Cathey Lumber Co.

National Labor Relations Board - Board Decisions

Sep 28, 1949

86 N.L.R.B. 157 (N.L.R.B. 1949)

III the Matter of CATHEY LUMBER COMPANY and. INTERNATIONAL WOOD-
WORKERS OF AMERICA, LOCAL 422, C. I. O.
Case No. 15-C-1301.-Decided September 28, 1949
DECISION
AND
ORDER
On November 18, 1948, Trial Examiner John Eadie issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that Respondent had not unlawfully refused to reinstate Pruitt Bowen,
James Lee, and John West, as alleged in the complaint, and recom-
mended that the complaint be dismissed as to them. Thereafter, the
Respondent and the Union filed exceptions to the Intermediate Report,
and supporting briefs. The Respondent's request for oral argument
is hereby denied, inasmuch as the record and briefs, in our opinion,
adequately present the issues and the positions of the parties.
On December 30, 1948, the General Counsel filed a "memorandum
to the Board," copies of which were served on the parties. Briefly,
the facts relevant to a consideration of the issue raised by the General
Counsel's memorandum are as follows . On November 13, 1946, the
charge in this matter was filed by the Union. Among other things,
the Union charged in substance that on or about October 28, 1946,
the Respondent had discriminated in regard to the hire and tenure
of employment of Watt Foggy, David Byrd, Jr., and Eugene Street
(erroneously spelled "Streeter" in the charge) in violation of Section
8 (1) and (3) of the Act.' In addition the charge alleged that the
Respondent had by other acts and conduct interfered with, restrained,
and coerced its employees in violation of Section 8 (1) of the Act.
This charge was served upon the Respondent on June 28, 1947. The
I The provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the
Union charged the Respondent had violated, are continued in Section 8 (a) (1) and (a) (3)
of the Act , as amended by the Labor Management Relations Act, 1947 ( 61 Stat. 136, 29
U. S. C. 141 et seq.).
86 N. L. R. B., No. 30.
157
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint herein was issued on July 16, 1948, alleging in part that the
Respondent had discriminated against Foggy, Byrd, and Street as
charged by the Union; in addition, the complaint alleged that on or
about November 15, 1946, the Respondent had discriminated in regard
to the hire and tenure of employment of 17 other specifically named
individuals in violation of Section 8 (3) of the original Act and of
Section 8 (a) (3) of the amended Act.
The General Counsel now contends that because no charge con-
taining allegations as to the 17 individuals was filed with the Board
and served upon Respondent within 6 months after August 22, 1947,
Section 10 (b), as amended, precluded the issuance of a complaint
containing allegations of discrimination in violation of Section 8 (a)
(3) as to these 17 individuals. The Respondent did not raise this
point in its answer to the complaint or at any time during the hear-
ing in this matter. However, in its exceptions to the Intermediate
Report and in its brief the Respondent adopts as its own the position of
the General Counsel, whereas by similar media the Union vigorously
opposes the position taken by the General Counsel.2
The proviso in Section 10 (b) is a 1947 amendment to Section 10
(b) as it appeared in the original Act.3 Because it appears, as the
General Counsel apparently concedes, that there was nothing in the
specific language of Section 10 (b) before its amendment to prohibit
the variance between the charge and the complaint herein, and because
2 Aside from its objections to the merits of the General Counsel's position , the Union
also contends that the General Counsel should not now be heard because (1) his "memo-
randum to the Board" was not in the form of exceptions or a supporting brief within the
meaning of Sections 203.46 and 203.47 of the National Labor Relations Board Rules and
Regulations-Series 5, as amended ; and (2 ) he failed to assert . at the hearing the matter
contained in his memorandum.
Ave find no merit to these contentions . As pointed out above , the Respondent adopted
the position of the General Counsel in its own exceptions and supporting brief which were
timely and properly filed . Thus, even assuming a technical failure on the part of the
General Counsel to comply strictly with the Board ' s Rules and Regulations , his position
is nevertheless rightly before the Board by virtue of its inclusion in the Respondent's ex-
ceptions and brief . As to the Union ' s second contention , neither the Act nor the Board's
Rules and Regulations prohibit us from considering in our discretion any matter raised
in the exceptions which has not been urged at the hearing before a Trial Examiner.
3 The portion of Section 10 (b) material hereto is as follows :
Whenever it is charged that any person has engaged in or is engaging in any such
unfair labor practice , the Board , or any agent or agency designated by the Board
for such purposes , shall have power to issue and cause to be served upon such person,
a complaint stating the charges in that respect , and containing a notice of hearing
before the Board or a member thereof, or before a designated agent or agency, at
a place therein fixed , not less than five days after the serving of said complaint :
Provided, that no complaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the Board and the service
of a copy thereof upon the person against whom such charge is made, unless the
person aggrieved thereby was prevented from filing such charge by reason of service in
the armed forces, in which event the six-month period shall be computed from the day
of his discharge . Any such complaint may be amended by the member , agent, or
agency, at any time prior to the issuance of an order based thereon . [ Italics added
to the proviso.]
CATHEY LUMBER COMPANY 159
Congress has reenacted the original provisions of that section verbatim,
understanding of the amendment requires review here of the Board
and court cases under Section 10 (b) of the original Act.
Section 10 ( b) of the National Labor Relations Act before its amend-
nment made it clear that when a charge was filed, it was incumbent upon
the Board to ascertain whether or not a complaint should issue. Apart
from conferring upon the Board this power to investigate and de-
termine whether or not a complaint should issue , there was nothing in
the statute , descriptive or otherwise , to indicate a further function of
the charge . There was no requirement of specificity in the charge.
In the light of these statutory provisions , the Supreme Court stated
that the charge "merely sets in motion the machinery of inquiry . . .
[and] does not even serve the purpose of a pleading ." 4 Similarly,
in the opinion of the Court of Appeals for the Sixth Circuit, the pur-
pose of the charge was to enable the Board to "enter intelligently upon
the exercise of its exploratory powers." 5
As the function of the charge was thus limited, the complaint and
not the charge framed the issues in the unfair labor practice case.6
The scope of the complaint , therefore , was not dependent upon the
specific content of the charge and might properly be broader than
the charge . As a matter of fact, as an agency acting "in a public
capacity to give effect to the declared public policy of the Act,"' the
Board considered itself duty -bound to include in the complaint allega-
tions of any unfair labor practices indicated by facts discovered in
the investigation of the charge . The Board summarized its duty in
this respect as follows :
It is true that the Board cannot initiate proceedings itself, and
it is the purpose of charges to institute proceedings. When, how-
ever , charges are filed the Board proceeds , not in vindication of
private rights, but as an administrative agency charged by Con-
gress with the function of enforcing the Act and bringing about
compliance with its provisions . Accordingly , when in the course
of an investigation begun upon charges duly filed evidence is
disclosed that a respondent has engaged in unfair labor practices
not specified in the charges , public policy , as well as the policies
of the Act, require the Board to proceed with respect to such
unfair labor practices , and if, after a full hearing, it is found that
such respondent has engaged in such unfair labor practices, to
order it to cease and desist therefrom , and to take such affirma-
4 N. L. R. B. v. Indiana & Michigan Electric Company, 318 U. S. 9, 18.
Consumers Power Company v. N. L. R. B., 113 F. 2d 38, 42 (C. A. 6).
See Matter of Lone Star Bag and Bagging Company, 8 N. L. R . B. 244, 245; and
Matter of Fox-Coffey-Edge Millinery Co., Inc., 20 N. L. R. B. 637, 639.
' National Licorice Co. v. N. L. R. B., 309 U. S. 350, 362.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive action as will remedy the effects thereof. The Board would
be failing in its duty as a public agency if it chose to do otherwise.$
It was early recognized by both the Board and the courts that the
requirements of due process attached to the complaint, and not to the
charge, and that as long as the respondent was reasonably apprised of
the nature of the Board's complaint against it and given a reasonable
opportunity to defend itself, those requirements were satisfied.9
Where such notice and opportunity were not given, the Board dis-
missed the additional allegations in the complaint 10 Recently, we
have had the opportunity to reaffirm these well-established principles.
In the Colwmbia Pictw,res case, in which the Trial Examiner's Inter-
mediate Report was issued before the amendments to the Act, we found
no denial of due process in the addition to the complaint of allegations
of discrimination as to four individuals whose names did not appear
in the charge, stating: "There is ample authority to the effect that
the contents of the charge do not limit the scope of the complaint, and
that a respondent is not prejudiced by failure of the charge to include
particular unfair labor practices later litigated so long as the respond-
ent had ample notice and opportunity to defend." n
It was with the foregoing decisions of the Board and the courts
in mind, that we observed above that the inclusion in this complaint
of allegations of discrimination as to 17 individuals, not specifically
contained in the charge, would have been proper under the original
Act. The question now before us is whether the amendment to Sec-
tion 10 (b) requires a different conclusion. As already noted, the
charge in this case was filed on November 13, 1946, and served on the
Respondent on June 23, 1947. It is admitted that the filing and the
service of the charge were timely 12 However, the General Counsel
s Matter of Nillefer Manufacturing Corporation , 22 N. L. R . B. 484, 488; Matter of
Firestone Tire and Rubber Company of California , 22 N. L . It. B. 580, 584 ; and Matter
of Brown-McLaren Manufacturing Company, 34 N. L . It. B. 984, 989 (footnote 10).
