East Texas Pulp and Paper Co.

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 427 (N.L.R.B. 1963)

EAST TEXAS PULP AND PAPER COMPANY 427
(c) Notify the Regional Director for the Twenty-third Region in writing within
20 days from the date of the service of this Intermediate Report what steps the Re-
spondents have taken to comply herewith."
n In the event that this Recommended Order be 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 the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify you that:
WE WILL NOT refuse to bargain in good faith with Construction and General
Laborers Union, Local No. 18, International Hod Carriers , Building and Com-
mon Laborers Union, AFL-CIO, as the exclusive representative of all employees
in the following appropriate unit:
All hod carrier and laborer employees of our members and associate
members, exclusive of all supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
employees in the exercise of rights guaranteed them by Section 7 of the Act.
WE WILL, upon request , bargain collectively in good faith with the above-
named labor organization concerning all matters relating to wages, hours, and
other terms and conditions of employment , including a nondiscriminatory ex-
clusive referral arrangement , and embody any understanding reached in a
signed agreement.
HOUSTON CHAPTER, ASSOCIATED GENERAL
CONTRACTORS OF AMERICA, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
CONSTRUCTION EMPLOYERS' ASSOCIATION OF TEXAS,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 650 M & M
Building, 1 Main Street, Houston, Texas, 77002, Telephone No. Capitol 2-7201,
Extension 041, if they have any question concerning this notice or compliance with
its provisions.
East Texas Pulp and Paper Company and Ike E. Baugh. Case
No. 2.3-CA-1470. June 28, 1963
DECISION AND ORDER
On March 25,1963, Trial Examiner William Seagle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices as alleged in
the complaint and granted the Respondent's motion to dismiss these
143 NLRB No. 55.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegations. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and briefs,' and hereby adopts the findings,2 conclusions, and
recommendations of the Trial Examiner with the modifications noted
herein.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
MEMBER BROWN, dissenting in part :
I agree with my colleagues' disposition of this case except insofar
as it adopts the Trial Examiner's dismissal of the complaint's allega-
tions that the Respondent, in violation of Section 8(a) (4), refused to
rehire or consider for employment the 11 complainants named
therein .3
The basis for the Trial Examiner's dismissal is that the "relation of
cause and effect between the filing of the charges and the denial of
employment" was not established. He reached this conclusion be-
cause he found that no application by the complainants for employ-
ment was pending before Respondent at the time the charges were
filed, and, in any event, no refusal to employ or consider for employ-
ment because of the filing of the charges was shown. I disagree with
the Trial Examiner on both counts.
As more fully detailed in the Intermediate Report, all 11 com-
plainants involved applied for reemployment on May 13 immediately
following the termination of the strike. When the applications were
rejected, all these complainants, except Stutts, filed grievances alleg-
ing discrimination in the rejection of their applications. No com-
I The Respondent contends , in its exceptions to the Intermediate Report, that the Trial
Examiner was biased and prejudiced in making his findings of fact and conclusions of
law, and that he made all credibility decisions against the Respondent. Upon careful
examination of the entire record and Intermediate Report , we are satisfied that the Re-
spondent 's contentions are without merit . Regarding bias, the Supreme Court has stated
that even "total rejection of an opposed view cannot of itself impugn the integrity or
competence of a trier of facts " N .L.R B. v Pittsburgh S.S. Company . 337 U . S 656, 659.
The Respondent has requested oral argument The request is hereby denied because the
record, the exceptions , and briefs adequately present the issues and positions of the parties.
2 In view of our affirmance of the Trial Examiner's finding that Respondent did not
violate 8 ( a) (4) of the Act , we find it unnecessary to pass on the Trial Examiner 's state-
ments respecting a remedy if a technical violation of the section had been established
3 The names of these employees appear under section III, A, of the Intermediate Report.
EAST TEXAS PULP AND PAPER COMPANY 429
plainant was successful in regaining employment through his griev-
ance, and, on August 13 and 17, unfair labor practice charges were
filed on behalf of all 11 complainants alleging discriminatory refusals
to rehire following the strike. These applications for employment,
grievances, and charges amply demonstrate that the complainants did
not abandon their desire for employment with the Respondent, and
that they manifested this desire for work at all critical times herein.
As indicated above, I likewise reject the Trial Examiner's finding
that the filing of the charges by the complainants in no way affected
their opportunity for employment with Respondent. When the em-
ployment applications of May 13 were rejected, the possibility of fur-
ther employment was held out to the complainants, as found by the
'Trial Examiner. About August 24, however, following the filing of
the charges, when Brown, Respondent's vice president, induced Shafer
to drop his charge against Respondent, Brown promised Shafer fur-
ther employment if he took his name off "that petition" and said that
"these men may win these cases, and it may cost the Company fifty
-thousand dollars, but that they would continue to fight them ... they
wouldn't be on the job thirty minutes after ... they won it the first
-time, until he would fire them again, and then the NLRB may be back
on his neck again, but he would continue to fire them ... it may take
-ten years to get rid of them, but the Board would change one of these
-days, and when he did get rid of them men, they would be dead
ducks . . . ." Further, when, between August 25 and 30, Brown in-
duced Harding to withdraw his name from the charges, Brown told
Harding of a conversation he, Brown, had had with Foreman Robin-
son in which, when Robinson asked why Shafer and Harding could
not be rehired, Brown replied that he "couldn't even consider it at
this time while the grievances were going on." On the same occasion,
Brown told Harding that if the rest of the employees did not drop
their "grievance," Respondent would, "if they were rehired . . . fire
them again . . . and again .... As long as they have got them [the
"grievance"] if they go back to work, I will fire them." Quite clearly,
Shafer's and Harding'-, further employment with the Respondent was
conditioned upon their renouncing the "petition" or "grievance." As
for the rest of the employees, the opportunity for further employment,
which was held out to them in May. vanished after the charges were
filed; they obviously had no hope of reemployment thereafter.
If Shafer's and Harding's further employment with Respondent
was conditioned upon their renouncing the charges and if the other
complainants lost even the chance to be considered for further employ-
ment, all because of the charges herein, these employees would have
been discriminated against in violation of Section 8(a) (4). In the
latter connection, the Trial Examiner ascribed Respondent's hostility
to the employees to their having filed grievances. I would find that
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was the charges which Shafer and Harding had to renounce to be,
considered for employment, and it was the charges which moved the
Respondent to bar the other employees from any further consideration
for employment. I am so persuaded by Respondent's efforts to in-
duce Shafer and Harding to withdraw their charges and by Brown's
statements in the circumstances of his conversations with Shafer and
Harding, as reported above; by Harding's explanation of his use of
the term "grievance" as referring to "the one we filed at the Company,
and we filed a petition or signed a petition, or filed a petition, with the
NLRB"; by the fact that both Shafer and Harding, and Moore too,
had withdrawn their grievances before the charges were filed, upon
pressure by Respondent; and by the fact that Stutts, although joining
in the filing of the charges, filed no grievance, and the grievances of
all the others had been disposed of as of the date of the aforementioned
conversations, except for two which were to go to arbitration.
Based upon these considerations, I would find that Respondent also
violated Section 8(a) (4) of the Act by discriminating against the em-
ployees involved because they filed charges under the Act.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Under date of August 13, 1962, a charge was filed against the Respondent alleg-
ing that on May 10, 1962, it had terminated the employment of five of its employees,
had discriminated against them, and had interfered with, restrained, and coerced them
in the exercise of their rights under Section 7 of the Act. Under date of August 17,
1962, an amended charge was filed making the same allegations but adding the
names of six additional employees to those enumerated in the original charge.
Under date of September 27, 1962, a second amended charge was filed, alleging
that on or about August 26, 1962, and thereafter, the Respondent had discriminated
against the 11 employees named in the previous charges because they had filed
these charges with the National Labor Relations Board.
Under date of September 28, 1962, a complaint was issued against the Respondent
alleging violations of Section 8(a)(1) and (4) of the Act. In substance, the alleged
Section 8(a) (1) violations were that the Respondent through its plant manager,
Ray Brown, or through its president, R. M. Buckley, had told various employees
on different occasions that they would never be employed by the Respondent or
receive a recommendation for employment elsewhere as long as they processed a
grievance filed by them with their union, and that Brown had solicited two em-
ployees to withdraw charges filed with the Board, either under a promise of re-
employment or a threat of future blackballing. The alleged Section 8(a)(4) viola-
tion was that the Respondent was discriminating against, and refusing to rehire
or consider for reemployment, the 11 employees named in the previous charges and
in the complaint because they had filed charges or were named in a charge filed
with the Board.
On November 27, 28. 29. and 30, 1962, Trial Examiner William Seagle held a
hearing with respect to the allegations of the complaint at Beaumont, Texas. Coun-
sel for the Respondent presented oral argument at the close of the hearing, and,
subsequent thereto, counsel for the General Counsel, as well as counsel for the
Respondent, filed briefs which have been duly considered.
Upon the record so made, and in view of my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all material times, the Respondent (sometimes referred to hereinafter as East
Texas), which is a corporation organized under the laws of Delaware, has main-
EAST TEXAS PULP AND PAPER COMPANY 431
tamed its principal office and place of business at Evadale, Texas, where it has been
,engaged in the manufacture and sale of paper products.
During the past 12 months, which is a representative period, the Respondent,
in the course and conduct of its business operations, sold and shipped from its plant
at Evadale, Texas, paper and related products valued in excess of $1,000,000, to
States other than the State of Texas. It is not disputed that the Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO;
its Locals 801 and 825; and International Brotherhood of Electrical Workers, Local
479, are labor organizations within the meaning of Section 2(5) of the Act.
Beaumont Building and Construction Trades Council, AFL-CIO (hereinafter
referred to as the Beaumont Trades Council), is also a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The discharges
The present proceeding is an unanticipated byproduct of a plant expansion pro-
gram undertaken by the Respondent in 1962.1 This program, which was designed
to increase the productive capacity of the Respondent by approximately 50 percent
and to require the employment of approximately 125 additional workers, was sched-
uled for completion in October 1962 but at the time of the hearing construction was
behind schedule. In May 1962, a warehouse, which was a preliminary to the plant
expansion program, was under construction by the Brown & Root Construction
Company.
About 2 weeks prior to May 11, the Beaumont Trades Council commenced to
picket the Brown & Root job, the pickets bearing signs reading: "Beaumont Build-
ing Trades Council protests the working conditions on this job by Brown & Root
Construction Company." The picketing was carried on at a point where FM
Highway 105 2 intersects the construction road. This road was not used ordinarily
by the employees of East Texas to gain access to the plant. But, at approximately
5:45 a.m. on May 11, the Beaumont Trades Council also commenced to picket the
main entrance road which led to the East Texas plant from FM Highway 105, and
which was used by the employees of East Texas to enter and leave the plant.
