Poinsett Lumber and Mfg. Co.

National Labor Relations Board - Board Decisions

Mar 2, 1953

103 N.L.R.B. 113 (N.L.R.B. 1953)

POINSETT LUMBER AND MFG . CO . 113
of the Act, as amended, the said organization is the exclusive repre-
sentative of all the employees in such unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment.
CHAIRMAN HERZOO took no part in the consideration of the above
Second Supplemental Decision and Certification of Representatives.
POINSETT LUMBER AND MFG. Co. and INTERNATIONAL UNION OF ELEC-
TRICAL , RADIO AND MACHINE WORKERS (CIO) . Case No. 11-CA-
522 (formerly 10-CA-1033). March 2,1953
Decision and Order
On October 2, 1952, Trial Examiner Stephen S. Bean 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. The Trial Examiner further
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal of
those allegations. Thereafter, the Respondent and the Union filed
exceptions to the Intermediate Report, and the Respondent filed a sup-
porting brief.' The Respondent's request for oral argument before the
Board is denied, as the record, including the exceptions and brief, ade-
quately presents the issues and positions of the parties.
The Board 2 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 Interme-
diate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following modi-
fications :
1. Like the Trial Examiner, we find that the Respondent violated
Section 8 (a) (1) of the Act by the interrogation and threats detailed
in the Intermediate Report. However, in so finding, we do not rely
upon Supervisor Robertson's inquiry of employee Reed concerning the
difference between the "CIO and the Carpenter's Union, AFL."
I The Respondent 's motion to dismiss the Union's exceptions because they were not
accompanied by a supporting brief is denied . Section 102 .46 of the Board's Rules and
Regulations permits, but does not require, the parties to file briefs in support of their
exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman Herzog and
Members Styles and Peterson].
103 NLRB No. 7.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner recommended that employees Brooks and
Raines be made whole for any loss of pay which they normally would
have earned, less their net earnings, during the period of their initial
discharge. He failed, however, to recommend that such back pay be
computed on a quarterly basis, in accordance with the policy enunci-
ated in F. W. Woolworth Co., 90 NLRB 289. We will require that the
back pay of Brooks and Raines be computed in accordance with that
policy.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Poinsett Lumber and Mfg.
Co., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
Interfering with employees' meetings related to union affairs, re-
questing employees to supply information concerning union matters,
interrogating employees concerning their union sympathies, stating
or threatening that its plant would close should the Union require rep-
resentative status, or in any other manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist International Union
of Electrical, Radio and Machine Workers, CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organiza-
tion 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) In the manner set forth in the section of the Intermediate
Report entitled "The Remedy," and hereinabove, make Charles S.
Brooks and J. B. Raines each whole for any loss of pay they may have
suffered by reason of Respondent's discrimination against them, by
payment to each of them of a sum of money equal to the amount which
they would normally have earned as wages during the period from
the date of the Respondent's discrimination to July 16, 1951, less his
net earnings during said period.
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due.
(c) Post at its Pickens, South Carolina, plant copies of the notice
POII&ETT LUMBER AND MFG. CO . 115
attached to the Intermediate Report marked "Appendix." 3 Copies
of said notice to be furnished by the Regional Director for the
Eleventh Region, shall, after being duly signed by Respondent, be
posted by Respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Eleventh Region, Atlanta,
Georgia, in writing, within ten (10) days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations relating to the August
31, 1951, separations, the reinstatement of Charles S. Brooks, sur-
veillance and questioning about union representatives visiting
employees' homes be, and they hereby are, dismissed.
8 This notice shall be amended by substituting the words "A Decision and Order" for
the words "The Recommendations of a Trial Examiner" in the caption thereof. 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 "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on April 3, 1951 ( although it was dated April 4,
1951), and amended charges filed April 26, 1951 , November 14, 1951 , and April 4,
1952, by International Union of Electrical , Radio and Machine Workers (CIO),
herein called the Union, the General Counsel of the National Labor Relations
Board , respectively called herein the General Counsel and the Board, by the
Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint
dated April 7, 1952, against Poinsett Lumber and Mfg. Co., herein called the
Respondent , alleging that Respondent had engaged in and has continued to
engage in unfair labor practices in violation of Section 8 (a) (1) and 8 (a) (3)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act.
In substance the complaint , as amended during the course of the hearing,
alleges, and Respondent 's answer denies , that : ( 1) Respondent discriminatorily
terminated the employment of Charles S. Brooks on or about March 23, 1951,
and of J . B. Raines on or about April 2, 1951, refused to reinstate Raines until
on or about July 18 , 1951 , and reemployed Brooks on or about July 18, 1951, but
failed and refused to reinstate him to his former or substantially equivalent
position of employment ; ( 2) on or about August 31 , 1951 , Respondent dis-
criminatorily terminated the employment of Brooks Raines and 15 other em-
'The motion to amend by adding to the list of employees alleged to have been discrimi-
natorily discharged on August 31, 1951, and refused reinstatement , the names of Paul E
Stewart and Nelson Pilgrim was made on July 12 and allowed in accordance with Section
102.17 of the Board's Rules and Regulations on terms deemed just. It is worthy of note
that, at the request of Respondent , the hearing was suspended on July 14 and resumed
on July 24. On July 14 the General Counsel agreed that the name of Nelson Pilgrim
might be stricken from the list of employees alleged to have been discriminatorily dis-
charged and refused reinstatement.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees,' and thereafter failed and refused to reinstate them; and (3) since
on or about February 15, 1951, Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed by the Act, by acts of
interrogation, surveillance, threats, and warnings. Pursuant to notice a hearing
was held before me at Pickens, South Carolina, from July 7 to 14, 1952, inclusive,
and on July 24 and 25, 1952. The General Counsel and Respondent were
represented by counsel; a representative of the Union appeared in its behalf.
All participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties.
At the conclusion of the General Counsel's case, upon motion of counsel for
Respondent, unopposed by the General Counsel, I dismissed specific allegations
that: (a) Foreman McKinney engaged in surveillance of a meeting of employees
being held near the Honeycutt store; (b) Foreman Pace questioned an employee
as to which employees had signed union cards and as to the opinions of
employees about the Union; and (c) Foreman Pace warned an employee that
Respondent would shut down the plant before paying union wages.
