S. D. Cohoon & Son

National Labor Relations Board - Board Decisions

Dec 10, 1952

101 N.L.R.B. 966 (N.L.R.B. 1952)

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. D. CORDON AND D. F. COHOON, PARTNERS, D/B/A S. D. CORDON &
SON and INTERNATIONAL WOODWORKERS OF AMERICA, CIO. Case&
Nos. 11-CA-328 and 11-CA-374 (formerly 34-CA--328, 374). De-
cember 10, 1952
Decision and Order
On March 21, 1952, Trial Examiner John H. Eadie issued his In-
termediate 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 Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended the dismissal
of those allegations. Thereafter, the General Counsel filed exceptions
to the Intermediate Report, and a supporting brief.
The Board" has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
General Counsel's exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications :
1. The Trial Examiner properly found that the Respondent en-
gaged in various types of conduct in violation of Section 8 (a) (1) of
the Act. We disagree, however, with his finding that the interroga-
tion of the employees by an unidentified woman about June 1, 1951,
did not constitute an independent violation of Section 8 (a) (1). The
record shows that the Respondent gave this woman the use of its
office, during working hours, and that D. F. Cohoon personally di-
rected a number of employees to see her. The woman asked each
employee his name and whether or not he belonged to the Union. We
find that the Respondent, by its conduct, made it appear to the em-
ployees that the woman in question was acting in its behalf and that
the Respondent is therefore responsible for her activities. The
woman's questioning of employees concerning their union member-
ship, viewed in the background of the Respondent's surveillance of
union meetings and its other violations of the Act, was an independent
interference with the employees' right to self-organization, and the
Respondent thereby violated Section 8 (a) (1) of the Act.z
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Murdock and Peterson].
' Cf. N. L. R. B. v. Winer, Inc., 194 F . 2d 370 ( C. A. 7), certiorari denied October 13,
1952.
101 NLRB No. 161.
S. D. COHOON & SON 967
2. The General Counsel excepts to the Trial Examiner's finding that
the Respondent, in its letters of July 18, 1951, made valid offers of
reinstatement to the striking employees. The Respondent sent copies
of these letters to the Union and the Board. Two of the three em-
ployees then on strike never did apply for reinstatement, and the third,
Otto Spruill, did not apply until sometime in the middle of August 3
Under these circumstances, we find, as did the Trial Examiner, that
the offers of reinstatement were valid, and that the strikers waived
their right to reinstatement.
3. The Trial Examiner found that the Respondent did not refuse
to bargain with the Union in violation of Section 8 (a) (5) of the Act.
Contrary to the Trial Examiner, we are of the opinion that the record
supports a finding that the Union represented a majority of the Re-
spondent's employees on June 18,1951, the day on which the Union first
requested the Respondent to bargain. There were then 15 employees
in the bargaining unit rather than 16, as Albert Jones is properly ex-
cluded as a supervisor. However, we do not believe that the Respond-
ent's reply to the Union, as fully set forth in the Intermediate Report,
constituted a violation of Section 8 (a) (5) of the Act, in view of the
fact that shortly thereafter the Respondent expressed to the Union a
willingness to bargain upon reasonable proof of the Union's majority
and offered to reinstate the strikers. As the Union failed to offer any
proof of its majority, we agree with the Trial Examiner that there was
no subsequent refusal to bargain. Accordingly, we shall dismiss the
Section 8 (a) (5) allegation of the complaint.
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, S. D. Cohoon and D. F.
Cohoon, Partners, d/b/a S. D. Cohoon & Son, Columbia, North Caro-
lina, their agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Engaging in surveillance of meetings of International Wood-
workers of America, CIO, or meetings of any other labor organization.
(b) Interrogating their employees concerning their membership and
activities in International Woodworkers of America, CIO, or any other
labor organization, and threatening them with reprisals because of
such activities.
(c) Discouraging membership in International Woodworkers of
America, CIO, or any other labor organization, by discriminatorily
"The record shows that the Respondent had a full complement of employees at this
time.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusing to reinstate any of their employees or by discriminating in
regard to their hire or tenure of employment or any term or condi-
tion of their employment.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Woodworkers
of America, CIO, or any other labor organization, to bargain col-
lectively 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 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 em-
ployment, 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) Make whole Henry Spruill, Otto Spruill, Harold F. Fenner, and
Charlie Andrews, in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy," for any loss of pay they may
have suffered by reason of the Respondent's discrimination against
them.
