Lester Brothers, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1963

142 N.L.R.B. 992 (N.L.R.B. 1963)

992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lester Brothers, Incorporated and United Brotherhood of Car-
penters and Joiners of America , AFL-CIO. Case No. 5-CA-
3162. June 10, 1963
DECISION AND ORDER
On March 22, 1963, Trial Examiner James A. Shaw issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and is 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 Intermedi-
ate Report. Thereafter, Respondent filed exceptions to the Inter-
mediate Report.
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 en-
tire record in this case, including the Intermediate Report and the
exceptions, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the exceptions and modifica-
tions noted below.'
In disagreement with the Trial Examiner, we find that Respond-
ent's speech of September 10, 1962, and letter of August 28, 1962,
contain neither illegal promises of benefits nor threats of reprisal
and are protected under Section 8(c) of the Act. Accordingly, we
do not adopt the Trial Examiner's 8(a) (1) findings based upon the
speech and letter.'
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Lester Brothers,
Incorporated, Martinsville, Virginia, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Interrogating employees concerning their union membership
and activities and as regards their testimony to be given in Board
1 Member Leedom, for the reasons expressed in his dissent in Isis Plumbing c8 Heating
Co , 138 NLRB 716, would not award interest on backpay
m Member Brown, in agreement with the Trial Examiner, would find the letter and
speech violative of Section 8(a) (1) when viewed, as they must be, in the context of the
general pattern of coercive and intimidatory conduct with which Respondent met the
Union's organizational campaign and with which conduct they are inextricably interwoven
142 NLRB No. 114.
LESTER BROTHERS, INCORPORATED 993
proceedings in a manner constituting interference, restraint, or co-
ercion within the meaning of Section 8(a) (1) of the Act and threat-
ening employees with reprisal because of their union membership and
activities.
(b) Discharging or otherwise discriminating against employees
in regard to their hire or tenure of employment or any term or con-
dition of employment because of their membership in or activity on
behalf of the Union, or any other labor organization, or because they
have given testimony in any proceeding under the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist the Union, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Hobert Young immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights or privileges, and make him whole in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant in Martinsville, Virginia, copies of the attached
notice marked "Appendix." a Copies of said notice, to be furnished
by the Regional Director for the Fifth Region, shall, after being
duly signed by Respondent's authorized representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, the Order shall be amended by substituting for the words "Pursuant to a Deci-
sion and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order."
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discharge or otherwise discriminate against em-
ployees in regard to their hire and tenure of employment or any
term or condition of employment because of their membership in,
or activity on behalf of, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or any other labor organization,
or because they have given testimony in any proceeding under
the Act.
WE WILL NOT interrogate employees concerning their union
membership and activities or as regards their testimony to be
given in Board proceedings in a manner constituting interfer-
ence, restraint, or coercion within the meaning of Section 8 (a) (1)
of the Act or threaten employees with reprisal because of their
union membership or activities.
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 United
Brotherhood of Carpenters and Joiners of America, AFL-CIO,
or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or mutual aid
or protection, or to refrain from any or all such activities.
WE WILL offer to Hobert Young immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make
him whole for any loss of pay suffered as a result of the discrimi-
nation against him.
LESTER BROTHERS, INCORPORATED,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to full
reinstatement upon application in -accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
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.
LESTER BROTHERS, INCORPORATED 995
Employees may communicate directly with the Board's Regional
Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland,
21202, Telephone No. 752-8460, Extension 2100, if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed on May 4 and 18, and June 20,
1962, by United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
herein called the Union, the General Counsel of the National Labor Relations
Board, herein respectively called the General Counsel' and the Board, through the
Regional Director for the Fifth Region (Baltimore, Maryland), issued a complaint
dated August 22, 1962, against Lester Brothers, Incorporated, herein called the
Respondent, alleging that Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of Section 8(a)(1), (3),
and (4) and Section 2(6) and (7) of the National Labor Relations Act, as amended
from time to time (61 Stat. 136), herein called the Act. In due course the Respond-
ent filed its answer in which it admitted certain jurisdictional matters, but denied
commission of any of the unfair labor practices.
At the hearing herein the General Counsel amended his complaint by way of
written and oral motions to amend which were granted. The Respondent's motion
to amend its answer, by denying said allegations, was likewise granted?
Pursuant to due notice, a hearing was held at Martinsville, Virginia, or October
30 and 31, 1962, before Trial Examiner James A. Shaw. Each party was represented
by counsel and participated in the hearing. Full and complete opportunity was
afforded the parties to examine and cross-examine witnesses, to introduce evidence
pertinent to the issues, to argue orally on the record at the conclusion of the taking
of the evidence, and to file briefs. A brief was received from the General Counsel
on December 17, 1962.
Upon the record as a whole, and from my observation of the witnesses, I make
the following: 3
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS OPERATIONS
The complaint alleges, the answer admits, and I find that: "Respondent is and has
been at all times material herein a corporation duly organized under and existing by
virtue of the laws of the Commonwealth of Virginia, having its principal office and
plant in Martinsville, Virginia, where it is engaged in the manufacture, processing
and sale of prefabricated houses, lumber and building supplies"; Respondent, in
the course and conduct of its business operations as described above, during the pre-
ceding 12-month period, a representative period, purchased goods, material, equip-
ment, and supplies of a value in excess of $50,000, from points and places outside
the Commonwealth of Virginia, and has shipped finished products of a value in
excess of $50,000, from its place of business in Martinsville, Virginia, direct to points
and places outside the Commonwealth of Virginia.
1 This term specifically Includes counsel for the General Counsel appearing at the
hearing herein
s For a detailed discussion of the General Counsel's amendments see infra.
a The General Counsel in his brief at page 2 (footnote 2) moved that the transcript of
the record herein be corrected to read in accordance with his comments in this regard,
and his interpretation of the record I have considered his motion very carefully, and
quite frankly am unable to fathom its portent to the issues herein. In other words it is
not understandable to me. For this reason, I formally deny the motion to amend, and
will use my own judgment in Interpreting the record in the light of its entirety.
As to the General Counsel's motion to correct the record as found on page 4 of his
brief to change line 18 on page 259 to read. "but, possibly, we can't show that" After
careful consideration, said motion is hereby granted, and the record corrected accordingly.
712-5 4 8-6 4-v of 142-64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the circumstances set forth above , I find that the Respondent is and has been
at all times material herein engaged in commerce within the meaning of Section 2(6)
of the Act 4
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Background
No proper understanding of the issues herein could be had without reference to
a previous Board proceeding involving the Respondent herein. I have reference to
Lester Brothers, Incorporated, and United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, Case No. 5-CA-1717, 131 NLRB 1144; enforced by the
United States Court of Appeals for the Fourth Circuit, No. 8455, on March 21,
1962 [301 F. 2d 62]. The hearing in that case was held before Trial Examiner
Alba Martin on September 13, and 14, 1960, in Martinsville, Virginia. The per-
tinency of this case is the fact that the complaint in the instant case alleges inter
aha the following:
VII.
Respondent, by its officers, agents and supervisors, while engaged in the op-
erations described above in pars. II, III and IV, did on or about April 18, 1962,
terminate the employment of Hobert Young, and has at all times since said date
failed and refused to reinstate said employee to his former or substantially
equivalent position because of his membership in, assistance to or activity on
behalf of the Union or because he engaged in concerted activities with other
employees of Respondent for the purpose of collective bargaining or other mutual
aid or protection, and/or because he gave testimony under the Act.
VIII.
Respondent, by the acts and conduct described in par. VII above, did dis-
courage and is discouraging membership in a labor organization by discrimina-
tion in regard to hire and tenure of employment or terms or conditions of
employment, and by said acts and conduct did engage in and is engaging in
unfair labor practices within the meaning of Section 8, subsection ( a)(3) of
the Act, and did discriminate and is discriminating against an employee because
he gave testmony under the Act, and by said acts and conduct did engage in and
is engaging in unfair labor practices within the meaning of Section 8, subsection
(a) (4) of the Act. [Emphasis supplied.]
IX.
Respondent, by the acts and conduct set forth in pars. VI and VII above,
did interfere with, restrain and coerce its employees, and is interfering with,
restraining and coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act, and did thereby engage in, and is thereby engaging in
unfair labor practices within the meaning of Section 8, subsection (a)(1),
of the Act.
In other words one of the principal issues herein is that Hobert Young, an em-
ployee of the Respondent at times material herein, was discharged by it on or
about April 18, 1962, because he ". . . filed charges or given testimony under the
Act," in violation of Section 8(a) (4) of the Act. An examination of the Inter-
mediate Report, which was adopted and approved in toto by the Board, and the
decision of the Circuit Court of Appeals for the Fourth Circuit enforcing the
Board's Order against the Respondent clearly show that Young was an important
witness for the General Counsel in that proceeding . It is for the foregoing reasons
that I must of necessity refer to the previous case cited above. In passing I de-
sire to point out to all concerned herein, that I am well aware of the fact that
I am confronted with a new and separate cause of action in the case at hand.
4 The Board has previously assumed jurisdiction over the Respondent 's operations in
Case No 5-CA-1717; 131 NLRB 1144 See also N L R.B. v. Lester Bros , Inc, Case No.
8455, United States Court of Appeals for the Fourth Circuit, decided March 21, 1962
[301 F. 2d 62], of which more anon.
LESTER BROTHERS, INCORPORATED 997
In addition to the 8(a)(3) and (4) as regards Young's discharge on April 18,
1962, the complaint as amended at the hearing alleges certain specific acts of
interference, restraint, and coercion by the Respondent as violative of Section 8(a)
(1) of the Act. Since the dates that these incidents allegedly occurred is of
importance in my ultimate disposal of certain issues herein, I feel that these al-
legations should be set forth herein below in toto. Consequently they follow
below:
a. On or about April 27, 1962, and on various dates thereafter, Russell Thomas-
son, a supervisor of Respondent, forcibly removed union authorization cards from
the person of employees and inspected said cards and threatened employees with
reprisals because of their membership in, sympathies toward, affiliation with,
and/or activities on behalf of the Union.
b. On or about April 27, 1962, and on various dates thereafter, Roy Warren, a
supervisor of Respondent, threatened employees with economic reprisals because
of their membership in, sympathies toward, affiliation with, and/or activities on
behalf of the Union.
At the hearing herein the following amendments were added to the complaint:
Paragraph VI(c)-On or about August 28, 1962, and September 10, 1962,
Lawson Lester, President of Respondent, threatened employees with economic
reprisals because of their membership in, sympathy toward, affiliation with,
and/or activities on behalf of the Union, or if the Union were to receive a
majority of the valid ballots cast in an impending NLRB representation election.
Paragraph VI(d)-On or about October 29, 1962, "Russell Thomasson in-
terrogated employees with respect to testimony that they had given to the Labor
Board or were about to give at a Labor Board hearing, and on or about that
date the said Russell Thomasson instructed employees that it was not neces-
sary for them to appear in answer to a subpoena issued by counsel for the
Labor Board; and, that, on or about October 30, 1962, Wilburn M. Carmichael,
interrogated employees with respect to testimony that they had given to the
Labor Board or were going to give at a Labor Board hearing in answer to a
subpoena issued by counsel for the Labor Board.
As indicated above counsel for the Respondent orally amended his answer at
the hearing herein to deny the allegations in the foregoing amendments to the
complaint.
