W. T. Harvey Lumber Co.

National Labor Relations Board - Board Decisions

Apr 2, 1974

209 N.L.R.B. 983 (N.L.R.B. 1974)

W. T. HARVEY LUMBER CO. 983
W. T. Harvey Lumber Company and Distributive
Workers of America , Local 67. Case 10-CA-10218
consideration of the liriefs filed by the General Counsel,
the Union, and the Respondent, I make the following:
April 2, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 14, 1973, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs. The Respondent filed an answering brief to
exceptions of counsel for the General Counsel and
Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
' ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at Columbus, Georgia, on September 5,
6, 7, 8, and 10, 1973, upon a complaint issued on July 11,
19731 (based upon a charge filed June 8, and amended
June 19). The complaint alleged that the Respondent, W.
T. Harvey Lumber Company on or about March 6,
discharged 17 named employees in violation of Section
8(a)(1) and (3) of the Act. Respondent's answer denies the
commission of any unfair labor practices, but admits
allegations of the complaint sufficient to justify the
assertion of jurisdiction under current standards of the
Board (Respondent, engaged in the sale and delivery of
building materials, in a recent annual period purchased
and received materials valued in excess of $50,000 in
interstate commerce), and to support a finding that the
Charging Party, Distributive Workers of America, Local 67
(herein "the Union"), is a labor organization within the
meaning of the Act.
Upon the entire record in this case, and after due
t All dates hereinafter are in 1973, unless otherwise noted.
FINDINGS AND CONCLUSIONS
1. THE ISSUES
General Counsel's witnesses assert that, on March 6,
when a group of Respondent's employees, members of a
bargaining unit represented by the Union, sought a
discussion with Respondent's manager and vice president,
Wilfred E. Gross, Jr., at the plant before work, to persuade
him to agree to a bargaining contract, Gross advised them
that they were discharged and would be replaced. The
employees state that they were not on strike at the time,
but commenced picketing after they were discharged.
Respondent's witnesses state that the employees were
picketing before Gross arrived at the plant that morning,
that Gross not only did not discharge the employees, but
did not even speak to the employees at all on that occasion
that morning, and, in support of the position that the
employees were not discharged, assert that none of the
picket signs or other publicity or public statements by
representatives of the Union or the employees for a
considerable period after March 6 made any mention of
employee discharges.
The credibility of witnesses was exhaustively litigated.
The findings made hereinafter are based upon observation
of the witnesses and consideration of their testimony, the
conflicts in the evidence, and the evidence adduced in
impeachment of witnesses. No attempt will be made to
specifically set forth each instance of conflict, disagree-
ment, or disparity in the evidence.
II. THE FACTS
A. Background
The Union was certified as the collective-bargaining
representative of Respondent's employees in an appropri-
ate unit on January 25, 1971, pursuant to an election
conducted among those employees by the Board. Respon-
dent contested the validity of the election and refused to
recognize or bargain with the Union. After appropriate
proceedings, the Board found Respondent in violation of
Section 8(a)(5) of the Act, and ordered Respondent to
bargain with the Union, W. T. Harvey Lumber Company,
Inc., 192 NLRB 737, which order was enforced by the
Court of Appeals for the Fifth Circuit on July 14, 1972, 462
F.2d 575.
Respondent and the Union entered into negotiations for
a bargaining agreement in September 1972. A number of
bargaining sessions were held prior to March 5, 1973,
without agreement on a contract. On the latter date the
parties met in Respondent's counsel's offices at noon. In
addition to the employee committee, the Union was
represented by Ralph Worrell, an international representa-
tive of the parent union, as well as Cleveland Robinson,
the president, and David Livingston, secretary-treasurer, of
the parent union. Respondent was represented by its
counsel, Youmans, Manager Gross (who had attended
209 NLRB No. 151
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only one bargaining session prior to this date) and James
R. Wheaton, Jr., then an assistant to Gross. A mediator
who had attended one or more of the prior sessions was
also present. When the session broke at 6 p.m., the Union
stated that it would report Respondent's present position
to the employees waiting at the union hall, as was the
Union's custom after bargaining sessions. When the
session resumed that evening, the Union reported that
Respondent's offer was unacceptable to the employees.
