Cathey Lumber Co.

National Labor Relations Board - Board Decisions

Feb 28, 1951

93 N.L.R.B. 510 (N.L.R.B. 1951)

510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed will recommend that the Respondent cease and desist from in any manner
infringing upon the rights guaranteed in Section 7 of the Act.
Inasmuch as the two corporate Respondents, admittedly, are commonly
owned and each of them is managed by the same officers, and that each of them
pursue a commonly controlled labor relation policy, they should jointly be enjoined
in the future from committing any of the unfair labor practices found herein
to have been committed by either of them in the past.
Since it has been found that the evidence does not support the allegations
of the complaint that Lorraine Petrovich was discriminatorily refused reem-
ployment by the Respondents in violation of Section 8 (a) (3) of the Act, the
undersigned will recommend that the allegations of the complaint with respect
to these allegations be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Union of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing their employees in the
exercise of the rights guaranteed in Section 7 of the Act, the Respondents
have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Florence Orlando, and thereby discouraging membership in Textile Workers
Union of America, CIO, the Respondents have engaged in and are engaging in
unfair labor practices within,,the meaning of Section 8 (a) (3) of the Act.
4. By discriminating in regard to the hire of Lorraine Petrovich because she
filed charges under the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (4) of the Act.
5. By refusing to reemploy Lorraine Petrovich in July 1949, the Respondents
have not violated Section 8 (a) (3) of the Act, as alleged in the complaint.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
CHARLES C. CATHEY, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE
OF T. M. CATHEY, D/B/A CATHEY LUMBER COMPANY 1 and LOCAL No.
422, INTERNATIONAL WOODWORKERS OF AMERICA, C. I. O. Case No.
15-CA-140. February 28, 1951
Decision and Order
On October 31, 1950, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that he cease and desist there-
1 The name of the Respondent appears as amended.
93 NLRB No. 80.
CATHEY LUMBER COMPANY 511
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal
of these allegations. Thereafter, the Respondent and the Union filed
exceptions to the Intermediate Report.
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, 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 :
1. We find, as did the Trial Examiner, that the Respondent violated
Section 8 (a) (1) of the Act by the conduct of Manager Ward and
Foreman Farris in (1) threatening Eugene Street, Andrew Bonner,
Willie Sears, and Sam Lamphers with discharge and other economic
reprisals if they engaged in union activities or because of their union
membership, and (2) interrogating Willie Sears and Sam Lamphers
as to union activities at the plant. In addition, we find, contrary to
the Trial Examiner's conclusion, that the Respondent violated Sec-
tion 8 (a) (1) of the Act by Foreman Farris' statement to Sam Cook,
when Cook applied for reinstatement, that if he came back to work,
there wouldn't be "another union here on the job." We note that Far-
ris made the remark immediately after he informed Cook that there
was no job available for him. In this context, Farris' statement to
Cook was a clear warning that Cook would have to abandon the Union
as a condition of reemployment.3 It was therefore clearly violative of
Section 8 (a) (1) of the Act 4
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor ,Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Charles C. Cathey, In-
dividually and as Executor of the Estate of T. M. Cathey, d/b/a
Cathey Lumber Company, Montgomery, Alabama, his agents and
assigns shall :
2 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
[ Members Houston , Murdock, and Styles].
5 Cathey Lumber Company, 86 NLRB 157, 165, relied upon by the Trial Examiner for a
contrary conclusion, is clearly distinguishable. There, unlike the instant case, the remark
to the applicant for employment followed his hiring. As the act of hiring was clearly
incompatible with any hostility on the part of the respondent toward the applicant because
of his union membership or activity, the statement was held to be lacking in coercive effect.
4 See The Warren Company, Incorporated, 90 NLRB 689.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Interrogating his employees concerning their union activities
or union activities in the plant; threatening his employees with dis-
charge or other economic reprisal because of their union affiliation
or activities ; and warning his employees that he will not have a union
in his plant.