D Consumers Power Company v. N. L. R. B ., supra, at 42 , the court observed that there
"was no lack of due process in the failure of the charge to particularize acts as constituting
unfair labor practices , when the complaint fairly apprises the Respondent of the acts
alleged to do so ." See National Licorice Co. v. N. L. R. B ., supra, at 369 . See also
Matter of Killefer Manufacturing Corporation , supra; Matter of Hills Brothers Company,
67 N. L. It. B. 1249, 1250 ; and Matter of Columbia Pictures Corporation , 82 N. L. It . B. 568.
10 For example , see Matter of Highway Trailer Company , 3 N. L. It . B. 591, 593.
11 Matter of Columbia Pictures Corporation, 82 N. L. It. B. 568 , decided March 31, 1949.
See Matter of Sewell Manufacturing Company , 72 N. L . It. B. 85 , 98. Cf. Matter of Bites-
Coleman Lumber Company, 4 N. L. R. B . 679, 681, enfd . 98 F. 2d 18 ( C. A. 9). See also
Fort Wayne Corrugated Paper Company v. N. L. R. B., 111 F. 2d 869 ( C. A. 7) where the
court enforced the Board's order remedying acts of discrimination not set forth in the
complaint.
12 Where, as in this case , alleged unfair labor practices occurred before August 22, 1947,
the effective date of the Labor Management Relations Act, timely filing and service of the
charge would be accomplished if made within 6 months after August 22 , 1947. Matter
of Rome Specialty Co., Inc., 84 N. L. R. B. 55 ; Matter of Old Colony Box Co ., 81 N. L. R. B.
1025 ; Matter of S. W. Evans & Son, 81 N. L. It . B. 161 ; and Matter of Itasca Cotton
Manufacturing Company, 79 N. L. It. B. 1442.
CATHEY LUMBER COMPANY 161
and the Respondent contend that Section 10 (b) precludes inclusion
in the complaint of allegations of discrimination as to the 17 indi-
viduals in dispute, as no such allegations of discrimination were con-
tained in the instant charge or in any charge filed or served within 6
months of the acts complained of. This view necessitates construing
the proviso to Section 10 (b) as extinguishing liability for the follow-
ing groups of unfair labor practices: (1) any unfair labor practices
occurring more than 6 months prior to the filing and service of the
charge initiating the case; or (2) any unfair labor practices not
specifically mentioned in a charge, although the charge was filed with
the Board and served upon the party charged within 6 months after
the commission of the particular alleged unfair labor practices. The
problem is one of statutory construction.
The proviso states in part: "That no complaint shall issue based
upon any unfair labor practice occurring more than six months prior
to the filing of the charge with the Board and the service of a copy
thereof upon the person against whom such charge is made .. ."
It is clear on its face that the proviso constitutes a statute of limitation
which serves to extinguish liability for certain unfair labor practices.13
To ascertain whether or not either or both groups of unfair labor
practices singled out by the General Counsel and Respondent are thus
affected-the primary issue herein, we must first determine the nature
and function of the vital document in question, the "charge."
The usage without qualification of the term "the charge" we regard
as especially significant. Although this term was not specifically used
in the original Section 10 (b), it nevertheless had assumed a definitive
meaning in Board proceedings and, as we have seen, in both Board and
court decisions. The unfair labor practice case was initiated by the
charge. The charge set the Board's investigatory power in motion.
It served no other purpose .14 Congress must be presumed to have
known that this was the function of the charge, a subject, with which
it dealt specifically in the amendatory legislation.' There is nothing
in the proviso or in the legislative history of the Labor Management
Relations Act to show that Congress meant to change this well-rec-
ognized function of the charge by requiring that it, like the complaint,
specify each and every unfair labor practice to be litigated. Nor does
the addition of the requirement of service of the charge upon the
person charged change this function of the charge. The argument
that by the requirement of service Congress intended that the respond-
13 See Senate Rep. No. 105 on S. 1126, 80th Congress, 1st Sess., p. 26; and remarks of
Senator Smith at 93 Daily Cong. Rec. 1149, April 30, 1947.
14 See cases cited in footnotes 4 and 5, supra.
15 See 1 Sutherland Statutory Construction, 412, 423, and 433 (3d Ed., Horack, 1943).
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent be given notice of each unfair labor practice to be litigated over-
looks the. fact that the proviso is a statute of limitation, and no more,",
and that service of the charge conjunctively with the filing thereof
clearly discharges a vital requirement of any statute of limitation,
namely, the establishment of a tolling point for the operation of the
prescribed statutory period.' The requirement of service was doubt-
lessly included to make certain that the operation of the statute could
not be tolled. without notice to the person charged that the date at
which his liability for unfair labor practices might commence had
been established. Any other notice which the Respondent may
thereby receive as to the charges against him by virtue of service, we
view as an incidental rather than a primary purpose of the service.
As under the original Act, specificity thus remains the purpose and re-
quirement of the complaint. The retention in the amended Section
10 (b) of the express provision of the original Act permitting the
amendment of the complaint "at any time prior to the issuance of an
order based thereon," serves as further affirmation by the Congress of
the procedure under the original Act whereby the complaint, and not
the charge, specified the issues in an unfair labor practice case.
We are, therefore, of the opinion that the function of the charge
continues unchanged in the amended Act, that is, that when filed the
charge sets in motion the Board's investigatory machinery in order
to ascertain whether or not a complaint should issue. As there is no
requirement that the charge set forth each unfair labor practice allega-
tion to be litigated, the practice of enlarging upon the charge to in-
clude in the complaint allegations of unfair labor practices uncovered
during the investigation likewise continues unchanged under the
amended Act-but with this important exception made necessary by
the purpose of the limitation period imposed by the proviso : that the
complaint shall not include allegations of any unfair labor practices
occurring more than 6 months prior to the filing and service of the
charge initiating the case. It follows that we must reject the construc-
tion of the proviso to Section 10 (b) advocated by the Respondent and
the General Counsel to the extent that it would also proscribe inclusion
in the complaint of allegations of unfair labor practices not specifi-
cally mentioned in a charge, although the charge was filed with the
Board and served upon the party charged within 6 months after the
commission of the particular alleged unfair labor practices.
Upon the basis of the foregoing, we conclude that the proviso to
Section 10 (b) merely extinguishes liability for those unfair labor
practices which were committed more than 6 months prior to the
filing and service of the charge initiating the case, and that a com-
71 See footnote 13, supra.
CATHEY LUMBER COMPANY 163
plaint may lawfully enlarge upon a charge if such additional unfair
labor practices were committed no longer than 6 months prior to
the filing and service of such charge.
This conclusion is consonant with the proclaimed public policy
0 of the Act. Were we to require that each unfair labor practice to
be litigated be made the subject matter of a charge, which may be filed
only by a private party," we would be leaving to private parties the
complete responsibility for ferreting out violations of the Act, and
determining what conduct constitutes violations. Such a course of
action would emasculate the Board's long recognized investigatory
power and would put the onus of investigation on private parties, a
situation hardly consistent with the public nature of the Act and the
agency created to administer it.
Upon the basis of all the foregoing, with respect to the facts of the
case at hand: as the proviso to Section 10 (b) does not require that
the charge specify or particularize each unfair labor practice to
be litigated, and as the charge in the present case was timely filed
a.nd served within the meaning of the proviso 18 with respect to the
alleged acts of discrimination involving the 17 individuals here in
question, we find that such alleged acts of discrimination are not re-
moved from litigation by Section 10 (b) and are therefore properly
included in the complaint. As the Respondent did not in its answer
to the complaint object to the inclusion of allegations of discrimination
in the complaint as to these 17 men, the Respondent cannot-nor does
it-claim surprise as to this matter. Moreover, we are satisfied that
the Respondent had ample notice and opportunity to defend against
the allegations of discrimination as to these 17 individuals and that
this matter was fully litigated at the hearing. Accordingly, we shall
proceed to a consideration, on the merits, of these and the other allega-
tions of discrimination set forth in the complaint.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
insofar as they are consistent with this Decision and Order.
1. The Trial Examiner found that on October 14, 1946, Foggy, on
behalf of the Union of which he was the president and on behalf of
the striking employees, made an unconditional offer to return to work;
that T. M. Cathey, one of the owners of the Respondent, rejected the
offer although jobs were available on that date; and that the Respond-
ent thereby violated Section 8 (3) by refusing to reinstate 17 of the
11 See N. L. R. B . v. Hopwood Retinning Co., 98 P . 2d 97 ( C. A. 2).
18 The charge was filed on November 18, 1946 , and served on June 28 , 1947, both dates
being before the effective date of the Labor :Management Relations Act. See footnote 12,
supra.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers. We agree with these findings of the Trial Examiner
although, for the reasons which follow, Ave do not adopt the Trial
Examiner's theory underlying his finding of the Section 8 (3)
violation.
The record shows that on October 8, immediately after the start
of the strike, until October 13, the Respondent advertised in local
newspapers for replacements for the strikers. We do not find that
the insertion of these advertisements constituted a violation of the
Act. However, during the same period, Ward, the Respondent's
plant and sales manager, visited the homes of various striking em-
ployees in an effort to persuade the strikers individually to abandon the
Union's strike and. return to work. In addition, Ward also solicited
striking employees individually in front of the plant to return
to work. At the time of this individual solicitation, it is undisputed
that the Union was the majority collective bargaining representative
of Respondent's employees. Under similar circumstances, in the
Bingham's Son case, relying upon two United States Supreme Court
cases,19 we stated, "It is well established that where, as here, the em-
ployees have duly designated their collective bargaining representa-
tive, the employer is obligated to deal with that representative, and
not with the employees individually." 20 Accordingly, by its oral,
personal appeals to the individual strikers to take action in derogation
of their designated representative, we find that the Respondent's con-
duct had the necessary effect of undermining the Union's authority
as the exclusive collective bargaining representative of its employees,
thereby interfering, in violation of Section 8 (1) of the Act, with
the right of its employees to bargain collectively.21
As pointed out above, the individual solicitations occurred during
the period from October 8 to October 13, 1946. Ward testified that
the solicitation was successful and that he induced some of those
solicited to return to work. These successful solicitations helped the
Respondent secure a working force sufficiently large to enable it to
resume capacity operations on October 14, 6 days after the start of
the strike. With the resumption of operations, the Respondent's hand
in resisting the Union's demand was demonstrably strengthened.