On July 9 I took under advisement Respondent's motion that testimony con-
cerning statements allegedly made by Assistant Foreman Bruce Jones, in charge
of the night crew, be stricken. I find without merit Respondent's objection
that the purported conversation "took place more than six months prior to the
time the Company was notified of such testimony . . . that it is not included in
the complaint, and that we have not been put on notice." It suffices here to point
out that there is evidence that the statements, testimony concerning which
Respondent seeks exclusion, were made, if at all, about a week after March 6,
1951, and that the first charge alleging 8 (a) (1) violations was filed April 3,
1951. I now deny the motion. General Counsel's motion to conform the
pleadings to the proof in formal matters was granted. None of the parties
argued the case. The Respondent recently filed a brief.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT'
I. THE BUSINESS OF RESPONDENT
Respondent, Poinsett Lumber and Mfg. Co. is and has been at all times
material to these proceedings, a corporation duly organized under and exist-
2 DeWitt Bates, James Byers, Leroy Crowe, Calvin Durham, Sam Durham, Thomas L.
Durham, Sherman Everette, Jr, Lloyd Hughes, Ivory Lusk, Charles Mosely, Lloyd Mosely,
Edgar Owens, Alvin Porter, Harold Rowland, and Paul E. Stewart.
a Such attempt at conciseness as is compatible with a complete exposition of all the
essential facts will be made. These findings do not purport to include an encyclopedic
recitation of all the evidence of the 24 witnesses contained in the 1,264-page record and
the 188 main and sub-exhibits. They are based upon substantial credited evidence. Testi-
mony not expressly referred to, I consider either immaterial or unessential to a determina-
tion of the issues or unworthy of being credited. It should not be thought that the difficult
credibility problems this case presents have been lightly brushed aside. In certain in-
stances, notably in footnotes 81 to 13 and in discussing the "Dacusville Road Incident,"
infra, I have called attention to testimony either in direct conflict with , or varying in
greater or lesser degree from, evidence furnishing a basis for specific findings. Limitations
of neither time nor insight permit exhaustive exposition of the precise reasons and bases
underlying each and every factual resolution. I must content myself with stating that
during my life with the case, I have earnestly pondered such factors as interest, reason-
ability, plausibility, corroboration, recollective accuracy, conflicting loyalties, bias, and
prejudice, as well as the appearance and attitude of the witnesses as they appeared before
me. A trier-of-fact must at some stage come by the ability, if not innate, of sensing the
truth. The impalpable process, the almost sixth sense, by means of which he acquires as
far as is humanly possible, this faculty, is scarcely susceptible of description.
POINSETT LUMBER AND MFG. CO . 117
ing by virtue of the laws of the State of New Jersey and has maintained its
principal office and place of business in the city of Elizabethport , New Jersey.'
Respondent has a place of business in the city of Pickens , South Carolina.
These proceedings are concerned with Respondent 's operations at Pickens and
vicinity where it controls and operates extensive upland forests and where it,
as a wholly owned subsidiary of Singer Manufacturing Company, is engaged
in the manufacture of wood cabinets and parts for sewing machines. Respondent,
in the course and conduct of its business in Pickens , uses raw materials valued
in excess of $500 ,000 annually , substantially all of which are obtained , trans-
ported, and delivered to its plant in Pickens from within the State of South
Carolina . Respondent manufactures , sells, and distributes finished products
valued in excess of $1,000,000 annually, of which it causes more than 90 percent
to be supplied , transported , and delivered from its plant in interstate and
foreign commerce to plants and other establishments owned by Singer Manu-
facturing Company to and through States of the United States other than the
State of South Carolina, and to other parts of the world.
Respondent stipulates and I find that it is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The evidence discloses and I find that International Union of Electrical, Radio
and Machine Workers (CIO) is a labor organization admitting to membership
employees of Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Early spring
The first public manifestation of the Union's organizational activities
occurred on February 27, 1951.° Union Representative John R. Sullivan parked
a motor vehicle on the side of the highway near its intersection with the drive-
way leading into, and about 100 yards from, Respondent's plant. As the day
shift was leaving work at 5 p. m., Sullivan announced, by loudspeaker attached
to the motor vehicle, that a union meeting was to be held at 5: 30 p. in. that after-
noon at the home of employee James W. Dodgens . A number of employees
congregated in the vicinity of the loudspeaker. Assistant Superintendent James
C. McKinney and Foreman Milton Clark joined the group . In the presence of
employees , McKinney asked Sullivan to leave and engaged him in a discussion
of the Union 's plans and what would happen in the plant if it were organized.
The meeting was held in front of Dodgens ' house , as announced . One week later
a second union meeting was held in afield below Dodgens' house. A number of
employees signed union application cards at the meetings. Respondent 's Works
Manager Thomas J. Mitchell, Assistant Works Manager Willard L. Irwin, Su-
perintendents Herbert H. Connally and T. R. Morrison, Assistant Superintendent
James C. McKinney , Foremen James C. Robertson , Eugene Hooper, Mason W.
Mauldin, and John C. Wells, Jr., Assistant Foreman Bruce Jones, and Personnel
Director Frank G. Finely soon became generally aware of the union activities.
Employees Charles S. Brooks and J. B. Raines became active union exponents.
Brooks attended the two meetings and signed a union application card, dated
* Without objection, the General Counsel's motion at the hearing to amend the complaint
as to the State in which Respondent is organized and its principal place of business is
located , was allowed
5 There is evidence that employee Harold E . Walker designated the Union as early as
February 6, 1951.
257965-54-vol. 103--9
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 28, 1951. He solicited union memberships at the plant among about 50
or 60 employees and procured about 20 signatures between February 27 and
March 23,G when he was laid off. (The circumstances of this layoff will be de-
scribed subsequently.) After March 23, Brooks accompanied Sullivan about twice
a week on member-seeking visits to employees' homes and sometimes went out by
himself soliciting memberships. He and Raines procured, or were largely respon-
sible for procuring, the memberships (including their own) of 17' out of the 20
employees who worked with them on the night shift in the machinery department.
This department is known as number 14. In it is carried on most of the plant's
machine operations.
Raines agreed to join the Union at Brooks' behest on February 27, 1951. He
accepted membership in and designated the Union on March 6. He attended two
meetings. Thereafter he passed out union membership application cards, talked
up union membership to fellow employees working on his and Brooks' shift. He
was discharged on April 2, 1951. (The circumstances of this discharge will later
be described.) Thereafter he accompanied Sullivan once or twice a week on his
visits to the homes of employees for the purpose of procuring union memberships.
Following the charges, which were filed by the Union on April 3, 1951, and
April 26, 1951, alleging that Brooks and Raines were terminated because of their
membership in and activities on behalf of the Union, these two employees were
reemployed on July 16, 1951.
Between February 27 and April 12, on which latter date the first charge was
received by Respondent from the Regional Director, a series of events, in which
various supervisors " of Respondent participated, took place.
The week following the second union meeting held about March 5 at his home.
Dodgens told Foreman James C. Robertson that he had decided he had better
"pull out of the Union" as he had heard he was going to be fired if he did not.
Robertson told Dodgens that he expected he had better get in touch with Super-
intendent H. Connally.' Dodgens then saw Connally who stated that he knew all
about the fact that a meeting had been held at Dodgens' house and that he had
had a second one and that the best thing for Dodgens to do was to pull out before
he got into trouble. Connally added he would appreciate it if Dodgens would
let him know if he found out anything about the Union and that he, Connally,
would let Dodgens know if he found out anything.1° The week before March 23,
the date of Brooks' layoff, Foreman Mason W. Mauldin asked Brooks how he
felt about the Union. When Brooks told Mauldin he favored the Union, the lat-
ter stated that the Union was a bad thing for the employees, that if the Union
° Respondent admitted in its answer , and Brooks testified , that he was laid off on this
(late . I shall take this as a fact and disregard an exhibit that would warrant a finding
that the separation took place during the week ending March 17. My conclusions will not
be affected by an uncertainty as to the precise date, although I realize such possible dis-
crepancy may result in a remedy slightly disfavoring the employee
' Four of these did not sign cards until August , after, as will later appear, Brooks and
Raines were returned to work on July 16, subsequent to having been laid off in March and
April
8It does not appear to be seriously contended that the various persons whose conduct
is here described were not supervisors within the meaning of Section 2 ( 11), of the Act
Suffice it to say there is ample evidence that their duties involve the use of independent
judgment in directing the employees placed under their charge and in effectively recom-
mending their disciplining , hiring , and discharge.