At the time of this picketing, the East Texas production and maintenance em-
ployees were covered by a single labor contract between the Respondent and Locals
801 and 825, the production employees being represented by Local 801, and the
maintenance employees being represented by Local 825. In all, there were approxi-
mately 450 employees in this bargaining unit. In addition, the Respondent had
a labor contract with International Brotherhood of Electrical Workers, Local 479,
covering such of its employees as were represented by this union, namely its main-
tenance electricians and instrument men. The contract with the Pulp and Sulphite
locals, as well as the contract with the IBEW local, contained provisions prohibiting
strikes or other interruptions to production during the effective periods of the
agreements.
Nevertheless, 186 employees of the Respondent who were represented either by
the Pulp and Sulphite locals, or by the IBEW local, refused, on May 11 and 12, to
cross the picket line at the main entrance road to the East Texas plant .3 The Re-
spondent obtained an injunction against the picketing in the District Court of Jasper
County, Texas, on the morning of Saturday, May 12, and the picketing ceased about
midnight that day.
When the East Texas management officials learned early in the morning of May
11 that some of the employees were refusing to cross the picket line, they called
in the union officials, and informed them that the picketing was illegal, and that the
employees were under an obligation under the terms of the contracts to come
through the picket line and go to work. The union officials were also told that the
timecards of the employees who had refused to cross the picket line had been
pulled from the racks but that if they reported for work within 30 minutes nothing
I Unless otherwise indicated, all dates subsequently mentioned will be in 1962.
2 "FM" signifies Farm to Market.
3 Only a few of these 186 employees were represented by the IBEW local.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be done about their failure to report for work at 6:30 a.m. as scheduled.4
The union officials agreed to attempt to get the employees back to work, and went
out to the picket line for that purpose.
When the injunction put an end to the picketing, the 186 employees, who had
refused to cross the picket line on either May 11 or 12, were told at the union hail
to report to the plant on May 13, which was a Sunday, and make application for re-
employment. Most of them did so, and of these 186 employees, 156 were rehired by
the Respondent, although the employees so rehired lost their seniority. All of the
employees who applied for reemployment were interviewed by L. C. Menius, the
Respondent's personnel director, who told the 156 who were rehired to report for
work the next day. The employees who were not rehired were told by Menius to
report the next day to Brown. These Sunday interviews between Menius and the
employees occurred close to the hour of midnight.
The 11 employees who are included in the complaint were among the 30 em-
ployees who were not rehired.5 The names of the 11 employees,6 the dates when
they were first employed by the Respondent, and the nature of their jobs are as
follows:
Name of employee Date of employment Job
Ike E. Baugh__________________ May 30,1957 ---------------- Papertester
Charlie J Dickerson ----------- November 15,1954 ---------- Carpenter
Emile Lucille Dickerson_______ February 5,1957____________ Stencil inspector
W. H Sheffield --------------- April 30,1956 ---------------- Caustic operator
Bobby Charles Harding_______ July 17,1018 ----------------- Second helper, recovery
E. H. Reeves------------------ ------------------------------ Backtender, machine room #l
Billy Wilkerson_______________ November 1959______________ Broke beater
Harold E Shafer______________ April 13, 1955_______-_____-- Kiln operator
E E Cowart__________________ July 21,1955 ----------------- Second helper, bleach plant
Roy F Moore_________________ January 21, 1955_____________ Cutter operator
Clayton Stutts________________ December 5, 1955____________ Crane operator, woodyard
All of the 11 employees named in the complaint filed applications for reemploy-
ment by the Respondent, and they were duly interviewed by Brown during the after-
noon of Monday, May 14. But these interviews by mere formalities, since Brown
had already prepared a little list of the employees whom he either did not intend
to rehire or whose rehiring he considered doubtful? The names of those not to
be rehired were marked with an "X" on this list. and Brown had put an "X" op-
posite the names of each of the employees named in the complaint. Thus all of
them were told by Brown in the course of the interviews on May 13 that they
would not be rehired. Each of these 11 employees except Reeves testified in sub-
stance or in effect that Brown told them that there was nothing wrong with his
work, and that he might be reemployed when the Respondent's plant expansion
program was completed. Only Stutts put Brown's remarks more positively, testify-
ing that Brown told him that he liked him personally, and that when the plant ex-
pansion program was completed "he would sure" have something for him; and
Shafer merely testified that Brown told him that he would not be blackballed but
would be hired back at some later date.
Brown's interviews with the 11 employees on May 14 were generally brief 8 and
not unfriendly. Indeed, there were some manifestations even of what might be
described as cordiality on the part of Brown, and in several instances it consisted
of his promising good references elsewhere. For instance, Charlie J. Dickerson
testified that when he got up to leave, Brown slapped him on the back and inquired:
4 It seems that actually the employees were allowed until about 2 p m to report for
work This would be practically until almost the end of the first shift.
6 Of the 30 employees who were not rehired, 15 did not seek reemployment, and 14 of
these 15 employees were "extra board" or temporary employees and 1 was a member of
the IBEW.
6 The names of 10 of the 11 employees who testified at the hearing will be given to
they appear in the transcript. As one of these employees, E. H Reeves, did not testify
at the hearing, the date of his employment is not established.
The list is in evidence as Respondent's Exhibit No 4.
8 Brown himself specifically testified that his meetings with Cowart and Baugh were
short meetings On May 14, about 20 employees were waiting to hale interviews with
Brown.
EAST TEXAS PULP AND PAPER COMPANY 433
"No hard feelings?" and that thereupon he replied: "Not on my part." Sheffield
testified that he even discussed his ambitions with Brown, telling the latter that he
was taking a correspondence course, and aspired to be something more than a
mere operator; that Brown then intimated that he might ultimately rehire him in a
better job than that; and that Brown then gave him the names of two mill managers
to whom he could apply for a job, and told him that he could use his name as a
reference. Moore testified that when he asked Brown whether he would give him
a recommendation for other employment, Brown replied in the affirmative, and also
told him that he could use him name freely on any employment application.
Similarly, Stutts testified that Brown promised to give him a good reference. Brown
himself admitted that he promised to consider Sheffield for a foremanship after
he had proved himself elsewhere, although he believed that this occurred at a later
meeting at his home. In the case of Mooie, Brown admitted that he told Moore
that he could use his name freely in making an application for employment, despite
the fact that he was already aware of his activities on the picket line. Even more
significantly, in the case of Stutts, Brown also admitted that he would help him
get a job, despite his past record, which included reprimands for drinking on the
job, as well as "a lot of other different things." Brown's explanation for his
leniency toward these employees was that he felt that they had learned their lesson,
and that he would not, therefore, blackball them.
B. The filing of the grievances
All 11 of the employees named in the complaint except Clayon Stutts filed griev-
ances after their discharges pursuant to Section 7 of the contract with Locals 801
and 825. These grievances were all filed the very day following the interviews of
these employees with Brown, except that Moore and Reeves filed their grievances on
May 21. All 10 of the employees who filed grievances based them upon a charge
of discrimination against them, alleging that the Respondent had discharged them
for failing to cross the picket line, although other employees who had been guilty
of the same conduct had been reemployed. Only E. E. Cowart alleged, in addi-
tion, that he had been afraid to go to work because of threats of bodily harm to
him and his family.
Section 7 of the contract with the union provided for the handling of grievances
at various levels, involving the union and company officials. In the preliminary
stages, a grievance was to be handled informally by the aggrieved employee-with
the assistance perhaps of the shop steward-first with his foreman and then with his
department superintendent. If no settlement was effected in this manner, the griev-
ance could be carried to the resident manager and to another company official. If
the grievance could still not so be adjusted, it could be taken to arbitration. In
actual practice, it was Leon M. Rogers, the president of Local 801, who was priri-
cipally responsible for handling the grievances on behalf of the union, and Brown
and R. M. Buckley, the Respondent's president, who handled the grievances on
behalf of the Company.9 The grievances filed in the present case would neces-
sarily involve an interpretation of the third paragraph of section 10 of the contract
which prohibited strikes or other interruptions to production. This provision of
the contract reads as follows:
The Company may discipline or discharge any employee or employees who
engage in or encourage a strike, and such action shall not be subject to review
upon any ground other than that the employee did not take part in the strike.
The Company agrees, however, that no discrimination shall be exercised in
applying discipline or discharge for such action [Emphasis supplied.]
The first three grievances to be considered by Brown were those of Charlie J.
Dickerson, Emlie Lucille Dickerson, and Sheffield These grievances were rejected
by Brown in letters to the Union dated June 1, which apparently were written the
same day as the meetings on the grievances. The grievances of Wilkerson and
Moore were similarly rejected by Brown on June 14; that of Baugh on June 28;
and those of Harding and Cowart on July 10 and 12, respectively. The grievances
of Emlie Lucille Dickerson, Wilkerson, Moore, and Charlie J. Dickerson were also
carried to a higher level, and were rejected by Buckley, the Respondent's president,
on June 18, July 5 and 27, and August 15, respectively. Subsequent to the rejec-
tions of the grievances of the two Dickersons by Buckley, they were carried to
arbitration. The grievance of Reeves was never formally processed apparently
because he left the local scene to take employment elsewhere. Harding dropped
g The record shows that Wayne Robinson, the plant superintendent, participated in
handling the grievances at the informal level.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his grievance after it had been rejected by Brown on July 10, and Moore dropped
his grievance after it had been rejected by Buckley on July 27. Shafer also dropped
his grievance but it does not appear that it had ever been considered formally by
either Brown or Buckley.io
In his letters to the Union rejecting the grievances of Baugh, Harding, Wilkerson,
Moore, Sheffield, and the two Dickersons, Brown rejected them on two grounds,
namely, (1) the failure of the aggrieved employee to report for work, and (2) the
nature of the activity of the aggrieved employee on the picket line. Only in the
case of Cowart was there no mention of picket line activity as a reason for reject-
ing his grievance; the reason given in his case, in addition to his failure to report
for work, was his "extremely poor work record and absentee record."
The letters in which Brown disposed of the grievances were really form letters.