Thus, on October 11, in the midst of the solicitations, Ball, the Re-
spondent's attorney, withdrew a contract offer which had previously
been submitted by the Respondent as a counterproposal to the Union's
demands. In explaining the reasons for the withdrawal, Ball testified
19J. I. Case Co. V. N. L. R. B., 321 U. S. 332, 338; and Medo Photo Supply Corp. v. N. L.
B. B., 321 U. S. 678, 683-684.
20 Matter of Sam'l Bingham's Son Mfg. Co.. 80 N. L. R. R. 1612, which distinguished
Matter of Penokee Veneer Company, et al., 74 N. L. R. B. 1683, set aside 168 F. 2d 868
(C. A. 7).
21 Ibid.
CATHEY LUMBER COMPANY 165
that "We by that time had a pretty good idea that we could operate
in spite of the strike." And, as we have already seen, on October
14, the Respondent refused Foggy's offer on behalf of the strikers to
return to work, alleging that its operations were fully manned. Be-
yond peradventure of a doubt, therefore, the Respondent's illegal. solic-
itations, which augmented the Respondent's strike-breaking working
force, were instrumental in prolonging the strike. Accordingly, we
find that on October 8, 1946,22 the strike, which was economic in its
inception, became an unfair labor practice strike .23 We therefore re-
ject the Trial Examiner's finding that the strike became an unfair labor
practice strike on October 14, 1946. However, we must point out that
since the Respondent's refusal to reinstate the strikers on October 14
was an unfair labor practice which undoubtedly prolonged the strike,
such conduct would have converted the strike into an unfair labor
practice strike had it remained economic through that date.
As the economic strike was transformed into an unfair labor prac-
tice strike on October 8, 1946, the Respondent on that day forfeited
its right permanently to replace the strikers 24 The Respondent was
therefore required to reinstate the strikers upon their application on
October 14, 1946, even if such reinstatement required the displacement
of strike breakers.25 Accordingly, without regard to the number of
replacements employed on October 14, 1946, by refusing to reinstate
the strikers upon application on that date, the Respondent discrimi-
nated in regard to the hire and tenure of employment of the strikers
in violation of Section 8 (3) of the Act.
2. We agree with the Trial Examiner that the following conduct of
the Respondent did not violate Section 8 (1) of the Act: (a) the Re-
spondent's encouraging the arrest of employee Monroe Gardner; (b)
Farriss' suggestion that employee Henry Mitchell be arrested; and (c)
the statements of Farriss and Ward to employee Harmon Marlow.
Like the Trial Examiner, we credit the denials of Farriss and Ward in
regard to the testimony of employee Andrew Bonner and consequently
find no violation of Section 8 (1) by the Respondent with respect to
Bonner.. On the other hand, we do not credit the denials of Farriss,
Ward, and Bell with respect to the testimony of employee Henry Mor-
gan; we, therefore, agree with the Trial Examiner that by Ward's
'2 The Intermediate Report states that the individual solicitations occurred "shortly
after" October 8 , 1946. However , the record shows and we find that the solicitations coin-
menced on October 8 , 1946, contemporaneously with the insertion of the afore -mentioned
advertisements in the local newspapers.
23 Matter of Wilson & Co., Inc., 77 N. L. It. B. 959, 961 ; Matter of Vogue-Wright Studios,
Inc., 76 N . L. It. B. 773, 776; and Matter of Rockwood Stove Works , 63 N. L . It. B. 1298.
24 Matter of Vogue -Wright Studios , supra.
23 See Matter of Berkshire Knitting Mills, 46 N. L. It. B. 955 , 995, and cases cited; see
also cases cited in footnote 23, supra.
867351-50-vol. 86-12
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements to Morgan, as detailed in the Intermediate Report, the Re-
spondent violated Section 8 (1) of the Act.
The Trial Examiner found that the Respondent did not commit an
unfair labor practice by issuing separation or discharge notices to
the striking employees on October 11, 1946, 3 days after the beginning
of the strike. We do not agree. We have frequently held where, as
here, there is no evidence to show that by the issuance of such notices
the Employer sought to effect a permanent termination of the em-
ployer-employee relationship, the issuance of such notices neverthe-
less constitutes a "tactical discharge" whereby the Employer seeks
to coerce the employees to return to work in derogation of their right
to engage in concerted activities. Accordingly, we find that by issuing
separation notices, the Respondent interfered with, restrained, and
coerced its employees from engaging in concerted activities, thereby
violating Section 8 (1) of the Act."'
3. On September 25, 1946, the Union and the Respondent held their
first meeting relative to negotiating a new collective bargaining con-
tract. Shortly thereafter, the Union sent a proposed contract to the
Respondent. On October 3, Ball, the Respondent's attorney, sub-
mitted a counterproposal to the Union. As more fully detailed in the
Intermediate Report, a further negotiation conference was held on
October 7, with negative results. On October 8, the Respondent's em-
ployees engaged in an economic strike to enforce its contract demands.
The first meeting between the Union and the Respondent during
the strike occurred on October 11. At that time, alleging that the
strike had substantially altered the bargaining picture, Ball withdrew
the Respondent's October 3 contract counterproposal and promised
to submit a substitute counterproposal in the future. We agree with
the Trial Examiner 27 that under the circumstances the withdrawal
of the unaccepted October 3 counterproposal did not constitute an
unfair labor practice.28
20 Matter of Aldora Mills, 79 N. L . R. B. I : and Matter of American Manufacturing
Concern , 7 N. L. R . B. 753. In this connection, we disagree with the Trial Examiner's
interpretation of Rule 4, General Rules and Regulations, Alabama Compensation Law
(Ala. Code 1940, Tit. 26, Sec. 180 et seq .; as amended Ala. Laws 1943, pp. 281-298). Sec-
tion C of Rule 4 specifically excepts the issuance of separation notices to individual em-
ployees in case of a mass work stoppage . In such a situation an employer is directed to
file a special notice with the compensation Agency "in lieu of any other notice."
27 We do not however adopt the Trial Examiner ' s characterization of the contract with-
drawal as a "tactical maneuver."
28 Board Member Houston believes that the withdrawal of the October 3 counterproposal
by the Respondent was intended to penalize the Union and the striking employees for
engaging in the strike, a concerted activity protected by the Act. He is also of the opinion
that this October 11 action of the Respondent initiated the course of conduct whereby the
Respondent sought to defeat the Union 's majority standing in order to avoid its obligation
to bargain with Union. Air. Houston would therefore find that the Respondent refused
to bargain on and after October 11, rather than on and after November 11 as found by the
Trial Examiner , and rather than on and after October 14 as hereinafter found by his
col leagues.
CATHEY LUMBER COMPANY 167
The succeeding conduct of the Employer was however violative of
the Act.. We have already had occasion to observe that on October
14 the Respondent refused to reinstate its striking employees although
vacancies existed in jobs filled by temporary employees. Then, as de-
tailed in the Intermediate Report, during the 2-week period ending
October 30 the Respondent hired 25 new employees without notifying
the Union of the vacancies despite the Union's October 14 offer to end
the strike and return the employees to work. We have already found
that the refusal to reinstate the strikers on October 14 was discrimina-
tory. The hiring of the 25 additional employees likewise constituted
acts of discrimination against the strikers, because as unfair labor
practice strikers they were, by virtue of their unconditional offer to
return to work, entitled to notification of the existence of vacancies.
With these replacements now on the job, the Respondent began
questioning the Union's majority status. In a letter to the Union
dated October 28, after observing that "practically all of the Union
members . . . have been replaced by new employees," Ball ques-
tioned the wisdom of drafting a new proposal until the Union proved
that it represented a majority of the Respondent's employees. Again
by letters dated November 4 and November ll Ball renewed his doubts
as to the Union's majority status. On the latter date, however, Ball
did send a copy of the Respondent's new contract proposal to the
Union. As fully detailed in the Intermediate Report, this contract
offer made no concessions to the Union, nor did it even propose to main-
tain the existing employment practices; instead it proposed that many
of the rights and privileges enjoyed by the Union under its prior con-
tract be eliminated. The Union considered this contract counterpro-
posal unacceptable and on November 14 filed the charge herein.
During the strike the Respondent was bound to negotiate with the
Union; it was obligated to do so with an open and fair mind and with a
sincere purpose to find a basis for agreement.29 This in our opinion.
the Respondent did not do.
The refusal to reinstate the strikers on October 14 and the hiring
of 25 replacements during the 2-week period ending October 30 were
discriminatory actions calculated to cause defections from the Union
and to destroy the Union's majority status and its effectiveness as a
bargaining agent. No more cogent evidence in support of this finding
is needed that the Respondent's repeated questioning of the Union's
majority status immediately following its discriminatory replacement
,of the strikers, and the Respondent's submission to the Union of a
proposal which, as the Respondent well knew, the Union could not be
'IN. L. R. B.By. Recd & Prrnee Manufacturing Company, 118 P. 2d 874, 885 (C. A. 1)
and cases cited.
168 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
expected to accept. Referring to its November 11 proposal, the Re-
spondent states in its brief, "Naturally the Union could not have been
expected to accept a modification and a less advantageous contract at
that time . . . unless . . . the Union realized that it had lost its
bargaining strength because of an ill-advised strike." Thus, after
a 1-month delay, it is clear that the Respondent, although going
through the pretenses of bargaining, had no intention of concluding
an agreement with the Union. By attempts to destroy the Union's
majority, by repeated questioning of the Union's majority status, and
by submission of an unacceptable contract counter offer, the Re-
spondent's conduct fell far short of measuring up to its statutory
duty to bargain in good faith.30 Accordingly, we find that on and
after October 14, 1946, the Respondent refused to bargain with the
Union, the majority representative of its employees, in violation of
the Act.31
We have carefully considered the various arguments advanced by
the Respondent that there can be no refusal-to-bargain findings be-
cause the parties were merely negotiating to modify the 1945 contract
between the Respondent and the Union, which had 10 months to run.
