Cotton Lumber Co.

National Labor Relations Board - Board Decisions

May 1, 1970

182 N.L.R.B. 286 (N.L.R.B. 1970)

'286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cotton Lumber Company, Arlington Lumber Company
and Blaine Lumber Company and Teamsters Union,
Local 413, affiliated with the International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers
of America. Case 9-CA-5296
May 1, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 12, 1970, Trial Examiner James F Foley
issued his Decision in the 'above-entitled proceeding,
finding that 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 attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Decision and a supporting brief
Pursuant to, the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and brief of the Respondent, and the
entire record in the case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial Examin-
er'
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, as modified herein, and hereby
orders that Respondent, Cotton Lumber Company,
Arlington Lumber Company, and Blaine Lumber Compa-
ny, Columbus, Ohio, its officers, agents, successors,
' Respondent ' s exceptions directed to the credibility resolutions of
the Trial Examiner are without merit The Board will not overrule
the Trial Examiner ' s resolutions as to credibility unless a clear preponder-
ance of all relevant evidence convinces us that they are incorrect
On the entire record, such a conclusion is not warranted herein Standard
Dr% Wall Products, Inc . 91 NLRB 544, enfd 188 F 2d 362 (C A
3)
'- In agreeing with the Trial Examiner that Augustus Daniels was
discriminatorily discharged on August 11 , 1969, and that the alleged
basis for his discharge that he quit work at noon on Saturday , August
9, 1969 , when he was ordered to work in the afternoon , was pretextual,
we are relying upon Daniels ' credited testimony that he -was unable
to find out on the prior Friday evening whether he was required to
work the full day on Saturday, and that his foreman , Preece, told
him that he could leave at noon on Saturday because he did not
bring his lunch ' We find it unnecessary to decide , and make no determina-
tion, whether Daniels had a lunchbox with him on Saturday or whether
such lunchbox in fact contained a lunch Similarly , we find it unnecessary
to decide whether Dials, Sr , was a supervisor within the meaning
of the Act and do not adopt the Trial Examiner 's findings in this
regard - ,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified.
1 Delete the first two sentences of paragraphs 2(a)
and 2(b) and substitute the following:
"(a) Offer immediate reinstatement to employees
Augustus Daniels and Albert Perry to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent jobs at `. .
"(b) Offer immediate and full reinstatement to Robert
Sayre to his former job or, if that job no longer exist,
to a substantially equivalent position at Respondent Cot-
ton.. . '
2 Delete the last paragraph of the notice in the
Appendix and substitute the following:
WE WILL offer immediate reinstatement to employ-
ees Augustus Daniels and Albert Perry to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions at Cotton Lumber
Company; and will offer to employee Robert Sayre
to immediately transfer him from Blaine Lumber
Company to his former job or, if that job no
longer exist, to substantially equivalent employment
at Cotton Lumber Company; without prejudice to
their seniority and other rights and privileges, and
make them whole for any loss of earnings they
may have suffered by reason of the discrimination
against them, with interest at 6 percent per annum.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES F. FOLEY, Trial Examiner: This case, Case
9-CA-5296, was brought before the National Labor
Relations Board (herein called the Board) under Section
10(b) of the National Labor Relations Act, as amended
(herein called the Act), 61 Stat 136, 76 Stat. 579, against
Cotton Lumber Company, Arlington Lumber Company
and Blaine Lumber Company (jointly, herein called
Respondents, and severally, herein called Respondent
Cotton, Respondent Arlington, and Respondent Blaine,
respectively) by a complaint issued September 29, 1969,
and amended at the hearing on November 17 and 18,
1969, and an answer filed October 6, 1969, and amended
at the hearing to meet the amendments made to the
complaint at the hearing. The complaint, as amended,
is premised on a charge filed August 15, 1969, and
an amended charged filed September 5, 1969, by Team-
sters Union, Local 413, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called the Union).
It is alleged in the complaint, as amended, that
Respondents, as a joint employer, through Respondent
Cotton, in late May 1969, and on or about August
4, 5, 8, 22, and 29, and November 3, 1969, engaged
in conduct violative of Section 8(a)(1) of the Act, consist-
ing of interrogation, threats, granting wage increases,
surveillance, and giving the impression of surveillance
designed to defeat union activity and membership; that
Respondents, as a joint employer, through Respondent
Cotton, on August 7, 1969, discriminatorily transferred
182 NLRB No. 43
COTTON LUMBER COMPANY 287
employee Augustus Daniels from Respondent Cotton
to Respondent Arlington, and on August 6, 1969, discrim-
inatorily transferred employee Robert Sayre from
Respondent Cotton to Respondent , Blaine , to discourage
membership in the Union in violation of Section 8(a)(3)
and (1) of the Act;, and on August 11, 1969, Respondents,
as a joint employer, through Respondent Cotton or
Respondent Arlington, discriminatorily discharged Dan-
iels, to discourage membership in the Union in violation
of Section 8(a)(3) and (1) of the Act, and on August
22, 1969, Respondents, as a joint employer, through
Respondent Cotton, discriminatorily discharged employ-
ee Albert Perry to discourage membership in the Union
in violation of Section 8(a)(3) and (1) of the Act. Respond-
ents, jointly and severally, deny engaging in any conduct
violative of the Act
A hearing on the amended complaint and amended
answer was held before me on November 17 and 18,
1969 The parties were afforded an opportunity to present
evidence, make oral argument, and file briefs. Briefs
were filed by General Counsel and Respondent after
the close of the hearing. 1
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF RESPONDENT
Respondents Cotton, Arlington, and Blaine, Ohio cor-
porations with separate places of business in Columbus,
Ohio, are each engaged in the business of distributing
and selling at wholesale and retail lumber and lumber
related products. During the 12 months preceding Sep-
tember 29, 1969, each of them purchased from sources
outside the State of Ohio, goods valued in excess of
$50,000, and caused the shipment of these goods from
the sources outside Ohio, to their respective places
of business in Columbus, Ohio, and during the same
period each of them sold product's with a 'value in
excess of $500,000
Respondents jointly and severally are engaged in com-
merce within the meaning of Section 2(6) and (7) - of
the Act, and assumption of jurisdiction will effectuate
the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act. F
III THE UNFAIR LABOR PRACTICES '
A The Evidence of Joint Employership
Each of the Respondents is located in a different
area of the city of Columbus, Ohio. Each was founded
by William E. Blaine, Sr. (herein called Emerson Blaine).
Blaine was founded in 1924, Cotton in 1952, and Arling-
ton in 1959. All the stock in each company is owned
by Emerson Blaine and William E. Blaine, Jr., his
son (herein called Bill Blaine), with the possible excep-
tion of a few qualifying shares. Emerson Blaine is
the president and treasurer of Respondent Blaine and
Respondent Cotton Bill Blaine is president of Respond-
ent Arlington and Emerson Blaine is treasurer . Emerson
Blaine is a member of the board of directors of each
of the three Respondents . Bill Blaine is a member of
the board of directors of Arlington and Blaine.
Emerson Blaine coordinates the operations of all three
Respondents , acting as general manager . Policy on wages
and fringe benefits•.for employees and general labor
policy are set by Emerson and Bill Blaine for all three
Respondents Pay scales for the employees of the three
Respondents are the same or parallel. So are the major
aspects of employee benefits. Employee classifications
are the same., Wage increases and increases in other
employee benefits are given to the employees of each
Respondent at the same time. Harvey B. Rector, labor
consultant and counsel for Respondents in this proceed-
ing, is consultant to Emerson and Bill Blaine with respect
to the labor policy for all three Respondents. Major
purchasing for each Respondent is handled by a separate
corporation identified as ABC Wholesale. Emerson
Blaine is president and treasurer , and Bill Blaine is
vice president and secretary of this company. Emerson
Blaine and Bill Blaine own all the stock in this company,
with the possible exception of some qualifying shares
Office goods and related items may be purchased sepa-
rately
Emerson Blaine sets the financial policy, borrowing,
and expansion policy for all three Respondents in consul-
tation with the other officers of each Respondent. Emer-
son Blaine" has an office at Blaine, Cotton, and ABC
Wholesale. He does not have an office at Arlington
where his son, Bill Blaine, is president.
B. The Evidence of Union Activity at Respondent Cotton
On August 2, 1969, employees Augustus Daniels,
Frank Castle, and Albert Perry met with Dave Taylor,
vice 'president of the Union, at the union hall about
the, representation of Cotton's employees by the Union.
Daniels, Castle, and Perry were truckdrivers employed
by Respondent Cotton. There were approximately 28
truckdrivers, helpers, loaders, and laborers employed
by Respondent Cotton. Taylor gave Daniels, Castle,
and Perry union cards. They were jointly applications
for membership and authorizations to the Union to
act as bargaining'representative. Daniels, Castle, and
Perry signed cards on August 2, 1969. On Monday,
August 4, and Tuesday, August 5, other truckdrivers,
and helpers, loaders, and laborers signed cards. All
the signed cards were in Daniels' possession They
consisted of 12 or 13 cards bearing signatures which
he personally solicited, .and 8 or 9 others bearing signa-
tures which other solicitors represented to him were
the signatures they had obtained from 8 or 9 other
employees. The signed cards were given to Taylor by
Daniels on Tuesday evening, August 5, at Daniels' home.
On August 7, 1969, the Union, by Mit Duncan, its
secretary-treasurer, sent a letter to Respondent Cotton
to the attention of Harold Lathouse, vice president,
secretary, and general manager, of Respondent Cotton,
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in which it represented that a majority of the truckdri-
vers, yardmen, warehousemen, shipping and receiving
clerks employed by Cotton had designated the Union
as their collective-bargaining representative, and request-
ed Cotton to recognize the Union as the collective-
bargaining representative of these employees. Cotton
received the Union's letter on August 8, 1969. There
is no evidence that Cotton replied to the Union's letter.
Fred E. Blaine (herein called Fred Blaine), the brother
of Emerson Blaine , and head foreman at Respondent
Cotton, testified that he was aware of the union activity
in Cotton's yard during the week of August 4, 1969.
On August 8, 1969, the Union filed with the Board's
Regional Office in Cincinnati, Ohio, a petition for certi-
fication as bargaining representative of the employees
of Cotton named in its letter of August 7, 1969. On
October 27, 1969, the Regional Director of the Board
issued a Decision and Direction of Election in which
he found appropriate as a unit for the purposes of
representation by a collective-bargaining representative
the employees of Cotton for which the Union filed
a petition on August 8, 1969, for certification as collec-
tive-bargaining representative, and directed a Board con-
ducted election in this unit to determine if a majority
of the employees in the unit wished to be represented
by the Union. The election was pending when the hearing
was held in this proceeding on November 17, and 18,
1969.
