Southern Wood Preserving Co.

National Labor Relations Board - Board DecisionsOct 31, 1942

45 N.L.R.B. 230 (N.L.R.B. 1942)

In the Matter Of SOUTHERN WOOD PRESERVING COMPANY and DISTRICT 50, UNITED MINE WORKERS OF AMERICA, C. I. O. Case No. C-00,09.-Decided October 31, 19/.9 Jurisdiction : lumber processing industry. Unfair Labor Practices Interference, Restraint, and Coercion: disparagement, coercion, and execution of union-shop contract with rival union not having majority. Discrimination: discharge of employee because of union activity. Remedial Orders : reinstatement and back pay awarded employee discriminated against. Mr. Alexander E. Wilson, Jr., and Mr. Dan M. Byrd, Jr., for the Board. Mr. Grover Middlebrooks, of Atlanta, Ga., for the respondent. Mr. N. B. Maxwell, of Birmingham, Ala., for the Union. Mr. Raymond J. Heilman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE 0 Upon an amended charge duly filed by District 50, United Mine Workers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated April 28, 1942, against Southern Wood Preserving Company, East Point, Georgia, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of hearing thereon, were duly served upon the respondent and the Union. The complaint alleged in substance that the respondent: (1) on or about October 2, 1941, discharged and thereafter refused to re- employ Otis Turner because he bad joined and assisted the Union and engaged in concerted activities in its behalf; (2) since Septem- ber 1, 1941, warned and threatened its employees not to become 45 N L. R. B, No. 40. 230 SOUTHERN WOOD PRESERVING COMPANY 231 members of the Union and to withdraw from membership therein, promised them better jobs or higher wages if they refused to join the Union, threatened to discharge the leaders of the Union, and made statements derogatory to the Union, its leaders, and represent- atives ; and (3) by the foregoing conduct, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thereafter, on May 11, 1942, the respondent filed its answer, denying that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held on May 11 and 12, 1942, at Atlanta, Georgia, before Josef L. Hektoen, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by a rep- resentative. All parties participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the close of the Board's case, counsel for the Board moved to amend the complaint to conform to the proof. The Trial Examiner granted this motion without objection. During the course of the hearing, the Trial Examiner made rulings upon other motions and upon objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 13, 1942; the Trial Examiner issued his Intermediate Report, copies of which were duly served on the parties. He found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and` Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act, including the reinstatement with back pay of Otis Turner. The respondent, on July 26, 1942, filed exceptions to the Inter- mediate Report and a supporting brief. Oral argument before the Board was not requested by either the respondent or the Union. The Board has considered the respondent's exceptions and its brief and, insofar as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Southern Wood Preserving Company is a Georgia corporation en- gaged in the processing of lumber and lumber products. Its prin- 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cipal office and place of business is at East Point, Georgia. It also operates plants at Macon, Georgia, and Chattanooga, Tennessee. This proceeding is concerned solely with the East Point, Georgia, plant. Approximately 50 percent of the raw materials used by the respondent are obtained from States other than Georgia. During a normal busi- ness year, the gross sales of the East Point plant ainount to ap- proximately $1,735,000. Ninety percent of the respondent's finished products are shipped to points in other States. The respondent concedes that, for the purpose of this proceeding, it is engaged in interstate commerce, within the meaning of the Act. H. THE ORGANIZAIION INVOLVED District 50, United Mine Workers of America, is a labor organization admitting to membership employees of the respondent at its East Point, Georgia, plant. III. TIIE UNFAIR LABOR PRACTICES A. Background of labor activities On October 11, 1939, and July 15,' 1940, the respondent and Inter- national Union of Operating Engineers, affiliated with the Ameri- can Federation of Labor, herein called the, Engineers, entered into collective bargaining contracts covering the respondent's skilled and colored employees, respectively. The latter contract provided that it should remain in effect until October 11, 1941. The first contract was superseded on October 14, 1940, by one which covered the white employees. All the contracts provided that they should be renewed for additional periods of 1 year from their expiration unless either party should notify the other to the contrary in writing at least 30 days prior to their respective expiration dates. All provided for a union shop and check-off of clues. In September 1941, the Union conducted a membership drive among the respondent's employees at East Point, and, on September 17, it informed the respondent by telegram that it represented a majority of the employees. The respondent requested "factual evi- dence" of the claim of majority representation and, on September 18, the Union filed with the Board a petition for investigation and certification of representatives. On September 29, after notice of the Union's claim of majority representation and while the petition for certification was pending before the Board, the respondent renewed its contracts with the Engineers by entering into a single agreement covering white and colored employees. At the request of the Engineers, the respondent had closed its plant for 2 or 3 hours in order to have its employees attend a meet- SOUTHERN , WOOD PRESERVING COMPANY 233 ing of the Engineers at which the contract which was then under negotiation was to be voted upon. The respondent also furnished a truck to transport the employees to the meeting hall . Further- more, employee