The primary reason for the insertion of the specific 8(a)(1) allegations in the
complaint in this section of the report will be apparent below. Suffice it to say
at this point that the Board's Order in the previous case involving the Respondent
herein, set forth specifically certain conduct that the Respondent was to "Cease and
desist from." Consequently since enforcement of the Board's Order was granted
in toto by the United States Court of Appeals "For the Fourth Circuit" on
March 21, 1962, the Respondent was under an obligation to "Cease and desist"
from engaging in either like or similar conduct within the meaning of the Act, at
all times thereafter, which of course includes the periods of time we are primarily
concerned with herein. In the circumstances it is reasonable to assume that the
officers and supervisory employees of the Respondent as individuals were aware
of the significance of the Board's Order and the decision of the United States Court
of Appeals for the Fourth Circuit, dated March 21, 1962.
The record shows that at times material herein the Respondent had approximately
265 employees. The record also shows that the following persons were in active
charge of the Respondent's operations at times material herein, and are referred
to in the record as having in one way or another participated in the incidents we
are primarily concerned with herein: Lawson Lester, president; Victor A. Lester,
vice president; James Shockley, plant superintendent; Joe Lazenby, assistant plant
superintendent; Wilburn M. Carmichael, foreman; Russell Thomasson, foreman;
and Arthur Anderson, foreman.
In addition to the foregoing, the record contains considerable testimony as regards
one Posey Gilbert, Jr., whose importance in my ultimate disposal of the issues herein
will be apparent below.5 Suffice it to say at this point that the General Counsel
contended at the hearing herein that Posey was a supervisory employee within
the meaning of the Act at times material herein. The Respondent contends that he
was not a supervisory employee at times material herein, and had not been for at
least a year and a half prior to the hearing herein, of which more below. Quite
frankly Posey's status was not fully litigated at the hearing herein, insofar as I am
concerned. In addition to the vagueness of the testimony regarding his status
5 Posey Gilbert, Jr., will be referred to from time to time as Posey.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am confronted with the "Decision and Direction of Election" issued by the Regional
Director for the Fifth Region, dated August 14 , 1962, in which he found inter alia
as follows: 6
The Petitioner , contrary to the Employer , would exclude as supervisor's
James Dillon, Frank Turner, Roy Warren , Roy Crews, Mark Sharp, O. C.
Minter, Riley Nunn, Leonard Saunders , Posey Gilbert, Jr., Coolidge Clark, Sam
Lawrence, James Philpott , John Taylor and Curtis Spencer. [Emphasis
supplied.] 7
Although testimony was taken as to the supervisory status of James Philpott,
Curtis Spencer, Posey Gilbert, Jr., Leonard Saunders , Sam Lawrence and
Coolidge Clark , the record is not sufficiently conclusive to determine their su-
pervisory status . Accordingly , no determination is made as to their status
and they will be permitted to vote subject to challenge . [ Emphasis supplied.]
In all the circumstances , and upon the record considered as a whole, I find that
at times material herein Posey Gilbert, Jr., was not a supervisory employee within
the meaning of the Act.
In addition to the foregoing the Regional Director also found that the Roy Warren
referred to above was a supervisory employee within the meaning of the Act. For
this and other reasons that will be discussed below, I find that Roy Warren was a
supervisor within the meaning of the Act at all times material herein.
As indicated above the General Counsel offered in evidence "Decision and Direc-
tion of Election" in Case No . 5-RC-3871 , dated August 14, 1962. It was admitted
as General Counsel 's Exhibit No. 6, and "official notice " thereof was taken by me
on the record at the hearing herein.
The Alleged Violation of Section 8(a)(3) of the Act
According to the record herein , the decision of the Fourth Circuit Court of
Appeals, and the Board 's Decision and Order , in the previous case involving the
Respondent , the Union started its organizational campaign among the Respondent's
employees back in 1960.8 Its campaign was interrupted by the litigation in the
above case and was not resumed until after the decision of the Fourth Circuit
Court of Appeals on March 21, 1962. What transpired thereafter is what we are
primarily concerned with herein.
At the onset of the hearing herein the General Counsel called as his first witness
in support of his case-in-chief, Reid Stewart , International representative of the
Union, who was in charge of the previous organizational campaign back in 1960,
and at all times material herein.
According to Stewart 's credible testimony the Union renewed its organizational
campaign shortly after the Fourth Circuit Court of Appeals entered its decree en-
forcing the Board's Order in the previous case. He first contacted certain employees
of the Respondent by telephone and arranged to meet with them after working hours
on Tuesday , April 3, 1962. On that date he met Charles Craig and Rorer Martin,
and they went out to Hobert Young 's home where they remained for about an hour.
During the course of the meeting he gave each of those present cards to distribute
among the employees , and discussed plans for renewing the Union 's campaign to
organize the Respondent 's employees . During the course of the meeting he gave
Hobert Young around 100 cards to pass around among the employees , of which
40 to 45 were later signed by employees of the Respondent and returned to him
by Young before he was discharged on April 18, 1962. The next meeting between
Stewart and the employees of the Respondent was held on April 17, 1962, at
Hobert Young's home . Since I consider the incidents surrounding the meeting of
the utmost importance in my ultimate disposal of the issues herein regarding Hobert
Young, I feel that the following excerpt from Stewart's credible testimony in this
regard should be inserted herein for the consideration of all concerned . Consequently
it follows below:
A. I had planned a meeting with a few employees of the firm for Tuesday
evening, April 17th , and on that afternoon we were to be there around 7:00
or a few minutes thereafter.
Q. To be where?
$ See General Counsel 's Exhibit No. 6. Further discussion regarding the election and`
other matters pertinent thereto will be discussed below.
9 See infra regarding Roy Warren and Posey Gilbert, Jr.
9 See supra for citation of the above cases and other pertient information in this regard.
LESTER BROTHERS, INCORPORATED 999
A. At Hobert Young's home, and on that afternoon, I proceeded to Mr.
Young's home a bit early-around 6:30 to be exact-and I had occasion to drive
down a dirt road to Mr. Young's home. During the course of my driving down
this dirt road, I came upon a pickup truck parked in the front of a small building
that was being erected and I noticed, as I was blocked there, there were three
men around this building, one of which was Hobert Young, who was on the
roof, another one was Posey Gilbert, Jr., who was also on the roof, and an-
other man, whom I did not know at the time, but I later was introduced to him
as being George Gritts. I went on after the truck moved.
Q. How long were you stopped there?
A. Approximately a couple of minutes-something like that. I went on
down the road to Mr. Young's house, which is located, I would say approxi-
mately 150 or maybe 175 yards beyond that point, and parked my car in his
yard and waited.
According to Stewart the following employees met with him at Young's home on
the night of April 17, 1962: Hobert Young, Charlie Craig, Rorer Martin, and
Elmer Haygood.
At this point I desire to point out to all concerned that Stewart in his testimony
referred to Posey Gilbert, Jr., as being with Hobert Young on the roof of the small
building that was being erected on the property of George Gritts, whom the record
indicates was likewise an employee of the Respondent at times material herein. As
indicated above Posey Gilbert, Jr., insofar as I am concerned, plays an important
role in the ultimate disposal of the issues herein. This is indicated by the following
colloquy between the General Counsel and counsel for the Respondent, at the con-
clusion of Stewart's testimony:
Mr. GUTMAN: Before Mr. Stewart is excused, can we stipulate that Posey
Gilbert, Jr., is the same Posey Gilbert, Jr., who was employed by the Respondent
at the time the first Lester Brothers case was tried?
Mr. BLAKENEY: The Respondent will stipulate that Gilbert has been an em-
ployee of the Company steadily for some several years, something like 10 or
11 years.
Mr. GUTMAN. Can we stipulate his duties are the same today as they were
at the time the first case was tried?
Mr. BLAKENEY: I don't know about that.
TRIAL ExAMINER: Off the record. (Discussion off the record.)
TRIAL EXAMINER: On the record you are excused.
According to the record the parties were unable to agree as to Gilbert's status and
consequently there is no stipulation regarding this in the record. As a matter of fact
the foregoing is all we have in the record regarding Gilbert's status, except the
Regional Director's finding in Case No. 5-RC-3871, which has been inserted herein
above.9
As indicated above the meeting on April 17, 1962, at Hobert Young's home
ended a little after 9 p.m.
Hobert Young reported for work as usual the next morning around 7 a.m.
Less than 3 hours later he was discharged under circumstances that will be fully
discussed below. Before we get into his discharge let us first take a look at his
employment record with the Respondent.
Hobert Lee Young was employed by the Respondent on April 23, 1957, and
worked continuously for it until his discharge on April 18, 1962. During his en-
tire tenure of employment he worked in the truss department. At the time he
was discharged he was operating a saw, and had been continuously since Janu-
ary 1962. In addition to this experience he had previously operated a saw off
and on for a period of approximately 11/2 years. For the most part his work on
the saw consisted of cutting rafters and ceiling joists for the trusses that go on
the top of the prefabricated houses that the Respondent makes. According to the
record his work had been satisfactory throughout his entire tenure of employment.
As indicated above Young had been most active on behalf of the Union among
the Respondent's employees throughout its original campaign back in 1960. In
addition he was one of the General Counsel's most important witnesses in the
previous case involving the Respondent herein. His activities after the Union re-
9 Though the record shows that the General Counsel did interrogate certain of the Re-
spondent's witnesses as regards Gilbert's duties, I am convinced that their testimony
contributed little If anything to justify a finding contrary to that of the Regional Director
as to Gilbert in the "R" case which has been set forth herein above. See infra for further
comment.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sumed its organizational campaign among the Respondent 's employees have been
referred to above in my reference to Stewart's testimony in this regard. Even so,
I feel compelled to reiterate them at this point for reasons which will be apparent
below. Suffice it to say at this stage of the report that the concession of counsel
for the Respondent regarding the Respondent's knowledge of Young's activities is
in my considerate opinion of the utmost importance. For this and other reasons
that will likewise be apparent below the following excerpt from Young's credible
testimony follows below:
Q. (By Mr. GUTMAN.) Was there some contact you had with Mr. Stewart
this spring.
A. Yes, sir, there was.
Q. Tell us when it was and what the circumstances were?
A. It was the 3rd of April that Mr. Stewart come to my house and told
me that they were going to try to organize the plant at Lester Brothers again
and he gave me some cards-some union cards and wanted me to distribute
them out and see if I could get them signed , and I think he gave me ap-
proximately 100 cards.
I carried them to the plant and distributed them out to different people
and to a lot of my friends so they would take the cards and get their friends
to sign them and bring them back to me and I personally got part of them
signed myself.
Q. How many cards did you get signed?
Mr. BLAKENEY: I think we can shorten this part of the record that might
relate to proof of Hobert Young being active in behalf of the union. The
company will concede it was aware of such fact both from the circumstances
as he testified in the former case you referred to and also , I believe , he acted
as an observer, perhaps , for the union , but, at any rate, the point of his being
interested in and active on behalf of the union , generally, will not be contested
by the company.
Mr. GUTMAN: I understand that, and to straighten the record , Mr. Young
never acted as an observer.
Mr. BLAKENEY: I am mistaken to that respect.
Young's account of what transpired on the night of April 17, 1962, at George
Gritts' home, where he and Posey Gilbert, Jr., were working together on the roof
when Stewart passed by on his way to Young's home is about the same as that of
Stewart which has been set forth above. In the circumstances , I see no neces-
sity to reiterate it at this stage of the report. Suffice it to say at this point that
Posey Gilbert, Jr., had been a supervisory employee at the time of the prior case
involving the Respondent herein , and was a leadman at times material herein.
