issued on October 11, 1951, on the same date the parties
were served with a copy of the complaint, the charge and amended charge,
together with a notice of hearing.
With respect to the unfair labor practices the complaint alleged in sub-
stance: (1) That the Respondent urged, persuaded, warned, and coerced its
employees from assisting, becoming members of or remaining members of the
1The original charge was filed December 7, 1950, and alleged 8 (a) (1) and 8 (a) (2),
however the 8 (a) (2) was not spelled out; on January 12, 1951, an amended charge was
filed alleging 8 (a) (3) ; on February 2, 1951, a second amended charge alleging addi-
tional 8 (a) (3) was filed ; on March 22, 1951, the third amended charge alleging a (a)
(1), (3), and (5) was filed, All the charges were timely served
CARY LUMBER COMPANY 415
Union , or engaging in concerted activities for the purpose of collective bargain-
ing or other mutual aid and protection ; questioned its employees concerning
their union sympathies , affiliation , and activities ; threatened employees with
loss of employment if they engaged in activity on behalf of the Union ; induced
employees by use of threats and promises to engage in activities against the
Union ; granted benefits to employees to persuade them to refrain from joining
or assisting the Union ; and engaged in surveillance of employee union activi-
ties. (2) That since November 16, 1950, the Respondent has refused to bargain
collectively with the Union as the exclusive representative of its employees
within an appropriate unit duly designated as such by a majority within such
unit (3) That by the above conduct the Respondent has interfered with, re-
strained, and coerced its employees, and is interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section 7 of the
Act, more particularly Section 8 (a) (1) and (5) thereof.
On October 11, 1951, the Respondent filed an answer in which it denied that
it had engaged in any of the alleged unfair labor practices; denied that the
Union represented a majority of its employees ; and averred that the Union at no
appropriate prior time made any claim to represent the unit it now claims, but
claimed to represent a different unit of employees than it now claims appro-
priate, which unit it in fact at no time represented.
Pursuant to notice a hearing was had before Louis Plost, the undersigned
Trial Examiner, on November 27 to December 1, 1951, inclusive, at Durham,
North Carolina. The General Counsel and the Respondent were represented
by counsel hereinafter referred to in the names of their principals. The Union
was represented by officials. All the parties participated, were afforded full
opportunity to examine and cross-examine witnesses, to introduce evidence
bearing on the issues, to argue orally on the record, and to file briefs and/or
proposed findings of fact and conclusions of law with the undersigned.
At the opening of the hearing, at the close of the General Counsel's evidence-
in-chief, and again at the close of the hearing, the Respondent moved to dismiss
the complaint. The undersigned denied these motions. The undersigned granted
motions by the Respondent to strike certain testimony , and reserved ruling on
certain motions to reject certain exhibits . The reserved rulings are disposed of
by the findings made in this report.
The General Counsel and the Respondent argued orally on the record. A
date was set for the filing of briefs and/or proposed findings of fact and conclu-
sions of law."
The undersigned has received a brief together with proposed findings and
conclusions from the Respondent.
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Cary Lumber Company, is a North Carolina corporation,
engaged in the cutting of lumber and processing of wood products. The Respond-
ent operates plants at Durham and Tillery, North Carolina, the 2 plants being
approximately 100 miles from each other. In 1950, the total sales from both
the Durham and Tillery plants exceeded $870,000, the sales from the Tillery
plant alone exceeded in total the $870,000 figure given above. Of such sales those
made from the Durham plant in the amount of $7,834.44 were to points outside
"The date for such filing was extended by the Chief Trial Examiner on motion of the
General Counsel first to January 18, 1952, and again to February 8, 1952.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Carolina, and of the $870,000 total for the Tillery plant, 95 percent of such
sales were to points outside the State. The Respondent purchased approxi-
mately $50,000 worth of goods from outside North Carolina for use in its oper-
ations. The Respondent concedes that it is engaged in commerce within the
meaning of the Act and subject to the jurisdiction of the Board.
II. THE ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America , AFL, Local Union
No. 2399, is a labor organization within the meaning of Section 2 (5) of the
Act, and admits employees of the Respondent to membership.
M. THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
1. The appropriate unit
Craven L. Deese, special representative of the Union, testified credibly that
the Union began to organize the Respondent's employees in September 1950 and
that from October 1 to November 1, 1950, the employees signed applications for
membership in the Union and also authorized the Union to represent the signers
as bargaining agent. These application-authorization cards will hereafter be
referred to as "union cards."
On November 16, 1950, Lewis J. Hutton. a representative of the International
Union, who was actively engaged in organizing the Respondent's employees for
the Union, sent the following letter to the Respondent :
High Point, N. C.,
1081/2 E. Washington, St.
November 16, 1950.
Cary Lumber Company,
208 Milton Ave,
Durham, N. C.
DEAR SIRs : This is to give you legal notice that the undersigned labor
organization has been designated by a majority of your employees in an
appropriate unit, set out below, for the purpose of collective bargaining
and accordingly, we hereby request you to recognize the undersigned l"hor
organization, and bargain with it collectively, as the sole and exclusive
representative of all the employees in the appropriate unit, in respect to
rates of pay, hours of employment, and all other working conditions, as
provided in the Labor Management Act of 1947.
The appropriate unit shall consist of : All production and maintenance
employees, including firemen , watchmen and truck drivers ; but excluding
supervisors , office and clerical employees, full time guards and foremen with
authority to hire, discharge , or effectilly recommend same as defined in
the Act.
We request you to respond promptly, indicating your reaction to the
foregoing , and name date, hour and place when it will meet your con-
venience for us to meet with you in conference.
Yours truly,
Millmens Local Union No. 2399, Chartered by
United Brotherhood of Carpenters and
Joiners of America, AFL.,
By S/LEwIS J. HUTTON
Lewis J. Hutton , Representative,
Acting for the Local Union.
CARY LUMBER COMPANY 417
On November 21,' the Respondent replied through its attorney :
SPEARS & HALL
Attorneys and Counselers at Law
Durham, N. C.
November 20, 1950.
MILLMENS LOCAL UNION No. 2399
108% E. Washington St.
High Point, N. C.
Attention : Mr. Lewis J. Hutton
GENTLEMEN : Your registered letter under date of November 16, 1950, to
Cary Lumber Company, Durham , N. C. has been referred to me , as attorney
for the Company, with the request that I answer it. I wish to inform you
that if it meets with your convenience , I shall be glad to see you next
Monday, November 27th, at 11:30 A.M., in my office , 1414 Hill Building,
Durham, N. C.
Yours very truly,
S/ MARSHALL T. SPEARS.
To this letter , under the date of November 21, Hutton replied from High Point,
North Carolina :
HIGH POINT, N. C.,
108% E . Washington St.
November 21, 1950.
Mr. MARSHALL T. SPEARS,
Attorney at Law,
1414 Hill Building Durham, N. C.
Re: Cary Lumber Company
Durham, N. C.
DEAR SIR : Your letter of November 20, 1950, in behalf of the above
Company , received.
The date you suggested , that I meet you in your office is not at all con-
venient to me, as I am out of Durham at this time.
Soon as I get to Durham I will give you a ring and we can set a time to
meet you.
Yours very truly,
s/ Lswls J. HurroN.
On December 8, 1950, the Respondent, again through its attorney , sent the
following letter to the Union :
SPEARS & HILL
Attorneys at Law
Durham, N. C.
December 8, 1950.
MILLMENS LOCAL UNION No. 2399,
Cfo. Mr . Lewis J. Hutton,
Elwood Hotel, High Point, N. C.
Attention : Mr. Lewis J . Hutton
GENTLEMEN : Following my recent conference with Mr. Hutton and Mr.