C. The Evidence of Conduct Allegedly Violative of
Section 8(a) (1) of the Act
Augustus Daniels was hired in June 1969, as a truckdri-
ver for Respondent Cotton by Fred Blaine , foreman
for Cotton.' He was interviewed by Fred Blaine and
Robert Johnson about 2 weeks before he was hired.
When he was interviewed by Fred Blaine , Daniels was
asked by Blaine how he felt about the Union, to which
Daniels replied he had worked union and nonunion
and that he was interested in making more money.
' It is undisputed that Fred E. Blaine and Robert Johnson, who
assists him as assistant foreman , are supervisors under the Act Fred
Blaine hands out the bills for deliveries to the, truckdrivers and in
general supervises all the drivers, helpers, loaders , unloaders, and labor-
ers. He spends the major part of his time in his office Dnvers and
loaders work considerable overtime . The workweek averages 60 to
65 hours a week , 8 to 9 months of the year. Overtime commences
at 5 p in , the end of the workday Blaine works 40 hours a week
He leaves at 5 p in and does not work Saturdays When he leaves,
Johnson takes over his duties He performs Blaine's duties regularly
20 to 25 hours a week Johnson's regular duties consist of direct
supervision over yard operations including loading, unloading, and ware-
housing . Ray Dials, Sr , does the supervisory work in the yard that
Johnson does when the latter is in Blaine's office handling Blaine's
work His regular work is that of a loader , and the performance of
other duties at the direction of Johnson . The evidence shows, and
I find , that Dials, Sr , is engaged in Johnson 's work about one-third
of the hours he is employed I find that he is a supervisor within
the meaning of the Act M N. Landau Stores, Inc, dl b/a Clark
Stores, 168 NLRB 273 The performance of only one of the indicia
of a supervisor set out in the definition of a supervisor in Sec 2(11)
of the Act vests the employee performing it with the status of a
supervisor Ohio Power Company v N.L.R.B., 176 F.2d 385, 387
(C A 6), cert denied 338 U S 899; James H. Matthews & Co. v.
NLRB , 354 F 2d 432 (C A 8), cert denied 384 U S 1002
Fred Blaine then said he did not want anyone who
would be strongly for a union if he could help it,
and keep him out.2
Employee Franklin Castle was hired by Fred Blaine
as a truckdriver in May 1969. When he was interviewed
by Fred Blaine he was asked by Blaine how he felt
about the Union. Blaine also said they wanted to keep
out the Union if they could. Castle replied he worked
union and nonunion .' Fred Blaine hired Russell Cooke,
a truckdriver employed by Cotton, in the latter part
of February 1969. He was interviewed for the job by
Fred Blaine . During the interview Blaine asked him
what his position was about unions in general . He also
said to Cooke that he did not see how a union would
work out in a lumber company.4
I credit Perry's testimony and Daniel's testimony,
that on August 7, 1969, Daniels and Milt Williams,
who loaded and unloaded trucks, were unloading and
loading Daniels' truck. The first union meeting of Cot-
ton's employees was to be held that evening. The card
signing had begun on Monday, August 4, 1969. Driver
Perry and loader Gillespie were loading Perry's truck
and were discussing the Union while working. When
Daniels and Williams walked by, Gillespie hollered to
Perry, and Daniels and Perry stopped and lit cigarettes,
and talked to them. Perry and Gillespie were having
a heated argument about the Union, but worked during
the argument and did not hold up the work. Ray Dials,
Sr., and Bill Thompson joined the conversation. Gillespie
asked Daniels why he was interested in getting the
Union in, and what benefit Daniels would get from
it. Daniels endeavored to answer his question. Gillespie
said he would quit his employment with Cotton and
leave it before he would join a union . I credit the
testimony of Dials, Sr., and Gillespie that Perry said
' This is Daniels testimony Fred Blaine denied he said he did not
want anyone who was for the Union He testified he may have asked
him if he was for or against a union, that he did not remember
Johnson testified that neither he nor Blaine mentioned the Union to
Daniels. I credit Daniels after consideration of the conflicting testimony
in context and the demeanor of the witnesses
I credit Perry's testimony that in the latter part of May 1958, when
he was hired for a job as truckdriver by Fred Blaine, after being
interviewed by Blaine and Johnson 2 weeks earlier, Blaine said he
had withheld hiring him so he could not vote in the election Johnson
was not present when he was hired A Board-conducted election to
determine if Cotton's employees had selected a'majority representative
was held at Cotton on May 24, 1968 Blaine asked him at the time
he was hired if he was a unionman, and Perry replied he had paid
union dues when he worked for Asplandh Tree Company
I do not find Fred Blaine's conduct of May 1958 violative of the
Act as it did not occur in the 6-month period preceding the filing
and service of the charge See Sec 10(b) of the Act However, it
is evidence against which conduct of Respondent Cotton occurring
within the 6-month period under scrutiny can be evaluated See Sheet
Metal Workers International Association, AFL-CIO v N L R.B , 293
F.2d 141, 147 (C A.D.C.), enfg. in part and setting aside in part 127
NLRB 1629, cert. denied 368 U.S 896
8 This is Castle's testimony which I credit Fred Blaine denied he
made any reference to the Union when he hired him I have resolved
the credibility conflict in favor of Castle's testimony after evaluation
of the conflicting testimony in context and the demeanor of the witnesses
" This is Cooke's testimony. Blaine denied he said anything to Cooke
about unions when he interviewed him I credit Cook's testimony
after evaluation of the conflicting testimony in context, and the demeanor
of the witnesses
'COTTON LUMBER COMPANY • , - 289
to each of them that if they did not join the Union
they would not be working for Cotton .5 I also credit,
Perry's testimony that Gillespie said that as they did,
the last time they would thin out those who started
any union activity like they thinned out crabgrass.
Robert Sayre , who was transferred from Respondent
Cotton to Respondent Blaine on August 6, 1969 , testified
that on August 4, 1969 , after the organizational activity
had begun on that date , he overheard a conversation
between Fred Blaine and a loader by the name of
Bill Thompson . Johnson was also present . Sayre stated
that Fred Blaine said to Thompson to let him know
anything he heard about the Union . According to Sayre,
he was about 6 feet away from Blaine , Thompson,
and Johnson on a path to the shed on the west side
of the yard for material to fill, a customer's order.
They were standing at the cutoff saw located on the
west side of the yard . Fred Blaine admitted standing
with Thompson at the saw on this date , but denied
he made any statement to him about the Union. He
testified that the path was 20 to 25 feet from where
he and the others were standing . Johnson recalled stand-
ing with Blaine in the yard many times talking over
things to be done , but did not recall being with Blaine
and Thompson on August 4, at the cutoff saw. He
did not recall anything said by Blaine to Thompson
about the Union while they were standing in the yard.
General Counsel did not call Thompson to give testimony
regarding this alleged incident.
On the testimony of Sayre, Blaine , and Johnson,
I do not credit Sayre's testimony. There is a question
whether Sayre was 6 feet away from Blaine , Thompson,
and Johnson or .20 to 25 feet from them, and a question
whether he could actually overhear what was said. The,
key witness was Thompson. The General Counsel did.
not call him. On this evidence, the burden to call him
did not shift to Respondent Cotton.
On Friday evening , August 8, 1969, when Foreman
Fred Blaine handed out the paychecks, he talked to
the drivers and yard personnel. He told them they
were required to report to work- on Saturday unless
they reported to Respondent Cotton by Friday evening
or early Saturday morning that they could not work.
He stated to them at this time that if the Union came
in the hours of work would have to be cut to 45
hours a week. The average workweek ran '60 to 65
hours a week.' All hours over 45 were overtime . Blaine
did not disclose the basis for this statement, including
Perry was referring to the successful organization of Cotton's
employees by the Union , and the execution of a collective -bargaining
contract with a union security clause in it The evidence does not
disclose whether Dials, Sr or Gillespie were aware of the basis for
Perry ' s statement to them Dials , Sr , was a supervisor under the
Act, but there is no evidence that he had knowledge he was a supervisor
within the meaning of the Act, or that supervisors could not be required
to assume union membership or pay union dues or other assessments
to retain their employment if a union had a collective -bargaining contract.
with Respondent Cotton with a union security clause There is no
evidence that Gillespie was a supervisor, or believed he was, or had
knowledge that supervisors could not be required to comply with a
union security clause in a collective -bargaining contract
6 Driver Castle and Millman Shamblin gave this testimony Fred
Blaine admitted he made the statement to the employees -
the circumstances that would, require the.,reduction in
hours, what party or parties would be-responsible for
the reduction, or whether the reduction would be due
to circumstances beyond the control of Respondent Cot-
ton -
On Friday, August 22, 1969, , Johnson asked driver
Castle how he; felt about the Union, and also asked
him the number of employees who were present at
the union meeting on August 21, 1969. The employees
interested in the Union attended union meetings on
Thursday at 7:30 p. m., beginning Thursday,. August 7,
1969. Castle told Johnson how he felt about the Union.
Johnson in conversing with Castle after the latter had
told him his position about the Union, said, "It would
hurt us on our overtime if it got in ." Johnson
was helping ' him load a truck. The conversation took
place around 2 p.m. to 3 p.m.7
In the morning of a rainy day, on' or about August
23, 1969 , about five or six employees were standing
in a shed out of the rain. Johnson said to them that
if the Union was in they would be sent home when
it was raining .' The employees who happened to be
in Respondent Cotton's yard during a rain were permitted
to take shelter until the rain ceased. The exceptions
were when - trucks had to be loaded or unloaded or
loads delivered. The employees taking shelter remained
on employer ' s time . During a workday in the following
week some employees had lunch in the big shed recently
built by Cotton. The • lunch period began at 11:30 and
ended at 12 o'clock' noon. These employees were a
little late returning to work. They were talking about
baseball. Johnson came through the shed, and seeing
the employees said to them that, if' the Union came -
in `there would be no more coming back late from'
lunch.' Johnson did, not disclose the basis for either
one of the two statements."
On or about Friday, August 15, 1969, Shamblin, a
millman, employed 7 to 8 years by Cotton, received
an increase of $6 per week in his weekly paycheck.