9 Robertson 's version was that Dodgens told him he had decided he would not go along
with the Union and that he told Dodgens that was his business.
'9 Connally's answer to this testimony was that he never talked to Dodgens about the
Union.
POINSETT LUMBER AND MFG. CO. 119
(lid come into the plant, it would close down ; and that Respondent did not want
to work under a union"
Around 3 weeks before the last of March, Foreman Robertson, in the presence
of employee Ben Edward Porter, asked employee Cleburn Reed what was the
difference between the CIO and the Carpenter's Union (A. F. L.). When Reed
replied there was no difference, Robertson told Reed that when he hired him,
Reed had said that he wanted to quit the carpentet trade in order to get out from
under the Carpenter's Union13
About 3 days after February 27, employee James Bishop's foreman, John C
Wells, Jr., asked him what he thought about the Union. When Bishop told
Wells he thought it was a good thing, Wells said that if the employees wanted a
union, they should form one among themselves and that he particularly disliked
the CIO"
About a week after March 6, Night Foreman Bruce Jones told employee Paul
Stewart and 3 or 4 other employees that he had been informed that the works
manager or his assistant had stated that anyone having anything to do with the
Union would be fired 14
During this period, as testified to by several witnesses called by Respondent, its
officials were aware of the fact that union pamphlets, throwaways, and notices
were being distributed, that stories, rumors, and town gossip were prevalent,
and that the employees were in an "upset state."
As mentioned, in passing, above, Brooks was laid off on March 23, 1951 He
first started to work for Respondent the latter part of 1941 and continued until he
entered military service in 1943. After his separation from the Army he returned
to Respondent's employ. In 1948 he went to work in a textile mill until the fall
of 1950 when he returned to Respondent and worked on the day shift. After
"tailing" various saws, he was assigned to a crew engaged in running a new
double cutoff saw, and he began to do some operating in late February or early
March 1951.
Five minutes before quitting time on March 23, 1951, Brooks' foreman, Eugene
Hooper, told Brooks he had to let him go. Hooper said he did not know the
reason, that Brooks' work had been more than satisfactory but that Manufac-
turing Superintendent Connally had told him to let Brooks go. When Brooks
asked Connally for the reason the latter said he had to make room for someone
with more seniority than Brooks. Brooks alluded to the fact that other em-
ployees had less seniority than he. Connally replied he did not know about
them. Brooks' job was taken over by William B. Neeley, who had been severely
injured in August 1950 while working in Respondent's lumberyard. In an
effort to rehabilitate Neeley, he was offered any work he considered himself
capable of performing in his handicapped condition. He selected the work of
operating the double cutoff saw which Brooks among others was doing at the
time. After a short time Neeley was obliged to quit, was reoperated on in June
1951, and returned to work on August 6, 1951. Neeley again became incapacitated
on June 12, 1952, and was incapable of work at the time of the hearing.
11 Mauldin testified he had known Brooks for 25 years, that he talked to him probably
once a week but that the conversations did not pertain to the Union
12 Robertson admitted that he asked Reed if there was any difference between the CIO
and A. F L and that he had said he had heard Reed say one time lie did not have any
time for the A. F. L.
13 Wells testified that he did not ask Bishop but that Bishop asked him what he thought
about the Union and that he told Bishop he did not like the CIO; Wells did not deny
saying to Bishop that if the employees wanted a union they should form one among
themselves.
"Jones denied making this statement. He testified he had no information from his
supeiior concerning what to do with anybody having anything to do with the Union.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After charges were filed alleging that Brooks had been discharged because of
his union activities , negotiations concerning his reinstatement ensued. He was
offered a job working days in the lumberyard starting on July 9, 1951. Brooks
declined this work because it involved exposure to creosote.16 Respondent then
offered Brooks work in department 14's night shift, substantially similar to that
he had done on the day shift before March 23. He returned to work on July 16,
1951.
Also, as mentioned in passing above, Raines was discharged on April 2, 1951.
He had worked intermittently for Respondent since 1947. His last return to
work before April 1951 was in February 1950 when he entered the night shift
of department 14. On the evening of Friday, March 23-the day Brooks was
laid off-Raines, who had not been in good health, became sick on the job. He
worked until lunchtime, and then looked for his foreman, Bruce Jones, whom
he had told earlier that evening that he was ill, to inform him he wanted to go
home. Not finding Jones, Raines told another employee to notify him he had
gone home sick, and left the plant. During the following 10 days he was under
the care of 2 physicians and did not return to the plant until Monday, April 2.
In the meantime, he sent a note, which his foreman, Jones, received on Tuesday,
March 27, and gave to Department Chief Foreman Eugene Hooper, that he was
sick and unable to work. When Raines reported for work on April 2, Assistant
Superintendent McKinney told him he was not needed any more and to come in
the following day to get his time. The decision to discharge Raines was made
on March 26, the day before he sent in the note explaining his absence. During
the period February 18, 1950, to March 25, 1951, there were 29 weeks in which
Raines had worked less than full timel°
After charges were filed alleging that Raines had been discharged because of
his union activities, negotiations concerning his reinstatement ensued, with the
result that Respondent "found that Raines' discharge was the result of some
misapprehension." On July 2 he was offered a job on the day shift but indicated
he wanted night work in order to attend classes for veterans in the daytime.
Raines was then offered substantially the same employment as he had engaged
in up to March 23, 1951, accepted it, and returned to work on July 16, 1951.
On 2 occasions about 3 weeks apart, Assistant Works Manager Willard Irwin
called meetings 17 of 2 groups of employees, because "there was a bunch of
rumors flying around." Irwin told each group that Respondent did not dis-
criminate, that it was against the law to do so, that no employee who wanted
to organize or join the Union would be forced or coerced against his will, that
it was up to the employees, and that they could do as they wanted about it.
At one or more regularly held Tuesday meetings of foremen , Irwin gave the
foremen instructions which in the words of Foreman Wells, Jr., "just boiled
down" to telling them "not to talk to the employees about the Union.""
15 Respondent mistakenly concluded Brooks wanted night work in order that he might
continue attending daytime classes under the "G. I. Bill of Rights " It clearly appears
that Brooks was attending evening classes at the time this work was offered.
1E The assistant superintendent of production testified that Raines' work was satisfactory.
17 Irwin testified that these meetings were held at the time union organizers were inter-
viewing employees ; Connally, that they were held after the attempt to organize began ;
McKinney , that the first one was held sometime after the loudspeaker incident , he just does
not remember the date. For reasons later set forth , the probability is that these meetings
did not take place before the various previously noted statements of Robertson, Connally,
Mauldin, Wells, and Jones were made.
