Consumers Lumber & Veneer Co.

National Labor Relations Board - Board Decisions

Jul 31, 1945

63 N.L.R.B. 17 (N.L.R.B. 1945)

In the Matter of CONSUMERS LUMBER & VENEER COMPANY, ARTHUR
KARST, TOM KILGORE, ROGERS WELLS and UNITED CANNERY, AGRI-
CULTURAL, PACKING AND ALLIED WORKERS OF AMERICA, FLORIDA
CITRUS AND ALLIED WORKERS , LOCAL 4, C. I. O.
Case No. 10-C-1500.Decided July 31, 1945.
Mr. T. Lowry Whittaker, for the Board.
Maguire, Voorhis, and Wells, by Mr. H. M. Voorhis, of Orlando,
Fla., for Consumers.
Messrs. C. Rogers Wells and Murl E. Pace, of Orlando, Fla., for the
corespondents.
Miss Anne Mathews, of Orlando, Fla., for the Union.
Mrs. Catherine W. Goldman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on July 10, 1944, by United
Cannery, Agricultural, Packing and Allied Workers of America,
Florida Citrus and Allied Workers, Local 4, affiliated with the Con-
gress of Industrial Organizations, herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by its Regional
Director for the Tenth Region, Atlanta, Georgia, issued its complaint
dated July 19, 1944, against Consumers Lumber & Veneer Company,'
Apopka, Florida, herein called Consumers, and against Arthur Karst,
Thomas N. Kilgore, and C. Rogers Wells, Orlando, Florida, herein
called,the corespondents,2 alleging that Consumers had engaged in
and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1), (2), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act, and that the corespondents had engaged in and were
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (2.) and Section 2 (6) and (7) of the
i This name was corrected at the hearing by the omission of an apostrophe in
"Consumers "
9 Consumers and the corespondents are referred to jointly as the respondents.
63 N. L . R. B., No. 2. -
17
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. Copies of the complaint, accompanied by Notice of Hearing
thereon, were duly served upon the respondents, the-Union, and the
Workers' Committee.3
With respect to the unfair labor practices, the complaint alleged
in substance that (1) the corespondents are employers within the
meaning of Section 2 (2) of the Act; (2) the respondents dominated
and interfered with the formation and administration of the Work-
ers' Committee and contributed financial and other support to it;
(3) on or about December 14, 1943, and at all times thereafter, Con-
sumers refused to bargain collectively with the Union, which on Jan-
uary 12, 1943, and on or about December 14, 1943, and at all times
thereafter, was the exclusive representative of the employees of Con-
sumers within an appropriate unit; and (4) in January 1943 and con-
tinuing to the date of the complaint, Consumers, by stated acts of its
named officers, agents, representatives, and employees, interfered with,
restrained, and coerced its employees in, the exercise of the rights
guaranteed in Section 7 of the Act.
On July 31, 1944, Consumers filed its answer, admitting certain
allegations of the complaint with respect to its business and denying all
material averments relating to the unfair labor practices. Neither the
corespondents nor the Workers' Committee filed any answer to the
complaint.
Pursuant to notice, a hearing was held at Orlando, Florida, on
August 4 through August 10, 1944, before Charles E. Persons, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board, Consumers, and the corespondents were represented by coun-
sel and the Union by one of its officials. The respondents and the
Union, participated in the hearing. The Workers' Committee, al-
though duly notified, was not represented and did not participate in
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the, issues,
was afforded all parties. At the conclusion of the hearing, counsel for
the Board moved that the Trial Examiner "summarily find that [the
co-respondents] have violated Sections 8 (1) and 8 (2) of the Act"
for the reason, among others, that they did not file any answer. The
motion was denied by the Trial Examiner. Thereafter, the Trial Ex-
aminer granted a motion by counsel for the Board to conform the
pleadings to the proof in respect to minor inaccuracies such as dates and
the spelling of names. Rulings on other motions and on the admissi-
bility of evidence were made by the Trial Examiner during the course
of the hearing. The Board has reviewed all the rulings of the Trial
Examiner and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
8 The Workers ' Committee is an unaffiliated labor organization claiming to represent
employees of Consumers.