His supervisory status at times material herein , insofar as this record is concerned,
is, quite frankly , most "hazy." In the circumstances , and in the light of the
Regional Director 's finding in the "R" case, which has been inserted above, I find
at this point that Posey Gilbert, Jr., at times material herein was not a supervisory
employee within the meaning of the Act.lo
We now come to the morning of April 18 , 1962. What transpired on that date
is of course one of the major problems we are faced with herein , the discharge of
Hobert Young.
After long and careful consideration and after having read and reread the record
herein innumerable times, I am convinced that what transpired on that date is
best told in Young's testimony . For this reason I insert the following excerpt
therefrom for the convenience of all concerned:
Q. (By Mr. GUTMAN.) Hobert , go to what happened that day.
A. Well, I went to work as usual that morning and I had an order calling
for 14'3/a" rafters to cut and I went to the 14' material that I cut the 14'3/x"
rafters out of. The 14' material comes in and sometimes it is an inch or an
inch and a half longer than 14 ' when it comes to the plant.
Q. Does the lumber come in in one length or are there various lengths of
lumber used in the plant?
A. Various lengths.
TRIAL EXAMINER: You mean it varies in length?
The WITNESS: Yes.
l°I have considered the testimony In the record in this regard , particularly the General
Counsel's Interrogation of Superintendent Shockley , and see no justification for disturbing
the findings of the Regional Director for the Fifth Region as to Gilbert's status in Case
No. 5-RC-3871.
LESTER BROTHERS, INCORPORATED 1001
Q. (By Mr. GUTMAN.) How does it come packaged?
A. In bales of about 90 pieces.
Q. Are all of the pieces in the bale the same approximate length?
A. Yes, they are.
Q. What are the lengths of the various bales?
A. About 12, 14, 16, 18, 22 , 24 and 28-foot.
TRIAL EXAMINER: In other words, what you are testifying to is this: Even
though they are called 14' boards , nevertheless they will vary in length and
some are a little closer to 14' and some are 2 or 3 inches longer; isn't that
correct?
The WITNESS: Yes, sir. So, I had some 14'3/4" rafters to cut and I had the
boy on the fork lift to pick up a bale of 14' two-by-fours with the intention of
cutting 14'3/4" rafters from them, but when he carried them to my saw, I meas-
ured the top of these two-by-fours and they only measured 141/2" so I couldn't
cut 14'3/ " rafters from them, but I had some 14 ' material to cut that day,
anyway, so I cut 14' material out of that rick of two-by-fours.
Then I went back to the same pack, which was stacked up in about four
ricks, to see if the rest of them were long enough to cut 14'3/4" rafters, and I
measured the side of them . I couldn't measure on top of them because they
were stacked one on top of another and they measured 14'i/a" so I had to cut
the 14'3/4" rafters out of 16' material then and as I had been told to do by
Mr. Carmichael and Mr . Lazenby.
Q. (By Mr. GUTMAN.) Who are these gentlemen?
A. Mr. Carmichael is my foreman and Mr. Lazenby is my assistant super-
intendent.
Mr. GUTMAN: We can stipulate Mr. Carmichael is a supervisor , can we not?
Mr. BLAKENEY: Yes.
TRIAL EXAMINER : What is his first name?
Mr. BLAKENEY : Wilburn Carmichael.
TRIAL EXAMINER : Proceed.
The WITNESS : So I got the man that operates the small lift to send me a
rick of 16 ' two-by-fours and put them on the truck in order to cut 14'3/4" rafters
from and carried them to the saw and I had cut, I think, about 8 or 10 pieces
when Mr. Lazenby came to me and asked me why was I cutting those rafters
out of the 16 ' material and I told him that I had measured the 14' two-by-fours
and they were not long enough to get 14'3/4" rafters and they were only 14'1/z"
and I had to cut them out of the 16' stuff, and he says to me, he says , "You are
1/4" shy," and he walked on off toward the office.
The last I seen of him, he was going to the office, and it was about 10 minutes
later that Mr. Carmichael came to me and told me to cut some 12' ceiling
joists because they didn 't need what I was cutting then to make the trusses and
they need the 12' ceiling joists and to stop what I was cutting and to cut the
ceiling joists and I had cut about 45 pieces of this 16 ' material into 14'3/4"
rafters at that time.
So I pushed the 14'3/4" rafters I had already cut to one side and I pushed
the other half of the 16' material to one side and started cutting and squaring
the 12 ' material.
It was about 5 minutes later that Mr. Carmichael came back to me and told
me that he wouldn't need me any more and I asked him was he firing me and
he said yes and I asked him why and he said for wasting material, and he
already had my card in his hand.
Q. (By Mr. GUTMAN. ) At this point , had anybody measured the material
that you were working on?
A. If they did, I didn 't see them.
Q. Could they have done it without you seeing it? Could anybody have
measured the 14' lumber you rejected without you having seen them?
A. I didn't see them.
Q. Go on.
A. And he told me then to come and go with him to the office and I went
with him and when we got to the office, he told me to wait in the office and
he went down in the plant-I don 't know where he went-and at that time,
Mr. Lazenby came in the office where I was waiting at and I asked him did he
know that Mr. Carmichael had fired me and he said , "Yes. He should have
fired you for cutting that stuff-those rafters out of the 16' material."
Then Mr. Carmichael came back and Mr. Lazenby told Mr. Carmichael to
give him my card and he would send it up to the office so I could get my money.
He told him to go back over to the plant and he told me I could get paid at the
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
main office , but I looked up Mr . James Shockley, the superintendent , before
I left and I told him that they had fired me for wasting material and I was not
wasting material because the 14' two-by-fours were not long enough to cut
14'3/4" rafters and I was doing what I had been told to do, and I asked him
if he didn 't think the 14' two-by-fours were long enough , would he go over to
the plant where I was working on the rafters and measure them himself, and
he told me, "I will check them later ," and I left and went home.
Then I called Mr. Shockley about 20 minutes past 5:00 that evening and
asked him had he checked them and he said yes, he had checked them, and he
said , "All of them were 14'7/8 " long."
Q. Had you ever cut 14'3/4" rafters out of 16' lumber before?
A. Yes, many times . [ Emphasis supplied.]
As indicated above the Respondent 's position is that Young was discharged for
cause, in that he "wasted" material by cutting 2-inch by 4-mch by 14-foot 3/4 -inch
rafters out of 2-inch by 4-inch by 16-foot material without first securing permission
from his superiors to do so. It also contends that there was an ample supply of
2-inch by 4-inch by 14-foot on hand to take care of the order he was working on,
and that for this reason it was unnecessary for him to cut the 2-inch by 4-inch by
16-foot lengths.
At this point I want to point out that the 2-inch by 4-inch by 14-foot lumber that
the Respondent purchases from various lumber companies varies in length, and
ordinarily the 2-inch by 4-inch by 14-foot it purchases is at least 7/8 to 1 inch over
14 feet in length. According to the record the average "rick," i.e., a bale of 90
pieces, will contain very few 2-inch by 4-inch by 14-foot that cannot be cut into
2-inch by 4-inch by 14-foot 3/4-inch rafters.
Young further testified in substance that when he was first assigned to the "saw,"
he was told by his superiors that in the event he did not have on hand 2-inch by
4-inch by 14-foot "stuff" that was long enough to cut 2-inch by 4-inch by 14-foot
3/4-inch, that he was to cut them out of the 2-inch by 4-inch by 16-foot lengths;
that thereafter on several occasions he had been compelled to cut 2-inch by 4-inch
by 14-foot 3/4-inch rafters out of 2-inch by 4-inch by 16-foot lumber; that on such
occasions he did not request permission before cutting the 16-foot lengths; and
that he had neither been criticized nor reprimanded in the past for using the 16-foot
"stuff" to cut 2-inch by 4-inch by 14-foot 1/4-inch rafters.il
Young's testimony in this regard was corroborated by Richard Hairston, a fellow
worker, who likewise had been a "sawer" for a period prior to Young's discharge
on April 18, 1962. According to Hairston he was required to cut 2-inch by 4-inch
by 14-foot 3/4-inch rafters out of 16-foot "stuff" on an average of once a week while,
he was on the saw, and at no time did he request permission to do so. As I interpret
his testimony in this regard he was told to use the 16 -foot "stuff" if the 14-foot
lengths were not long enough when he first was assigned to the saw and for this
reason he saw no necessity to go to his foreman for permission to use the 16-foot
"stuff" every time such an emergency arose.12
On the other hand, the Respondent contended at the hearing herein that the sawers
were required to secure permission from their immediate superiors before cutting
2-inch by 4-inch by 14-foot 3/4-inch rafters out of "16-foot stuff." The primary
purpose of the rule was in furtherance of its policy against the wasting of materials.
In support of its contention that Hobert Young was discharged for cause, it offered
the testimony of several of his supervisors and coworkers . Let us first take a look
at the testimony of Joe Lazenby, assistant plant superintendent.
According to Lazenby he had occasion to pass by Young's working place on the
morning of April 18, 1962, and observed that he was cutting 2-inch by 4-inch by
16-foot. He went over to Young and asked him in substance why he ". . . was
cutting 2-inch by 4-inch by 14-foot 3/4-inch from the 16-foot?" and he said, "The
other is too short," and I said, "Did you measure it?" and he said, "Yes." 13 Lazenby's
reaction to Young's statement that the 2-inch by 4-inch by 14-foot on hand were
too short to cut the 2-inch by 4-inch by 14-foot 3/4 -inch order is well summed up in
the following excerpt from his testimony in this regard
Q. And he said in answer to your inquiry that the stack was too short to
make 14'3/4 "?
al The witnesses referred to stacks of lumber as, "14-foot stuff" and "16-foot stuff"
throughout their testimony at the hearing herein
12 See infra for further discussion of Hairston ' s testimony , in particular as to a con-
versation he had with Foreman Carmichael on the day he testified at the hearing herein.
a3 Quotes from Lazenby's testimony.
LESTER BROTHERS, INCORPORATED 1003
A. That's correct.
Q. So what did you then do?
A. It seems kind of absurd to me that anybody would make a statement like
that and I went and got the foreman in charge of bringing the lumber in and
he and I measured the lumber.
Q. Why would it seem absurd to you to make a remark like that?
A. Our plant always takes grade marked material and all grade marked
material has always been sent in with a I" overlength unless specifically re-
quested by the buyer.
Q. Is there an occasional piece in there that is not up to standard?
A. Yes.
Q. And Hobert said he went and looked at the face of the stack and meas-
ured the face of the stack next to him and he came to the conclusion there was
no lumber there to make 14'3/4 ". Is that a true statement?
A. That is what he said, but it is not a true statement, as far as I am con-
cerned, because there was no such thing. I measured the stack of lumber,
myself.
Q. How long have you been at that plant?
A. About five years.
Q. Had you ever seen a stack of 14' material with 12 to 15 ricks in it that
most of it would not produce 14'3/4" rafters?
A. No, I have not.
Shortly after Lazenby talked to Young he got in touch with Carmichael, the
foreman in charge of the department, and asked him why Young was cutting 2,inch
by 4-inch by 14-foot 3/4-inch out of 16-foot "stuff." According to Carmichael, he
then went over and asked Young why he was cutting the 16-foot stuff, and that "he
said that somebody had switched orders on him, or something, .. " 14 What
happened thereafter will be discussed below. Suffice it to say at this point that the
record is so "fuzzy" and unintelligible that it has been nigh onto impossible for me
to separate the wheat from the chaff, and arrive at a logical and sensible conclusion
as to just what did happen after Lazenby and Carmichael "discovered that Young was
cutting 2-inch by 4-inch by 14-foot 3/4-inch rafters out of 16-foot "stuff." But this
issue, like all that are worrisome and pestiferous, must be resolved. That I shall do
on the record considered as a whole and let the chips fall where they may.