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records, and all other records necessary
to analyze the amounts of back pay due under the terms of this Order.
(c) Post at their plant in Columbia, North Carolina, copies of -the
notice attached hereto and marked "Appendix A." 4 Copies of such
notice, to be furnished by the Regional Director for the Eleventh
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and maintained 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 the Re-
spondent to insure that such notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Eleventh Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges
violation of Section 8 (a) (5) of the Act and Section 8 (a) (3)
of the Act with respect to Hubert Fenner, Charles White, and J. J.
Spruill, be, and it hereby is, dismissed.
4 In the event 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."
S. D. COHOON & SON
Appendix A
NOTICE To ALL EMPLoYEEs
969
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT engage in surveillance of meetings of INTERNA-
TIONAL WOODWORKERS OF AMERICA, CIO, or meetings of any other
labor organization.
WE WILL NOT question our employees concerning their member-
ship and activities in INTERNATIONAL WOODWORKERS OF AMERICA,
CIO, or any other labor organization, and threaten them with
reprisals because of such activities.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist INTER-
NATIONAL WOODWORKERS OF AMERICA, 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 protec-
tion, 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 employ-
ment, as authorized in Section 8 (a) (3) of the Act.
WE WILL MAKE WHOLE the following employees for any loss
of pay suffered as a result of the discrimination against them :
Henry Spruill Harold F. Fenner
Otto Spruill Charlie Andrews
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any labor organization.
S. D. COHOON AND D. F. COHOON, PARTNERS,
D/B/A S. D. COHOON & SON.
Date ------------------- 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.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by International Woodworkers of America, 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 Fifth Region (Baltimore, Maryland), issued a con-
solidated complaint dated December 4, 1951, against S . D. Cohoon and D. F.
Cohoon, Partners, d/b/a S. D. Cohoon & Son, herein collectively called the Re-
spondent, alleging that the Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1), (3),
and (5 ) and Section 2 (6) and (7) of the National Labor Relations Act as
amended, herein called the Act.
With respect to the unfair labor practices, the complaint alleges that: (1)
From on or about May 1, 1951, the Respondent engaged in certain acts which
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act; (2) that on or about May 1, 1951, a
majority of the Respondent's employees in an appropriate unit designated and
selected the Union as their representative for the purposes of collective bar-
gaining; (3) that at all times since said date the Union has been the represen-
tative for the purposes of collective bargaining of a majority of the employees
in the appropriate unit; (4) that the Respondent on or about June 18, 1951, and
at all times thereafter has failed and refused to recognize and to bargain collec-
tively with the Union as the exclusive representative of its employees in the said
unit ; (5) that the Respondent on or about June 15, 1951, discharged and there-
after refused to reinstate Charles White and Hubert Fenner because they engaged
in concerted activity with other employees for the purpose of collective bargain-
ing or other mutual aid or protection; (6) that on or about June 15, 1951, em-
ployees Henry Spruill, Otto Spruill, J. J. Spruill, Harold F. Fenner, and Charlie
Andrews ceased work concertedly and went on strike and that said strike was
caused and prolonged by the Respondent's unfair labor practices; and (7) that
on or about June 15, 1951, the Respondent discharged said employees who went
on strike and thereafter refused to reinstate said employees because of their
actual or suspected affiliation and sympathies with or membership in or assistance
to the Union, or because they had participated in the strike.
The Respondent filed an answer in which it admitted the jurisdictional allega-
tions of the complaint, but denied the commission of any unfair labor practices.
The Respondent filed an amended answer at the hearing.
