Newton Brothers Lumber Co.

National Labor Relations Board - Board Decisions

Mar 13, 1953

103 N.L.R.B. 564 (N.L.R.B. 1953)

564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. W. NEWTON , AN INDIVIDUAL , D/B/A NEWTON BROTHERS LUMBER
COMPANY and INTERNATIONAL WOODWORKERS OF AMERICA, CIO.
Case No. 10-CA-1351. March 13,1953
Decision and Order
On December 15, 1952, Trial Examiner Reeves R. Hilton 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 copy of the
Intermediate Report attached hereto. He also found that the Re-
spondent had not engaged in other unfair labor practices alleged
in the complaint and recommended dismissal of these allegations.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications.
1. The complaint alleges that on or about July 17, 1951, the Re-
spondent discharged Billy Joe Green and thereafter refused to rein-
state him in violation of Section 8 (a) (3) and (1) of the Act. The
Trial Examiner found that Green was not discharged on July 17,
but left his employment on that date and did not report to work or
make application for reemployment at any time thereafter and, there-
fore, that the Respondent did not violate the Act with respect to
him. The General Counsel has excepted to these findings.
On July 5, 1951, the Union commenced its organizational cam-
paign at the Respondent's plant. As the Trial Examiner found,
during the early part of the union campaign there was considerable
hostility between the union and nonunion factions, which resulted
in arguments and "fussing" among the employees. Delmer Newton,
Respondent's president, who was aware of the organizational cam-
paign, assembled the employees on July 16 before they began work
and delivered a speech. Newton stated that the workers had been
"one big family," that the employees did not need a union, that he
would divide the Respondent's profits with the employees, and that
he would close down the plant if the Union was successful in its
drive. At the conclusion of his speech, Newton invited Buck Carroll,
'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 Houston , Styles, and
Peterson].
103 NLRB No. 46.
NEWTON BROTHERS LUMBER COMPANY 565
an employee whose prominence in the Union's organizational cam-
paign was well known to all the Respondent 's officials, to address the
assemblage. Carroll then spoke on behalf of the Union. Shortly
thereafter, employee Taylor, who was prounion, became involved in
an argument with employee Turner, who was antiunion , over the
merits of labor organizations in general, and Turner's son threatened
to assault Taylor.2 Thereupon, Foreman Rexford Green conducted
a poll among the employees to ascertain which of them had joined
the Union. After the poll, Newton stated that all the employees who
wanted to do so should return to work.
On July 17, after having finished his regular work shift, Billy
Joe Green, whose membership in and activity on behalf of the Union
were found by the Trial Examiner to have been previously known to
the Respondent, was assigned by Foreman Weaver to the task of
cleaning up the lumber in the area. While thus engaged, Green was
approached by employees Doyle Allen and James Bobo, who stated
that they were going to whip Green because he had signed a union
card and because he was one of "these damned union men." There-
upon, Green was set upon by these individuals and assaulted. Follow-
ing the assault, Green was warned by his assailants that if he returned
to work the next day he would be beaten again. Green then left the
Respondent's plant and did not return. Approximately 2 weeks after
the assault, Foreman Green, Billy Joe's immediate supervisor, de-
livered a load of wood to Billy Joe's residence. On this occasion,
Billy Joe asked Foreman Green if he, Billy Joe, could get a job
at the plant. Foreman Green replied in the negative and explained
that "Them boys down there don't like the union down there."
Billy Joe Green, as well as employees Carroll and Patterson, testi-
fied that Foreman Weaver was present while Green was being beaten
up and observed what transpired. Green testified that during the
fight, Carroll attempted to intercede but was prevented from doing so
by Weaver, who threatened to discharge Carroll if he interfered.
Green further testified that after the assault, he asked Weaver whether
he would again be assaulted if he returned to work, as Allen and Bobo
had threatened, and that Weaver answered in the affirmative. While
this affirmative statement by Weaver was corroborated by Patterson,
Carroll did not allude to it in his testimony. Weaver, on the other
hand, categorically denied that he was present during the assault, or
2 There were other instances of friction and violence between the union and antiunion
employees . Thus, for example , on the morning of July 18, when employee Mary Ann Lucas
arrived for work , she testified that she saw Turner approach Taylor and heard Turner warn
Taylor that if the latter was still at the plant at dinnertime he would be killed . An argu-
ment immediately arose between the union and nonunion adherents and was followed by a
series of fights between the two factions. The Trial Examiner found that Foreman Weaver
was present during the altercations and encouraged them. He also found that Newton was
present at least part of the time and did nothing to stop the fighting.
257965-54-vol. 103-37
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had any knowledge of the altercation until after the fight had
concluded.
Prior to working hours on the morning of July 18, 1951, Carroll had
a conversation with Newton about the assault on Green the previous
day. According to Newton's testimony, Carroll approached him and
stated that "we are going to have a showdown here this morning. We
are not going to work until we have a reckoning about this boy getting
beaten up." Newton testified further that he replied that he was un-
aware of anyone having been beaten, that the plant would work that
day, and that "You have been having a hell of a lot to say around here
about first one thing and then another that is none of your business and
I said, You are going to leave here this morning or you are going to
shut your mouth." At this juncture, Weaver joined Newton and
Carroll. His testimony with respect to this conversation, which he
apparently overheard, corroborates the testimony of Newton.
Carroll's version of the conversation, elicited through examination
by the Trial Examiner, was to the effect that he met Newton at the
plant on the morning of July 18, and "I thought I would mention it to
him, mention about the fight. And Mr. Newton told me he didn't know
anything about it and I was explaining it to him about the two non-
union boys that refused to sign union cards, I mean two boys said they
refused to sign cards that they they said they was not going to
fool with the damned mess and drug the little boy outside Mr. New-
ton's plant there and had beaten him up, . . . and I was telling him
about Mr. Robert Weaver, that I had asked Mr. Robert Weaver about
the fight and Mr. Weaver had said to let them fight, what do I care.
And so that is when Mr. Weaver come up and he told me he thought I
was going too damned far with that and the best thing for me to do was
to get off the premises and I was fired, to get the hell out of there."
With respect to the issue of whether Weaver was present at or was
aware of the assault upon Green, the Trial Examiner credited Weaver's
testimony and discredited the testimony of Green, Patterson, and
Carroll. On the basis of this resolution of credibility, which, under
the circumstances, we accept, the Trial Examiner concluded that the
Respondent did not discriminatorily discharge Green on July 17,
apparently because the Respondent was unaware at the time that
violence was being visited upon Green by antiunion employees because
of his union activities. The Trial Examiner made no mention of the
conversation in which Foreman Green told Billy Joe Green he could
not come back because of the antiunion feeling at the plant. How-
ever, the Trial Examiner credited Carroll's version of his conversation
with Newton and Weaver on the morning of July 18, and found, ac-
cordingly, that, as the Respondent made no effort to investigate the
assault upon Green or to reprimand his assailants, it "ratified and
NEWTON BROTHERS LUMBER COMPANY 567
condoned the assault upon Green and thereby interfered with the rights
of its employees in violation of Section (a) (1) of the Act."
We concur in the Trial Examiner's finding that the Respondent's
conduct in condoning the assault on Green was violative of Section 8
(a) (1) of the Act. However, we find merit in the General Counsel's
exceptions to the Trial Examiner's finding that the Respondent did
not also violate Section 8 (a) (3) of the Act with respect to Green, and
Section 8 (a) (1) of the Act by the statement of Foreman Green to
Billy Joe Green that he could not return to work because of his union
sympathies.
The Board and the courts have frequently held that an employer who
acquiesces in the exclusion of employees from its plant by an antiunion
or rival-union group will be regarded as having constructively dis-
charged such employees in violation of Section 8 (a) (3),3 for the
reason that the Act imposes upon an employer the affirmative duty to
insure that its right of discharge is not surrendered to any union or
antiunion group. Moreover, an employer cannot avoid the responsi-
bilities imposed by the Act on the ground that it had no knowledge of
the exclusion of employees until after the event occurred, for, as the
Board has stated, "An employer's responsibility for such exclusion
is . . . not dependent upon knowledge in advance of exclusion, but
arises if the employer, as in this case, is immediately advised of the
exclusion and does nothing to prevent its continuance." 4
The record in the instant case establishes, and the Trial Examiner
found that : (1) The Respondent was aware of the antagonism which
existed between its union and nonunion employees prior to Green's
assault; (2) the Respondent fanned this antagonism by the statements
in Newton's speech to the employees on July 16, 1951, to the effect
that profits would be shared with the employees if they refrained from
union activity and that the plant would be closed if the Union was
successful, and by polling its employees on that date; (3) prior to the
assault on Green, the Respondent was aware of Green's union mem-
bership and sympathies; (4) on the morning of July 18, Carroll, whose
activity on behalf of the Union was well known to the Respondent,
notified the Respondent that Green had been assaulted the previous
day by antiunion employees because of his adherence to the Union
and had been warned not to return to work at the risk of additional
beatings; (5) on the morning of July 18, a series of fights occurred
between union and antiunion adherents of which the Respondent was
aware; and (6) at no time, upon learning of the circumstances sur-
rounding the assault upon Green, did the Respondent make any effort
to investigate the assault, reprimand the assailants, or communicate
' See Fred P. Weissman Company, 69 NLRB 1002, enfd. 170 F. 2d 952 ( C. A. 6), cert den.
336 U. S. 972.
1 See Detroit Casket and Manufacturing Company, 78 NLRB 670.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Green to offer him reinstatement and adequate protection from
further assaults.
On the basis of the foregoing and the entire record in this pro-
ceeding, we find that on July 18, 1951, the Respondent was fully
aware of the fact that Green had been ousted from the plant by anti-
union employees and compelled to remain away from work by threats
of future violence. Accordingly, we find that the Respondent acqui-
esced in Green's exclusion from the plant and thereby constructively
discharged him on that date in violation of Section 8 (a) (3) of the
Acts Moreover, we further find, in view of the Respondent's :ac-
quiescence in Billy Joe Green's forcible ouster from the plant, that
the Respondent violated Section 8 (a) (1) of the Act by the state-
ment of Foreman Green to Billy Joe.
2. At the hearing, the General Counsel amended the complaint to
allege that the Respondent had discriminatorily discharged Annie
Bell Colburn on October 1, 1951. The Trial Examiner found that
Colburn was not discharged by the Respondent. The General Counsel
has excepted to this finding.