While the paragraph in which reference was made to the failure of the aggrieved
employees to report for work was both adequate and accurate, except in one case,"
the paragraph in which reference was made to their picket line activity fails to reveal
the nature of this activity. It appears from the other evidence, however, that Brown
charged Emlie Lucille Dickerson with telephoning to some of the East Texas female
employees to tell them not to report for work; Charlie J. Dickerson, with riding up
and down the picket line, saluting the pickets and slapping them on the back; Moore,
with pulling buttons off a woman's blouse and threatening to assault any employees
who crossed the picket line; and Harding, with knocking on the doors of employees
and telling them not to report for work.12 While the precise nature of the picket
line activity of which Shafer stood accused does not appear, Brown seems to have
had at least some affidavits bearing on such activity. But while counsel for the
Respondent in examining Brown, made a determined effort to establish everything
that was said at the grievance hearings, he failed wholly to elicit any testimony that
suggests any picket line activity on the part of Baugh, Wilkerson, or Sheffield.
Indeed, there appear to have been other motives actuating Brown in selecting the
employees whom he intended to discharge, and these motives were not so much
as mentioned in the form letters, except in the case of Cowart. In fact there were
some other employees who were selected for discharge because Brown did not
regard them as desirable employees, and simply took advantage of the opportunity
to settle old scores. In this category were, apparently, in addition to Cowart,
Baugh, Charlie J. Dickerson, Sheffield, and Wilkerson. The two employees who
aroused Brown's greatest animosity and ire appear to have been Baugh and Cowart.
With respect to Baugh, Brown testified as follows:
Q. Now, what respect was Mr. Baugh undesirable?
A. I don't know if I said it-I said it in one of his meetings, grievance meet-
ing, with Mr. Baugh and Mr. Rogers present. He was a good employee for
the first two years. He never made over sixty dollars a week until he started
to work for us. And as soon as he got his belly full, he started doing every-
thing he could against us.
He went around with a notebook and a pencil in his hand trying to get
people to file complaints, and he was in our hair continuously.
His supervisor had had some trouble, not a great deal, but he had some, of
getting him to stick to the job because he was busy running around over the
mill looking for trouble.
Q. Yes9
A. And then-
Q. Yes, go ahead. Go ahead.
A. He got to be an officer of the union and he was worse. He got to be a
Vice-President. So luckily he decided he would run for President, and he got
defeated for President, and he did pretty good the last couple of months after he
got defeated.
1u Although the written grievances themselves and the letters disposing of them were
produced by the Respondent and are in evidence as Respondent's Exhibits Nos. 18 to 27,
inclusive, there are no letters indicating a formal disposition of Shafer's grievance
11 Actually, Cowart had reported for work on May 11, and had failed to report for work
on May 12 only because his wife was ill and he had had to take her to a doctor
18 In an interview which Harding had with Brown and Menius shortly after the filing of
his grievance but before his scheduled grievance meeting, Harding asked Brown: "How
many doors have I knocked on, and who says that I knocked on them. Was it fifteen, half
a dozen. or one?" Menius interposed to reply: "One door would be too many," where-
upon Harding said: "Touche !" Harding testified that while be had not knocked on any
doors, he had visited the homes of various employees and talked to them.
EAST TEXAS PULP AND PAPER COMPANY 435
Brown had an even worse opinion of Cowart , apparently . He testified that he
told Cowart to his face in the interview that he had with him on May 14 that he was
"one of the sorriest employees we ever had ." Asked on direct examination if he was
personally familiar with Cowart's work record , he replied : "I sure was ," and he went
on to explain : "Well, he worked for me at one time when I was in the pulp mill,
and I had trouble with him many times in the pulp mill . He was an alcoholic. He
wouldn 't report for work . And we put up with him and put up with him and put
up with him , and later we gave him reprimands in lieu of discharge ." Again
Brown disclosed with reference to Cowart : "He is a sorry worker , he was there half
of the time . He is out laying around drunk most of the time . He doesn't get along
with his fellow employees . He won't do what he is told . And anything else you
want to think of about this man." [Emphasis supplied.] It is evident that Brown
was seeking to create the impression not only that Cowart had been a sorry worker
and a drunk in the past but also that there had been no improvement in his conduct
either as a man or as employee.
C. The attempts to secure the withdrawal of the grievances
Brown's attitude toward the discharged employees who had refused to cross the
picket line hardened after all but one of them had filed grievances . Naturally this
is best exemplified by the difference in his attitude toward Stutts , who had not filed
any grievance , and Cowart , who had filed a grievance . Although both had been
alcoholics , Brown was willing to recommend Stutts for other employment but had
no further use for Cowart . In the end, Brown did not confine the manifestations
of his displeasure to declining to recommend employees who had filed grievances
but also declared to several employees when opportunity offered that he would
refuse to give them any recommendation for other employment as long as they had
grievances pending against him. He made such declarations to Wilkerson , Sheffield,
Shafer, and Harding.
After filing his grievance on May 15, Wilkerson had left for Denver , Colorado,
to take a job there. After his grievance had been denied by Brown , Wilkerson was
informed by the Union that if he wished to carry his grievance through Buckley,
he would have to return by July 6. Wilkerson , who seems to have an acute sense
of grievance , and a burning desire "to clear his name," as he expressed it, and
who was also fearful that his discharge might affect the opportunities of his two
sisters and a brother for employment at the East Texas plant , returned to Beaumont
about a week before July 6 and asked Rogers, the president of Local 801, to arrange
a preliminary meeting between himself and Brown , apparently so that he could
appeal to the latter to give him his job back . It was at this meeting in Brown's
office, at which Menius and Rogers were also present , that Brown , after denying
Wilkerson 's plea for reinstatement , told him that he had given recommendations
for employment elsewhere to Shafer and Reeves after they had dropped their griev-
ances, and that he would give Wilkerson a recommendation if he dropped his griev-
ance, which Brown compared to a knife in his back . As Wilkerson put it: "Well,
he said being as I had that grievance against them that was just like holding a knife
in his back , and he couldn 't afford to give me a recommendation for another job."
Subsequently, Wilkerson's grievance was denied by Buckley. The Union wished to
take Wilkerson 's grievance to arbitration but it failed to act within the 15 days
allowed by the contract , and Buckley refused to waive its failure to act in time.
Having previously been encouraged by Brown, Sheffield, who was planning to
go to Georgia to seek work , telephoned Brown in July and arranged to visit him
at his home, which he did that evening. In the ensuing conversation , Brown now
told Sheffield that since he had a grievance against him he certainly would not think
it would be "too smart" to recommend Sheffield , and he would not do so as long
as Sheffield had a grievance against him. To this Sheffield replied as follows:
I told him I felt like that I had a grievance or I wouldn't have filed it, and
he told me, he told me we couldn't win, he said there wasn't no way we could
win. He said that they just wasn't going to lose, and I told him, I said, "Well,
I don't know, Mr. Brown ," I said, "I guess we have to wait and see."
On May 21, which was a week after he had filed his grievance but before it had
been heard by Brown, Shafer went to Brown's office and told the latter that he
intended to apply,for employment at the Robertson Transport Company located close
to the East Texas plant, and asked Brown to help him get a job there. Brown told
Shafer to see a Mr. Green at Robertson Transport, and that he would tell Green
that Shafer was a good man who had made a mistake but learned his lesson and
717-6 72-64-voI 143-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"would make somebody a good hand ." Thus encouraged , Shafer went immediately
from Brown 's office to see Green , who told him that, although he had a stack of
job applications , he would hire him as a truckdriver since Brown had sent him.
Green had Shafer fill out a dependents form , and asked him to get a license to drive
a truck, for which license Shafer made application the following day, May 22.
Shafer paid $6 for the license . The day after obtaining the license Shafer reported
to Green but was told by the latter that he did not need him . Shafer did not ask
Green why because he felt that he knew why Green no longer needed him. Shafer
went back to see Brown and told him what had happened , whereupon Brown told
Shafer that he could not help the latter get a job while he was stabbing him in the
back with a grievance . Shafer then declared to Brown that since he had to have
work somewhere , he would drop his grievance-indeed he offered then and there
to tear up his grievance and drop it in Brown 's wastepaper basket-and Brown
thereupon told Shafer that he would try to get him a job at a powerplant at Snow-
flake, Arizona , where an old friend of his was the superintendent . Brown also told
Shafer that he would consider reemploying him at East Texas after a year or so
had elapsed . Shafer obtained a job at Snowflake and worked there about 2 months
before returning to Silsbee , Texas, in the latter part of July.
Like Wilkerson and Shafer, Harding had a meeting with Brown prior to his
grievance hearing. This meeting was set up by Rogers at Harding 's request, and
Menius was present at the meeting , which occurred a few days after the filing of
Harding's grievance . At the meeting Harding confessed that he had made a mistake
in not crossing the picket line, and told Brown that he would like to get his job back.
Brown replied , however, that 2 or 3 days' punishment was not enough for what
Harding had done, but repeated the suggestion that Harding might reapply after
the East Texas plant expansion had been completed . Brown also wrote down on
a piece of paper the name of a mill where Harding might apply for employment.
Sometime after this meeting but before the hearing of his grievance , which occurred
on or before July 10, Harding applied for employment at an insurance company,
and gave the name of Brown as his reference . Harding did not secure employment
with the insurance company, and he testified that the reason given to him there
was that East Texas had given him a bad recommendation . This matter was aired
subsequently at Harding 's grievance meeting but Brown denied that he was respon-
sible for the bad recommendation . At this grievance meeting, Brown was rather
vehement in turning down Harding 's grievance . "He told me," Harding testified,
referring to Brown, "that I didn 't have any grievance . That I had broken the con-
tract . That I had filed applications for reemployment . That he had studied my
references . He says my references weren't any damn good, that I wasn't any
damn good , and he knew because he was my reference ." Thereupon Harding asked
Brown whether he "was blackballed at the Company ," and Harding testified that
Brown replied that "no, that I wasn't blackballed at the Company . There's nobody
had asked him or Mr. Menius for a reference on me. He said but he would be a
damn fool to give a man a reference that was holding an ax over his head, and I
better get me a job damn quick before-or he would blackball me out of the
industry as long as I was holding a grievance ." Asked further whether Brown had
said anything "about the cost to the Company," Harding replied : "Yes, sir, he said
there was-he told me that he would blackball me as long as I had a grievance cost-
ing the Company time and money , yes." Right after the grievance hearing, Hard-
ing repaired , with several of the union officers or shop stewards who included Rogers
and Lowe, to a cafe in Evadale, where , over coffee , they discussed the advisability
of dropping Harding's grievance . Harding did most of the talking, and told the
others that East Texas "had him between a rock and a hard place," since he could
not go to work for a big company without revealing where he had last worked.