Childs testified that Foreman McCarty advised him and other employees to attend the meeting if they wanted to keep their jobs and that Foreman George and employee McGourik, a mem- ber of the Engineers ' committee, advised, him to the same effect. George denied having, thus advised Childs. Neither McCarty nor McGourik testified. We credit the testimony of Childs and do not attach credence to George's denial. The respondent 's attitude toward the Union at this time was inarkedly different . According to the uncontradicted testimony of employee Willis, who was active in the Union , Foreman McCarty, apparently referring to the fact that cards and stickers of the Union had been posted around the plant , remarked to Willis sometime in September 1941 that "if the foolishness did not stop" something would have to be done about it. About October 2 , 1941 , the Union delivered to the respondent it petition dated September 28, 1941, apparently signed by 166 em- ployees , requesting that the respondent cease collecting dues for the Engineers from the pay of those signing, since the Engineers no longer represented a majority of the employees . The petition was accom- panied by it letter from the Regional Director of the Congress of Industrial Organizations, asking that until the matter of representa- tion of the respondent 's employees was authoritatively determined, the respondent deduct no further clues from the pay of those who signed the petition and "who have affiliated themselves with our Union." On October 29, 1941, it hearing was conducted by the Board on the Union's petition for investigation and certification . On November 19, 1941, pursuant to its contract with the Engineers and at the latter's request, the respondent discharged 19 employees because they had ceased to be members of the Engineers . The 19 employees ' were sub- sequently declared eligible to vote in the election ordered by the Board in the proceeding on the Union's petition . On December 29, 1941, the election was held, and resulted in a majority for the Union., On December 30, 1941, the respondent reinstated the 19 discharged employees with back pay and, on January 19, 1942, entered into it union shop contract with the Union covering the East Point em- ployees. This contract remains in effect. ' On November 28, 1941, the Board issued a Decision and Direction of Election in the representation proceeding (37 N L It R 25) and , thereafter , on December 18, 194], a Supplemental Decision and Amendment to the Decision and Direction of Election (di N L. 1: It 31) and on Junuuv 27, 1942, the Union was certified by the Boaid a^ the exelu^ne icpresentative of the respondent ' s East Point employees ( 38 N L It B (317) 234 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD B. The discharge Otis Turner was employed by the respondent as a pole brander on August 15, 1936, at 25 cents per hour. Thereafter, his rate of pay was increased to 50 cents per hour. Later he became a pole checker. Early in the summer of 1940, he was assigned by Superintendent Sullivan to the position of "black line checker," 2 with greater respon- sibility than he had had previously and, as Sullivan testified, with the expectation that he would eventually be made a foreman. In September 1941, at' the instance of Turner, the latter, together with four other employees of the respondent, i. e., Luther J. Turner, and employees Harbin, Willis, and Smoke, attended a special meeting of the union employees of the respondent's Chattanooga plant and obtained information concerning the terms of a contract which the Union had for the employees of that plant. The contract provided for higher wages in some departments at Chattanooga than were be- ing paid at East Point. Immediately after this trip, pursuant to arrangements made with Turner, a group of Chattanooga employees visited East Point and explained to the respondent's employees there the details of their employment relationship with the respondent at Chattanooga. Subsequently, an intensive campaign was carried on to organize the East Point employees for-the Union. In this cam- paign, Otis Turner was the outstanding leader. Turner spent much time during the lunch hour and after working hours in September 1941 soliciting members for the Union. He estimated that he had signed up some 150 to 200 employees. In addition, he circulated the petition which the Union presented to the respondent on or about October 2, stating that the Engineers no longer represented a major- ity and requesting the cessation of the check-off under the contract with the Engineers. On October 4, 1941, about 2 days after the petition had been received by the respondent, Turner was discharged. -Turner's credible testimony concerning his discharge and the events which followed was not contradicted and is as follows : On October 4, 1941, Sullivan informed him that he had made a'shipping mistake and that he had to be discharged. Turner expressed regret, offered to repay whatever expense the mistake had cost the respondent, and prom- ised to try his best to avoid further mistakes if he were given another chance. Sullivan, however, persisted in his decision. After his dis- charge, Turner, with the assistance of Gilman and Maxwell, both of the Congress of Industrial Organizations, made several unsuccessful 2 In this position , his duties included mainly the direction of the loading of outgoing shipments. He also took quarterly inventories of materials ordinarily ; he did not take such an inventory in September 1941, when, according to the evidence, the work of ship- ping was very heavy. The term "black line" is used at the East Point plant to designate the locality in which shipments are loaded. SOUTHERN WOOD PRESERVING COMPANY 235 requests of the respondent's president that he be reinstated. Within a week after his discharge, Ashbar, an inspector employed by the Forest Products Inspection Company in the respondent's yard at East Point, asked Turner by telephone whether he would care to do some "extra" work for him. When Turner replied in the affirmative, Ashbar told Turner to meet him at the respondent's office the next morning. On Turner's arrival at the