The Trial Examiner found that on or about July 2, 1951, the Re-
spondent's predecessor concluded its contract with the Government
for the manufacture of wooden boxes for the Army. On July 9, the
Respondent entered into a similar contract, succeeded to the owner-
ship of the predecessor's plant, and apparently hired the predecessor's
employees. It appears that shortly after she obtained employment
in the Respondent's box department, Colburn signed a union-authori-
zation card. On July 16, when the Respondent polled its employees
to ascertain which of them had joined the Union, Colburn lined up
with the small group of union adherents. It further appears that on
July 18, Foreman Weaver asked Colburn whether she had signed a
union card and she answered in the affirmative.
In the early part of September 1951, Respondent's contract with
the Government expired and all the employees in the box-making de-
partment, including Colburn, were laid off. Weaver informed these
employees that when the Respondent obtained another contract they
would be reemployed, and suggested that they leave their names and
addresses with him to facilitate their recall. Colburn did so. Ap-
proximately a month after she was laid off, Colburn learned that the
Respondent had obtained another contract for the manufacture of
boxes and that the box department was again in operation. She there-
upon called Weaver, informed him that she heard that the department
was operating once more, and asked him for work. Weaver replied
that while there were jobs available, "I have got a boss that says that
See Detroit Gasket and Manufacturing Company, supra.
NEWTON BROTHERS LUMBER COMPANY 569
I can 't hire you and about half a dozen others. . . . It is that little
mess you all stirred up down here and lost."
Notwithstanding the foregoing findings of fact, the Trial Examiner
concluded that there was nothing in Colburn's testimony "remotely
suggesting" that she was discharged because of her union activities,
and that, as the General Counsel proceeded on the theory that
Colburn was discharged on October 1, it would be "improper and
inappropriate to depart from the allegation of the complaint and
consider and determine her case on the basis that the Company, had
unlawfully refused to reemploy [sic] her about 1 month after she had
been laid off." We do not agree.
When Weaver told Colburn that jobs were available but she would
not be given one because of her union activity, the Respondent termi-
nated her status as a laid-off employee for whom a job was available,
and, in our opinion, thereby discriminatorily discharged her 6 Fur-
thermore, the issues concerning Colburn's termination of employment
were fully litigated at the hearing? Therefore, whether the Respond-
ent's termination of Colburn's employee status is viewed as a dis-
charge or as a refusal to reemploy, we find that on October 1, 1951,
the Respondent discriminated against Colburn in violation of Section
8 (a) (3) and (1) of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, D. W. Newton, doing busi-
ness as Newton Brothers Lumber Company, his agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the International Woodworkers
of America, CIO, or any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees or by dis-
criminating in any other manner in regard to their hire and tenure
of employment or any term or condition of employment.
(b) Interrogating or polling his employees concerning their union
affiliation, activities, and sympathies; threatening them with discharge
or economic reprisals or threatening to close his business because of
their union membership or activities, and participating in, ratifying,
or condoning physical assaults by his employees upon employees be-
cause of their union affiliation, activities, and sympathies.
(c) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
" See H h H Manufacturing Company , 87 NLRB 1378.
+ Paoiftc MiSs, 91 NLRB 60.
.570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, to join or assist the International Woodworkers
of America, CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities except to the extent such right may be affected by an agree-
ment 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 to Maudie Booth, Buck Carroll, Billy Joe Green, and
Annie Bell Colburn, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make each of them whole for
any loss of pay each may have suffered by reason of the discrimination,
in the manner set forth in the section of the Intermediate Report
entitled "The Remedy." s
(b) Instruct his employees that he will not permit any group of
employees to exclude other employees from the plant because of their
membership in, or activities on behalf of, the International Wood-
workers of America, CIO, or any other labor organization, and that
physical assaults upon, or threats of physical violence to, their fel-
low-employees for such purposes will not be permitted in the plant or
upon plant property at any time, and that he will take effective action
to enforce these instructions.
(c) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social-security payment records, and all other records necessary to
analyze and ascertain the amounts of back pay due under the terms of
this Order.
(d) Post at its plant, in or near Tuscaloosa, Alabama, copies of
the notice attached hereto and marked "Appendix A." 9 Copies of
said notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by D. W. Newton, be posted by
him immediately upon receipt thereof and maintained by him for sixty
(60) consecutive days thereafter in conspicuous places including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by him to insure that said notices are not
altered, defaced, or covered by any other material.
8 However , with respect to Billy Joe Green and Annie Bell Colburn, we shall , in accordance
with our usual policy, toll the period from the date of the Intermediate Report herein to
the date of this Decision and Order in computing the amounts of back pay , as the Trial
Examiner did not recommend their reinstatement or the award of back pay to them . Salant
& Salant, Incorporated , 92 NLRB 343.
In the event that this Order is enforced by a decree of a 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."
NEWTON BROTHERS LUMBER COMPANY 571
(e) Notify the Regional Director for the Tenth Region , in writing,
within ten ( 10) days from the date of this Order, what steps the Re-
spondent has taken to comply therewith.
IT IS FURTHER ORDERED that the allegations of the complaint, inso-
far as they allege that the Respondent discriminatorily discharged
Luther Logan, Velma Hardy, and Mary Ann Lucas , and refused
to employ Lavenia Etheridge , be, and they hereby are, dismissed.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, I notify my employees that:
I WILL NOT discourage membership in the INTERNATIONAL
WOODWORKERS of AMERICA, CIO, or in any other labor organi-
zation of my employees, by discriminating in regard to their hire
or tenure of employment or any term or condition of employ-
ment.
I WILL NOT interrogate or poll my employees concerning their
union affiliation, activities, or sympathies, or threaten them with
discharge, reprisal, or economic loss because of their union affilia-
tions, activities, or sympathies.
I WILL NOT in any manner interfere with, restrain, or coerce
my employees in the exercise of their rights to self-organization,
to form, join, or assist INTERNATIONAL WOODWORKERS OF AMERI-
CA, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of
the National Labor Relations Act.
I WILL offer to Maudie Booth, Buck Carroll, Billy Joe Green,
and Annie Bell Colburn immediate and full reinstatement to
their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of pay suffered by them
as a result of the discrimination against them.
I hereby instruct my employees that I will not permit any
group of employees to exclude other employees from the plant
because of their membership in or activities on behalf of INTER-
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NATIONAL WOODWORKERS OF AMERICA, CIO, or any other labor
organization, and that physical assaults upon or threats of phys-
ical violence to employees for such purposes will not be permit-
ted in the plant or upon plant property at any time, and I will
take effective measures to enforce these instructions.
All of my employees are free to become or remain, or to refrain
from becoming or remaining, members of the above-named union or
any other labor organization. I will not discriminate against any em-
ployee because of membership in or activity on behalf of any such
labor organization.
D. W. NEWTON, DOING BUSINESS AS
NEWTON BROTHERS LUMBER COMPANY,
Employer.
Dated -------------------- By --------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge, as amended , duly filed by International Woodworkers of
America, CIO, herein called the Union, the General Counsel of the National
Labor Relations Board,' by the Regional Director for the Tenth Region (Atlanta,
Georgia), issued a complaint dated June 20, 1952, against D. W. Newton, an
individual, d/b/a Newton Brothers Lumber Company, herein called the Com-
pany or the Respondent, alleging that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. Copies of the complaint with copies of the
charges were duly served upon the Respondent and the charging party.
In substance the complaint alleges that on specified dates in July 1951, the
Respondent discharged and refused to reinstate seven of its employees because
of their membership in and activities on behalf of the Union and because they
engaged in concerted activities with other employees for the purposes of col-
lective bargaining and other mutual aid and protection ; that the Respondent
interrogated and conducted a poll of its employees to determine their union
membership and sympathies, promised economic benefits to the employees to
refrain from becoming or remaining members of the Union, threatened them
with reprisals if they became or remained members of the Union, and instigated
and condoned physical assaults by certain of its employees upon employees
favorable to the Union . By reason thereof the Respondent engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) and
(3) of the Act. About June 27, 1952, the Respondent filed its answer in which
it admits certain allegations of the complaint but denies the commission of any
unfair labor practices. At the same time the Respondent filed its motion to dis-
miss the complaint.
i The General Counsel and his representative at the hearing are herein referred to as the
General Counsel ; the National Labor Relations Board as the Board.
NEWTON BROTHERS LUMBER COMPANY 573
Pursuant to notice, a hearing was held at Tuscaloosa, Alabama, on July 7 to
10, 1952, inclusive, before the undersigned Trial Examiner. The General
Counsel and the Respondent were represented by counsel at the hearing and the
charging party by one of its international representatives. All parties partici-
pated in the same and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence pertinent to the issues
involved. At the outset of the hearing the undersigned denied Respondent's
motion to dismiss the complaint, based principally upon the grounds that the
amended charge was not filed and served within 6 months after the commission
of the alleged unfair labor practices as contained in the proviso in Section 10
(b) of the Act. During the course of the hearing the undersigned granted
various motions of the General Counsel to amend the complaint, which amend-
ments are discussed below. At the conclusion of the case the General Counsel
moved to conform the pleadings to the proof which motion, without objection,
was granted by the undersigned limited to matters of form. Counsel presented
oral argument to the undersigned and were advised of their right to file briefs
in the matter.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Upon the basis of the pleadings and the stipulation of counsel, the undersigned
finds that D. W. Newton, an individual, d/b/a Newton Brothers Lumber Company,
maintains its office and place of business at Tuscaloosa, Alabama, where it is
engaged in the manufacture of crates and boxes, the latter product for the United
States Army, and annually sells and ships products valued in excess of $50,000
to customers in places outside the State of Alabama. The undersigned finds
that the Respondent is engaged in commerce as defined in the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Woodworkers of America, CIO, is a labor organization admitting
to membership employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. The operations conducted at the plant
Delmer Newton testified that after obtaining a Government contract he com-
menced manufacturing ammunition boxes for the Army in July 1951.8 Imme-
diately prior to that time "Pug" Newton, a brother of Delmer, and Henry Waugh,
trading as Newton & Waugh Box Company, as stated by W. C. Watkins who
acted as bookkeeper for both companies, manufactured boxes for the Army and
during this period the Company manufactured crates in the same general plant
area. Delmer Newton (hereafter simply referred to as Newton) said that
Newton & Waugh completed their contract about July 2 and that the present
Company actually began box manufacturing operations about July 9. Watkins
said the Company "accepted the contract" and began building boxes on July 5.