Deese in regard to the matter mentioned in your letter to Cary Lumber Com-
pany under date of November 16, 1950 , I beg to advise you that during con-
8 November 16 fell on Thursday , November 21 was Tuesday.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ference this week with Mr. H. C. Satterfield, Jr., President of Cary Lumber
Company, he authorized me, as attorney for the company, to advise you
that the Cary Lumber Company, in accordance with its policy, most respect-
fully declines to recognize your Union as the sole and exclusive representa-
tive of all of its employees and bargain with you collectively as requested in
your letter above mentioned.
Yours very truly,
S/ MARSHALL T. SPEARS.
This interchange of letters represents all of the correspondence between the
Union and the Respondent and is admitted to be the only demand for recognition
made on the Respondent by the Union. The record is wholly silent regarding
the "recent conference" referred to in the letter of December 8.
The General Counsel introduced "union cards" signed by the Respondent's
employees as proof of the Union's representation among them. The payroll
lists of the Respondent's Durham and Tillery plants, as of November 16, 1950,
were also introduced. Of the "union cards" in evidence the undersigned finds 45
to be valid authorizations.'
The payroll of the Respondent's Durham plant for November 16, 1950, showed
83 employees, and the Tillery payroll, 50 employees, who came within the work
classification claimed as appropriate in fixing the unit for collective bargaining
as set up in the Union's letter of November 16, 1950, above mentioned, namely :
All production and maintenance employees, including firemen, watchmen
and truck drivers ; but excluding supervisors, office and clerical employees,
full time guards and foremen with authority to hire, discharge, or effectively
recommend some as defined in the Act.
The Respondent contended at the hearing that the union cards had no binding
validity because the Local Union had not been formed at the time the demand
for recognition was made, and further that the "union cards" were signed for
an organization at the time unchartered and wholly unorganized in which the
signers could not have had membership at the time.
The undersigned finds no merit in this contention. It has been held that
membership is not essential to binding designation,' and that cards designating
a parent organization may be later used for a specific affiliate.'
At the hearing and in its brief the Respondent contended that the unit ap-
propriate for collective bargaining among its employees should consist of the
employees of both its Durham and Tillery plants ; it does not challenge the work
classifications for inclusion within the unit as set up by the Union, its objection
goes to the extent of the unit only.
It is clear that when the Union requested recognition and bargaining although
it clearly spelled out the categories of employees within the unit claimed to be
appropriate it did not state that the unit was confined to the Respondent's
Durham plant ; it is equally clear that the Respondent did not at the time, or in
fact at any time prior to the hearing, notify the Union that it believed both its
plants were involved in the claim for recognition.
Being mindful that both the Respondent and the Union were fully aware
that the 2 plants were approximately 100 miles apart ; that Durham is a planing
mill and manufacturing operation, while Tillery is a lumberyard, and that
4 The undersigned grants the Respondent's motion made at the hearing to reject the
card offered as the authorization of David Johnson. Johnson testified that he did not
sign the card, and did not authorize anyone to sign it for him
6 See May Department Stores, 146 F. 2d 66.
6 See Franks Bros , 137 F. 2d 989.
CARY LUMBER COMPANY 419
there can in all likelihood be no community of interest between the employees
of the 2 plants, although both are controlled from a single office at Durham ; the
undersigned is persuaded that at the time recognition was requested neither the
Union nor the Respondent considered that any other than the Durham plant
was involved. Moreover the Respondent acting through its attorney in its
contact with the Union must be presumed to have been actually, and not only by
legal fiction, aware that the Act provides for election proceedings, in order to
provide a mechanism whereby an employer acting in good faith may secure a
determination of whether or not a union does in fact have a majority and is
therefore the appropriate agent with which to bargain! As the court remarked
in Idaho Potato Growers v. N. L. R. B.,8 "If they [Respondents] had any doubt
about the majority status, it would have been very easy to have demanded proof
upon this union claim."
In making a demand for recognition the Union's request "need not be in
haec verba so long as there is [was] but one clear implication."'
The undersigned is persuaded on all the evidence, considered as a whole, that
the request to bargain by the Union was adequate and that the Respondent's
contention that it disputed or misunderstood the extent of the unit claimed by
the Union and considered that both its plants should be combined into a single
unit for bargaining is an afterthought is
Upon the above findings and upon the entire record the undersigned finds that
on November 16, 1950, on December 8, 1950, and at all times material herein, a
unit appropriate for the purposes of collective bargaining among the employees
of the Respondent as represented for such purposes by the Union, consisted of
those employees of the Respondent in its Durham, North Carolina, plant, classi-
fied as :
All production and maintenance employees, including firemen, watchmen
and truck drivers; but excluding supervisors, office and clerical employees,
full-time guards and foremen with authority to hire, discharge, or effectively
recommend same, as defined in the Act.
T Joy Silk Mills v N. L. R. B., 185 F. 2d 732
8 144 F 2d 295, 308
9Joy Silk Mills, supra.
10 The parties stipulated that on February 7, 1950, the Union filed a petition to deter-
mine a bargaining representative; that a hearing was had thereon January 23, 1951;
that the Board ordered an election to be held (the stipulation Is that the election was to
be among the Respondent's "Tillery" employees The transcript of the hearing in the
matter, 34-RC-271, shows that only the Respondent's "Durham" employees were affected.
The reference to "Tillery" employees is clearly an error.) ; that subsequently the Union
requested permission to withdraw its petition ; that the Board Issued an order granting
permission to withdraw the petition on March 30, 1951.
The Respondent contended that this action by the Union and the Board constituted
an effective bar to the instant proceedings. The undersigned finds no merit In this
contention.
Likewise, E. C. Brooks, Jr, Esq., stated on the record that during the hearing In
34-RC-271 the question was raised as to whether or not the Union sought to represent
employees of the Durham plant as well as Tillery, and that "The Petition was amended
to limit it to the Durham plant of the Carey Lumber Company."
The transcript shows that Mr. Brooks, who represented the Respondent at the hearing
in 34-RC-271, did not correctly recall the facts in the matter. To dispel any miscon-
struction the undersigned finds from the record in 34-RC-271 as introduced and
admitted herein that the organization's petition therein was for employees of the Durham
plant ; that such employees only were considered, that no amendments to the petition
were blade As above indicated the undersigned considers the attorney's statement to be
an inadvertent mistake of fact. The same error regarding the union claimed in 34-RC-271
is made in the Respondent's brief.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union's representation within the appropriate unit
Claude S. Campbell testified that the effort toward self-organization among the
Respondent's employees began either in September or October 1950; that at the
request of some of his fellow employees he contacted the International Union;
that he received union cards for distribution, which he distributed and gave others
to distribute ; that the union cards subsequently signed were returned to him
and that he in turn returned them to the union organizers, Deese and Hutton.
Campbell further testified that on an unspecified day in November 1950, "we
got that far" that a meeting was called by the union organizers but some of the
union card signers having decided to ask that the meeting be postponed until
"after Christmas" he was delegated to so inform the union organizers and that
he did so.
Campbell testified that after this "around eighteen or twenty" of those having
signed union cards, signed a document withdrawing from the Union. This docu-
ment is dated November 29, 1950, and bears 29 signatures. This document is
hereafter referred to as the "petition" for the reason that the witnesses so re-
ferred to it in their testimony.11 Campbell further testified that he saw most of
those who signed the "petition" affix their signatures thereto ; that on the same
day the petition is dated, namely November 29, 1950, and was according to
Campbell the same day it was signed, he and employee W. B. Brown, Jr., at
Brown's suggestion, left the plant and called on a lawyer ; that this was the first
time Brown had spoken to him about seeing a lawyer ; that they left the plant as
about 4 p. m. he without first obtaining permission or notifying any supervisor
of his leaving because "whenever I catch up if I want to go to the store I go, and
if I want to go up the street I go"; that they remained at the lawyer's office
some 20 minutes and then returned ; that the object of their visit was to have
the lawyer prepare the withdrawal "petition"; that the lawyer came to the plant
with the prepared document "between four and five" p. m.; that the document
was then circulated among the employees by the lawyer, Brown, and Campbell;
that between 5 and 6 p. in., 18 signatures were affixed, he, Brown, and the lawyer
going from man to man ; that the document was first given to Brown and himself,
he signing first but Brown not signing until 5 other signatures were affixed ; that
none of the supervisors was present while the "petition" was circulated ; and
that after the document had been signed "it was given to Mr. Teague and Mr.