We find these arguments to be without merit. Assuming the currency
of the 1945 contract, it is well established that where, as here, the
existing contract is opened for modification as provided by its terms,
the Act also imposes an affirmative duty to bargain in good faith
concerning the proposed modifications of the existing contract.32 As
we have seen, the Respondent's conduct was the antithesis of good
faith bargaining.
. Nor do we find any merit in the Respondent's contention that the
Union was no longer the majority bargaining representative of its
employees. Assuming a loss of majority, the loss is attributable to
the Respondent's unfair labor practices and would not impair the.
Union's previously established status. Under these circumstances,
the Respondent cannot assert the Union's loss of majority as justifica-
tion for its refusal to bargain.33 Likewise, we find no merit in the
Respondent's contention that the Union, by failing to reply to the
Respondent's November 11 counterproposal, breached the bargaining
negotiations thereby precluding any possibility that the parties might
reach an agreement. By submitting a patently objectionable contract
proposal, we are of the opinion that under the circumstances of this
3o See Matter of Register Publishing Co., Ltd., 44 N. L. it. B. 834 , 846-847 ; and Matter of
Interstate Steamship Company and Jones J Laughlin Steel Corporation, 36 N. L. it . B. 1307,
1320-1321.
31 See footnote 28, supra.
33 See N. L . B. B. v. The Sands Manufacturing Company , 306 U. S. 332, 342.
" Matter of Allen-Morrison Sign Co., Inc., 79 N. L. it. B. 903. See Medo Photo Supply
Corporation v. N. L. R. B., 321 U. S. 678.
CATHEY LUMBER COMPANY 169
case the Respondent's conduct forced the cessation of negotiations
thereby speciously attempting to place "the odium of rupture" upon
the Union.34
4. We agree with the Trial Examiner that the allegations in the
complaint that the Respondent discriminatorily refused to reinstate
Pruitt Bowen, James Lee, and John West be dismissed.
REMEDY
We have found that the Respondent by its illegal acts violated
Section 8 (1), (3), and (5). We are of the opinion, upon the entire
record in this case, that the commission in the future of such acts
and of other unfair labor practices may be anticipated from the Re-
spondent's conduct in the past.35 We shall therefore order that the
Respondent cease and desist from such conduct, and from in any
other manner infringing upon the rights guaranteed to its employees
in Section 7 of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Cathey Lumber
Company, Montgomery, Alabama, and its officers, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Wood-
workers of America, Local 422, C. I. 0., as the exclusive representative
of its employees in the following appropriate unit : all production and
maintenance employees, including all powerhouse employees and truck
drivers, at the Respondent's Montgomery, Alabama, plant, excluding
all watchmen, office employees, and supervisors as defined in the Act;
(b) Discouraging membership in International Woodworkers of
America, Local 422, C. I. 0., or in any other labor organization of
its employees, by discriminating in regard to the hire and tenure of
employment of its employees or terms or conditions of employment;
(c) In any other 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 International Woodworkers of
America, Local 422, C. 1. 0., or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all of
34 N. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862, 872 (C. A. 2) cert. denied 804 U. S.
576.
31 N. L. R. B. v. Express Publishing Company, 312 U. S. 426.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization, as
authorized in Section 8 (a) (3) of the amended Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request , bargain collectively with International Wood-
w orkers of America , Local 422 , C. I. 0., as the exclusive representative
of all its employees in the aforesaid unit, with respect to rates of pay,
wages , hours of employment , or other terms or conditions of
employment ;
( b) Offer David Byrd, Jr. , Eugene Street , Watt Foggy, A. M.
Bonner, Sam Cook, John Dailey , Isaac Fitzpatrick , Lem Fitzpatrick,
Dan Hendrix , Arthur Harris , Henry Morgan , Frank Stoval, Berry
Stokes, D. L. Stanky , Ike Williams, and Dock Williams immediate
and full employment to the same or substantially equivalent positions
to which they would have been employed but for the Respondent's
discrimination against them , without prejudice to their seniority and
other rights and privileges ;
( c) Make whole David Byrd, Jr., Eugene Street, Watt Foggy, A. M.
Bonner, Sam Cook , John Dailey , Isaac Fitzpatrick , Lem Fitzpatrick,
Dan Hendrix, Arthur Harris, Henry Morgan , Frank Stoval, Berry
Stokes , D. L. Stanky , Ike Williams, and Dock Williams for any loss
of pay they may have suffered by reason of the discrimination against
them by payment to each of them of a sum of money equal to the
amount each of them would normally have earned as wages during
the period from October 14 , 1946, the date of the discrimination, to
the date of the Respondent 's offer of reinstatement;
(d) Make whole Fred Smith for any loss of pay he may have
suffered by reason of the discrimination against him by payment to
him of a sum of money equal to the amount he would have earned as
wages from October 14 , 1946, the date of the discrimination, to the
date of his death ;
(e) Post at its plant at Montgomery , Alabama, copies of the notice
attached hereto, marked "Appendix A." 36 Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being signed by the Respondent 's representative , be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for sixty ( 60) consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted.
86 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the notice, before the words, "A DECISION AND ORDER" the words,
"A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
CATHEY LUMBER COMPANY 171
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
and
(f) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discriminated in regard to the hire and tenure of em-
ployment of Pruitt Bowen, James Lee, and John West, in violation of
Section 8 (3) of the Act, be, and it hereby is, dismissed.
MEMBER GRAY took no part in the consideration of the above Decision
and Order.
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 bargain collectively, upon request, with the INTER-
NATIONAL WOODWORKERS OF AMERICA, CIO, LOCAL 422, as the
exclusive bargaining representative of all the employees in the
bargaining unit described herein.
WE WILL NOT in any manner interfere with the efforts of the
above-named Union to bargain with us. The bargaining unit is:
All production and maintenance employees, including
all powerhouse employees and truck drivers, employed at
Cathey Lumber Company, Montgomery, Alabama, excluding
all watchmen , office employees , and supervisors as defined by
the Act.
WE WILL NOT in any manner interfere with, restrain , or coerce
our employees in the exercise of their rights to self-organization,
to form labor organizations , to join or assist the INTERNATIONAL
WOODWORKERS OF AMERICA , CIO, LOCAL 422, or any other labor
organization.
WE WILL offer to the following named individuals immediate
and full employment at the same or substantially equivalent posi-
tions at which they would be employed, without prejudice to
seniority or other rights and privileges they would have enjoyed,
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and make them whole for any loss of pay suffered as a result of
the discrimination against them :
David Byrd, Jr. Dan Hendrix
Eugene Street Arthur Harris
Watt Foggy Henry Morgan
A. M. Bonner Frank Stoval
Sam Cook Berry Stokes
John Dailey D. L. Stanky
Isaac Fitzpatrick Ike Williams
Lem Fitzpatrick Dock Williams
WE WILL make whole Fred Smith for any loss of pay suffered as
a result of the discrimination against him.
All our employees are free to become or remain members of the
above-named Union or any other labor organization. We will not
discriminate in regard to the hire or tenure of employment or any
term or condition of employment because of membership in or activity
on behalf of any such labor organization.
T. M. CATHEY and C. C. CATHEY d/b/a
CATHEY LUMBER COMPANY,
Employer.
By -----------------------------------------
(Representative) (Title)
Dated--------------------
INTERMEDIATE REPORT
Mr. Andrew P. Carter, and Mr. Robert B. Stark, for the General Counsel.
Mr. Fred S. Ball, Jr., of Montgomery, Ala., for the Respondent.
Mr. Thomas S. Adair, and Mr. William W. Snook, of Montgomery, Ala., for the
Union.
STATEMENT OF THE CASE
Upon a charge duly filed by the International Woodworkers of America, CIO,
Local 422, herein called the Union, the General Counsel of the National Labor
Relations Board, herein called the General Counsel and the Board, by the Re-
gional Director for the Fifteenth Region (New Orleans, Louisiana), issued his
complaint, dated July 16, 1948, against T. M. Cathey and C. C. Cathey, doing
business under the name and style of Cathey Lumber Company, herein jointly
called the Respondent , which alleged that the Respondent did engage in and
has continued to engage in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act, and Section 8 (a) (1),
(3) and ( 5) and Section 2 (6) and ( 7) of the Labor Management Relations Act of
1947, 61 Stat. 136, herein called the amended Act. Copies of the complaint, the
charge and notice of hearing were duly served upon the Respondent and the
Union.
CATHEY LUMBER COMPANY 173
With respect to the unfair labor practices, the complaint alleges in substance:
(1) that the Respondent on or about September 30, 1946, and at all times there-
after, has refused to bargain collectively with the Union, although the Union
was the representative of a majority of the employees in an appropriate unit;
(2) that the employees of the Respondent engaged in a strike beginning on Octo-
ber 8, 1946; (3) that on or about November 11, 1946, the employees who had
gone on strike unconditionally offered to return to work; (4) that on or about
November 15, 1946, and at all times thereafter, the Respondent failed and refused
to reinstate to their former positions certain named employees,' because of their
membership in and activities on behalf of the Union, or because they had engaged
in the strike; and (5) that the Respondent interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed in Section 7 of the
Act and the same section of the amended Act by (a) instigating and persuading
employees or attempting to persuade employees to make false charges of unlawful
conduct and breaches of the peace against other employees, (b) obtaining the
arrest and detention of employees upon false and fraudulent charges, (c) advis-
ing employees that they were not going to have any union in the plant, and
(d) threatening employees with penalties and loss of benefits for engaging in
the strike.
In its answer, duly filed, the Respondent admitted the jurisdictional allega-
tions of the complaint, but denied the commission of any unfair labor practices.
Before the hearing herein, the Respondent made a motion for a bill of par-
ticulars. The motion was granted in part.
Pursuant to notice, a hearing was held at Montgomery, Alabama, from Aug
ust 30 to September 1, 1948, inclusive, before the undersigned Trial Examiner.