Apparently the Company concluded its contract sometime in September. Robert
Weaver, superintendent of the Company, and who held the same position for
Newton & Waugh, stated that all of the employees of the latter company were
' All dates refer to 1951.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off upon the completion of its contract. While the record discloses that
many of the employees of the Company who testified at the hearing had previously
worked for Newton & Waugh, as well as predecessor companies, there is no evi-
dence indicating the hiring procedure adopted or used by the Company in
obtaining its employees.
B. Organizational activities and alleged interference on the part of the Company
Buck Carroll, employed on the printing or stenciling machine, stated that he
began organizing on behalf of the Union on July 5, and by July 18 had succeeded
in signing up 7 or 8 employees as members thereof. On July 6, Superintendent
Robert Weaver came to Carroll while he was working and stated he had heard
"rumors about a union." He asked Carroll if he liked his job and when the latter
replied in the affirmative Weaver said, "Well, if you like your job you had better
leave that damn mess alone." On the same day Carroll also talked to Newton
in regard to Luther Logan who had threatened to quit his job. Thurman Her-
ring, who operated the saw, said he signed a union card and thereafter Weaver
told him if the employees wanted to continue working, "we had better leave that
mess alone we were fooling with." Annie Bell Colburn said that Weaver asked
her if she had signed a union card and she told him she had done so. Billy Joe
Green stated that Foreman Rexford Green inquired if he had signed a union
card and Weaver asked him if he knew what the Union was going to do. Eliza-
beth Gregory said Weaver asked if she had signed a union card and she admitted
she had.
Weaver denied that he interrogated any of the employees in regard to their
membership in the Union or that he made any threats or promises to them in
order to induce them from becoming or remaining members of the Union. Fore-
man Green denied that he had ever received any instructions from company man-
agement to find out the employees who were members of the Union.
During the course of the union drive, which seemingly covered the period from
July 5 to no later than July 18, considerable friction existed between groups of
employees who favored the Union and those who opposed it. Thus, Walter
Marvin Taylor, a member of the Union, stated there were some workers who
wanted the Union and some against it and most of the time these groups were
"fussing and fighting." Colburn likewise stated that the groups engaged in argu-
ments about the Union. Herring related that there were two factions at the
plant and that they threatened each other and engaged in arguments over the
Union. John Henry Patterson, a member of the Union, also admitted that there
was friction among the workers in regard to the Union.
The Speech of July 16
It is undisputed that on the morning of the above date Newton assembled all
of the employees and spoke to them. Maudie Booth said that some 60 or 70
employees were present on the above occasion. About 1 week prior to this date
she stated that the hardware and head workers had engaged in a work stoppage
which lasted about an hour. Only a few employees were involved in this dispute
which concerned piece rates and there is nothing to indicate the Union caused
the stoppage. In substance Newton, according to Booth, told the employees that
he had work for all of them "if everybody would go on and not sign union cards,"
and that he would divide the profits from the contract among the employees.
Newton then told Carroll to speak to the group, which he did. Carroll declared
that he was not trying "to pull nothing over the company" and that all the
employees wanted was a "regular price" for their work and job security.
NEWTON BROTHERS LUMBER COMPANY 575
Taylor stated that Newton told the employees they had been getting along
"pretty well" without the Union and that the employees would be better off
without it ; that if they wanted more money he would grant increases if he could.
Carroll also spoke to the employees but Taylor could not recall what he said.
Employee Jessie Turner told the employees that he had been working at the
plant 15 years and that the Company had been good to him. He said that the
employees did not need a union and if one came in it would result in strikes and
trouble and specifically referred to the United Mine Workers. Taylor engaged
in an argument with Turner concerning the United Mine Workers and Turner's
son then offered to fight Taylor. However, no fight took place. Taylor also
stated that Preacher Simmons told the group that he had been employed by the
Company for a long time and that Newton had been good to him. Simmons
further informed the employees that sometime previously the workers had
"tried to get a union here and ... they took a lot of our money and ran away
with it and it didn't work and we don't want that to happen again." Simmons
then closed the meeting with prayer.
John Henry Patterson said that Newton told the employees they were "all
working in peace" before the Union started, that he "didn't want no union there,"
and that he would close the plant before he would let the Union come in. Lena
Patterson related that Newton pointed out the Company and the employees had
been one "big family" ; that there was no occasion for the present "conflict and
trouble" ; that the employees did not need a union and that the Company would
shut down before having one. Newton further declared that when his contract
was completed he would equally divide the profits with the employees. Carroll
told the group that he was in favor of the Union because he wanted higher wages
and Newton said if that was his reason Carroll should have come to him. Sim-
mons said a prayer and informed the group that the Company had been good to
him and that he did not want "this confusion" at the plant. Patterson also
stated that Turner spoke against the Union which resulted in an argument with
Taylor in the course of which Turner's son offered to fight Taylor. Velma Hardy
stated that Newton advised the employees that he had secured the contract to
give them work and that he would close down before he would have a union in
the plant.
Carroll did not testify on this phase of the case.
Following the talks, Hardy said Foreman Green announced that all employees
who "wanted to work" to get on one side and those who "signed the union
cards" to assemble on the other side. Hardy declared she had signed a card
and walked to the so-called union side. As only a few employees joined her she
announced that "the other members turned yellow and won't come over here but
there is more in the union hall than this." Green then told all the employees,
including those that "joined the union," to go to work if they wanted to, so
Hardy and all the union members went to their jobs. Colburn, John Patterson,
and Lena Patterson testified to the same effect as Hardy concerning the separa-
tion of the employees and the fact that Foreman Green, or Weaver, told them
to go to work if they so wished. Taylor similarly testified that the employees
were separated and while he and the employees went to work he could not recall
Green telling them to return to their jobs
Newton stated that during the week of July 9, when he commenced manufac-
turing operations, some of the employees told him that union cards were being
passed out among the workers. In the same period Carroll talked to Newton
and Weaver about Logan needing an additional man on his job and the head
nailers and lid makers engaged in a work stoppage in order to obtain higher pay
rates. Newton admitted that the stoppage was not caused by the Union. In sub-
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stance Newton stated he did not talk to his employees concerning the Union, nor
did he instruct Weaver to discuss or question the workers in regard to their
activities on behalf of the Union. By reason of the above occurrences, plus the
assertion that he was not realizing any profit on the contract, Newton decided to
speak to his employees. Accordingly, on July 16, Newton assembled the employees
and told them there was some "confusion going on in the plant," and that certain
employees had engaged in a work stoppage to secure higher rates. Newton ex-
plained that he took the contract without personal profit to provide employment
and that he would pay all that he could under the circumstances. He further
stated that he "wanted everybody to work peaceable" and "if we couldn't make
the boxes there," he would have them manufactured elsewhere. Newton an-
nounced that any of the employees could address the group whereupon Carroll
and Simmons spoke to the employees. In the course of the meeting Newton said
that 2 of the employees created "a racket," obviously Taylor and Turner, and
cursed each other. After the disturbance ceased Foreman Green announced to
the group that all employees who desired to work should move to one side and
those who did not wish to work to get on the other side. The employees then
separated, with 6 or 7 on the side designated as not wishing to work, whereupon
Newton announced that "Everybody can go to work," and all the employees re-
turned to their jobs.
Weaver stated that Newton told the employees that they had been agreeable
and like a happy family and that he wanted relations to continue that way. He
also advised the group that he had obtained the present contract to manufacture
boxes at little or no profit to himself but in an effort to hold the crew together
with the hope of getting a better contract. Following a talk by Carroll, Foreman
Green said everyone that wanted to work get on one side and those that did not
to get on the opposite side. The employees then "formed two sides" and Green
announced that all of the employees could go to work.
Foreman Green testified that on the above occasion Carroll spoke to the em-
ployees who thereafter argued about various matters including the question of
whether or not they would work that day and as the arguments continued past
the normal work hour, 7 o'clock, Green instructed the employees who did not
want to work to get on one side and those who wished to work to get on the other
side. The workers then separated with about six employees in the group indicat-
ing they did not want to work. Newton then spoke to the employees and all who
wished to do so went to work.
D. W. Simmons, a Nazarene minister and an employee of the Company, testified
that Newton told the employees he had accepted the contract to provide work for
the employees and if they did not want to make the boxes he could have them
made elsewhere. Carroll also spoke to the employees and stated that the workers
desired a union for job security rather than for higher wages. Simmons informed
the group that the employees had had a union several years previously but that
it had not been a success, and that the old workers did not want a union. Sim-
mons further stated that Newton had been good to him and he believed if everyone
would cooperate and work they would be treated right. Simmons also testified
that Green announced that all the employees who wanted to work to get on one
side and "then maybe he changed" and stated "all that want the union get on one
side," whereupon the employees separated into two groups.
Henry Tubbs stated that Newton told the employees he wanted the "confusion
stopped" and that he did not have to make boxes, he could get someone else to
do that for him. After the speech Green said that the employees "that wanted
a union to get on one side and all that didn't on the other." Following prayer
by Simmons, the employees returned to work.
NEWTON BROTHERS LUMBER COMPANY 577
The employees who testified on behalf of the Company uniformly stated that
Newton did not mention the Union in his speech , and each denied that Newton,
Weaver , or Green had ever threatened them with loss of their jobs if they became
members of the Union.
The undersigned finds that the Union commenced its organizational drive
about July 5, which seemingly continued until about July 18. The undersigned,
on the credited evidence adduced by the General Counsel , has no difficulty in
finding that at the outset of the campaign Weaver warned Carroll that he had
heard of the movement and threatened Carroll with loss of his job unless he left
the "damned mess alone." Weaver issued a similar threat to Herring. The
undersigned further finds that Weaver questioned Colburn and Gregory in regard
to their union membership and asked employee Green if he knew what the
Union intended to do at the plant . Foreman Green likewise questioned employee
Green regarding his membership in the Union . It is well settled that an employer
by threatening employees with loss of their jobs because of their union member-
ship or activities thereby substantially interfered with their rights protected
under the Act. It is equally well established by the Board that the questioning
of employees by an employer concerning their membership or nonmembership in
a labor organization , per se, violates the Act. ( Standard-Coosa-Thatcher Com-
pany, 85 NLRB 1358; Sixteenth Annual Report of the Board, p. 144 .) However,
the finding herein is not predicated exclusively on the per se doctrine, for here
the record clearly shows the interrogation had a coercive effect upon the em-
ployees since it was conducted in a background of company hostility to organiza-
tion and was part of a course of conduct tending to prevent or frustrate unioniza-
tion of its employees.