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local No. 422, International
Woodworkers of America, C. I. 0., or any other labor organization, to
bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all
of such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at his plant in Montgomery, Alabama, copies of the notice
attached hereto and marked "Appendix A." 5 Copies of said notice, to
he furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by him for sixty (60) consecutive days thereafter, in conspiciious
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Fifteenth Region, in writ-
ing, 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
a violation of Section 8 (a) (3) of the Act, be, and it hereby is,
dismissed.
Appendix A
NOTICE TO ALL EMPLOYEES
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, as amended, we hereby notify our employees that :
6 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," the words , "A Decree
of the United States Court of Appeals Enforcing
CATHEY LUMBER COMPANY 513
WE WILL NOT interrogate our employees concerning their
union activities or union activities in the plant; threaten our
employees with discharge or other economic reprisal because of
their union affiliation or activities; or warn our employees that
We will not have a union in our plant.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization, to form labor organizations, to join or assist LOCAL No.
422, INTERNATIONAL WOODWORKERS OF AMERICA, C. 1. 0., or any
other labor organization, to bargain collectively through rep-
resentatives of their own choosing, to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities, ex-
cept to the extent that such right may be affected by an agreement
requiring membership in a l abor ' organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from be-
conning members of the above-named union or any other labor organ-
ization, except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the Act.
CHARLES C. CATHY, individually and as executor of the
estate of T. M. CATHEY, D/B/A CATHEY LUMBER COMPANY,
Employer.
By ---------------------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Andrew P. Carter, Esq, for the General Counsel.
Fred S. Ball, Jr., Esq., of Montgomery, Ala., for the Respondent.
Thomas S. Adair, Esq., of Montgomery, Ala., for the Union.
STATEMENT OF THE CASE
Upon a first amended charge filed on December 9, 1949 , by Local No 422,
International Woodworkers of America, C. I 0., herein called the Union, the-
General Counsel of the National Labor Relations Board, called herein re-
spectively the General Counsel and the Board , by the Regional Director of the
Fifteenth Region ( New Orleans , Louisiana ), on June 26 , 1950 issued a complaint
against Cathey Lumber Company , herein called the Respondent , alleging that
the Respondent had engaged in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section 8 (a) (1) and ( 3) and Sec-
tion 2 ( 6) and ( 7) of the Labor Management Relations Act, 1947, herein referred
943732-51-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to as the Act. Copies of the complaint, the first amended charge upon which
it was based, together with notice of hearing thereon, were duly served upon
the Respondent and the Union.
With respect to unfair labor practices, the complaint alleged in substance :
(1) That, in violation of Section 8 (a) (3) of the Act, the Respondent dis-
criminatorily discharged L. C. Chisson on or about January 5, 1949, and Ar-
thur Harris , on or about January 7 , 1949, and failed or refused to reinstate
Chisson until on or about February 1, 1949, and has at all time since January
7, 1949, failed or refused to reinstate Arthur Harris for the reason that they
joined or assisted the Union or engaged in other concerted activities for the
purposes of collective bargaining or other mutual aid or protection thereby
discriminating in regard to their hire or tenure of employment ,' and thereby
discouraging membership in the Union; (2) that the Respondent, in violation of
Section 8 (a) (1) of the Act by certain named officers, agents, representatives,
and employees, from on or about November 27, 1948, and continuing to the date
of the complaint, by certain stated acts has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
In the answer filed July 3, 1950, the Respondent admitted certain allegations
of the complaint but denied the commission of any unfair labor practices The
answer contained the further defense that the allegations of the complaint re-
ferring to L. C. Chisson are based upon acts alleged to have occurred more than
6 months prior to the filing of a charge with the Board and service thereof upon
the Respondent ; and further that the complaint should be dismissed with re-
spect to the 8 (a) (1) allegations contained in paragraph VII because no charge
has been filed with the Board charging said acts or a copy thereof served on the
Respondent and further because the acts alleged to have occurred from on or
about November 27, 1948, and continuing to date are acts, some of which are
alleged to have occurred more than 6 months prior to the filing of a charge or
service thereof upon the Respondent.