Brown to deliver to the Union meeting."
W. B. Brown, Jr., testified that on November 3 and 6 he instigated the move-
ment to withdraw from the Union ; that on November 27 he received a letter from
the Union advising him that there would be a meeting on November 29, and be-
cause the letter referred to him as a member he spoke to others who had received
similar letters telling them :
I am not in the Union, I don't want any part of it, because I can't benefit
by it the way I can see it ; I said, the best thing I can do is go get a lawyer
and let him write a Petition stating the fact that we did not want a Union,
which would make it legal.
Brown testified that he asked Campbell to go with him to consult a lawyer ;
that he asked and received permission to leave; that he and Campbell left at 9
a. in., returning between 10: 30 and 10: 45 a. m.; that the lawyer came to the
plant at 4 p. in. ; that "right after four o'clock" he and the lawyer went among the
men and obtained signatures to the "petition" the lawyer had prepared ; that he
left his work to go among the employees with the lawyer and that "Mr. Campbell
11 Attached hereto as "Exhibit A."
CARY LUMBER COMPANY 421
didn ' t go around with us"; that they spent only 35 minutes gathering signatures
and that as some of the men were not present the lawyer left with the "petition"
telling Brown
. . . I will take it back to my office and you come and we will get a petition
and take it back and get the ones that have not signed it to sign it, if they
want to.
The lawyer returned the next morning and according to Brown he left his work
for about 10 minutes , summoned those men from the yard who had not signed the
previous day, sending them to the "glue room " where the lawyer waited with the
"petition ," and the yardmen signed the petition in the glue room ; that on
November 29, he and employee Herman Z. Teague took the petition to the Labor
Temple and presented it to Deese and Hutton , the union organizers , the delivery
being made at the union meeting. Brown further testified that the lawyer took
the petition to his office after the "glue room" signing and that he and Teague
went for it there.
The glaring contradictions in the testimony of Campbell and Brown cannot
be passed off as affecting only trivialities or as the natural differences in the
recollection of two participants. In the opinion of the undersigned the differ-
ences are of such serious nature as to point to a story manufactured from "whole
cloth" for the occasion.
For example , Brown and Campbell agree that they went to see the lawyer on
November 29 . Campbell testified that they left at 4 p. in. and remained with the
lawyer about 20 minutes ; Brown fixed the leaving time as 9 a. in. and the return
at 10 : 30 or 10 : 45 a. in . Campbell testified it was customary to leave the plant
without permission . Brown testified he obtained permission to leave . Campbell
testified that he and Brown, together with the lawyer , obtained 18 signatures to
the "petition" between 4 and 5 p. in. and that this took place on November 29.
Brown testified that he and the lawyer first obtained signatures on November 27,
and that Campbell did not participate in obtaining signatures.
Campbell testified that the "petition " bore 18 signatures . It has 29. Brown
in his testimony explains this by signatures affixed on a second day in the "glue
room ," which second day he fixes as November 28. Brown was quite positive
of his date. He fixed the time by the fact that he first visited the lawyer on the
day after he received a letter from the Union ; that he received this letter the
night before and that this was on November 27. The envelope offered as con-
taining the letter is postmarked November 27.
Brown testified :
Trial Examiner Plost : You went to work at 7:00 o 'clock in the morning
on the 27th , didn't you?
The Witness : Yes, sir.
Trial Examiner Plost : You already had the letter in your pocket when
you went to work?
The Witness : Yes, sir , because it was postmarked November the 27th.
Trial Examiner Plost : You got it on the 27th and had it in your pocket?
The Witness : I received the letter when I went home on November 26th,
but the letter was postmarked the 27th.
Trial Examiner Plost : You got the letter on the 26th , but it was post-
marked the 27th?
The witness : Yes, sir.
Trial Examiner Plost : You had better think about that again before you
say "that is right" ; have you got the envelope there?
The Witness : Yes, sir.
250983-vol. 102-53-28
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner Plost : I think you better get that in the evidence right
now, that is postmarked the 27th?
The Witness : Yes, sir.
Trial Examiner Plost : And you say you got it on the 26th?
The Witness : Yes, sir. That is when I went in there, I went home that
night, and that is how come, I was wondering that myself.
Trial Examiner Plost : All right, I will ask someone to get that envelope
in the record to keep the record straight.
Campbell's testimony was to the effect that all the incidents relating to the
signing and delivery of the "petition" occurred on November 29, the date the
"petition" bears and likewise the date of the union meetings.
Brown testified that he and employee Herman Z. Teague went to the lawyer's
office for the "petition" during the noon hour "the day of the meeting on the
29th" and that while there, the lawyer told him that he would mail a copy to
the "Union officials" and to the "Company."
Herman Z. Teague testified that Brown brought the "petition" to him and
solicited his signature during the noon hour, at "5 minutes to one." Teague
testified that he fixed the hour because at the time "I was filing a saw on
my own time at dinner" ; that he accompanied Brown to the lawyer's office
but he could not fix the date other than "it was in the afternoon between the
two meetings." '
On cross-examination, Teague testified that at "approximately 4: 00 o'clock,"
Brown asked him if he "knew exactly where the Temple was" and upon receiving
Teague's affirmative answer then asked Teague to accompany him there. Also,
on cross-examination, with respect to his trip to the lawyer' s office in Brown's
company Teague testified :
Q. When did you go down to Lawyer -'s office?
A. I don't remember.
Q. Was it before or after you took the petition down to the Union Hall?
A. It was after that, I think or thereabout.
Q. What did you go there to see him about?
A. I went with Mr. Brown to help pay the fees for drawing up this
petition.
Q. Did you go down there before that time?
A. I did not, I only went the one time.
The undersigned is mindful of the testimony to the effect that Teague and
Brown were selected by the group to take the "petition" to the Union.
Brown testified that he paid the lawyer "around December 7" under the follow-
ing circumstances :
. . . So when [he] sent us his bill instead of going back to the groups and
asking for a little money Mr. Harris, Mr. Teague and myself said we would
go ahead and pay it, since it is no more than $15.00, which we did.
Teague also testified that he was not present when the lawyer told Brown that
a copy of the "petition" would be sent to the union organizers and the Respondent.
It is clear that of all the card signers who later signed the "petition" Teague
alone was present at the union meeting of November 20, and it is also clear that
he and Brown were at the November 29 meeting and that after presenting the
"petition" they were asked to leave if they did not intend to join.
v The record is clear that only two general meetings were held by the Union . The first
on November 20, the second on November 29.
CARY LUMBER COMPANY 423
Brown, who was the Respondent's witness, was contradicted by another wit-
ness called by the Respondent, one Bradley J. Powell who testified that although
he did not sign a union card he did sign the "petition" which was brought to
him by Brown "in the morning" of a day he could not fix.
Franklin L. Parrish, called by the Respondent, testified that on November 6
Campbell told him that some of the men were "going to have a meeting in
the glue room during the noon period," however he did not attend the meeting
or sign the "petition" in the glue room but signed it at about 12 o'clock on a
day in November, not otherwise identified, at the request of Brown who brought
it to him, Brown being at the time accompanied by Bradley J. Powell.