When Sayre, a leadman in the mill at Respondent Cotton,
was transferred, effective August 7, 1969, to Respondent
Blaine , Shamblin was assigned to Sayre ' s job in Respond-
ent Cotton ' s mill. Fred Blaine , sometime during the
day of August 15,' said to Shamblin, "When you -see
your check tonight, remember,. if the Union's in here
it might not be like that." On the same day, Emerson
Blaine , president of Respondent Cotton and president
' This is Castle ' s testimony Castle testified that only he and Johnson
were present Castle ' s testimony is unrebutted I have credited Castle's
testimony
8 Castle , Cooke , and Shamblin gave this testimony Johnson testified
generally ' that in conversations with employees where the Union was
mentioned, he might have said in a group of people ^'"'We probably
won't have a chance to do this or something like that, if a
union comes in " He denied he went to anybody and said directly
that employees would not be able to do things like work overtime
or stand idle in a shed out of the rain on Respondent Cotton's time
After evaluation of Castle's, Cooke's, Shamblin's, and Johnson's testimo-
ny in context, and the demeanor of Castle, Cooke, Shamblin, and
Johnson, I have credited the testimony of Castle, Cooke, and Shamblin
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent Blaine, with offices at both companies,
asked Shamblin if he had seen his check.9
Respondents Cotton, Blaine, and Arlington gave three
general wage increases in 1969. They were each an
increase of 5 percent. They were given on January
3, May 2, and November 7. In the representation pro-
ceedings involving Respondent Cotton, the Regional
Director, on October 27, 1969, issued his decision, and
directed that an election be held at Respondent Cotton.
The organizational activity at Respondent Cotton began
the first part of August. In 1965, 1966, and 1967, the
Respondents gave general wage increases. They were
given on September 17, 1965; April 1, 1966; September
2, 1966; and December 1, 1967. In 1968, Respondents
Blaine and Arlington gave a general wage increase on
May 3. Respondent Cotton withheld a general increase
because of the organizational activity at Cotton by the
Union. The Union had filed a petition for certification
on April 17, a stipulation for a consent election was
entered into on May 2, 1968, and a Board-conducted
election was held on May 24, 1968. 19
Bill Blaine testified that wage increases were given
when the economic condition of the companies warranted
it, and that the decisions to grant them were made
about 3 months before they were made effective. He
furnished no financial details on which the increases
were premised, other than to say that under the account-
ing procedure Respondents use, each of them has a
trial balance at the end of each month, and from it
knows the economic or financial condition of the compa-
ny. They know definitely the profit situation from the
yearend financial report. Arlington's report is received
from the accountant in March. He agreed that increases
in lumber prices affected the economic conditions of
Respondents in 1968, but stated that these prices went
down in 1969. He also testified that his father, Emerson
Blaine , had started as an employee, and believed in
giving wage increases whenever the economic conditions
of Respondents warranted them.
D. The Transfers and Discharges
I Robert Sayre
It is undisputed that on August 5, 1969, about 2
to 2:30 p.m., Fred Blaine notified employee Robert
Sayre, employed as a leadman in the mill at Respondent
Cotton, to report the next day to Respondent Blaine
to work in the mill. Sayre signed a union card on
August 4, 1969. When Fred Blaine instructed Sayre
to report to Respondent Blaine, he told him the transfer
was temporary, and that he was to work in Respondent
6 This is Shamblin' s testimony Respondent ' s counsel did not question
Fred Blaine about this incident when he testified as a witness for
Respondent Emerson Blaine did not appear or testify at the hearing
I have credited Shamblin' s testimony It is unrebutted See N L R B
v A.P W Produce Co , 316 F 2d 899, 903 (C A 2), and other authorities
cited therein
10 The evidence of wage increases was furnished by Bill Blaine,
on cross-examination as a witness for Respondents The dates of repre-
sentation proceedings were stipulated
Blaine's mill for the remainder of the week because
it was behind and had to catch up. About 4 years
previously, Sayre, who began his employment for
Respondent Cotton in April 1961 or 1962, had been
transferred temporarily for 2 days to Respondent Arling-
ton to help with the building of trusses.
Sayre reported to Blaine on August 6, punched the
clock, and worked. When he had worked an hour,
one of the female employees in Respondent Blaine's
office came to where he was working and asked him
to sign some papers. He said he was there only for
2 days, and she replied that she understood he was
to be there for good. Sayre then talked to Emerson
Blaine about the transfer. He asked Blaine why he
was transferred, and Blaine replied that Respondent
Blaine , like Respondent Cotton, was a two-man mill.
One employee only was working in the Blaine mill.
Sayre then said that he did not wish to work at Respond-
ent Blaine and wished to remain at Respondent Cotton
since the distance from his home to Blaine was longer
than the distance to Cotton and because he had worked
a number of years at Cotton. Emerson Blaine replied,
"Quit or work." Sayre went back to work in Respondent
Blaine 's mill and was still working there when he testified
at the hearing on November 17, 1969. Sayre has received
the same hourly rate at Blaine that he received at
Cotton, but has worked less overtime. At Cotton he
worked 60 to 65 hours a week. The regular hours at
Blaine , 45 hours, have been the same as the regular
hours at Cotton.
On August 7, 1969, Sayre punched out at 5 p.m.
and went to Respondent Cotton. He arrived there about
5:15 to 5:30 p.m. There was a union meeting scheduled
for 7:30 p.m. When he arrived at Cotton, the employees
were on a "break." It was for half an hour. He talked
to the employees who were to work overtime after
the break. Assistant Yard Foreman Johnson asked him
if he was going to the union meeting and he said yes.
When Sayre reported to work the next morning , Emerson
Blaine said to him that he did not want him at Cotton
anymore as he was over there pushing the Union. Sayre
replied that that was the reason he was transferred
to Respondent Blaine from Respondent Cotton. Emerson
Blaine remained silent and walked away. Shortly after
the transfer, driver Cooke, who was employed at
Respondent Cotton, made a pickup at Respondent Blaine
for Cotton. When he returned to Cotton, Fred Blaine
asked him the question, "Is Sayre still talking about
the Union over there 9"11
" This is Sayre's testimony except for the question Fred Blaine
asked driver Cooke That is Cooke's testimony Fred Blaine testified
on direct examination as a witness for Respondent that at the time
of Sayre's transfer to Respondent Blaine , Respondent Cotton had three
millmen and Blaine had one. Each is a two-man mill After the transfer
each had two He testified that Sayre had many friends at Cotton
and was well liked He testified that the week following the week
of the transfer someone told him that Sayre was at Cotton after 5
p in three or four times, and he immediately went to Emerson Blaine
and asked him why Sayre was down at Cotton He testified that he
said to him he thought Sayre was hired at Blaine , and was working
there, and told him to tell Sayre to stay out of Cotton because he
did not want him meddling in the work at Cotton after 5 p in He
testified that Sayre came down to Cotton around 5 15 to 5.30, walked
COTTON LUMBER COMPANY 291
2 Augustus Daniels
It is undisputed that Daniels was notified on Thursday,
August 7, 1969, about 5 to 5:30 p.m., by Fred Blaine
that he was transferred to Respondent Arlington; Fred
Blaine instructed Daniels to report there the next morn-
ing; Daniels reported to the yard foreman at Respondent
Arlington at 7:30 the next morning, August 8, and then
was assigned to work in the building where trusses
were built ; Daniels worked in this area at Respondent
Arlington on Friday, August 8, and Saturday, August
9, until about noon; and about 8:30 a.m. on Monday,
August 11, 1969, Daniels was notified by Foreman Preece
that he was discharged because he did not work on
Saturday afternoon.
I have found supra, that Daniels signed a union card
on August 2, 1969, and solicited and obtained signatures
on 12 or 13 cards on August 4 and 5, 1969, and had
in his possession on the evening of August 5, 20 or
21 signed cards which he gave at that time to Dave
Taylor, the vice president of the Union. The Union
in a letter dated August 7, 1969, to Respondent Cotton
demanded recognition as bargaining representative of
a unit of Respondent Cotton's employees. On August
8, 1969, about 5:15 p.m., Foreman Bob Johnson asked
Sayre if he was going to attend the meeting of the
Union scheduled for 7:30 p in. that evening.
When Fred Blaine informed Daniels on the afternoon
of August 7, 1969, that he was to report to Arlington
the next morning to work there, Daniels asked him
why he was transferring him 12 Blaine denied he had
anything to do with the transfer. Daniels said to Blaine
through the yard, and was talking about the Union Blaine testified
on cross-examination that he did not object to the first time Sayre
came to Cotton after his transfer to Arlington when he was waiting
for a meeting of the Union, and the men were on a coffeebreak,
but objected to the continuation of the first visit, that Sayre was
there several evenings after the first visit and talked to the men after
the coffeebreak while they were working He testified he did not know
what they were talking about
As previously found , Emerson Blaine did not testify or make an
appearance at the hearing There is a conflict between Sayre 's testimony
that Emerson Blaine talked to him on Friday, August 8, about his
visit to Cotton, and Fred Blaine's testimony that he did not talk to
Emerson Blaine about Sayre' s visiting Cotton until the week following
the week of the transfer , and until Sayre had made several visits
to Cotton There is also a conflict in Fred Blaine ' s testimony on direct
examination giving the clear inference that he objected to Sayre's
visit to Cotton on August 8 , and his testimony on cross-examination
that he did not object to this visit I have found after evaluation
of the conflicting testimony in context, and the demeanor of the witness-
es, that Fred Blaine did object to Sayre's Friday, August 8 , visit,
and his talking to the employees, because he felt he was talking to
the employees about the Union I have also credited Sayre' s unrebutted
testimony that Emerson Blaine said to him on Friday, August 8, 1969,
that he did not want him at Cotton anymore as he was over there
pushing the Union I have also credited Cooke's unrebutted testimony
that Fred Blaine asked him when he returned to Cotton from a delivery
to Blaine if Sayre was still talking about the Union at Arlington
" These findings dealing with the transfer and discharge of Daniels
are premised for the most part on the testimony of Daniels I have
credited his testimony after evaluating it along with the testimony
of Fred Blaine and Foreman Bob Johnson of Respondent Cotton,
and that of Bill Blaine , Foreman Archie Marcum , and Foreman Larry
(Red) Preece of Respondent Arlington and the demeanor testimony
of these witnesses The basis for the resolution of the conflicts in
the testimony is stated infra
that he was transferring him to Arlington and Sayre
to Blaine because they were organizing for the Union.
Fred Blaine heatedly denied he was . Daniels told him
he did not have transportation to Arlington , that he
had been riding with someone working at Cotton Blaine
asked him to get some, as it was necessary that he
go to Arlington. He told Daniels he would have to
report to Arlington the next morning if he wanted to
work.