The record here discloses that the sentiment of the employees differed in regard
to unionization which resulted in arguments and "fussing " among the workers
and considerable feeling existed between the prounion and antiunion factions.
Moreover , during the early part of the campaign some of the employees engaged
in a work stoppage for higher piece rates although concededly the stoppage had
no connection with the union drive . In the light of this background , as well as
the contention that the Company was not realizing any profit on its contract,
Newton , who was aware of the organizational activities , decided to speak to his
employees and on the morning of July 16, he assembled them prior to their work
shift for this purpose. Although the testimony of the witnesses for the General
Counsel, as detailed above , is not uniform concerning the remarks made by New-
ton, it is by no means inconsistent and is accepted and credited by the undersigned.
Accordingly, the undersigned finds that Newton informed the employees that the
Company and the workers had been one "big family" and that there was no reason
for the present "conflict and trouble ." Newton declared that the employees did
not need a union and would be better off without one. He also pointed out that
he accepted the contract in order to provide employment for the workers, and
that he would share the profits with them, but that he would close the plant
before he would permit the Union to come in. Newton admitted that he spoke
to the employees about the "confusion" at the plant and explained that he had
taken the contract without personal profit and would pay all that he could under
the circumstances . He further warned the employees that he wanted them to
work in peace and if the Company could not manufacture boxes at its plant, he
would have them produced elsewhere.
Newton asserted that he made no mention of the Union, or unions, in his
speech, and his assertion is corroborated by practically all of the employees
produced as witnesses for the Company, but the plain import of his talk and
his reference to the "confusion" at the plant leaves no doubt that he was refer-
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ring to the Union's attempt to organize the workers. Nor is there any question
but that the employees were fully cognizant of this fact for it is undisputed that
Carroll spoke in favor of the Union, two of the employees engaged in an argu-
ment or "racket" about unionization, and Simmons discussed earlier unsuc-
cessful efforts to organize the employees. Simmons further declared that the
old employees did not want a union and if the employees would cooperate
and work with Newton they would be treated fairly. Newton did not repudiate,
or clarify in any manner, Simmons statements to the employees, but while
Carroll was speaking Newton interposed with a remark that if he desired
higher wages he should have come directly to him.
From the foregoing evidence the undersigned finds that Newton's speech was
a plain attempt to discourage organization by the employees and contained a
clear threat to shut down the plant if the employees persisted in their efforts
to unionize. Statements of this character are not protected by Section 8 (c)
of the Act which guarantees the expression of "any views, argument, or opinion"
so long as such expressions are not accompanied by any "threat of reprisal or
force or promise of benefit." (F. W. Woolworth Co., 90 NLRB 289, 311-313;
Rozelle Shoe Corporation, 100 NLRB 117.) In making the above finding, the
undersigned does not rely upon the remarks attributed to Newton that he was
paying all he could under the contract, or that he would distribute the profits,
if any, among the employees at the termination thereof.
It is undisputed that after the speeches the employees were separated into
2 groups by Foreman Green. The witnesses for the General Counsel testified
that Green instructed the employees who had signed union cards to assemble
on one side and those who wanted to work to assemble on the other side. The
workers then separated with only few, about f or 7, standing on the union side.
Green thereupon told the employees they could go to work and all of them,
including the union members, went to their jobs. Tubbs and Simmons testified
to the same effect. Newton and Green stated that the employees were separated
on the basis of those who desired to work and those who did not wish to do so,
and that after the division was made all of the employees went to work. Suffice
it to say that the reasons advanced by Newton and Green are not only plainly
refuted by other witnesses, including company witnesses, but appear unlikely
and improbable, Bence their testimony is rejected. Accordingly, the undersigned
finds that the Company conducted a poll of its employees in order to determine
the union membership or sympathies of the workers and thereby engaged in
conduct in violation of the Act. (Rozelle Shoe Corporation, supra; Stainless
Ware Company, 87 NLRB 138.)
By reason of the foregoing findings the Company has interfered with, re
strained, and coerced its employees in the exercise of the rights guaranteed to
them under the Act in violation of Section 8 (a) (1) thereof.
C. The assault upon employee Green on July 17, and his alleged discharge
Green stated that on the above date, after he had finished his regular work
shift, Weaver told him to clean up the lumber that evening and while thus
engaged, employees Doyle Allen and James Bobo came to him, with Weaver
about 12 feet distant, and Allen said be was going to whip him. Green asked the
reason and Allen said it was because he had signed a union card. Allen also
told Bobo that Green was one of "these damned union men." Green stated they
walked outside , on cross-examination he said he was dragged out, where Bobo
held him while Allen struck him. Carroll, according to Green, left the stencil
machine when the fight first began and walked toward them but Weaver told
Carroll if he went there he would be fired, so Carroll returned to his machine.
NEWTON BROTHERS LUMBER COMPANY 579
After the fight Allen said that if Green came back in the morning "it is going to
be twice as worse." Green asked Weaver if that was right and he answered yes.
Green then went home and did not thereafter return to the plant , except to collect
his pay. About 2 weeks after the fight , Foreman Green came to Green's home
to deliver a load of wood and when he inquired about work Foreman Green said
he did not believe he wanted a job at the plant because the boys did not like the
Union or union men.
Carroll was working on the stencil machine and when the fight started he
went to Weaver, who was standing about 25 feet from Green and Allen, and
told him he should stop them . Weaver said to let them fight so Carroll went
back to his machine.
John Patterson saw 2 boys drag Green out of the shed for a distance of about
6 feet and Green and 1 of the boys then engaged in a fight. During the fight
Weaver was sitting on a keg inside the shed and was in a position to observe the
fighting, although Patterson did not state how far he was from the scene. Patter-
son said Green was beaten rather badly and after the fight the boys told him to
get out and never come back . He also heard Weaver tell Green to get out.
Weaver said he was in the office checking production records when the fight
occurred ; that he did not see the boys fighting and first heard of the affair the
same evening after it was all over and Green had left the plant. Weaver stated
that Green never talked to him about the fight and never reported for work after
the incident . He denied that he confirmed "Bobo's" statement to Green to the
effect that Green could not remain at the plant.
Neither Allen nor Bobo testified at the hearing.
Foreman Green was not questioned in regard to the conversation employee
Green stated he had with him at time he delivered a load of wood at the latter's
home.
On the morning following the fight Carroll saw Newton at the plant , before
working hours, and informed him that Green had been beaten by two employees
from the crate department . Newton said he knew nothing of the fight whereupon
Carroll explained that Weaver was present and related the conversation he had
with Weaver. At that time Weaver came up, cursed Carroll and told him he had
gone too far and to get out of the plant. Newton then told Carroll to get out and
stay out, whereupon Carroll left the plant.
Newton testified that Carroll approached him and stated that "we are going
to have a showdown " this morning, that we are not working until we have
a "reckoning about this boy getting beat up." Newton said he knew nothing of
the beating but the plant would operate. Newton also told Carroll he had been
"having a hell of a lot to say around here about first one thing and. then another
that is none of your business and . . . you are going to leave here this morning
or you are going to shut your mouth." About that time Weaver came up and
stated Carroll was having too much say, whereupon Carroll said he would leave
the plant.
Weaver testified that he heard Carroll tell Newton the plant would not operate
until the matter of Green 's whipping had been straightened out. Weaver de-
clared the plant would operate and that Carroll "don't have any cause to shut
the plant down because one kid got whipped." Weaver told Carroll he could work
if he wanted to, if not, to go home. Carroll then left.
The General Counsel contends that the Company, through Weaver , instigated,
acquiesced in, and condoned the assault upon Green , while the Company denies
that it engaged in any such action.
Of course , the testimony of the individuals involved in the assault , as detailed
above, is contradictory and variable and presents sharp conflicts of factual issues
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for determination. In short, Green testified that Allen and Bobo, while Weaver
was standing 12 feet away, approached him and Allen declared he was going
to whip him because he was a union man. Green then walked, or was dragged,
out of the plant shed and while Bobo held him, Allen beat him. At the outset
of the fight Green saw Carroll walking toward the group and heard Weaver
threaten to discharge him if he went to the scene. After the fight Allen warned
Green to stay away from the plant or receive another whipping whereupon
Green asked Weaver if this was true and he answered in the affirmative. Green
then went home. Green's version receives little corroboration from Carroll who
testified that he asked Weaver, who was 25 feet distant from the fight, to stop the
boys and Weaver replied let them fight. Carroll made no mention of any threat
of discharge by Weaver if he went to the place where they were fighting. It
would be difficult to accept Green's statement, absent any evidence to the con-
trary, that while being whipped by the two boys, nevertheless he observed the
movements of Carroll and overheard threats uttered by Weaver to Carroll. In
the opinion of the undersigned the testimony of Green in this respect is fully
negated by Carroll. Again, Green said he was held by Bobo while Allen beat him
but Patterson related that the fighting involved only Green and one of the boys,
both of whom he observed "wallowing" on the ground. While Patterson heard
the boys tell Green to leave the plant and not return he made no mention of Green
inquiring of Weaver if this was true. However, Patterson said he heard Weaver
tell Green "to get out and get going." Weaver, in substance, denied that he
witnessed the fight or that he gave any affirmance to Bobo's alleged statement
that Green could not remain at the plant.
Of course , there is no doubt that Green was assaulted and since this testimony
as to the cause thereof is not challenged, except as to Weaver's presence, the
undersigned accepts his testimony in this respect and to the extent that it is
undenied , and finds accordingly. Since the evidence of the General Counsel
bearing upon the fight itself and the events that transpired immediately there-
after is contradictory and conflicting, and Green's testimony strikes the under-
signed as highly implausible, it is rejected. The undersigned accepts Weaver's
testimony that he was not present at any time during the fighting, or imme-
diately thereafter, hence it is found that the Company did not instigate, promote,
or acquiesce in the assault as alleged in the complaint. Although Weaver did
not specifically deny Carroll's statement that he said to "let them fight," the
undersigned is of the opinion that under the circumstances this assertion would
not warrant a contrary finding.
It is undisputed, and found, that on the morning of July 18, Carroll met with
Newton and informed him of the fight. When Newton expressed ignorance of
the same, Carroll attempted to explain the affair to him and while doing so
Weaver joined them. Carroll, however, did not get far in his discussion for
both Newton and Weaver promptly warned him he was having too much to say
about matters that were none of his business and he would either keep quiet
or leave the plant at once. The explanation offered by Newton and Weaver
that Carroll threatened to shut down the plant until the Green matter was settled
is not persuasive and is rejected.