LIBBEY-OWENS-FORD COMPANY 19
On October 17, 1944, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties. In the
Intermediate Report the Trial Examiner found that Consumers had
engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of
the Act and that the corespondents had engaged in and were engaging
in unfair labor practices within the meaning of Section 8 (1) and (2)
and Section 2 (6) and (7) of the Act. He recommended that the
respondents cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Thereafter Con-
sumers filed exceptions to the Intermediate Report and a supporting
brief. No exception was taken therein to the Trial Examiner's find-
ing that Consumers had violated Section 8 (2) of the Act with respect
to the Workers' Committee. The corespondents filed no exceptions to
the Intermediate Report. Oral argument, in which Consumers and
the Union participated, was held before the Board at Washington,
D. C., on April 24, 1945.
The Board has considered the Intermediate Report, the' exceptions
and brief filed, and the entire record in the case, and finds that the ex-
ceptions are without merit insofar as they are inconsistent with the
findings of fact, conclusions of law, and order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF CONSUMERS
Consumers Lumber & Veneer Company, a Florida corporation with
its principal office and place of business at Apopka, Florida, is engaged
in the manufacture of wire-bound citrus fruit containers and other
wire-bound containers. During the 12 months preceding August 1944,
Consumers purchased raw materials consisting of logs, lumber, wire,
staples, nails, machinery, equipment, and supplies, valued in excess of
$150,000, approximately 25 percent of which originated outside the
State of Florida. During the same period, Consumers manufactured
finished products valued in excess of $750,000, of which approximately
90 percent was sold to customers who shipped and transported the
products to points outside'the State of Florida. At the time of the
hearing, approximately 90 percent of the business of Consumers was
devoted to or connected with the war effort.
Consumers concedes that it is engaged in commerce, within the mean-
ing of the Act.
662514-46-vol. 63-3
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
United Cannery, Agricultural, Packing and Allied Workers of
America, Florida Citrus and Allied Workers, Local 4, is a labor organ-
ization affiliated with the Congress of Industrial Organizations. It
admits to membership employees of Consumers.
The Workers' Committee is an unaffiliated labor organization, which
claimed to represent employees of Consumers.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion 4
The Union began its campaign at Consumers' plant late in 1942, and
organized the employees into the Apopka Group of Local 4, which
comprised all the Union's organizations in the State of Florida. In
January 1943, pursuant to an agreement between Consumers and the
Union, a cross-check was made by the Board's Regional Director. The
check revealed that the Union represented a majority of the employees
of Consumers in an agreed unit, and on February 12, 1943, Consumers
and the Union entered into an exclusive bargaining- contract, effective
until December 31, 1943, and providing for maintenance of union mem-
bership and check-off of union dues upon written authorization of
employees.
Sometime in the spring of 1943, in the presence of employee George
Jackson, Supervisor W. L. Sykes 6 remarked to a truck driver, who had
come to Consumers' plant to obtain containers for the packinghouse
where he worked, that the "CIO wasn't anything but a racket, and was
just taking the people's money." Sykes then patted Jackson on the
back and stated, "Here is a fellow, they are taking his money too."
Jackson retorted, "They are not taking any money from me. I am in
favor of it, and if the people wants a union let them pay their dues."