The parties continued negotiations until 2 a.m., March 6.
This was the longest of all the bargaining sessions between
the parties. Although the Respondent and the Union did
not come to an agreement on a contract, apparently some
progress was made in this late evening session . At the end
of the session, Livingston advised Gross that he would be
available in his hotel room in Columbus until 8 a.m., that
morning, to take any call from Gross, if the latter thought
there was reason that they could.get together.
Respondent's witnesses, particularly Gross, asserted that
the Union made numerous threats of a strike during the
negotiations, and particularly at the March 5-6 meeting, at
which it is stated the Union said the men were ready to
strike, that the Union was having difficulty in restraining
them, and that a strike would occur unless settlement was
reached that evening. Gross, but not Wheaton, testified
that the Union stated that there would be a strike the next
morning, if a settlement was not reached that evening.2
Union Representative Worrell and some of the employee
committee who testified agreed that strike was mentioned
during the negotiations, but denied that there was a
specific threat of a strike. Thus Worrell testified that the
Union would say of certain proposals during the negotia-
tions that Respondent was "asking for a strike." He did not
recall any statement to the effect that the Union couldn't
hold the men any longer, and asserted that it was
improbable that the statement was made. The testimony on
this point (whether the Union threatened a strike), much
stressed by Respondent, was largely conclusionary and
interpretative.3 The witnesses impressed me as having little
recollection as to context or detail on this issue . I have no
doubt that the Union put Respondent under as much
pressure as possible during this long session on March 5
and 6, impressing upon management the probability of a
strike if there was no settlement. However, I credit Worrell
and other members of the negotiating committee in their
testimony to the effect that there was no specific threat of a
strike at a certain time or day. I believe that Gross'
testimony to the contrary represents his conclusions from
the tenor of the bargaining session . Though he may have
reasonably concluded that this is what the Union intended,
I do not believe that the Union stated that there would be a
strike the following morning.
Though the local Union soon after the election voted to
give the International representative the authority to call a
strike upon his own judgment, it is significant that the local
thereafter was so uncertain of employee support that it felt
it necessary to periodically have other votes to test the
strength of the unit for a strike. After the long session
2 Wheaton stated that "neither one of them [Robinson or Livingston]
said there is going to be a strike tomorrow morning "
3 Thus 1 am convinced that the assertion of General Counsel's witnesses
ending in the early morning of March 6, with no settlement
reached, Worrell so sensed the mood of the employee
bargaining committee that he did not even suggest a strike,
but readily assented to their desire to assemble the
employees the following morning outside the plant gate,
before work, to advise them of the state of negotiations,
and to try to persuade Gross to agree to a contract.
On at least two prior occasions since the certification of
the Union, the employees had similarly gathered to talk to
Gross outside the gate in the morning about working
conditions and their desire for a contract, without
objection from Worrell to this procedure. On the last such
occasion before March 5 and 6, Gross had stated that he
objected to such public discussion with the employees.
Some of the employee committee on their way home
from the union hall after the bargaining session notified
other union members of the committee's decision that the
employees discuss the state of negotiations and confront
Gross at the plant before work, and of their desire that
none of the employees go in to work that morning before
this was accomplished.
B. Description of Respondent's Premises
It is useful to have in mind an outline of the physical
premises of Respondent's plant in discussing the occur-
rences of the morning following the bargaining session of
March 5 and 6. Several photographs and a handwritten
sketch were submitted in evidence. Respondent's offices
and yard are located on the south side of 15th street across
from a lot which apparently belongs to the city. There is a
fence across the front of Respondent's yard facing 15th
street, with a gate leading into the yard. The fence attaches
to the main office building a short distance to the east of
the gate, and the office building constitutes a continuation
of the fence. The main door to the office faces 15th street.