Pursuant to notice a hearing was held in Montgomery, Alabama, on August 8
and 9, 1950, before W. Gerard Ryan, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. At the opening of the hearing, I
granted the Respondent's motion to exclude certain witnesses from the hearing
room, except while testifying. I then granted a motion by the General Counsel
to dismiss from the complaint the allegations in paragraphs V and VI relating
to L. C. Chisson. The General Counsel, the Union, and the Respondent par-
ticipated in the hearing and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing upon
the issues.
At the close of the General Counsel's case-in-chief, upon the Respondent's
motion to dismiss the 8 (a) (3) allegations of the complaint relating to the
discharge of Arthur Harris, I dismissed paragraphs V, VI, and VIII on the
ground that the proof adduced to support the allegations is insufficient to sustain
a prima facie case.'
I Viewing the evidence most favorably to the General Counsel for the purposes of the
motion, the General Counsel had introduced evidence that the Respondent had violated
the provisions of Section 8 (a) (1) of the Act and entertained antiunion animus which was
indicated chiefly by informing three other union employees that they were being taken back
but for the first mistake they made they would be discharged ; by putting in force amended
rules of conduct containing some new harsh provisions ; and possibly by assigning Harris
to several jobs in the 4 days he was there . As part of the proof that Harris was dis-
criminatorily discharged , the testimony of four witnesses was introduced . Willie Sears,
a member of the Union , whose job included keeping the toilets clean, reported to Foreman
CATHEY LUMBER COMPANY '515
At the conclusion of the testimony, the Respondent moved to exclude the
rebuttal testimony_ offered by the General Counsel and the Union on the ground
that it is not properly rebuttal testimony and is immaterial. Decision was re-
served on the motion and is now denied for reasons hereinafter stated. The
Respondent also moved to strike from the complaint subdivision D of paragraph
VII on the ground that there is no evidence to support the allegation that the
Respondent threatened a shutdown of the plant if the Union become active
again. Decision was reserved. I now grant that motion since there is no evi-
dence that the Respondent threatened a shutdown. The General Counsel and
the Union moved for reconsideration of the Trial Examiner's ruling which dis-
missed the 8 (a) (3) allegations of the complaint relating to Arthur Harris,
and I denied that motion.
The parties waived oral argument at the conclusion of the testimony and
were afforded an opportunity to file briefs, proposed findings of fact, and con-
clusions of law. Only the Respondent has filed a brief.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following :
FINDINGS OF FACT
I'
I THE BUSINESS OF TIIE RESPONDENT
The Respondent is a partnership composed of the executor of the estate of
C. C. Cathey and T. M. Cathey ; and maintains a lumber plant at Montgomery,
Alabama.
In the conduct of its business at its Montgomery plant, the Respondent during
the year 1949 purchased' raw materials and supplies, consisting principally of
logs and rough timber, valued in excess of $200,000, substantially all of which
was purchased from locations within the State of Alabama and during
the same year sold and delivered finished products valued at more than $500,000,
approximately 85 -percent of which was sold and shipped to customers
outside the State of Alabama. The Respondent concedes, and I find, that it is
engaged in commerce within the meaning of the Act.
I'arriss that Harris had soiled the end (outside ) toilet. Farriss directed Sears to get
Harris and also to notify Ward, the manager . Confronted by Sears, Farriss , and Ward,
Harris denied soiling it . Sears saw Harris enter the outside toilet , saw him come out,
and then Sears went in and saw the toilet, which he testified was clean before Harris
used it, in a dirty condition. Eugene Street, president of the Union, corroborated Sears,
testifying that he saw Harris enter the outside toilet and come out 5 minutes later.