About the middle of April 1943, Foreman R. B: Merritt questioned
employee J. T. Whitten concerning union application cards which
Whitten had in his pocket and informed Whitten that he should not
solicit employees at any time on company property, but should go to
their homes or "catch them off the mill premises." When Whitten re-
plied that he thought it was permissible to solicit employees outside of
working hours, Merritt threatened to discharge Whitten if he engaged
in such activity, stating, "I am telling you you ain't going to do that
and work here. You better not do any more of it. . . . I am foreman
here and I expect to be foreman . . . I ain't going to take a darn bit
4 Except where otherwise noted , the findings of fact in this section are based upon
uncontrndicted evidence which we, like the Trial Examiner , find credible
5 Sykes ' supervisory status is discussed hereafter in Section B
CONSUMERS LUMBER & VENEER COMPANY 21
more punching off of you and the grievance committee or the president
of the union." 6
In May 1943, when employee W. R. Fischer, chairman of the Apopka
Group, was seeking employment with Consumers, Supervisor Sykes
told him that "They got some little old union in there that don't amount
to nothing, that we are going to bust it up."
Foreman Merritt in June 1943, told employee Annell Kirkland Meeks
that if Consumers gave its employees a wage increase, "the union dues
would go up higher." In July 1943, Merritt questioned employee Roy
Parker concerning his attitude toward the Union and informed Parker
that "if we can get a bigger, majority we won't have no union here."
During the week following employee Whitten's appointment to the
Union's grievance committee in September 1943, Foreman Merritt ad-
vised him to resign from the committee as quickly as possible. When
Whitten inquired why, Merritt replied that Whitten "had been with the
company too darned long, and that [he] could not be with the company
and the union both." 7
Employee Leon Sherrod testified that on or about October 9, 1943,
he overheard Foreman Merritt advise employee Parker, "Well, if you
oppose the union, Parker, . . . vote against it in December; and we
won't have any union here. If I seen any need of a union here, I
wouldn't oppose it, but I don't see any need of it being here." Parker
gave similar testimony and added that Merritt also stated, "I don't like
that union and . . . that $1.50 a month won't be taken out of your pay.''
Foreman Merritt, while admitting that he had a conversation with
Parker, denied making the statements attributed to him. He testified
that he merely stated, in response to Parker's inquiry as to how he could
"get out of" the Union, that "the only way I knew to get out of it was
to quit his job." We, like the Trial Examiner, credit the version of
the incident given by Sherrod and Parker, and reject Merritt's denial.
On October 27, 1943, about 6 p. in., Polly Davis, who was resigning
from Consumers' employ that day, handed check-off authorizations to
two women employees standing near the foreman's desk in the wire-
bound department of the plant. Foreman Merritt came up at that
time and told Davis, "Now, Poley, you have quit here, you shouldn't
have no more to do with the union, so you can forget about it and let it
go." The two employees, who had previously agreed to sign the au-
The description of this incident is based upon the testimony of Whitten . Foreman
Merritt was not questioned with respect to the above statements.
' These facts are based upon the credible testimony of Whitten Foreman Merritt
denied that he had made any such statement to Whitten . The Trial Examiner rejected
other denials made by Merritt , and Merritt failed to deny similar anti -union conduct-
Consequently, we credit the testimony of Whitten and find that Merritt made the state-
ments subsantially as testified to by Whitten.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thorizations , did not execute them and remarked to Davis, "It 's against
the union , aint it?" Davis replied , "Well it looks that way." 8
Supervisor Sykes spoke to employee Agnes Hardee concerning the
Union about the middle of November 1943. Hardee described the
conversation as follows :
Well , I had my check in my hand , and we were laughing and
talking, and he noticed I had the $1 .50 union dues deducted, and
he told me, he says, "You are all damn fools for signing-includ-
ing my daughters-for sighing the union ." He says . . . "If it
wasn 't for the union you would be getting more than 43 cents an
hour. " I asked him why. He said , "Well, Mr. Land came down
and raised the wages , and found that you all had the union." I
asked him why they didn 't raise the wages before we got the
union, and he didn't answer . That was all that was said.
According to employee Annell Kirkland Meeks, about November 30,
1943, Foreman Merritt told her that a "union was a good thing if it
was started right but . . . this one wasn 't started right." About the
same time Merritt questioned her concerning attendance at a union
meeting and in response to her protest that he should not ask employ-
ees about the Union , stated that "he would talk about the union if he
-wanted to and say what he pleased about it."