Pursuant to notice a hearing was held at Columbia, North Carolina from
January 7 to 10, 1951, inclusive, before the undersigned Trial Examiner. The
General Counsel and the Respondent were represented by counsel, and the Union
by its representative. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
all parties. At the start of the hearing, the Respondent moved to dismiss the com-
plaint on the ground that the complaint was based on charges filed by the Union
and that there was no "reasonable showing" that the Union was the bargaining
agent for the Respondent's employees. The motion was denied. The General
Counsel moved to amend the complaint ; the motion was granted without objec-
tion. At the close of the General Counsel' s case the Respondent moved to dis-
miss the allegations of the complaint having to do with the alleged refusal to
bargain. Ruling on the motion was reserved. The Respondent renewed its mo-
tion to dismiss at the close of the whole case. Ruling on the motion was again
reserved. The motion to dismiss is disposed of as hereinafter indicated.
S. D. COHOON & SON 971
Although all parties were afforded an opportunity to present oral argument
at the conclusion of the case, counsel did not avail themselves of this opportu-
nity. Counsel for the Respondent has filed a brief with the Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
S. D. Cohoon and D . F. Cohoon are partners doing business under the trade
name and style of S. D . Cohoon & Son , having their office and place of business
at Columbia , North Carolina , where they are engaged in the procurement, han-
dling , processing, and sale of rough lumber.
In the normal course and conduct of its operations , Respondent annually sells
finished products valued in excess of $90,000 , of which approximately 60 per-
cent is sold , transported , and delivered in interstate commerce to and through
States of the United States other than the State of North Carolina.
The Respondent admits in its answer that it is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Woodworkers of America, CIO, is a labor organization which
admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events; interference, restraint, and coercion
About the middle of March 1951, Bruce Davis and J. R. Light, representatives
of the Union, commenced organization of the employees of a number of lumber
concerns in the Columbia area. The first meeting of the Union was held on
April 17 in an "alley" in the colored section of Columbia. Starting on May 8
and after some three or four meetings were held in the alley, the Union's meet-
ings were held in a colored church. These meetings were attended by the em-
ployees of the various companies involved in the Union's organizational cam-
paign.
On Saturday, June 2, S. D. Cohoon had a conversation with J. J. (Jesse)
Spruill , an employee of the Respondent and a member of the Union. Con-
cerning this conversation, Spruill testified credibly:'
Mr. S. D. Cohoon asked me did I know who was with the Union, who was
the leader, said there was bound to be one, and I told him I didn't know,
and he asked me did I belong to the Union, I told him no sir I didn't, and
'Concerning the same conversation , Cohoon testified that Spruill was "drunk as usual,"
and that:
Be.wanted to borrow money, see , and I told him, I said I am not going to loan you
any money today ; well , he said you are going to be sorry if you don't lend me money
and I said the best thing you can do is to go on out right now, and he kept staying
around arguing until I led him to the door and then he said there is one - thing
about it, I will go get my Union man and he will make you loan me some money ; and
I said you nor your - - Union man neither one can make me loan you money.
Spruill admitted that he got drunk "every Saturday" ; but testified that he had not had a
drink at the time of the conversation, that be went to Cohoon for the purpose of borrowing
money for whiskey , and that Cohoon loaned him the money . Spruill impressed the under-
signed as the more reliable and credible witness.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he said if you know, if I find out, let him know and he will get rid of him
and if the Union comes in he will shut down his mill.
It is found that Cohoon 's statement to Spruill constitutes interference,
restraint , and coercion.
At some time either during the latter part of May or about June 1, an
unidentified woman interviewed the employees privately in the Respondent's
office. The employees were sent to the office one at a time by D. F . Cohoon, who
told them that the woman wanted to talk to them . She asked each employee
his name and if he belonged to the Union . She told the employees her name,
but it does not otherwise appear that she stated her business to them'
It is not found that the above interrogation constitutes interference because,
in my opinion , the evidence is not sufficient to hold that the unidentified woman
was acting as an agent of the Respondent.
A union meeting was held at the church in the colored section of Columbia
on the night of June 5. During the meeting and shortly after 8 p. m., D. F.
Cohoon drove by in an automobile at about 5 miles per hour . As he passed,
he looked toward the church.'
Another meeting of the Union was held at the church on Tuesday night, June
12. Cohoon again drove by the church in his automobile while the meeting
was in session . However , on this occasion he was accompanied by J. A . Harrell,
fire chief of Columbia , James Swain , a member of the fire department , and the
night policeman of Columbia . There is considerable conflict in the testimony
concerning this incident.
