National Paper Co.

National Labor Relations Board - Board Decisions

Feb 24, 1953

102 N.L.R.B. 1569 (N.L.R.B. 1953)

NATIONAL PAPER COMPANY 1569
NATIONAL PAPER COMPANY and ATLANTA PAPER PRODUCTS AND SPE-
CIALTY WORKERS, LOCAL No. 527 , AFFILIATED WITH THE INTERNA-
TIONAL PRINTING PRESSMEN & ASSISTANTS ' UNION OF NORTH AMERICA,
AFL
NATIONAL PAPER COMPANY , SOUTHERN DETECTIVES , INC., AND JAMES
M. FIER and ATLANTA PAPER PRODUCTS AND SPECIALTY WORKERS,
LOCAL No. 527, AFFILIATED WITS THE INTERNATIONAL PRINTING
PRESSMEN & ASSISTANTS ' UNION OF NORTH AMERICA , AFL. Cases
Nos. 10-CA-1352 and 10-CA-1396. February 04, 1953
Decision and Order
On September 3, 1952, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, each of the Re-
spondents filed exceptions and supporting briefs. The Respondent
National Paper Company also filed a motion to reopen record, a re-
sponse to which was filed by the General Counsel.
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 Herzog and Members Styles and Peterson].
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 Interme-
diate Report, the exceptions and briefs, the motion to reopen record
and the response thereto, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following additions and modifications.
1. As found by the Trial Examiner, the Union was certified on
March 27, 1951, as the representative of Respondent National's em-
ployees. Negotiations for a contract began on May 14, 1951, and after
several unsuccessful bargaining meetings the Union called a strike on
August 16, 1951.
During this period preceding the strike, as found by the Trial
Examiner, Respondent National engaged in a campaign of interro-
gation, threats of reprisal for union activity, and promises of benefits
to the employees if they would abandon the Union. This campaign
culminated on August 10, 1951, in negotiation of a contract between
National and Respondent Southern for the services of armed guards,
102 NLRB No. 157.
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who came to the plant on August 13 and proceeded to patrol it, keeping
the employees under surveillance until August 16, when they struck
in protest against this and other conduct of National.
Like the Trial Examiner, we find that Respondents National and
Southern, by subjecting the employees to constant surveillance by
armed guards while at work, violated Section 8 (a) (1) of the Act,.
Such conduct, occurring as it did during a critical stage in the nego-
tiations between National and the Union, was reasonably calculated
to interfere with, restrain, and coerce the employees in the exercise of
their right to engage in concerted activities.
Like the Trial Examiner, we reject the contention of Respondents
National and Southern that the guards were hired only for the pur-
pose of protecting National's property and employees in the event of
an anticipated strike. No satisfactory explanation has been offered as
to why, in accomplishing this purpose, it was necessary for the guards
to patrol the production area of the plant and watch the employees at
their tasks. The alleged protective purpose could have been as well
served, without any harassing effect on the employees, by stationing
the guards at appropriate points adjacent to the production area,
where they would be readily available in case of any strike emergency.
Moreover, whatever violence a strike might have been expected to
engender, there is nothing in the record to show that National had any
reason to believe that such violence would occur, contrary to normal
experience, inside the plant and before the employees walked out. In
any event, whatever National's motive in policing the working area
of the plant with armed guards, it is sufficient that such conduct was
reasonably calculated, in view of its timing, and in the context of Na-
tional's unlawful antiunion campaign, to interfere with, restrain, and
coerce its employees in the exercise of their right to engage in con-
certed activities.2
2. The Trial Examiner found, and we agree, that Respondent Fier,
one of the armed guards referred to above, during the strike at Na-
tional's plant, made threatening and abusive telephone calls to Union
Secretary Sanders and to her mother, in which he threatened both of
them, as well as Sander's child, with physical harm because of Sand-
ers' union activity, and that Fier made similar calls about the same
time to Kincaid, one of the strikers. Like the Trial Examiner, we
find that by this conduct of Fier all three Respondents violated Sec-
tion 8 (a) (1) of the Act.
i However, we do not agree with the Trial Examiner 's finding that the reason for hiring
the guards was to precipitate a strike. We find rather that the surveillance of the em-
ployees by the armed guards was reasonably calculated to coerce the employees to refrain
from striking and from engaging in any other union activities.
2 See Republic Aviation Corporation v. N. L. R. B, 324 U. S. 793.
NATIONAL PAPER COMPANY 1571
The Trial Examiner's findings with respect to the Fier incident
are based on the uncontradicted and mutually corroborative evidence
of Sanders, her mother, and Kincaid, all of whom testified that they
received the calls, that the caller did not identify himself at first, but
that when they called National's plant a man with the same voice
answered the phone and identified himself as James Fier .3 Kincaid
testified also that he overheard one of the armed guards talking out-
side the plant and recognized the same voice. Kincaid gave a detailed
physical description of the guard. It is undisputed that during the
period that the foregoing calls were made Fier was employed as an
armed guard at National's plant.
Notwithstanding the foregoing damaging testimony, Fier, although
duly served and notified of the hearing, failed to appear and his coun-
sel failed to give any satisfactory explanation of Fier's absence or to
show any good reason why the hearing should be continued, as re-
quested by Fier's counsel, to give him further opportunity to attend .4
Under these circumstances and upon the entire record, we find that
Respondent Fier made the threatening calls attributed to him by San-
ders,,' her mother, and Kincaid, and that by such threats Respondents
National and Southern, as well as Fier, violated Section 8 (a) (1)
of the Act.
The Trial Examiner did not credit the testimony of Respondents
Southern and National that they did not authorize, and that in fact
they had no knowledge of, Fier's conduct. In their briefs, these Re-
spondents contend that there is no evidence of such knowledge or
authorization . We find, however, that National and Southern are
8 Sanders ' mother's testimony varies from that of the others only in that she did not
recall the name given by the man who answered the phone
In view of the circumstances set forth above in the text, we find that the motion of
Fier 's counsel for a continuance was properly denied Respondents Southern and Fier, in
their brief filed with the Board , requested that the Board reopen the case to give Fier a
further opportunity to be heard. As we are satisfied upon the entire record that Fier has
already had adequate opportunity to be heard, this request is denied
5In crediting the identification of Fier by Sanders and Kincaid, me do not rely upon
the testimony of Sanders set forth in the Intermediate Report that , after breaking off one
of Fier 's calls to her, she asked the operator for the number of her caller , and that the
operator gave her the first part of a number ( CY 4) which corresponded to the first part
of National 's number . ( CY 4655 .) In rejecting this testimony . we rely on certain infor-
mation in exhibits submitted with National's motion to reopen the record , filed with the
Board, which information is acknowledged by General Counsel to be true, that it would
be impossible for a telephone operator, after a connection has been broken, to trace a call
from one dial telephone to another.
As requested in said motion , and with the consent of the General Counsel , we have
considered the foregoing exhibits submitted with the motion as part of the evidence in
this case In the light of the foregoing conflict between said exhibits and Sanders ' testi-
mony we have not credited Sanders ' testimony on the Fier incident or any other matter,
except where it is corroborated by other, credible evidence , or where it stands alone as the
only testimony on a particular point and the Respondents , although having adequate
opportunity to call other witnesses who might have rebutted such testimony , failed to do
so. In view of this treatment of Sanders ' credibility , the alternative request in National s
motion that the record be reopened to permit the introduction of oral testimony impeaching
Sanders' credibility is denied.