On the morning of March 6, Respondent had an unfenced
parking lot immediately beside and to the east of the main
office building, which lot could be entered from 15th street.
There are various buildings located adjacent to Respon-
dent's yard. One of these, on the east side of the yard, is a
long storage building, apparently of cinder block construc-
tion, which runs north and south, perpendicular to the
street and appears to abut the end of the main office
building at the north end, near 15th street. Toward the
south end of the storage building there is a door to the yard
office, facing into the yard. Running from the yard office
door down the side of the storage building, past the side
door to the main office, to the fence is a ramp or walkway,
raised 3 or 4 feet at the yard office door and sloping down
to the fence. It is accessible at the yard office door by steps.
C. Events of the Morning of March 6
1. Version of General Counsel's witnesses
The version of General Counsel' s witnesses and that of
Respondent's witnesses with respect to what happened at
the plant premises on the morning of March 6 conflicts at
to the effect that there was talk, but no threat of a strike reflects their
certainty that no specific warning of a strike was made.
W. T. HARVEY LUMBER CO.
almost every point. In summary, the evidence adduced by
the government would show that the employees began to
gather at the plant shortly before 7 a.m. that morning (their
normal starting hour was 8 a.m.). Several of them parked
on Respondent's parking lot. Two or three cars were
parked on the street, across from the plant. Most of the
employees congregated near the plant gate, on the east
side, on the outside of the fence near the point where the
ramp-walkway afforded an entrance to the side door of the
main office. Some other employees, notably one Andrew
Cunningham who the union members seem to have
mistrusted, were at different places along the street,
talking.
Respondent Manager Gross arrived at a time placed by
employee witnesses approximately between 7:45 and 8
a.m., drove through the gate, and parked his car toward the
rear of the yard? Gross came walking down the ramp-
walkway toward the side door of the office. As he
approached the employees, one of them (there is some
small dispute or uncertainty as to who) called or indicated
that they wished to talk to Gross. At this point, Gross
turned directly toward the group of employees (there is
some dispute as to how close he came and whether he
stepped off the ramp) and according to eight employee
witnesses said that they were all discharged and would all
be replaced. The employees then moved off company
property and assembled across the street. There is some
slight conflict as to whether the employees did this
instinctively, or at the spoken suggestion of one of them.
Those who had parked on the company parking lot moved
their cars and parked on the street.5 Two employees, Miller
and Home, went to call Worrell. Both Worrell and Miller
stated that the latter made the call to Worrell at his hotel
about 7:50-7:55 a.m., which Miller places as about 5
minutes after the employees were discharged.
Worrell and the employees state that Worrell met the
employees across the street from the plant very shortly
thereafter. He secured two picket signs from Horne, which
Home and some other witnesses testified Horne had been
carrying in the trunk of his car since the original strike
vote, over a year previous. The signs were part of a group
of prepared signs which had been brought from New York,
Worrell's headquarters, the previous year. (There is a
conflict as to whether Respondent's name had been
previously written on the signs or were written on the signs
that morning.) Worrell advised the employees that in the
circumstances they had no alternative but to picket, or to
"go on strike." as some of the witnesses said. Two pickets
were placed at Respondent's premises, and Worrell,
Home, and Miller went to the union hall to get two more
signs. Two additional pickets were later placed at Respon-
dent's premises. One witness estimated that employees
were walking with signs about 1/2 hour after they were
discharged.
The picket signs appear to have been rather traditional
i This was a change in Gross' normal habits He usually parked outside
the fence to the west of the gate On prior occasions, the employees had
spoken with Gross in group discussions outside the fence , on the east side of
the gate, apparently as he was walking toward the front door of the main
office
s Cunningham , Respondent 's witness, however, testified that he was told
by other employee-, to take his car off the parking lot shortly after he
985
"On Strike" placards. There was reference on them to the
asserted low wages being paid to the employees. Neither at
that time nor thereafter was there any reference to the
employees' discharge. Worrell testified that this was his
normal practice because he was convinced that strikers got
more sympathy from other unionists and the public on an
economic appeal, than by claiming that they were
discharged, which he seems to think raises questions in the
public mind. The picketing was continuing at the time of
the hearing.