18 The time these instructions were given is not clearly shown. Connally testified they
were given in the spring ; McKinney , that they were given at 2 or 3 meetings , he does not
recall n hen ; Robertson that they were given on Tuesdays ; Jones and Mauldin, that they
did not attend any meetings . Wells did not testify as to any date . Hooper claimed that
POINSETT LUMBER AND MFG. CO.
B. Late summer
121
After Brooks' and Raines ' separations and Irwin's talks and instructions to
employees and supervisors, an era of comparative calm ensued.
As the end of August approached, however, there was a resurgence of union
activities. The kernels planted in the spring and tended by Brooks , Raines,
and Sullivan were bearing fruit. Charles Mosley, Edgar Owens, Sam Durham,
and Leland Durham "signed up." Circulars extending an invitation by the
Union to all of Respondent's workers to attend a picnic at Table Rock Park,
30 miles or so from Pickens, were openly distributed at the plant. Raines and
about 40 other employees attended the picnic which took place on August 25,
1951.
On or as of the last day of August, Brooks, Raines, and 15 other employees
(named in footnote 2), constituting all but 3 of department 14's night shift,
were laid off. As appears above, 17 of the employees on this shift were by this
date members of the Union, 13 having joined in the spring and 4 in the summer.
None has been reinstated They were told they were being laid off because of
lack of sufficient orders.
For some time before August 31, 1951, Respondent had under consideration
the possible necessity of a reduction of its force.
In department 14, which includes department 13, rough lumber (usually
coming direct into the plant from kilns) is cut into parts by swing saws, then
by rip saws to remove defects, and afterward glued. Thereafter it is banded,
if need be, and finally worked through surface finishing machines. The size
of orders for finished cabinet parts immediately affects department 14 where
the lumber goes through its first processing. The effect of any reduction in
orders upon the amount of work required to be done in this department is
dependent far more upon the size than upon the quantity of parts. This is so
because it requires a lesser amount of lumber footage, and accordingly, a lesser
number of man-hours to cut a given number of small parts than it does to cut
the same number of large parts. For this reason, in its periodical preestimates
of the expected amount of future work, Respondent collates the size of orders
on hand or in prospect with the amount of lumber footage, and hence the number
of man-hours necessary to fill the orders.
In the first part of 1951, Respondent was running somewhat behind in filling
its orders. On the basis of figures at hand early in the year it had estimated
the average weekly amount of lumber footage its business would require through-
out the year. During the first 7 months of the year it ran through an average
of 156,000 feet weekly, a considerably higher amount than estimated. During
the same period some orders were canceled or revised and due apparently to
a combination of these factors it had taken up much of the slack by early August.
A review of the situation then indicated the possibility that for the remainder
of the year, a quantity as low as only 70,000 feet might be required weekly
Although in the light of actual production the average weekly footage proc-
essed during the last 5 months of the year exceeded expectations and ran up
to about 123,000, this was one-fifth less than the average amount used weekly
during the first 7 months.
they were given at least a dozen meetings ( no other supervisor testified they were given
more than 3 times ), that they were given at the regular meetings held on Tuesdays and
that the first time they were given was the next afternoon after the loudspeaker incident
(this day was Wednesday ). My belief is, as I shall find for reasons later set forth, that
Irwin's precautionary adjurations were not addressed to his subordinate supervisors until
about the time the Union let it be known that it considered Respondent had violated
Section 8 (a) (1) and ( 3) of the Act.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's works manager and his assistant had the early August esti-
mates under study for 2 or 3 weeks They considered the possibility that new
orders might be received and that upward revisions of outstanding orders could
be made. They gave thought to the advisability of transferring employees from
department 14 and the practicability of making other arrangements in order
to avoid laying anybody off. They discussed the likelihood of a personnel re-
duction with the superintendents and foremen during one or more of the regular
foremen's Tuesday meetings before August 28. Finally on August 27, they de-
cided to lay off the entire department 14 night shift thereby discontinuing
all night sawing and merely leaving 2 or 3 men to work at night under Foreman
Jones doing the work of gluing and some banding that could more conveniently
be done after the daytime shift of some 35 employees, whom it was felt con-
stituted a sufficiently large force to do the volume of work anticipated, had
finished their work.
In addition to the conclusion that it was economically necessary to reduce
the number of its employees, management was motivated in its decision to
lay off the night force rather than an equal number of employees on its day
force by such considerations as the fact that such action was in consonance
with its policy of 12 years' duration under similar circumstances, the ordinary
aversion of employees to working nights, the comparatively less efficiency of
nightworkers than that of dayworkers, and the customary industrial practice
of cutting off night work when production needs to be curtailed.
As related above, the night shift workers were notified on August 31, 1951,
that they were being laid off that day. During the period beginning with the
week ending September 8, 1951, until the last of 1951, 15 employees were hired
and 31 were separated for one cause or another. Of the 15- hired. 9 were women,
all of whom were hired into the finishing department where Respondent con-
sidered, on the basis of its wartime experience, women were more suited for
the work than men. Of the 6 men, only 1 was hired into the machine depart-
ment. This man was a veteran returning from military service. Between
August 11, 1951, and April 12, 1952, there was a net reduction of employees
of 71, 36 of whom were from department 14.
0. Conclusions
1. The layoffs of Charles Brooks and J. B. Raines
It is of moment in considering this particular aspect of the case, as distin-
guished from the August 31 shutdown, to bear in mind that on and before March
23 when Brooks was laid off and March 26 when the decision to discharge Raines
was made, Respondent's supervisors by their conduct on February 27, about 3
days thereafter, during the week following March 5, on the week before March
23, and about 3 weeks before the last of March, which has already been de-
scribed and requires no repetition, had clearly evinced Respondent's antipathy
to the principles of collective bargaining. It is significant that although sev-
eral employees who remained at work after Brooks and Raines were let out
testified concerning coercive statements made by supervisors before the time
the first charge was received, none of them testified that any like remarks were
made thereafter. Likewise it is of importance to observe that there is no
evidence that Brooks or Raines attended either of the two meetings between
Irwin and the employees.
The obvious conclusion is these meetings which were held 3 weeks apart did
not take place until after they were separated. Irwin testified they were held
at the time union organizers were interviewing employees. The only 3 "or-
POINSETT LUMBER AND MFG. CO. 123
ganizers" so far as the record discloses as having interviewed employees at
this time were Brooks, Raines, and Sullivan, who made the rounds to employees'
houses with the latter.
I cannot but believe that Irwin's assertion to the effect that these meetings
coincided with the circumvolution of rumors was other than a euphemistic
manner of more accurately expressing the actuality of their following upon the
charge of unfair labor practices. Although I am convinced that top management
at Pickens was far from unaware of employees' right of self-organization, I
do believe that subordinates in the hierarchy, habituated to their sylvan and
bucolic surroundings , far removed from the centers of industrial strife, were
more naive than their superiors. The receipt of charges pointed up the dangers
and legal difficulties involved in interfering with employees' rights under the
Act. When thus definitely alerted to these risks and problems, and they had
assumed sufficient magnitude to receive the attention of their high officials,
Respondent and its controlling company-certainly not concerns desirous of
persisting in practices that might be contrary to law-most naturally took steps
in the hope of avoiding and solving them. Thus, the foremen were instructed,
tardily it is true, "that they had better be careful not to do things which might
leave the company open." Hence, it becomes altogether probable that these
instructions were not given until some time after Respondent was confronted
with the accusations contained in the first charge. The only evidence which
would clearly warrant a finding that they were issued at an earlier time, is
that of Hooper and in the light of all the circumstances I am unable to credit
it. After April 12 an interlude of negotiations took place finally culminating
in the restoration of Brooks and Raines to work. Then peace seemingly smiled
over the Smokies' southern approaches.