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accountable for Fier's conduct, whether or not they had actual knowl-
edge of, or expressly authorized, such conduct. National employed
Southern to police its plant with armed guards both before and
during the strike. Fier was one of these guards. His job during
the strike was allegedly to protect National's property and employees
against any violence by the strikers. Even if this were the sole pur-
pose for which he was hired, it was not inconsistent with that pur-
pose or with the whole pattern of National's unlawful antiunion cam-
paign, for Fier to engage in coercive conduct toward the strikers and
union officers calculated to "break" the strike. Such conduct was,
therefore, not outside the general scope of his authority or employ-
ment. Even if it be true, as Southern contends, that Fier was ex-
pressly forbidden by Southern to talk to any of the pickets, that fact
would not under the circumstances relieve Southern or National from
responsibility for his conduct .6
3. Like the Trial Examiner, we find that the Respondent National
on August 14, 1951, discharged Dorothy Cole, in violation of Section
8 (a) (3) and (1) of the Act, because she had joined the Union.
However, in so finding, we rely solely on the following circumstances:
When Cole was hired on July 26, 1951, by Plant Superintendent
Elliott, he told her, in effect, that there was a union movement in the
plant but that it was doomed to failure. About the same time, as
found by the Trial Examiner, another recently hired employee was
told by a management representative (Hall) that if the employee
were a union member he wouldn't have a job any more. Other un-
lawful antiunion conduct, already recited, including interrogation
and promises of benefits if employees abandoned the union, ante-
dated Cole's hiring.
On August 10, 1951, Cole attended her first union meeting, accom-
panied by Sanders, the Union's secretary. On the way to the meet-
ing, both employees stopped at a cafe, and, in the presence of Fore-
man Scarborough, who happened to be there, the cafe owner asked
Sanders if she wanted her book (referring to her union minute book,
which she had left with him), and if she was "taking Dot (Cole) with
her." Sanders replied that she was, and that Cole had "joined with
us." 7 Apart from the Trial Examiner's finding that the Respondent
learned of Cole's union activity through Scarborough's overhearing
Sanders' conversation with the cafe owner, we base our finding that
Elliott knew of Cole's union activity upon the fact that Respondent's
plant complement was so small as to justify the inference that the
e See American Law Institute Restatement of the Law of Agency, 1933 edition, Sees.
230, 231. See, also , the Grauman Company, 100 NLRB 753.
' The findings as to this incident , which conform in substance to those made by the
Trial Examiner , are based on the testimony of Cole, which was corroborated by Sanders.
NATIONAL PAPER COMPANY 1573
union activities of its employees generally, including those of Cole,
came to the notice of higher management officials.8
Four days after the cafe incident Cole was discharged by Elliott,
who refused to give her any reason for his action.
National contends that Cole was discharged because of her inability
to learn to operate the various machines to which she was assigned.
However, like the Trial Examiner, we find that this was not the true
reason for Cole's discharge, particularly in view of the credited testi-
mony of Cole and other employees that Elliott expressed satisfaction
with her work .9
4. We agree with the Trial Examiner that the Respondent National
failed to bargain in good faith with the Union, thereby violating
Section 8 (a) (5) of the Act.
Even before entering into negotiations with the Union, National's
management openly avowed its determination not to consummate any
agreement . Thus, as the Trial Examiner found, in mid-April of
1951 Plant Superintendent Elliott told Sanders that President Well-
house would never sign a contract with the Union. Similar state-
ments were made by Elliott to employee Smith on March 21, 1951,
and to Foreman Peek a few days after the election of March 15, 1951.10
After repeated unsuccessful requests by the Union for a bargaining
conference, the parties finally met on May 14,1951. Three other meet-
ings were held over a period of about 8 months, without reaching
agreement. In the meantime, as found by the Trial Examiner, em-
ployee Heard was, in effect, told in July 1951 by Hall, a management
representative, that if he were a member of the Union he would lose his
job. Another employee, Cole, was discharged the following month, as
we have found, for joining the Union. While negotiations were still
pending, Fier, one of the armed guards, hired by National to patrol the
plant, harassed union adherents, as we have found, with threatening
and abusive telephone calls. All the foregoing conduct, constituted, as
the Trial Examiner found, violations of the Act. We cannot reconcile
such conduct, occurring as it did during the course of contract negotia-
8 The Board's records in Case No. 10-RC-1277, of which we hereby take official notice,
show that at the time of the election of March 15, 1951, there were only 67 employees in
the bargaining unit.
See N. L. if. B. V. Abbott Worsted Mills, Inc., 127 F. 2d 438, 440 (C. A. 1) ; Quest-Shon
Mark Brassiere Co., Inc., 80 NLRB 1149, 1150, enfd. 185 F. 2d 285 (C. A. 2), cert. den.
342 U. S. 812.
Member Peterson would not find that Cole's discharge was violative of the Act, being
of the view that the evidence does not sufficiently establish National's knowledge of her
interest in the Union.
8 Employee Mangham, who instructed Cole on various operations, testified that she
showed exceptional aptitude and that Elliott made an appreciative comment to that effect
about a week before Cole's discharge. Sanders testified to the same general effect.
10 Despite Elliott's denials, we credit the testimony of Smith as to the March 21 incident
and the testimony of employee Hansen as to the Peek Incident. We give weight to Sanders'
testimony only insofar as it tends to corroborate Smith and Hansen. See footnote 5.
supra.
250983-vol. 102-53--100
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, with a sincere desire to reach agreement with the Union. Such
conduct is indicative rather of a concerted campaign by National to
undermine the Union.
The course of the actual negotiations between National and the
Union lends further support to the evidence recited above that National
approached the conference table with a mind hermetically sealed
against reaching agreement, with an attitude of hostility to the Union,
and with a firm determination to discredit and undermine the Union.
Between March 27, 1951, the date that the Union was certified, and
July 14, 1952, the date of the hearing in this case, only four bargaining
meetings were held. At these meetings National adamantly refused to
make any concession whatsoever to the Union's demand for a wage
increase. National adhered throughout the negotiations to the posi-
tion that it could not grant any increase because its prices were frozen.
However, when the Union put National's good faith on this point to the
test by proposing that any wage increase be made contingent on a price
increase, National made no response." In the absence of any explana-
tion of National's failure to accept, at least in principle, the Union's
proposal of a contingent wage increase, we can infer only that the
ceiling on National's prices was not the true reason for its unyielding
position on wages, and that in advancing that reason National was not
dealing with the Union in good faith.