The union officers told Harding that it was up to him to decide whether to drop
his grievance , and Harding told Rogers to drop his grievance , which was done the
following Friday.
That Brown's efforts to induce various of the aggrieved employees to withdraw
their grievances were not disapproved by the Respondent 's highest official is estab-
lished by the testimony of Moore, who, after Brown had rejected his grievance, had
a hearing before Buckley. After considerable discussion of the accusations against
Moore because of his picket line activity , in the course of which Moore admitted
that he had been confused in denying his presence on the picket line on May 12,
Buckley told Moore that he could not win his grievance before a jury, and advised
him to drop the matter if he ever "wanted to work for East Texas or any other big
company." Thereupon Ruddick , one of the union representatives present, asked
Buckley "what his answer would be" to Moore, and Buckley declared that he would
give it to him in writing . After the hearing Moore was advised by several people
EAST TEXAS PULP AND PAPER COMPANY 437
working at the mill to drop his grievance, and did so, because of his fear that if
he could not get a recommendation from East Texas, he would be unable to find
work elsewhere, especially in the papermill industry.
D. Brown's attempts to secure withdrawal of the earlier charges
The original charge, which was signed by Baugh, grew out of a meeting at his
home, which took place about 2 weeks before the charge was filed. All the em-
ployees named in the original charge-Baugh, Sheffield, the two Dickersons, and.
Harding-were present at this meeting. Reeves was also present but, apparently„
Baugh overlooked him in preparing the original charge, and it is possible that Moore.
may also have been present. Baugh, either prior to this meeting, or subsequent
thereto, had also secured the consent, either directly or indirectly, of Wilkerson,
Shafer, Moore, Stutts, and Reeves to the inclusion of their names in a charge against
the Respondent. Baugh did not, however, have the consent of Cowart to the in-
clusion of his name.
Brown became aware, of course, of the filing of the original and first amended
charge, both of which alleged that the Respondent had discriminated against the em-
ployees named in the charges in violation of the Act. When the original charge
was received by the Respondent, Brown asked Menius to discuss the charge with
the Respondent's counsel, although Brown testified he was "not too concerned about
it." Both Menius and Brown testified concerning what advice they had received
but it was Menius who discussed the problem with the Respondent's counsel, and
reported to Brown what the latter had said. Apparently, the Respondent's counsel
told Menius that the charge appeared to be "completely unfounded," and that there
was nothing to worry about. Menius relayed this to Biown, who, according to
Menius, thereupon said that, in view of what the latter had been told, "he was not
particularly concerned about it." Menius' testimony concerning Brown's reaction
does not quite square with Brown's own testimony, which was, in substance, that,
despite what Menius told him, he was worried. Thus, Brown testified: "I am not
sure that he was telling the truth because I have been worried but he told me that
you said we had nothing to worry about."
The testimony of Menius and Brown is also not in total agreement as to what
happened after the first amended charge was received by them. According to
Menius, Brown was utterly amazed at the inclusion in the charge of the names of
two or three of the employees who, he believed, had not authorized their names
to be used, and he had therefore asked him (Menius) to contact the Respondent's
counsel again in order to ascertain whether there would be anything wrong in con-
tacting the men to determine whether they were aware that their names were in
the charge. According to Menius, the Respondent's counsel told him, and he
reported to Brown that, while it did not appear to make any difference, there was
nothing illegal in making the contact. In his testimony, Menius did not identify
the employees whom Brown had in mind but Brown not only did so but explained
why he thought they had not authorized the charge. Brown explained that he
thought that Reeves would not file a charge because he had gone "to quite a bit of
trouble and expense in getting him a job" in Brunswick, Georgia, and that Shafer
would not authorize the charge because he had been sincere in talking to him, and
had even asked his help in getting him a job when he returned from Snowflake,
Arizona. As for Harding, whose name had been in the original charge, Brown
"just figured" he did not authorize it but did not really explain why. However,
Brown's testimony does not quite agree with that of Menius either with respect to
what he wanted Menius to ask the Respondent's counsel, or with respect to what the
Respondent's counsel told Menius. According to Brown, he asked Menius to talk
to the Respondent's counsel to ascertain whether it was permissible for someone
else to put the names of Reeves, Shafer, and Harding on the charge, and Menius
then reported to him that Respondent's counsel had told him that anyone had a right
to put their names on the charge but that "if they did not want their names on there
it would probably be a good idea for them to write in to the Board and tell them
that they did not authorize it." [Emphasis supplied.]
Having determined to contact Shafer and Harding, Brown took steps to locate
them. Shafer had quit his job at Snowflake, Arizona, and returned to Silsbee in the
latter part of July. He had then visited Brown at his home, and asked him to re-
employ him at the East Texas plant but Brown had refused to do so, telling Shafer
that not enough time had yet elapsed. Brown had suggested that Shafer might be
able to secure employment at the Brown & Root Construction if he were willing
to cross the picket line there but, despite the fact that Shafer had declared himself
willing to cross "a peaceable picket line," he had been unable to secure employ-
ment there. Shafer had then obtained a job as a burner with Southern Iron in
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Port Arthur, where D. L. White, one of Brown's foremen, who had been told by
Wayne Robinson that Brown was looking for Shafer, contacted the latter the night
of August 22. White roused Shafer from bed and informed the latter that Brown
wanted Shafer to call him . Consequently , at 8 a.m the next morning Shafer tele-
phoned Brown from Port Arthur and, in this telephone conversation, Brown told
Shafer that he had a NLRB "petition" with his name on it, and that he wanted to
know whether Shafer had signed or put his name on the "petition ." 13 Shafer re-
plied that , while he had not directly authorized his name to be put on the "petition,"
he may have led someone to believe that he had done so . Brown then told Shafer
that he did not believe him to be the kind of a man who would sign his name to a
"petition" like that . Shafer, who was telephoning Brown on his job, declared that
he had to get back to work, and Brown suggested that he called him again in about
a week. However , the following evening, Wayne Robinson came to Shafer 's house
and asked the latter whether he was interested in dropping his name from the
"petition ." Shafer told Robinson that he was interested in doing so , but that he
did not know exactly how to go about it. Robinson then suggested that Shafer go
to see Brown at 7 o'clock that night at his home. Shafer did so, and the preliminary
conversation between them was pretty much along the same line as in the prior
telephone conversation, except that Brown confided to Shafer that the Company's
attorney had told them that "they" could contact any of the men included "in
that group that they wanted to salvage," and that he was approaching Shafer since
Ilse had dropped his grievance . Brown then declared that if Shafer took his name
bff the petition, he would give him "a kiln job or better" but that he would have
to wait "until all this blowed over ," and if what he was telling Shafer "went any
further," he would say that "it was a damn lie." Brown also explained that Shafer
would have to wait before being reemployed because he had not been punished
enough for the wrong he had done, and declared to Shafer that if any of the em-
ployees were reinstated as the result of NLRB proceedings, the Company would go
on firing them , no matter what it would cost, since such expenditures could be
deducted from the income tax, and that the employees so reinstated would be "dead
ducks ," since "big companies work together ." Shafer intimated that he would not
want to work for the Company under such conditions but agreed nevertheless to
drop his name from the petition. Brown thereupon wrote down on a white piece
of paper the name and official address of Robert S. Breaux , the field examiner of
the Board in the Regional Office at Houston , Texas, and on another piece of paper
wrote down what Shafer could say in his letter, which was as follows:
My name was used in the case without my knowledge or permission.
I do not agree with the charges against the co . I have no complaint against
the co.
I want my name dropped from the petition against the co.
Shafer agreed to the proposed language except insofar as it implied that he had not
authorized anyone to put his name on the "petition," and told Brown that he would
write a letter but that he "didn't want to get anybody in trouble," whereupon Brown
told Shafer that their attorney had assured him that the letter would not be publicized.
Brown diminished the force of this assurance, however, by adding: "Well, you know
how attorneys are, they will tell you one thing and do something else." The busi-
ness phase of the meeting between Brown and Shafer being over, Brown proceeded
to express his feelings about Ike Baugh, and to read Shafer a lecture on the impor-
tance of cooperating with his Union. Brown confided to Shafer that Ike Baugh
had been begging him for a job but he declared to Shafer: "I wouldn't hire that
communist son of a bitch under no circumstances ... Ike Baugh is nothing but an
agitator ." Moreover , Brown proceeded to declare that there would be no other
union in the East Texas plant than the Pulp and Sulphite Union, and, that if an-
other union attempted to come in he would hire strikebreakers, as had been done
in the case of another company in Elizabeth , Louisiana.
Before parting from Shafer, Brown asked him how he could get hold of Harding,
and Shafer told Brown that Harding was "somewhere around Kirbyville " Again
Brown instructed Wayne Robinson to get in touch with Harding. The two men
met in front of the City Cafe in Kirbyville, and had coffee there. They talked
first about how "things were going at the mill," and Robinson told Harding- "They
are doing pretty good now but after we lost you and Shafer they were in a heck
of a mess but we worked it out and now the mud is as white as Santa Claus'
beard " 14 This led Harding to remark: "Old Shafer was the best kiln operator
lA Brown regularly referred to the charges as "petitions "
14 Robinson was referring to the lime mud in the caustic room where it was burned in
the kiln, and, apparently, as a result turned white
EAST TEXAS PULP AND PAPER COMPANY 439
East Texas ever had." Robinson expressed his agreement with this opinion, and
then proceeded to the accomplishment of his mission. Robinson asked Harding:
"Did you drop your grievance?" Harding replied: "Yes, sir, I did." Robinson
asked further: "Did you drop it with the NLRB? Did you write them a letter?"
Harding replied: "No, sir, I didn't," and Robinson then inquired whether he in-
tended to drop it, whereupon Harding declared that "when I dropped my grievance
at Ray Brown's level that I figured I dropped everything, I mean, I quit." Robinson
then went on to explain to Harding that to drop his name from the NLRB "peti-
tion" he would have to write a letter. Harding asked for the NLRB address, and
Robinson told Harding he would have to get it from Brown and call him. Robinson
made the telephone call about 4:30 in the afternoon of that same day but suggested
that Harding come to Brown's house at 7 p.m. that night to discuss the matter.
Harding appeared, therefore, at Brown's home at the appointed time. After some
preliminary conversation, Harding came to the point of the meeting by remarking
to Brown: "Mr. Brown, Mr. Robinson said there was some matter that I had, things
I had to do to clear you," but Brown replied to this presumptuous suggestion:
"Not to clear me, but to clear you." [Emphasis supplied.] The conversation up
to this point had occurred at the side of Brown's house but the latter now
took Harding into the house and introduced him to his wife. After she had
left, Brown remarked to Harding: "Off the record, Wayne Robinson asked
me last week why that I couldn't-we couldn't rehire you and Shafer, and I told
him that I couldn't even consider it at this time while these grievances were going on.