Davis testified , in substance , that during the meeting he heard a horn blowing ;
that when he went to the door of the church , he saw Cohoon in an automobile
which was not in motion at the time ; that he heard Cohoon refer to him as
"that old grey headed man standing up there" ; that Cohoon then made a remark
about the Union, using some profane language ; that as he walked toward the car,
Cohoon said , "- -, if you want my license number there it is"; that as he
attempted to note the number, Cohoon started his car forward and then backed
it up; that he (Davis ) said , "Now, my wife is in this [Davis '] car and if
you use any more of that vile language , I am going to ask that police officer
in that car to lock you up"; and that at the urging of the policeman Cohoon
drove away . It is undisputed that a number of persons who were attending
the meeting, including employees Charles White and Hubert Fenner, came out
of the church and stood nearby as Davis and Cohoon spoke to one another'
Cohoon, Harrell, and Swain testified to the effect that the members of the
fire department had regular weekly meetings on Tuesday night; that after the
meetings it was the custom to inspect or survey certain districts of the town,
particularly with respect to "water holes" ; that a water hole near an abandoned
road which entered into the same street on which the church was located had
been under consideration for some time ; that it was decided to survey the
i Several witnesses testified that the woman said she worked "in behalf of the union."
From the testimony of all the witnesses for the General Counsel, it does not appear that
the woman asked the employees any questions other than the above. H. T. Davenport,
owner of a building supply business in Columbia, testified credibly that during the spring
of 1951 a Miss Lona Glidewell, an inspector for the "Wage and Hour Section," made an
inspection of his company
P Willoughby Midgett, who was not an employee of Respondent, testified credibly to the
above facts . Cohoon denied passing the church on the night of June 5 . His denial is
not credited.
d Light, White, Fenner, and several other witnesses for the General Counsel testified
that they heard part of the above conversation. Their testimony partially supports that
of Davis_ Light testified that he heard Davis tell Cohoon that he was going "to file
charges" against him, and that Cohoon replied , "I don 't give a - what you do."
S. D. COHOON & SON 973
approaches to this water hole after the regular meeting of the fire department
on June 12,' that as Cohoon was proceeding past the church at a slow rate of
speed they saw Davis lean over in front of the car ; that when Cohoon stopped
the car, Davis said he was going to get the license number and "file charges"
against Cohoon ; and that they then returned to the fire hall.
It is found that Cohoon engaged in surveillance of the union meetings on June
5 and 12, and that such conduct constitutes interference . In so finding, I credit
Davis' version of the incident on June 12. While the testimony of Harrell
and Swain to the effect that they were on business of the fire department is not
discredited, a finding that Cohoon was engaging in surveillance of the union
meeting is not precluded. It is significant that his car was stopped near the
church and he made references to Davis and the Union.
At about 4: 45 p. in. on June 14, S. D. Cohoon instructed Albert Jones, a sawyer-
foreman, to continue operation of the mill after 5 p. in. in order to finish loading
a truck.' At about 5 p. in. Jones told Hubert Fenner, a "log turner," that "Mr.
Cohoon said he wanted to finish this truck before we knocked off." Fenner re-
plied that he could not work overtime as he had some work to do at home. Fenner
then left the mill. Jones then directed Charles White to turn logs in Fenner's
place. White turned one log and then asked Jones where Fenner had gone. Jones
i eplied that Fenner had gone home. White said, "Well, damn if I ain't, too," and
left the mill. Jones then shut off the mill's motor and reported the facts to S. D.
Cohoon.
After Fenner and White left the mill, S. D. Cohoon had a conversation with
Otto Spruill. He offered Spruill a 10-percent wage increase if he would turn
logs in Fenner's place, and told him "not to be afraid of the Union" as he would
close the plant before he would have "any union." Cohoon also told Spruill that
he was going to discharge Fenner and White the following morning.?
It is found that Cohoon's threat to close the plant constitutes interference.
That same night Spruill told other employees that the Respondent was going
to discharge Fenner and White. The employee decided to walk off the job if
the discharges took place.
When the employees reported for work on June 15, D. F. Cohoon discharged
Fenner and White. At a prearranged signal from Hubert Fenner, employees Otto
Spruill, Henry Spruill, Harold Fenner, and Charlie Andrews ceased work and
left the mill.' Cohoon told White he was discharged "for not working after live
o'clock."