While National made some concessions on matters other than wages,
these were of dubious value to the employees. Thus, while National
agreed to institute a new practice of giving a minimum of 2 hours' pay
to employees who reported for work but did not work a full day,
Sanders testified without contradiction that she knew of no cases where
employees of National had reported and not been offered a full day's
work. National also agreed to a clause establishing a new policy of
departmental seniority, but, as this policy would apply only to employ-
ees who were determined to be "fully qualified" to do the available
wS ork, a determination which was necessarily reserved to management,'
there was no assurance that this clause would result in any substantial
modification of National's existing unilateral policy with regard co
seniority. While accepting in substance the Union's proposal for
establishment of a grievance procedure, National rejected the Union's
proposal that the procedure terminate in arbitration. The net effect of
National's concession on this point, was, therefore, that it would discuss
grievances with the aggrieved employee or his representative, which it
was required to do, in any event, under the Act. Other provisions
"This finding is based on the credited testimony of union negotiator Moses, which was
corroborated by Sanders . Wellhouse , who represented National at the negotiations,
testified only that he did not recall such a proposal.
"National rejected the Union 's proposal for arbitration of grievances , including, perforce,
any grievances arising under the seniority clause See discussion in text,snfra.
NATIONAL PAPER COMPANY 1575
agreed to by National, such as a clause recognizing the Union as the
exclusive representative of the employees, and a provision that all work
over 40 hours per week be paid at the rate of time and one-half, likewise
granted only what was already required by law.
The last bargaining conference was held in January 1952. At this
conference, after questioning whether the Union still represented
a majority of the employees, in view of the fact that the strikers had
been replaced, National's attorney requested that the Union, as a
basis for further discussions, furnish him with a list of the strikers
who were willing to return to work if some agreement could be reached
between the parties. Such a list was subsequently furnished by the
Union to National's attorney, but he soon thereafter advised the Union
that he was "unable to do anything with the Company," thus, in effect,
foreclosing any further negotiations.
While we do not regard National's failure to make any substantial
concessions, standing alone, as constituting a refusal to bargain in
violation of the statute, these circumstances are not irrelevant in
evaluating the Respondent's entire course of conduct 13 Upon the
entire record considered as a whole, and particularly in the light of
Respondent's other unfair labor practices, we are convinced and find
that Respondent merely went through the motions of meeting and
discussing proposals with the Union without any bona fide desire
to reach an agreement, but rather with a fixed determination to adhere
to its previously expressed position that it would never sign a contract
with the Union. Accordingly, like the Trial Examiner, we find that
National violated Section 8 (a) (5) and (1) of the Act by failing
on and after May 14, 1951,14 to bargain in good faith with the Union.
The Remedy
Like the Trial Examiner, we find that the August 16 strike was
caused and prolonged by the unfair labor practices of the Respondent
National, and that the employees named in Appendix A attached to
the Intermediate Report are entitled to reinstatement, whether or not
their jobs have been filled, with back pay from February 1, 1952, when
their unconditional applications for reinstatement were rejected by
National.
We agree with the Trial Examiner that Dorothy Cole is similarly
entitled to reinstatement with back pay from the date of her discrimi-
natory discharge, and that the remaining strikers (other than Cole
and those listed in Appendix A of the Intermediate Report) are like-
" Texas Foundries , Inc, 101 NLRB 1642.
"The Trial Examiner found that National's initial refusal to bargain in good faith
occurred on March 27 , 1951, the date of the Union 's certification . We find, however, that
such initial refusal occurred on May 14, 1951 , the date of the first bargaining conference,
which set the pattern for all subsequent negotiations by National.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wise entitled to reinstatement, but, unlike the Trial Examiner, we will
not condition their reinstatement upon their having applied therefor
within 10 days from the receipt of the Intermediate Report. We will
require rather, in accord with our usual practice in such cases, that
National offer reinstatement to any such employee within 5 days after
his application, and that, if National fails, or has failed, to make such
offer, it make him whole by paying him a sum of money equal to the
amount he would have earned as wages from the end of such 5-day
period to the date that reinstatement is offered, less any net earnings 15
of the employee during such period. Such back pay shall be com-
puted on a quarterly basis, as provided in F. W. Woolworth Company,
90 NLRB 289.16
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent National Paper Company, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Atlanta Paper Products and
Specialty Workers, Local No. 527, affiliated with the International
Printing Pressmen & Assistants' Union of North America, AFL, or
in any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees or by discriminating in any
other manner in regard to their hire or tenure of employment or any
term or condition of their employment.
(b) Refusing to bargain with the above-named labor organization
as the exclusive representative of all production, maintenance, ship-
ping and plant clerical employees, including truckdrivers at its At-
lanta, Georgia, plant, but excluding office clerical workers, foremen,
assistant foremen, gluing machine fixer, engineers, professional em-
ployees, guards, and supervisors as defined in the Act.
(c) Interrogating its employees as to their union affiliations or
activities, threatening them with reprisals for engaging in union activ-
ity, or promising them benefits to withdraw from any labor organiza-
tion, and employing armed guards or others to engage in surveillance
of its employees.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to form
13 See Crosset Lumber Company, 8 NLRB 440 , for the meaning of "net earnings" as used
in computing the back pay of all the strikers and Cole.
1e However , with respect to the employees, other than Cole and those named in Appendix
A, who have applied for reinstatement more than 10 days after the receipt of the Inter-
mediate Report by Respondent National, no back pay shall accrue between the date of such
application and a date 5 days after the receipt of this Decision and Order by Respondent
National.
NATIONAL PAPER COMPANY 1577
labor organizations, to join or assist the above-named 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 of such activities except to the extent that
such right my be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
-Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Dorothy Cole, and the employees listed in Appendix A
,attached to the Intermediate Report, and, upon application, offer to
all other employees who went on strike August 16, 1951, immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, and make all said employees whole for any loss of pay
suffered, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy," and hereinabove.
(b) Upon request, bargain collectively with the above-named labor
organization as the exclusive representative of its employees in the
aforesaid appropriate unit with respect to rates of pay, wages, hours
of employment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(c) Post at its Atlanta, Georgia, plant copies of the notice attached
to the Intermediate Report and marked "Appendix B." 17 Copies
of said notice, to be furnished by the Regional Director of the Tenth
Region, shall, after being duly signed by the Respondent's represent-
ative, be posted by it immediately upon receipt thereof and be main-
tained by it for a period of at least sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted.
(d) Post at its plant, immediately upon receipt, for the same period
and in the same manner as set forth in the paragraph above, copies
of notices attached to the Intermediate Report and marked "Appen-
dices C and D," if and when such notices are duly signed by repre-
sentatives of the respective Respondents. Reasonable steps shall be
taken by the Respondent National to insure that any or all such no-
tices are not altered, defaced, or covered by any other material.
(e) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social-
17 This notice shall be amended by substituting the words "A Decision and Order" for
the words "Recommendations of a Trial Examiner " in the caption thereof. In the event
this Order is enforced by a decree of United States Court of Appeals , there shall be
substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to
a Decree of the United States Court of Appeals, Enforcing an Order."
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security payment records, time cards, personnel records, and all re-
ports and other records necessary to analyze the amount of back pay
due.
(f) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent National Paper Company has taken to comply therewith.
B. The Respondent Southern Detectives, Inc., its officers, agents,
successors and assigns, shall :
1. Cease and desist from :
(a) Threatening, harassing, or engaging in surveillance of em-
ployees of the Respondent National or of any other employer, for the
purposes of discouraging membership in or activity on behalf of any
labor organization.