After long and careful consideration of the record as a whole, I find that Lazenby
and Carmichael, with the assistance of Foreman Anderson and an employee, John
Penn, made a check of the 14-foot "stuff" that was on hand and found that it could
be used to cut the 2-inch by 4-inch by 14-foot 3/4-inch rafters. Shortly after this
check was made, Lazenby told Carmichael to discharge Young. What happened
then has been set forth above in the excerpt from Young's testimony in this regard.
According to John Penn, who, with an employee named Rorrer, was assigned by
Carmichael to operate the saw after Young was fired, there was a stack of 14-foot
"stuff" near the saw that contained 12 ricks, or 1,152 pieces. He was instructed to
cut the entire stack and to keep an accurate record of all pieces that were not long
enough to make 2-inch by 4-inch by 14-foot 3/4 -inch rafters out of. The result of their
check is set forth herein below in the following excerpt from Penn's testimony which
is fully credited by me:
Did you and Rorrer cut this entire stack or pile of 12 ricks?
That's correct.
Will you tell the Examiner what lengths did it yield?
14'3/4'p.
Were there any exceptions? Were any too short at all?
Yes.
How much?
About 5 or 6 pieces.
5 or 6 pieces?
Yes, sir.
And the rest of the whole stack made 14'3/4 " rafters?
Right.
And you and Rorrer cut it off?
Correct.
Penn further testified as to the procedure sawers follow when they are required
to cut certain lengths of lumber out of a stack of ricks. Since this procedure is
one of the most important issues herein, and the further fact that Penn was an
24 Quotes from Carmichael's testimony at R. 178.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experienced sawer, I feel that it would benefit all concerned to insert below the
following excerpt from his testimony on cross-examination in this regard:
Q. Mr. Penn, when you measure lumber to find out whether you have
14' available, do you measure every piece in the stack or how do you go
about that?
A. What you do, you take the tip end and measure and find the right
length. You measure the two-by-fours and set the saw up.
Q. What do you measure? I know your measure two-by-fours, but how
do you go about it, mechanically?
A. You have to know, first, what you have to cut.
Q. Then what do you do?
A. Take a tapeline and measure it off.
Q. What do you measure?
A. You measure the two-by-fours.
Q. Where do you find the two-by-fours to measure?
A. In the rick.
Q. How many do you measure in the rick?
A. You run the tapeline and measure down. You don't have to measure
all but just one.
Q. If it wouldn't measure correctly, would you assume all of the ones
in the rick were short?
A. No.
Q. What do you do?
A. Lay it aside and measure another one.
Q. You pick up the piece of lumber and measure the next one?
A. Yes.
Q. Wouldn't you, at times, measure the pieces that are on the outside of
the rick''
A. No. The way the rick is most of the time, there is 96 in the rick and
it is sitting on the floor truck and you run a tapeline and measure it from
the top as they are sitting on the truck.
Q. By measuring one and finding it measured up, could you assume from
that that every piece in the rick was sufficiently long enough?
A. If you find one short piece, no.
Q. If you found one piece long enough, would you assume all were long
enough?
A. You would have to set your saw up to start cutting.
Mr. GUTMAN: That is all.
The importance of the above testimony is that Young contended that when he
measured the same stack of 2-inch by 4-inch by 14-foot lumber that it was not
in his opinion long enough to cut 2-inch by 4-inch by 14-foot 3/4-inch rafters, and
that this was the reason he went over and cut them out of the 16-foot stuff.
From the foregoing I am convinced and find that Penn's account of the condi-
tion of the 2-inch by 4-inch by 14-foot "stuff" in the stacks that were near the
saw which Young was operating is by far not only the most intelligible in the record
in this regard, but accurate in the light of the record as well. In the circumstances
I find that 2-inch by 4-inch by 14-foot lumber was available for Young to cut his
order for 2-inch by 4-inch by 14-foot 3/4-inch rafters from on the morning of
April 18, 1962 I also find that Young's use of the 2-inch by 4-inch by 16-foot
lumber to cut the 2-inch by 4-inch by 14-foot 3/4-inch rafters was neither deliberate
nor intentionally wasteful but was due solely to an error in judgment. This find-
ing is predicated upon the record as a whole, particularly the testimony of Hairs-
ton, Penn, Carmichael, and Young, himself, that the 2-inch by 4-inch by 14-foot
stuff is stacked in ricks or bales of approximately 90 pieces each, and that the
only way a sawer can ascertain which rick to cut his order from is by measuring
the 2-inch by 4-inch by 14-foot's that are on the outside or on top of the stack.
This is precisely what Young did, but due to unforeseen and unexplainable cir-
cumstances he measured the short 2-inch by 4-inch by 14-foot that could not be
used to cut the order for 2-inch by 4-inch by 14-foot 3/4-inch rafters. In other
words his error was human, and not with "malice aforethought." In other words
it was an error in judgment.
Another factor that has disturbed me considerably is the testimony in the
record by witnesses for the Respondent as to the absence of the other lengths of
2 by 4's that Young testified that he cut on the morning in question. Accord-
ing to the record, particularly from Young's credible testimony on both direct
and cross-examination, it was the custom to post or "hang" an order near the saw
LESTER BROTHERS , INCORPORATED 1005
every morning on which was listed the sizes that the sawer was to cut during the
day. According to Young these orders were posted by John Penn who worked
in the same department with Young , and who likewise was under Carmichael's su-
pervision . There was an "order" at Young 's working place on the morning of
April 18 , 1962, which called for four or five different lengths of 2 by 4's he was
to cut on the day in question . According to Young they were as follows:
( 1) 2-inch by 4-inch by 14-foot joists.
(2) 2-inch by 4-inch by 14-foot 1/2 -inch rafters . (Young did not cut this order
because he had a sufficient stock of this size on hand to fill the order.)
( 3) 2-inch by 4-inch by 14-foot 3/4-inch rafters.
(4) 2-inch by 4-inch by 28-foot rafters.
( 5) He was unable to recall what this order called for.
Young's testimony stands uncontradicted and undenied in the record and is fully
credited . The only testimony in the record offered by the Respondent to refute
Young's testimony regarding this is, quite frankly, so vague and "hazy like" that
it is almost unintelligible and as far as I am concerned of no probative value what-
soever. For example, the witnesses were queried as to whether or not they saw
this size or that size 2 by 4 "stuff " around the saw that Young operated on the day
in question , to which their standard answer was , "I didn't see any" or in similar
phraseology.
As to Young's record with the Respondent as indicated above he had worked
for the Respondent approximately 5 years at the time he was discharged . During
this entire period he worked under the supervision of Foreman Carmichael, who
cited three instances on which he reprimanded Young for misconduct on the job.
One was for staying too long in the toilet ; on another occasion ". . . he was
grumbling about cutting braces and saying that some of the white men in there
had a better showing than he did. He said he had to do more work than the white
fellows or something like that"; and a third occasion regarding smoking on the
premises . As to his overall record over the years , Carmichael further testified on
direct examination as follows:
Q. Did you ever have occasion to get after him in any way further about
his performance?
A. No, sir, I think that is all that I remember.
Q. Did you ever have occasion to get after him about his attendance on
the job?
A. No, sir.
Q. Did you ever have occasion to get after him for disregarding the com-
pany rules in any way.
A. No, sir, I don't think I ever got after him about that.
Q. Do you recall any instance about smoking?
A. On one occasion we had to get after him for smoking and going be-
tween the buildings out there.
Q. When was that?
A. That was along about the same time this order incident happened in
the rest room.
Q. What did he say about that when you got after him?
A. He said that others smoked or something like that, and he went on.
Q. Do you try to keep them from smoking out there?
A. Yes, sir.
Q. And these incidents you have told us about , you say were roughly in
the period of some 60 days before he was discharged?
A. Yes, sir . I would say something like that . It was just before he
went back on the saw-before we put him back on the saw.
An examination of the Board's Decision and Order in the prior case shows that
it adopted in toto the findings and conclusions of Trial Examiner Alba Martin, who
presided at the hearing therein and issued the Intermediate Report on April 4, 1961,
upon which the Board 's action in this regard was predicated . Since one of the
issues that we are faced with herein is the allegation in the complaint that one of
the reasons for Young 's discharge by the Respondent on April 18, 1962, was be-
cause he gave testimony under the Act in the prior case , consequently I must of
necessity consider portions thereof herein . An examination of the Intermediate
Report and the decision of the Fourth Circuit Court of Appeals clearly shows that
Young was one of the most important witnesses for the General Counsel in that
proceeding. The Trial Examiner in that case found that Young was an honest wit-
ness. His credibility findings in this respect were approved by the Board and the
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
court in their decisions . In fact , the Circuit Court of Appeals refers to Young's
testimony on several occasions in its decision . The decision of the Fourth Circuit
Court of Appeals was "Decided March 21, 1962." Less than 30 days later Young was
discharged by the Respondent . Was the court' s decision a motivating factor in
the Respondent 's discharge of Hobert Young on April 28, 1962? This is one of
the major questions which is before me. My ultimate findings and conclusions
in this regard will be disposed of below.
At this point I feel compelled to point out to all concerned herein that I have
been greatly impressed by the similarity of the routine followed by Lazenby and
Carmichael prior to the discharge of the named discriminatees in the previous Board
case and of Hobert Young in the instant case . In the prior cases and the case at
hand we find this routine. Lazenby "discovers" the alleged misconduct , notifies
Carmichael, and instructs him to discharge the employee. This same "old routine"
was followed herein in the discharge of Young. What puzzles me is this, why
is it that Carmichael, who was in active charge of the department in both the
prior case and the instant case and in constant touch with the employees under his
supervision , did not observe the misdeeds and errors of the discriminatees before
Lazenby did on his routine trips over the plant? What prompted Lazenby in the
case of Young and the dischargees in the prior case to go right to their working
places "out of the clear blue sky," so to speak, and "discover" the misconduct of
the employees involved in both proceedings? i5
As I see it, my final disposition of the case as to Young is dependent upon my
overall appraisal of the entire record and my findings as to the specific allegations
in the complaint regarding violations of Section 8(a)(1) of the Act. My reason-
ing in this regard will be apparent below, in that section of this report styled "Over-
all Conclusions and Findings as Regards the Alleged Violations of Section 8(a)(3),
(4), and (1) of the Act."
As indicated and discussed above, one of the most important issues that we are
faced with herein is the allegation in the complaint that Young was discharged be-
cause he gave testimony under the Act in this prior case, in violation of Section
8(a)(4) of the Act. In such a state of the pleadings, I, of necessity , will be
compelled to refer to the record in that proceeding , including the Board 's Decision
and Order and the decision of the Fourth Circuit Court of Appeals enforcing the
Board 's Order on March 21, 1962. An examination of these decisions clearly
shows that Young was an important witness at the hearing in the prior case, and
that his testimony was fully credited by the Trial Examiner who heard the case.
While it is true that the hearing in the prior case was held in September 1960,
nevertheless this factor insofar as I am concerned is of little , if any, importance
for the simple reason that the Respondent 's conduct after the court's decision dispels
the illusion that the Respondent had forgotten or forgiven Young's role in that
proceeding . My reasoning in this regard will be apparent below.
That the Union was not deterred by Young's discharge in its efforts to organize
the Respondent 's employees is amply demonstrated in the record. This is evidenced
by the fact that several of the employees met with Stewart, the International
representative of the Union, who was in active charge of the campaign on the
night of April 26, 1962. The next morning an incident occurred that the Gen-
eral Counsel contends was in and of itself violative of Section 8(a) (1) of the Act.