The glaring contradictions in the testimony of Campbell, Teague, Powell,
and Parrish with that of Brown, the character of the testimony, the demeanor
of the witnesses on the stand, not only casts serious doubt on Brown's credibility
but in view of the mutually contradictory character of the evidence offered as
corroboration, persuades the undersigned that neither Campbell, Brown, nor
Teague can be credited, therefore, except as specifically credited above, the
undersigned does not credit the testimony of Campbell, Brown, or Teague.
The record in 34-RC-271 was introduced in evidence. As found herein the
record discloses that a hearing on a petition for representation filed by the
Union on December 7, 1950, was held on February 6, 1951. At this hearing
the lawyer who drew the "petition" appeared and stated that he wished "to
put some evidence before the hearing" and then read a letter which he stated he
had sent to the organizing committee of the Union advising them that he repre-
sented certain clients who took the position that the Union sought to "force
membership upon them." He also read the "petition" and the 29 signatures
thereto into the record.
The lawyer stated on the R-case record :
... My purpose in bringing this out, I note here that the petition for this
particular hearing, or rather the petition here was filed on December 7, 1950,
and some of the original signers of the cards with the Union are people
whom I represent, and I want to point out that they had withdrawn their
consent, or rather had stated their position fully prior to this petition
going in.
Brown testified :
Trial Examiner Plost : You know that Mr. - intervened in that elec-
tion? You know what I mean by intervened? Came to that hearing and
notified the Labor Board that he was representing certain employees, didn't
you know that?
The Witness : Yes, sir.
Trial Examiner Plost : Did you authorize him to do that?
The Witness : Yes, sir.
Trial Examiner Plost : When did you authorize him to do that?
The Witness : I authorized him to represent us in this matter the first
time I went to him on November 27th when I received the letter stating the
fact I was a member of the Union.
Trial Examiner Plost: "To represent us" mean to represent who?
The Witness : The whole bunch that signed the Petition that was against it.
Trial Examiner Plost : Did you authorize or also tell him at that time to
represent you at any legal proceedings?
The Witness : Yes, sir, if anything further come up then I asked him to
take care of the matter and he said he would.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner Plost : And you paid him when, before this hearing that
the Labor Board had for the election, or after the hearing?
The Witness : I don 't remember when the hearing was on this exactly
and when it was I paid him.
Trial Examiner Plost : I see, now; did you ever have a meeting between
yourself and the other men who signed that so-called-Petition, the way it
has been described here, at any other time as a group after that Petition
was signed?
The Witness : None that I recall.
Trial Examiner Plost : You didn't have any meeting at which you discussed
the election or the coming election?
The Witness: None that I recall.
Trial Examiner Plost : Or in which you discussed the hearing that was to
be held about the election?
The Witness : None that I recall.
Trial Examiner Plost : Or at which you discussed any other business that
had anything to do with this Union or formation of the Union or you leaving
the Union after these 29-
The Witness : None that I can recall.
As found herein Brown testified that he and employees Teague and Harris,
paid the lawyer $15 fee for his services.'$
Joshua Richardson, the elected vice president of the Local Union, testified that
the Union held only three meetings, on November 20 and 29 and December 12,
1950. The Union's charter was delivered on November 20, 1950, and officers were
elected on November 29.
Richardson further testified credibly that on November 29 Brown and Teague
presented the "petition" to the Union and that :
They asked Mr. Brown and Mr. Teague did they want to become a Yellow
member. They said, "no" and they asked would they be excused, please.
Richardson further testified that on or about 3: 30 p. in. on November 29, 1950:
Mr. Campbell called me, I said what do you want, Mr. Campbell, and
he said Josh, he said I got a man out here I want you to talk to, and I said
O. K., Mr. Campbell, and just as I was going in the door going into the
plant, right to your right was another door, which is called the glue room,
and the glue room was so full, so help me, I just could get in there, and
when I got in Mr. Maynor-
Q. (By Mr. Klaver) Full of what?
A. Full of employees of the Cary Lumber Company ; that is when the
petition was signed in the glue room ; and Mr. Maynor was standing outside
the door; and I said to Mr. Campbell what is this, and he said we are getting
up a petition that we don't want any Union around here; I said have any
of my boys signed it, and he said no I don't think so, and Mr . Brown spoke
up and said yes they have ; and I said let me see it, and this Lawyer-
was slow about letting me see it, and I said who is this , and Mr . Brown spoke
up and said he is a lawyer, and I said why did you get a lawyer, and he said
we figured we would get a lawyer and have it drawed up, and he said go
ahead and sign it, it aint nothing ; and I said, Listen, I got in trouble once
u In these days of shifting landmarks and changing values here is indeed the unusual
situation of professional service still performed on the high ideal of "much for little and
all for part."
CARY LUMBER COMPANY 425
signing a paper like this, and I said who is paying this man, and Mr. Brown
said we are paying him ; and I said we who ; and he said the Company ; and
I said, well, I will see, and I goes on back out in the shop and get my little
book and jot it down and so that is where the petition came in.
The Respondent admitted that Maynor is superintendent of millwork. Maynor
(lid not testify.
The Respondent did not recall Campbell to deny Richardson's testimony nor
was Brown questioned with regard to it. Richardson's testimony with respect
to the "glue room" incident stands entirely undenied.
As recently pointed out by the Honorable Joseph C. Hutcheson, Jr., chief
judge of the United States Court of Appeals for the Fifth Circuit,
... it is settled law that where a witness's testimony is not contradicted,
a trier had no right to refuse to accept it.
The undersigned therefore accepts the testimony of Joshua Richardson, whom
he also finds credible, and credits him with respect to his testimony regarding
the "glue room" incident as above related. However, in crediting Richardson's
account of the conduct of Campbell and Brown in the glue room the undersigned
does not find that Campbell's or Brown's statements are in any way binding on
the Respondent, such statements with respect to the Respondent being merely
heresay not probative evidence, nor does the undersigned draw any conclusion
or make any finding on Richardson's testimony "that is where the petition was
signed in the glue room" and his further testimony "so that is where the petition
comes in" as these latter statements constitute only legal conclusions, not
probative evidence.
Richardson's testimony that "Mr. Maynor was standing outside the door,"
can at most attribute knowledge of a gathering of employees to the Respondent,
however, Henry Clement Satterfeld, Jr., the Respondent's president, testified
credibly that he had no knowledge of the "petition" until he received a copy
on December 7, 1950, from the lawyer who drew it.
The General Counsel's contention that the Respondent allegedly refused to
bargain with the Union must, under all the circumstances in this case, rest
upon the premise that the Respondent was instrumental in destroying the Union's
majority representation among its employees by promoting the repudiation of
the Union by the "union card" signers ; that it fathered the so-called "petition"
and that it engaged in an antiunion campaign which constituted an unfair labor
practice.
The undersigned has found the testimony of those employees allegedly active
in promoting the "petition" to be incredible. The only credible direct evidence
to in any way connect the Respondent with the "petition" and all that flows
from it, is Joshua Richardson's probative testimony that Superintendent "Maynor
was standing outside the door," of the glue room while a gathering of employees
was held within it. Even when viewed in the fierce light of the discredited
testimony of Campbell, Brown, and Teague, the undersigned believes Richard-
son's testimony to be too slender a thread to bind the Respondent to any infer-
ences upon which a finding implicating the Respondent to any unfair labor
practice flowing from the "petition," as disclosed by the evidence in this record,
can be made.