The General Counsel, the Respondent, and the Union were represented by
counsel. Full opportunity to be heard, to examine and cross -examine witnesses.
and to introduce evidence hearing on the issues was afforded all parties.
All parties argued orally before the undersigned at the close of the hearing.
At the conclusion of the hearing, the undersigned afforded the parties an oppor-
tunity to file briefs or proposed findings of fact and conclusions of law, or both.
The General Counsel and the Respondent have filed briefs with the Trial
Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
T. M. Cathey and C. C. Cathey are copartners doing business under the trade
name and style of Cathey Lumber Company. The Respondent maintains its
principal office and place of business at Montgomery, Alabama, where it operates
a lumber plant. The Respondent also operates other plants in Georgia and
Tennessee. The hearing herein, however, is concerned only with the Montgomery
plant.
In the conduct of its business at its Montgomery plant, the Respondent for
the 12 months ending December 31, 1947, purchased raw materials and supplies,
consisting principally of logs and rough timber; the value of such purchases ex-
I The complaint named the following : David Byrd. Jr., Eugene Street, Watt Foggy, A. M.
Bonner , Pruitt Bowen, Sam Cook, John Dailey, Isaac Fitzpatrick, Lem Fitzpatrick, Dan
Hendrix , Arthur Harris, James Lee , Henry Morgan , Frank Stovall, Berry Stokes, Fred
Smith , D. L. Stanky, Ike Williams, Dock Williams, and John West.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceedetl $200,000, substantially all of which was purchased from places within
the State of Alabama. During the same period of time, the Respondent sold
and delivered finished products in excess of $500,000 in value, approximately 95
percent of which was sold and shipped from its Montgomery plant to customers
outside the State of Alabama.
At its Montgomery plant the Respondent employs approximately 49 production
workers.
II. THE ORGANIZATION INVOLVED
International Woodworkers of America, Local 422, CIO, is a labor organization
which admits to membership employees of the Respondent.
111. THE UNFAIR LABOR PRACTICES
A. Background: sequence of events before the strike
On or about July 16, 1945, a majority of the Respondent's employees by a
secret election conducted by the Board designated the Union as their repre-
sentative for the purposes of collective bargaining. The Union was certified
as such representative by the Board on August 25, 1945. On or about September
25, 1945, the Respondent and the Union entered into a collective bargaining
contract for the term of 1 year. The contract contained an automatic renewal
clause which provided for cancellation or modification of the contract upon
30 days' notice by either party prior to the yearly anniversary date.
The Union by letter dated August 23, 1946, served notice upon the Respondent
of its desire to negotiate changes in the above contract. Pursuant to this re-
quest, on September 25 a meeting was held between the negotiating committee
of the Union and Grover H. Ward, Respondent's plant and sales manager.
Ward advised the committee that T. M. Cathey, a partner of Respondent, was
away on business at another plant, and further negotiations were deferred until
September 30. Shortly after September 25, the Respondent received a letter
from a Field Representative of the Union, enclosing a proposed contract.
The Union and the Respondent met on September 30, as scheduled. Cathey
and William W. Snook, international representative of the Union, were present
at the meeting. The Union's proposed changes of the contract were discussed,
but no agreements were reached. Cathey offered to renew the old contract
with a general wage increase of 21/ cents per hour, and he informed the Union
that negotiations for other changes in the old contract would have to be handled
by the Respondent's attorney, Fred S. Ball, Jr., as he (Cathey) was not familiar
with the law.' The Union did not accept Cathey's offer and another meeting
was scheduled for October 7. On October 3, Ball presented Snook with the
Respondent's proposed contract. This counterproposal was identical to the
1945 contract, excepting that it provided for a general wage increase of 21/2
cents per hour.'
'In addition to other changes of the 1945 contract, the proposal contained a anion shop
clause and a minimum wage rate of 65 cents per hour for common labor.
3 Cathey was the only witness who testified that Ball's name was mentioned at the
September 30 meeting. Other witnesses testified that Ball was mentioned for the first
time at a meeting on October 7. The undersigned, however, believes that Cathey is a
reliable and credible witness in this connection, especially since the evidence discloses that
Snook and Ball met at the latter's office on October 3.
' Ball testified credibly concerning the above meeting with Snook. Snook testified in
substance that he did not recall the meeting but that such a meeting might have taken
place.
CATHEY LUMBER COMPANY 175
The union committee, together with Snook, met again with Cathey and Ward
on October 7. At this meeting it appears that the Union still insisted on its
proposed changes of the old contract, and rejected the Respondent's counter-
proposal. Cathey replied that any change, other than the offered general wage
increase, would have to be negotiated with Ball. The meeting ended without
any agreements being reached.
After the above meeting, and on October 7, Snook spoke to Ball and arranged
for a meeting between the union committee and Ball on October 11. Snook
then phoned Ward and requested him to notify the employees who were mem-
bers of the union bargaining committee of the scheduled meeting with Ball,
which Ward did. On the night of October 7 the Union held a meeting at which
the employees voted to strike.
B. The strike
On October 8, 1946, the employees worked for about 1 hour and then went
on strike, beginning at about 8 a. in. The Union picketed the plant from the
start of the strike until about November 15.
During the first week of the strike the Respondent partially operated the
plant with about 18 employees of Earl Hayes, an independent operator of a,.
mill which supplied lumber to the Respondent. With some few exceptions,
-Hayes' employees remained on his pay roll during this period- of time. Their
work for the Respondent consisted for the most part in loading lumber, and
while working in the Respondent's plant they crossed the Union's picket line.
Between October 8 and October 13, the Respondent advertised for new em-
ployees in local newspapers. Ward and W. L. Farriss, sawmill foreman,
shortly after October 8 and thereafter, solicited strikers both at their homes
and near the plant to return to work.' On Friday, October 11, Respondent's
regular pay day, the strikers were given separation notices which were attached
to their checks. On these notices the Respondent gave as the reason for
.separation, "Left job without good cause." °
On October 11, representatives of the Union, including Snook, met with Ball.
At this meeting Ball stated in substance that since the Union had gone out
on strike without any warning, the Respondent's last proposal was withdrawn;
and that any new contract entered into would be "a much stronger contract for
the company and a much weaker contract for the Union."' Ball at the time
promised to prepare and send the Respondent's new proposal to the Union.
As stated above, employees of Hayes worked at the Respondent's plant for
a short while after the start of the strike. Monroe Gardner was one of such
workers.' As Gardner left Respondent's plant at noon on October 12, he was
accosted by Eugene Street, a striker engaged in picket duty at the plant. At
the time Gardner had a pocketknife in his pocket. The knife was open and
the blade stuck out of his pocket so that it was visible. Street upbraided Gardner
for working in the Respondent's plant during the strike. He then took the knife
5 It appears that a number of strikers returned to work for the Respondent during the
course of the strike.
6 The notices were forms of the Alabama Unemployment Compensation Agency. In addi-
tion to the above reason for separation, the Respondent designated one of the seven printed
causes for separation on the form , which reads as follows :
Quit work voluntarily without good cause connected with his work.
° As heretofore found , Ball presented the Respondent ' s proposal to Snook on October 3.
Prior to the times mentioned herein, Gardner had been an employee of the Respondent.
The evidence shows that he became an employee again on October 16. 1946.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Gardner's pocket, closed it, and returned it to Gardner's pocket. Before
leaving Gardner, Street stated, "I'll blow your brains out."' At the time
Hayes was in the near vicinity and heard Street's threat. Hayes reported the
incident to Ward that same day.
On October 14, Gardner related his trouble with Street to Ward.10 After con-
sulting with Ball, Ward advised Gardner to swear out a "peace warrant"
against Street. Ward then drove Gardner in the Respondent's truck to the
courthouse where Gardner swore out such a warrant. Later that same day,
city police arrested Street at the plant 11
Starting on October 14, the Respondent resumed full production at its plant,
having hired about 30 new employees.12 At some time during that day, Watt
Foggy, president of the Local of the Union and a member of the Union's negoti-
ating committee, and Willie Daniels, another member of the committee, called
at the plant and conferred with Cathey. Foggy told Cathey that the strikers
were ready to go back to work, that they "surrendered unconditionally," and
that they would work under the old contract or under any terms that Cathey
wanted. Cathey replied that upon the advice of Ball a new crew of men had
been hired and that there was no available work for the strikers'
On October 21, the Union sent a letter to the respondent as follows :
Local No..422, International Woodworkers of America, CIO requests a
meeting between yourselves and the International Representative together
with the negotiating committee at your earliest convenience.
The purpose of this requested meeting is to endeavor to arrive at a settle-
ment of our present difficulties.
Since Mr. Fred Ball, your Attorney has failed to keep his word in the
matter of submitting a proposal to the Union, the Union has lost what little
confidence it had in him. The Union feels that if Mr. Cathey had made
"Gardner testified credibly concerning the above incident. Street and other witnesses
for the General Counsel testified substantially the same as did Gardner in this respect,
excepting that from their testimony it does not appear that Street at any time threatened
Gardner as stated above. Hayes testified that on the following Monday morning, October
14, as Gardner entered the plant, Street drew a "hawk-bill" knife and stated to Gardner,
"I told you, Monroe, not to go over there." The undersigned does not consider Hayes a re-
liable witness. Gardner denied ever seeing Street with a "hawk-bill" knife. Further, as
hereinafter related, Gardner filed a "peace warrant" against Street. A copy of the
warrant was introduced in evidence and it discloses that the only incident complained of
occurred on October 12.
1° Farriss testified that on Monday morning Gardner looked frightened ; that upon his
inquiry as to the trouble, Gardner replied that Street drew a knife on him ; and that he
then took Gardner to see Ward. Ward testified that Farriss brought Gardner to him and
that Gardner said that Street had drawn a "hawk-bill" knife. Gardner, in effect, denied
their testimony. The undersigned does not believe that Farriss and Ward are reliable
witnesses in this connection. The conflict in the testimony may be caused by reason of
the fact that Street took Gardner's knife out of his pocket, as related above.