Paul Bosart, the yard foreman at Arlington, to whom
Daniels reported on Friday, August 8, told him to report
to Arlington's office. He reported there, was given a
W-2 form to fill out, and was told to report to Foreman
Larry (Red) Preece in the shed where trusses were
built . He was not there so Daniels reported to Foreman
Archie Marcum. Marcum asked him what he had been
doing and he answered he had been a truckdriver. Mar-
cum handed him an order calling for the cutting with
an electric saw of 49 2 by 4's at an angle . Daniels
had had no experience operating an electric saw He
had had experience as a forklift mechanic in addition
to that of truckdriver Some employee showed him
how to operate the electric saw and he did the best
he could. As found, Daniels worked in this shed all
day Friday. Daniels received no instructions about work
on Saturday. Friday evening, about 5 p.m., he asked
Yard Foreman Bosart if he should report for work
on Saturday. At Cotton, Daniels had worked a half
day on Saturday. When circumstances required it, he
worked until I or 2 p.m. Bosart said he did not know.
The employees in the shed or mill where he had been
working told him they worked a half day on Saturday.
Daniels looked for Marcum for information about Satur-
day work but could not find him.
Daniels clocked in at Arlington at 7:30 a.m. on Satur-
day morning. He went to the shed or mill where he
worked on Friday. Marcum was not there Larry (Red)
Preece was in charge . He assigned Daniels to loading
a truck with trash and driving it to a dump and unloading
it. Daniels did this work . Preece then assigned him
to loading a truck. After he finished this job, Preece
assigned him to helping some other employees in building
stairways. About noon he asked Preece how long he
was expected to work, and Preece answered that some
employees worked until 5 p.m., and asked him if he
wanted to work until 5 p.m. Daniels answered that
he did not bring any lunch and asked Preece if the
catering truck came on Saturday, and Preece answered
that it did not come on Saturday. Daniels did not bring
a lunch on Saturday at Cotton as he usually worked
only half day. On Saturday, at Cotton , the catering
truck came early in the morning or about noon. There
was a restaurant across the street from Cotton. There
was no restaurant in the vicinity of Arlington . Daniels
asked Preece if he could leave as he did not bring
any lunch . Preece replied "all right, go ahead." He
clocked out at 11:30 a.m. and went home. Daniels saw
some other employees clocking out about the time he
did.
Daniels clocked in at 7:30 a.m. on Monday, August
11, 1969. He went to the shed where he had been
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working . Archie Marcum assigned him to work connect-
ed with the building of trusses . Marcum left the shed
or mill . Daniels asked Preece where he could find some
6 feet 2 by 4' s for , braces, and Preece said he would
not need them , that he was going to fire him for not
working all day Saturday. Daniels replied that he had
to be kidding as he was the one who had told him
on Saturday at noon that he could go home. Preece
then. said that he was doing what he was told, and
if he did not do it he would get what Daniels was
getting. He added that he did not want any hard feelings.
Preece asked Daniels to report to Arlington 's office.
Daniels went to the office accompanied by Preece. Dan-
iels had asked him to go with him. Daniels refused
to clock out, and Preece clocked out for him. Preece
said to the personnel in the office that he was firing
Daniels for not working all day on Saturday. Daniels
asked Preece if he could give him in writing the reason
he was being fired . At this time, one of the three
persons told Preece he was wanted in the inner , office.
Preece did not return After waiting a while , Daniels
left. He received nothing in writing.
Fred E. Blaine testified that Bill Blaine said to him
that he needed a man at Arlington , and he said he'
had a man who would fit the bill . He was a mechanic
as well as a truckdriver . He testified he knew Daniels
had been a forklift mechanic . Thursday evening he
would go to Arlington as Bill Blaine needed a man.
Daniels said he had, no transportation as he was driving
with someone who worked at Cotton. Blaine asked
him to try. to get some as it was necessary that he
go to Arlington . Daniels said he would not go and
that was it. He told Daniels -he would have to tell
Bill Blaine he would not go and, Bill Blaine would
have to get another man. He called Bill-Blaine and
told him Daniels would not go , but Friday morning
he found that Daniels showed up at Arlington. -
Marcum testified ,- as Daniels did,-that he worked
in the truss department . He said that he and Preece
were foremen . He said he had a conversation with
Daniels at noon on Saturday , August 22, the last day
he worked . It is undisputed that the last Saturday Daniels
worked was August 9 . Daniels asked Marcum if he
could go home, and he said to Daniels - he had to talk
to Preece . On cross-examination , he testified that Daniels
said he wanted to leave to pick up his check at Cotton
It is undisputed that Daniels worked Monday through
Thursday at Cotton. Fred Blaine testified that he did
not know how Daniels picked up his check . Fred Blaine
did not work on Saturday . Marcum testified that Daniels
carried a lunchbox on Saturday when he talked to him
On cross-examination he testified that the five or six
employees who worked for him on Saturday carried
their lunchboxes on that date , and that the catering
truck did not come to Arlington on Saturday. Marcum
testified that he only saw the box Daniels carried. He
did not know if it had any contents.
Preece testified on direct examination he talked to
Daniels about noon , on Saturday . He said Daniels came
by him in the truss department where he was He
was carrying a lunchbox in his hand . He said that
he had worked a half day and was going home. On
cross-examination , Preece testified that he saw Daniels
carrying a lunchbox when he saw him about 11:15 a.m.
He asked him where he was going because he saw
him carrying the lunchbox . He testified he talked to
Daniels on Friday , told him they worked long hours
in the evening and on Saturday , and showed him what
to do. It was cleaning up and stacking lumber. He
did not recall telling, him the catering truck did not
come on Saturday or that Daniels asked him. He did
not deny that Daniels was correct in stating that the
catering truck did not- come to Arlington on Saturday.
He gave no testimony that the lunchbox he said Daniels
was carrying contained a lunch or had contained, one
that Saturday Neither he nor Marcum testified that
Daniels had a lunchbox when he reported for work
on Saturday. Daniels could ' have left it overnight at
Arlington.
Preece testified that all employees worked on Satur-
day, August 9, except one or two who gave notice
on Friday or who were ill' on Saturday. He' testified
that generally they worked to 4 p.m. or 5 p.m. on
Saturday, but quit at 3 to 3:30 p.m. if they had a
chance. But Preece also testified that an employee does
not work on Saturday unless he is requested on Friday
evening to work on Saturday . Bill Blaine testified in
the representation proceeding that the employees at
Arlington worked a half day on Saturday. He testified
in this proceeding that his testimony in the representation
proceeding was not correct. Preece also testified on
cross that he discussed Daniels with Bill Blaine before
he discharged him He said to Blaine that his department
did not accomplish what he expected because one of
the men left at noon . He said to Blaine he was going
to fire him. Blaine . replied he was the foreman . Preece
testified he always checks with Bill Blaine before doing
anything of this nature. Blaine had not talked to Preece
before Daniels showed up on Friday, but had called
him on Wednesday to tell him he was bringing another
man in . He expected him on Thursday Preece again
stated he fired Daniels for not working a half day on
Saturday . He also testified that at noon on Saturday
he ordered Daniels to stay and told him he needed
him. He also repeated his testimony that Daniels cleaned
up around the saw and stacked the lumber.
Bill Blaine testified that Marcum and Preece told
him that Arlington was desperate for help. It needed
a man. Bill Blaine called Fred Blaine Thursday, August
8, and asked him if they had a man who could help
them out. This is what they usually did. Fred Blaine
said it would be tough on Cotton to give them a man,
but since they were hurting he would send the last
man employed. His name was Daniels. Fred Blaine
called back the same day-, and said to him to strike
his commitment he would send them Daniels as he
refused to go to work at Arlington . He was making
other arrangements on Friday morning when he learned
that Daniels had reported to Arlington. Marcum and
Preece told him on Monday morning that Daniels had
left on his own on Saturday . He agreed with Preece's
position that Daniels should be fired, and they fired
COTTON LUMBER COMPANY - 293
him. He discussed with Preece and Marcum all factors
involved in the discharge including the possibility Daniels
was not aware of what was expected of him on Saturday,
and the fact Daniels was a new man at Arlington
They decided to fire him anyway. Blaine also testified
that from time to time he contacted a local employment
agency, Spot Labor, seeking persons he could hire as
employees. It was his recollection that when he was
told by Fred Blaine that Daniels would not report to
Arlington one of the men in Arlington's office called
Spot Labor.
In evaluating the testimony of Respondents' witnesses
I have been mindful that Emerson Blaine is the president
of both Respondent Cotton and Respondent Blaine with
an office at the location of each 'of these companies,
and that Bill Blaine, his son, is the president of Respond-
ent Arlington; that Emerson and Bill Blaine own the
stock of all three companies, and Emerson Blaine coordi-
nates the operations of the three , companies, acting
in the nature of a general manager; and that Emerson
Blaine and Bill Blaine formulate the labor policy for
the three Respondents. I have credited Sayre's testimony
that Emerson Blaine informed Sayre after the latter's
transfer to Respondent Blaine, and his telling Emerson
Blaine that he did not wish to be permanently assigned
to Respondent Blaine, that he had to work at Respondent
Blaine or quit. This attitude is consistent with Respond-
ent Cotton's attitude reflected in Daniels' testimony
that he was told by Fred Blaine on August 7, 1969,
that he had to report to Respondent Arlington on August
8, 1969, if he wanted to work. I have credited Daniels'
testimony. Daniels was not given the option by Fred
Blaine to stay at Cotton or transfer to Arlington The
option was to work at Arlington or not have a job.
Consistent with the attitude of policymakers Emerson
Blaine and Bill Blaine, the latter instructed Fred Blaine
to transfer Daniels to Arlington He may have given
the pretextual reason to Fred Blaine that he desperately
needed a man at Arlington and had to request one
from Cotton. However, Preece's testimony discloses
that at most only an unskilled laborer to clean up around
the electric saw and stack lumber was needed, not
an experienced truckdriver and former forklift mechanic
like Daniels. The unskilled help needed could have been
obtained from Spot Labor, the employment agency from
which Respondent obtained personnel. One would have
to be childishly naive to believe the testimony of Bill
Blaine and Fred Blaine that Respondent Arlington resort-
ed to placing Daniels in this work at Arlington for
ordinary economic reasons
It could be that Fred Blaine had nothing to do with
the transfer other than to carry out the instructions
of Emerson Blaine and Bill Blaine . Daniels testified
that Fred Blaine said to him that he had nothing to
do with the transfer Fred Blaine and Johnson ran their
part of Cotton's operation in an efficient manner and
would not transfer a skilled employee needed at Cotton
to an unskilled job at Arlington unless there was a
special compelling reason such as an order to do so
from policymakers Emerson and Bill Blaine. Blaine,
Preece, and Marcum may have conferred on the morning
of August 11, 1969, prior to Preece's notice to Daniels
that he was discharged, as Preece and Bill Blaine tes-
tified. But it was not to consider discharging Daniels
for not working Saturday afternoon It was to see that
the true motive for the discharge was concealed. The
testimony of Respondent's witnesses on its face, without
Daniels' testimony, discloses that Daniels could not
be expected to know on Friday evening from the informa-
tion he received from Respondent's officials whether
he was required to work on Saturday afternoon, especial-
ly when he had worked only a half day at Cotton
and was a new employee at Arlington. It also discloses
that absent a special compelling motive Daniels would
not have been discharged even if the circumstances
were present that Respondents contend were present.