On June 18, Light, accompanied by the above employees, went to the Respond-
ent's office and met with S. D. Cohoon and D. F. Cohoon.' Light presented to
S. D. Cohoon the following letter from Davis :
This will introduce Mr. J. R. Light, International Rep., of the International
Woodworkers of America, CIO, who will discuss with you the possibility of
eliminating any other friction which may arise in the future concerning
your employees.
The undersigned Labor organization claims to represent your employees
for the purposes of collective bargaining as provided by the Taft-Hartley
B Employee Wilbur Fenner , a witness for the General Counsel , testified that be saw
Cohoon pass the church twice on the night of June 12, and that on the second occasion he
heard Cohoon mention the fire department and say, "I am checking water holes."
P The undisputed evidence discloses that it was the custom to work overtime when the
loading of a truck was not completed by 5 p . m., the normal quitting time ; and that such
overtime work frequently occurred.
4 Spruill testified credibly to the above conversation.
8 Jesse Spruill , who was named in the complaint, did not report for work on June 15.
N Jesse Spruill went to Respondent 's plant but did not enter the office with the other
employees.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. We therefore request that you recognize said Labor organization in
such a capacity and deal with it as representative of your employees per-
taining to all matters as wages, hours and conditions of employment.
Your employees, including those terminated, Hubert L. Fenner, and
Charles White and those who engaged in concerted activity on behalf of
the discharged committee, namely Harold F. Fenner, Jesse J. Spruill, Charlie
Andrews, Otto Spruill and Henry Spruill are able, willing and ready to
assume their obligations for employment with your company and herewith
present themselves for restoration of employment with your company with-
out prejudice to their rights and privileges formerly enjoyed.
Please advise me immediately at the above address what steps you intend
to take regarding the above matter.
After Cohoon read the letter, he stated, in substance, that the "Union hasn't
got anything to do with this place"; that "None of these boys had not been doing
anything the last 3 or 4 weeks . . . it is a wonder they didn't drop something
on their foot and mash it off" ; and that "all of you are just a - bunch of
troublemakers." Light replied,
As that letter said , and I will tell you again my mission here this morning
is to tell you these men here, the two that were discharged and those that
struck in protest of those discharged, are presenting themselves here this
morning, ready and willing and able to go to work, they are applying now
unconditionally, any and all of them to reinstatement to their former jobs.
When asked by Light the reason for the discharge of Hubert Fenner and White,
Cohoon stated "they walked off the job two minutes before quitting time." '0
At the conclusion of the meeting, Cohoon stated, "I am not going to put [the
employees] back today, I will think it over and let you know."
Jesse Spruill returned to work for the Respondent on June 19.
Under date of July 2, 1951, R. I. Mintz, Respondent's attorney, wrote the
following letter to Davis :
The writer has been employed to represent S. D. Cohoon & Son of Columbia
in the matter of the charges now pending before the National Labor Rela-
tions Board. The writer has advised Mr. Evans of this employment and
will undertake to answer the charges filed within the next day or so. The
same date the charges were filed, you advised my client by letter that your
organization claimed to represent its employees and requested recognition.
I am not in a position to formally recognize your organization as bar-
gaining agent for the Cohoon employees, however, I would like to discuss
informally the matter of the charges and the requested matter in your letter
dated June 18 as early as we could get together. I did not know Mr. Light's
address or I would have attempted to contact him by telephone on this before
I left Columbia Friday night. As the matter now stands , I tentatively plan
to go back to Columbia on the 12th or as soon as I can get through with the
Elizabethtown meeting starting the morning of the 10th.
If you are going to be in or near this section before this date, I would
be very glad to talk with you about this case. In the meantime I have ad-
vised S. D. Cohoon & Son not to replace permanently the affected employees
until I can confer with you or with Mr. Light . I am very hopeful that we can
"Penner testified that he left work on June 14 at 5 p. m. White testified that Jones
asked him to turn logs after 5 p . m. Cohoon testified that the mill was shut down at 4: 58
p. in., according to his watch . Jones testified that White left the mill at about 4: 58 p. in.