I have reference to the testimony of Raymond M. Strader, who testified regarding
an incident that happened the morning after a union meeting on April 26, 1962.
The incident in question involved one Dewey Donovant, a fellow employee, and
Foreman Russell Thomasson. His testimony in this regard was as follows:
Q. Did anything happen the next day at the plant?
A. I saw Mr. Thomasson talking to
Q. Is that Russell Thomasson?
A. Yes.
Q. And you saw him talking to whom?
A. Dewey Donovant.
Q. Is he another employee out there?
A. Yes. I saw him talking to Mr. Thomasson that morning, I think, about
10 minutes to 9.00. Dewey went in that morning and he had those union
cards in his shirt pocket and I saw Mr. Thomasson reach up and pull some-
thing out of his pocket and then, directly, I saw him give them back to him.
1s See the comments of the Fourth Circuit Court of Appeals in its decision in the prior
case as regards the procedure followed by the Respondent in the discharge of Martin See
supra for citation of case.
LESTER BROTHERS, INCORPORATED 1007
Q. You say "directly ." What do you mean-when?
A. I couldn't be exact on the time. I was pretty busy out back there ruling
ricks.
Q. What did you say he gave back to him?
A. The cards-the yellow cards.
Mr. GUTMAN : Nothing further.
Mr BLAKENEY . No questions.
TRIAL EXAMINER S You are excused
Strader's testimony as to the above incident was corroborated by Elmer M. Hay-
good, another employee. Significantly, neither Strader nor Haygood were in a
position to hear what if anything was said during the course of the incident by
either Donovant or Thomasson . When this factor is considered in the light of the
fact that Donovant did not testify at the hearing herein , then obviously a trier of
the facts would , in fairness to all concerned , ordinarily ignore it as trivial and in-
consequential . Even so, findings of fact must be predicated upon the record con-
sidered as a whole. So is it here. In the circumstances let us look at the testimony
of Foreman Thomasson regarding the above incident.
Thomasson admitted he pulled cards out of Donovant 's "hip pocket," but that this
practice was commonplace and occurred at least four or five times a day. In ex-
planation of this routine , which at first blush seems most unusual to the "un-
initiated ," he testified that Donovant carried "floor talley cards " around in his hip
pocket at all times during working hours , and that it was his practice to pull them
out of his pocket five or six times a day "to figure on the time ." He further testified
that there was an unsigned union card mixed up with the tally cards . In essence
that was his testimony in that regard.
It is to be noted that Strader testified that Thomasson pulled the cards out of
Donovant's shirt pocket. His testimony in this record was "demonstratively" cor-
roborated by Haygood 16 in the course of his testimony at the hearing herein as to
the same incident.
So here we have three witnesses testifying about the same incident-two of them
said that Thomasson pulled the "Union cards" out of Donovant 's shirt pocket;
Thomasson , the third witness said he pulled them out of the hip pocket. Later on
a witness for the General Counsel , Robert J. Foley, testified that Thomasson pulled
some union cards out of his "hip pocket" on the same day , about 7 a.m . The im-
portance of Foley's testimony and that of Strader and Haygood is not what pocket
the cards were in at the time Thomasson pulled them out, but the date the incident
occurred and what transpired thereafter that concerns us in disposing of the issues
herein A summation of Foley's testimony follows below.
According to Foley, he too attended the union meeting on the night of April 26,
1962 He corroborated the testimony of Strader, as to the passing around of union
cards to those present at that meeting , and that he too was given some cards by
Stewart to pass around among the employees in the plant . What happened when
he reported for work the next morning , April 27, 1962 , is best told in the following
excerpt from his testimony which is fully credited for reasons which will be dis-
cussed below:
Q. Did anything happen in the plant the following day?
A. Yes . I went to work at 7 00 a m., as usual , and around 11:00 a m. in the
morning, Mr. Thomasson , the foreman , came around to where I was working,
and I had been working and straightening up on the rack, and he pulled out my
union cards-I had them in my right hip pocket-he pulled the union cards out
and looked at the top three They were blank and he handed them back to me.
Q. Did he say anything to you?
A. Yes, sir. He asked me : "Boy, what are you doing with these damn
things"
Q. Did anything else happen that day"
A. It was quitting time and I was walking toward the clock and Mr.
Thomasson was walking by the side of me and he asked me when was I go-
ing to give him the union cards and I told him I didn 't want to get rid of
them.
Thomasson denied that he pulled cards out of Foley 's pocket, but he did admit
talking to him about union cards. His testimony in this regard was as follows:
to By pulling a package of cigarettes out of his left shirt pocket in the mode and man-
ner which he testified was used by Thomasson when he extricated the cards from Dono-
vant's pocket
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I never pulled a card out of his pocket. One day, I walked up to
him and saw him with some cards and I said, "What are they?" and he said,
"Union cards," and I said, "How about giving me one to sign?" and he said,
"See me at 12:00."
Since Thomasson was not queried by counsel for the Respondent regarding
Foley's testimony as to what happened near the timeclock on the evening of
April 27, 1962 (it stands uncontradicted and undenied in the record), for this and
other reasons, I credit in toto his testimony in this regard, and find that Thomasson's
remarks to Foley, when considered in the light of the record as a whole, con-
stituted interference with, restraint, and coercion within the meaning of Section
8(a)(1) of the Act.
Foley also testified on cross-examination about voluntarily quitting his job with
the Respondent on or about May 3, 1962. His reason for quitting was because
. . Mr. Thomasson shoved me. That was the reason I quit . ... His testimony
regarding the circumstances that led up to his quitting the job is, in my opinion, of
the utmost importance because it clearly shows the overall attitude of the Respond-
ent toward the concerted activities of the employees at times material herein, and
gave us a picure of the "prevailing atmosphere" around the plant at times we are
concerned with herein, despite the decision of the Fourth Circuit Court of Appeals
on March 21, 1962. The importance of my observation in this regard will be
apparent in the ultimate disposal of the issues as to Hobert Young.17 In the cir-
cumstances we are faced with herein, particularly about the Respondent's overall
attitude toward the efforts to its employees to exercise their rights under the Act,
I feel that the following excerpt from Foley's testimony in this regard should
likewise be inserted below:
Q. (By Mr. GUTMAN.) Describe what happened leading up to the time
you quit. What caused you to quit?
A. I quit because Mr. Thomasson shoved me.
Q. Tell what happened.
A. It was around 20 minutes to 3:00 in the afternoon and Mr. Thomasson
came around where Raymond Strader and I were working and sit down and
watched us work for about 10 minutes and we were behind and he came
up and shoved me out of the way and grabbed a handful of flooring and
said, "The damned old union ain't in here yet and I know you can do the
job faster than this."
Q. How long after that incident in which he pulled the cards out of your
pocket did this occur?
A. This occurred, if I am not mistaken, on May 3rd.
Q. And the card-pulling incident was when?
A. April 27th.
Q. In that interim between April 27th and May 3rd, had he ever said any-
thing to you about the union? Had he ever mentioned the word "union"
to you?
A. No, sir, not that I can think of.
Foley's testimony as to the above incident stands uncontradicted and undenied
in the record. For this reason and the further fact that he impressed me as an
honest and fearless witness his testimony in this regard is fully credited by me.
Even though the foregoing incident is not specifically alleged in the complaint
as violative of Section 8(a)(1) of the Act, nevertheless, I am convinced that the
overall allegation of violations of Section 8(a)(1) is broad enough to encom-
pass it. In the circumstances, I find that by the activities of Thomasson on
May 3, 1962, as described above in Foley's credible testimony, the Respondent
herein further engaged in conduct violative of Section 8(a)(1) of the Act.
From all of the foregoing regarding the activities of Foreman Russell Thomas-
son, I am convinced and find that he engaged in conduct violative of Section 8(a)
(1) of the Act, except as to that portion of section VI(a) of the complaint that
alleges ". . . forceably removed union authorization cards from the person of em-
ployees," i.e., concerned with the pulling of cards out of Dewey Donovant's pocket
For reasons indicated above, the testimony about this particular incident is too
vague and "hazy like" to predicate specific findings therein 18 On the other hand
17 See supra regarding my comment about my intent to dispose of the case as to Young
in the light of the record considered as a whole
19
The General Counsel stated on the record that he had served a subpena on Dewey
Donovant prior to the hearing herein, and that ". . . he failed to answer the subpena."
See page 139 of the record. See also the testimony of the witness, Loftin B. Williams,
LESTER BROTHERS, INCORPORATED 1009
we have the Foley incident which I have discussed and disposed of at some length
above, which is within the purview of the allegation in paragraph VI(a) of the
complaint. In all the circumstances discussed, described, and found above, I am
convinced and find that the General Counsel has by a "preponderance of the testi-
mony taken" at the hearing herein substained his allegations in paragraph VI(a)
of the complaint, and that by such conduct the Respondent engaged in activities
violative of Section 8(a)(1) of the Act. Further evidence of the Respondent's
animus toward the effrontery of it employees to exercise their rights under the
Act and the role of Foreman Thomasson in promulgating its ideas in this regard
will be discussed and disposed of below. Suffice it to say at this stage of the report
that his role in the Respondent's efforts to forestall its employees in their efforts
to exercise the rights guaranteed them in Section 7 of the Act persisted right up to
the first day of the hearing herein, which is discussed later.
Further evidence of the Respondent's antipathy toward and concern over the
resumption of the Union's effort to organize its employees after the Fourth Circuit
Court of Appeals decision on March 21, 1962, is found in the testimony of witnesses
Haygood, Reed, and Brown regarding the activities of Foreman Roy Warren.
Let us first consider the testimony of Reed and Brown, both of whom were
present at the time the following incident occurred.
Raymond M. Reed, who at the time of the hearing herein had been employed
by the Respondent for a little over 4 years, testified as to an incident that occurred
about 6:45 a.m. on May 2, 1962. According to his testimony in this regard, which
is fully credited by me, he and several other employees were standing near the
timeclock discussing the Union when Foreman Roy Warren walked up and said
" . .. that before Lawson Lester would let a union come in there, he would close
the plant down." Later on cross-examination Reed testified that Warren also said
during the course of the same conversation, ". . . I would like to see a company
union come in here and that would be all right." That Warren's remarks had
an effect at least on Reed is evidenced from the following excerpt from his testi-
mony on cross-examination:
Q. Did any of the other boys say anything to him?
A. No. We were just talking. We were interested in union labor and Roy
walked up and made his first statement and concluded with the second
statement.
Q. He didn 't make the statement out of a clear blue sky , did he?
A. Absolutely.
Q. In other words, the subject of the union was not up to him at all?
A. That was the definition we had gained from his speech that they did
not want any union in there and we were not talking to Roy in the first place.
Q. But you were all discussing the union?
A. We were discussing the union, yes.
Q. And he came up and heard you discussing the union?
A. Absolutely right.
Q. And then he volunteered these remarks you just told us?
A. Yes.
Q. And you all didn't say anything to him one way or another?
A. That's right.
Q. And the other fellows were Donald Brown and John Adams?
A. Right.
Q. And no one else said anything at all?
A. There were some others there , but I couldn 't tell you who they were
scattered all around . There were three of us who were in on the conversation
at the time Roy walked up and the others were standing around and whether
they heard anything or not, I don 't know. [Emphasis supplied.]
Reed 's testimony regarding the above incident was fully corroborated by the
credible testimony of Henry D. Brown who was present at the time the incident
occurred.