respondent's office, he observed Ashbar talking with Sullivan. Ashbar then called Turner into an office and asked him to wait there. On Ashbar's return, he told Turner that he had not known earlier that Turner was "messed up in any labor trouble" and that he could not employ him. The respondent, in its answer, alleged that it had discharged Otis Turner "because he was an inefficient and careless shipping clerk, in that he made mistakes which were annoying, troublesome, and ex- pensive to respondent and respondent's customers." Superintendent Sullivan testified that the reason for Turner's discharge was "general inefficiency," explaining that early in 1941 there was a "let-down" in Turner's work and that he had repeatedly made shipping mistakes, the last of which occurred on October 2, 1941. There is no dispute that Turner made three shipping mistakes, occur- ring respectively on June 25 and 26, and October 2, 1941. The three shipments in question were made to the same purchaser. It is -ap- parent that these errors caused but slight expense to the respondent. The first incorrect shipment was accepted by the purchaser and re- shipped by it to a warehouse it owned. The respondent reimbursed the purchaser for the expense of the reshipment, the amount of which the record does not show. The second incorrect shipment also was accepted by the purchaser, which then ordered an additional quantity of the kind of materials which had been incorrectly shipped. The shipment of October 2 was intercepted at the Atlanta freight depot and brought back to the East Point plant by truck at a hauling charge of $1, and a replacement shipment was made. It does not appear that the business relations between the respondent and its customer were affected in consequence of these errors. Sullivan was unable at the hearing to specify dates or other details of the additional mistakes which he claimed Turner had made. With respect to Turner's mistakes of June 25 and 26, Sullivan testified that, after learning of them, he warned Turner that if he could not handle shipments accurately, some one who could would be put in charge of shipping, and that on July 26 he and Deiters, plant manager, told Nixon, the local representative of the Engineers, that Turner had carelessly made two mistakes in 2 days and had not kept the men under him working properly and that "the thing had come to a head." Deiters testified to the same effect concerning the alleged conference of July 26, 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adding that he and Sullivan told Nixon that Turner was incompetent and that they wanted to discharge him, but that, at Nixon's request, he and Sullivan agreed to give 't'urner another chance. Nixon testified to the same effect as Deiters and also that he informed Turner that Deiters and Sullivan had agreed to give him another chance. Turner denied that he had ever had a conversation with Nixon. Turner testified that Sullivan informed him for the first time in June 1941, that he had made a shipping error, that he did not specify The nature of the error and that he told hint not to feel badly about it. Turner testified also that Sullivan told him on this occasion that he was domg a "darned good job" in sending out as much material as he had. According to Turner no mention was subsequently made to him by Sullivan of any other errors until October 4, when Sullivan told him that he was being discharged for having made a shipping mistake. Turner explained at the hearing that, during the period in which the mistakes had occurred, he supervised from 15 to 25 ship- iiieuts a day and frequently worked as late as midnight or 1 a. m., although his prescribed working hours were from 7 a. m. to 3: 30 p. m. Sullivan admitted that Turner worked without assistance in his supervision of shipping and that in September 1941, when shipping comprised 99 percent of Turner's work, he was on duty from 50 to 60 hours per week, although his regular workweek was one of 40 lours. Willis, a former employee of the respondent, testified that in Sep- tember 1941, at a meeting attended by Deiters and Sullivan, repre- senting the respondent, and by Luther J. Turner and himself, Is members of the shop committee of the Engineers. he requested an in- crease of pay for Turner and that Sullivan replied that Turner was a '`damn good man" but that "lie wanted him to work up to where the job would pay more befcre he gave him - raise." Luther J. Turner corroborated Willis' testimony and added that, immediately after the meeting, Sullivan, in a private conversation, repeated to hun in substance the statements he had made to Willis concerning Otis Turner. Sullivan `did not deny the testimony of Willis and Luther J. Turner. Deiters testified that the Engineers had tried to obtain pay increases for all employees but that Otis Turner 'had not been singled out or mentioned by name at the meeting. We accept the testimony of Willis and Luther J. Turner. as did the Trial Examiner. We do not credit the testimony of Sullivan that he warned Turner about his June mistakes, for, as already indicated, little expense to the respondent was involved and Sullivan admitted that Turner ha d been working unusually long hours during that period. Moreover, had Sullivan contemplated Turner's discharge for these errors, lie would not 3 months later have characterized Turner to a committee SOUTHERN WOOD PRESERVING COMPANY 237 of the Engineers as a "damn good man." For the same reasons, we do not believe that at a conference held on July 26 Sullivan and Deiters informed Nixon of their decision to discharge Turner for his June errors but that, at Nixon's request, they agreed to give him another chance. In rejecting as incredible the testimony of Sullivan, Deiters, and Nixon as to the July 26 conference, we note also that a period of a month had elapsed between the date of the June errors and the date of the conference, that the testimony of Sullivan and Deiters is not substantially similar, and that Nixon, as the local rep- resentative of the Engineers, was hostile to Turner because of his efforts to establish the Union as a serious rival to the Engineers." We believe Turner's testimony