(b) In any other manner, interfering with, restraining, or coercing,
the employees of any employer in the exercise of the rights to self-
organization, to form labor organizations, to join or assist any labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Forward to the Respondent National, for posting at its plant,
by registered mail or by other means whereby proof of service may
be made and preserved, copies of the notice attached to the Inter-
mediate Report and marked "Appendix C." 18 Copies of said notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondent's representative, be for-
warded immediately upon receipt thereof for posting by the Re-
spondent National.
(b) Notify the Regional Director for the Tenth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent Southern Detectives, Inc., has taken to comply therewith.
C. The Respondent James M. Fier, his agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Threatening, harassing, or engaging in surveillance of em-
ployees of the Respondent National or of any other employer, for the
"This notice shall be amended by substituting the words "A Decision and Order" for
the words "Recommendations of a Trial Examiner" In the caption thereof . In the event
this Order is enforced by a decree of United States Court of Appeals, there shall be further
substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a
Decree of the United States Court of Appeals , Enforcing an Order."
NATIONAL PAPER COMPANY 1579
purpose of discouraging membership in or activity on behalf of any
labor organization.
(b) In any other manner, interfering with, restraining, or coercing,
the employees of any employer in the exercise of the right to self-
organization, to form labor organizations, to join or assist any labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Forward to the Respondent National, for posting at its plant,
by registered mail or by other means whereby proof of service may
be made and preserved, copies of the notice attached to the Inter-
mediate Report and marked "Appendix D." 19 Copies of said notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed, be forwarded immediately upon receipt there-
of for posting by the Respondent National.
(b) Notify the Regional Director for the Tenth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent Fier has taken to comply therewith.
11 This notice shall be amended by substituting the words "A Decision and Order" for the
words "Recommendations of a Trial Examiner " In the caption thereof . In the event this
Order is enforced by a decree of the United States Court of Appeals , there shall be sub.
stituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a
Decree of the United States Court of Appeals , Enforcing an Order."
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served , a complaint and notice of hear-
ing thereon having been issued and served by the General Counsel of the Na-
tional Labor Relations Board , and answers having been filed by the above-
named company, corporation , and individual, herein called the Respondents,
a hearing involving allegations of unfair labor practices in violation of Section
8 (a) (1), (3 ), and (5 ) of the National Labor Relations Act, as amended,
61 Stat. 136 , herein called the Act, was held in Atlanta , Georgia , on July 14, 15
and 16, 1952 , before the undersigned Trial Examiner.
In substance the complaint , as amended , alleges and the answers deny that :
(1) In August 1951 the Respondent National discriminatorily discharged em-
ployee Dorothy Cole because of her union membership ; ( 2) at various times
between March and October 1951 the Respondents threatened employees with
physical injury and other reprisals , constantly harassed them with telephone
calls accusing them of immoral conduct, and engaged in surveillance , in order
to discourage union membership and activities ; ( 3) by the above-cited and
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other conduct the Respondent National, since March 1951, has refused to bargain
collectively in good faith with the Union as the exclusive bargaining agent of all
employees in an appropriate unit; (4) by its unfair labor practices the Respond-
ent National caused its employees to go on strike in August 1951; (5) in Feb-
ruary 1952, the Respondent National discriminatorily refused to reinstate cer-
tain employees ; and (6) by such conduct the Respondents have interfered with,
restrained, and coerced employees in the exercise of rights guaranteed in Section
7 of the Act.
At the hearing all parties were represented by Counsel, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce
evidence pertinent to the issues, to argue orally upon the record, and to file
briefs and proposed findings of fact and conclusions. General Counsel argued
orally. Briefs have been received from the Respondents and the Union.
Disposition of motions to dismiss, made at the close of the hearing, is made by
the following findings, conclusions, and recommendations.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT NATIONAL
National Paper Company is a Georgia corporation, having its principal plant,
office, and place of business in Atlanta, Georgia, where it is engaged in the
processing of paper and the sales of paper products.
During the year ending January 1, 1952, it purchased raw materials, equip-
ment, and supplies valued at more than $100,000, of which more than 50 percent
was shipped in interstate commerce to its plant from points outside the State
of Georgia. In the same period, it sold finished products valued at more than
$150,000, and such products valued at more than $100,000 were sold and shipped
to points outside the State of Georgia.
The Respondent National is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Atlanta Paper Products and Specialty Workers, Local No. 527, affiliated with
the International Printing Pressmen & Assistants' Union of North America, AFL,
is a labor organization admitting to membership employees of the Respondent
National.
III. THE UNFAIR LABOR PRACTICES
A. Major events and issues
All issues, herein involved, stem from the successful efforts begun by the
Respondent National's employees in January 1951 to organize for the purposes
of collective bargaining and to select the Union as their exclusive bargaining
agent, and from the unsuccessful effort of the Union to negotiate a collective
bargaining agreement with this Respondent.
It is undisputed that on March 15, 1951. a majority of the employees voted for
the Union at a Board-conducted election, and that on March 27 the Union was
certified (in Case No. 10-RC-1277) as the exclusive bargaining representative
of all employees in an appropriate unit.
Union and company representatives met on three occasions between May 14
and August 4, 1951. Before and between these dates management officials and
supervisors threatened employees with reprisals, offered benefits, and warned
NATIONAL PAPER COMPANY 1581
them that the employer would never sign a contract with the Union. Much
of the evidence as to this issue of restraint and coercion is undisputed.
On August 13, without notification either to the Union or the employees that
their working conditions were, in effect, to be altered to those of a chain gang.
the Employer hired the services of armed guards, employed by Southern Detec-
tives, Inc., who patrolled the plant during working hours and watched the
employees at their tasks. On August 14 a new employee, Dorothy Cole, who
had just joined the Union, was summarily discharged. On August 15, bcause
of the Employer's conduct, including the placing of armed guards over them,
the discharge of Cole, and the refusal to agree to terms of a collective- bargaining
agreement, the union members voted to strike. The strike began on August 16.
It is General Counsel's contention that such conduct of the Employer was in
violation of the Act, and caused the strike.
It is undisputed, furthermore, that shortly after the strike began and continu-
ing for many weeks, one James Fier, an armed guard employed by Southern
Detectives, while on night duty at the plant, repeatedly telephoned to the Union's
secretary, a young lady who had gone out on strike, and in vile terms insulted her
and her mother, and threatened the safety of her son. This conduct, described
more fully below, is in issue.
It is likewise undisputed that in February 1952 the Respondent National
refused to reinstate many of the strikers, although they made personal and
unconditional application for reinstatement.
B. Conduct violative of the Act before the strike of August 16
1. Interference, restraint, and coercion
Early in March 1951, before the Board election, Plant Superintendent R. H.
Elliott asked employee L. Jewell Sanders, the local's secretary and a member
of its bargaining committee, why the employees wanted a union, and told her
that if they got out of it, their jobs would be assured but that if they retained
membership such jobs would be gone. He also told her, just before the election,
that if she would get out of the Union it "would mean good things" for her,
that President Wellhouse would close the plant doors before he would have the
Union in the plant. Also before the election, Elliott likewise told employees
Lucile Daily, Frances Mangham, and Ethel Smith that he would guarantee them
their jobs if they wanted to withdraw from the Union, but that he could not
make this guarantee if they did not withdraw. On the day of the election
Foreman Peek instructed employee Arthur Hansen to tell a fellow employee,
Grady Chambers, that "he had better not vote for the Union."'