Arthur Harris testified on direct examination that he went first to the outside toilet but
it was dark and he did not notice whether it was "messed up" so he went and used the
inside toilet. On cross-examination he testified that the seat of the toilet that was soiled
was the toilet that he had used about an hour previously, he repeated that the same toilet
that he had used and which he saw when he went back with Sears was soiled and that it
was the outside toilet ; then, he contradicted himself by saying that he did not use the out-
side toilet because he had looked at it and found it dirty. Isaiah G lass testified'that he
(Glass) had seen the inside toilet dirty and used the outside toilet which was all right;
that neither toilet was dark ; that the inside toilet was so dirty it looked as if someone had
stood on the seat. Glass did not see Harris go into either toilet or come out of either toilet.
In his argument opposing the motion to dismiss, the General Counsel freely admitted that
he had purposely introduced conflicting testimony in. order to portray a situation that was
so confused that it would be reasonable to infer from such circumstances that the Re-
spondent did not act reasonably in discharging Harris and thereupon seized the oppor-
tunity to get rid of him for discriminatory reasons. Although the record shows no one
ever before had been discharged for soiling a toilet (offending employees were subject to
fines) the record also shows that never before had a toilet been fouled as this one was.
In the face of such credible evidence that Harris had committed the offense from two
eyewitnesses who had seen Harris go in and come out of the outside toilet, and Harris'
contradictory testimony , any inference that he was discriminatorily discharged was over-
come by compelling evidence to the contrary.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT. THE ORGANIZATION INVOLVED
Local No. 422, International Woodworkers of America, C. I. 0., is a labor
organization which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
1. Interrogation , warnings , and threats
Eugene Street testified that he'first went to work for the Respondent in 194a
or 1941 and worked continuously until the time when he participated in a strike
called by the Union in 1946. At the time of the strike , Street was a shop.
steward for the Union ; but at the time of the hearing herein he was the
union president . Following notification from the Respondent that he could
return to work, Street applied for work on or about December 13, 1948. The
manager, Grover Ward, called Street and another employee , David Byrd, into
his office before they were assigned to jobs and acquainted them with the
amended company rules each was expected to follow . Street testified that Ward
told them they were to do anything the foremen or any of the white people
there told them to do , even if it was to jump in a ditch ; that there was to be
no gathering together to talk, and that Ward knew how long it took to unload
a carload of lumber and he was going to time their work as he-sat there and
watched them . Following that, Street was assigned to pulling lumber on the
slip and about an hour and a half later , Street testified that Ward approached
him and stated that Street ought to be trying to take care of his family and
that Ward was not going to have that "damn union " back. Ward denied that
he had made the statements attributed to him , explaining that he had gone over
the amended rules with Street and Byrd , and then assigned them to their jobs.'
I credit the testimony of Street and find that Ward did tell Street that he
should be trying to take care of his family and that Ward was not going to have
the "damn union" back. Since that statement by Ward clearly implied a threat
of discharge to Street if he engaged in any activity to bring the Union back,
contrary to Ward's announced intention that he was not going to have the Union
back, it is clearly interference , restraint, and coercion violative of the Act,
and I so find. -
Andrew Bonner testified that he had worked for the Respondent for 9 years
prior to October 1946 , when he participated in a strike called by the Union
against the Respondent ; that, following receipt of the letter from Respondent
offering him reinstatement , he applied to Ward on or about December 13, 1948,
and spent approximately an hour in Ward's office , during which time Ward made
statements to him to dissuade him from returning to work, saying that the
reason Bonner wanted to return to work was that he loved the Union "too much"
and that Ward was not going to have the Union back; that Bonner could have
a job working alone on the trimmer which was then being handled by three or
four employees ; that all his men do not want a union and he was not going to
have any union men mixing with them ; that Street and Byrd were "going on
down Court Street" for the first error they made ; and that if Bonner wanted
to go to the rest room during working hours, he better wait until noontime; and