Quite a different atmosphere prevailed at the time of the August 31 night
shift discontinuance than existed in late March and early April. Very evidently
the meetings between management and supervisors had put a period to inter-
ference, inquiries, threats, and warnings. Brooks and Raines had returned to
work sometime since. In appraising the motives of Respondent in laying off
Brooks and discharging Raines on the one hand, and its motives in discontinuing
night work on the other hand, it is important to keep in mind Respondent's
change in manifestation of attitude between the period of the first outcroppings
of union activities and the time 6 months later, after Respondent faced with
charges of unfair labor practices, had undertaken to institute corrective measures.
It is in the light of Respondent's supervisors expressed animosity toward the
Union that we must consider Respondent's treatment of Brooks and Raines.
Respondent does not deny that these men may have been active union exponents
and organizers but takes the position that Respondent was unaware of their
union interest and activities I am unable to agree that such is the case.
Respondent admits its knowledge of the Union's organizing activities. In its
relatively small plant, Mitchell and Irwin talked over unionism at various
times.
Brooks solicited union memberships among about 50 or 60 employees and
procured about 20 signatures between the last of February and the date of his
layoff. Raines likewise passed out union membership application cards and
talked up union membership. Both attended meetings which Superintendent
Connally told Dodgens he knew all about. Brooks upon inquiry had told
Foreman Mauldin that he favored the Union and Mauldin had told him that if
the Union did come into the plant it would close down.
The evidence is more than circumstantial that Respondent knew of Brooks'
interest and activities and it is clearly inferable that it was cognizant of Raines'
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
efforts in behalf of the Union. In fact on the record in this case, these two men
were with Dodgens, were the Union's most active exponents among all of Re-
spondent's employees during the early days of organization. Dodgens, well
before Brooks' and Raines' discharge, had informed Respondent that he had
decided he had better abandon the Union.
It is abundantly clear to me that Respondent seized upon 2 incidents which
it hoped might plausibly explain its dropping these 2 men from the payroll,
in order to rid itself of the influence and efforts they were exerting toward the
accomplishment of an end it cordially hoped would not be achieved. By dis-
posing of Brooks and Raines, the Union was seriously crippled during its forma-
tive stage. The impetus to self-organization was frustrated at the outset.
I am satisfied and I find that the real reason for the Employer's conduct with
respect to both Brooks and Raines was its desire to eliminate the first employees
who conspicuously manifested an interest in unionization and thereby set a
frightening example before, and impress other employees with the disastrous
effect of engaging in union activities.
I find and rule that by this conduct Respondent violated Section 8 (a) (3)
and (1) of the Act as alleged.
Respondent seeks to explain Brooks' layoff by saying that it was necessitated
in order to make a place for Neeley. No one can quarrel with Respondent's de-
sire to rehabilitate this injured employee. But the fact remains that the job given
Neeley-that of operator or leadman on the double cutoff saw-was scarcely
that of Brooks. Respondent itself emphasizes the fact that practically all of
Brooks' work prior to his return in 1950 had been in the lumberyard, stacking
lumber, that he had had no experience in department 14 nor in working with
saws that the work required of him after the fall of 1950 involved the possession
of skill only slightly above that of a common laborer, that he never achieved
the status of, nor received pay commensurate with, the grade of operator, and
that although he did act as saw leadman on a few occasions in the absence of
the operator, his regular work was only that of a tailer on the saw. It appears
from department 14's Foreman Eugene Hooper's testimony that James Dodson
had been the regular operator and that Hoild Durham was the regular operator
prior to March 1. Brooks testified that Dodson had been transferred back to the
gang-rip machine. In addition to Brooks, Walker and Dobson had on occasion
also acted as leadman on the saw in the absence of Dodson or Durham. Thus
it becomes plainly apparent that instead of being given Brooks' job, Neeley was
in reality assigned to Durham's regular job or possibly to Dodson's position,
since it is not clear from the evidence that the latter was more than temporarily
transferred to the gang-rip machine. In no event may it be said that job
selected by Neeley was any more Brooks' than Walker's or Dobson's. As further
indication that the leadman's position was not Brooks' own, Brooks was not
called back to take it when Neeley became unable to handle the work after only
about a 2 months ' attempt. Brooks had worked for Respondent off and on and
for a substantial amount of time over a period of 10 years. He had been told
by his foreman that his work was "more than satisfactory." Connally's pleading
ignorance when Brooks asserted that he had more seniority than other employees
who were retained, and Connally's own testimony that only went as far as saying
Brooks was one of the newest operators, makes it clear that Respondent's claim
that Brooks was selected for replacement because he had the least seniority,
does not withstand scrutiny. As was brought out by Respondent, Brooks had
worked and gained experience in various capacities. Had not Respondent been
motivated by anti union considerations, it could have, at a time when its business
was so flourishing and production was lagging behind orders (and I believe it
POINSETT LUMBER AND MFG. CO. 125
would have, if need there were), found a place for Brooks elsewhere. On weigh-
ing the impact of all of these circumstances, I must reject Respondent's asserted
reasons as ill founded.
I do not agree with the General Counsel that Brooks was not reinstated to a
substantially similar position. "Substantially" does not mean "precisely" He
was given the same type of work, in the same department, at the same rate of
pay, that he had been doing before his discharge. Nor does the fortuitous cir-
cumstance that he went to work on a relay that was more vulnerable to layoff
than was his former shift, alter my opinion. He was given an opportunity to
work days. True enough, this was a dissimilar type of work than that in which
he was engaged in March but he was familiar with it and for reasons sufficient
to himself he did not accept the job.
Respondent argues that Raines was discharged for breaking Respondent's
rules and for excessive absenteeism and that the evidence points to no other
conclusion. Foreman Hooper testified in direct examination that Raines was
discharged because he walked off the job without telling his supervisor. In
cross-examination Hooper's testimony was as follows :
Q. Why was Mr. Raines laid oft? Was it because of his absenteeism or
because he left the plant that Friday night?
A. Because he left the plant that Friday night.
Q. Then it had nothing to do with his absenteeism, that is what you are
saying, isn't it?
A. Well, first because he run off the job without permission.
Q. Oh, so now you are saying his absenteeism record had something to do
with it?