Although the record is such as to create serious doubt yet there is not "the
simplicity and clearness through which a halting impression ripens into rea-
sonable certitude." 14
14 The quoted language is from Mr. Justice Cardozo . U. S. v. 0. M. St. P. & P. R. Co.,
294 U. S. at 510.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned therefore finds on the entire record in the case, the evi-
dence considered as a whole, and on all the circumstances, that on November
16, 1950, the Union represented a majority of the Respondent's employees within
an appropriate unit for collective bargaining ; that the Union so notified the
Respondent and demanded recognition ; that the Respondent promptly answered
the Union suggesting an early meeting; that the Union indefinitely postponed
meeting with the Respondent; that the Union lost its majority representu'tson
on November 29, 1950; 15 that on December 8, 1950, the Respondent first refused
to bargain with the Union; and that on December 8, the Union did not repre-
sent a majority of the Respondent's employees within an appropriate unit.
The undersigned therefore finds that the evidence does not support the allega-
tions of the complaint that the Respondent refused to bargain collectively
with the Union, as it was under no legal obligation to do so.
The undersigned will recommend the complaint be dismissed insofar as
it alleges that the Respondent refused to bargain with the Union.
B. Interference, restraint, and coercion
1. Illegal conduct of officials
Claude G. Campbell testified that sometime in November 1950, Foreman May-
nor summoned him to the office. Campbell testified :
He told me that Mr. Satterwhite wanted to see me in his office, so we
went over there and Mr. Satterwhite, he smiled and says, "well, I have been
told you boys are going-getting up a Union" ; I told him yes, and so he
asked me just what the cause was for us wanting a Union . . .
Campbell further testified :
Mr. Satterwhite. He explained what the difference would be, that prob-
ably they would continue to manufacture material that would cost them
more under a Union than the other Plants could put it out, and therefore,
the other Plants would get the Business, see? He didn't make any threats,
he didn't seem to be mad and he didn't say we are not just going to recognize
the Union.
Campbell's testimony was not denied and is credited by the undersigned.
Satterwhite is the assistant to the Respondent's president. His conduct with
respect to labor relations is chargeable to the Respondent.
Inquiries into the union affiliation and activities of employees by an employer
are violative of the Act, moreover Satterwhite's statement to the effect that the
organization of the Union by its employees meant that "other plants would get
the business" can be construed only as a threat of economic loss. The under-
signed believes that in fact it clearly was intended so to be and therefore finds
that Satterwhite's statements to Campbell, as hereinabove found, are violative
of the Act.
Joshua Richardson, vice president of the Local Union, testified that the first
meeting of the Union was held November 20, 1950; that the following morning,
November 21, he was told by Sam Angier, the Respondent's treasurer, to go to
"Mr. Henry's" (Satterwhite's) office ; that he went to the office where in addition
to Henry Clement Satterfield, Jr., the Respondent's president, there were present
Foremen William S. McGranahan and Maynor and Treasurer Angier ; that Presi-
dent Satterfield and Richardson then held the following colloquy :
'S The unit contained 83. The Union represented 45, a majority of 4. It is therefore
immaterial if the "petition" carried 18 or 29 signatures.
CARY LUMBER COMPANY 427
We have not had any of this stuff until you came here, and I said what
stuff, Mr. Henry, and he goes on to say you know what I am talking about,
said this Company is fifty-six or fifty-eight years old, said we never had no
trouble? and I said Mr. Henry, I ain't started no trouble, just like that, and
he talked and said well, we don't want any Union and not going to have one.
Richardson further testified:
Q. (By Mr. Slaver) Was there anything said in that conversation about
a union meeting?
A. Yes, sir, it were, he asked me (lid I go to a Union meeting ; and I told
him yes, sir, and he said how many were there, and I told him nineteen or
twenty, and I said did Mr. Teague tell you, a white fellow who was there,
and he didn't give me no answer, and he asked me did I belong and I told
him no, not then, which I did.
Richardson testified that thereafter, on November 29, he was asked by Satter-
field if he intended to go to the Union's meeting scheduled for that night, and
upon Richardson's affirmative reply, Satterfield asked how many employees
belonged to the Union and said, "I want you to go down there tonight and come
back and tell me what they did" ; that the following day he was again sent to
the office by Maynor where Satterfield questioned Richardson in detail regarding
the meeting held the previous night; that "about the first or second week in
December," Satterfield came to Richardson at his work where the following
conversation then took place:
He said, "the thing I want you to do is look at this from both angles, we
want you to take a broad side and the long side and look at it that way,
said, "we don't need any Union," said, "this Company is 56 or 58 years old,
never had a Union, not going to have a Union," and said, "I want you to
get out here and talk to these boys and tell them we ain't going to have no
Union," and he said, "how many of these fellows would vote if it was time
for them to vote" and I said, "I don't know" and he said, "I am going to
leave it up to you to see to these boys that they don't vote for the Union
when the times comes."
According to Richardson's further testimony Satterfield spoke to him on
several other occasions regarding the Union, on which occasions according to
Richardson "he would leave me with a parting word, "I want you to pray over
it tonight and let me know what you think about it in the morning."
Young B. Moore, president of the Local Union, testified that on November 21,
the day following the first union meeting, President Satterfield spoke to him
about the Union, asked "what did we want," and "told me to go back and talk to
the boys and get together and come on over to the office and talk to him." Moore
testified to a very similar conversation "about a week later" and that thereafter :
Just every morning as he would come around, he would be making his
rounds, he would speak to me and tell me to talk to the boys and get together
and come on over and talk with him, that we didn't need to go send away
some place and get someone to come and talk to him, that we send off and
get someone else that didn't know him to come there and talk and pay them.
Archie McDaniel testified that on November 21, President Satterfield "he just
spoke to me or us just like he always do" but that on this occasion Satterfield
"spoke to me in person" and said "that he didn't want a union there," and that he
"wanted to run" as the plant had run "for 53 years like that."
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDaniel testified to a second conversation with Satterfield as follows :
The second time was on the 30th, we had a meeting on the 29th and that
was on the 30th, he asked me what happened , I told him didn't anything
happen, and so he asked me how did I like the Union, and I told him the
Union was all right , and he said , "yes, the Union was fine," I said fine, and
he said, "but I think it will work better at a place like Leggett Meyers &
Irwin Cotton Mill," and he said, " the President of those Organizations live
out of town and he lives right here in town and we could talk to him any
time we got ready," and said he think it better if we just come and talk with
him.
John Howie testified that "not very long after we met at the Hall," President
Satterfield "said that he didn't want a union, said we had been working together
a long time and said he thought we could get along better."
Lee E. Jones testified that "sometime after" the first union meeting, President
Satterfield asked him if he had heard of the Union; what he (Jones ) " thought
about it" and "he told me to find out who was in the Union "
Jones testified to a second conversation with Satterfield as follows :
About two weeks after Theodore Bentley and Archie Burton , three of
us, went outside to get a load of lumber on a buggy with a tractor, and
while we were out there Mr. Satterfield came out of the warehouse across
from the mill and Mr. McGranahan got there about the same time, he was
there to direct us what to load to carry in the mill , and Mr . Satterfield asked
Mr. McGranahan if I was all right, Mr . McGranahan smiled and said he
thought I was, and Mr. McGranahan said that Theodore Bentley was defi-
nitely all right and told Mr. Henry that he should know that Cateye was
alright, that is Archie Burton, then Mr. Henry began to talk to the three of
us, he said "Boys , we don't want any Union ," said this company has been
run a long time by his father and he was not going to have anybody come
in there telling him how to run it, and he left us.
Coy Lunsford testified :
A. Well, one morning I was out at the gas tank and he came out and
asked had I heard anything about it, I told him yes sir, I heard them talking
and he asked me who was the head of it, and I told him I heard Mr. Camp-
bell and he said he didn 't want any Union here , the plant had been running
so long without one and he didn't want nary one.
Q. When was that conversation?
A. I can't recall what date it was, I don't exactly know.
Q. Can you place it by any particular incident.
A. It was after the first meeting.
Willie Lloyd testified as follows :
Yes sir, one morning after the first meeting, about the 21st, I reckon,
Mr. Satterfield , me and Archie was out at the dry kiln and he came out there
and told us he didn't want any Union there, he had been running the plant
about fifty-seven years and they didn 't need nary one, and said he gave us
good insurance.