11 The evidence discloses that Street was detained in jail for about 4 hours and that he
was never tried on the charge.
12 As noted above, about 18 employees of Hayes, including Gardner, were working at the
plant at this time. Gardner was transferred to the Respondent's pay roll on October 16.
Respondent's records disclose that 34 new employees, excluding Gardner, were hired during
the week ending October 16, but do not reveal the dates of hiring.
13 Foggy testified credibly and without contradiction on direct examination to the above
conversation. During cross-examination, Foggy testified that he talked to Ward on
October 14. The question eliciting this answer was related to a previous question con-
cerning Foggy's knowledge that a new employee had filled his job as a "lift truck" operator.
Foggy may have been referring to another conversation with Ward on October 14 in this
connection. Otherwise, the conflict in his testimony is not explained in the record.
CATHEY LUMBER COMPANY 177
such a promise that he would have either made good on his promise or
would have offered some reasonable explanation of why he did not do so.
The Respondent answered the above request of the Union by the following
letter, dated October 25, 1946:
In reply to your letter of the 21st, this Company made you a definite pro-
posal in the form of a contract which included an offer to raise the wages.
You told Mr. Ball that you would consider the contract and let him hear
from you. The following Monday, we had an engagement with you for a
meeting at the plant, at which time you were told that Mr. Ball would handle
the contract negotiations. The following morning, the men quit their jobs
without warning and after taking control of the plant whistle without au-
thority and blowing it for a work stoppage.
Mr. Ball met with you and your committee the following Friday afternoon
at 5 p. m., October 11th, and at that time our previous proposal was with-
drawn and Mr. Ball told you that he would prepare another contract and
submit it to you. Since that time Mr. Ball has been busy in the fall term of
court and has not been able to give office matters attention. He tells us that
he will finish court next Monday or Tuesday and will then prepare and sub-
mit to you our proposal.
We employed Mr. Ball to handle the negotiations and do not feel that the
Union should try to dictate to us with reference to who shall represent us
in these negotiations. We feel quite certain that Mr. Ball will do exactly
what he says he will. Please address any further communications to him.
In a letter to the Union, dated October 28, Ball questioned the Union's majority,
and stated as his reason, "practically all of the union members who quit have
been replaced with new employees." The Union answered Ball's letter on Octo-
ber 30. In this letter the Union referred to the fact that it was the certified
collective bargaining agency and requested Ball to set a date for negotiations.
.Answering the Union's request, Ball by letter dated November 4 advised the
Union that he would be available for a meeting on November 6. In this letter
Ball also stated as follows :
I am still uncertain as to the duty of the company with reference to nego-
tiating with the union in view of the fact that there is a new set of employees
at the plant and anything I do or say in this connection is without prejudice
to the right of the company to deny its duty to further negotiate.
Snook again met with Ball on November 6, and requested that the strikers
be reinstated. Ball answered in substance that the strikers had been replaced
by new employees and that the law therefore did not require that they be
Teinstated.
On November 11, Ball sent Snook the following letter :
I have prepared and now enclose a proposed form of contract but this is
sent to you with reservation of rights as I still have not heard from the
National Labor Relations Board as to whether we are under duty to nego-
tiate with the Union in view of the fact that the Union does not now
represent a majority of the employees.
I will await your advices and if you want to confer about this matter
further I would be glad to make an appointment with you.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The proposed contract, mentioned in Ball's letter, not only failed to grant any
of the Union's demands, but also eliminated a number of provisions in the 1945
contract which were favorable to the Union, including check-off of union dues."
The Union did not answer Ball's letter of November 11, and did not request
any further meetings for the purpose of negotiating a contract. On November
13, 1946, the Union filed with the Board an unfair labor practice charge against
the Respondent."
On or about November 15, 1946, the Union ceased to picket the Respondent's
plant. On the same date the Union sent a letter to the Respondent, stating
that the strikers were willing to return to work. The Union sent another letter,.
dated December 9, 1946, stating that its unconditional offer to return to work
was a continuing offer and that the Respondent was expected to notify the em-
ployees when any vacancies arose . After the end of the strike the Respondent
rehired some of the strikers when they returned to the plant for work. Although
about 48 new employees were hired after November 15, 1946, and before Janu-
ary 1, 1948, the Respondent slid not notify either the Union or individual strikers.
of any vacancies.
C. Conclusions
1. The refusals to reinstate
The General Counsel contends that the strike was an suifair labor practice.
stripe from its inception. In this connection the General Counsel urges, in sub-
stance, that the Respondent committed an unfair labor practice by insisting that
the Union negotiate with Ball, after substantial agreement had been reached
during negotiations between Cathey and the Union. I do not believe that the-
evidence supports this contention. The evidence discloses that up and until
the clay of the strike the Respondent offered to renew the 1945 contract and to,
grant a wage increase. Cathey made this offer at the meeting on September 30,.
and Ball submitted the same proposal to Snook on October 3. In addition the
evidence shows that the Respondent did not at those times altogether reject the.
Union's demands, but agreed to negotiate further, as shown by the meeting of
October 11. In my opinion, the strike in its inception was economic. The Union_
sought to enforce its economic demands. If the strike had remained economic
throughout, under the law the Respondent would not be required to discharge
the replacements at the end of the strike in order to make way for the strikers"
The General Counsel further contends that the strike, was converted into an
14 The 1945 contract provided for a minimum wage of 45 cents per hour with automatic
increases at fixed intervals to 50 cents per hour. The proposal contained the same minimum
wage, but in connection with increases it provided as follows :
The Company may at its option pay to such of its employees as it deems entitled
thereto a higher rate of pay in any instance and may at its option from time to time
raise or lower said rates but not below said minimum.
The proposal also contained the following strike clause.
During the period of this agreement, the Union agrees not to strike or to cause
any slowdown or work stoppage. and in event of violation by the Union or any of its,
members of this paragraph the Company may at its option and without notice cancel,
terminate and annul this agreement, and shall thereafter not he required to bargain
with the Union until it has been recertified as the bargaining representative of the-
employees after another election by the National Labor Relations Board.
15 The charge alleges that the Respondent on or about October 28, 1946, discriminatorily
terminated the employment of watt Foggy, David Byrd, Jr., and Eugene Streeter, and'
that on or about October 4, 1946, the Respondent refused to bargain collectively with the-
Union.
'IN. G. R. B, v. Mackay Radio G Telegraph Company, 304 U. S. 383.
CATHEY LUMBER COMPANY 179
unfair labor practice strike on October 11, when Ball met with the Union and
stated in substance that because of the strike any contract thereafter entered
into would be less favorable to the Union and more favorable to the Respondent.
This contention is also rejected. Such evidence is not conclusive, especially
since it appears that the Union had merely served notice to modify the existing
contract and not to terminate it. Further, while Ball's statement on its face
unquestionably was a threat to penalize the Union for the strike, it may be
classed as a "tactical maneuver" designed to induce the strikers to abandon the
strike and resume work." It should be noted in this connection that at the time
of this meeting the strikers had not made an unconditional offer to resume work.
As discussed above, on October 11 the Respondent gave separation notices to
all strikers. The notices do not state that the employees were discharged, but
that they "quit" their employment without just cause. Clearly, the Respondent's
position in this respect was erroneous. It is well established that strikers retain
their status as employees." However, the uncontradicted evidence discloses that
under Alabama law an employer is required to file a separation notice within 24
hours after an employee is terminated. While the notices in the instant case
were given to the strikers on October 11, they were dated October 8. Under the
circumstances, I do not believe that the Respondent committed an unfair labor
practice by taking the above action.
The undersigned does believe and find, however, that the strike became an
unfair labor practice strike on October 14. It is the uncontradicted evidence
that on that date Foggy on behalf of the Union made an unconditional offer to
resume work upon any conditions desired by the Respondent. Cathey, in effect,
rejected the offer by stating that no work was available as a new crew of workers
,had been hired. The evidence, however, discloses that no more than 34 new
employees had been hired on that date, whereas the normal complement in the
plant was about 50.19 Moreover, during the week ending October 23, the Re-
spondent hired 17 new employees and 8 more during the week ending October 30.
Since it is undisputed that Hayes' employees were only temporary workers, help-
ing out in the plant until new employees could be hired, and without permanent
or any other status as employees of the Respondent, it is clear that the Re-
spondent had vacancies on October 14, contrary to Cathey's statement. Under
the circumstances, it was incumbent upon Cathey at least to have notified Foggy
of the existing vacancies and to have offered to reinstate strikers to those vacan-
cies and to any other vacancies arising in the future. This Cathey did not do.
Instead, the Respondent hired 25 new employees within the next 2 weeks, as
shown above, and ignored the Union's unconditional offer to return to work.
Accordingly, from the above facts I find that the Respondent refused to reinstate
the strikers on and after October 14, 1946, because they had gone on strike and
because of their adherence to the Union 20
The Respondent contends, in effect, that it offered reinstatement to some of
the strikers, but that they refused employment. In this connection Cathey testi-
fied that he received a telephone call from Foggy on about November 14 or 15;
that at the time Ward listened in on the conversation ; that Cathey offered a job
to Foggy ; that Foggy "afterward" called him at his home at which time he again
offered Foggy a job; that Foggy did not state at. the time whether or not he
would accept the job; and that Foggy never did report for work. As to the first
17 Majestic Manufacturing Co., 64 N. L. R. B. 950.
18 Mackay Radio and Telephone Company, supra.
10 As found above, about 18 employees of Hayes were working in the plant at the time,
20 Matter of Container Manufacturing Co., 75 N. L. R. B. 1082.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation Ward testified in substance that Foggy called about 2 or 3 weeks
after the start of the strike or about November 14; that Foggy requested rein-
statement to his old job ; that Cathey offered to employ him on another job im-
mediately ; and that although wages were not discussed, Foggy refused the offer.