A. Sure that had a bearing on it.
Hooper further testified that Respondent had tolerated Raines' working about
4 days a week throughout a year. McKinney first testified that Raines was
fired "because he walked out Friday." In response to a leading question he later
testified that Raines' absenteeism had something to do with the severity of the
punishment. It is apparent that that part of Respondent's present contention
that Raines was discharged for excessive absenteeism finds rather insubstantial
support in the record. But if absenteeism did have some bearing on the decision
to discharge him, it is difficult to believe that his failure to work more regularly
did not become sufficiently intolerable to furnish a basis for so drastic a penalty
as a discharge until, as I have found, the Company became aware of his union
activities. Respondent knew that Raines had not been well ; it is true that
Foreman Jones testified he guessed he had tried to get Raines to come on in
and work regular if he could. It is very apparent that Respondent had been
considerate of Raines on account of his poor health and because, as its assistant
superintendent of production testified, his work was satisfactory.
The explanation for Respondent's conduct offered in evidence and reiterated
in its brief that Raines broke a rule by walking off his job, needs consideration.
There is no evidence that the plant had any rule about leaving work without
permission before the normal quitting time. But even leaving this aside, I am
satisfied that Raines' conduct was far from an act of wilfull insubordination.
Foreman Hooper "had been taking his testimony that (Raines) was sick for
a whole year when he had been absent" and shortly before March 23, had told
Raines, when his illness was again discussed, it was important that he be on
the job whenever he was able. There can be no reasonable dispute that Raines
became quite ill on March 23. The subsequent events, including treatment by
two physicians, support the conclusion. Respondent intimates that the con-
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dition of his health was not such that he could not work and asserts that he went
to school several days during the following week . This assertion is not borne
out by the record , it appearing that he did not go to school until the following
Friday, the last working day before he reported for work on April 2 Attending
school 4 hours a day , needless to say involved far less physical stamina than
working in a sawmill 8 hours a night.
Raines looked for his foreman to report his condition and to notify him that
he was leaving . He had specifically told Jones earlier that evening that he
was sick and he "might be taking mumps ." He probably did not make a very
thorough search for Jones but it is entirely understandable that a sick man
would, or could , not engage in an extensive investigation into his whereabouts
Not finding Jones , Raines asked another employee to explain the situation to him.
Jones testified that Raines did not exactly pass by him on the way out but
that he saw him leaving by the door and supposed he was going to eat his
lunch outside . Jones reported to his immediate superior , Hooper, that Raines
had left work without notification or permission and the same day that this
report was received , without any real investigation , Respondent decided to dis-
charge Raines. The next day, March 27, Raines notified Respondent of the
reason for his absenting himself from work. Respondent learned that he was
under the care of two physicians and made inquiries which disclosed that he
had gone to his "G.L " school for a few hours on March 30 , 1 week after he
had left word and notified the Company he had taken ill. Despite its verifica-
tion of the fact that Raines actually had been sick , Respondent adhered to its
original decision and discharged this man whose work it says was unquestion-
ably satisfactory and who had been in its employ on 2 occasions for a total of
over 21/2 years.
After charges had been filed , Respondent notified the Board it had found that
Raines' discharge was the result of misapprehension and as appears above he
was reemployed . Of course an employer may discharge employees for a good,
bad, or a mistaken reason or for no reason at all, without violating the Act
provided the real reason is one that does not contravene the proscriptions of the
Act. But in the light of all of the circumstances surrounding Raines' discharge,
I am unable to believe it was due to misapprehension , unless it may be said
that the mistaken notion of the supervisors who decided to let them go that
employees could either properly or undetectedly be fired because of union activi-
ties may be dubbed a "misapprehension ." It seems to me- and certainly
Respondent is not to be criticized for rehiring him- that the rationalization
underlying Raines' reinstatement was akin to that which prompted Respondent
to hold sessions with its employees and foremen in an effort to mitigate the
effect of errors committed upon the advent of the Union.
It is widely recognized that direct evidence of antiunion motivation, or even
of an employer 's knowledge of employee's activities , is not often discoverable
in cases of this variety . Cf. N. L. R. B. v. Tex-O-Can Flour Mills, 122 F. 2d 433,
438-439 ( C. A. 5) ; Harsell Mills Co. v . N. L. R. B, 111 F . 2d 291, 293 (C. A. 4) ;
N. L. R. B . v. Abbott Worsted Mills , 127 F. 2d 438, 440 ( C. A. 1). Here, as in
many cases of like character , it is impossible to escape the conviction on all the
evidence and the inferences that may reasonably be drawn therefrom, that
Respondent 's varied explanations that it discharged Raines for breaking a rule
or for leaving work without permission or for absenteeism or for both, or
through misapprehension are pretextuous and were offered as excuses to cloak
antiunion conduct.
POINSETT LUMBER AND MFG . Co. 127
2. The August 31 layoff
The General Counsel offered the testimony of Thomas L. Durham that Foreman
Jones stated the night shift was being laid off in order to get rid of Brooks and
Raines. This testimony was denied by Jones. The evidence of other witnesses
was to the effect that Jones told the night men they were being laid off for lack
of orders. Assuming, arguendo, that Jones made the statement ascribed to him
by Durham, I believe it would be unduly captious to attribute any material
importance to it or to conclude that it signified anything more than Jones' surmise.
Jones was a subforeman, who was not called into the councils of management
and higher ranking supervisors. Even though it were a fact that the elimina-
tion of Brooks and Raines was a factor in causing Respondent to arrive at its
decision to close down the night work,-and in view of all the circumstances
I am not satisfied it was,-it is scarcely conceivable that management, at a time
so shortly after its relations with the Union had been under scrutiny, would
have confided such purpose to so minor a subaltern.
The timing of this layoff, so soon after the union picnic, of course gives rise
to a suspicion that there was some connection between the two. One must
wonder whether indeed the hovering dove had not winged away. But even if
the coincidence of the two may be considered enough to constitute prima facie
evidence that the layoff was discriminatory in character, I am convinced that
Respondent fully met its burden going forward with evidence to rebut this
presumption and successfully showed that the layoff was occasioned by factors
other than any aversion to the union membership and activities of its employees,
or desire to discourage membership in the Union. In my opinion, the weight of
the evidence supports the conclusion that the August 31 curtailment was due to
economic reasons. As pointed out in my findings, there was a downtrend in
production that became noticeably pronounced shortly after the middle of the
year. It became apparent that unless business improved, there would have
to be a reduction in the number of employees.
It is reasonable to expect in a plant which operated mainly on a single-shift
basis that management would decide, when the state of business warranted or
required such action, to do away with extra shift which was regarded as its
least efficient working unit The production experience after August 1951 amply
demonstrates the soundness of Respondent's earlier judgment that fewer jobs
would be available in the future than during the preceding months. It does not
appear that the General Counsel seriously contends,-nor in my opinion could
he successfully contend-that Respondent deliberately shut down a complete shift
for the single purpose of getting rid of two or even a few union supporters. And
I say this while fully realizing the probability, although it is not a clearly estab-
lished fact, that the proportion of union to nonunion employees working on the
night shift in department 14 was greater than that prevailing in any other
department.