2. Version of Respondent's witnesses
The evidence adduced by the Respondent would show
the following: James M. Smith, a security guard employed
by a private agency, but stationed at Respondent's
premises since the last of January 1973, was on duty on the
plant premises on the morning of March 6. Before making
his last round of the premises, Smith states that he noticed
cars driving up and parking across the street, and a group
of men gathering across the street from the plant premises,
about 6:30 in the morning. At this point, Smith did not
recognize any of the men. When Smith returned from
making his rounds that morning, he went close to the gate,
observing the group across the street, while awaiting the
arrival of Wheaton, then Respondent's yard manager, who
Smith testified usually came a little before 7 a.m. to relieve
him .6 Smith's normal departure time was 7 a.m.
Wheaton, who seems to have arrived about 7:08 a.m.,
drove his car through the gate after it was unlocked and
opened, parked his car in the yard, and walked up to where
the guard was standing at the gate. Smith asked what was
going on across the street, to which Wheaton replied to the
effect that the employees were going on strike that
morning. From this point on, the testimony of Smith and
Wheaton appears to be in substantial conflict. Wheaton
asserts that at this time Worrell (whom he knew from
attending the negotiations) was across the street with the
men; that while he was standing with the guard, he saw
Worrell take two placards out of the trunk of a car, give the
placards to two men, and in a loud voice give instructions
to the men as to how to picket; also, that he saw Worrell
cross the street after the two pickets, giving them further
instructions and placing them to picket. Wheaton stated
that he was sure that there were two pickets patrolling the
gate area when the guard went out the gate (but "[i]f not,
they were placed mighty close after he left"). Wheaton is
not sure whether there were four pickets patrolling at that
time , inasmuch as the Union did later have two men
picketing at the gate and two others at the office. He
testified that the picket signs were not hanging on the men,
but were carried on poles. According to Wheaton, the
guard left approximately 10 minutes after Wheaton
arrived. Wheaton testified that he then called Gross,
arrived, about 7:30 a.m.
6 Wheaton, who left Respondent's employ in April, at first asserted that
he did not regularly relieve the guard prior to March 6 , that no one did, but
that he did begin to regularly relieve Smith after that date. Later Wheaton
did recall that for a short period before the picketing he did relieve the
guard in the morning. For reasons discussed hereinafter , I do not believe
Wheaton 's recollection of events during this period is wholly reliable
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although he is not certain that he did this before or after
the guard departed.
Smith, however, stated that though he saw men gathered
around an open car trunk across the street he never saw
placards taken out, he did not see anyone across the street
who seemed to be a leader among the men, or who was
giving instructions to pickets, and was particularly insistent
that only one man came across the street toward
Respondent's premises, and that was a single picket with a
sign hung on his back.? Smith states that he saw this man
walking across the street before he left the yard. When he
drove out the gate about 7:20 (he states that he looked at
his watch), he saw the picket at the main office door. Smith
stopped his car in the dnveway in front of the gate, got out
and went back to close that gate. (It was Wheaton's
recollection that the guard drove off without stopping,
leaving the gate open.) While Smith was doing this, the
picket was walking from the office door toward the
gateway. The picket crossed in front of Smith's car before
he got back in, and the picket circled back and crossed in
front of Smith's car again before the latter drove off. Smith
asserts that as he was leaving he saw the men across the
street fitting another sign to the back of another man.
Smith states that there were no other pickets patrolling at
the time he left that morning.
Wheaton estimates that he called Gross about 7:15.