Henry Clement Satterfield , Jr., the Respondent 's president , testified that
between his receipt of the Union 's letter requesting recognition , the letter being
dated November 16, and the Respondent 's letter refusing such recognition, dated
December 8, 1950, he spoke to "practically all" of the Respondent 's employees
CARY LUMBER COMPANY 429
regarding their union affiliation and knowledge ; that he made inquiries both at
Durham and Tillery ; he frankly testified as follows :
Q. (By Mr. Spears) Now, did any of the employees you talked with tell
you that the Union represented them, that you recall?
Mr. Klaver : Objection. Well, all right.
Trial Examiner Plost: You withdraw your objection?
Mr. Klaver : Yes, sir.
Trial Examiner Plost : All right.
Mr. Spears : Read the question , please.
(Question read.)
The Witness : I do not recall any of our employees so stating.
Q. (By Mr . Spears ) Now Mr. Satterfield , in your discussion with your
employees with reference as to whether or not there was a Union or not, as
a result of the letter you received under date of November 16th, 1950, please
state whether or not in the discussion with them what you said to them
as you recall now?
A. As had been the custom , I mixed with them right much in the plant
and on the yards, either good morning or something to that effect, and I
would bring up the matter of a Union, I expressed my feelings in that I
stated that I did not want a Union and I asked them to consider it and think
about it and to go home and think about it and pray about it , and do as they
would like to do regarding the Union.
In the main the testimony offered by the General Counsel was not denied ;
however, there are conflicts in the testimony of the witnesses for the General
Counsel and President Satterfield , thus whereas Richardson testified that Satter-
field asked him to attend the union meeting and report to him , and Lee Jones
testified Satterfield asked him to find out who was in the Union and report his
findings, Satterfield denied this , testifying as follows :
Q. (By Mr . Spears ) Mr. Satterfield , as I recall , certain witnesses for
Petitioner testified that they discussed with you, or you discussed with them,
the question of whether or not to join the Union ; please state whether or
not you instructed or requested any employee of yours who might belong
to the Union to attend the meetings and get information and bring back
to you?
A. No, sir, I did not do that ; in my discussions they would voluntarily do
some talking, but I never asked one to find out anything to tell me.
President Satterfield impressed the undersigned as a man of probity and one
who was in no way consciously coloring his testimony , still, the undersigned being
mindful of the status of the parties as employer and trusted employees and the
fact that , as Satterfield admitted , he was engaged in an active and indeed an
intense effort to discover the extent of the Union 's strength among the Respond-
ent's employees , and as the undersigned also believes Richardson and Jones to
be reliable witnesses , therefore on all the evidence as a whole , the undersigned
finds that Satterfield did ask employees to obtain and report information re-
garding the Union. The undersigned believes this finding to be strongly sup-
ported by the unchallenged testimony of Richardson to the effect that he was
quizzed by Satterfield regarding the Union 's meeting as hereinabove found.
Richardson testified that on Thanksgiving Day, Satterfield told him, inter aZia,
"before we have a Union we will close the plant." Satterfield denied making
the statement to "Richardson , or any other employee of the company." The
undersigned credits Satterfield.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
David Johnson , called by the Respondent , on direct examination testified as
follows :
Q. (By Mr. Brooks ) Did you ever talk to Mr. Henry Satterfield about
any Union matters?
A. Not but once.
Q. When was that?
A. That was after he found out about the boys were going to have a Union.
Q. Was that after November 17, 1950?
A. Somewhere along like that.
Q. What did you tell Mr . Henry Satterfield?
A. Mr. Henry and Mr . McGranahan came out there where I was loading,
fixing to go out and asked me said , "David, do you know anything about
the Union?" And I said, "Mr. Henry , I ain 't going to tell you no lie. I
have heard a lot about it, but what they are doing , I don't know" ; Air.
Henry said , "David, said, we have been around here a long time without a
Union" and he said , "do you belong to it?" And I said , "No." He said,
"we have been operating pretty good while without a Union" and said
"of course , a Union is all right ," that is what he said to me. And he
and Mr. McGranahan were together , he said , "when you see your boss-man,
know him and can talk to him at anytime ," he said , "I don 't think we need
one," that is everything that was said , him and Mr . McGranahan was to-
gether , about any Union.
Satterfield testified that he advised the Respondent 's employees to seek guid-
ance through prayer. Although the guidance to be sought was with respect to
their union affiliation , in view of the Board's holding in Saxe-Glassman Shoe
Corporation and United Shoe Workers of America, CIO, 97 NLRB 332, the under-
signed finds that Satterfield 's admonition did not constitute an unfair labor
practice.
It is apparent that in his admitted conversations with the Respondent's em-
ployees, Satterfield not only sought to learn their union affiliations and sym-
pathies but sought to influence them against the Union.
It is well settled that inquiries by an employer of an employee regarding the
latter's union affiliations and sympathies are prohibited by the Act. Under the
authority of the Federbush and Kropp Forge cases, 16 the statements made to the
Respondent 's employees by Satterfield are also violative of the Act.
The undersigned credits the testimony of Joshua Richardson , Young B. Moore,
Archie McDaniel , John Howie, Lee E. Jones, Coy Lunsford , and Willie Lloyd
with respect to their testimony regarding inquiries regarding the Union as made
by Satterfield and found above, and further credits the testimony of President
Satterfield to the effect that he interviewed "practically all" of the Respondent's
employees with respect to the Union . Upon the entire record in the case and
the evidence as a whole , the undersigned finds that President Satterfield's in-
quiries, including the nature thereof as herein found , were violative of Section
7 of the Act.
Young B. Moore testified that W. S. McGranahan , admitted to be the superin-
tendent of the Respondent' s mill, spoke to him about the Union , apparently some-
time between the first and second union meetings. Moore testified :
He asked me why didn't we let the Union go, we probably would lose our
insurance if we kept on with the Union.
Archie McDaniel testified to a conversation with McGranahan as follows :
14 N. L. R. B. v. Federbush , 121 F. 2d 954; N. L. R. B . v. Kropp Forge, 178 F. 2d 822.
CARY LUMBER COMPANY 431
Q. (By Mr. Klaver) What did Mr. McGranahan have to say about the
Union?
A. Well, he just told me, said it would be better for me to let it alone,
because I was making 90 cents an hour and said if the Union was there, the
Union scales would be 8 hours and it would might cut my salary, what I was
making there.
John Howie testified that "along around the second" union meeting "Mr.
McGranahan did ask me one time how was we coming along with the Union
and I told him I didn't know."
Superintendent McGranahan testified that he first learned of the Union from
President Satterfield after November 17, 1950; that thereafter he queried "prac-
tically all" the Respondent's employees at Durham regarding the Union ; that
"they all denied having anything or any connection with it except 3, I think" ;
that the 3 employees who did not deny knowledge of the Union were "Young
Moore, Archie McDaniel, and Howie" ; and that he reported his findings to
Satterfield.
With respect to his conversations with the employees lie queried, McGranahan
testified :
I told them that they had a perfect right to and they should exercise what-
ever right they wanted, that we were not in favor of the Union but they had
a right to belong, if they wanted to.
At no point in his examination by the Respondent was McGranahan questioned
regarding the testimony of Moore, McDaniel, and Howie. The testimony as
above related therefor stands entirely undenied and is credited by the undersigned.
The undersigned therefore finds that by McGranahan's admitted questioning
of the Respondent's employees with respect to their union affiliation and by his
statements to Moore, McDaniel, and Howie as revealed by their credited testi-
mony, the Respondent has engaged in conduct violative of the Act.