Foggy did not deny that he had a telephone conversation with Cathey on or about
November 14, but did deny that Cathey had ever offered him any job 21 The un-
disputed evidence discloses that Foggy's job of truck lift operator was filled at
the time of the above conversations with Cathey. The undersigned believes
that Cathey was a reliable and credible witness in this respect. However, it
does appear and I find that the conversations took place on or before November
14, especially in view of Ward's testimony concerning the date. As found above,
Foggy on October 14 made an unconditional offer on behalf of the Union for a
return to work, and Cathey, in effect, rejected the offer. The evidence discloses
that the Union thereafter continued to picket the plant until November 15, at
which time it made another unconditional offer to return to work. Therefore, it
definitely appears that the Respondent's individual offer of a job to Foggy oc-
curred while the strike was in progress, and does not constitute a valid offer of
reinstatement.
Ward testified without contradiction that he made individual job offers to a
number of the strikers and that they refused employment. However, with
the exception of Pruitt Bowen and James Lee, all of these job offers were made
while the strike was in progress, or before November 15. As in the case of
Foggy, found above, it is found that the Respondent did not make valid offers
of reinstatement to these employees. In the cases of Bowen and Lee, Ward
testified without contradiction that he offered and they refused employment, but
he did not testify concerning he dates when the offers were made. Since Bowen
and Lee did not testify at the hearing, it will be recommended that their cases
be dismissed. Ward further testified without contradiction that Fred Smith
died some few months after the strike, that he was unable to locate either D. L.
Stanky or Dock Williams, and that John West at some undisclosed time "quit"
after working for the respondent for about 2 weeks. The undersigned rejects the
Respondent's contention that it was unable to locate Stanky and Williams. The
Respondent was obligated to offer them reinstatement, and, in my opinion, the
alleged efforts of the Respondent to locate these employees were not sufficient.
The Respondent could have utilized the mails or could have made its offers
through the Union. This the Respondent did not do. Accordingly, the cases of
Stanky and Williams will be treated in the same manner as those of other em-
ployees in the findings and recommendations hereinafter made. In the case of
John West the evidence is inconclusive, but since he did not testify at the hearing,
it will also be recommended that his case be dismissed.
2. The refusal to bargain
The complaint alleges that all production and maintenance employees, includ-
ing all powerhouse employees and truck drivers, employed at Respondent's Mont-
gomery, Alabama, plant, excluding all watchmen, office employees and all super-
visory employees with authority to hire, promote, discharge, discipline or
otherwise effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collective bargain-
ing. In its answer, the Respondent admits the appropriateness of the unit.-
21 Foggy testified credibly that on November 20 he asked Ward for a job and that Ward
told him that no jobs were available. Ward denied that he refused to employ Foggy on
November 20. His denial is rejected.
CATHEY LUMBER COMPANY 181
Accordingly, the undersigned finds that all production and maintenance em-
ployees, including all powerhouse employees and truck drivers, employed at Re-
spondent's Montgomery, Alabama, plant, excluding all watchmen, office em-
ployees and all supervisory employees with authority to hire, promote, discharge,
discipline or otherwise effect changes in the status of employees, or effectively
recommend such action, have at all times material herein, constituted and do now
constitute an appropriate. unit within the meaning of Section 9 (b) of the Act
and the same section of the Amended Act ; he finds that said unit will insure to
the employees of the Respondent the full benefit of their rights to self-organiza-
tion and collective bargaining, and otherwise effectuate the purposes of the
Amended Act.
On July 16, 1945, a majority of the Respondent's employees in the above-de-
scribed unit designated the Union as their representative for the purposes of
collective bargaining, such designations having been made by secret ballot in an
election conducted by the Board. On August 25, 1945, the Union was formally
certified by the Board as the exclusive representative for the purposes of collec-
tive bargaining of the employees in the above-described unit. In its answer, the
Respondent did not admit that the Unit represented a majority of employees.
The evidence in the case discloses that during the negotiations the Respondent at
no time questioned the Union's majority up and until October 28, 1946, at which
time Ball sent a letter to the Union and raised this question. The undersigned
has found above that the strike, originally economic, was converted on October 14
into an unfair labor practice strike by the Respondent's refusal to reinstate
strikers to existing vacancies upon their unconditional offer to return to work.
Before the Union's unconditional offer on October 14, the Respondent had hired
no more than 34 new employees. The evidence discloses that 10 of these new
employees were terminated on or before October 30 and that at least 26 new
employees were hired during the next few weeks after October 14. It is undis-
puted that there were approximately 49 employees in the appropriate unit at the
beginning of the strike. If the Respondent had reinstated strikers to these
vacancies which occurred on and after October 14, the Union undoubtedly would
have retained its majority, absent any unfair labor practices on the part of the
Respondent. Further, any loss of majority that the Union may have suffered
on and after October 14 is attributable to the Respondent's unfair labor practices.
Accordingly, I find that on and at all times after July 16, 1945, the Union was the
dp1ly designated bargaining representative of a majority of the employees in the
aforesaid. appropriate unit, and that, pursuant to the provision of Section 9
(a) of the Act and the same section of the amended Act, the Union was, on July
16, 1945, and at all times thereafter has been, and is now the exclusive represent-
ative of all employees in the aforesaid unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employment, and other con-
4litions of employment.
The General Counsel contends that the Respondent refused to bargain with the
Union at the meeting on October 7, 1946, when Cathey insisted that further nego-
tiations be conducted with Attorney Ball. This evidence has been discussed
above and the undersigned rejects to the General Counsel's contention. The
undersigned has also rejected the General Counsel's contention that Ball's threat
on October 11 to penalize the Union for striking constitutes a refusal to bar-
gain, as has also been discussed above. However, on November 11, 1946, Ball
submitted a proposed contract to the Union, which not only retracted the Re-
spondent's previous offer, but also took away many of the advantages enjoyed
86T351-50-vol. 5 6--13
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Union in the 1945 contract. By so doing, the Respondent clearly was
penalizing the employees for exercising their legal right to strike. In a similar
set of circumstances, the Board in the case of Hatter of Register Publishing Co.,
44 N. L. R. B. 834, commented as follows :
Although the Act does not require that an employer agree to any particular
terms, and failure to conclude a contract may not alone establish a refusal
to bargain, nevertheless, such matters may be relevant, in conjunction with
the entire course of conduct in evaluating the intent of the parties. In
view of the past relationship between the parties, including the closed
shop, apprentice control, and the payment of prevailing rates, the Respond-
ent's insistence, without any justification shown that the Union surrender
benefits it had gained, is the very antithesis of any desire to reach a mutually
acceptable agreement.
In the instant case, the Respondent's proposal did away with check-off of union
dues, automatic wage increases, holiday benefits, and other provisions which
were clearly advantageous to the Union. Such action on the Respondent's part
clearly shows its bad faith in the matter. Accordingly, I find that on November
11, 1946, and at all times thereafter, the Respondent has refused to bargain with
the Union.
3. Interference, restraint, and coercion
The incident between Monroe Gardner and Eugene Street on October 12 has
been related above. In addition to this incident, Harmon Marlow testified with-
out contradiction that on or about November 2, while he was working for the
Respondent, he had an argument about money with Henry Mitchell, a striker,
in the store near the plant; that another employee informed Farriss; that Far-
riss later spoke to him and urged him to swear out a warrant against Mitchell;,
and that he told Farriss that he would not swear out a warrant as he could
take care of Mitchell if he had any trouble with him. The General Counsel con-
tends that the facts show that the Respondent instigated and persuaded or at-
tempted to persuade employees to make false charges of unlawful conduct against
other employees. The undersigned rejects these contentions and finds that by the
above actions the Respondent did not interfere with, restrain, or coerce its em-
ployees. The employees who worked in the Respondent's plant during the strike
had a right to pass through the picket line without molestation, and where the
Respondent thought that this right to work was being interfered with, it clearly
had the legal right to seek for its employees whatever protection the law afforded.
Willie Suggs testified that he went out on strike on October 8; that at the time
lie lived in a house owned by the Respondent ; and that about 2 weeks after that
date he returned to work after Farriss told him that the Respondent "wanted
the house." Farriss testified that he did not know at the time of the strike
that Suggs lived in the Respondent's house and denied that he told Suggs to
move out of the house. The undersigned believes Farriss to be the more credible
witness in this connection and credits his denial, as the evidence conclusively
shows that Suggs' half-brother was permitted the use of the house without being
required to pay rent.
Harmon Marlow testified credibly that he went on strike ; that he returned to
work for the Respondent about 2 or 3 weeks after the start of the strike ; that
when hired by Farriss and Ward they told him there would be "no more union";
and that Farriss thereafter told him almost every other day that if there was a
union again, Cathey would be president and he (Farriss) would be vice president.
Farriss and Ward denied the remarks attributed to them by Marlow. The under-
CATHEY LUMBER COMPANY 183
signed does not credit their denials. The undersigned has heretofore found that
Farriss and Ward were not credible witnesses. However, it is found that the
above statements of Farriss and Ward do not constitute interference, restraint,
or coercion.
Horace Morgan testified credibly that he went on strike ; that about 3 weeks
after the start of the strike, he returned to work; that he worked for 2 days,
Friday and Saturday ; that on the following Monday when he reported for work
Ward told him, "You got union in you. We ain't going to have no more union
here. If you got union in your mind, you might just, as well get on out of
here . . . You can't work because anybody that works here any more that be-
longs to the union will have to do what Air. Farriss says, If Mr. Farriss says
to get in a hole, you have to get in . . . Street and Watt and David Byrd, I
never will give them a job any more"; and that Farriss and H. W. Bell, yard
foreman, were present during his conversation with Ward. Ward, Farriss and
Bell denied the remarks attributed by Morgan to Ward. The undersigned does
not credit their denials, and finds that by the above actions and statements of
Ward the Respondent interfered with, restrained, and coerced its employees.