It is clear, therefore, that when Carroll sought to discuss and adjust the
subject of Green' s assault , both Newton and Weaver exhibited strong resent-
ment and threatened him with discharge. This demonstration convinces the
undersigned that neither Newton nor Weaver were interested in performing
their statutory duty to protect union adherents from violence or assault by
antiunion employees. N. L. R. B. v. Hudson Motor Car Company, 128 F. 2d 528
(C. A. 6) ; N. L. R. B v. Fred P. Weissman Co., 170 F. 2d 952 (C. A. 6). While,
NEWTON BROTHERS LUMBER COMPANY 581
as found above, the Company did not instigate or participate in the assault it
clearly condoned this conduct by its subsequent action. Apart from the treat-
ment afforded Carroll, the record is barren of any evidence that officials of the
Company took any steps whatever to investigate the assault, or that they talked
to any of the employees involved, or that any of the employees were ever disci-
plined or reprimanded or ever warned that conduct of this character would not
be tolerated. The undersigned therefore finds that the Company ratified and
condoned the assault upon Green and thereby interfered with the rights of its
employees in violation of Section 8 (a) (1) of the Act. (The American Thread
Company, 94 NLRB 1699, 1708-1710)?
The complaint alleges that on July 17 Green was discharged and subsequently
refused reinstatement by reason of his union membership and activities, or
because he engaged in appropriate concerted activities with other employees.
From the foregoing discussion and findings, the undersigned further finds that
Green was not discharged on the above date but left his employment and did
not subsequently report for work or return to the plant for the purpose of dis-
cussing the incident with officials of the Company. Nor is there any evidence
that Green applied for reemployment. His inquiry to Foreman Green about
his job cannot, under the circumstances, be construed as an application for
reemployment. While it has been found that the assault violated Section 8 (a)
(1) of the Act, suen action did not, per se, constitute a violation of Section 8
(a) (3) thereof.
The undersigned therefore finds that the Company did not discriminatorily
discharge Green as stated in the complaint.
D. The fights on July 18
Lucas reported at the plant shortly before 6 o'clock, apparently on instruc-
tions from Weaver, to commence work an hour prior to the normal work shift.
Lucas arrived before Boswell and Carroll, who worked with her, so while waiting
for them she talked to Taylor. Turner approached Lucas and Taylor, and ap-
parently at the same time Weaver, Ella Smith,' and "a bunch of employees"
joined the group. Turner warned Taylor if he was in the plant at dinner "he was
going to kill him," and then told Lucas "the same thing applies to you . . .
and if you open your mouth I will stomp hell out of you now." Lucas replied,
"You and what army." Ella Smith stated the best thing to do "is to throw the
damned union hands out of here," and declared, "all you damn union hands go
out at dinner." Lucas answered they would be at the plant at dinnertime. Smith
then stated they should leave at once and asked Weaver if that was right, and
he "nodded his head." Smith "kept popping off" about the union employees
causing trouble and Booth told her, "keep up your tattling and you will get
another fifteen cent raise," Smith then struck Booth and broke her glasses.
Lucas said a "bunch" of employees wanted to "pile on" Booth and when Smith's
daughter, Dolly Richardson, came up with a piece of lumber in her hand Lucas
pushed her back. Helen Wilson and Richardson then piled on Lucas and after
Richardson had been pushed away by Hardy, Wilson and Lucas engaged in a
8 Enforcement of the order was denied on the ground that the charging union was not in
compliance with the provision of Section 9 (h) of the Act at the time the charge was filed.
The court did not pass upon the merits of the case. N. L. R. B. v. The American Thread Co.,
198 F. 2d 137 (C. A. 5).
4 During the direct examination of Lucas the General Counsel moved to amend his com-
plaint ( paragraph 8) to specifically include Smith as a representative or agent of the Com-
pany, together with Weaver, in instigating and assaulting employees favorable to the Union.
The motion , without objection , was granted by the undersigned.
257965-54-vol. 103-38
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fight . Meantime Booth and Smith continued to fight and during the same Lucas
heard Smith holler to Weaver to get Booth off of her, she "bit my damn finger off."
Lucas also saw Smith 's son "had a knife fixing to start on" Booth but Al Gregory
shoved him on the floor. Lucas did not know how the Booth-Smith fight was
stopped but her own fracas ceased when Simmons pulled her off Wilson. Lucas
repeatedly testified that the fight, or fights, lasted about 2 hours. During this
time Lucas stated that Weaver was standing nearby watching the contests,
"clapping his hands and laughing," and when someone said to "break it up," he
retorted , "It is on company's time, let the best man win." Lucas also stated
that Newton came in when the fighting was almost over but he made no attempt
to stop the same. After the fighting had ceased Green instructed all the em-
ployees to go to work. Lucas, under circumstances set forth below, did not work
but accompanied Booth to the doctor's office and later returned to the plant.
Hardy said she was working about 6: 50 the above morning and when she went
to the water fountain she saw Wilson and a girl called "Dolly" beating Lucas.
Hardy pulled "Dolly" away and held her while Lucas and Wilson were fighting.
Hardy then released "Dolly" who pushed through the crowd and hit Booth on the
head with a plank. When Hardy saw Smith about to hit Booth with a plank,
while her son was kicking her, Hardy intervened and was hit by Smith . In turn
Hardy struck Smith 3 times who then picked up a piece of hardware and
threatened to hit her. Smith's son also threatened Hardy and struck Booth and
pushed her to the floor. When he attempted to kick Booth, Earl Gregory shoved
him to the floor and Foreman Green told him to stay out of the fight. Hardy
said she pulled Smith off of Booth while Weaver was standing nearby but he said
nothing. Newton was also present while the fights were going on but neither said
nor did anything to stop them although she heard Turner say to break it up.
After Booth got off the floor she declared she could whip the whole Smith family
one at a time and Weaver then told the employees to go to work. Hardy said the
fights and arguments lasted from 5 to 10 minutes.
Taylor stated that Lucas and Wilson started fighting near the router machine,
about 15 feet from where he was standing. While Taylor was watching the
fight he heard someone say break it up and Weaver, who was about 25 feet away,
said "Hell, let them fight, they are fighting on company time." Taylor did not
see Newton during this incident. He stated the employees had been fussing and
arguing about the Union for several days and that the fights involved employees
who were union adherents and those who opposed the Union.
John Patterson testified he was standing about 3 feet away while Booth and
Smith were fighting on the floor, in the course of which Smith's son kicked
Booth. Patterson did not see Newton while the fight was going on but he did
observe Weaver standing on a pile of boxes about 25 feet from the fighting. He
did not hear Weaver make any remarks during the fight, which lasted about 10
minutes.
Colburn testified that upon her arrival at the plant she talked to Booth at
the latter's table and after a few minutes they decided to go to the water cooler
before commencing work. While walking toward the cooler Colburn observed
a crowd gathering beyond that point so they continued towards the group. As
they passed a worktable and lumber bins Smith stepped into the aisle and grabbed
Booth by the hair and slapped her after which they commenced fighting.
Smith's son joined in and struck Booth with a piece of lumber and kicked her
several times. Colburn said that Newton and Weaver came to the scene shortly
after the fight started and she heard Weaver remark "let them fight," when
someone shouted to break it up. Colburn said the fight, which lasted about 5
minutes, ended when Newton arrived but she did not know whether he broke it
NEWTON BROTHERS LUMBER COMPANY 583
up. Weaver then told the employees to go to work and those who did not
intend to do so, "get the hell down the road."
Elizabeth Gregory testified that on one occasion Weaver came to her table
while she was working and asked her if she had signed a union card . Gregory
said she had signed a card and Weaver told her that "a bunch of us ought to
beat Mary Lucas up." Gregory could not recall whether the remark was made
before or after the fight and gave several different versions of Weaver's state-
ment. At one time she stated Weaver said the employees should "whip Mary
Green [Lucas] and all of them for starting this mess" ; again that Lucas "needed
a spanking," and finally that Lucas should be given "a whipping or a spanking
or something, I don't remember exactly what" Weaver said.
Booth reported for work early in the morning and after obtaining a supply of
hardware, left her table to get a drink of water. Booth observed a group of
employees including Lucas and Smith, and the latter's son and daughter, at the
back of the plant so she joined these individuals. Smith's son was not employed
by the Company. Booth stated that Smith told the union members to get out
by dinnertime and "if they didn't they was going to put us out." Booth answered
that if Smith kept up her "tattling" she would get another 15-cent increase.
Smith then slapped Booth, knocking off her glasses. A scuffle ensued in which
Smith threw Booth to the floor then sat on her and struck her in the face while
her son kicked and beat Booth. In the struggle Booth bit Smith's finger where-
upon Smith called to Weaver for help and at the same time her daughter struck
Booth on the head with a plank, which rendered her unconscious. Booth said
the affair lasted "for a good little bit" and while she was on the floor she saw
Newton and Weaver but neither made any attempt to stop the fight. Booth
stated when she "first came to" she was sitting on a table in the main office of
the Company and met Ross Strickland who drove her to the courthouse in
Tuscaloosa' Booth at once visited her doctor and then went to the hospital.
She denied that Lucas left the plant with her although Booth did meet Lucas in
town, who accompanied her to the doctor's and later walked to the bus stop when
she was going to the hospital. Booth said she suffered severe head injuries, a
broken nose, and numerous bruises on her arms and body. As a consequence she
was hospitalized for about 4 days, after which she was confined to her home for
approximately 1 month and has been "more or less" under the doctor' s care ever
since the fight.'
Smith said she was standing near her place of work when Lucas, who had
been cursing and carrying on since the Union started, began cursing and Smith
asked Lucas what had she ever done to her. Booth, who was standing behind
Smith, also called her a vile name and Smith slapped her. Booth bit Smith's
finger and a scuffle followed in which they both fell to the floor. During the
fight Smith said Booth struck her over the head with a board. After the fight
Smith went to work. Smith denied that Newton, Weaver, or Green requested
or suggested that she engage in a fight with either Lucas or Booth. Smith also
stated she did not see Weaver or "anybody" during the fight because she was
"hollering" and trying to get her finger free from Booth.
Helen Wilson testified she was talking with some employees before worktime
and the first thing she knew "they" were fussing with her. Lucas was talking
to Richardson and when Wilson walked towards her Lucas cursed them and
said they were not going to jump her. Wilson then told Richardson to stand
aside and struck Lucas. The 2 of them then fought until Simmons separated
6 Strickland was not an employee of the Company.
6 Booth said she gave birth to a child about 1 month prior to the date of her appearance
at this hearing.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them . The fight lasted about 5 minutes and after it was over all the employees,
including Lucas, went to work. Wilson did not see Weaver while she was fighting
with Lucas.