The other people would think I was going soft and that I was going to give them all
their jobs back." Brown then asked Harding whether he would write a letter to
the NLRB, and whether he had authorized Ike Baugh to sign his name to the charge.
Harding had to confess in all fairness to Ike Baugh that he had been present at the
latter's home when the "petition" was discussed, and that he had not told Baugh not
to put his name on it. This led Brown to declare in general terms that Ike Baugh
had signed all the names to the petition without any authority whatsoever, and that
when "one boy" discovered that his name was on the "petition," he threatened "to
kill the s o.b. [referring to Ike Baugh]." Brown for some reason that is not clear,
unless it was the mention of this "boy," went on to tell Harding a story about the
proprietor of a small grocery store in Evadale who had a son working at the East
Texas plant, and whom the Building Trades Council had threatened to run out
of business if his son crossed the picket line. Brown explained that he had met
this threat by encouraging the East Texas employees to trade at this grocery store,
with the result that its proprietor was in better shape than ever. Brown also told
Harding about a boy for whom he had obtained a job but whose name was, neverthe-
less, on the "petition." Brown confided to Harding that he had called this boy's
employer and told him about it, and his employer had asked Brown, "Do you want
me to fire that man?" but Brown had replied in the negative. As in the case of
Shafer, Brown also told Harding in the course of his conversation with him, that
he would keep on firing any employees who might be reinstated as a result of Board
proceedings.
In one respect at least Brown was better prepared for his interview with Harding
than with Shafer. He had had the name and address of the field examiner in the
Regional Office typed on a 3- by 5-inches white index card, and in the course of
his interview with Harding he had handed it to the latter. Immediately after leav-
ing Brown's house, Harding went to see Shafer, and took the white index card
along with him. Shafer and Harding compared notes on their respective interviews
with Brown, and Shafer showed Harding a letter which he had had his wife write
on August 26 and in which he had requested that his name be removed from the
"petition" against East Texas, since he had no complaint against the Company.
However, Shafer had not yet actually mailed the letter, and he was, therefore, able
to show it to Harding, who, on the reverse side of the white index card which
Brown had given him prepared a rough draft of his own to be sent to the field ex-
aminer in the Regional Office 15 After Harding left, Shafer mailed his letter to
the Regional Office where it was received on August 31. Harding delayed mailing
his letter to the Regional Office for a day or two, and, although it is dated August 30,
it was not actually received in the Regional Office until September 3.
15 Shafer's wife had actually written and addressed the letter in green ink, and when
Harding wrote his draft on the reverse side of the index card, he used, apparently, the
same green ink.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Credibility resolutions
In recounting the words and deeds of the Respondent's executives, I have rejected
their testimony to the extent that it is inconsistent with the testimony of the other
witnesses . There are numerous reasons for doing so, quite apart from demeanor.
(1) Even assuming that all the witnesses were testifying with equal veracity and
in accordance with their best recollections, the testimony of those witnesses who were
present at a great many of the interviews or meetings would tend to be less reliable
than the testimony of those witnesses who attended only a few. The discharged
employees had only two or three meetings with either Brown or Buckley or both.
Rogers, the president of the Union, who testified as a witness for the Respondent
attended a considerable number of the grievance meetings 16 but they were few in
comparison with the meetings attended by Menius and Brown. John Lowe, one
of the shop stewards, who was also a member of the grievance committee, attended
only six of the grievance meetings .17 The recollections of Rogers and Lowe were,
thus, less likely to be fallible than those of Menius and Brown. The latter were
present at so many meetings and interviews that it is difficult to understand how
without notes (which they did not have when testifying) they could remember
what was said at any particular meeting. They had meetings or interviews not
only with the employees who are listed in the complaint but with a considerable
number of others. Menius estimated the number of grievance meetings attended
by him at 25 or 30, and added: "Those days were filled with meetings and some of
them were grievance meetings and some of them were, of course, other meetings."
He conceded also that "there were so many of them it's difficult to recall sometimes
whether something was said at one level or at the other." Brown also made it
plain that he was bewildered by the great number of meetings he had attended, and
he sometimes confessed that he could not be sure whether he had said something
at one meeting rather than another. He, too, exclaimed at one point in his testi-
mony: "I had so many meetings , I can't recall everything that was said." This
was indeed an understatement, for he sometimes could not recall what actually
was said, and he sometimes confused discussions that must have taken place at
grievance meetings with discussions at May 14 meetings. The latter were generally
very brief; and the remarks exchanged between Brown and the employees could
hardly be said to be very extensive. In addition, it is probable also that an individ-
ual employee, whose employment depended on what Brown or Menius or Buckley
told him, would be more likely to remember what was said to him alone than that
the Respondent's executives, who had to talk to a great many employees, and whose
own security was not at stake, would remember what they said to an individual
employee.
(2) In addition to manifesting defects of memory, Brown undermined his credi-
bility by the wholly improbable nature of some of his testimony, by some of the
contradictions and explanations which he indulged or offered, and by the character
which he displayed in his dealings with some of the discharged employees.
The best illustration of Brown's unreliability as a witness is his testimony with
respect to Cowart. Brown's picture of Cowart was completely shattered on cross-
examination. With mounting embarrassment, he was forced to admissions that
plainly indicate that Cowart was actually a desirable employee. In fact, Cowart
had received no less than 14 suggestion awards; in November 1960, he had become
the recipient of a letter from Buckley, the Respondent's president, congratulating him
on his "record of achievement" during his past 5 years of service with the Company;
and, as late as October 1961, he had been the leadoff subject in a column of per-
sonals in the company monthly magazine, "The Eastexan." Moreover, Brown was
forced to admit that he knew that Cowart had joined Alcoholics Anonymous, and,
although he would not admit that Cowart's attendance record over the past 31
years had been as good as that of any emnloyee, he did grudgingly concede that
"he has been on the job good recently." The record does not make clear precisely
what the basis was of Brown's animus toward Cowart about whom he was, appar-
ently, more reticent than about Baugh. It is ironic, moreover, that Brown should
have had so little use for Cowart, although he had actually crossed the picket line
on the first day of the work stoppage, and failed to report on the second day for
a reason that had no connection with the existence of the picket line and although
16 Rogers testified specifically , however, only with respect to the meetings at which
Moore, Harding , and Wilkerson were present. Speaking of the grievance meetings in gen-
eral , Rogers, at one point in his testimony , exclaimed * "There were so many of them "
17 Lowe attended the meetings only of Baugh , Emile Lucille Dickerson , Sheffield, Hard-
ing, Cowart , and Moore
EAST TEXAS PULP AND PAPER COMPANY 441
he was the only one of the employees mentioned in the complaint who did not par-
ticipate in the filing of the charges against the Respondent.
In my judgment , Brown also undermined his credibility by stubbornly refusing
to admit that when he interviewed the discharged employees on May 14, he told
any of them that he might consider them for reemployment when the expansion
of the plant facilities was completed . He did admit that he made such a statement
to three of them-Harding , Shafer, and Sheffield-but he contended that this oc-
curred on other occasions and under different circumstances . However, in insisting
that he never made such statements to any of the others he was not only denying
the testimony of a small cloud of witnesses but he was also denying testimony that
was inherently credible. Most of the employees whom he was discharging were
old employees , having had 4, 5, and even 6 years of service at the East Texas plant,
any many of them had worked under him personally . While he suspected some of
them of improper picket line activity , none of them had yet filed grievance against
him and , even judging by his own testimony , the interviews were not unfriendly.
Surely, the slightest degree of humanity would suggest that he hold out a hope,
however vague, that the employees being interviewed might be reconsidered for
reemployment a year or two later when the new plant facilities had been completed.
Moreover , by holding out this hope he was not really committing himself to re-
employing any of them . He was not promising to reemploy them but only to
consider them for reemployment in the future . When the simple logic of this
situation was put to him during cross-examination , and he was asked to explain why
he would not tell the discharged employees whom he was interviewing on May 14
that they might be reconsidered for reemployment, he could only exclaim petulantly:
"Because I knew they would not be because I had too much trouble from them in
the last few years. I was too glad to get rid of them." But, in offering this explana-
tion, he only contradicted the testimony which he himself had already given about
these very same employees. He had already testified that he told Emlie Lucille
Dickerson that "frankly, I think you are a pretty good worker, I have no complaints
on your work. I have complaints on what you did on the picket line .... He
had already also testified that when Moore asked him for a recommendation, he
told the latter: "I will tell them that you are a good cutter operator, if you will
learn to cooperate with your company and your union;" and that when Wilkerson
pleaded that he wanted to clear his name he had told the latter: "Well , I don't know
that there is anything so bad against your name." Moreover , in the formal letters
rejecting the grievances of the employees who had filed them , he had mentioned only
the poor work record of Cowart as a reason for not rehiring him.