that Ward further said , when Bonner protested , that he was trying to give him
2 The Respondent argued that Ward 's denial is strengthened by pointing out that half of
its present employees are union members . Such an argument falls of its own weight since
the record shows that Ward testified on direct examination that approximately half of the
present employees were "union members or ex -union members "
CATHEY LUMBER COMPANY 517
a hard way to go because Bonner was a union' man and he did not want and was
not going to have any union man back in the plant. Street corroborated Bon-
ner to the extent that he spoke to Bonner before Bonner entered Ward's office ;
that he saw Bonner and Ward together in Ward's office for approximately 30
minutes; and that he again talked with Bonner after he left Ward's office. Bon-
ner's testimony that Foreman Gibson was present for 5 or 10 minutes while he
and Ward were talking together was not contradicted by Gibson. Roselyn Allen
testified that she worked as bookkeeper for the Respondent from October 6,
1941, until she left on August 1, 1949. She described the office plan to show that
she could observe who came to visit Ward, since anyone would have to come
through the front door and pass her desk to enter Ward's office .3 The negative
testimony of Allen that she did not see Bonner, although she had opportunity
to see him if she and Bonner were there at the same time , does not offset posi-
tive affirmative testimony by Street that he saw Bonner and Ward together in
the office. Ward not only denied that the conversation with Bonner had taken
place, but he denied that Bonner had been in his office ; and, further, that he
has not talked to Bonner since a conversation he had with him a week or 10
days after the plant had resumed operations after the strike (1946), when Bon-
ner returned and asked for work at which time Ward said that he told Bonner
he would talk with him further about a job when Bonner brought back the two
dolly wheels he had stolen from the Respondent ; and that Bonner never did
bring, the wheels 'back and get his job, back.4 Ward's denial is not credited. I
credit the testimony of Bonner and Street and find that Ward did make the state-
ments attributed to him by Bonner which constituted interference, restraint,
and coercion, violative of Section 8 (a) (1) of the Act, in that they threatened
and warned him that because of his union membership and activities he was
not wanted in the employ of the Respondent and that if he did return to work
his lot would be made difficult for him because he belonged to the Union.
Willie Sears testified that he belonged to the Union and had worked for the
Respondent continuously since 1940. He participated in the strike which began
in October 1946 and remained on strike until it was over. Sears testified that
on or about October 5, 1949, Ward asked him, in the presence of his brother,
James Sears, who was still working for the Company but did not testify, if he
had gone to the union meeting to which Sears replied that he had not ; that
Ward stated to them if they fooled with the Union they would lose their overtime.
Ward denied that' he had such conversation. Sears' testimony is credited and
I find that Ward did question him concerning his attendance at a union meeting,
and further threatened Sears and his brother with loss of overtime if they took
part in union, activities. Such ,interrogation and threat of reprisal, has long
been held to be violative of the Act.'
Willie Sears further testified that about October 18, 1949, in the mill after
working hours, the mill foreman, t+'arriss, told him that Sears and Joe Carter
were to go around and tell the boys not to fool with the Union right now and wait
a while, and that later on it would be better ; that Farriss further stated that he
had to cut his brother-in-law off who was doing some painting, and there was no
' Her desk was so placed that she could see Ward's desk , although she was 10 feet away in
another room with an open door in -between
4 See , however, Cathey Lumber Company, 86 NLRB 157 at 183, where Ward's uncontra-
dicted testimony there was credited that we went to Bonner's home on November 3 (1946)
and offered him a job ; that when Bonner replied he would report for work the next morning,
he requested Bonner to bring back two lumber dollies which he had stolen from the Respond-
ent ; that Bonner returned the lumber dollies the next morning at which time Bonner
refused to return to work, stating that the work at Respondent's plant was too difficult.
5 Standard -Coosa-Thatcher Company, 85 NLRB 1358.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
need for them fooling with the Union if they wanted to make a living. Farriss
denied that he had made such statements but I credit the testimony of Sears,
and find that by such threatening statement the Respondent interfered with, re-
strained, and coerced its employees in violation of the provisions of Section 8 (a)
(1) of the Act.'