Simmons said he saw Lucas and Wilson fighting on the floor and he told them
to stop it and to get up, which they did. Simmons did not see Newton or Weaver
while the girls were fighting although they did come in after the fighting had
stopped.
Foreman Green said he was with Weaver when the fighting began , some 50 or
60 feet away . Green and Weaver walked over to the scene of the fighting but
there is nothing to indicate they said or did anything to stop the fights. Green
stated that the fights lasted 6 or 7 minutes and during this time Newton arrived
and told the participants to stop . Green did not hear Weaver make any re-
marks to the effect that it was all right for the employees to fight since it was
on company time.
Weaver said he was in the front of the plant when he heard a commotion in
the rear, so he and Green walked back and saw four women fighting on the floor.
Weaver hollered to break it up and after a couple of minutes the fight ceased.
The employees then went to work . Weaver denied that he had any prior knowl-
edge that a fight would take place, or that he instigated it, or that he remarked to
let them fight , as it was on company time.
Newton said he was at the front end of the building when he heard a "racket"
in the rear so he walked back and saw a crowd watching some of the women
fighting. Newton was not close enough to stop the fights but hollered to "cut
the mess out," and he also heard Weaver shout to the women to break it up.
The fighting then stopped "pretty quick ." Newton denied that he instigated the
fight or had anything to do with it. He admitted that he did not talk to any of
the employees after the fight and that no one was reprimanded for having
engaged in the affair.
The undersigned , on the basis of the testimony of Taylor , finds that for several
days prior to July 18, the union and antiunion factions had been arguing about
the Union and on the date in question members of these factions engaged in a fight
or fights. The testimony of Lucas, Booth , Smith, and Helen Wilson as to the
cause of the fights is, as may be expected , conflicting. In substance Booth and
Lucas credibly testified that on the above morning they were with a group of
employees when Smith announced the union members must leave the plant at
noon , otherwise they would be put out. Smith also accused the union employees
of causing trouble and when Booth stated she would get an increase if she
"kept up her tattling ," Smith struck her and a fight ensued. The undersigned,
upon consideration of Smith 's demeanor at the hearing, and upon all the facts and
circumstances as reflected in the record , is of the opinion that the fight was not
caused, as she stated , by Booth and Lucas cursing her without any provocation
whatever or that Booth struck her with a board , consequently her testimony is
rejected . For the same reasons the undersigned does not accept the testimony
of Helen Wilson to the effect that she struck Lucas because the latter cursed
her. The undersigned therefore accepts and credits the testimony of Booth and
Lucas and finds that the fight commenced under the circumstances summarized
above. In this connection the undersigned does not accept the testimony of
Lucas that Turner, in the presence of Weaver , threatened to kill Lucas and
Taylor unless they left the plant since Taylor failed to give any corroboration
to this assertion . The undersigned also finds that there is no credible evidence
to support the General Counsel's contention that Weaver , or Smith acting as an
agent of the Company, instigated or promoted the assaults upon Booth and Lucas.
Gregory's testimony that Weaver , upon learning that she was a proponent of
NEWTON BROTHERS LUMBER COMPANY 585
the Union, suggested that "a bunch of us" should spank, whip, or beat up Lucas
is anything but convincing. Apart from the fact that Gregory could not recall
whether the statement was made before or after the fight, it seems unlikely that
Weaver would have uttered the remark as asserted by Gregory. However,
there is no question but Weaver was present at the scene of the fighting and the
undersigned is convinced he made no effort to stop the same. Despite Weaver's
statement to the contrary, the undersigned accepts the testimony of Lucas, Taylor,
and Colburn, and finds that Weaver not only failed to take any steps to stop the
fighting but actually encouraged its continuance by his declaration to the effect,
let the employees fight. Newton was present at least part of the time and his
testimony that he and Weaver shouted to the employees to stop fighting is not
persuasive and is rejected. Moreover, after the fighting stopped Newton ad-
mitted that he did not investigate the affair, nor talk to any of his employees in
that respect, and no one was reprimanded or disciplined for having taken part in
the fight. The undersigned therefore finds that the Company acquiesced in, rati-
fied, and condoned the assaults upon Booth and Lucas and thereby interfered with
the rights of his employees in violation of Section 8 (a) (1) of the Act.
E. The alleged discriminatory discharges
Mary Ann Lucas
After the fighting ceased Foreman Green instructed all the employees to go
to work. As Lucas started to work Weaver told her to "get the hell out of here
and not come back," and she replied, "You know what I told you the next one
that ordered me out of this place." Lucas then accompanied Booth to the doc-
tor's office and waited there until Booth went to the hospital.' She thereafter
returned to the plant and told Foreman Green she was ready to go to work.
However, Weaver stated he had no work for Lucas and added, "what had hap-
pened that morning was only a sample of what it would be next if we kept
hanging around." Lucas, on direct examination , said that Weaver then gave
her a note which she presented to Mrs. Watkins at the office and received her
check. On cross-examination Lucas stated that Weaver sent her to the office,
probably with a note, but Mrs. Watkins informed her a written statement from
Weaver was necessary so she went to Weaver, obtained the statement, and re-
turned to Mrs. Watkins who gave her a check. About 1 week later Lucas tele-
phoned Newton in regard to returning to work and he told her he had no jobs
at that time but if any opening should occur he would call her.
Booth denied that Lucas left the plant with her but said she met Lucas in
town and walked to the doctor's office with her. Apparently, Lucas waited
for her and when Booth went to the hospital Lucas accompanied her as far as
the bus stop.
Helen Wilson testified that Lucas went to work after the fight.
Weaver stated that Lucas went to work after the fight and about 2 hours later
she went to the office and asked for her time. Lucas returned to Weaver with
a note from the bookkeeper requesting that he state the number of hours she
had coming to her. Weaver then wrote out her time, which Lucas took to the
office and received her check. Weaver stated that Lucas never made any appli-
cation for reemployment to him.
7 On direct examination Lucas stated that after her conversation with Weaver she found
Booth , at some undisclosed place in the plant , "fixing to open her dinner ." On cross-
examination she stated that Booth was in a dazed condition and for that reason she went to
the doctor with her.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lucas testified that about 11 o'clock the morning of June 28, 1952, after is-
suance of the complaint and notice of hearing in this case , she was in Tusca-
loosa with John Patterson and Teeter Tubbs when she met Weaver in the
vicinity of the courthouse . Weaver approached the group and told Lucas he
knew she was to appear in court in connnection with this matter and advised
her not to do so, for if she did he was "going to stomp the living hell out of you
when you get off." Lucas answered she would be there. Patterson said Weaver
made a remark to the above effect. Teeter Tubbs did not testify at the hearing.
Weaver testified he was discharged from the hospital on June 27 and was
confined to his home the following day. He could not recall the last time he
had seen Lucas or Patterson and denied that he made any remark to the above
effect to them. Weaver's wife and daughter substantiated his testimony that
he was discharged from the hospital on June 27 and was at home the next day.
Frances Scroggins said that on this day she was at the Weaver home from about
8 o'clock to noon and that he did not leave the house during this interval. Henry
Tubbs testified that he visited Weaver at his home shortly after 9 o'clock and
he appeared to be ill at that time.
The record pertaining to the alleged discharge of Lucas is highly disputable.
Lucas asserts she was ordered to leave the plant by Weaver and thereupon went
to the doctor with Booth . Weaver claimed she went to her job and worked for
2 hours when she quit . Further, Booth denied that Lucas accompanied her
from the plant to the doctor , although she did meet Lucas downtown. Even
apart from Booth 's contradiction , Lucas did not impress the undersigned as a
reliable witness and the fact that she reported back for work after her trip to
Tuscaloosa convinces the undersigned that she had not been previously dis-
charged by Weaver . Accordingly , the undersigned finds that Lucas went to
work after the fight and about 2 hours later voluntarily quit her employment.
Equally unimpressive is the testimony of Lucas and Patterson that Weaver
threatened her with bodily harm if she testified at the hearing. Suffice it to
say that in view of the evidence adduced by the Company concerning this inci-
dent the undersigned rejects the testimony of Lucas and Patterson and finds
that Weaver did not even talk to, much less threaten , Lucas in the manner
claimed . While, as in the Green case, the undersigned finds that the assault
upon her was in violation of her rights guaranteed under the Act, such con-
duct is insufficient to sustain an allegation that she was unlawfully discharged
under Section 8 (a) (3) thereof.
Maudie Booth
As appears above, Booth went to her doctor after the fight and was then hos-
pitalized for 4 days. She did not state whether or not she received permission
from Weaver to leave the plant but this omission is due, no doubt, to the fact
that she was in a dazed condition as a result of the assault upon her. Hardy,
who was standing near Booth immediately after the fight, testified that when
Weaver told the employees to go to work, Booth said she was going to her doc-
tor. Weaver replied if you are not going to work, "both of you get the hell
out of here." Hardy then left. Booth said she was confined to her home for
about 30 days , at which time she called Weaver and asked if her job would be
available when she was able to work . Weaver replied there were no jobs avail-
able and he did not expect any openings in the future.
Weaver admitted that Booth did not work the morning in question and denied
that he ordered her out of the plant or that she requested permission to leave.
He further denied that Booth subsequently telephoned him about her job.
NEWTON BROTHERS LUMBER COMPANY 587
Counsel for the Company did not touch upon the alleged discharge of Booth
in his argument, other than his general assertion that all of the employees
voluntarily quit their employment.
The undersigned accepts the testimony of Hardy and finds that Booth advised
Weaver she was going to see her doctor, and that he then ordered Booth and
Hardy to go to work or leave the plant. From all the evidence there is no doubt
in the mind of the undersigned that Booth suffered severe injuries that morn-
ing and Weaver's ultimatum to work or get out of the plant was, under the
circumstances, tantamount to her being discharged. Having found that the
Company acquiesced in and condoned the assault upon her by sister employees
because of her union membership or advocacy, the undersigned further finds
that her discharge by Weaver constitutes a violation of Section 8 (a) (3) and
Section 8 (a) (1) of the Act. In view of these findings it is immaterial whether
Booth subsequently made application for reinstatement. However, she credibly
testified that she telephoned Weaver in this regard about 30 days after the inci-
dent and was advised the Company had no positions available for her.