Daniels could have had a lunchbox when he spoke
to Marcum and Preece at noon on Saturday There
is no testimony that they asked him if there was a
lunch in the lunchbox, or that there was a lunch in
the lunchbox Daniels did not deny that he was carrying
a lunchbox or testify he had one. Respondent's Marcum
testified that the reason given by Daniels for leaving
at noon was that he wished to pick up his check at
Cotton for the prior Saturday and the 4 days of that
week he worked at Cotton. Preece testified he refused
to work even though he ordered him to do so. Daniels
would have been childishly naive to testify at the hearing
that he did not have a lunch with him on Saturday
if he had carried a lunchbox with him at the time
he talked to Preece, and there was a lunch in the
lunchbox Daniels' demeanor testimony does not disclose
that type of mentality. He may have left the lunchbox
overnight on Friday evening if he carried one.
Upon consideration of all the testimony, including
demeanor testimony, in context, I find the credibility
of Respondents' witnesses with respect to this issue
to be highly questionable and less than the credibility
of Daniels. I find from this evaluation that Daniels'
testimony of what happened is a plausible statement
of what occurred. I have, therefore, credited Daniels'
testimony except to the insubstantial extent my findings
differ from it. The difference exists with respect to
the conversation he had with Fred Blaine on the evening
of August 7, 1969.
The Regional Director on October 27, 1969, in his
decision that accompanied his direction of a Board-
conducted election at Cotton made the evidentiary finding
that Arlington furnished free lunches on Saturday, in
connection, with his finding that a unit of employees
at Cotton was an appropriate unit for representation.
Respondents did not assert free lunches on Saturday
as a defense in their answer, at the hearing, or in
their briefs to Daniels' testimony that he was permitted
to leave on Saturday because he did not bring his
lunch. Marcum and Preece, Respondents' witnesses,
testified that on Saturday Daniels had a lunchbox. Mar-
cum testified that the five or six employees who worked
under him had lunchboxes Marcum also testified that
the catering truck did not visit Arlington on Saturday.
I have credited Daniels' testimony that Preece told Dan-
iels that it did not come to Arlington on Saturday
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There would be no need for lunchboxes on Saturday,
if free lunches were furnished . Furthermore , if there
were free lunches, the catering truck would visit Arling-
ton on Saturday because it would bring the free lunches.
There was no restaurant nearby as was the case at
Cotton.
The Regional Director ' s Decision and Direction of
Election was offered by General Counsel , and received
as background evidence showing the Union ' s organiza-
tional activity at the time of the conduct allegedly viola-
tive of Section 8(a)(1) of the Act , and the alleged discrimi-
natory transfers and discharges violative of Section
8(a)(3) of the Act. The record does not disclose, the
basis for the Regional Director ' s finding that Arlington
furnished free lunches on Saturday . In offering the evi-
dence relating to Daniels ' discharge , General Counsel,
Respondent , and Charging Party made no reference
to the finding of the Regional Director with respect
to free lunches on Saturday at Arlington . The evidence
before me shows clearly that Arlington did not provide
free lunches on Saturday , and I so find . The issue
is clearly relitigable . See Amalgamated Clothing Workers
of America, AFL-CIO v. N.L.R. B., 365 F.2d 898
(C.A.D.C.), and Heights Funeral Home , Inc. v.
N.L.R.B., 385 F. 2d 879 (C.A. 5).
3. Albert Perry
It is undisputed that when Perry came to Fred Blaine's
office about 5 p.m. on Friday , August 22, 1969, to
receive his weekly paycheck , Fred Blaine told him that
it was his last check . Foreman Johnson was present.
Perry testified that he asked Fred Blaine for the
reason for his discharge , and Blaine replied that he
was discharging him for pushing the Union Perry tes-
tified that Johnson followed him to the gate of Cotton's
premises after notice of the discharge , and said he
hated to see him go, that he was as good a man as
they had. Perry testified that he was outside the gate
of Cotton ' s yard at 7:30 a.m. the next morning, which
was Saturday , August 23, 1969 , and as Johnson
approached the yard he asked him if he was fired for
pressing the Union , and Johnson nodded yes . Castle,
as a witness for General Counsel , corroborated this
last colloquy between Perry and Johnson . It is unrebutted
by Respondents.
Fred Blaine testified that when he gave Perry the
discharge notice on Friday evening , August 22, he said
to him , "Perry I have had all I can take and that's
it. I warned you twice ." He denied he mentioned the
Union when he fired him . Johnson , who testified for
Respondents , gave no testimony regarding this incident.
I have found that Perry was one of the three employees
who made the original contact on August 2, 1969, with
Dave Taylor, vice president of the Union . He, as well
as Daniels and Castle , received cards from Taylor Perry
testified that he talked to all employees about the Union
except three or four . He did not ask employees Gillespie,
Briggs, or Dials, Sr., to sign a card . These three employ-
ees testified for the Respondents. He talked to them,
however , about the Union. As I have found, about
August 7, 1969 , Perry, Daniels, Bill Thompson , Milton
Williams, Ray Dials, Sr., and Gillespie had a conversa-
tion about the Union . In this conversation , Perry dis-
closed clearly that he felt strongly about the Union
and the desirability of the employees being represented
by the Union . I have found that Perry and Gillespie
were having a heated discussion about the Union before
the larger conversation started . I have also found that
Gillespie said he would leave employment at Respondent
Cotton rather than join the Union , and also said that
employees starting union organizational activity would
be thinned out like crabgrass as was done during the
organizational activity in May 1968. This latter statement
was made in the presence of Ray Dials, Sr . Dials did
not disavow it as coming from Respondent Cotton.
Perry testified that a couple of weeks after he signed
a card on August 2, 1969 , and after Sayre was trans-
ferred, Fred Blaine , outside his office , said to him "I
heard you're talking about a union . You're a good
man," and he replied , "Fred you're talking hearsay."
He testified that a few days later , in the morning,
in the big shed the other side of the yard, Fred Blaine
walked through and said to him, "Perry, it doesn't
do a damn bit of good to talk to you about a union."
Some other employees were close by. Dials, Sr., and
Gillespie were in the group of employees.
Perry testified he knew of no rule by Respondent
Cotton that he could not talk about a union or pass
out union cards on company time. And he testified
that neither Fred Blaine nor Johnson criticized his work,
and one of them said he was doing good work . Perry's
final testimony on direct examination was that he tele-
phoned Fred Blaine about a week before the hearing
and asked him for his job back , and he said that if
he came back to work they would have to do the
same thing over again, that is, discharge him again
for pressing the Union . This testimony is unrebutted.
Fred Blaine testified that he and Perry met outside
his office as Perry testified , and that they talked about
Perry's activity on behalf of the Union. He said he
told him he had complaints about him from his help,
that "they were being pushed or pressed or talked
to about a union ," which they did not enjoy, that
he was not paying him to push anything except work,
and while he had nothing against him personally, he
was aggravating his help and he did not want anymore
of it. He also testified , as Perry testified , that there
was a second time he spoke to Perry about his union
activity According to Blaine , a half dozen or more
employees came to him saying he was aggravating them
and never shutting up. Blaine testified he said to Perry
that he had warned him once before , and if it happened
again , "This time it was it ." He said Perry denied
he was soliciting employees about the Union. Blaine
then testified he called him in again and said, "This
was it , I couldn ' t put up with it; I couldn ' t pay him
for standing around looking when he had work to do
and trucks to roll." He did not hear him say a word.
He finished his testimony about Perry's discharge with
the words, "When I fire a man I don ' t say another
word to him , that's it." He denied he mentioned the
COTTON LUMBER COMPANY 295
Union when he discharged him. He also testified that
Perry's work and the work of the men he talked to
suffered by Perry's activity, although he did not mention
the effect on the workload to Perry.
In his testimony , Fred Blaine gave the names of
employees who were irritated by Perry's talking about
the Union. They were John Briggs , Gillespie, Zack
Fuller, Ray Dials, Sr., Johnson , Hobsen , and Henry
Barsden . He said Briggs complained a number of times
over several weeks . Briggs said to him that he had
better get Perry off his back
John Briggs , a truckdriver for Respondent Cotton
for 12 years, testified that Perry told him one day,
in the middle of the morning, that he was too old
to find a job somewhere else, and he had better join
the Union. He also said to him , "Hey, old man when
are you going to join the Union." He testified he com-
plained to Fred Blaine three times, and said to him,
"Have him get off my back and let me alone ." Briggs
also testified he was known as "Old Man of the lumber
company."
Gillespie who had been employed by Respondent
Cotton for 14 years, and who was loading trucks in
August 1969, testified that Perry was on his back all
the time about the Union. Gillespie referred to the
argument he had with Perry about the Union about
which I have made findings supra . According to Gillespie,
Perry pushed the Union everytime he came in contact
with him. He would ask when he was going to join
the Union or if he was going to join it . He told him
that when the Union came in he was going to be out
of a job. He complained to Fred Blaine . He did so
because Perry was doing this talking during working
hours , and it bothered him
Ray Dials, Sr., employed 10 years 'by Respondent
Cotton, as a part-time supervisor when Johnson is acting
for Fred Blaine, and the remainder of the time as
a loader and rank-and-file employee , testified that on
one occasion Perry told him that if he did not join
the Union he could not work at Respondent Cotton
This was the only time Perry talked to him about the
Union. It was the conversation participated in by a
number of employees on August 7, 1969 ( supra). He
complained to Fred Blaine about this statement by Perry.
He talked to Perry a good deal as he was his friend.
He heard Perry say things to other employees, "more
or less as a joke most of the time ." He testified on
cross-examination that in the conversation of August
7, 1969, he may have said he would not work for
Respondent Cotton if the Union came in, but that he
did not recall saying it I have found that Gillespie
made this statement . Dials also testified on cross-exami-
nation that the discussion at Perry's truck on August
7, 1969, which Perry and Gillespie were loading, did
not prevent him from doing his work.