Foreman Roy Warren's testimony regarding the above incident is, to say the least,
most vague and unconvincing as is well illustrated in the following excerpt from his
testimony:
beginning at page 207. 'Since the General Counsel has a remedy to correct the implications
that tend to arise from such situations , I deem further comment in this regard unneces-
sary. See infra regarding the disposition of paragraph VI(d) of the complaint herein
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. He testified about a conversation -in which he was present and others were
present and that you made a remark about Mr. Lester closing the plant down.
Do you remember such a conversation.
A. No, sir.
Q. Do you recall any incident that he may be referring to?
A. The only one I know he could be referring to, we were talking there that
morning and we had been talking about several different things, and I made
the remark that if Mr. Lester ever pulled out from that company, they might
as well shut the doors.
Q. What were you talking about-if Mr. Lester pulled out?
A. What I meant was if Mr. Lester left from down there and went some-
where else, the company would just go under.
Q. What had raised any question that Mr. Lester might pull out?
A. We were just discussing that it led to one thing or another.
Q. Had the stock of the company recently been sold to National Homes?
A. Yes.
Q. And you knew that?
A. Yes, sir.
Q. And Mr. Lester was staying on just to manage the company?
A. Yes, sir.
Upon the record as a whole, and from my observation of the witnesses who testified
at the hearing herein, I discredit Warren's "indirect" and evasive denial that he made
the statements attributed to him by Reed and Brown and as indicated above credit
their testimony in this regard in its entirety. In the circumstances, I find that
Warren's statements to the employees on the morning of May 2, 1962, constituted
interference, restraint, and coercion within the meaning of Section 8(a) (1) of the Act.
In passing, I desire to point out to all concerned that Warren's reference to the
status of Lawson Lester in the above excerpt from his testimony should be con-
sidered in the light of Lester's activities during times material herein which will be
thoroughly discussed and disposed of below.
There yet remains another incident involving the conduct of Foreman Roy Warren
that occurred around the same time as the above incidents. I have reference to the
testimony of Elmer W. Haygood regarding a conversation he overheard between
Foreman Warren and Noel Ramsey, a fellow employee, in the "snack bar" on April
27, 1962. According to Haygood he was seated alone at a table next to Warren
and Ramsey and heard Warren say to Ramsey, "Do you know what would happen
if we got a union in here? Mr. Lester would close the plant." Warren and
Ramsey admitted, in substance, that they were together in the snack bar on the
day in question, but denied that the Union was mentioned in their conversation.
Their version of what transpired and was said at the time in question has been most
difficult to fathom According to their testimony they were discussing the possi-
bility of the Respondent's cutting down its "working time" during the coming winter
as it had done during 1961-62, when it had at times only worked 3 days a week.
Since the conversation we are concerned with occurred on or about April 27, 1962,
a little over a month after "winter" was "officially" over, and well into the spring-
time, it is most difficult for me to visualize a situation where two normal persons
would sit down and worry about next winter, when its official arrival was at least
8 months in the "offing." Normally, most of us would be thinking about the
"flowers that bloom in the spring" and the summertime, that was only a few weeks
away, not the "miseries" that have accompanied the last two or three winter seasons
across this land of ours. In all the circumstances and my overall appraisal of both
Warren and Ramsey at the time they testified, when considered in the light of my
findings as to Warren's credibility as a witness, I am convinced and find that he
made the remarks attributed to him by Haygood on April 27, 1962; and that his
remarks to Ramsey when considered in the light of the whole record herein, con,
stituted interference with, restraint, and coercion within the meaning of Section
8(a)(1) of the Act-19 I also find that Warren's remarks, either standing alone or
considered in the context of the whole record, were part and parcel of the Respond-
ent's determination to forestall its employees in their efforts to exercise the rights
guaranteed them in Section 7 of the Act. More as to the Respondent's goal in this
regard follows immediately below.
We now come to the activities of Lawson Lester, the Respondent's president.
during the time we are concerned with herein. As indicated above the Regional
Director for Fifth Region issued his "Decision and Direction of Election" in Case
No. 5-RC-3871, on August 14, 1962. Thereafter on August 28, 1962, the Respond-
19 See Texas Industries , Inc.; et al ., 139 NLRB 265
LESTER BROTHERS, INCORPORATED 1011
ent, by Lawson Lester, sent an 8-page letter to all 80 of its employees, in which,
to put it mildly, he expressed the Respondent's opposition to the Union?° As I see
it the primary purpose of the letter was to remind the employees that it would be to
their personal interest to reject the Union as their agent for the purposes of collec-
tive bargaining in the forthcoming election that was scheduled for September 12, 1962.
Thereafter on September 10, President Lester called the employees together and
spoke to them about the coming election, which was to be held 2 days later. As far
as I am concerned the speech and the letter speak for themselves, and in all fairness
should be considered in their entirety and not by lifting a paragraph here and there
out of context. In all the circumstances that we are confronted with herein, I honestly
feel that the speech to the employees should be considered in its entirety by all con-
cerned herein, for the primary reason that it portrays the attitude of the Respondent
over the years toward the efforts of its employees to exercise their rights under the
Act. With that in mind I attach President Lester's speech of September 10, 1962,
as Appendix B. I have taken this action after long and careful consideration and
realize that it will encumber this, an already too cumbersome, report. I have selected
the speech for insertion herein because I feel that it is in most respects cumulative
of what was in President Lester's letter to the employees of August 28, 1962. An-
other reason for appending the speech hereto is because it was made after the
Fourth Circuit Court of Appeals entered its decision on March 21, 1962, enforcing
the Board's Order in the previous case. When all these factors are taken into con-
sideration, then my ultimate disposal of the case as to Hobert Young will be more
understandable to all concerned herein. A third reason is because the speech am-
plifies in no uncertain language the problems that we are faced with in reaching a
final determination of the issues we are confronted with herein.
As indicated above I feel that the "speech" speaks for itself, and further elabora-
tion is unnecessary.
After long and careful consideration of the entire record herein, I am convinced
and find in agreement with the General Counsel that the letter and speech of Lawson
Lester to its employees on August 28 and September 10, 1962, constituted (as alleged
in his oral amendment to the complaint, paragraph VI(c)) interference with, re-
straint, and coercion within the meaning of Section 8(a) (1) of the Act.21
It was in the light of all of the foregoing that the hearing herein was heard before
me on October 30 and 31, 1962. What transpired at that time, insofar as certain
witnesses that the General Counsel had subpenaed to appear and testify are concerned,
was the predicate for the oral amendment to paragraph VI of the complaint, which
has been set forth in toto above. Suffice it to say at this point that the amendment
concerns certain conduct of Foreman Russell Thomasson and Wilburn M. Car-
michael involving the interrogation of the witnesses referred to above before they
appeared at the hearing herein.
As far as I am concerned, the most serious allegations concerns Foreman Russell
Thomasson. According to the credible testimony of Raymond M. Strader, he was
subpenaed by the General Counsel to appear at the hearing herein as a witness. On
the morning he was to appear he went to his foreman, Russell Thomasson, and dis-
cussed the matter with him. In the course of their conversation Thomasson said,
" . You don't have to go if you don't want to as it is not legal." Even so, Strader
did appear and, as indicated, testified at the hearing herein.
Thomasson not only admitted that he engaged in the foregoing conversation with
Strader but that he told him in substance that "you don't need to come up here at all,"
meaning, of course, to appear at the hearing herein in answer to the General
Counsel's subpena. His testimony on direct examination in this regard is most in-
teresting. Consequently the following excerpt therefrom follows below:
Q. He testified in this case about you speaking to him yesterday morning,
I believe it was, in connection with his coming to this hearing. Do you recall
talking to Mr. Strader within the last day or so?
A. He came up to me and asked about coming up to me and I said, "You
don't need to come up here at all."
Q. Where was this?
A. At the plant.
Q. When?
20 See General Counsel's Exhibit No. 5
n See the decision of the Fourth Circuit Court of Appeals regarding similar statements
by Lester at a meeting of employees that was considered by the Board and the court In
the prior ease For citations see supra See also Texas Industries, Inc ; et at, 139 NLRB
365.
712-548-64-vol. 142-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I believe it was yesterday morning.
Q. Was anybody present except you and him-just you two?
A. I don't remember. I believe there were some around close by.
Another incident of the Respondent's concern over the appearance of its em-
ployees at the hearing herein who had been subpenaed by the General Counsel is
found in the testimony of Richard Hairston 22 According to Hairston's testimony he
went to Carmichael on the morning of October 30, 1962, and told him that he had
to appear at the hearing herein in answer to a subpena from the General Counsel.
In the course of their conversation, Carmichael interrogated him regarding what he
had told the investigators for the Board, and endeavored to get him to testify to
the contrary at the hearing herein. Even a cursory examination of the record herein
indicates, at least to me, that the primary object of the interrogation of Hairston
on cross-examination was to cast doubt on his testimony on direct examination and
to becloud the issues herein as to Hairston's testimony in regard to past practice in
the cutting of 2-inch by 4-inch by 14-foot 3/4-inch rafters when there were no
2-inch by 4-inch by 14-foot lengths on hand.
In my opinion, Carmichael's attempt to have Hairston testify contrary to his
pretrial statements to the Board representative who investigated the charges herein
against the Respondent prior to the issuance of the complaint, and thereafer, was
unquestionably unlawful interference not only with the rights of employees but of
their rights as citizens of the United States of America as well. In the cir-
cumstances, I find that Foreman Carmichael's interrogation of Hairston regard-
ing the testimony he was about to give at the hearing herein constituted interference
with, restraint, and coercion of the rights guaranteed employees in Section 7 of
the Act, and hence violative of Section 8(a) (1) thereof 23
In passing, I desire to again point out that Hairston impressed me as an honest
and forthright witness, and that I credit his testimony not only as to the above
incident, but also as to his experience as a sawer in the truss department, and in
particular regarding the custom and practice that prevailed therein prior to the dis-
charge of Hobert Young on April 18, 1962
An example of the vigorous cross-examination that Hairston was subjected to
at the hearing herein is found in the following excerpt from his testimony 24
Q Didn't you tell Mr Carmichael this morning that you had told the
Labor Board man two different tales? You told him first that you had to get
permission and on another occasion, you told him that you didn't have to
get permission, or was it the other way around?
A. I told Mr Carmichael that he asked me if I took 14'3/4" out of 16'
two-by-fours, and I told him yes.
Q. What did you tell him about permission-anything?
A. He asked me did they give you permission and I said I asked for it
the first time.
Q Didn't you tell Mr Carmichael this morning that you had told the
Labor Board man two different stories on the subject of getting permission?
Didn't you tell Mr. Carmichael more specifically that on one occasion you
told the Labor Board man that permission was not necessary and on another
occasion you told the Labor Board man permission was necessary and that you
had to get it every time?
A. I dont' remember telling Mr. Carmichael that, no.
Q You did tell him?
A. Not that. I didn't tell him what you just repeated.
Q I want you to tell us what you did tell Mr. Carmichael on the subject
of telling different stories to the Labor Board
A. I don't remember telling the Labor Board any stories. All I told him
this morning, he asked me what had I told him and I said that the man had
asked me had I ever cut 14'3/4" stuff out of 16' and I told him yes. Mr.
Carmichael asked me did I get permission and I told him yes, the first time.
See supra as to Hairston's testimony regarding the case of Hobert Young.