Respondent was engaged in filling orders sent to it by its parent corporation,
Singer Manufacturing Company. It is highly improbable, I believe, that Respond-
ent would improvidently deprive itself of the means of producing goods required
by its subsidizer solely to again do away with Brooks and Raines with whom it
had already had a chastening experience. The record amply demonstrates that
these two men were enthusiastic union supporters during the time they were
out of work up to their return in July. I am sure through the observations I
could not escape making during several days commorancy in Pickens among the
inhabitants of that small and friendly community where everybody seems to
know what everyone else is doing, as well as from Respondent's frank admissions
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the notoriousness of its employees' union activities, that Respondent was aware
of Brooks' and Raines' peregrinations in April, May, and June. It is quite
striking, however, that there is nought in the record to warrant the conclusion
that their union activities were any more marked between July 16 and August 31,
than they were known to have been before that time.
But, the General Counsel may say, why did not Respondent, if its reasons were
so sound and its motives as benign as it professes, lay off other employees instead
of those on the night shift, and why were these people never reinstated? I feel
that Respondent has supplied complete answers to those questions. The night
shift in this plant existed for the purpose of taking care of superabundant orders
and to fully utilize the machinery investment. It is undisputed that over the
years it had been Respondent's practice to put on night shifts when business
increased and to take them off when it slackened. It is entirely natural that at
such times as work eased off, the night shift should be the first to be done away
with before any piecemeal reduction should be undertaken among the employees
working daytime in the same or other departments.
The reason for Respondent not having reinstalled the night shift since August
1951 is apparent. Attention has been drawn to the reduction in the number of
employees in department 14 and other departments. Since September 1951, pro-
duction has consistently been less than during the first 7 months of that year.
I am far from satisfied that the General Counsel has established by the weight
of substantial evidence that Respondent, by laying off any of the 17 members
of department 14's night shift, or by failing to reinstate them, has violated
the Act. Rather do I believe that such conduct was the result of decisions
premised on sound and legitimate business and economic reasons.
It is well settled that the fact of the union membership of some or all of the
employees who were separated does not guarantee against discharge.
3. Interference, restraint, and coercion
a. Allegations proved
Upon the relevant facts found in subsection A of this title, I conclude and
rule that Respondent engaged in violations of Section 8 (a) (1) by: McKinney's
and Clark's interference with a gathering of employees near the loudspeaker
on the highway outside the plant and McKinney's request of the union organizer
that he leave ; Connally's statement to Dodgens that the best thing for him to do
was to pull out of the Union before he got into trouble and request that Dodgens
should let him know if he found out anything about the Union ; Mauldin's
inquiry of Brooks as to how he felt about the Union and Mauldin's statement to
Brooks that if the Union came into the plant it would close down ; Robertson's
inquiry of Reed as to what was the difference between the Union and the Carpen-
ters Union and statement to Reed who replied there was no difference that Reed
had said he had quit the trade of carpenter because he wanted to get out from
under the Carpenters Union; " Wells' inquiry of Bishop about his opinion with
respect to the Union; and Jones' statement20 to Stewart and 3 or 4 other em-
.19 The plain inference being that if the two unions were the same, why should Reed favor
the instant union.
m This statement was not specifically alleged in the complaint. However , it was gen-
erally alleged that Respondent "threatened and warned its employees against engaging in
activities on behalf of the Union or in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection ." On July 14 , after Stewart had testi-
fled on July 9, at Respondent 's request, the hearing was continued for 10 days and resumed
on July 24. This aspect of the case was fully litigated.
POINSETT LUMBER AND MFG. CO . 129
ployees that he had been informed that top management had stated that anyone
having anything to do with the Union would be fired.
Even though Irwin's statements to some of the employees at meetings may
have been made in an effort to counteract McKinney's, Clark's, Connally's,
Mauldin's, Robertson's, Wells', and Brooks' threats and interrogations, they
were insufficient in themselves to dissipate the restraining influence, which the
latter's coercive conduct was bound to exert upon all the employees against
whom it was directed. As was said in N. L. R. B. v. Kropp Forge Company,
178 F. 2d (C. A. 7), cert. denied 340 U. S. 810:
It also seems clear to us that in considering whether such statements or
expressions are protected by Section 8 (c) of the Act, they cannot be con-
sidered as isolated words cut off from the relevant circumstances and
background in which they are spoken. A statement considered only as to
the words it contains might seem a perfectly innocent statement, including
neither a threat nor a promise. But, when the same statement is made
by an employer to his employees, and we consider the relation of the parties,
the surrounding circumstances, related statements and events and the back-
ground of the employer's actions, we may find that the statement is a part
of a general pattern which discloses action by the employer so coercive as
to entirely destroy his employees' freedom of choice and action. To permit
statements or expressions to be so used on the theory that they are pro-
tected either by the First Amendment or by Section 8 (c) of the Act, would
be in violation of Section 7 and contrary to the expressed purpose of the
Act. Therefore, in determining whether such statements and expressions
constitute, or are evidence of unfair labor practice, they must be considered
in connection with the positions of the parties, with the background and
circumstances under which they are made, and with the general conduct of
the parties. If, when so considered, such statements form a part of a
general pattern or course of conduct which constitutes coercion and de-
prives the employees of their free choice guaranteed by Section 7, such
statements must still be considered as a basis for a finding of unfair labor
practice. To hold otherwise would nullify the guaranty of employees'
freedom of action and choice which Section 7 of the Act expressly provides.
Congress in enacting Section 8 (c) could not have intended that result.
b. Allegations not proved
There remain for consideration certain 8 (1) (a) allegations, not already
dismissed at the conclusion of the General Counsel's case. So far, I have re-
frained from mentioning these allegations for the reason that I do not feel
that they are supported by the evidence. Those deserving mention are four in
number and I shall attempt to deal with them briefly.
The general allegation that Respondent kept under surveillance the meeting
places of its employees, may be treated with the two more specific allegations
that Superintendent Morrison engaged in surveillance of employees on their
way to the Table Rock Park union outing and that Assistant Superintendent
McKinney followed an organizer and an employee in a car as the latter went
about his organizing activities.
Table Rock Park
This is a public park owned by the State of South Carolina and managed by
the State's Park Commission. August 25, 1951, the day of the union picnic, was
fair. The estimated number of people in the park was 942. Morrison was on
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or near the bathing beach at the time several employees arrived at the park,
left their cars in the parking space, and walked to the picnic area where the
union outing was held. There is no question but that Morrison was in a position
to see some of the employees as they were walking toward the picnic area.
Morrison was a rather regular visitor to the park. It is accessible to Pickens,
a city of about 2,500 population, the second largest community in Pickens county
which has a population of about 45,000.
I do not believe that Morrison went to the park on August 25, 1951, for the
purpose of surveillance and I credit his testimony that he did not inform Re-
spondent's management that he had seen any of its employees there that day.