Zack Fuller, employed 8 -1h years by Respondent Cot-
ton, and employed as a truckloader in August 1969
and at the time of the hearing, testified that Perry
asked him to fill out a union card and to attend a
meeting of the Union. He also said that the employees
would have to join the Union if they worked there.
He repeated what Perry said to Fred Blaine when Perry
first asked him to sign a card . Perry made the same
request to him a few additional times . Perry would
make the request when he was loading his truck . Fuller
testified his work was never disrupted by Perry's talk
about the Union. He and Perry had talked about other
things when he loaded Perry's truck prior to the union
activity.
After evaluation of all the evidence regarding Perry's
discharge in context, and the demeanor testimony of
the witnesses giving testimony , I credit Perry' s testimo-
ny. I also credit Fred Blaine ' s testimony of what he
said to Perry about his organizing activity and that
he warned him to stop it. I also credit his testimony
that employees Briggs, Gillespie , Dials, Sr., Hobsen,
Barsden, and Fuller reported to him that Perry talked
to them about the Union. I do not credit his testimony
that Johnson reported to him that Perry solicited him
about the Union. Johnson ' s testimony is silent that
he did.
I do not credit Blaine ' s testimony , however, that
Gillespie, Dials, Sr., Hobsen , and Fuller reported Perry's
activity because he irritated them, or as Gillespie testified
because he interfered with the work in the yard . Foreman
Dials testified that Perry did not interfere with his or
other employees ' production , that his contacts with him
were friendly, and the contacts he overheard Perry
making with other employees about the Union were
made in a joking manner . Zack Fuller , a loader, testified
that Perry' s talking to him about the Union did not
interfere with production . They talked when he was
loading Perry's truck. Prior to the Union' s organizational
activity they talked about other things.
Gillespie"s demeanor on the witness stand disclosed
him to have a strong animus against the Union. I find
that it affected substantially his credibility as a witness.
This same animus is reflected by the heated manner
he displayed on August 7, 1969, in the conversation
he had with Perry and in the one he then had with
a number of other employees about the Union when
he boasted that the employees who started union activity
would be cleaned out like crabgrass. I find that Gillespie
was not a credible witness when he testified , and give
no probative weight to his testimony.
Briggs, a middle-aged employee with 12 years' tenure,
was irritated by Perry's joking suggestion to him that
he join the Union as he could not get a job anywhere
else. He was referred to in Respondent Cotton's yard
as the Old Man by all the employees. He could not
have been irritated by this identification of him by
Perry. Perry was considered to be a good truckdriver
by Fred Blaine and Johnson . Moreover , Respondent
Cotton was a busy operation . This means he was out
on delivery a considerable amount of time each day
from the time the organizational activity began on August
2 to August 22, 1969, when he was discharged . Briggs,
a vetern truckdriver was also out of the yard making
deliveries a considerable amount of time each day.
Absent evidence giving specific instances and their dates,
a reasonable inference is that Perry' s request to join
the Union, coupled with the statement that he could
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not work 'there unless he joined the Union, was made
by Perry to Briggs at most three times. Perry solicited
all the other employees except three in the limited
time he was in the yard so he did not have the time
to be on Briggs' back enough to cause him to complain
to Fred Blaine. Moreover, Briggs' crusty demeanor on
the witness stand and his long tenure as a truckdriver
disclose he did not have the extra sensitivity to Perry's
remarks that, in the circumstances of this incident,
would have caused him to complain about them to
Fred Blaine. r
Hobsen and Barsden did not testify. While they may
have reported to Fred Blaine that Perry contacted them
about the Union, I do not credit Blaine 's testimony
that they complained to him because Perry irritated
them or because he interfered with their production,
The nature of the testimony given by the witnesses
who testified regarding complaints they made to Fred
Blaine indicates otherwise. I find that if Hobsen and
Barsden had been called by Respondents as witnesses
their testimony would have disclosed that Perry did
not interfere with their production or irritate them sub-
stantially and that his conduct standing alone did not
cause them to report to Fred Blaine. There was another
reason. '
I have not credited Sayre's' testimony regarding a
conversation he testified he overheard on August 4,
1969, between Fred Blaine and loader Bill Thompson,
in the : presence of Foreman Johnson, and in which
Blaine, said to Thompson to let him know anything
he heard about the Union, because the evidence did
not disclose clearly whether Sayre was within hearing
distance, and counsel for the General Counsel did not
call Thompson to testify. Blaine denied he made the
request of Thompson, and Johnson did not recall the
conversation. However, the testimony of so-called com-
plaints to Fred Blaine by Fred Blaine, Briggs, Dials,
Sr., and Fuller, Johnson's failure to mention the com-
plaints Blaine said he made to him when he testified,
the failure of Barsden and Hobsen to testify, and the
demeanor of the witnesses who testified show that the
information given to Fred Blaine about Perry was in
response to a request by Fred Blaine to these employees
to report to him anything they heard about the Union
and would not have been given otherwise. Gillespie
is the exception. I have found that he is not a credible
witness.
Analysis and Findings and Conclusions of Law and Fact
On the foregoing evidentiary findings and credibility
resolutions, I make the findings and conclusions of fact
and law which are contained in the following paragraphs.
Respondents Cotton, Blaine, and Arlington constitute
a joint employer. While each has a separate corporate
identity, they are in fact one employer with respect
to ownership, operation, authority, and the formulation
and carrying out of all policy matters including labor
policy Control of the joint employer is vested in and
exercised by Emmett Blaine and Bill Blaine , his son.13
When Fred Blaine interviewed or hired Cooke, Castle,
and Daniels in February, May, and June, 1969, respec-
tively, he interrogated them regarding their feelings about
unionism and their prior experiences with unions, in
violation of Section 8(a)(1) of the Act. 14
When Fred Blaine said to employees that if the Union
came in their weekly hours of work would be cut from
60 to 65 hours to 45 hours, as he was distributing
paychecks in the evening of Friday, August 8, 1969,
he threatened employees in violation of Section 8(a)(1)
of the Act. When Foreman Johnson said to driver Castle
in a conversation he had with him on August 22, 1969,
which he initiated, that employees would be hurt on
overtime if the Union succeeded in representing the
employees; when on or about August 23, 1969, he said
to employees, as they were standing in a shed out
of the rain on Respondent Cotton's time, that if the
Union came in they would be sent home during a rain,
and when in the following week when employees were
returning late from lunch he said to them there would
be no more returning late from lunch if the Union
came in, Johnson threatened employees in violation
of Section 8(a)(1) of the Act. Fred Blaine's and Johnson's
suggestions of economic harm due to unionization had
the natural tendency to imply retaliation for supporting
the Union since they were not based on demonstrably
probable consequences beyond Respondents' control '''
Johnson in his August 22, 1969, conversation with
Castle, violated Section 8(a)(1) of the Act when he
asked him how he felt about the Union, and how many
employees attended the meeting of the Union held the
prior evening. This conduct was both interrogation and
the ' giving of an impression of surveillance 11 I find
infra that Sayre's transfer effective August 6, 1969,
from Respondent Cotton to Respondent Blaine was and
is discriminatory and violative of Section 8(a)(3) and
(1) of the Act. Employee Shamblin's promotion to lead-
man, in Sayre's place at Cotton with an increase in
wages reflected in his August 15, 1969, paycheck is
an illegal benefit and promise of benefit and violative
of Section 8(a)(1) of the Act., So are Fred Blaine's
statement to Shamblin of August 15 that when he saw
his check that night he should remember that if the
Union came in it might be different, and Emerson
Blaine's pointed question of August 15 to Shamblin
if he had seen his paycheck."
11 Senco, Inc, 177 NLRB No 102, Marine Welding and Repair
Works, Inc. 174 NLRB No 102, Transportation Promotions, Inc,
173 NLRB No 114, and Decker Disposal, Inc , 171 NLRB No 124
14 Northrup Carolina, Inc , 167 NLRB 649
15 NLRB v Gissel Packing Co , 395 U S 575, 618, N L R B
v Dowell Di vision, Don Chemical Co .420 F 2d 480 (C A 5)
16 Blue Flash Evpress. Inc . 109 NLRB 591. Struksnes Construction
Co , Inc 165 NLRB 1062. St John's Assoc tares Inc , 166 NLRB
287, enfd 392 F 2d 182 (C A 2), and Mobile Paint Manufacturing
Company of Delaware, Inc , 168 NLRB 783
17 See Phillips Industries, Inc . 172 NLRB No 232, Great Scott
Super Market, 156 NLRB 592, 601
COTTON LUMBER COMPANY
Respondents ' third wage increase to Cotton , Arling-
ton, and Blaine on November 7, 1969 , was a benefit
to chill the union organizational activity, and violative
of Section 8 (a)(1) of the Act . It was the third general
increase in the year 1969. Respondents at the most
gave no more than two increases in prior years. This
one followed the October 27, 1969 , Decision and
Direction of Election of the Regional Director. There
is no substantial evidence , economic or otherwise, to
support this unusual and extraordinary third general
increase . Bill Blaine's conclusionary testimony of the
reason for the increase is not persuasive when apprised
against other Conduct which I have found violative of
Section - 8(a)(1), and the transfers and discharges which
I find infra are violative of 'Section 8(a)(3) and (1) of
the Act.'A
The statements made by Gillespie in the conversation
of August 7, 1969, in which he , Dials, Sr., Perry, Daniels,
Milt Williams, and Bill Thompson participated are not
violative of Section 8(a)(1) of the Act. Gillespie , a loader,
and Perry, a truckdriver, were loading Perry's truck.
They were engaged in a heated conversation about the
Union. Perry, an organizer for the Union, and Gillespie,
militantly antiunion , expressed their opinions about the
value of union representation . Either one could have
started the conversation . Gillespie hollered to Daniels
and Milt Williams to join the conversation and, after
they joined, asked Daniels how he felt about the Union.
Perry told them . Dials, Sr., and Bill Thompson joined
the conversation shortly afterwards: In the course of
the conversation Perry told Dials, Sr., and Gillespie
they would have to join the Union if it represented
the employees The petition for certification filed by
the Union on August 8, 1969 , asked for a unit including
working foreman . Gillespie told the group he would
quit his job at Cotton rather than join the Union. He
also said that those starting the Union would be thinned
out like crabgrass as was done at the time of the organiza-
tional activity in 1968.