Sometime in April, Sanders, identified above, asked Elliott for a raise for
herself and other employees on the floor. He told her and employee Daily that
"if you hadn't got the Union in here, you would have already had a raise." In
June, Elliott made the same reply to a similar request made by employees Mabel
(Minns) Pritchard and Jewel Keith. Elliott also told them, on this occasion,
that if they would get out of the Union he would guarantee them their jobs.
' Findings as to these events, based upon the employees' testimony of which much is
undisputed, cannot serve as the basis for conclusions of unfair labor practices , since the
events occurred just outside the 6 months period before the filing of the original charge.
The amended Act, however, does not legislate historical facts out of existence. In this
case such events are not remote in time or kind . Their occurrence has a material bearing
upon determination of major issues, such as the question of good-faith bargaining,
discrimination , and later and similar conduct by the same and other management
representatives.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In mid-April Elliott told Sanders that Wellhouse would never sign a contract
with the Union.
In the latter part of July, shortly after being hired, employee James Heard
was asked by Consultant Engineer Harry G. Hall' if he belonged to the Union.
When Heard replied that he did not, Hall said that was "a pretty good thing,"
because if he did, he would not have a job any more. Heard then told Hall that
he understood they were to have a contract soon, and Hall declared that Well-
house had told him there would never be a contract with the Union.
On Monday morning, August 13, suddenly and without warning a number of
uniformed, armed guards were assigned to duty at the plant. These guards
were operatives of the Respondent Southern whose services had been contracted
for the preceding Friday, August 10, by the Respondent National. They pro-
ceeded to patrol the plant during working hours, and to watch the employees
while at their work.
The contract which Wellhouse signed with Southern Detectives (the business
of which is stated on the contract form as "Plant & Business Protection-Private
Investigations-Industrial Plant Guards"), provided for "guard service" for
both day and night, and such service was to begin on Monday, August 13. A
clause in the document specifically states that the contract "may be canceled
(sic) on 24 hours notice."
The same contract also contains the clause : "Monday if the strike does not
come off, National Paper will pay for one day's work for 2 men reporting."
As a witness, Wellhouse claimed that he contracted for the services of the
armed guards because his attorney told him, on August 10, that he had received
a telephone call from George Baker, an official of the Union, in which Baker had
said "he didn't think he would be able to hold his people in line and he was
afraid they were going to strike." Wellhouse further claimed that he hired the
armed guards "to protect the property as well as the people if there should
be any labor strife" Although the claim of Wellhouse as to his telephone call
from his attorney finds support in the testimony of that attorney, to the effect
that on August 10 Baker told him that "in his judgment the Union would have
to resort to its economic strike," and although Baker himself was not called as
a witness and therefore the testimony stands uncontradicted, the Trial Examiner
has grave doubt that Baker, on August 10, warned the Respondent of a strike.
Indeed other evidence, introduced by the Respondent, negates the reasonable
probability that such a statement was made. Counsel for the Respondent intro-
duced into evidence the official minutes of the union meeting of August 10, which
was not held until after the signing of the contract with Southern Detectives.
At this meeting, according to the minutes, Baker informed the members as to
the progress of the negotiations (the latest such meeting having been held on
August 4) and advised them that while "it looked like the Company attorney and
Wellhouse" were engaging in a game of hide and seek and "deliberately trying to
provoke a strike and break the Union" he was going to give them every oppor-
tunity and it might "be necessary to bring in the Government Conciliation Serv-
ice" before any strike action was taken. No strike action was taken at this
meeting, upon Baker's recommendation, and "it was agreed that another meeting
was to be held on Wednesday, August 15th, to learn what the Company's attitude
was concerning further negotiations."
2 Contrary to the contention of the Respondent National, it is found that Hall is, and
was in July 1951, a management representative. Although it appears that by that time
he had been relieved of his duties as superintendent, a title he had previously held for
many years, his own testimony makes it plain that employees generally were not informed
of any change in his status , and it is undisputed that on at least one occasion , as late as
April 1951, he authorized the hiring of a new employee.
NATIONAL PAPER COMPANY 1583
If any event, and whatever, if anything, Baker said on August 10 to counsel
for the Respondent National, it is plain that the strike did not "come off" on
August 13, as Wellhouse claims he expected. Nothing occurred on the part of
the Union, Wellhouse admitted, after August 10 to cause him to believe it in-
tended to strike. He said, as a witness, he could not "remember the reason-
ing back" of the above-cited clause to the effect that if the strike did not "come
off" on August 13, guards would be paid for the 1 day of reporting.
Even if the testimony of Wellhouse be so construed as to indicate that he was
innocently misled into believing that a strike would occur on Monday morning,
August 13, and that out of anticipatory fear he hired armed guards to protect
property and persons, although no threats against either had been received,
that expressed reason vanished on Monday, when all employees reported as
usual, and no strike "came off." Yet Wellhouse did not dismiss the guards, in
accordance with the contract. He kept them on, all day, and they roamed
around the plant, armed, watching the employees. They were there again on
Tuesday, and on Wednesday, August 14 and 15.
Thus the Trial Examiner concludes and finds, whatever the purpose of Well-
house in engaging the services of Southern Detectives on August 10, that the
retention and continuance of such services from Monday morning, August 13,
until August 16, when the employees in protest did strike, were with the intent
and purpose of precipitating the strike, and constituted flagrant interference,
restraint, and coercion of employees in the exercise of rights guaranteed by the
Act. It is difficult to conceive of an employer's action more calculated to dis-
courage union membership or more violative of the principles of good-faith bar-
gaining than that of placing employees under the surveillance of armed guards
while they are at work. In this case the responsibility for such conduct rests
not only upon the Respondent National, but also upon the Respondent Southern,
since the latter clearly was acting as the paid agent and in the interest of the
former.
The Trial Examiner further concludes and finds that the Respondent National
interfered with, restrained, and coerced its employees by Elliott's statements
to employees that they would have received a raise had they not "got the Union
in," and by his promising them guarantee of their jobs if they wanted to with-
draw from the Union, and by Hall's interrogation of Heard as to his Union
affiliation and his threat that the employee would be fired if he joined.
2. The discharge of Dorothy Cole
Dorothy Cole was hired as a new employee on July 26, 1951. She was sum-
marily discharged on August 14.
Cole was hired by Elliott, at which time the superintendent told her, after
asking where she had previously worked, that the employees at the Respondent's
plant were "trying to get the Union in," but that they could not. During the
short period of her employment she learned many of the operations on different
machines, and was complimented by Elliott on a number of occasions.