Employee Charlie Midgett testified that both Fenner and White worked until 5 p. in.,
but that they left the mill while the motor was still running.
S. D. COHOON & SON 975
settle this matter promptly. I might add further that I was not employed
until the night of the 29th and knew little or nothing of the facts until
that time.
I am mailing you an extra copy of this letter in order that you might
forward it to Mr. Light if you see fit, and I am also mailing Mr. Evans a
copy.
Thereafter and on July 12, the Union's representatives, accompanied by
George Evans, a representative of the Board, met with Mintz and the Respond-
ent at the latter 's office. Davis made a "continuing request" for reinstatement
of all employees. He also requested that the Respondent recognize the Union
as the collective bargaining agent. The Respondent refused to reinstate the
employees and questioned the Union's majority. The Union did not offer any
proof of majority 11
On July 17, 1951, Mintz sent the Union the following letter :
In your letter of June 18, 1951, you requested that the subject company
recognize the IWA-CIO as the representative of the company's employees
in all matters affecting wages, hours , and conditions of employment. You
stated in this letter that this labor organization "claims" to represent the
company's employees for the purpose of collective bargaining.
The company's position is that you have not presented adequate and
reasonable proof of a majority authorization. Before this company will
recognize the IWA-CIO as the bargaining agent for its employees, we must
insist that you present adequate and reasonable proof of your authority
to represent the employees.
The Union thereafter did not answer Mintz ' letter or make any attempt to meet
with the Respondent.
Under date of July 18, the Respondent sent identical letters to all of the
employees named in the complaint, excepting Hubert Fenner and Charlie
Andrews," as follows :
You are offered employment at this company's saw mill in Columbia, com-
mencing Monday A. M. at seven o'clock ; provided however, you advise by
11 A. M. Saturday July 21 your acceptance. Those accepting employment
will be paid 75¢ per hour.
Copies of the letters were sent to the Union and the Board. None of the
employees answered the Respondent's letter or reported for work as directed.
Shortly after receiving copies of the Respondent's letters, Davis sent a letter to
the Respondent in which he charged :
You had evidence that not a single one of the workers whom you sent letters
were in Columbia, with the exception of Henry Spruill who is employed by
Tyrrell County Lumber Company. Hubert Fenner, the only one of these
men left in town and who was fired by you and who is not employed was not
forwarded a letter by you to return to work.
The Respondent did not answer Davis' letter.
On a Monday during about the middle of August 1951, Otto Spruill went to
Respondent's office and applied to S. D. Cohoon for reinstatement. Cohoon
asked him if he would vote for the Union if there was an election. Spruill told
him that he would vote for the Union. Cohoon refused to reinstate Spruill,
11 The above facts are based upon the credited portions of the testimony in this connec-
tion of Davis, Light, S. D. Cohoon, and D. F. Cohoon.
12 Andrews was reinstated by the Respondent at sometime during the last part of June.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
saying that there was "No need in-hiring a man like that." 13 It is found that
Cohoon's statements to Spruill constitute interference, restraint, and coercion.
B. The discharges
Hubert Fenner joined the Union on May 15, 1951; and Charles White joined
on May 25. Both were members of the Union's "Organizing Committee."
Respondent contends that it did not have knowledge of the union membership
and activities of Fenner and White, and that they were discharged because
they left the mill before quitting time and refused to work overtime. With
respect to Fenner, S. D. Cohoon testified, in substance, that about a week before
his discharge Jones told him that he (Jones) had had a quarrel with Fenner and
that either he or Fenner would have to leave the Respondent's employ ; ' that
he did not discharge Fenner then because too much time had elapsed from
the time of the incident ; and that he decided at the time that he would
discharge Fenner at the first opportunity. Cohoon further testified to the effect
that the Respondent had discharged employees when they failed to follow
orders ; and that, while White was a good worker, he felt obliged to discharge
him also in order to be consistent.
There is a dispute as to the actual time that Fenner and White left the
will. Witnesses for the General Counsel testified that they did not leave be-
fore 5 p. in. This testimony was based upon the time according to the watch
of Charlie Midgett. It appears that through custom Midgett had become the
unofficial timekeeper for the employees by giving signals for the start and stopping
of the mill's motor.15 Jones and Cohoon testified that Fenner and White left
the mill at 4:58 p. in. I do not discredit the testimony of any of the witnesses
in this connection. Jones and Midgett testified credibly concerning the time
that their watches showed.