Andrew Bonner testified that after the strike and about the last week of No-
vember 1946 he returned to the plant and asked for reinstatement ; that he
talked- to Ward and Farriss who told him, ". . . get on out of here, because
you love the CIO Union too hard . . . If we need you, we'll call you if you ain't
going to fool around with no CIO Union . . . We won't pay you no.more than 55
or 57 if we hire you back" ; that he called to their attention that they had been
hiring new employees; that they replied that Bonner had been picketing whereas
the new employees had not; that the next day he went to Farriss' house and
inquired about a job; and that Farriss told him, "Well, I may call you, I don't
know . . . but one thing about it, Mr. Cathey is going to be the president of the
union from now on." Farriss denied that Bonner came to his house and also
denied all statements attributed to him by Bonner concerning the Union. Ward
did not specifically deny the statements attributed to him by Bonner. He testi-
fied without contradiction, however, that he went to Bonner's home on November
3 and offered him a job; that when Bonner replied that he would report for
work the next morning, he requested Bonner to bring back two lumber dollies he
had stolen from Respondent ; that Bonner returned the lumber dollies the next
morning; and that Bonner then refused to return to work, stating that the work
at Respondent's plant was too difficult. The undersigned credits the denials and
testimony of Farriss and Ward in this connection, especially since Ward's testi-
mony concerning conversations with Bonner on or about November 3 stands
uncontradicted.
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
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom in
order to effectuate the policies of the Act and the amended Act. It has been
found that the Respondent has penalized its employees for their concerted activi-
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties and adherency to the Union by discriminatorily refusing and failing to
rehire 17 of them who engaged in a strike, and that the Respondent on or about
November 11, 1946, refused to bargain collectively with the Union.
Having found that the Respondent discriminatorily refused to rehire the 17
individuals listed in Appendix A, attached hereto, it will be recommended that
the Respondent offer each of them the former position, or a substantially
equivalent position,` that he would have occupied, but for the Respondent's
discrimination, without prejudice to his seniority or other rights and privileges,
dismissing, if necessary, any employees hired in their places since October 14,
1946. It will also be recommended that the Respondent make whole the afore-
said individuals for any losses of pay that they may have suffered by reason
of the Respondent's discrimination against them by payment to each of them
of a sum of money equal to the amount that he normally would have earned
as wages from the date of such discrimination to the date of the offer of
employment, less his net earnings during such period.23
In the case of Fred Smith, it will be recommended that the Respondent
make him whole in the manner set forth above, from the date of the Respondent's
discrimination against him to the date of his death. It will also be recom-
mended that the cases of Pruitt Bowen, James Lee and John West be dismissed.
Since it has also been found that the Respondent has failed and refused to
bargain with the Union as the representative of all its employees in the appro-
priate unit, it will be recommended that it cease and desist therefrom and
that, upon request, the Respondent bargain collectively with the Union with
respect to wages, hours, and other terms and conditions of employment.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAw
1. International Woodworkers of America, CIO, Local 422, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act and the same section of
the amended Act.
2. All production and maintenance employees, including all powerhouse em-
ployees and truck drivers, employed at Respondent's Montgomery, Alabama,
plant, excluding all watchmen, office employees and all supervisory employees
with authority to hire, promote, discharge, discipline or otherwise effect changes
in the status of employees, or effectively recommend such action, constitute a
unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act and the same section of the amended Act.
3. International Woodworkers of America, CIO, Local 422, was, on July 16,
1945, and at all times thereafter has been, the exclusive representative of all
the employees in the aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act and the same section of the
amended Act.
4. By refusing to bargain collectively with the International Woodworkers
of America, CIO, Local 422, as exclusive bargaining representative of employees
in the aforesaid unit, the Respondent has engaged in and is engaging in unfair
22 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible, but if such position is no longer in existence, then to a substantially
equivalent position." See Matter of The Chase National Bank of the City of New York,
.San Juan, Puerto Rico, Branch, 05 N. L. P. B. 827.
. 23 l fatter of Crossett Lumber Co., 8 N. L. R. B. 440, 497-498.
CATHEY LUMBER COMPANY 185
labor practices within the meaning of Section 8 (5) of the Act and Section 8
(a) (5) of the amended Act.
5. By discriminating in regard to the hire and tenure of employment of the
individuals named in Appendix A attached hereto, thereby discouraging member-
ship in the International Woodworkers of America, CIO, Local 422, the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act and Section 8 (a) (3) of the amended Act.
6. By said acts, the Respondent interfered with, restrained, and coerced its
employees in in the exercise of the rights guaranteed in Section 7 of the Act
and the same section of the amended Act, and thereby engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (1) of the Act
and Section 8 (a) (1) of the amended Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act and the same
section of the amended Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that the Re-
spondent, T. M. Cathey and C. C. Cathey, d/b/a Cathey Lumber Company,
Montgomery, Alabama, its officers, agents, successors and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with the International Woodworkers of
America, CIO, Local 422, as the exclusive representative of all its employees
in the unit hereinabove found to be appropriate, with respect to rates of pay,
wages, hours of employment; or other conditions of employment;
(b) Discouraging membership in the International Woodworkers of America,
CIO, Local 422, or in any other labor organization of its employees, by refusing
to reinstate any of its employees or in any other manner discriminating in regard
to their hire and tenure of employment or any term or condition of employment ;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist the International Woodworkers of America, CIO, Local
422, or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection as guaranteed in
Section 7 of the Act and the same section of the amended Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the International Woodworkers
of America, CIO, Local 422, as the exclusive representative of all the employees
in the aforesaid unit;
(b) Offer the 17 employees listed in Appendix A, except Fred Smith, im-
mediate and full employment to the same or substantially equivalent positions
to which they would have been employed but for the Respondent 's discrimination
against them, without prejudice to their seniority and other rights and privileges,
in the manner set forth above herein in the section entitled, The remedy ;
(c) Make whole the individuals listed in "Appendix A," for any loss of pay
they may have suffered by reason of the Respondent's discrimination against
them, by payment to each of them of a sum of money equal to the amount de-
termined in the manner set forth in the section entitled The remedy above ;
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its plant in Montgomery, Alabama, copies of the notice attached-
hereto marked "Appendix B." Copies of such notice, to- be furnished by the
Regional Director for the Fifteenth Region, shall, after being signed by the
Respondent's representative, be posted by the Respondent immediately upon re-
ceipt thereof, and maintained for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material ;
(e) Notify the Regional Director for the Fifteenth Region, in writing, within
ten (10) days from the receipt of this Intermediate Report, what steps the
Respondent has taken to comply herewith.
It is further recommended that, unless the Respondent shall within ten (10)
clays from the date of the receipt of this Intermediate Report, notify said Re-
gional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an Order requiring the $espond-
ent to take the action aforesaid.
It is further recommended that the allegations of the complaint that the
Respondent discriminatorily refused to reinstate Pruitt Bowen, James Lee, and
John West be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Rochambeau Building, Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report or to any other part of the record or proceeding (including rulings
upon all motions or objections) as he relies upon, together with the original and
six copies of a brief in support thereof ; and any party may, within the same
period, file an original and six copies of a brief in support of the Intermediate
Report. Immediately upon the filing of such statement of exceptions and/or
briefs, the party filing the same shall serve a copy thereof upon each of the other
parties. Statements of exceptions and briefs shall designate by precise citation
the portions of the record relied upon and shall be legibly printed or mimeo-
graphed, and if mimeographed shall be double spaced. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as required
by Section 203.85. As further provided in said Section 203.46 should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) clays from the date of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions, is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions , recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes. _
Dated at Washington, D. C., this 18th day of November 1948.
JOHN EADIE,
Trial Examiner.
CATHEY LUMBER COMPANY
APPENDIX A
David Byrd, Jr. Arthur Harris
Eugene Street Henry Morgan
Watt Foggy Frank Stoval
A. M. Bonner Berry Stokes
Sam Cook D. L. Stanky
John Dailey Fred Smith
Isaac Fitzpatrick Ike Williams
Lem Fitzpatrick Dock Williams
Dan Hendrix
APPENDIX B
NOTICE TO ALL EMPLOYEES
187
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with the INTERNATIONAL WOOD-
WORKERS OF AmIMICA, 010, LOCAL 422, the exclusive bargaining representative
of all the employees in the bargaining unit described herein.
. WE WILL NOT in any manner interfere with the efforts of the above-named
Union to bargain with us. The bargaining unit is:
All production and maintenance employees , including all powerhouse
employees and truck drivers, employed at Cathey Lumber Company,
Montgomery, Alabama, excluding all watchmen, office employees and all
supervisory employees with authority to hire, promote, discharge, dis-
cipline or otherwise effect changes in the status of employees, or
effectively recommend such action.
WE WkLL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist the INTERNATIONAL WOODWORKERS OF AMERICA,
CIO, LOCAL 422, or any other labor organization.
WE WILL offer to the following-named individuals immediate and full em-
ployment at the same or substantially equivalent positions at which they
would be employed, without prejudice to seniority or other rights and priv-
ileges they would have enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination against them :
David Byrd, Jr.
Eugene Street
Watt Foggy
A. M. Bonner
Sam Cook
John Dailey
Isaac Fitzpatrick
Lem Fitzpatrick
Dan Hendrix
Arthur Harris
Henry Morgan
Frank Stoval
Berry Stokes
D. L. Stanky
Ike Williams
Dock Williams
WE WILL make whole Fred Smith for any loss of pay suffered as a result
of the discrimination against him.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the above-named
Union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment because of
membership in or activity on behalf of any such labor organization.
T. Al. CATHEY and C. C. CATHEY d/b/a
CATHEe LUMBER COJIPANY,
Employer.
Dated-------------------- By ------------------------------------------
(Representative) (Title)