Just before her discharge Cole joined the Union. On the evening of August
13 she first attended a union meeting. She accompanied Sanders, the local's
secretary. On the way to the union hall Sanders and Cole stopped at a nearby
cafe, where Sanders customarily kept her minute book. Shipping Foreman
John Scarborough was sitting on a stool close by as the girls came to the
counter. The cafe owner asked Sanders if she wanted her book and then if
she was "taking Dot with" her. Sanders replied that she was, and that Cole
had "joined with us." It is reasonably inferred, and is found, that Foreman
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scarborough overheard Sanders' remark to the cafe owner and transmitted the
information to Elliott
The following afternoon Elliott handed Cole her pay check and said he could
not use her any more. She asked why but was given no reason.
It is clear from the foregoing facts, considered in the light of the coercive
conduct of supervisors, above described, particularly Hall's statement to another
new employee at about the same time that he was fortunate that he had not
joined the Union, that absent the establishment of some legal cause Cole was
discharged because she joined the Union.
It is Elliott's claim that Cole was discharged because she failed to learn how
to perform various tasks satisfactorily. On this point he gave a good deal of
confused and unpersuasive testimony which was without support except that of
employee Brookshire, whose demeanor as a witness plainly manifested her
antipathy toward the union members in the hearing room and who admitted
that although she had attended the first union meeting (in January), "I haven't
had anything to do with it." According to Elliott, from her first assignment
on her first day of employment, and on each job she performed, Cole complained
that "she didn't think she could learn these different operations." He quoted
her as repeatedly, and on each operation, saying "I can't do this" or that she
could not learn to operate that. Such testimony is incredible in view of the
fact that Cole learned to perform and did perform, most of the various jobs in
the department in the short period of her employment. Had Cole, as Elliott
claimed, failed to do any of the work properly, and complained that she could
not learn to do any part of it, even the first job assigned to her, it is reasonable
to believe that Elliott would have dismissed her at once. The fact that Cole
did perform all these various jobs is consistent with Elliott's admission that he
employed her "to learn all of this work in which she could alternate all over
the finishing department like the other girls did." Further refutation of the
reasonableness of Elliott's claim is his testimony that another girl, hired the
same day as Cole, and told the "same thing" as to what would be expected of
her, was permitted during the same period to work on only two machines. The
other girl was not discharged.
The Trial Examiner finds no merit in Elliott's claim as to his reason for dis-
charging Cole, but concludes and finds that she was discriminatorily discharged
to discourage membership in the Union, and because she joined the Union.
3. The refusal to bargain
The complaint alleges, the Board has found, the Respondent National offered
no evidence to the contrary, and the Trial Examiner concludes and finds that
a unit of the Respondent National's employees appropriate for the purpose of
collective bargaining consists of the following :
All production, maintenance, shipping, and plant clerical employees, includ-
ing truckdrivers, at its Atlanta, Georgia plant, but excluding office clerical
workers, foremen, assistant foremen, gluing machine fixer, engineers, profes-
sional employees, guards, and supervisors as defined in the Act.
It is further concluded and found that at all times since March 15, 1951, the
Union has been and is now the exclusive representative of all employees in
the aforesaid unit for the purposes of collective bargaining.
8 Scarborough 's denial is unconvincing. On direct examination he admitted he was in
the cafe on the date and at the time Sanders came in with Cole, but said he "was not on no
stool ." Immediately thereafter he said he did not recall seeing Sanders . On cross-
examination he said the incident occurred after the strike began, and denied that he even
knew Cole.
NATIONAL PAPER COMPANY 1585
Shortly after the Board's certification of the Union on March 27, the Union
made numerous, unsuccessful, efforts to meet with the Respondent for nego-
tiations . The fact is established by the following quotation from a letter from
the Respondent's counsel to the Union, dated April 10:
As you know, in response to your several telephone calls, I have been
trying to get in touch with Mr. Wellhouse to tell him about your desire for
a meeting in connection with the National Paper Company certification. I
am advised this morning that Mr. Wellhouse will not be back in the city
until after the first of next week.
On May 1, the same counsel advised the Union that "the earliest date that we
all three can apparently get together is Monday, May 14."
Some 6 weeks, then, after having been certified, the Union finally succeeded
in obtaining a meeting with the employer. Only 3 meetings were held before
the strike-May 14, June 8, and August 4.
At the May 14 conference the Union presented a written proposed contract.
No agreement was reached on any proposal, but at this meeting the Respondent
took the position from which it never receded-that it would grant no wage
increase nor any other benefit which in any way could be considered a "cost"
item.
At the second meeting a written company proposal was discussed . This pro-
posal was, in effect, an agreement that the Respondent would continue to operate
precisely as it had before. No concessions were made to any of the Union's pro-
posals, and the Respondent remained adamant in its position that it would
yield nothing by way of wages or other benefits which would affect its cost of
production. It likewise refused to agree to any method of arbitration.
At the August 4 meeting, which lasted only a few minutes, the Respondent
failed to recede in any respect from its previously established position of grant-
ing no benefits, either as to wages or working conditions.
On August 13, as noted before, and without consultation with or announce-
ment to the Union, the Respondent imposed new working conditions upon the
employees, requiring them to work under the surveillance of armed guards.
While the Act does not force an employer to make concessions to a union's
demands, his failure to yield ground in any respect is a material factor in de-
termining whether or not he bargains in good faith, and is earnestly endeavor-
ing with open mind to reach a workable agreement. Here, the factor existing,
it must be considered in the light of contemporaneous conduct. As found here-
tofore, the Respondent made known to its employees its intention not to reach
a contractual agreement with the Union, its supervisors engaged in coercion
and restraint, a new employee was summarily discharged to discourage union
membership, and the entire working force was placed under armed guards.
These facts lead inescapably to the conclusion, and the Trial Examiner finds,
that by the conduct described immediately above, and by its refusal to make any
concessions to union proposals as to wages or financial benefits, the Respondent
has, since March 27, 1951, refused to bargain collectively in good faith with
the Union, and that by such refusal it interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by the Act'
4 No agreement has been reached since the strike began. The Respondent's position has
not altered. It appears needless to encumber this report with a review of unsuccessful
efforts of the Union and the U. S. Conciliation Service, made after the strike began, to get
Wellhouse to meet with them to settle the strike. One meeting was held in January 1952,
but it resulted in no change in the Respondent's attitude.
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The unfair labor practice strike and the refusal to reinstate strikers
The strike which occurred on August 16 was caused by the unfair labor prac-
tices of the Respondent National, as set forth in the preceding sections. It was
therefore a duty of the Respondent to reinstate any and all such employees who
went on strike that day, whenever they unconditionally made application for
reinstatement.
At the hearing counsel for the Respondent National and General Counsel
stipulated that on February 1, 1952, the employees listed in Appendix A, attached
to this Intermediate Report, applied for reinstatement. It is undisputed that
their applications were unconditional and that all were refused reinstatement.
The Respondent's contention that all vacancies had been filled is without
merit since, as has been found, the strike was caused by its own illegal conduct.
The Trial Examiner finds that the employees listed in Appendix A were dis-
criminatorily refused reinstatement on February 1, 1952, thereby discouraging
union membership and interfering with, restraining, and coercing employees in
the exercise of rights guaranteed by the Act.
D. Interference, restraint, and coercion after the strike began
The testimony of three witnesses, upon which rest the findings below as to the
conduct of James Fier during the strike, is uncontradicted and unchallenged.