Gross recalls it as a little after 7. He states that Wheaton
said the men were on strike, were "carrying pickets and
they are walking." Gross advised that he would come as
soon as he could. He thereupon called his assistant, George
H. Matheson, and arranged to meet Matheson in town so
that the two could amve at the plant at the same time.
Wheaton states that Gross arrived about 15-20 minutes
after his call. Wheaton, Gross, Matheson, and Robert
Special (an employee of Respondent who preceded Gross
to the plant that morning) state that Gross arrived between
7:25 and 7:30, assert that Matheson drove into the yard
just preceding or dust following Gross, and that both
parked their cars in the yard. Though there, is some
confusion and conflict among these four as to some details
of the following few minutes which leads to some doubt as
to whether all saw and heard what occurred, their
testimony in substance is as follows: Gross, after getting
out of his car, had a few words of conversation with
Wheaton, got up on the ramp-walkway at some point,
walked toward the side door of the main office, turned at
the office door and walked in, and did not say anything at
all to any employee at that time. It is further denied that
Gross spoke to any employee as he approached and drove
into the yard premises.
Special asserts that there were two employees carrying
picket signs hanging in front of them in the dnveway as he
came in, with the rest of the men across the street. Gross
states that there were two pickets at the driveway when he
arrived, that there were one or two employees near the
pickets, with the rest across the street. Wheaton states that
when Gross amved, the pickets were walking, and the rest
of the men were across the street. As has been noted, he
7 Smith even denied that any of the employees had come across the street
to park in the parking lot that morning . However, it is clear that he
considered the yard area as the parking lot , since he also stated that at the
recalls the picket signs being held on poles. Matheson says
there were two pickets at the time, he is uncertain as to
whether the signs were hanging on the person of the pickets
or were being held, but they were not on sticks. He also
states there were several men in the area to the left (east) of
the gate as he drove in, presumably the same area where
Gross saw employees, in addition to the pickets, that
morning. Neither Gross nor Matheson saw Worrell in the
area at the time. Matheson saw him in the area later in the
day. In addition to these management witnesses, two
employees, Andrew Cunningham and Isaac Dalton, assert
that the picketing was in progress when they arrived at the
plant before 8 a.m. They state that the other employees
never told them that Gross had discharged the employees.
Before considering the difficult credibility problems
posed by these versions of the parties, it is necessary to
examine certain collateral evidence adduced by Respon-
dent for the purposes of impeachment.
D. Other Union Conduct
On the day after the picketing began, William F.
Griswald, Jr., a reporter for the Columbus Enquirer, spoke
with Worrell about the circumstances of the dispute. As a
result of this conversation, Gnswald wrote, in effect, that
the employees had gone out on strike in protest of their
economic conditions, but he agrees that Worrell may not
have used the terminology which Gnswald used. He asserts
that his account was an accurate summarization of their
conversation. Worrell states that in the interview he laid
stress upon the poor economic working conditions of the
employees and the fact that there had been no settlement
with the company, because he felt this would appeal to the
sympathy of the community, but denied that he had told
the reporter that the employees had walked out in protest
of their economic conditions. After careful study of the
testimony, I believe it is probable that, as Worrell says, he
did not tell Gnswald that the workers had gone on strike
because of economic conditions, and I credit him to this
effect. However, there can be no question in the circum-
stances, and in light of his own research into the
background facts, Griswald legitimately synthesized the
facts from the information given him. It is not disputed
that Worrell did not tell Griswald that the employees had
been discharged or give the reporter any other reason that
the employees were picketing.
On the afternoon of March 6, Joseph H. Miser, III, a
reporter for Channel 9, WBTV, went to the picket line in a
car identifying the television station on its doors. He spoke
to Moses Lowman, Jr., who identified himself as the head
shop steward. Miser asked why there was a strike, and
Lowman said they were striking "for higher wages, better
health insurance, more holidays and union dues checkoff,"
and that they expected the strike to last until a favorable
settlement was reached. Miser was not told that the
employees had been discharged.