The undisputed fact remains that Fenner and White left the mill while it
was still running and refused Jones' request that they work overtime in order
to finish loading a truck.10 While the Respondent's motives are not free from
suspicion, in view of S. D. Cohoon's remarks to Jesse Spruill and Otto Spruill and
D. F. Cohoon's surveillance of the union meetings, related above, I conclude
and find that the General Counsel failed to sustain the burden of proving
that the discharges were discriminatory. Accordingly, it will be recommended
that the cases of Hubert Fenner and Charles White be dismissed.
C. The strike
As related above, on June 15 the employees named in the complaint ceased
work and left the mill in protest against the discharges, and made an uncondi-
tional offer to return to work on June 18. The Respondent refused to reinstate
them on June 18, and did not offer them reinstatement until July 18. The
evidence shows that the Respondent had not replaced the strikers as of June 18.
13 Spruill testified credibly to the above conversation Cohoon denied the statements
attributed to him by Spruill. His denial is not credited. Spruill was reemployed by the
Respondent about November 12.
14 Fenner admitted that he had had a minor argument with Jones.
11 While the evidence is not clear on this issue, it appears that Jones was the official
timekeeper since he relayed to the employees Cohoon's instructions for the operation of the
mill . However, it further appears that Jones, in turn, issued instructions to at least part
of the employees through Midgett
19 Fenner testified that Jones replied "Okay" when he told him that he could not work
overtime Jones testified that he did not make any reply. The undersigned believes Jones
to be the more reliable and credible witness in this respect.
S. D. COHOON & SON 977
Since the strikers had not been replaced, it is unnecessary to determine
whether or not the strike originally was an unfair labor practice strike. The
employees engaged in a protected concerted activity. They struck in protest
against the Respondent's action in discharging Penner and White, which they
believed was for discriminatory reasons. Their adherence to the Union was
made clear at the meeting on June 18. It is found that by refusing to reinstate
them on June 18, the Respondent violated Section 8 (a) (3) of the Act. How-
ever, this finding does not apply to J. J. (Jesse) Spruill, since it does not appear
that he joined the strike and since the Respondent reinstated him to his job on
June 19.
It is not found that the Respondent violated Section 8 (a) (3) of the Act
when S. D. Cohoon refused to reemploy Otto Spruill during August 1951. The
undisputed evidence shows that the Respondent had as many employees at
about that time as it did when the strike started.
D. The refusal to bargain
The complaint alleges that "all employees of Respondents at their Columbia
Mill, but excluding out-of-State truck drivers, clerical employees, watchmen,
guards and supervisors as defined in the Act" constitute an appropriate unit.
The Respondent contends that out-of-State drivers should be included in the
unit, and that Henry Spruill should be excluded since he was a "temporary
employee."
As alleged in the complaint, "log haulers," truck drivers who haul logs from
the woods to the mill, are included in the unit. However, the General Counsel
contends that out-of-State drivers should be excluded.
The undisputed evidence discloses that out-of-State drivers haul lumber not
only to Norfolk, Virginia, but also to points in North Carolina. When they are
not so engaged, they perform work at the mill and haul logs from the woods.
Excepting that they usually haul lumber instead of logs, it does not appear that
their duties are materially different from those of log haulers. Accordingly,
it is found that out-of-State drivers should be included in the appropriate unit.
The Respondent's contention with respect to Henry Spruill is rejected. The
evidence shows that he started working for the Respondent during May 1951,
and continued to work until he joined the strike on June 15. The Respondent
did not claim he was a temporary employee at either the June 18 or the
July 12 meetings with the Union. Further, he was one of the employees to
whom the Respondent sent letters on July 18, offering them reinstatement.
The evidence discloses that as of June 18 there were 16 employees in the
unit found above ; " and that 8 of these employees had signed designation cards
for the Union before that date. Accordingly, it is found that the Union did not
represent a majority of the employees in the appropriate unit on and after
June 18. It is found, however, that the Union did represent a majority in the
appropriate unit on and after June 26, 1951. On that date Connie Liverman
returned to work for the Respondent. The evidence shows that he had signed
a designation card for the Union before that date.