Archie Burton testified to a conversation with Sam Angier, the Respondent's
treasurer. The incident occurred sometime after Christmas, 1950, Burton
testified :
It was on Friday and I goes over there to get some money and he asked
me did I know anything about the Union and I told him I didn't know any-
thing about it, and he said he heard that they were getting up a Union over
there and I told him I didn't know anything at all about it, and he told me,
said, "we don't need no Union, do we?" and I told him, "No sir, we don't
need nary one," and he asked me, "ain't we nice to you?" if you all need any
money and come to me, don't we give it to you and let you have it?" I told
him, "yes, sir." I told him I didn't know anything at all about the Union
and he told me, said, "you get in touch with the boys and talk to the boys
and tell them wo don't need any Union here, because we have a Corporation
and have had one for many years and never had one and didn't think they
needed one?" and so he gave me my money and I walked out of the office.
Angier did not testify. The undersigned credits the undenied testimony of
Archie Burton and finds that by Angier's statements to Burton, as above set forth,
the Respondent has engaged in conduct violative of the Act.
Charlie Vernon Flowers testified that his foreman, L. L. Marshburn; T talked
to him about the Union. Flowers testified :
11 The Respondent contends that Marshburn had no supervisory authority. The record
discloses that he exercised independent judgment and on occasion did hire employees.
Marshburn was head sawyer and as such directed the operation of his sawmill crew as
well as operate the machine . The undersigned finds Marshburn to be a supervisor within
the meaning of the Act.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Marshburn was coming down beside the log bin and I and Jim Massey
was standing behind the mill talking and so Mr. Marshburn said to Jim, "do
you know anything about the Union ," and Jim said , "Yes, and you are talk-
ing to two , now who belongs to the Union."
TRIAL EXAMINER PLOST: Who is Jim?
THE WITNESS : Jim Massey and Mr. Marshburn said he had instructions
to fire anybody he heard talking about Union activities , but all Mr. Marsh-
burn did about it was just laughed and all us laughed , the way he talked,
you know.
The undersigned funds that Marshburn 's inquiry of Flowers with respect to
the latter 's union knowledge was a violation of the Act , chargeable to the
Respondent.
2. Free insurance
On or about December 22, 1950 , the Respondent made effective for and covered
its employees by a group insurance policy at no cost to them . The employees at
Durham were informed of the policy by President Satterfield on or about Decem-
ber 22, at which time Satterfield talked to them in an assembled group, and
pamphlets explaining the insurance were distributed.
Satterfield testified that sometime in March or April 1950, certain of the
Respondent's employees presented a petition to him, wherein they requested
that the Respondent carry insurance for their benefit at the Respondent's sole
cost. This document was admitted in evidence. It is signed but is not dated.
Satterfield testified that he "sent back word" that he had been considering
purchasing such a policy, but that prior to this he had not told the Respondent's
employees he was considering a policy and that thereafter he did not make any
further announcement regarding the policy until December 22, 1950.
Satterfield testified that in fact the Respondent had begun negotiations for
insurance with various companies in November 1949, but that a policy covering
the Durham employees was not made effective until December 22, 1950.
The Respondent introduced correspondence with various companies regard-
ing group insurance. One such letter, not from the Company finally awarded
the business by the Respondent, reads :
November 10, 1949
Mr. Henry C. Satterfield , President
Cary Lumber Company
Milton Ave.
Durham, North Carolina
Dear Henry :
Our group insurance representative will be in North Carolina in the next
week or so, and I should like an appointment to discuss our plan with you.
In the meantime, would you have your bookkeeper sent me a list of your
employees with dates of birth, occupation, sex, and whether they are white
or colored? In this way, we will be able to quote you some accurate figures
when we see you.
With kindest personal regards, I am
Sincerely,
/S/ CHAS.
CHA s.r.ES H. SIMS, C. L. U.
Associate General Agent
J. L. Atkins testified that on November 7, 1949, he submitted a list of the
Respondent's employees to an insurance company he then represented and
further that he wrote this company , inter alia:
CARY LUMBER COMPANY 433
Let me have the figures at once, also advice if those that have wholesale
insurance can keep same if they take group.
Atkins testified that "10 months later, namely September 7, 1950, he closed the
group policy for the Respondent but with another company." However, the
policy was not "closed" on September 7. Atkins admitted that on September
7, 1950, he was told by the Respondent that they would take the policy , meaning
"that was the date he ordered me to go ahead" but that the policy was dated
December 22, 1950, and "nobody was insured during that time." This means
of course that the insurance was not effective until the date of the policy,
December 22, 1950.
Satterfield , whom the undersigned has previously characterized as a witness
unwilling to color his testimony , on cross-examination , testified as follows :
Q. (By Mr. Slaver) Well, those arrangements were not completed then
in September then, were they?
A. Practically, yes, sir , as to the Company receiving the business.
Q. You decided to take out an insurance policy with Mr. Atkins in Septem-
ber, is that right?
A. That is right.
Q. Had you notified Mr. Atkins you were going to take out a policy with
him?
A. That is correct.
Q. And did you notify them in writing you were going to take out a
policy?
A. No, sir.
Q You did not?
A. No, sir.
Q. Well, when was the fact that there was to be an insurance policy
announced to your employees, that there definitely would be an insurance
policy?
A. When the petition was returned it was said then that they would get
it, and on December 22nd they were given-
The only interpretation possible of this testimony, in the opinion of the under-
signed, is the obvious meaning that since sometime in November 1949 various
insurance agents were attempting to sell the Respondent group insurance, and
that on December 22, 1950, the Respondent bought such a policy, of course an
order for such a policy must have been given sometime before December 22.
However, the undersigned is not persuaded by the evidence that a binding order
was given on September 7, 1950.
In view of the fact that the matter of group insurance lay dormant from
November 1949 until shortly before December 1950, and further considering
Atkins' testimony that in preparing data for the policy he talked to all the
employees, including Richardson, who at the time asked him "do you think that
if anything will develop with the Union that it will kill this insurance?" and
being mindful of the fact that the Union did not obtain signatures to applications
until sometime in October, the undersigned believes it a fair inference that the
dormant insurance policy idea was revived only after the Respondent obtained
knowledge of the Union 's effort to organize its employees . The undersigned so
finds. Having found that the policy idea was revived after the Union became
active and as it is apparent that the policy was bought after the Union's demand
for recognition, the undersigned concludes and finds that the purchase of the
insurance policy, and the granting of certain insurance to its employees without
cost to them, was for the purpose of counteracting the effect of the Union upon
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them and therefore, as has been long held by the Board, constituted an unfair
labor practice in violation of the Act.
3. Vacations
President Satterfield testified credibly that in July 1950, the Respondent decided
to grant all its employees a 1-week vacation with pay effective July 1951; that
an announcement of the vacation grant was posted "the latter part of 1950."
Evidence was offered that the notice was posted October 9, 1950. The notice was
introduced in evidence.
The timing of this notice on vacations, October 9, 1950, considered with the
testimony that the Respondent ordered the insurance policy herein referred to
on September 7, 1950, together with the testimony that the Union began organizing
the Respondent's employees in September 1950, and was active in receiving mem-
bership applications throughout October 1950, raises a doubt not entirely dispelled
by the testimony of the Respondent's officials that they had no knowledge of the
Union prior to the Union's letter dated November 16, 1950. On the state of the
record, however, the undersigned does not believe the allegation in the complaint
to the effect that the Respondent engaged in unfair labor practices by granting
vacations to its employees to be clearly supported by all the evidence in the case
considered as a whole. The undersigned therefore recommends that the com-
plaint be dismissed insofar as it so alleges.