(3) On the question whether Brown attempted to secure withdrawal of the
grievances of some of the employees , Rogers , who appeared as the Respondent's
first witness , supported the testimony of Harding and Wilkerson by testifying that
he had heard Brown at meetings with these employees tell each of them that he
could not recommend him as long as his grievance was pending Rogers also
supported the testimony of Shafer by testifying that Shafer called him on his way
to Snowflake and, after explaining that Brown had told him that he would not
recommend him unless he dropped his grievance , asked him (Rogers ) to drop his
grievance so that be could get a recommendation for a job. Menius, who followed
Rogers to the stand , when questioned concerning the statements made by Brown
to Wilkerson and Harding on the subject of dropping their grievances, behaved in
a rather puzzling , if not incomprehensible , manner. In relation to Wilkerson, he
finally answered the question by stating : "I don 't recall anything about that." But
a moment later , when asked the same question in which was now included the
comparison of the grievance to a knife in Brown 's back, he declared flatly- "This
wasn't said ." In relation to Harding , he followed virtually the same procedure
in reverse a few minutes later; be first answered "No," and then : "No, he didn't,
not that I recall ." Thus, Menius contradicted both himself and the Respondent's
previous witness, Rogers, whose testimony had presumably been given in his pres-
ence.18 It is no wonder then, that when Brown finally took the stand the following
day, be abandoned Menius altogether. Brown admitted that be had told Sheffield
that he could not recommend him as long as he had a grievance against the Company,
and that he had indeed made the same statement to several of the employees. But,
having made this confession , Brown proceeded to enter a plea in avoidance based
upon the contention that he had also explained to the employees that the reason
why he could not give them a recommendation while they had grievances pending
against him was that the recommendations might be used against him if the griev-
IsAlthough Menius was at the hearing every day, I have no way of knowing at what
times he may have been absent temporarily from the hearing room.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ances were taken to arbitration. But, it is denied by all the employees to whom
he declined to give recommendations because they had grievances pending that
Brown gave any such explanation, and I credit their denial. It is true that Rogers,
whose testimony I credit in general, did testify that Brown stated at one of the
grievance meetings that if he recommended the employee "he could come back and
use it against him in arbitration" but he could not remember at whose grievance
meeting Brown made this statement. Thus even if Rogers' recollection of this in-
cident is correct, which I am inclined to doubt, Rogers' testimony does not establish
that the possibility of arbitration was mentioned to Wilkerson, Sheffield, Shafer, or
Harding. In any event, it seems to me rather unlikely that Brown would have
vouchsafed any further explanation to the aggrieved employees; the pending griev-
ances were the obvious explanation, and I find it hard to believe that Brown would
also have revealed the motive behind the explanation, or given, in effect, a double
explanation. If Brown were thinking in strategic terms, he would be more likely
to reveal his thought in a more direct and vivid manner. Indeed, Sheffield's testi-
mony that Brown told him that it would not be "too smart" for him to recommend
his as long as he had a grievance against him indicates the furtherest that Brown
would probably have gone in revealing the state of his mind. The mention of the
possibility of arbitration seems, moreover, one of those legalistic afterthoughts wholly
alien to Brown's ordinary modes of thought. He made it pretty plain at the hearing
that he both distrusted lawyers and had little, if any, understanding of legal prob-
lems. The similes employed by him in relation to the grievances-his comparison
of them to a knife in his back or an ax over his head-indicate pretty clearly that
he thought of the grievances as personal attacks upon himself.ie
(4) As for Moore's testimony that Buckley advised him to drop his grievance
if he ever wanted to work for East Texas or any other big company, it stands wholly
unrefuted, since Buckley himself was not called as a witness by the Respondent,
and there appears to be no good reason for discrediting Moore. To be sure, both
Menius and Brown, who were both present at the grievance meeting with Buckley,
denied that the president of the Respondent made the remark attributed to him but
denial by proxy can be accepted only when the proxies are themselves credible
witnesses. Counsel for the Respondent argues, to he sure, that both Rogers and
Lowe support Menius and Brown in their denials that Buckley warned Moore to
drop his grievance but this argument rests upon a wholly inadequate basis. Rogers
did not give the positive testimony attributed to him when he was asked whether
Buckley had told Moore that he could not win his grievance before a jury and
advised Moore to drop it. Rogers' reply was, "I don't remember whether he said
that or not I don't remember that being said." This hardly adds up to a clear
and positive denial. As for Lowe, his testimony with respect to Buckley's meeting
with Moore was as follows:
Q. Did you attend Mr. Buckley's meeting with Mr. Moore?
A. Yes, I did.
Q. At that meeting did Mr. Buckley threaten Mr. Moore in any way?
A. I do not recall him threatening him. [Emphasis supplied.]
It is apparent that Lowe's testimony is also not very positive or clear and its
effect is weakened, moreover, by the vagueness of the term "threat" in relation to
the subject matter of the question. Counsel for the Respondent chose not to define
what he meant by a threat in the context of his question.
(5) The record in this case is full of talk about blackballing and the threat of
blackballing is implicit in the refusal to recommend employees as long as they
were processing grievances. Brown told both Shafer and Harding that he was not
10 Counsel for the General Counsel argues that Brown's fear of arbitration was in fact
wholly unfounded because the third paragraph of section 10 of the Respondent's labor
contract in fact gave him carte blanche to discharge employees who had engaged in a
strike. I do not accept this argument because it overlooks the last sentence of this provi-
sion which barred discrimination in applying discipline for strike action, which was the
real basis of the grievances. The Respondent had good reason to be concerned about the
effect of this provision abut I doubt that Brown personally understood its significance. Of
course, the thought may possibly have crossed Brown's mind that favorable recommenda-
tions for employment might embarrass him if the grievances went to arbitration But he
would have been very foolish to have given utterance to such thoughts, for they would
hardly have reflected a very high ethical standard. Brown would in effect be saying that
he could not afford to tell the truth about an employee if it was against his interests. If
so, he could well have resolved not to tell the truth as a witness for the same reason.
EAST TEXAS PULP AND PAPER COMPANY 443
blackballing them or anybody else . But these were empty declarations , for the
evidence indicates that he actually did blackball Shafer and Harding.
The blackballing of Shafer was particularly reprehensible , since it occurred after
Brown had , seemingly , agreed to help Shafer to obtain employment . There is no
good reason to doubt the testimony of Shafer that when he went back to Brown after
being rejected by Green , Brown told him that he could not help him get a job
while he was stabbing him in the back with a grievance . This amounted to a
confession on Brown 's part that he had blackballed Shafer. The most damaging
witness against Brown was none other than Shafer , who was indeed the General
Counsel 's star witness, for the testimony of Shafer , so far as the blackballing is
concerned , does not rest merely upon his unsupported word. Shafer actually pro-
duced the application which he had made for a license to drive a truck , and for
which he had paid $6. It would take strong evidence , which the Respondent did
not produce , to rebut the presumption that Shafer , who was unemployed , and who
was desperately looking for a job, would not pay out $6 to get a license if he had not
been hired by Green.
Despite the denials of Brown and Menius , I am also convinced that Brown black-
balled Harding with the insurance company. Although Harding's testimony that
Brown declared to him at the grievance meeting that he would blackball him out of
the industry as long as he held a grievance against him followed Harding 's rejection
by the insurance company, it is nevertheless significant in indicating what Brown's
intentions towards Harding were . It is no less significant that Brown declared to
Harding at the grievance meeting that he was Harding's reference. This is con-
sistent only with the assumption that Brown would have to be consulted about any
employment for Harding . Moreover , this is not merely a logical deduction. Hard-
ing testified that when his rejection by the insurance company was being discussed,
Brown had told him that "all requests for references were being referred to him."
Furthermore , the inference that Brown blackballed Harding does not rest merely
upon the unsupported testimony of Harding himself. It is buttressed also by one
of the Respondent 's own witnesses , Rogers, who testified that when the blackballing
of Harding at the insurance company was discussed at the grievance meetings,
Menius commented: "If they contact for reference, they have to contact myself or
Mr. Brown," and he says "We have no record of it." But Menius would hardly
have made a record of the blackballing of an ex-employee.
(6) Having obtained the advice of counsel , having sought out Shafer and Hard-
ing through others, having invited them to his home in order to get their names
withdrawn from the charges, having drafted in his own handwriting the very letter
of withdrawal, Brown did not deny, of course, any of these acts or efforts. However,
he did attempt to represent his enterprise as praiseworthy, and he did attempt to deny
everything of an incriminating nature that passed between him and Shafer, or be-
tween him and Harding in his separate interviews with each of them. I must reject
these explanations or denials.
Brown attempted to create the impression that in approaching Shafer and Harding
his aim was only to straighten out the record. What exactly he meant by this, he
never made clear himself. If he meant by this that he was not at all concerned
about the filing of the charges-as Menius understood him to say-he certainly went
to a great deal of trouble for nothing. Brown was, of course, concerned about the
charges, as any employer would be, even if the charges were unfounded, but this is
not to say that he also did not have personal reasons for seeking the withdrawal
of the charges. He considered that he had tried to help Shafer and Harding but, now,
they were showing, apparently, base ingratitude by joining in the filing of charges
against him. He still seemed to think so even though he had been advised by counsel
that anyone could file a charge, and put anyone's name on it. Either he did not
understand this legal point, or it made no difference to him He simply had to
assure himself that those to whom he had extended a helping hand had actually
nothing to do with the charges 20 If they had participated in this step, he was
resolved that it would be so much the worse for them. This is really what Brown
meant by straightening out the record. I deduce this from Shafer's testimony con-
cerning the advice Brown had received that he could legitimately engage in a
salvage operation and from the rebuke administered to Harding by Brown when the
former suggested clearing him.
Counsel for the Respondent relies, apparently, on Brown's denials of all the
incriminating statements attributed to him by either Shafer or Harding in the inter-
20 Actually, Brown had also made a half-hearted attempt to contact Reeves whom he had
helped to get a jab but Reeves was , apparently , too far away-in Brunswick , Georgia-and
the attempt was abandoned.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
views in which he asked them to withdraw from the charges against the Respondent.
I do not, however, credit these denials. The most incredible of Brown's denials was
that he had not confided to Shafer that Ike Baugh had begged him for his job
but that he would not rehire the "Communist s.o.b." Considering the state of
Brown's feelings about Baugh, he would hardly say anything very flattering about
him, and it would be almost unnatural if he did not give expression to his feelings
whenever the opportunity offered itself. The occasion for his interview with Shafer
was such that it was virtually inevitable that Baugh would be discussed, since Baugh
had been instrumental in getting the charges filed, and the charges were the subject
under discussion. Furthermore, sometime before making the denial in relation to
Baugh, Brown had himself testified that in his interview with Baugh on May 14
Baugh had begged him to give him his job back. There was thus an actual basis
for the confidence Finally, at least two of Brown's denials were not very firm and
entirely unqualified, as appears from the following testimony which he gave
Q. Did you talk to him [Shafer] at all about the Building Trades Union or
the fact that the Company was going to keep the Pulp, Sulphite Union in the
plant at that meeting?
A. I don't think I did because I had mentioned that we had a good union
and we got along pretty good, and we-they had good officers and we would
like to keep the union we had, and we couldn't live with the Metal Trades Union
on account of their strikes, but at this meeting, no, I didn't mention anything
like that.
Q. Did you say anything to Mr. Shafer at this meeting or did you say any-
thing to any employees about if another union was going to come in you would
hire strikebreakers and do just like they had in Elizabeth, Louisiana?
A. No, I did not . . .
Q. . . Let me ask you this, Mr. Brown, at this meeting you had with Mr.
Shafer in August did you say anything to him that the company attorney had
assured the company that his getting his name off the charge wouldn't be
publicized?
A. No, uh-uh, I never mentioned that, no.
Q. Did you talk to him anything about lawyers at all?
A. I certainly didn't, no.
Q. Well, I am very serious, did you say that you knew how attorneys were,
they would tell you one thing and do something else?
A. I could have said that, but I don't believe 1 did.
Q. All right, sir.
TRIAL EXAMINER: You mean you believe that?