On March 7, William M. McCullare, a field investigator
of the Georgia State Department of Labor, who had heard
of the picketing through the news media, began an
time there were no cars in the parking lot but his, which was parked in the
yard. While in the yard , Smith would hardly have had any view of the
parking lot on the other side of the main office building
W. T. HARVEY LUMBER CO. 987
investigation of the situation . He first interviewed Gross,
who told him, according to the Labor Dispute Field Report
prepared by McCullare, that the work stoppage began on
March 6 , at 7 a.m. (This was originally written as 8 a.m.,
and scratched out for reasons McCullare could not recall.)
The report states that "Wages and Fringe Benefits" were
the issues involved in the dispute , that 50 percent of the
workers were out , and that there was a token picket line of
four persons only. McCullare later found Worrell on the
street. McCullare showed Worrell the Labor Dispute Field
Report containing the information received from Gross,
explained that the form was used to prevent job applicants
from being sent to an employer during a strike, and to
prevent employees engaged in the labor dispute from
drawing unemployment compensation , and requested that
Worrell examine it. Worrell looked at the form in
McCullare 's presence , requested that the form be changed
to show that 85 percent of the employees were engaged in
the labor dispute (rather than the 50 percent claimed by
Gross), and with that change signed the form. Worrell did
not question Gross' statement of the issues involved, nor
did he advise McCullare that the employees had been
discharged.
About March 16 , the parent organization of the Union,
whose officers and representatives worked out of New
York City, hired a local man , William Scott, a relatively
inexperienced union representative, to take care of the
interests of the employees picketing Respondent. On
March 19, Scott went to Opelika , Alabama , to seek aid and
assistance from union locals there . He states that he told
union leaders there that Respondent 's employees repre-
sented by the Union had been discharged ,8 and that he was
told by those leaders that it was their practice when their
union members were engaged in a labor dispute to send the
members to collect unemployment compensation . (These
union leaders , to whom Scott spoke , did not testify.) The
next day , Scott states, he went to the unemployment
compensation office in Columbus to seek further advice
and assistance, that he there met with Mr . William Peters,
that he told Peters that the employees had been discharged,
and was informed as to the procedure that should be
followed to have the employees register for compensation.9
That night Scott met with the employees, advised them to
register for unemployment compensation in small groups,
and following the advice he states he had received in
Opelika, advised the employees to tell the unemployment
compensation agent that they were unemployed because of
a labor dispute . As it happened , McCullare's report
classifying the situation as a "labor dispute," together with
a list of the employees had already been circulated among
the agents in the local unemployment compensation office,
and was known to them . All of the evidence is to the effect
that the employees who applied for compensation claimed
they were then engaged in a labor dispute 10 and that none
of them stated that he had been discharged. The claims, of
course, were disallowed under Georgia law, which disquali-
fies applicants who are engaged in labor disputes. On
appeal of this ruling to the Georgia Employment Security
Commission, Scott testified that he had been informed in
mid-March that the employees had been discharged. So far
as the record shows, this appeal has not been acted on.
On March 19, the same date that Scott was in Opelika,
Worrell was in the offices of local counsel, newly
employed, apparently in Atlanta, to discuss an injunction
proceeding against the Union. At that time, Worrell told
counsel, in giving the background of the situation, that the
men had been discharged.
Also, during the first 2 weeks of the strike, the Union
issued a leaflet asking for help from fellow unionists, which
stated that Respondent, compelled by the Court to
bargain, had offered no improvement in employee low
wages, and since "we were working for nothing we had no
alternative but to STRIKE." Again, no mention was made
in the leaflet concerning the discharge of the employees by
Respondent.