The Dacusville Road Incident
Brooks testified that on March 26 he drove out with Sullivan to Raines'
home which is 10 miles from Pickens and located on a narrow road, leading to
Dacusville, 7 miles from its intersection with a main highway, and that after
the car was stopped on the right-hand side and before he had crossed the road
to Raines ' house, McKinney, driving alone at 25 miles per hour, passed the
parked car on its left. McKinney testified that in the early part of 1951 he had
driven to Dacusville, that there are several ways to reach there from Pickens,
that he was en route to a factory beyond Dacusville, that he was accompanied
by 2 passengers ; that he had not gone there alone ; that he saw neither Brooks
nor Sullivan on this trip ; that he does not know where Raines resides and
that to his knowledge he never followed an automobile containing union or-
ganizers . This testimony raises just one more of those multitudinous ques-
tions of fact with which this and most like cases are replete. If Brooks is
right, and McKinney drove by him alone, the latter's denial of driving unaccom-
panied to Dacusville would be sufficient to warrant the conclusion (particularly
when one recalls McKinney's conduct on February 27, that Brooks had just
been laid off, and that Raines was about to be discharged) that McKinney had
an ulterior purpose in following Sullivan and Brooks.
I do not believe Brooks made this story of whole cloth. Of course there is
always the chance of a mistake in identity and an even greater chance that
Brooks' attention would naturally be focused on a passing car driver whom he
recognized or thought he recognized, to such an extent that he might fail to ob-
serve passengers who might be somewhat obscured in the rear seat. We know
that employees are understandably prone to suspect that the presence of super-
visors in vicinages where they consort with union officials is not adventitious.
It is difficult for me, however, under the circumstances surrounding this aspect
of the case, to believe that Respondent had McKinney chase out 10 miles into
the country, or that he did so on his own initiative, to gather cumulative evi-
dence of union activities which it knew were rife as early as 4 weeks previously.
Consequently I do not feel that the General Counsel went any further than to
leave this particular issue hanging in the balance. ,
I therefore conclude and find that in violation of section 8 (a) (1) of the
Act, Respondent did not keep under surveillance the meeting places of its em-
ployees, nor did Morrison engage in surveillance of employees on their way to a
union outing nor did McKinney follow an organizer and an employee as they
went about organizing activities.
The fourth allegation in this category is that Connally questioned an employee
with respect to union representatives visiting employees' homes. The evi-
dence does not support this allegation and I find that it has not been proved.
POINSETT LUMBER AND MFG. CO . 131
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce in the
several States and foreign countries and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since I have found that Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act, I shall
recommend that it cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Having found that Respondent discriminatorily laid off Charles S. Brooks on
March 23, 1951, and discriminatorily discharged J. B. Raines as of March 26,
1951, on April 2, 1951, and failed to reinstate them to their former or substan-
tially equivalent positions until July 16, 1951, I will recommend that Respondent
make Brooks whole for any loss of pay which he would normally have earned
as wages from March 23 to July 16, 1951, and make Raines whole for any loss
of pay which he would normally have earned from April 2, 1951, when he had
recovered from his illness, to July 16, 1951, less their net earnings, if any,
during said periods.
Having found that Respondent has engaged in certain acts of interference,
restraint, and coercion, I will recommend that it cease therefrom.
The violations of the Act which Respondent has committed are in my opinion
persuasively related to other unfair labor practices proscribed by the Act, and
the danger of their commission in the future may well be anticipated from the
conduct of some of Respondent's supervisors in the past. I will therefore rec-
ommend the issuance of a broad cease-and-desist order, prohibiting infringement
by Respondent in any manner with the rights guaranteed in Section 7 of the Act.
For reasons stated above, I will recommend that the complaint be dismissed
insofar as it alleges that Respondent in violation of Section 8 (a) (3) of the Act,
did not reinstate Charles S. Brooks to his former or substantially equivalent
employment on July 16, 1951, or on or about August 31, 1951, terminated the
employment of 17 employees and thereafter failed and refused to reinstate
them, or, in violation of Section 8 (a) (1) of the Act kept under surveillance
the meeting places and concerted activities of its employees or followed a union
representative and an employee engaged in organizing activities or questioned
an employee with respect to visiting employees' homes or as to which employees
had signed union cards.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. International Union of Electrical, Radio and Machine Workers (CIO) is
a labor organization admitting to membership employees of the Respondent.
2. By discriminating in regard to the hire and tenure of employment of
Charles S. Brooks and J. B. Raines, thereby discouraging membership in Inter-
national Union of Electrical, Radio and Machine Workers (CIO) Respondent
has engaged in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By the above unfair labor practices and by interfering with, restraining,
and coercing employees in the exercise of rights guaranteed in Section 7 of the
Act, Respondent has engaged in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not, as alleged in the complaint, engaged in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act, by terminating
the employment of 17 employees on or about August 31, 1952, and thereafter
failing and refusing to reinstate them.
6. Respondent has not, as alleged in the complaint, engaged in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act, by failing and
refusing to reinstate Charles S. Brooks to his former or substantially equivalent
position of employment.
6. Respondent has not, as alleged in the complaint, engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act by keeping under
surveillance the meeting places and concerted activities of its employees, by
following a union representative and an employee engaged in organizing activi-
ties, nor by questioning an employee with respect to visiting employees' homes
or as to the identity of employees who had signed cards.
[Recommendations omitted from publication in this volume.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interfere with our employees' meetings related to union
affairs, request our employees to supply us with information concerning
union matters, interrogate our employees about their union sympathies,
threaten our employees with statements that our plant will close if the union
acquires representative status, or in any other manner interfere with,
restrain, or coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist INTERNATIONAL UNION
OF ELECTRICAL, RADIO AND MACHINE WORKERS (CIO) or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all
of such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT discourage membership in INTERNATIONAL UNION OF ELEC-
TRICAL, RADIO AND MACHINE WORKERS (CIO) or any other labor organization
of our employees by discharging or laying off any of our employees or dis-
criminate in any other manner in regard to their hire and tenure of employ-
ment or any term or condition of employment.
WE WILL make whole Charles S. Brooks and J. B Raines for any loss of
pay suffered as a result of the discrimination against them.
ARMSTRONG CORK COMPANY 133
All our employees are free to become , remain, or refrain from becoming mem-
bers of the above-named union or any other labor organization except as aforesaid
to the extent that this right may be affected by- an agreement in conformity with
Section 8 (a) (3) of the Act.
POINSETT LUMBER AND MFG. CO.,
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.
ARMSTRONG CORK COMPANY and LODGE No. 918, INTERNATIONAL ASSO-
CIATION OF MACHINISTS , A. F. OF L., AS THE SUCCESSOR TO LODGE No.
1034, INTERNATIONAL ASSOCIATION OF MACHINISTS , A. F. L.
ARMSTRONG CORK COMPANY and INTERNATIONAL ASSOCIATION OF
MACHINISTS , A. F. L. Cases Nos. 10-CA-1384 and 10-CA-1477.
March 2, 1953
Decision and Order
On October 14, 1952, Trial Examiner John H. Eadie 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. The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter, the Respondent
and General Counsel filed exceptions to the Intermediate Report and
supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
the case,' and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and modifi-
cations:
1. We find, in agreement with the Trial Examiner, that the Re-
spondent violated Section 8 (a) (1) of the Act. In so finding, we
rely only on the following incidents as found in the Intermediate
11 Pursuant to the provisions of Section 3 (h) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and Mem-
bers Houston and Murdock].
2 The Respondent ' s request for oral argument is denied because the record and briefs
adequately present the issues and positions of the parties.
103 NLRB No. 20.
257965-54-vol. 103-10