Fier was one of the several armed guards employed by Southern Detectives
and the conduct in issue was performed while he was on duty as an employee
of this concern which was under contract to perform "strike" services for Well-
house and National Paper.
Fier himself put in no appearance during the 3 days of hearing in this case,
although a specific request for his attendance was made to his attorney, one
Howell, by the Trial Examiner during the first day. In view of the nature of
the testimony against him, Fier's failure to appear at the hearing room or, so
far as was ascertainable, even in the city of Atlanta, is somewhat under-
standable. Less understandable were the implausible and contradictory excuses
advanced by Howell during those three days of Fier' s absence. When requested
to produce his client, the first day, Howell replied:
He is in Cincinnati right at this minute. . . . We will send up and he
can fly down, and try to get him in here tomorrow morning.
About mid-afternoon the next day, when asked where his client was, Howell
replied :
We have received a telegram stating he is en route from St. Louis to
Atlanta, by way of airplane. I am expecting him to show up just any
minute.
When the hearing opened the third and final day, neither Fier nor Howell
put in an appearance. About half way through the session, after Howell had
arrived but his client had not, the attorney was again questioned about Fier's
whereabouts. This time Howell said :
.... he has not shown up in Atlanta yet. I will have a definite state-
ment to make, possible a motion to make, a little later on. We expect him
just any minute. But I will have a definite answer and a motion to
make.
Approximately 1,300 minutes had passed since Howell had previously said
he was "expecting him to show up just any minute." It appeared to the Trial
Examiner that there was small likelihood that Fier would show up at any time.
NATIONAL PAPER COMPANY 1587
At the conclusion of the hearing Howell's motion was denied to continue the
hearing for 15 days in order that he might find , and produce , his own client.
In support of his motion Howell claimed, despite his statements on preceding
days, that at no time had he been in communication with Fier , but only with
his present employer and his wife.
Mrs. Sanders , clearly known to Wellhouse , Elliott, and other officials of the
Respondent National as a leader of the local , since she had been a member of the
bargaining committee , lives with her mother , Mrs. T. J. Chapman , and her small
son. Sanders went on strike with other employees on August 16.
Beginning about the last of August and continuing almost every night for
several weeks, James Fier called her by telephone while on duty at the plant,
insulted both Sanders and her mother in vile terms , and threatened the safety
of Sanders ' child . Some nights the calls were so repeatedly and frequently
made that Sanders was unable to sleep at all . Whether Sanders or her mother
answered the telephone , Fier's opening remark would be : "Is this the Union
whore-house?"
Then, without giving his name, and according to Sanders' unchallenged testi-
mony, he accused her "of everything . . . things that I didn't even know people
did. Then he would start that lie knew all about my family, that he knew I
loved my mother and my son better than anything, and he says, 'You wouldn't
want anything to happen to them, would you?' He said, 'Well, you just better
get out of what you are in.' . . . He used awful vulgarity, the awfullest talk
that I ever-I didn't even think that kind of speech existed . . . He said he
was coming after me . . . he was going to get my little boy."
When Mrs. Chapman answered the telephone, his introductory question would
be the same. Then he would ask for Mrs. Sanders. If she was not there, Fier
would then tell her mother that "he had her in the hotel several times and give
her many a $3." According to Chapman's unchallenged testimony, Fier said
"he was going to come out here and take her to the hotel and-well, I won't
tell you what he said. I said plenty to him . . . He said that kid wouldn't
do so well."
Finally this harassment made Sanders ill. Her doctor ordered her to remain
at home, in bed. That night the telephone calls continued . The next day, in
desperation , Sanders called Superintendent Elliott, told him of the calls and
asked him if he knew who was making them. He said "No."
Despite Elliott's denial, Sanders had no calls that night , nor for the next
2 weeks, while she remained at home under the doctor 's care.
Immediately upon resumption of her duties at the union headquarters , however,
which were near the plant , the slanderous and threatening calls began again.
One night , in October , immediately after cutting off Fier 's call, she dialed the
operator , said she had been cut off, and asked if she would reconnect or give
her the number so she could dial back. The operator gave her "CY4"-and
then stopped , saying she was sorry but she could not give her any more
information.
The telephone number at the plant of the Respondent National is CY4655.
Shortly after this, Sanders and her mother called this number , at night,
Sanders on an extension and Mrs. Chapman talking. The same voice answered
which had been calling them for many weeks . Chapman asked for Elliott and
was told he wasn't there . He was asked for his name . He said "James Fier."
A few days after the strike began, employee W. J. Kincaid, who served on the
picket line, also received threatening telephone calls. He was told that if he
"didn't get back to work" he would "get the damn hell beat out of" him. After
about 6 such calls, Kincaid told the "voice" that he was not scared of him or
anybody else, and would meet him anywhere at any time . The calls stopped.
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About October 15, in the morning, Kincaid walked close to two of the armed
guards talking outside the plant. He recognized the voice of one as that which
had called him, and made note of his features, build, and general description,
which he related in detail as a witness.
Within a day or so after October 15, from the union office and at a time when
Fier was on duty, Kincaid and Sanders called the plant on extension telephones.
Both recognized the voice as that which had called and threatened them and
both heard the man identify himself as James Fier.
Shortly thereafter, Sanders had occasion to deliver a message to a member of
Atlanta's police force, who was sitting in a car with one Swan Smith, another
of Respondent Southern's armed guards, outside the plant. She asked the officer
if she could speak to him alone. Smith got out, making some surly remark
that aroused Sanders. She said, "Look here, you. I know who has been making
those 'phone calls to my home just as well as you do, now. . . . I traced the call
one night." According to her unchallenged testimony Smith turned white, ran
into the plant, and from that day on no more telephone calls of this nature were
received by her.
In view of the undisputed testimony referred to above, the unchallenged de-
scription given by Kincaid, and the admission by the Respondents that Fier
was on night duty at the plant during the period in question, the record
permits no doubt and it is found that James Fier was the individual making the
threatening calls. There is no merit in the contention of the Respondents
National and Southern that they may not be held accountable for the conduct of
Fier. Not only was he employed as an operative of Southern Detectives to
render contractual strike services for National, but National's ratification of his
conduct was made plain when Sanders' plea to Elliott, in September, successfully
brought relief from harassment while she was at home ill, and continuance of it
as soon as she resumed her work for the Union. All three respondents, Fier,
Southern Detectives,' and National are accountable for his conduct.
The record also contains undisputed testimony, and the Trial Examiner finds,
that on October 17, 1951, Swan Smith, one of the Southern Detectives, stood
across the street from the union hall watching the entry and departure of striking
employees as they came to give statements to an agent of the Board. Such con-
duct plainly constituted surveillance.