III. ANALYSIS AND CONCLUSIONS
The credibility problems presented by this matter are
particularly perplexing and difficult. As to the central, and
critical, issue-whether Respondent's manager, Gross, on
the morning of March 6, told a group of employees that
they were discharged and would be replaced-I am unable
to determine on the basis of demeanor or the specific
content of their testimony alone, whether the eight
employee witnesses who said he did, or the four manage-
ment witnesses who assert that Gross said nothing at all to
the employees at that time and place should be credited. I
have, therefore, resorted to a thorough consideration of the
record as a whole to determine the issue.ii
Supporting the General Counsel's position: I am
convinced, from observation of the witnesses, the tenor of
their testimony, and the record as a whole, that the union
committee and the employees had no firm intention of
engaging in a strike on the morning of March 6, when they
arrived at the plant, but that the committee intended to
attempt to resolve their problems with Gross through
group discussions before work, as they had done in the
past. Though the plant security guard noted that the
employees were gathered across the street from the plant
about 6:30 a.m., it is not claimed that they began picketing
until nearly an hour later. I also find that Worrell was not
there when the employees first congregated at the plant, as
would be expected if a strike were anticipated with this
8 Scott asserts that he was informed of the employees ' discharge when he
was hired on March 16.
9 Peters, as a witness for Respondent , denied that he had met with Scott
prior to the first of April with respect to unemployment claims of
Respondent's employees. He did, however, admit that on the Friday
previous to the hearing , he had informed General Counsel that he was
unsure of this fact, he didn't think there had been an earlier meeting, but
didn 't remember. Peters stated at the hearing that he was then trying to
avoid an argument.
10 The language of all but two of the copies of claims forms put in
evidence indicates that the language on the forms was that of the claims
agent, not the employees One of the forms states the claimant claimed to be
"on strike for more money."
ii As to certain other conflicts in testimony, where the witness'
demeanor made a definite impression , I have relied on that factor in
resolving that issue, as noted herein.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group of newly organized workers, inexperienced in such
matters.12 I am also not persuaded that an intent to strike
was shown because committeeman Horne had two picket
signs in the trunk of his car that morning. I credit Home
and other witnesses that Horne had been carrying the signs
around since the strike vote of the previous year. I am
further convinced, despite some confusion and conflict in
the testimony, that the cars of some of the employees, and
particularly the car of committeeman Moses Lowman, Sr.,
in which committeemen Moses Lowman, Jr. and Samuel
Wright rode, were parked on the Respondent's parking lot
that morning, and were removed from the lot only about
the time the picketing commenced. I do not believe it likely
that these employees would have parked on the lot if they
had come to the plant that morning intending to go on
strike.
Therefore, since the employees came to the plant that
morning not intending to strike, something occurred
thereafter which caused them not to go in to work but to
commence picketing. General Counsel and the Union
argue, in effect, that this must have been the statement of
Gross testified to by the employees. I disagree.
I see no reason to discredit the testimony of Smith, the
security guard, that there was a picket patrolling in front of
the plant when he left the premises at 7:20 a.m., before
Gross arrived. Smith appeared to be trying to give an
honest account of what he heard and saw that morning.
Further, this was the only morning that he observed
picketing, so it is unlikely that he has confused the
occurrence with some other morning. The discrepancies
between his testimony and that of Wheaton as to the same
events would indicate no discussion between them.
Accepting Smith's testimony that the picketing began at
7:20 a.m. would indicate that the employees, after arriving
at the plant that morning and discussing the negotiations
of the night before, decided among themselves to picket in
protest of the breakdown of the negotiations just conclud-
ed, and took out the signs which were in Home's car, and
began picketing.13 This would not be inconsistent with
additional signs being obtained later and additional pickets
placed at the plant, as all seem to agree occurred.
Upon careful consideration of the entire record, I have
also come to the conclusion that when Gross came to the
plant about 8 a.m., that morning, he did not tell the
employees that they were discharged and would be
replaced (notwithstanding a certain skepticism concerning
the claims that he said nothing at all).14 In coming to this
conclusion, I am, however, troubled by the employees'
claim that, in this confrontation, Gross said they would be
"replaced." This is the kind of language which, experience
shows, employers (who have received legal advice as to
their rights in strike situations) do use and confuse with the
12 1 discredit Wheaton's testimony to the contrary. While Wheaton, I
believe, was trying to honestly recall the events of that morning, his
testimony gave much evidence of a tendency , which he acknowledged, to
confuse earlier events with later happenings , and to clarify the earlier by
what he learned later In some instances , as with respect to the manner the
picket signs were carried , he is clearly incorrect As previously noted, his
testimony on this point seems to conflict with that of the security guard also.