23 See Teras Industries, Inc ; et al , supra
-4I desire to point out to all concerned that I have no criticism of counsel's cross-
examination of Hairston That was not the purpose of my comments and findings
regarding the Hairston episode My sole purpose in this regard was to dispose of the
issue in the light of the record as a whole. The right of cross -examination is of course
fundamental and essential to the survival of our legal system Only by the right of
cross-examination can we, the people, be assured of a fair disposal of our legal problems
Insofar as I am concerned the more vigorous the cross-examination, the better for all
concerned, as a means to arrive at the truth of the matters at issue. So is it here.
LESTER BROTHERS, INCORPORATED 1013
Q. Then you say that you did not tell Mr. Carmichael anything about giv-
ing two different versions to the Labor Board? You didn't tell Mr. Carmichael
anything to that effect?
A. No.
Q. Do you understand my question?
A. I think so.
Q. You did not tell Mr. Carmichael that you had given two different stories
or two different versions to the Labor Board?
A. 1 just told you what I told Mr. Carmichael.
Q. Will you answer my question?
A. No, I didn't tell him two different stories.
Mr. BLAKENEY: That is all.
At this point I desire to point out to all concerned that I am well aware of the
fact that this report may be considered most burdensome by the insertion of
excerpts from the testimony of certain witnesses who testified at the hearing herein,
nevertheless I am convinced that such a procedure was necessary for the follow-
ing reasons. In the first place we are, in reality, concerned with a situation that
has existed for at least 3 years. During this period the Board has sanctioned a
settlement agreement to attain the stated purpose of the Act, to promote industrial
peace; it has issued a cease and desist order, in a prior case, which was approved
in toto by the Fourth Circuit Court of Appeals on March 21, 1962, and yet in
spite of all of the foregoing we have a Respondent that, insofar as I am concerned,
has continued to engage in the same sort of conduct that it was charged with
originally in the first case 25
The importance of Hairston's testimony will be apparent below in my ultimate
disposal of the issue as to Hobert Young. Suffice it to say at this point that
Carmichael's interrogation of Hairston, as to the matters he had discussed with the
General Counsel prior to the date he testified at the hearing herein, shed considerable
light on the Respondent's contention at the hearing herein that it had a rigid rule in
regard to the cutting of 2-inch by 4-inch by 14-foot 3/4-inch rafters out of 16-foot
"stuff," that was in force at all times material herein.
Overall Conclusions and Findings as Regards the Alleged Violations of
Section 8(a)(3), (4), and (1) of the Act
We now come back to the case as to Hobert Young, the alleged discriminatee
herein. Quite frankly the case as to Young has perturbed me no end. Neverthe-
less, after long and careful consideration of the many facets to this issue, I am
convinced and find that Hobert Young was discharged by the Respondent on
April 18, 1962, because of his membership in, and activities on behalf of, the Union;
and because he gave testimony under the Act in the prior case and that by its
action in this regard the Respondent engaged in conduct violative of Section 8(a)
(3), (4), and (1) of the Act. Many factors have entered into my reasoning
in this regard; each in its turn will be discussed below.
To begin with the concession of counsel for the Respondent at the onset of the
taking of testimony at the hearing herein as to the Respondent's knowledge of
Young's union activities at all times material herein has been a most persuasive
factor to me in disposing of this pestiferous issue, particularly in view of the fact
that neither the General Counsel nor the Respondent chose to call Posey Gilbert, Jr.,
as a witness at the hearing herein. In such circumstances, I of course cannot rely
on the fact that Posey was with Young, on the night before he was fired, on the
roof of a neighbor's house when Stewart drove by in his car to Young's home, as
a source of the Respondent's knowledge that the Union had again started its
campaign to organize the Respondent's employees. To do so would require the
building of inference upon inference ad infinitum, which I cannot and will not do
as a predicate for a fact. This was one of the primary reasons for my decision
to dispose of other factors involved in the case at hand before disposing of the
issue as to Young. In other words I felt that it was the more logical to set forth
a picture of what we are faced with herein before disposing of the case as to
Young. A further factor was the fact that Young was fired within less than a
month after the Fourth Circuit Court of Appeals handed down its decision en-
forcing in toto the Board's Order in the prior case.26 Normally, one would ex-
pect, not only the Respondent herein, but all other "persons" as well, to take
cognizance of the seriousness of a decision of a United States Court of Appeals,
25 See Board's Decision and Order in Case No. 5-CA-1717, 131 NLRB 1144.
26 See supra for citations and comment in this regard.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but such is not the case here. This is well illustrated by the conduct of the Re-
spondent herein from its president down to those in the lower echelon of its su-
pervisory staff at all times material herein and after the Fourth Circuit Court of
Appeals enforced the Board's Order in the previous case, on March 21, 1962.27 It
is in the light of this "atmosphere" that I will dispose of the case as to Young.
I have given long and careful consideration to the Respondent 's contention that
it discharged Young because he wasted materials in the mode and manner described
at great length above. I have also given serious consideration to its contention that
Young and other "sawers" were required to secure permission from their foreman
before they cut 2-inch by 4-inch by 14-foot 3/4-inch rafters out of 2-inch by 4-inch
by 16-foot "stuff." I also understand the purpose of the rule against waste, and the
reasonableness thereof when considered in the light of the nature of its business
and the raw materials used to fabricate its finished product. On the other hand,
I have found above that both Young and Hairston had cut 2-inch by 4-inch by
14-foot 3/4-inch rafters out of 2-inch by 4-inch by 16-foot "stuff" on several occa-
sions in the past and that they had never been reprimanded for doing so. I have
also found that the 21-inch blocks that were left alter the 14-foot 3/4-inch rafters
were cut off the 16-foot "stuff" was used to make braces for the 2-inch by 4-inch by
28-foot rafters that the Respondent also used in the manufacture of its houses.28
In addition I have found above that both Young and Hairston had used their own
judgment in the past when they were faced with a situation that required them to
cut 2-inch by 4-inch by 14-foot 3/4-inch rafters out of 16-foot "stuff"; and that in
such instances they did not first request and secure permission from their foreman
to do so. The gist of their testimony in this regard was that it was their under-
standing that having once been told by their foreman to cut 2-inch by 4-inch by
14-foot 3/4-inch out of 16-foot "stuff" when the regular 14-foot "stuff" was not
available that it was not necessary for them to get permission to use the 16-foot
"stuff" each and every time 14-foot "stuff" was not available. This was the pro-
cedure that they had followed for a considerable length of time before Young was
discharged on April 18, 1962.
Upon all of the foregoing as to the Respondent 's rule against waste and Young's
cutting 2-inch by 4-inch by 14-foot 3/4 -inch rafters out of 16-foot "stuff," which it
contends was the reason for his discharge, I find as follows. In the first place I find
that there was a rule that a "sawer" should first secure permission to cut the 16-foot
"stuff" when the 14-foot "stuff" was unavailable. On the other hand I find that
though Young and Hairston had not followed the rule in the past, it was due to
their misinterpretation thereof, and that regardless of their shortcomings in this
regard they were neither critized nor reprimanded for their breach of the rule in
question by any of their supervisors. This brings us up to what I consider a more
important factor herein. According to the record, there would be a piece or block
of 2-inch by 4-inch about 21-inch long left over which naturally would drop down
on the floor near the saw, and would be in plain view of any interested person who
had occasion to be around Young's working place. In such circumstances, then
why was it that the Respondent never "caught up" with Young's derelictions in this
regard until the morning he was fired? This brings us up to my reference to the
"old routine" as practiced in the past by Lazenby and Carmichael in the discharge
of certain employees in the prior case. Let us now take a look at the following
excerpt from the decision of the Fourth Circuit in the prior case.
On the morning of June 3, Martin, reported to his gable end table at seven
o'clock, the usual time to begin work. A short time thereafter, Foreman Car-
michael approached the table where Martin and his co-workers were construct-
ing a sweep-type gable end. Carmichael watched the men for about five minutes,
then walked away without making any comment. Shortly afterwards Lazenby
came by and silently watched the men for several minutes. About fifteen
minutes later, at 8:30 a.m., Lazenby called Martin and his co-workers into his
office and handed them their time cards marked "unsatisfactory work." No
further explanation for the firing was given them." [Emphasis supplied.]
Insofar as I am concerned we are faced herein with virtually the same "routine"
that was used by the Lazenby-Carmichael " team" in the performance of their "Act"
in the prior case when other employees of the Respondent were discharged. The only
"switch" from the "old routine" is that here it was Carmichael standing by with
Lazenby making the "check" on Young.
97 See footnote 26, supra
21 See supra.
LESTER BROTHERS, INCORPORATED 1015
That the Respondent was perturbed regarding the discharge of Young and in par-
ticular regarding the reasons it had advanced for its actions in this regard is well
illustrated in the testimony of Hairston, which has been discussed at considerable
length above. This incident has been a most compelling and persuasive factor to me
in my ultimate disposal of the case as to Young. I have reference to Carmichael's
concern over the testimony that Hairston was about to give or might give at the
hearing herein as to the practice or custom of the sawers at times material herein,
particularly the use of independent judgment by Young and himself when they were
unable to find 2-inch by 4-mch by 14-foot "stuff" to cut 2-inch by 4-inch by 14-foot
3/4-inch rafters out of.
Before we go any further in this section of the report , I desire to point out to all
concerned that I am well aware of the age-old maxim that an inference may be
drawn on a fact but not upon an inference ad infinitum ? Insofar as I am concerned
the most potent fact we are faced with herein is the decision of the Fourth Circuit
Court of Appeals on March 21, 1962. The Respondent was well aware of the
significance of the Circuit Court's decision, and that by virtue thereof that the
Union would in due course renew its campaign to organize its employees. (Quite
frankly one would be most naive to ignore the significance of the court 's decision
upon the Respondent in this regard .) In such circumstances it is reasonable to
infer from all of the past conduct of the Respondent and from what happened after
the court's decision that it would and in fact did resort to the same sort of tactics it
had in the past to forestall the Union in its organizational efforts. The Respondent
admittedly was well aware of the fact that Young was one of, if not the most, out-
standing union adherent and/or supporter among its employees . In the circum-
stances, I am convinced that its first reaction to the court's decision and what would
inevitably flow therefrom , was to resort to the same tactics it had used in the past to
frustrate and restrain its employees from attempting to exercise their rights under
the Act, by "getting rid" of Young by any means within its power, fair or foul, at
its first opportunity. That opportunity arose on the morning of April 18, 1962,
which it seized upon to carry out its determination in this regard , in the circum-
stances described, discussed, and found herein above.
From all of the foregoing, I am convinced and find that the Respondent's con-
tention that Hobert Young was discharged because he wasted materials was mere
pretext and that the real reason or motive for its action in this regard was because
of his role as an outstanding leader of the union movement among its employees
which he had so clearly demonstrated as a witness for the General Counsel in the
prior case of which it was well aware, not only visually at the time he testified but
as a matter of public record in the decisions of both the Board and Fourth Circuit
Court of Appeals, which legally, physically, and technically were before it at all
times material herein. In all of the circumstances described , discussed, and found
above, I deem further comment unnecessary as to the Respondent's violation of
Section 8(a) (3), (4), and (1) of the Act.
In conclusion, I find upon all of the foregoing that the Respondent by discharg-
ing Hobert Young on April 18, 1962, engaged in conduct violative of Section 8(a)
(3), (4), and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discharged Hobert Young on April 18,
1962 Accordingly, it will be recommended that the Respondent offer Young
immediate and full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights or privileges, and make
him whole for any loss of pay suffered by reason of the discrimination by payment
to him of a sum of money equal to that which he would have earned as wages
from the date of the discrimination to the date of reinstatement , less his net earn-
29 See supra as to my comment regarding Posey Gilbert, Jr
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-ings during such period, in accordance with the formula prescribed in F. W. Wool-
worth Company, 90 NLRB 289, together with interest on such sum, such interest
'to be computed in accordance with the formula prescribed by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the cease , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating with respect to the hire and tenure of employment of
Young, thereby discouraging membership in the Union, the Respondent has en-
gaged in unfair labor practices within the meaning of Section 8 (a)(3) and (4)
of the Act.