The evidence 'does not disclose that Gillespie has
supervisory status. Respondent is not responsible for
his statements Dials, Sr., spends most of his working
time loading trucks as a rank -and-file employee and
associates with the other rank -and-file employees. There
is no evidence that at the time of the conversation
he was working in 'Johnson ' s job of foreman. I do
not find from the evidence any endorsement by Dials,
Sr., of what Gillespie said The participants in the conver-
sation were truckdrivers and loaders , and expressed
their convictions strongly and affirmatively as men of
their type do. Dials, Sr ., a friend of Perry, disclosed
in his testimony that he enjoyed the expressions of
opinion by Perry. He did not believe Perry's statements
to other employees which he overheard to be coercive.
Dials, Sr , informed Fred Blaine that Perry said that
he would have to join the Union if the Union came
in, but, as I have found supra, this report , like the
others of the same nature, was in response to an instruc-
tion to him and others by Blaine to report to him
" Exchange Parts Company, 131 NLRB 806, affd 375 U S 405
297
anything he-heard about the Union . The conversation
was, a casual ' conversation ., Dials ', Sr., and Gillespie
did not participate in it as agents of Respondent . Gillespie
obviously had a low boiling point . I have found him
herein to be a, man of questionable credibility in view
of his militant antiunionism . I have not credited his
testimony that Perry engaged in organizational activity
that hampered production and harassed employees .' Simi-
larly, I do not draw the inference that in the conversation
of August 7 , 1969 , he spoke for Respondents , especially
in view of the more temperate attitude of Dials, Sr.,
who on occasion , acts as a supervisor for Respondents. 19
Sayre's transfer from Cotton to Blaine , effective' Wed-
nesday, ' August 6, 1969 ; Daniels' tranfer from Cotton
to Arlington , effective Friday, August 8 , 1969; the dis-
charge of Daniels, effective Monday , August 11, 1968;
and the discharge of Perry, effective August 22, 1969,
were made by Respondents to chill the Union ' s organiza-
tional activity, dissipate its strength , and prevent it
from obtaining a majority of votes in the forthcoming
election.20 I
The evidence shows that Fred Blaine , Emerson Blaine,
and Bill Blaine were aware of the Union' s organizational
activity at least from the beginning of the card signing
on August 4 , 1969. Daniels and Perry were the leaders
of the organizational activity Johnson , Ray Dials, Sr ,
and Gillespie who worked in the yard with the rank-
and-file employees kept Fred Blaine posted about the
union activity,, and Fred Blaine , in turn , kept posted
his brother, Emerson Blaine , the president and treasurer
of Cotton and Blaine , the treasurer of Arlington, the
general manager of all the enterprises , and the owner
with Bill Blaine , his son , of all the stock in all the
enterprises . Sayre signed a union card on August 4,
1969, and attended the meetings of the Union held
each Thursday beginning with Thursday, but evidence
does not disclose his engaging in the type of activity
on behalf of the Union - engaged in by Daniels and
Perry. However, evidence discloses that the Blaines
were of the opinion that Sayre was substantially involved
in the union activity. I refer to Johnson ' s inquiry to
Sayre on August 7, 1969, when he appeared at Cotton
about 5:15 p.m. after working at Blaine during the
workday, whether he was on his way to the union
meeting to be held that evening ; Emerson Blaine ' s warn-
ing to Sayre on August 8, 1969 , to stay away from
Cotton as he was over there pushing the Union, and
Fred Blaine's question , after Sayre 's transfer to Blaine,
" See N L R B v Power Equipment Company 313 F 2d 438 (C A
6)
2" Respondents contend that if they are a joint employer they are
entitled to a finding that the employees of all of them as a unit constitute
the appropriate unit for the purposes of the representation proceeding
in Case 9-RC-8255, and not just a unit of Cotton ' s employees The
Regional Director , in his Decision and Direction of Election of October
27, 1969, found a unit of Cotton ' s employees to be appropriate This
is the unit requested by the petitioner In his decision , the Regional
Director sets out his reasons and supporting authorities for his holding
Under Sec 102 67( f) of the Board ' s Rules and Regulations, this holding
of the Regional Director is not relitigable in an unfair labor practice
proceeding The courts have upheld the Board Pittsburgh Plate Glass
Company v N L R B, 313 U S 146, 158, N L R B v West Kentucki
Coal Company, 152 F 2d 198, 200 (C A 6)
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to driver Cooke on his return to Cotton from a pickup
at Blaine, whether Sayre was still talking about the
Union over there.
The timing of the transfers and discharges, in relation
to the union activity, the demand for recognition, the
petition for certification as representative, and the antiun-
ion conduct of Respondents violative of Section 8(a)(l)
of the Act, placed the burden on Respondents of present-
ing substantial evidence explaining the transfers and
discharges.21
I do not find persuasive the explanation in the defense
of Sayre's transfer to Blaine that Blaine was a two-
man mill like Cotton, and Blaine had only one Than
instead of two while Cotton had three, when analyzed
with the other evidence. As stated, there is present
the general union animus, and animus against employees
actively engaging in the union activity. Shamblin, who
was promoted to Sayre's job or leadman, was pointedly
referred to the increase in wages in his paycheck by
Emerson Blaine , and was warned,by Fred Blaine that
things might not be as rosy as the promotion and increase
in wages if the Union came in. There is also present
the factor that Fred Blaine told Sayre on August 5,
that the transfer would be only for the remainder of
the week, and he could finish the work he had to
do at Cotton when he returned the following Monday,
and when Sayre reported to work at Blaine on August
6, he was informed the transfer was permanent, and
after he talked to Emerson Blaine and told him he
preferred to work at Cotton because he would have
a transportation problem getting to Blaine, and he had
long tenure of employment at Cotton, Emerson Blaine
told him bluntly to work or quit. As I have previously
found, Respondents were of the opinion that Sayre
was substantially involved in the union activity.
Respondents' defense to the transfer from Respondent
Cotton to Respondent Arlington, in the heat of the
organizational activity at Respondent Cotton, of Daniels,
a leader in the organizational activity, is that Respondent
Arlington was in dire need of an employee at Arlington
and had to rely on Cotton to furnish him. Respondents'
witness Preece, the foreman in charge of Daniels, at
Arlington, testified that Daniels, a truckdriver at Cotton
and a former forklift mechanic, was assigned to cleaning
up around the electric saw and stacking lumber in the
truss making department when he was transferred to
Arlington. He received the same wages he received
as a truckdriver at Cotton. Emerson Blaine and Bill
Blaine , the owners of all the Respondents, and Fred
Blaine and Johnson at Cotton run an efficient economic
operation. They would not, in ordinary circumstances,
have transferred Daniels, whose truckdriving skills were
urgently needed at Cotton, to the unskilled job of clean-
ing around the electric saw and stacking lumber at
Arlington. Bill Blaine's testimony discloses that Arling-
ton had access to personnel through Spot Labor, an
" N L R B v Great Dane Trailers, Inc , 388 U S 26, 34, N.L.R.B
v Fleets ood Trailers Co , 389 U S 375, Duncan Foundry and Machine
Works, Inc , 176 NLRB No 31, and Atlanta Newspapers. Inc . 172
NLRB No 152
employment agency in Columbus, Ohio. There is no
testimony that a worker could not have been obtained
from Spot Labor to do the work to which Foreman
Preece at Arlington testified Daniels was given.
Respondents defend Daniels' discharge in the early
morning of Monday, August 11, 1969, only 2 workdays
after the transfer, on the ground that he quit work
at noon on Saturday, August 9, 1969, when he was
ordered to work in the afternoon. I have credited Daniels'
testimony that although he attempted to find out Friday
evening, August 8, if he had to work longer than a
half day on Saturday, he was not able to obtain This
information I have also credited his 'testimony that
he worked only a half day at Cotton, and assumed,
in the absence of information to the contrary, that
the workday ended at noon on Saturday at Arlington,
and did not bring a lunch with him. I have also credited
Daniels' testimony that he asked Preece if he could
leave at noon on Saturday because he did not bring
a lunch and Preece told him to go ahead. Daniels saw
some employees checking out for the day at noon.
I have not credited Preece's testimony that at noon
on Saturday he ordered Daniels to work on Saturday,
and he refused.
I find from the testimony of Preece, the foreman
at Arlington, in regard to work on Saturday that it
is not clear whether employees do not work on Saturday
unless they are notified on Friday evening they are
to work on Saturday, or whether they are expected
to work unless notified otherwise. I also find from
Respondents' evidence that it is not clear how long
the employees work on Saturday. Bill Blaine in the
representation proceeding testified that the employees
worked a half day on Saturday at Arlington, but testified
in this proceeding he was in error in giving this testimony
Preece testified that on Friday he said to Daniels that
some employees worked long hours on Saturday. I do
not credit this testimony. I have found that he did
not tell Daniels anything about working on Saturday.
But assuming he did for the purpose of argument, such
a statement did not inform Daniels if he had to work
longer than a half day on Saturday. It is undisputed
that the catering truck did not come to Arlington on
Saturday This alone indicates that only a few persons
worked on Saturday, and they worked only a short
day. Then there is Bill Blaine 's testimony that Daniels
may not have known when he left Arlington on Friday
that he had to work in the afternoon of Saturday.
I have found that Daniels did not have a lunch with
him on Saturday even though he may have had a lunch-
box with him on Saturday when he checked out.