13 In coming to this conclusion , I have considered , and discounted, the
fact that in recording Gross' account of the strike situation , Georgia Labor
concept of discharge. It is not conceivable that these
employees would have thought of it on their own, and it is
rather unlikely that the Union would have told them of it.
One can readily conceive that the employees might claim
that Gross had discharged them and have been convinced
of this by some words or attitude on his part. It is more
difficult to believe that the employees would have added
the claim that Gross said they would be replaced unless it
happened. The latter part does add a ring of authenticity to
the whole. Nevertheless, I believe that the record compels a
finding that the employees were not told that they were
discharged . Thus , numerous situations arose on and after
the morning of March 6, in which one would logically
expect the Union, or the employees to have made some
mention of such discharge , if it occurred , including some
occasions in which it was clearly to the advantage of the
Union to have made the claim . However, the union
representatives and the employees not only did not, during
the 2 weeks following March 6, claim that the employees
had been discharged, but the union representatives, by
their account, took pains not to mention it. There has never
been any statement on the picket signs asserting that the
employees had been discharged; there was no mention of
discharge in the union leaflet put out during the strike
(appealing for help and sympathy), which leaflet, indeed,
indicated that the strike was caused by a breakdown in
negotiations over economic conditions; nor was there any
mention of the employees' discharge by Union Representa-
tive Worrell in interviews with newspaper reporters on the
day the strike began or the next day. This is explained by
the union representatives on the basis that in their opinion
advertising employee discharges is negative publicity.
While this may be a possible, though unusual, point of
view for union organizers, it is also noted that when, on the
first morning of the strike , the employees were interviewed
by a TV reporter, apparently with Worrell not present,
they , too, made no mention of their discharge, but stated
that their strike was over economic conditions. When
Worrell was informed by an investigator for the Georgia
Department of Labor that Gross claimed the strike was
concerned with economic issues , Worrell did not dispute
this or advise the investigator that the employees had been
discharged. Thereafter, Union Representative Scott, al-
though assertedly informed of the employees' discharges,
advised them to say that they were out of work because of
a labor dispute when they applied for unemployment
compensation . They did so, and none of them advised the
interviewers at the unemployment compensation office
that they had been discharged, so far as this record shows.
Scott , again, has a colorable explanation for his action in
that situation , but I am forced to the conclusion that the
weight of the evidence referred to above requires a finding
Department Agent McCullare first wrote that the stoke began at 8 a in, and
then changed this to 7 a in ., inasmuch as this was likely an inadvertence.
14 I am convinced that a group of employees were in fact outside the
fence to the east of the gate when Gross entered his office that morning, as
the employees testified Both Matheson and Gross indicate employees in
that area at that time, in addition to the pickets
is In coming to this conclusion , I have weighed the fact that on March
19, Worrell told local counsel that the employees had been discharged, and
Scott , on March 19 and 20, assertedly told other persons that the employees
had been dischargeu
W. T. HARVEY LUMBER CO.
that the employees were not, in fact, discharged.15
On the basis of the above, and the record as a whole, I
find that Respondent did not discharge the striking
employees as alleged, and that they have been and are
engaged in an economic strike against Respondent. It will
therefore be recommended that the complaint in this
matter be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of the Act.
989
2. The Union is a labor organization within the
meaning of the Act.
3. Respondent did not, on March 6, 1973, discharge the
employees named in the complaint because they engaged
in concerted activities protected by the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is hereby recommended that the complaint in this matter
be dismissed in its entirety.