I find that the Respondent did not refuse to bargain with the Union within
the meaning of the Act. Although the Respondent questioned the Union's
majority at the meeting on July 12, the Union did not offer any proof of its
11 This number excludes Charles White and Hubert Fenner who were discharged on June
15, as found above, but includes Rufus Jones. The undisputed evidence discloses that
Jones was on a leave of absence on June 18. It also does not include Connie Liverman.
He testified that he had quit his job some few days before the strike . The evidence shows
June 12 as his last day of work before June 18.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claim . Again , Mintz raised the question in his letter of July 17 to the Union.
While the letter did not expressly suggest a meeting with the Union and a
willingness to bargain , by its terms it implied as much , provided the Union
presented "adequate and reasonable proof" of its majority. From a recent
decision of the Board it would appear that the Union by ignoring Mintz' letter
was not diligent and reasonable in its attempts to meet and reach an agreement
with the Respondent 18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the Respondent on June 18, 1951, failed and refused
to reinstate Henry Spruill, Otto Spruill, Harold F. Fenner, and Charlie Andrews.
It will be recommended that the Respondent make whole each of the above
employees for any loss of pay he may have suffered by reason of Respondent's
discrimination by payment of a sum of money equal to that which each would
have earned as wages from the date of the discrimination to the date of the
offer of reinstatement, July 23, 1951, or to the actual date of reinstatement in
the case of Charlie Andrews,1° less his net earnings during said period. Said
loss of pay shall be computed on the basis of each separate calendar quarter,
or portion thereof, during the period from Respondent 's discriminatory action
to the date of the offer of reinstatement. The quarterly periods, herein called
"quarters," shall begin with the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to that which
the employees would normally have earned for each such quarter or portion
thereof, their respective net earnings, if any, in other employment during that
period, Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other quarter. In order to ensure compliance with the
foregoing back pay and reinstatement provisions, it is recommended that Re-
spondent be required upon reasonable request, to make all pertinent records
available to the Board and its agents.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following :
CONCLUSIONS OF 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 the
employees named above, the Respondent has engaged and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
is J. B. Wood, et ai., 94 NLRB 565.
16 The evidence shows that Andrews was reinstated during the last part of June 1951.
The actual date can be determined in an enforcement proceeding or agreement.
E-Z MILLS, INC. 979
3. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging 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.
[Recommendations omitted from publication in this volume.]
E-Z MILLS, INC. and AMALGAMATED CLOTHING WORKERS OF AMERICA,
CIO. Case No. 1-CA-1036. December 10, 19,52
Decision and Order
On April 14, 1952, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices in
violation of Section 8 (a) (1) and (3) of the Act, and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.'
The Board 2 has reviewed the rulings made at the hearing and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions, the supporting brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions and modifications : 3
1. We agree with the Trial Examiner that the Respondent com-
mitted independent violations of Section 8 (a) (1) of the Act by
threatening to shut down the plant rather than deal with the Union,
and in other respects by threatening employees with reprisal because
of their union activities, and by interrogating employees with respect
to their union activities and sympathies. Likewise, we concur in
I On October 28, 1952, the General Counsel filed with the Board a motion to reopen the
record and remand the case to permit the General Counsel to amend the complaint to in-
clude therein further alleged unfair labor practices occurring after the close of the
hearing, and to reopen the hearing to litigate these additional allegations . However, on
November 4 , 1952, the General Counsel filed a "withdrawal" of this motion . Accord-
ingly, we herein grant the General Counsel 's request to withdraw his motion to remand
2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board had delegated its powers in connection with this case to a three -member panel.
[ Members Houston , Murdock, and Styles].
Without affecting our agreement with the Trial Examiner , we note the following
minor correction of the Intermediate Report : Foreman Russell did not testify , as inad-
vertently related by the Trial Examiner (p. 955 ), that "he was unable to take disciplinary
action [against Riley ] . . . because as a foreman he would not know what to do "
Russell's testimony was that, "As a foreman , I would know what to do."
101 NLRB No. 164.
242305- 53-63