Sam .Cook testified .that he belonged to the-Union, went out on-strike in 1946
and has never been returned to work ; that when he applied to Foreman Farriss
for a job after receiving the letter from the Respondent, Farriss told him that
there was no vacancy but said "If you come back, it won't be another union here
on the job." Cook did not further apply to the Respondent for work. A some-
what similar statement that there would be "no more union" has been held not to
constitute interference, restraint, or coercion 7 and it is therefore found that
the Respondent did not violate Section 8 (a) (1) in that respect.
Sam Lamphers testified that he began work for the Respondent in 1945 and
is still employed. He did not join the Union nor join the strike in 1946. Lamph-
ers testified that on or about October 17, 1949, about 4: 50 p. in., while he was
working, the foreman, Farriss, inquired if anyone had anything to say to him yet
about the Union ; that when Lamphers replied in the negative, Farriss said,
"Well, if they say anything to you about it, you say `Yes' and go on." Farriss
then added, "Some of _you boys might go hungry directly." Farriss denied such
statements but I credit the testimony of Lamphers and find that Farriss did
question Lamphers and threaten him as aforesaid and thereby the Respondent
interfered with, restrained, and coerced its employees within the meaning of
Section 8 (a) (1) of the Act 8
With respect to the Respondent's motion to exclude the evidence offered in
rebuttal on the ground that a witness may not be impeached on an immaterial
matter, I deny the motion, as a matter of discretion, for the following reasons.
As part of the Respondent's case, its manager, Grover Ward, testified that he
sent out letters to 17 employees to return to work and 4 did return; that, at
no time since the strike did he ever make statements to any employee threaten-
ing to run the Union away from the plant or that he was not going to have
union men working for him, or any statements of that kind. Upon cross-exami-
nation, he was asked if he had conversations with all 17 or part of them to
which Ward answered that he had conversations only with the 4 who returned
to work and had no conversations with any of the other 13 He admitted when
his attention was directed to Watt Foggy and Isaac Fitzpatrick that he had
a conversation limited to telling them, when he delivered the letters, that the
letters were offers of jobs ; but specifically denied any conversation with Stankey,
Stokes, Bonner, Stoval, Lem Fitzpatrick, or Dailey ; and did not remember any
conversation had with Hendricks. In rebuttal, the General Counsel and the
Union called Isaac Fitzpatrick, Lem Fitzpatrick, Morgan, Byrd, Dailey, Foggy,
Stoval, Stokes, and Hendricks, all of whom 'testified to conversations had with
Ward after they had received their letters containing the job offers. In sur-
rebuttal, Ward denied the statements made by the rebuttal witnesses; except that
he stated that he did have conversation with Henry Morgan in which he ex-
plained the company rules to him, after which he was put to work and is still
° Sears impressed me as a truthful reliable witness He testified in a simple, honest,
straightforward way, testifying against the interests of the General Counsel and the Union
when the questions required it ; and testifying against the Respondent when the questions
required it on other occasions. His impartiality lent great weight to his testimony.
T Cathey Lumber Company, 86 NLRB 157.
8 While the statement by Farriss to Lamphers that "some of you boys might go hungry
directly" is a threat uttered to deter union adherence or sympathy, the Respondent did not
thereby, by such words, threaten to close its plant
CATHEY LUMBER COMPANY 519
employed by the Respondent . Ward also testified that both Foggy and Hend-
ricks refused jobs after the letters were handed to them. The rebuttal witnesses
were called on the question of Ward's credibility . While the Respondent urges
that the question whether Ward did or did not speak to more than 4 who were
involved is immaterial or collateral to the issues in the case , I do not find merit
in that contention . The test of what is collateral or immaterial to the issues
is contained in the rule laid down in Attorney General v . Hitchcock , ( 1 Exch.