In summary, the Trial Examiner concludes and finds that by the above-
described conduct of Fier and Smith, the Respondents National, Southern De-
tectives, and Fier interfered with, restrained, and coerced employees in the exer-
cise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondent National, described in section
' This is so despite the testimony of George Burie, "Special Agent" of Southern Detec-
tives, who said he organized the concern in Atlanta, to the effect that rules forbade such
conduct. Burie was a wholly untrustworthy witness. He denied ever having even heard
that Fier was accused or charged with making telephone calls until Sanders testified, on
July 14, 1952. When confronted with his own signature on a registery receipt he identified
it as his own but denied looking at the document-the first amended charge in this case,
dated October 31, 1951, which specifically named James Fier. He denied also either seeing
or discussing with his attorney the portion of the complaint, issued April 22, 1952,
specifically alleging that Fier "did constantly harass employees of Respondent National
with telephone calls and accuse them of immoral and improper conduct." His denials are
incredible. According to his own testimony he was in charge of the service being rendered
National. His signature appears as notary on the sworn answers, dated June 16, 1952, of
both Fier and Southern Detectives, denying the specific allegations.
NATIONAL PAPER COMPANY 1589
I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce in the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, the
Trial Examiner will recommend that they cease and desist therefrom and take
certain affirmative action which will effectuate the policies of the Act.
Having found that the Respondent National has discriminated in regard to the
hire and tenure of employment of Dorothy Cole and the employees listed in
Appendix A, attached hereto, the Trial Examiner will recommend that this
Respondent offer them immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority and other
rights and privileges, discharging, if necessary, any and all employees hired
since August 16, 1951. It will likewise be recommended that similar reinstate-
ment be offered to any and all other striking employees who did not apply for
reinstatement on February 1, 1952, but who may, within ten (10) days from the
receipt of this Intermediate Report, make such application. It will also be
recommended that the Respondent National make whole Dorothy Cole and the
employees listed on Appendix A for any loss of pay they may have suffered as a,
result of the discrimination against them, by payment to each of them of a sum
of money equal to the amount he or she would normally have earned as wages
from the date of such discrimination to the date of offer of reinstatement, less
his or her net earnings during such period, the back pay to be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth
Company (90 NLRB 289). It will also be recommended that the Respondent
preserve and upon reasonable request make all pertinent records available to the
Board or its agents.
It has also been found that from March 27, 1951, the Respondent National has
unlawfully refused to bargain with the Union as the exclusive representative of
the employees in an appropriate unit. The Trial Examiner will therefore recom-
mend that the Respondent, upon request, bargain collectively with the Union as
such representative and, in the event that an understanding is reached, embody
such understanding in a signed agreement.
In view of the nature of the unfair labor practices committed, the commission
by the Respondents of similar and other unfair labor practices may be antici-
pated. The remedy should be coextensive with the threat. It will therefore be
recommended that the Respondents cease and desist from infringing in any man-
ner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following :
CONCLUSIONS of LAW
1. Atlanta Paper Products and Specialty Workers, Local No. 527, affiliated
with the International Printing Pressmen & Assistants' Union of North America,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
2. All production, maintenance, shipping, and plant clerical employees, includ-
ing truckdrivers, at the Respondent National's Atlanta, Georgia, plant, but
excluding office clerical workers, foremen, assistant foremen, gluing machine
fixer , engineers, professional employees, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
250983-vol. 102-53--101
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The above-named Union was on March 15, 1951, and at all times since then
has been, the exclusive representative of all employees in the aforesaid appro-
priate unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4. By refusing on March 27, 1051, and at all times thereafter, to bargain
collectively with the aforesaid Union as the exclusive representative of its
employees in the aforesaid appropriate unit, the Respondent National has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of its
employees, and thereby discouraging membership in the above-nained labor
organization, the Respondent National has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondents National, Southern
Detectives, and Fier have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
Paul Moses
W. J. Kincaid
Robert Hitchcock
R. C. Townsend
T. H. Williams
Frances Mangham
Otis Alexander
Lucille Daily
Gladys Chapman
Ethel Smith
James Heard
L. A. Bartlett
Grady Chambers
J. H. Wells
Jewell Sanders
Edna Jones
Milton Swafford
Alexander Henderson
Rachel Wood
Mabel Minnix
Henry King
Arthur Hanson
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL BARGAIN collectively, upon request, with ATLANTA PAPER PROD-
UCTS AND SPECIALTY WORKERS, LocAL No. 527, affiliated with the International
Printing Pressmen & Assistants' Union of North America, AFL, as the
exclusive representative of the employees in the bargaining unit described
below with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All production, maintenance, shipping, and plant clerical employees,
including truckdrivers, at our Atlanta plant, but excluding office clerical
workers, foremen, assistant foremen, gluing machine fixer, engineers,
professional employees, guards, and supervisors as defined in the Act.
NATIONAL PAPER COMPANY 1591
WE WILL NOT discourage membership of our employees in the above-
named or any labor organization by discharging or refusing to reinstate
any of them, or by discriminating in any other manner in regard to their
hire and tenure of employment, or any term or condition of their employ-
ment.
WE WILL OFFER all employees named below and, upon their application,
all other employees who went on strike August 16, 1951, immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to any seniority or other rights and privileges previously
enjoyed, and we will make all said employees whole for any loss of pay suf-
fered as a result of the discrimination against them.
Paul Moses Alexander Henderson
Grady Chambers Gladys Champman
R. C. Townsend Henry King
Edna Jones Dorothy Cole
Otis Alexander W. J. Kincaid
Rachel Wood J. H. Wells
Ethel Smith T. H. Williams
Arthur Hanson Milton Swafford
L. A. Bartlett Lucille Daily
Robert Hitchcock Mabel Minnix
Jewell Sanders James Heard
Frances Mangham
WE WILL NOT interrogate our employees as to their union affiliations or
activities, threaten them with reprisals or promise benefits to withdraw
from any labor organization or its activities, or employ armed guards or
others to engage in such conduct or in surveillance of our employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights to self-organization, to form labor
organizations, to join or assist the above-named or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all
such activities except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
- NATIONAL PAPER COMPANY,
Employer.
By --------------------------------
(Representative ) (Title)
Dated -----------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
Appendix C
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify employees of the National Paper Company that:
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten, harass, engage in surveillance of, or in any other
manner interfere with, restrain, or coerce the employees of the above-named
or any other employer, in the exercise of the right to self-organization, to
form labor organizations, to join or assist any 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, as guaranteed by Section 7 of the Act.
SOUTHERN DETECTIVES, INC.,
Ent plover.
By ------------------------=-------
(Representative) (Title)
Dated -----------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
Appendix D
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify employees of the National Paper Company that:
I WILL NOT threaten, harass, engage in surveillance of, or in any other
manner interfere with, restrain, or coerce the employees of the above-named
or any other employer, in the exercise of the right to self-organization,
to form labor organizations, to join or assist any labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed by Section 7 of the
Act.
JAMES M. FmR
By-------------------
Dated------------------------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered; defaced, or covered by any other material.
GRIFFIN HOSIERY MILLS , INC., D/B/A DOVEDOwN HOSIERY MILLS and
TEXTILE WORKERS UNION OF AMERICA, CIO
GRIFFIN HOSIERY MILLS , INC., D/B/A DovEnowN HOSIERY MILLS and
TEXTILE WORKERS UNION OF AMERICA, CIO . Cases Nos. 10-CA-
1003 and 10-CA-1039. February 24,1953
Decision and Order
On July 7,1952, Trial Examiner Robert E. Mullin issued his Inter-
mediate Report in this consolidated proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
102 NLRB No. 165.