The WITNESS: Yes, sir.
In addition to relying on Brown's denials, counsel for the Respondent appears
to argue that Shafer's testimony that Brown told him that if he took his name off
the "petition" he would give him a kiln job or better when "all this blowed over,"
and Harding's testimony that Brown told him that he had discussed the rehiring
of Shafer and himself the previous week but that he had told Robinson that he
could not even consider it "while these grievances were going on" is inherently in-
credible because such statements were not required by the logic of the situation.
The basis for this contention appears to be that as soon as Shafer and Harding were
contacted they at once expressed their willingness to drop the charges, and hence that
Brown had no reason for offering them any inducment. But, while the premise of
this argument seems to be correct, I cannot accept the conclusion that has been
drawn from it. It is true that both Shafer and Harding expressed willingness to
withdraw from the charges as soon as they were contacted, and neither of them
made it a condition of his withdrawal that he be restored to his job 21 As I under-
stand the testimony of Shafer and Brown, they did not even claim that they made
any such condition. Shafer's testimony is rather that Brown voluntarily told him
that he would be reemployed later, and Harding's is only that Brown told him about
his discussion with Robinson concerning the reemployment of Shafer and himself.
But there is nothing inherently improbable or incredible in their testimony. It is
a datum of common experience that men often do what they are not required to
do, and that rewards may be conferred upon persons who performed acts without
any expectation of reward. Even though Shafer and Harding had asked for no
rewards, Brown may well have felt that they deserved some consideration and told
ziHarding, indeed, so testified explicitly when he was asked: "At anytime during this
meeting with Mr Brown did you ask Mr Brown for your job back?" Harding's answer
was: "No, sir, I didn't."
EAST TEXAS PULP AND PAPER COMPANY 445
them so. There was, moreover, the danger that if no prospects were held out
to them, that they might change their minds, and renege on their promises to mail
the letters of withdrawal. It is possible also that Brown's conscience may have
bothered him a little. Shafer and Harding happened to be the two employees
whom Brown had blackballed into withdrawing their grievances. They were in a
special category of employees who now perhaps deserved to have their periods of
punishment shortened somewhat. I could well believe that Brown would not
promise to reemploy Baugh even if he agreed to drop the charges he had filed.
But I have no difficulty in believing that Brown would express a willingness to re-
employ Shafer and Harding especially since that willingness was not very immediate.
Incidentally, it is also significant that the Respondent never called Wayne Robinson
as a witness to deny that he and Brown had discussed the reemployment of Shafer
and Harding during the period Brown was attempting to get the charges withdrawn.
In summary, then, the evidence is, so far as its disputed aspects are concerned,
that Brown did tell the employees whom he interviewed on May 14 that they might
be reconsidered for employment when the plant expansion facilities were completed;
that either Brown or Buckley told various of the employees that they could not
expect recommendations as long as they persisted in processing their grievances
without explaining his fear of arbitration; that as a result Shafer, Harding, and
Moore actually withdrew their grievances; that Brown actually blackballed Shafer
and Harding when they were attempting to secure employment elsewhere; and
that Brown then induced Shafer and Harding to withdraw from the charges against
the Respondent, and volunteered the assurance that they would be reemployed at a
later date when he was no longer embarrassed by the pending grievances, and also
threatened to discharge again any former employee who might be reinstated as a
result of the filing of the charges.
F. Concluding findings
I am of the view that the declarations of Brown or Buckley to Wilkerson, Sheffield,
Shafer, Harding, and Moore that they could not expect recommendations for other
employment as long as they continued to process their grievances against the Re-
spondent were violative of Section 8 (a)( 1 ) of the Act. I assume that the Respond-
ent's management officials were privileged to give their honest opinions of their
former employees to other employers who might be interested in employing them, and
who made inquiry concerning them, and that they were equally privileged to refuse to
give any opinion concerning their former employees. But their privileges did
not extend to putting pressure on such former employees to withdraw pending
grievances if they desired to secure recommendations to other employment. These
grievances had been filed pursuant to a collective-bargaining agreement between
the Respondent and the union of which the aggrieved employees were members,22
and in filing and processing of the grievances they had the active support of the
union's officers. The employees were engaged, therefore, in a form of concerted
union activity which was protected against "interference," as well as against "re-
straint and coercion" as these terms are employed in Section 8(a)(1) of the Act.
The Respondent was interfering, moreover, in a form of concerted activity which is
recognized in Section 9(a) of the Act as so basic that it is preserved to individual
employees or groups of employees even when a recognized bargaining agent exists.
The Board has specifically held that even an individual employee who asserts a
claim under a collective-bargaining agreement is engaged in a form of concerted
activity, since such activity is "but an extension of the concerted activity giving rise
to the agreement," 23 and the employees in the present case who filed grievances were
also engaged in implementing the collective-bargaining agreement with their em-
ployer. If it is important that employees who are engaged in the concerted presenta-
tion of grievances be protected against discharge for such activities, as has been
repeatedly held,24 it is no less important that they be protected against threats
22 Sheffield and Shafer were, indeed, particularly prominent in the union, Sheffield being
a member of the grievance committee and Shafer being a shop steward at the time of his
discharge. In addition, Sheffield had also been recording secretary of Local 801 in 1958,
1959, and 1960
23 See Merlyn Bunney and Clarence Bunney, Partners, d/b/a Bunney Bros Construction
Company, 139 NLRB 1516
24 See, for Instance, N.L R B. v. Hymie Schwartz, d/b/a Lion Brand Manufacturing
Company, 146 F. 2d 773, 774 (C.A. 5) ; Salt River Valley Water Users' Association v.
N.L.R B , 206 F. 2d 325 , 328 (C.A. 9) ; N L.R.B. v. Smith Victory Corporation, 190 F. 2d
56. 57 (CA. 2).
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of denial of employment by any employers because they have filed grievances against
their discharge.
It is well settled that no actual interference with employees' rights need be shown
in order to establish a violation of Section 8(a)(1) of the Act. The test is simply
whether it can be reasonably said that the conduct of the employer tends to interfere
with the free exercise of the rights of the employees under the Act 25 However, in the
present case , the pressure put upon the employees to withdraw their grievances was
successful in the cases of Shafer, Harding, and Moore, who withdrew their grievances.
Moreover, the record also shows that prior to putting pressure on Shafer and Harding
to withdraw their grievances, Brown had actually blackballed them in their efforts
to secure employment, and these were acts which were even more grievous violations
of Section 8 (a) (1) of the Act.
I am aware that it is conceded that the five employees who were processing
their grievances had been guilty of engaging in an unprotected concerted activity
in refusing to cross the picket line. But this did not render unprotected and unlaw-
ful all further concerted activity on their part. They did not become caput lupinum.
For refusing to cross the picket line they had been duly punished by being discharged
In processing their grievances , however, they were exercising a right that was assured
to them by the same agreement which, presumably, justified their discharge. The
filing of their grievances certainly raised questions "involving the application or inter-
pretation of this Agreement," and they were entitled to process their grievances with-
out interference, restraint, or coercion on the part of the Respondent.
It is equally clear that Brown's conduct in attempting to secure withdrawal of
the charge against the Respondent also violated Section 8 (a) (1) of the Act. The
Board has held that there is inherent in the statutory rights of employees under the
Act the right to seek their vindication in Board proceedings 28 and there can be little
doubt that Brown's maneuvers in approaching Shafer and Harding, and in inducing
them to disassociate themselves from the charges were calculated to inhibit and
undermine the investigation of the charge on their merits, and must be judged as
parts of Brown's overall program of eliminating all complaints. Brown had already
Teduced Shafer and Harding to a condition of dependence and an expectation of
rewards if they were complaisant enough to fall in with his desires, and the mere
fact that they accepted with alacrity his further proposals that they withdraw from
the charges does not render them any the less acts of interference. They did not
need to be conditioned on rewards, and hence the fact that the rewards were, so to
speak, ex post facto is wholly immaterial. Furthermore, since in the interviews
in which Brown sought to secure the withdrawal of the charges, he also indulged in
overt manifestations of union animus and threats of discharge of any employees
who might be reinstated as a result of the filing of the charges, he demonstrated only
too plainly that his objective was not a disinterested investigation of the charges.
I am of the opinion, however, that the record presents an insufficient basis for find-
ing a violation of Section 8(a)(4) of the Act. The difficulty is not that the indi-
viduals who are the subject of the complaint had been discharged by the Respondent,
and were therefore, no longer its employees. It is now well settled that Section
8(a) (4) of the Act also covers applicants for employment 27 The difficulty is rather
that none of the 11 employees who are the subjects of the charges ever put Brown
to the test of decision after the charges were filed, and it is, therefore, not possible
to say that there existed a relation of cause and effect between the filing of the charges
and the denial of employment to them. As the court said in F. W. Poe Manufac-
turing Company v. N.L.R.B, 119 F. 2d 45, 48 (C.A. 4), a case involving a charge
of violation of Section 8(a)(4) of the Act, in which the employee concerned failed
to make application after the filing of the charge: "The National Labor Relations
Act is not concerned with hypotheses, but with realities; it does not seek to prohibit
evil intent but unfair labor practices . . . ." 28
as N.L R.B v. Illinois Tool Works, 153 F 2d 811, 814 (C.A 7) : N L R.B. v. Wilbur H.
Ford. d/b/a Ford Bros., 170 F. 2d 735, 738 (C.A. 6) ; Time-O-Matic, Inc. v. N L.R B.,
264 F 2d 96, 99 (C A 7) : Blue Flash Express, Inc, 109 NLRB 591, 593
20 See, for Instance, Better Monkey Grip Company, 115 NLRB 1170, and Hilton Credit
Corporation, 137 NLRB 56
27 See John Hancock Mutual Life Insurance Company v N.L R B., 191 F 2d 483, 485
(C.A.DC.) ; N.L.R B. v Syracuse Stamping Company, 208 F. 2d 77, 80 (C.A. 2) ;
N L.R B. v. Lamar Creamery Company, 246 F 2d 8, 10 (C A. 5).
28 Although the court declined to enforce the Board's decision In this case (27 NLRB
1257), the Board quoted the pronouncement with approval in the subsequent case of
Electrical Construction Corporation, 108 NLRB 340. I assume, therefore , that it adopted
the court' s views.