Velma Hardy
Hardy, after the above conversation with Weaver, went to her place of work
where she finished one box and then told Foreman Green she was quitting. She
thereupon left the plant and went to the hospital to visit Booth. Hardy did
not thereafter return to the plant or request reemployment. The undersigned
finds that Hardy voluntarily quit her employment with the Company and was not
discharged as alleged in the complaint.
Annie Bell Colburn
At the outset of the hearing the General Counsel moved to amend his com-
plaint to include the alleged discharge of Colburn on or about October 1, 1951.
The motion was granted by the undersigned.
Colburn signed a union card and when the employees were separated on
July 16, she was with the union group. Colburn went to work after the fighting
and continuously worked until the Company completed its contract, which she
fixed as shortly before Labor Day. At that time all of the employees in the
box department were laid off and were instructed that when the Company ob-
tained another contract they would be called back. In the latter part of Sep-
tember or early October Colburn said the box department was operating so she
telephoned Weaver and asked if he had a job for her. Weaver informed her
that while he had jobs he was not permitted to hire Colburn and about six
other individuals because of the "mess" that had occurred at the plant.
Weaver did not testify in regard to Colburn's alleged discharge.
The complaint, as amended, alleges that Colburn was discharged approximately
October 1, and thereafter refused reinstatement because of her union membership
or activities and because she engaged in concerted activities with other em-
ployees. The record clearly shows that Colburn worked until the completion of
the contract and was then laid off, about August 31, together with all the employees
in the box department. Certainly there is nothing in her testimony remotely
suggesting that she was discharged because of her union membership or activities
on its behalf, or because she engaged in concerted activities with other employees.
The undersigned so finds. Since the General Counsel proceeded on the theory
that Colburn was discharged, the undersigned concludes it would be improper
and inappropriate to depart from the allegation of the complaint and consider
and determine her case on the basis that the Company had unlawfully refused
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to reemploy her about 1 month after she had been laid off ° (Cf . Joanna Cotton
Mills v. N. L . R. B., 176 F. 2d 749 (C.A.4).)
Luther Logan
The complaint alleges that Logan was unlawfully discharged on July 9 and
thereafter the Company failed and refused to reinstate him. At the conclusion
of his case the General Counsel moved to amend his complaint to allege that
Logan was discriminatorily discharged on July 9 and was reinstated on July 16.
The motion was granted. There is now no allegation, or contention, that Logan
was thereafter discharged.
Logan was employed by the Company when it first began operations, about
July 2, and worked on the router machine. About 3 days after his employment
Logan signed a union card, was instrumental in signing up 1 employee, and
carried the cards in his pocket while working. Logan stated that 2 men worked
on the router machine and after about 3 days, apparently July 9, he was laid
off by Weaver because he had too many men. About 1 week later, Logan asked
Weaver for a job and Weaver stated he would put him back to work if he
would stop talking about the Union. Logan was reemployed and put on a
machine by himself. He complained to Foreman Green, apparently at once, that
he needed help, and an additional man was placed on the machine for about a
day and then taken off. Logan continued to ask for help, which was refused,
and Weaver complained on several occasions that he was too slow in his work.
On July 17, Logan started to quit but Carroll suggested that they talk to Newton,
which they did. Logan told Newton he could not run the machine by himself
and Newton said he would see what he could do. Logan worked the remainder
of that day. The following day, when he received no help and when Weaver
again complained about his work, he quit.
Carroll, on direct examination, testified that on July 6 he informed Newton
that Logan was doing a 2-man job and was quitting if he did not get additional
help. Newton replied "he put Mr. Logan back on the job," and he would see
that he received some help. Logan then worked for about 1 week then he
"walked off the job" because he could not perform the work. Carroll was also
present when Weaver, sometime prior to the speech of July 16, told Logan he
had too many employees and that he was being laid off. Carroll further stated
that during the period Logan was off 2 employees were put on the router ma-
chine. On cross-examination Carroll stated that when he talked to Newton on
July 6, about Logan quitting, Newton put Logan on another job operating a saw,
and apparently he was later put on the router machine. In this interim, how
long he did not state, 2 men operated the router machine. Carroll admitted
that he was not working when Logan finally quit his job after July 16.
Weaver denied that he discharged Logan and stated that he simply walked off
the job and never returned. While Weaver placed no date as to when this in-
cident occurred, it seems obvious that it was subsequent to July 16. Weaver also
stated that Logan walked off the job prior thereto but several days later asked
Weaver to take him back, which he did. Again, the dates were not stated,
although Weaver said it took place from 1 to 3 weeks before Logan finally quit
and might have occurred in the latter part of the Newton & Waugh operations.
Weaver denied that Logan was performing a 2-man operation or that 2 em-
ployees were put on the job after he quit, or that Carroll made any complaint
to him regarding the 2-man job.
8 The General Counsel did not urge this theory in his oral argument before the under-
signed ; in fact he made no mention whatsoever of Colburn ' s discharge in the course of his
argument.
NEWTON BROTHERS LUMBER COMPANY 589
Newton testified that during the first week of operations Carroll complained
to him that Logan was doing a 2-man job and "it looked like" Weaver was
trying to eliminate Logan . Newton answered he would give Logan some help,
if it was necessary . He then put an extra man on the job with Logan but ap-
parently removed him when he checked the operation and found he was not
needed . Newton also testified that Carroll again complained to him about Logan
but he was not questioned as to the details of this discussion.
From the foregoing evidence , which is conflicting , fragmentary , and incon-
clusive, the undersigned is unable to determine with any reasonable degree of
certainty whether Logan was discharged or quit his job on July 9. Conse-
quently, the General Counsel has failed to sustain the allegations of his amended
complaint by a preponderance of the evidence . But assuming Logan was dis-
charged the undersigned is of the opinion , and finds, that his discharge was for
reasons other than his union membership or because he engaged in concerted
activities with other employees . It is conceded that Logan was reemployed
on July 16. However , the circumstances under which he was reemployed are
disputed , with Logan claiming that he was rehired on the condition that he
refrain from union activity, while Weaver asserted Logan simply told him he
was sorry that he had walked off the job and asked to be taken back. The
undersigned accepts Weaver 's version of Logan 's reemployment and finds that
Logan was not rehired under the conditions 'as stated by him. The evidence
further discloses that Logan and Carroll raised the question of whether Loran
was performing a 2-man operation on the router machine, and Newton admitted
that Carroll discussed the subject of Logan's employment on 2 occasions, but
the undersigned finds that the Company did not use the so -called 2-man opera-
tion as a pretext or method to force Logan to quit his employment. The under-
signed therefore finds that the Company did not unlawfully discharge Logan on
July 9, as urged by the General Counsel.
Buck Carroll
As appears above Carroll was active in promoting the Union and in the early
stage of the campaign he was warned by Weaver , if he liked his job, to "leave
that damned mess alone." However , Carroll continued his activities and on
July 6, seemingly the same morning of the warning, he complained to Newton
about Logan threatening to quit because he was doing a two-man job and Newton
said he would look into the matter . Although his testimony is not too clear
on the point, Carroll also talked to Newton on July 17, as verified by Logan
and Newton . In addition , Carroll addressed the employees on the morning
of July 16, when Newton made his speech, and stated the purposes of the union
drive. Again, on the morning of July 18, following the assault upon employee
Green, Carroll met with Newton and reported the incident to him. When
Newton stated he had no knowledge of the incident Carroll thereupon sought
to outline what had occurred and while doing so Weaver came up, cursed him,
and declared he "had gone too God-damned far with that and to get the hell
out of the plant." Newton then told him "to get off and stay off" the property.
Carroll then left. The same day he telephoned Newton and asked if he could
come back to work or if he was discharged and Newton advised him he had
been fired. About 3 or 4 days later Carroll again telephoned Newton and stated,
"as bad as I hate to do it but I had to ask him for my job back ." Newton
replied , "as bad as he hated to he damn sure wasn 't going to do it."
Lena Patterson said she was present on the above occasion and heard
Newton accuse Carioll of starting the Union and warned him he must stop
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talking about it. Carroll asked if he was being fired and Newton replied no,
but he must cease talking about the Union or get out of the plant. When
Carroll said he would quit , Weaver repeated that he was not being discharged
but he was not going to discuss the Union or sign up employees as members.
Patterson did not hear Carroll make any statement to the effect that the em-
ployees would not work that morning "until things were straightened out."
Newton conceded that on two occasions Carroll had brought complaints to
him concerning Logan 's employment and also discussed a complaint in regard
to another employee, whose name he could not recall. On the morning in ques-
tion Newton stated that Carroll advised him of the assault upon Green and that
the plant was not operating until the matter was settled . As already stated,
supra, Newton told Carroll be was having too much to say about matters which
were none of his concern and he would have to stop such activities or leave the
plant at once. At that time Weaver came up and agreed that Carroll was having
too much to say, whereupon Carroll said he would leave . Newton then told
him: "your job is back there but . . . you have got to cut that racket out."
Carroll did not ask whether or not he had been fired but left the plant. Newton
stated that about 2 or 3 weeks later Carroll telephoned him about his job and
his testimony concerning the conversation is substantially the same as the second
conversation related by Carroll.
Weaver said that on the morning of July 18 lie heard Carroll tell Newton
he was shutting down the plant until the matter of the Green whipping had
been straightened out. Newton stated he knew nothing of the assault, but
Carroll said this made no difference he was not permitting anyone to work.
Weaver joined in and said Carroll had no cause to shut down the plant because
"one kid got whipped " and that the plant was going to operate . Weaver told
Carroll he could go to work but if he did not wish to do so, to go home. Carroll
then started to leave, whereupon Newton said his job was available and he
could work but Carroll answered he did not want to work "under that kind of
damned management."
Foreman Green said that when the printer was changing from one print to
another he would have to tell Carroll to help him because he was "messing
around" and not helping the printer as he was supposed to do.
Ella Smith testified that on several occasions she noticed Carroll away from his
job but she never reported such absences to her foreman. Simmons also testified
he observed Carroll away from his job 2 or 3 days before the fight. Lockhart
and Frances Wilson stated that Carroll had talked to them about the Union
during working hours.
Carroll denied that there had ever been any complaints about his work or that
he had ever been reprimanded for leaving or not pbrforming his job.