The testimony of Respondents' witnesses, particularly
the testimony of Bill Blaine and Preece, that Daniels
was discharged because he left Arlington at noon on
Saturday, August 9, after refusing to work Saturday
afternoon although ordered to do so, is clearly pretextual,
especially when viewed with the credited testimony of
Daniels, the background evidence of the union activity,
the evidence of the union animus of Respondents, and
the timing of the transfer and the discharge in relation
to the union activity
COTTON I UMBER COMPANY 299 1
Respondents' defense of its discharge of Perry on
August 22, 1969, is that he continuously harassed employ
ees at Cotton about the Union, a number of them
complained to Fred Blaine about Perry's conduct, and
Respondents finally had to discharge him after warning
him twice to leave the employees alone I have found
that Perry, a truckdriver and an efficient employee,
was one of the employee leaders of the organizational
activity, and talked about the Union to nearly all of
the employees at Respondent Cotton The Regional
Director's Decision and Direction of Election of October
27, 1969, was still pending when Perry was discharged
I have found that Respondents granted a general wage
increase on November 7, 1969, to chill unionism and
dissipate its support Respondents efforts to defeat the
union activity at Cotton were still in effect on August
22 and thereafter even though the card solicitation,
demand for recognition, and the filing of the petition
for certification had taken place in the week ending
August 9, 1969
I have found that Respondents' evidence does not
support its defense that Perry in organizing for the
Union harassed employees and interfered with their
production Respondent Cotton did not have a no-solici-
tation rule 22 I have found that certain employees at
Cotton reported to Fred Blaine after Perry approached
them about the Union I also found, however, that
these reports were made not because of any harassment
or interference with their production, but because Fred
Blaine instructed them to report to them anything they
heard or saw about the Union Respondents used the
reports made to Fred Blaine pursuant to his instructions
to support Respondents' pretextual explanation that
Perry was discharged because he hampered or harassed
employees and interfered with their production There
is Perry's unrebutted testimony corroborated by the
testimony of Castle that on the morning after Perry's
discharge Foreman Johnson nodded yes to Perry's ques-
tion if he was fired for pressing the Union Respondents'
explanation of Perry's discharge is not supported by
substantial evidence
The preponderance of the evidence on the record
as a whole shows that Respondents discriminatorily
transferred Daniels and discharged him, and discrimina-
torily discharged Perry, because of their union activity,
and to chill the Union's organizational activity and dissi
pate its strength It also shows that they transferred
Sayre, in their belief that he was substantially engaged
in union activity, because of union activity, and also
to chill the Union's organizational activity and dissipate
its strength The object of this conduct was to discourage
membership in the Union This conduct violates Section
8(a)(3) and (1) of the Act 23
12 See N L R B v United Steel Workers of America CIO 357 U S
357 In the absence of a rule the question is whether the organizational
activity interfered with production or discipline N L R B V Poster
Equipment Compan ) 313 F 2d 438 (C A 6) enfg as modified 135
NLRB 945 and remanding for resubmission of order
29 N L R B v Great Dane Trailers Inc 388 U S 26 34 N L R B
v Fleetitood Trailer Co Inc 389 U S 375 K'imp Togs Inc 148
NLRB 196 N L R B v Tru Line Metal Products Compam 324 F 2d
614 616 (C A 6) enfg 138 NLRB 964 cert denied 377 U S 906
On the finding that Fred Blaine s two warnings to
Perry, prior to his discharge, to cease communicating
with employees was to provide a pretextual basis for
his discharge, and to chill his union activity, I find
and conclude that these warnings, in themselves, are
an independent violation of Section 8(a)(1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section
III, 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
Respondents have been found to have engaged in
conduct violative of Section 8(a)(1) and (3) of the Act
I shall recommend that they be ordered to cease and
desist from engaging in such conduct, and to take the
affirmative action specified It is designed to effectuate
the policies of the Act The extent of Respondents'
illegal conduct calls for a broad order N L R B v
Entwistle Mfg Co , 120 F 2d 532 (C A 4)
Upon the basis of the foregoing findings of fact and
the entire record in the case, I make the following
CONCLUSIONS OF LAW
I Respondents jointly are an employer, and severally
each is an employer within the meaning of Section
2(2) of the Act, and jointly and severally are engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 Respondents , in violation of Section 8(a)(1) of the
Act, have interrogated and threatened employees, and
have given them the impression of surveillance , to inter
fere with their rights under Section 7 of the Act to
become members of the Union, engage in union activity
and other concerted activity, and select the Union as
collective bargaining representative
4 Respondents , in violation of Section 8(a)(1) of the
Act, have granted wage increases to employees, and
have promised them other benefits to interfere with
rights under Section 7 of the Act to become members
of the Union, engage in union activity, and select the
Union as collective-bargaining representative
5 Respondents, in violation of Section 8(a)(3) and
(1) of the Act, discriminatorily transferred employee
Augustus Daniels from Respondent Cotton to Respond
ent Arlington, and then discharged him because he
engaged in union activity and to chill and dissipate
NLRB v D Armigene Inc 353 F 2d 406 409-411 (C A 2) enfg
148 NLRB 2 N L R B v WTVJ INC 268 F 2d 346 347-348 (C A
5) enfg 120 NLRB 1180 and Ames Reads Mn Concrete Inc 170
NLRB No 174 enfd 411 F 2d 1159 (C A 8)
t 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the organizational efforts of the union at Respondent
Cotton, and thereby discourage membership in the
Union.
6 Respondents, in violation of Section, 8(a)(3) and
(1) of the Act, discriminatorily discharged employee
Albert Perry because he engaged in union activity, and
to chill and dissipate the organizational efforts of the
Union, and thereby discourage membership in the Union.
7. Respondents, in violation of Section 8(a)(3) and
(1) of the Act, transferred employee Robert Sayre from
Respondent ,Cotton to Respondent Blaine because of
his union activity, or their belief he engaged in substantial
union activity, and to chill and dissipate the organization-
al efforts of the Union, and thereby discourage member-
ship in the Union.
8. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act
RECOMMENDED ORDER
Upon the basis of the foregoing facts and conclusions
of law, and upon the entire record in the case, I recom-
mend that the Board enter an order requiring Respond-
ents, their officers, agents, successors, and assigns, to:
1. Cease and desist from:
(a) Interrogating and threatening employees, giving
them the impression of surveillance, giving them wage
increases, and promising and giving them other benefits,
in regard to their rights to engage in union activity,
to assist Teamsters Union, Local 413, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any, other
labor organization, -or to select or authorize it to act
as their collective-bargaining representative. ,
(b) Discouraging membership in Teamsters Union,,
Local 413, affiliated with the International Brotherhood
of Teamsters; Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, by transfer-
ring or discharging employees because they engaged
in union activity or other concerted activity, or otherwise
discriminate against them in regard to the hire • and
tenure of their employment or any term or conditiqn
of employment, because they engage in union activity
or other concerted activity. ,
(c) In any other manner interfering with, restraining,
or coercing-employees in the exercise of their rights
to self-organization, to form labor organizations, to join
or assist the Union 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 and all such
activities, except to the extent that such right may
be affected by an agreement requiring membership in
a labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which I find
will effectuate the purposes of the Act:
(a) Offer immediate reinstatement to employees
Augustus Daniels and Albert Perry to their former or
substantially equivalent employment at Respondent Cot-
ton without prejudice to their seniority and other rights
and privileges, and make them whole, for any loss of
earnings they may have suffered by reason of the discrim-
ination against them with interest at 6 ,percent per annum,
as provided in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing,& Heating Company, 138 NLRB
716.
(b) Offer immediate reinstatement to employee Robert
Sayre to his former or substantially equivalent employ-
ment at Respondent Cotton either by transfer from
employment at Respondent Blaine or otherwise, without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may
have suffered by reason of the discrimination against
him, with interest at 6 percent per annum, as provided
in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
(c) Notify the above-named employees if presently
serving in the Armed Forces of the United States of
their rights to full reinstatement upon application in
accordance with the Selective Service Act and the Uni-
versal Military and Service Act, as amended, after dis-
charge from the Armed Forces.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records relevant and material to Respondents' compli-
ance with the provisions of this Order.
(e) Post in conspicuous places at their plants in Colum-
bus, Ohio, including all places where notices to employ-
ees are customarily posted, copies of the attached notice
marked "Appendix."24 Copies of said notice on forms
provided by the Regional Director for Region 9, after
being duly signed by an authorized representative of
Respondents, shall be posted by them, immediately upon
receipt thereof, and maintained by them for 60 consecu-
tive days thereafter. Reasonable steps shall be taken
by Respondents to insure that said notices are not altered,
defaced, or covered by any other material
(f) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt by the Respond-
ents of this Decision, what steps the Respondents have
taken to comply therewith.'-'
24 In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Section 102 48 of the said Rules and
Regulations, be adopted by the Board and become its findings, conclu-
sions, and order, and all objections thereto shall be deemed waived
for all purposes In the event that the Board's Order is enforced
by a judgment of a United States Court of Appeals, the words in
the notice reading "Posted by Order of the National Labor Relations
Board" shall be changed to read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
2S In the event this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps
Respondents have taken to comply herewith "
COTTON LUMBER COMPANY
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the date of the receipt of this Trial Examen
er's Decision and Recommended Order the Respondents
notify the Regional Director in writing that they will
comply with the foregoing Recommendations, the
National Labor Relations Board issue an order requiring
the Respondents to take the action aforesaid
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate or threaten employees,
or give them the impression of surveillance, or
give them wage increases or promise or give them
other benefits , to interfere with , coerce , or restrain
them in regard to their rights to engage in union
activity , to assist Teamsters Union , Local 413,
affiliated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers
of America , or any labor organization , or to select
or authorize it to act as their collective bargaining
representative
WE WILL NOT discourage membership in the
above Union , or any other labor organization, by
discharging or transferring employees because they
engage in union activity or other concerted activity,
or otherwise discriminate against them in regard
to the hire and tenure of their employment, or
any term or condition of employment , because
they engage in union activity or other concerted
activity
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exercise
of their rights to self organization, to form labor
organizations , to join or assist the Union, or any
other labor organization , to bargain collectively
through representatives of their own choosing, or
to engage in any other concerted activities for
the purpose of collective bargaining , or other mutual
aid or protection
WE WILL offer immediate reinstatement to
employees Augustus Daniels and Albert Perry to
their former or substantially equivalent employment
301
at Cotton Lumber Company , and will offer to
employee Robert Sayre to immediately transfer him
from Blaine Lumber Company to his former or
substantially equivalent employment at Cotton
Lumber Company , or to otherwise immediately
place him in such employment , without prejudice
to their seniority and other rights and privileges,
and make them whole for any loss of earings they
may have suffered by reason of the discrimination
against them , with interest at 6 percent per annum
All our employees are free to become , or refrain
from becoming , members of Teamsters Union,
Local 413, affiliated with the International Brother
hood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization
Dated By
COTTON LUMBER
COMPANY , ARLINGTON
LUMBER COMPANY, AND
BLAINE LUMBER
COMPANY
(Employer)
(Representative ) (Title)
Note We will notify Augustus Daniels and Albert
Perry if presently serving in the Armed Forces of the
United States of their rights to full reinstatement to
their former or substantially equivalent employment at
Cotton Lumber Company, and Robert Sayre if presently
serving in the Armed Forces of the United States of
his right to be fully transferred or otherwise placed
in his former or substantially equivalent employment
at Cotton Lumber Company , upon application in
accordance with the Selective Service Act and Universal
Military Training and Service Act, as amended after
discharge from the Armed Forces
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not bd altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions , may be directed to the Board's
Office , Room 2407 Federal Office Building , 550 Main
Street , Cincinnati, Ohio 45202 , Telephone 513-684-3686