91), namely , " Could the fact, as to which error is predicated , have been shown
in evidence for any purpose independently of the contradiction ?" ° By that
test, the testimony of the rebuttal witnesses is not immaterial nor collateral, for
surely the General Counsel, independently of the contradiction , could have shown
the fact that Ward had talked to more than 4 and could have brought out the
substance of such conversations , and such evidence would have been admissible
as tending to prove Ward 's state of mind, intent , or purpose at the time he
reinstated the 4 employees . There are 2 classes of facts which are held not to
be collateral : ( 1) Facts relevant to some issue in the case and (2 ) facts relevant
to the discrediting of a witness , such as bias, corruption , skill, etc ." A witness
may be impeached as to matters reflecting on his credibility particularly where
some ' of^ the matters such as bias in connection with the particular litigation
are fairly closely-knit with the contested issues" The presence or absence of
bias on the part of Ward at the time of making the offers of employment and
when 4 were reinstated is indeed closely knit with the contested issues herein.
This is shown by the fact that in direct examination Ward attempted at least
to show there was an inference of no bias when he testified that at no time
since the strike had he ever made anX statements to any employee constituting
threats of an antiunion nature. His answer that he rehired the 4 who returned
to work and had no conversations with the other 13 could be the basis , if true,
for an inference that he was entirely free from any antiunion animosity, in the
absence of other evidence . In denying the Respondent 's motion, I also credit the
testimony of the witnesses called in rebuttal and find that Ward's credibility was
impeached.
I find no merit in the defense as set forth in the Respondent 's answer that the
8 (a) (1) allegation in paragraph VII of the complaint should be dismissed. On
March 14, 1949, the original charge was filed which among other things alleged
violations of Section 8 (a) (1) and ( 3) of the Act. It was charged that on
or about January 7 , 1949, Arthur Harris was discriminatorily discharged and
thereafter refused employment . The charge also alleged that the Respondent
had by other acts and conduct interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act. This
charge was served upon the Respondent on March 17 , 1949. The amended
charge was filed on December 9, 1949, served on the Respondent on or before
December 12, 1949, and , among other things, alleged violations of Section 8 (a)
(1) and ( 3) by the discriminatory discharge of Arthur Harris. The amended
charge also alleged that by other acts and conduct the Respondent had interfered
with, restrained , and coerced its employees in the exercise of their rights as
guaranteed in Section 7 of the Act . The complaint was issued on June 26, 1950,
and served on the Respondent on June 27 , 1950 The complaint and the evidence
in the record relate only to unfair labor practices occurring within 6 months
3 Wigmore on Evidence , 3d Ed., p 657 , par 1003.
10Ibid, p 660 , pars. 1004, 1005
11 See Maguire , "Evidence : Common Sense and Common Law" (Foundation Press, 1947),
pp 52, 53.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to the service of the charge on March 17, 1949 The charges alleged
violation of Section 8 (a) (1) in the statutory language and the complaint and
bill of particulars, which framed the issues in this proceeding, detailed the
specific conduct alleged to violate Section 8 (a) (1). The failure of the
charge to particularize the conduct in question was without prejudice to the
Respondent12
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 com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
I have found that the Respondent has violated Section 8 (a) (1) of the Act.
It is my opinion, upon the entire record in this case, that the commission in
the future of such acts and of other unfair labor practices may be anticipated
from the Respondent's conduct in the past. I shall therefore recommend that
the Respondent cease and desist from such conduct, and from in any other manner
infringing upon the rights guaranteed to its employees in Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case,
I make the following :
CONCLusIONEboF LAw
1. Local No. 422, International Woodworkers of America, C. I. 0, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. 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.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
12 See Cedartown Yarn Mills, Inc. 84 NLRB 1 ; Cat hey Lumber Company, 86 NLRB 157
Lily-Tulip Corporation, 88 NLRB 892.
WILLIAM R. WHITTAKER Co. LTD. and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO, PETITIONER. Case No. ?1-RC-159f. February
28, 1951
Decision and Direction of Election
Upon a petition duly filed under'Section 9 (c) of the National Labor
Relations Act, a hearing was held before James W. Cherry, Jr., hear-
ing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
93 NLRB No. 74.