that Sullivan did not warn him about his errors prior to his discharge and that Nixon never transmitted to him any warning on or after July 26. We find, as did the Trial Examiner, that the respondent did not regard as serious, and indeed overlooked, the errors committed by Turner in June. With respect to the shipping mistake of October 2, we find, from the evidence already considered, that it did not alone or together with his previous mistakes constitute the basis for his discharge. The respondent asserted at the hearing,'but not in its answer, as au additional ground for the discharge, that Turner had violated the respondent's rule prohibiting smoking and had permitted similar infractions by the men under him. We find this contention to be with- out validity as there is substantial evidence that no violation was com- mitted by Turner himself, or permitted by him, and because Superin- tendent Sullivan admitted that he had no intention of discharging anyone for violating the rule against smoking and that he had not in fact discharged Turner for such violation. The hostility of the respondent to the Union and its favoritism toward the Engineers are apparent from the execution of a new union- shop contract with the Engineers in, the face of the Union's claim of majority representation, and while the petition for investigation and certificai;ion of representatives was pending before the Board, from the fact that it provided transportation and compelled its em- ployees, by threats of dismissal, to attend a meeting of the Engineers to vote on the said contract, and from the statements of disapproval made by Foreman McCarty of the Union's efforts to organize the employees. Turner had initiated, organized, and successfully led the campaign of the Union in opposition to the Engineers and had cir- culated the petition, presented to the respondent approximately 2 days before his discharge, in which the Union claimed majority rep- 8 The hostility of the Engineers is apparent from the uncontradicted testimony of Fore- man 1arlow that he heard Preston Simon, a member of the Engineers Committee, declare that if the "A. F. L. Union would fire Turner ," he, Simon, could handle the negro employees. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resentation and requested cessation of the check-off under the contract with the Engineers. Moreover, immediately after a conversation with Sullivan, Ashbar suddenly changed his decision to employ Turner, explaining that he had not known earlier that Turner had been "messed up in any labor trouble." We find, consequently, as did the Trial Examiner, that the respond- ent, by discharging Otis Turner, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find further that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by disparaging the Union's efforts, by persuading and compelling its employees to attend a meeting of the Engineers at which the new union-shop contract was to be voted on, thereby ac- cording support to the Engineers, and thereafter and under these circumstances by entering into a new union-shop contract with the Engineers while the Union's petition for investigation and certification was pending before the Board. IT. THE EFFECT OF TILE UNFAIR LABOR PRACTICES UPON COMMERCE We find that 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 certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that the respondent discharged Otis Turner be- cause of his activity in behalf of the Union. To effectuate the policies of the Act, we shall order the respondent to offer Otis Turner immediate and full rein'statement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges and to make him whole for any loss of pay he may have suffered by reason of the respondent's discrimination by paying to him' a sum of money equal to the amount he would normally have earned as wages from the date ' of his' discharge to"`the date of SOUTHERN WOOD PRESERVING COMPANY 239 the offer of reinstatement, less his net earnings 4 during such period. Upon the basis of the above findings of fact, and upon the entire - record in'the case, the Board • makes the following: CONCLUSIONS OF LAW 1. District 50, United Mine Workers of America, is a labor organ- ization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Otis Turner, and thereby discouraging membership in the Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (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. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Southern Wood Preserving Company, East Point, Georgia, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in District 50, United Mine Work- ers of America, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise bf their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 4 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union , Local 2590, 8 N L R B 440 . Monies received for work peiforined upon Federal, State, county, municipal, or other work-relief projects shall be considered as eainings See Republic Steel Corporation v. N. L It. B., 311 U. S. 7. 240 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the pct: ' (a) Offer to Otis Turner immediate and full rcinstatenient to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Make whole Otis Turner by payment to him of a stud of money equal to the amount he would normally have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 'during such period; (c) Post immediately in conspicuous places in its East Point, Georgia, plant, and maintain for a period of at least sixty (60) con- secutive days from the date of posting, notices to its employees stat- ing (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the afirmati%e action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that its employees are free to become or remain members of District 50, United Mine Workers of America, and that the respondent will not discriminate against any employee because of membership or ac- tivity in that organization; (d) Notify the Regional Director for the Tenth Region, in writ- ing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. MR. WDr. M. LEisERSON took no part in the consideration of the above Decision and Order.