4. Bonus
The General Counsel sought to show that the Respondent granted a Christmas
bonus to its employees in order to influence them against the Union. The record
is clear that in 1949 all the Respondent's employees were paid a Christmas bonus
based on earnings and that a bonus calculated on the same percentage of earnings
was granted in 1950. The undersigned finds that the Respondent did not grant
its employees a bonus in order to influence them against the Union.
The Respondent's Brief, Proposed Findings of Fact, and Conclusions of Law
Filed with the Trial Examiner
In its brief to the undersigned the Respondent challenges the claimed appro-
priate unit and argues that as the -Union claimed to represent all its employees,
the Tillery and Durham plants form a single unit. The undersigned has fully
discussed this contention, however, the issue is moot inasmuch as it has been
found that although the appropriate unit consisted only of the Durham employees,
the Union did not represent a majority therein at the required time.
The Respondent argues that Satterfield's inquiries into the union membership
of its employees did not constitute an unfair labor practice. The undersigned
finds no merit in this contention.
The Respondent also argues that the statements made by Satterfield and
other of the Respondent's officials fall within the area of free speech as guaran-
teed by the Constitution and the Act. For reasons more fully set out elsewhere
herein, the undersigned rejects this contention.
The Respondent filed 11 proposed findings of fact and 5 proposed conclusions
of law with the undersigned. The undersigned accepts those findings and con-
clusions which are clearly consistent with the findings and conclusions he has
made in this report and rejects those proposed which are not wholly and
entirely consistent herewith.
CARY LUMBER COMPANY 435
Conclusions on Interference, Restraint, and Coercion
The undersigned finds that by the inquiries made by D. H. Satterwhite of
Claude G. Campbell regarding the activities of the Respondent's employees in
organizing the Union, which are per se unlawful ; by Satterwhite's statement to
Campbell to the effect that if the Union came into the plant then "other plants
would get the business," which the undersigned finds to be a threat ; by President
Satterfield's inquiries into Joshua Richardson's union membership, the extent
of the Union's organized strength among the employees, his request that Rich-
ardson report to him on the Union's meetings, his questioning Richardson in detail
regarding the Union's meeting, his request that Richardson talk against the
Union to the employees, and his statement to Richardson that the Respondent
"was not going to have a union," the latter statement constituting a threat ; and
further, by Satterfield's asking Archie McDaniel "what happened" at the union
meeting ; by Satterfield's inquiring of Lee E. Jones as to what Jones thought
of the Union and his request to Jones that he find out who was in the Union and
by his statement to Jones "that no one was going to come in and tell him how
to run it" (the plant) ; by Satterfield's questioning Coy Lunsford if he had
heard of the Union and who headed it; by Satterfield's questioning David
Johnson if he belonged to the Union ; and the undersigned further finds that
by W. S. McGranahan's statement to Young B. Moore to the effect that if the
employees "didn't let go" of the Union they would "probably lose" their insurance ;
by McGranahan's statement to Archie McDaniel that if the Union were organized
it might mean a "cut" in McDaniel's salary, these statements being construed
as threats ; and further, by McGranahan's questioning John Howie as to how
the Union "was coming along" ; and by Sam Angier's direction to Archie Burton
to tell the employees "we don't need any union here" ; and by L. L. Marshman's
inquiries of Charlie Vernon Flowers regarding the Union and his statement
to Flowers that he had orders to discharge union members ; and the undersigned
further finds that by the granting of insurance to its employees without cost
to them, all as herein found, the Respondent, (a) inquired into the union
activities of its employees, (b) threatened economic reprisal in the event of
union organization, and (c) engaged in other conduct violative of the Act.
The undersigned therefore finds that by the above-found acts and conduct
the Respondent has interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices within the meaning of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It will be recommended that Respondent cease and desist from interfering
with, restraining, and coercing its employees by interrogation concerning their
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union membership , activities, or sympathies, the extent of the .Union's organiza-
tion, its officers, or any other of its affairs, or by asking its employees to obtain
for it and disclose to it information regarding the Union or the Union's affairs
or by threats of reprisal, actual or implied, or by granting benefits to circumvent
the Union.
For the reasons set forth hereinabove, the undersigned will recommend that
the complaint be dismissed insofar as it alleges violation of Section 8 (a) (5) of
the Act and further insofar as it alleges violation of Section 8 (a) (1) of the
Act, except as herein otherwise found.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following :
CONcLusIONs OF LAW
1. Cary Lumber Company, Durham, North Carolina, is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of America, AFL, Local
Union No. 2399, is a labor organization within the meaning of Section 2 (5) of
the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The foregoing unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
[Recommendations omitted from publication in this volume.]
Exhibit A
NORTH CAROLINA,
Durham County
To the organizing Committee, United Brotherhood of Carpenters and Joiners
of America, AFL, Local Union No. 2399
The undersigned hereby declare :
1. That we are all employees of Cary Lumber Company, Durham, North
Carolina.
2. That the organizing Committee, United Brotherhood of Carpenters and
Joiners of America, AFL, Local Union No. 2393, for some time has solicited
membership among us in their Union.
3. That we do not desire to be affiliated with, nor do we desire to be repre-
sented in any manner by the United Brotherhood of Carpenters and Joiners of
America, AFL, Local Union No. 2399.
4. That we can better exercise our rights and can better bargain with our
employer concerning wages, hours, and working conditions through our own
local representatives.
5. That the Organizing Committee, United Brotherhood of Carpenters and
Joiners of America, AFL, Local Union No. 2399, has been informed of the matters
and things hereinabove mentioned, and that we do not desire to be affiliated in
any manner with the said local ; but that the said Organizing Committee of said
Local, or said Local Union No. 2399, has persisted and still persists in in-
timidating and threatening us into becoming affiliated with said United Brother-
hood of Carpenters and Joiners of America, AFL, Local Union No. 2399.
SPITZER MOTOR SALES, INC. 437
NOW THEREFORE, we and each of us hereby demand that said Organizing
Committee, United Brotherhood of Carpenters and Joiners of America, AFL,
Local Union No. 2399, or United Brotherhood of Carpenters and Joiners of
America, AFL, Local Union No. 2399, cease and desist from intimidating us, and
from threatening us into accepting the said United Brotherhood of Carpenters
and Joiners of America, AFL, Local Union No. 2399, as our bargaining agent,
and from otherwise persisting in trying to represent us in any manner whatsover.
Witness our hands this 29th day of November 1950.
(29 Signatures)
SPITZER MOTOR SALES, INC. and AMALGAMATED UNION LOCAL 259,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, CIO. Case No. 2-CA-1549. January 21,
1953
Decision and Order
On January 8, 1952, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action. Thereafter, Respondent and the General Counsel filed
exceptions to the Intermediate Report, and briefs.
The Board 2 has reviewed the Trial Examiner's rulings made 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 briefs, and the. entire record in
the case .3 Because of its disagreement with many of the Trial Ex-
aminer's findings and inferences, the Board hereby makes its own
findings :
Respondent, a Ford dealer,' operates a sales and service business
in New York City. At its 30th Street plant it has its offices, show-
rooms, and mechanical repair shop ; at its 80th Street plant it does
body-repair and refinishing work and most of its new car get-ready
work, including porcelainizing and undercoating. During the period
in 1950 with which we are here concerned, the 80th Street plant
operated under the supervision of Archie Ascher. His immediate
superior was Service Manager Brown, who was headquartered at 30th
Street and was responsible also for the service and mechanical repair
z Pursuant to the provisions of Section 10 (b) and ( c) of the National Labor Relations
Act.
2 Pursuant to 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. ]
8 Respondent 's request for oral argument is denied because the record and briefs
adequately set forth the positions of the parties.
4 Respondent concedes that it is engaged in commerce within the meaning of the Act.
N. L. R. B. v. Davis Motors, Ino., 192 F. 2d 782, (C. A. 10), enfg. 9,3 NLRB 206.
102 NLRB No. 39.
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