EAST TEXAS PULP AND PAPER COMPANY 447
The record shows that Sheffield actually withdrew the application which he had
filed on May 13. The other discharged employees never withdrew the applications
which they had filed the same day but these applications were all rejected by Brown
the following day. These rejections were not based , however , on the filing of the
charges, which did not occur until 3 months later, but on the prior employment
record of the applicants as viewed by Brown and upon his beliefs with respect to
their activities on the picket line. Between the date of the rejection of the applica-
tions and the date of the filing of the original charge, Brown did develop an animosity
towards many of the discharged employees but this was attributable to their filing
of grievances against him . In a technical sense, a grievance is not the same, cer-
tainly, as an application but even if, straining the concept , it were construed as an
equivalent , Section 8 ( a) (4) of the Act only makes it an unfair labor practice to
discriminate against an employee , or an applicant for employment , because he has
filed charges under the Act. While discrimination by reason of the filing of a griev-
ance may be a violation of Section 8(a)(1) and (3) of the Act, it is not a violation
of Section 8(a)(4) of the Act, and, in any event, the complaint does not allege a
violation of Section 8(a) (3) of the Act.
Apart from Shafer and Harding , moreover , none of the discharged employees who
are the subject of the Section 8 (a)(4) charges had any contact whatsoever with
Brown after the filing of the charges . While , as the court also conceded in the Poe
case, there is little doubt that Brown would not have welcomed employment applica-
tions from any of the discharged employees, and that if they had been made such
applications he would have rejected them out of hand , in the absence of actual appli-
cations, this must remain in the realm of speculation.
Counsel for the Respondent argues strenuously that in the period following the
discharges Brown had jobs available for the discharged employees but that it is
inconceivable that Brown would ever have reemployed any of them because of his
feelings towards them. This may well have been true up to the period of the filing
of the charges but this is not a consideration that is in itself decisive . If, after the
filing of the charges, there had been applications made by the discharged employees
to Brown and, in rejecting them, he had also been influenced by the filing of the
charges, the fact that he had other preexisting reasons for rejecting the applicants
would be immaterial . The general rule applicable in discrimination cases under
Section 8 (a)(3) of the Act must logically be applied also to cases arising under
Section 8 ( a) (4) of the Act.
On the other hand , I am unable to understand the tremendous stress put by counsel
for the General Counsel upon the fact that Brown , in interviewing the discharged
employees on May 14, told them that he might reconsider their reemployment when
the plant expansion program was completed, and the hiring of a considerable number
of additional employees became necessary. It seems to me that , while this condi.
tional promise which Brown made to the discharged employees has some significance,
its significance lies in showing how Brown 's attitude toward the discharged employees
altered after their grievances had been filed . The conditional promise, which in any-
event could not have been executed for almost another 2 years, could not form the
basis of a finding of violation of Section 8 (a) (4) of the Act.
The cases of Shafer and Harding differ somewhat, of course , from those of the
other discharged employees . They did have direct contact with Brown after the
filing of the charges, and while they were not applicants for employment by the
Respondent in a technical sense, it can certainly be said that Brown was aware what
they were interested in reemployment at East Texas . The basic difficulty in their
cases is that Section 8(a)(4) of the Act is aimed at denials of employment rather
than at promises of employment , and Shafer and Harding were promised employ-
ment, although the fulfillment of the promise was to be delayed . If this delay
were attributable to the filing of the charges, some basis , might exist for concluding
that Section 8(a) (4) of the Act had been violated . But it is perfectly clear from
Harding's own testimony that the reason for the delay was Brown 's fear that he
would be embarrassed in the handling of the grievances of the other employees. In
any event , even if a technical violation of Section 8(a) (4) of the Act could be said
to be made out, I do not believe that it would tend to effectuate the policies of the
Act to invoke the Board 's remedial powers to order the reinstatement of Shafer
and Harding , with or without backpay, since they consented to assist Brown in his
attempt to undermine and defeat the Board 's proceedings.
At the close of the case , counsel for the Respondent made motions to dismiss the
various allegations of the complaint . Decision on these motions were reserved but
they are now disposed of in accordance with the findings and conclusions of this
report. Thus, the motions to dismiss the allegations of the complaint charging
violations of Section 8(a) (1) of the Act are denied , while the motion to dismiss the
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegations of the complaint charging violation of Section 8(a) (4) of the Act is
granted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes obstructing commerce and the free
flow of commerce.
V. THE REMEDY
I shall recommend that the Respondent be required to cease and desist from the
commission of the specific unfair labor practices in which it has engaged. But, since
these practices have been extensive, including threats of interference in the organiza-
tional activities of the employees and threats to discharge employees who might be
reinstated as a result of Board proceedings, I shall, despite the fact that the Respond-
ent has contractual relations with labor organizations, also recommend that it be
required to cease and desist from infringing on any of the rights of the employees
guaranteed by Section 7 of the Act.
The nature of the Respondent's unfair labor practices is such that affirmative relief
is also required. Since Shafer, Harding, and Moore withdrew their grievances only
as a result of the unlawful pressure of the Respondent's executives, I shall also recom-
mend that the Respondent be directed to inform these three employees that if they
so desire, it will reinstate their grievances and consider these grievances on the merits,
notwithstanding any time limitations contained in its collective-bargaining agreement
with the union, and if these employees indicate a desire to have their grievances rein-
stated, consider such grievances on the merits. In my opinion, there is no adequate
basis for recommending the reinstatement with or without backpay, of any of the 11
employees included in the complaint. While any person has the right to seek em-
ployment from any employer at any time, in view of the circumstances of the present
case, I shall, however, specifically recommend that if any of the 11 employees in-
cluded in the complaint, apply to the Respondent for reemployment after the plant
expansion program has been completed, that their applications be considered without
reference to whether they have ever filed grievances with the Respondent, or have
been named in charges filed against the Respondent under the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Unions are labor organizations wtihin the meaning of Section 2(5) of
the Act.
3. By threatening some of its former employees with the withholding of recom-
mendations for employment elsewhere or with refusing to consider them for re-
employment at its own plant unless they ceased to process grievances filed by them
with the Respondent; by blackballing two of its former employees who had filed
such grievances; by inducing two of its former employees to withdraw from charges
filed against the Respondent by the Board by promising to reemploy them after the
grievances against the Respondent had been disposed of, and by threatening to dis-
charge any employees who might be reinstated as the result of Board proceeding; and
by threatening to interfere in the organizational rights of its employees, the Respond-
ent violated Section 8(a)(1) of the Act.
4. By its conduct in relation to the 11 employees included in the complaint, the
Respondent has not violated Section 8(a)(4) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case , it is recommended that the Respondent , East Texas Pulp
and Paper Company, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening any of its former employees with the withholding of recom-
mendations for employment elsewhere, or with refusal to consider them for employ-
ment at its own plant unless they cease to process grievances filed by them with
the Respondent.
(b) Blackballing any of its former employees who have filed grievances with the
Respondent.
EAST TEXAS PULP AND PAPER COMPANY 449
(c) Interfering with Board proceedings by inducing the withdrawal of charges
filed against it by promising to reemploy discharged employees after grievances
against the Respondent had been disposed of, or by threatening to discharge former
employees who may be reinstated as a result of Board proceedings.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action in order to effectuate the policies of the
Act:
(a) Consider on the merits, notwithstanding any time limitations contained in its
collective-bargaining agreement with the union, the grievances filed with it by Shafer,
Harding, and Moore, if any of these discharged employees indicate a desire to have
their grievances reinstated.
(b) Consider for reemployment, when its plant expansion program has been com-
pleted, any of the 11 discharged employees included in the complaint without refer-
ence to-their previous filing of grievances, or participation in the filing of charges
against the Respondent under the Act, provided that they apply for reemployment.
(c) Post at its plant in Evadale, Texas, copies of the attached notice marked
"Appendix." 29 Copies of said notice, to be furnished to the Respondent by the
Regional Director for the Twenty-third Region, shall after being signed by the
president of the Respondent and by its plant manager, be posted immediately upon
receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that the copies of the said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the receipt of this Intermediate Report and Recommended Order, what
steps the Respondent has taken to comply herewith.30
It is further recommended that, unless within 20 days from the receipt of this
Intermediate Report, the Respondent notifies the said Regional Director that it will
comply with the foregoing Recommended Order, the Board issue an order requiring
the Respondent to take the aforesaid action.
21 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" In the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the notice will be further amended by the sub-
stitution of the words "A Decree of the United States Court of Appeals , Enforcing an
Order" for the words "A Decision and Order."
31 In the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT threaten any of our former employees with the withholding of
recommendations for employment elsewhere, or threaten not to consider them
for reemployment at our own plant unless they cease to process grievances
against us.
WE WILL NOT blackball any of our former employees who have filed griev-
ances against us.
WE WILL NOT interfere with Board proceedings by inducing the withdrawal of
charges filed against us by promising to reemploy discharged employees after
grievances against us had been disposed of, or by threatening to discharge former
employees who might be reinstated as a result of Board proceedings.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the AFL-CIO, or any other labor organization
of our employees, 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 of protection, or to refrain from any and all
such activities.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL consider on the merits , notwithstanding any time limitations con-
tained in our collective -bargaining agreement with the union , the grievances filed
with us by our former employees , Harold E . Shafer, Bobby Charles Harding,
and Ray F . Moore, if any of them indicate a desire to have their grievances
reinstated.
WE WILL consider for reemployment , when our plant expansion program has
been completed , any of our former employees who were discharged after the
picketing of our plant on May 11 and 12, 1962 , without reference to their
previous filing of grievances or participation in the filing of charges against us
under the National Labor Relations Act, provided that such former employees
apply for reemployment.
EAST TEXAS PULP AND PAPER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(R. M. BUCKLEY , President)
-------------------------------------------
(RAY BROWN, Plant Manager)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Twenty-third Regional
Office, 6617 Federal Office Building, 515 Rusk Avenue , Houston , Texas, 77002,
Telephone No. Capitol 8-0611 , Extension 296, if they have any question concerning
this notice or compliance with its provisions.
Harry Pollins, d/b/a Harry 's Television Sales and Service and
Local Union 1430, International Brotherhood of Electrical
`Yorkers, AFL-CIO. Case No. 92-CA-1412. June 28, 1963
DECISION AND ORDER
On April 30, 1963, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that
Respondent had engaged in certain unfair labor practices, and recom-
mending that it cease. and desist therefrom and take certain affirm-
ative action, as set forth in the attached Intermediate Report. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to'a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
We agree with the Trial Examiner that the Respondent violated Section 8(a) (5)
and (1 ) of the Act by refusing to recognize the Union on and after October 31, 1962. In
so finding , however , we rely upon the unlawful conduct engaged in by the Respondent after
October 31 in addition to the earlier events relied upon by the Trial Examiner.
143 NLRB No. 51.