5. By interrogating its employees who were subpenaed to testify at the hearing
herein regarding the testimony they were to give in response to said subpenas, and
stating to said employees that they were not required to comply with said subpenas,
the Respondent has engaged in unfair labor practices within the meaning of Sec-
tion 8 (a) (i) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended order omitted from publication.]
APPENDIX B
Memorandum : SEPTEMBER 10, 1962.
To: All Employees of Lester Brothers, Inc.
From: L. L. Lester, Jr.
Subject: UNION
I have asked that you come together so that I may have the opportunity of talking
with you for a few minutes about the matter which is now up for decision here-a
subject which I believe is of interest to you-a subject which I know is important to
all of you.
In talking with you, I am going to refer to some notes which I have here. This is
for the reason that I want to be entirely clear and definite in what I say to you-and
also in order that there may be no doubt or question as to what I do say.
The time is almost at hand for you to decide whether you want to bring the Car-
penters Union AFL-CIO into the Plant or not. Tomorrow, Wednesday, September
12th is the day of decision . Which way will you choose? The first thing I will do is
to explain the Notice of Election to you.
In order to make your decision carefully and intelligently, you must look at the
facts. Union organizers can say anything and promise anything. They do not have
to back up what they say to you. They are here today and gone from here tomorrow.
What we say to you we are responsible for. What we say to you-we can back up
and we will back it up.
I believe it is only natural for people to vote for what they think will genuinely
work to their benefit-but if you will think carefully and weigh this matter thor-
oughly, you will surely come to the conclusion that if the Union were to get into this
operation, the result would not be to benefit you but to harm you and to harm you
seriously. It is not mainly the interest of this Company- it is mainly your own
interests-which are at stake in this election.
Why do I say this? Because I foresee the trouble that would come if this Union
were to get in here. And that trouble, when it came, would hurt you worse than it
would hurt the Company. Unions have brought strikes and trouble elsewhere.
There is every possibility that they would bring the same thing here.
Sometimes the question is raised:-If the Union is a bad thing for the employees
of a Company, why is the Company concerned about that? The answer is that if a
Union brings trouble to you, it brings trouble to the Company, also. It hurts you
and the Company at the same time. To keep this business going is truly to our own
interests. When a Union pulls people out on a strike and stops the work in any
operation, it costs employees just as truly as it costs the Company. Your interests
LESTER BROTHERS, INCORPORATED 1017
and the Company 's interests are in the same boat on this matter . Do you see any
good reason to risk sinking that boat?
Sometimes people have the idea that all they need to do is vote for the Union
and immediately and automatically it will bring many benefits of various kinds.
There is no truth in that . In fact, just the other day you received a letter from
the Union outlining the rates of pay that National Homes is paying at Lafayette,
which I admit looked very good on paper , but what they did not tell you is just
as important as what they told you . They did not tell you how many days the
Lafayette plant was closed last year whereas you worked every week here at Lesco.
They did not tell you how many employees work at the Lafayette plant which
is basically about the same number workers as Lesco, and the Lafayette plant pro-
duces about four (4) times as many houses . Automation is the answer! It has
always been the policy of Lesco to make available more jobs for more people.
They did not tell you if the orders gave out at 10 :00 A.M. in the morning, they
were off the rest of the day, whereas we here at Lesco make a job for the balance
of the day.
They did not tell you how our good colored brothers are missing from the em-
ployment at Lafayette . They have only three ( 3). We here at Lesco have bet-
ter than 25 %. We have always used the policy of a man 's merit and ability and
not his color.
Yes, they failed to tell you the whole story. They only pointed out the rosy
side.
They didn't give you the cost of living up in the Chicago area. For example,
I was in Chicago a few months back and I got in conversation with a colored taxi
driver , and he told me he was paying $110 .00 per month rent for him and his
wife for one room. Now let's not try to kid one another . Everything is more
or less on a par or equal basis in various localities.
I have all down through the years been with the working man. When you get
right down to it, that 's all I have ever been . I worked on the farm until I started
working with logging, lumbering , houses, etc . and I have never known anything but
work; therefore , I am constantly thinking of you all, but the plain truth is that
the rate of pay must be in accordance with the territory in which you operate. To
say it real simple. The prices of our houses must be competitive with other houses
built in our operating area, or we are just plain out of business. I could promise,
you $10 an hour, but if there is no money to pay you with or no work to perform,
you still wouldn 't be getting anywhere.
I might at this point tell you just what this amounts to. For example, all of
us worked hard the first six (6) months of this year , and by working together, the
Company made a little profit . As a normal practice, I do not give out the profit
figures, but in this instance so that you may understand , our profit for the first six
(6) months of this year was $37.00 per house. I know none of you would want
to work for a company that wasn 't making something , because they could not
pay you very long to say the least. We are in the process now of producing the
catalogues for the houses for '63, and we trust that we will be able to get a little
more in '63, thus pass most of it along to all of you good members of the Lesco
Family.
If this Union were to get in here, there would still be only one way it could try
to force this Company to do anything that we are not willing or able to do. That
would be by pulling you out on strike. We want you to know that this Company
has no intention of yielding to any such pressure as that-either now or hereafter.
It is our hope that you will realize-while there is yet time-that you have nothing
to gain by going down that road'
It is important for you to consider what you have as matters now stand-without
your having to pay Union dues and without any Union having power and control
over you. It is also a fact-and we have checked carefully on this that your earn-
ings are up on the top level for our line of work in this entire area. The other
benefits which you have-such as vacations and vacation pay and paid holidays and
life insurance and hospitalization insurance , both for yourselves and your families,
on which the Company pays the major part of the cost, together with sickness and
accident coverage over and above your workmen 's compensation , and the like-you
will not find any better among any of the Companies in our line of business-either
Union or non-Union. These facts you should not forget . Nor should you overlook
the fact it is the Company which provides these things-not the Union!
Certainly also you should not forget the steady work which you have had here
without a Union. You have not had short workweeks nor short pay checks at this
Plant . Even when our business has not been good , we have continued to operate
steadily in order to keep full pay checks going to you and into your homes. Do you
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know of any unionized Company that does that ? These things you ought to keep in
mind.
Now let 's consider why it is that the Union organizers are here among you. You
know the answer to that. They are not here because they love you . They are here
because they want some of your money . They are in business to get money from
working people . In their September 8th greetings they did not tell you how much
money the members in Lafayette were paying in local dues , international dues, assess-
ments, and in addition thereto, initiation fees. The drive they are putting on here is
for the purpose of getting a slice out of your pay check; somewhere in the neighbor-
hood of a quarter of a million dollars-in next 10 yrs. REAL MONEY!
In this connection , there is another thought which I believe you should bear in mind.
The Union which is trying to get you into its corral is, as you of course know, the
Carpenters Union, AFL-CIO. You know the local organizers of the Union, but
do you know the men at the top-the men who run this Union? Do you know who
they are? Do you know anything about them? Do you think it wise to align your-
self, give your name, your money and your support to an organization led by men
who are strangers-and will continue to be strangers to you?
I will tell you something about this Union which you perhaps did not know.
The President-the head man-of this Union, the Carpenters Union, was not long
ago convicted in Courts of his home State for criminal felony and has been sen-
tenced to serve a term in the penitentiary. Did you know he had been up before
the rackets committee? Mr. Hutchinson was asked about the Carpenters Union
expenditures of $300,000 on a paper praising him and his father, the late Carpenters
Union President. The clipping from the paper further states that he is a reputed
millionaire and inherited a huge fortune largely amassed by his father from union
funds, including orange groves and a race track in Florida.
Now he is the man who would be your "leader" if you were to get into the Car-
penters Union. Is this the leadership that you now want to line up with? Do you
want to be under the control and domination of such men? Do you want them-
unknown to you-to be able to determine when you will work and when you won't
work? Is this where you want to trust your future and the future of your families?
You now have freedom that you should value. No Union takes any money out
of your pay check. No Union tells you when you will work and when you won't
work. No Union controls your decisions nor dictates to you what your course of
of action shall be.
You don't have to look far to find people who have fared very poorly indeed
under Unions-right here in Martinsville and in the Martinsville area. Those people
tried out the Union and found to their regret that they were better off when they did
not have it. And some of those jobs are now closed down and out of business. Did
the Union protect those People? You know that the Union did not protect them!
Is it a wise thing to follow the same course and put yourself under the control of
the Union, so that it can lead you down the same road where it has led others?
It intrigues me to watch these professionals figuratively "brain wash" some of
you good people in the Lesco Family. They are good, because that's their business.
I hope you will remember the fact that you may have signed a Union card at some
time or other has no bearing upon your right to vote as you see fit in this election.
You should vote as you believe to be wise and best in the light of the whole matter
as you now see it. You are completely free to vote against the Union regardless of
the fact that at some time or other you may have signed a Union card. And, re-
member you will never have to belong to a Union to work at Lester Brothers, and,
also remember that the Law of the State of Virginia guarantees you the right to work
on the job of your choice.
Bear in mind that it is only genuine cooperation between you and the Company
which can mean the success of this business and the assurance of jobs and future
security for yourselves and your families here. No Union creates these things. A
Union often tears them down! Perhaps you do get irritated at times with certain
people. I suspect we all do. But it is not the part of wisdom or justice to take
our feelings towards a few people out on all our fine Lesco Family friends and their
families. Security for you and your families can never be accomplished by our
pulling apart here-but only by our pulling together!
Keep in mind this fundamental question :-"What is it that I may expect if this
Union were to get in here?" The answer-and you should not ignore it nor over-
look it-the answer is TROUBLE! That is what Unions have brought elsewhere-
strikes, lost work, lost pay, lost jobs-debt and regret-bitterness and misery. Do
you see any good reason to risk all of that here?
Think about these things carefully . Think about them earnestly . Then make up
your mind and vote . Vote as you believe will be best for your future and the future
BLUMEL IGNITION CO. 1019
of your family-best for the peace and welfare of yourself and of those who are
dependent on you.
This matter is a personal matter with me , for if you vote for the Union at Lester
Brothers it means you are voting against me . You would actually be voting for
Hutchinson & Stewart in preference to voting for James Shockley and Lawson Lester.
I can not believe this is what you really want.
By all means vote in this election tomorrow!
Blumel Ignition Co. and International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
Local 436. Case No. 8-CA-2977. June 10, 1963
DECISION AND ORDER
On April 10, 1963, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
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 and the entire record in this case, including the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as noted below.
ORDER
The Board adopts as its Order the Trial Examiner's Recommended
Order, with the modification noted below.'
IInterest at the rate of 6 percent per annum shall be added to the backpay of Leslie
Smith, to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716. For the reasons set forth in the dissenting opinion in Isis, Member Rodgers would
not award interest.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10 (b) of the National Labor Relations Act, as
amended, 29 U.S.C., Section 151, et seq., herein called the Act.
The International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , Local 436, herein sometimes called Local 436 or the Union,'
' The name of the Union was amended at the hearing to be Excavating , Building Mate-
rial Construction Drivers and Race Track Employees Local 436 , affiliated with the Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America.
142 NLRB No. 109.