It is undisputed, and found, that on the morning of July 18 Carroll met with
Newton for the purpose of discussing the assault upon employee Green, which
occurred the preceding evening. It is also undisputed that Carroll had previ-
ously brought to the attention of Newton certain matters which pertained to
conditions of employment at the plant particularly in respect to Logan. It is
now elementary that such activities are within the clear purview of the Act and
an employee engaging therein is entitled to the protection of the Act. The under-
signed accepts and credits the testimony of Carroll and finds that Newton sum-
marily discharged him when he sought to discuss the subject of Green's assault.
The undersigned further finds that Newton confirmed the fact that he had been
discharged when Carroll telephoned him the same day to inquire if he might
return or if he had been fired . The Company urges that it did not discharge
Carroll but that he voluntarily quit his employment . There is nothing in the
NEWTON BROTHERS LUMBER COMPANY 591
record to support this contention. Both Newton and Weaver admit that when
they learned of the purpose of Carroll's visit they unmistakably warned him he
had been having too much to say about matters that were none of his business
and summarily ordered him to cease such activities or leave the plant at once.
The ultimatum delivered by Newton and Weaver made it plain that Carroll must
either give up his lawful activities or leave the employment of the Company.
To condition employment upon the abandonment by the employee of the rights
guaranteed him by the Act is equivalent to discharging him outright for union
activities. (Atlas Mills, Inc., 3 NLRB 10, 17.) Nor is there any substance to
the Company's contentions that Carroll threatened to cause a cessation of opera-
tions that morning, and that Newton specifically stated Carroll's job was avail-
able to him and that he was not being discharged. Although the undersigned
does not credit the evidence in this respect, the fact that Carroll may have threat-
ened to resort to strike action would not alter the conclusion, for such activity
is expressly protected by the Act. (Atlas Mills, supra.) Newton's statement
that Carroll's job was available amounts to no more than a reiteration of the
illegal condition under which he might continue his employment. Counsel for the
Company argues that Patterson's testimony supports the assertion that Carroll
was not discharged but quit. On the contrary, Patterson's testimony conclusively
establishes that Carroll was unlawfully discharged.
The undersigned therefore finds that Carroll was discriminatorily discharged
as alleged in the complaint and the Company thereby engaged in unfair labor
practices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act.
Lavenia Etheridge
The complaint alleged that Etheridge was unlawfully discharged on July 9,
and thereafter the Company refused to reinstate her.
It is evident from the testimony of Watkins, the payroll records, and the stipu-
lation by counsel that Etheridge had never been employed by the Company,
although she had worked for Newton & Waugh and was laid off on July 2.
Etheridge also testified that she was employed by Newton & Waugh for a few
weeks, tailing the saw, and was not working at the plant at the time in question.
The undersigned so finds. It is further found that shortly after her layoff
Etheridge telephoned Weaver in regard to a job and when Weaver said he had
none, she asked if she could come down to the plant in a few days to see him
and he stated this was satisfactory to him. On the morning of the speech,
July 16, Etheridge went to the plant. While Etheridge appeared to be confused
as to precisely what happened that morning, her testimony leads the undersigned
to conclude and find that, prior to the speeches, she asked Weaver for work
and he stated he did not need her. Etheridge was present when the speeches
were made and when the employees were separated she joined the union group.
Seemingly, after the conclusion of the speeches, Etheridge again talked to
Weaver, who informed her that employee Green and another man had returned
to work and he had nothing for her. Etheridge then went to the office to make
a telephone call and while there Weaver came in and she overheard him tell
some unidentified person that the Union was not coming into the plant and
when the "mess blew over" everyone that signed union cards "was going to get
away from there." Etheridge said she signed a union card but could not re-
member the approximate date, although she believed it was when the employees
started organizing, and that she was working at the time. She could not
estimate how long this occurred prior to her visit to the plant on July 16.
Weaver stated that Etheridge was never employed by the Company and that
its failure to do so was not based on her having "union sympathies."
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the conclusion of all the testimony the General Counsel moved to amend
his complaint by deleting the allegation that Etheridge had been unlawfully dis-
charged on July 9, and by adding a new allegation that "The Respondent on or
about July 16, 1951, refused to employ Lavenia Etheridge, an applicant for em-
ployment" because of her membership in and activities on behalf of the Union.
The motion also covered other necessary changes in the complaint. Counsel
for the Company objected to the motion for the reason that it constituted a new
cause of action, with new issues requiring different proof. The undersigned,
being of the opinion that the rights of the parties would not be prejudiced thereby,
granted the motion.
The General Counsel argues that when Etheridge aligned herself with the
union group the Company thereby knew of her union membership, activities, and
desires, which action, considered in the light of Weaver's subsequent remarks
in the office, leads to the conclusion that union adherents would be laid off and
from that point on it was useless for Etheridge to apply for work. The General
Counsel does not contend that the Company at that time had any jobs available
for Etheridge but asserts that shortly thereafter four jobs became vacant. How-
ever, he did not state what vacancies he referred to or that Etheridge was
qualified for any or all of these jobs. The undersigned cannot accept the theory
advanced by the General Counsel. The fact that Etheridge happened to be
with the union group does not strike the undersigned as being significant or
controlling, insofar as the question of employment is concerned, for admittedly
all of the union proponents went to work immediately after the speech. Con-
sequently, it would seem strange that the Company would refuse to reemploy
her for that reason. Further, Etheridge's testimony in respect to her signing
of a union card is anything but convincing and the record is devoid of any
evidence that she took an active part in the Union. In any event there is no
evidence that the Company, except as argued above, had any knowledge that
she signed the card. Again, her testimony concerning the remarks by Weaver,
even though undenied, seems farfetched, does not impress the undersigned, and
is not accepted or credited. When it is considered that Etheridge was refused
employment on two occasions, and there is not a scintilla of evidence indicating
the refusals were prompted by unlawful motives, the events that subsequently
transpired are insufficient to warrant the conclusion that she was later dis-
criminatorily refused employment. On the basis of the evidence, the under-
signed is of the opinion that this case is wholly lacking in substance and merit
and finds that Etheridge was not refused employment as alleged in the amended
complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with
the operations of the Respondent, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that he cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily discharged Maudie Booth
and Buck Carroll on July 18, 1951, because of their membership in the Union
and because they engaged in concerted activities for the purposes of collective
bargaining or other mutual aid or protection , it is recommended that the Be-
NEWTON BROTHERS LUMBER COMPANY 593
spondent offer to these employees immediate and full reinstatement to their
former or substantially equivalent positions,' without prejudice to their seniority
or other rights and privileges, and that the Respondent make said employees
whole for any loss of pay which they may have suffered by reason of the dis-
crimination against them, by payment to them of a sum of money equal to that
which they normally would have earned as wages from the date of discharge
to the date of the Respondent's offer of reinstatement, less their net earnings"
during said period." In accordance with decisions and policy of the Board
it is recommended that back pay be computed on the basis of separate calendar
quarters."
In the opinion of the undersigned, the Respondent's conduct discloses a fixed
purpose to defeat self-organization and its objectives. Because of the Respond-
ent's unlawful conduct and its underlying purpose, the undersigned is convinced
that the unfair labor practices found are persuasively related to the other unfair
labor practices proscribed by the Act and that the danger of their commission
in the future is to be anticipated from the course of the Respondent's conduct
in the past. The preventative purposes of the Act will be thwarted unless the
recommendations are coextensive with the threats. In order, therefore, to make
effective the interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices it will be recommended that the Respondent cease and
desist from infringing in any manner upon the rights guaranteed by Section 7
of the Act."
Since it has been found that the Respondent did not discharge or unlawfully
refuse to reinstate Billy Joe Green, Mary Ann Lucas, Velma Hardy, Annie Bell
Colburn, and Luther Logan, and did not discriminatorily refuse to employ Lavenia
Etheridge, it will be recommended that the complaint be dismissed insofar as it
alleges that the Respondent committed unfair labor practices with respect to the
above-named individuals.
On the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS or LAW
1. International Woodworkers of America, CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Maudie
Booth and Buck Carroll, thereby discouraging concerted activities and member-
ship in the aforesaid Union, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By the above unfair labor practices, and by otherwise 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 and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
9 The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch, 65
NLRB 827.
10 See Crossett Lumber Company, 8 NLRB 440 , 497-498.
U There is evidence in the record that following her discharge Maudle Booth became preg-
nant. Accordingly , back pay is abated from such date when she might reasonably have
been expected to leave her work as the result of pregnancy to such time when normally
she might have been available for employment . Happ Brothers Company, Inc., 90 NLRB
1512, 1519.
The General Counsel requests that reasonable allowance be made for medical and hospital
expenses incurred by Booth as a consequence of the assault . The undersigned is of the
opinion that such an allowance would not effectuate the policies of the Act.
as F. W. Woolworth Company, 90 NLRB 289.
7D See May Department Stores v N. L. R . B., 326 U. S. 376.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent did not discharge or unlawfully refuse to reinstate Billy Joe
Green, Mary Ann Lucas, Velma Hardy, Annie Bell Colburn, and Luther Logan,
and did not discriminatorily refuse to employ Lavenia Etheridge.
[Recommendations omitted from publication in this volume.]
STATE FUEL COMPANY and LOCAL 68, INTERNATIONAL BROTHERHOOD OF'
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,.
AFL, PETITIONER.1 Case No. 1-KC-3055. March 13, 1953
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Leo J. Halloran, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed 2
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 Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. The Employer asserts as a bar to the petition a contract with the,
State Fuel Yardmen's Union entered into November 1, 1950. The
only provisions as to the duration are found in article 9, the final
article of the contract, which originally read as follows :
Section 1. This agreement shall remain in full force and effect
and shall not be altered during the period from
inclusive
Section 2. This agreement shall continue in full force and ef-
fect thereafter from year to year on an annual basis unless one
of the parties hereto shall on or before the 1st day of February
1 The Petitioner 's name appears in the caption as amended at the hearing.
2 We find , contrary to the Employer ' s contention , that the hearing officer acted properly in
permitting the amendment of the petition at the hearing by the substitution of Local 68
for the original petitioner Local 995 . At the time of the filing of the petition Local 995
had jurisdiction over the categories of employees in the proposed unit and Local 68 had not.
After Local 995 had made a sufficient showing of interest but before the hearing , both locals
surrendered their charters ; Local 995 became defunct and a new charter was granted to
Local 68 which gave it jurisdiction over the categories of employees formerly represented
by Local 995 in addition to those over which the former Local 68 had had jurisdiction. We
are administratively satisfied that a sufficient number of employees have indicated a desire
for collective bargaining and that the desires of the employees may best be resolved by
directing an election with Local 68 on the ballot.
103 NLRB No. 47.