In the middle of December 1943, Foreman Merritt questioned em-
ployee Leon Ryals concerning the Union and asked Ryals, "How did
it [the Union ] help you out ?" When Ryals replied that the Union
had secured a wage increase for him, Merritt stated , "Well, one of these
days the union is coming to an end. Other unions in the United
States is better than this one anyway." 9
Shortly after January 7 , 1944, Foreman Merritt told employee
James Meeks, according to Meek's testimony , that "if we had a union
as it was like up north, it would be all right; but the one down here
wasn't started right ." He also told Meeks that the employees could
"throw out" the Union in the coming election and that they would
receive more pay were it not for the Union. Merritt testified that he
did not remember having any such conversation with Meeks. We
credit the statements of Meeks, as did the Trial Examiner .10
g This account is based upon the testimony of Davis, whom we credit, as did the Trial
Examiner . Foreman Merritt' s version of the episode was "I told him that we were
through now, we were going out of the building, but he didn' t mention any union activities
at all"
0 This incident is based upon the testimony of Ryals which we, like the Trial Examiner,
credit. Foreman Merritt testified that he knew Ryals, but that he remembered no such
conversation
j° Consumers excepts to the Trial Examiner ' s crediting of Meeks' testimony on the
ground that "Meeks admitted having lied on other occasions " In support of its exception,
Consumeis points to Meeks' statement that after having quit Consumers ' employ about
January 14, 1944, he returned to work a week later and at that time told Manager
Simpson that he "didn't want any more union dues deducted" and that he w as "through
with the Union," although in fact he was not opposed to the Union. Meeks explained,
CONSUMERS LUMBER ¢z VENEER COMPANY 23
About January 1944, employee J. T. Whitten heard Foreman M.
Shearon tell a group of employees working under his supervision that
if it were not for the Union, they would be "getting more money for
their work than they were."
After Whitten returned to the plant about March 31, 1944, following
an illness, he found an error in his first pay check which he brought
to the attention of Foreman Merritt, who directed him to see Pay-
master W. V. Haygood. Haygood instructed Whitten to return at
another time and to bring the union "president" with him, and prom-
ised to correct the error at that time. When Whitten returned, ac-
companied by employee W. R. Fischer, chairman of the Apopka
Group, Haygood inquired whether Fischer was working. Upon re-
ceiving an affirmative reply, he assailed Fischer, saying, "Why in the
Hell ain't you in the mill at work? What are you loafing out around
here for? •... If (I) was in R. B. Merritt's place I would god-damn
sure fire you just as quick as you got in the mill." When Fischer pro-
tested that the contract between the Union and Consumers provided
for his presence when grievances were discussed, Haygood told him
that the Union did not have any contract."
About June or July 1944, Foreman Merritt made derogatory state-
ments to Whitten concerning two chairmen of the Apopka Group.
He stated that the first union chairman had "got a car out of it" and.
that Fischer, then union chairman, was getting $50 a month.
In the last week of June 1944, according to the testimony of em-
ployee W. R. Fischer, Foreman Merritt lined up the employees at
"pay off" time and announced that there would be no more "ratting
around" on the job and that if employees could not do their work,
they should stay home. When 'Fischer, on the following day, pro-
tested Merritt's remarks, Merritt stated, "Fischer . . . if I was work-
ing for a man and this man didn't want me to work for him, .. .
I would quit." Fischer declared that he would not quit and challenged
Merritt to discharge him. Merritt then said, "No, I'm not going to
fire you," to which Fischer replied, "The trouble with you, Mr. Merritt
however, "I didn't think I would stand in very good to get my job back if I didn't agree
to say that ." Consumers also emphasizes the testimony of Manager Simpson that Meeks
spoke to him on the evening after he had testified at the hearing and told him that he,
Meeks, was "scared" at the hearing and had been informed that he had to repeat what
he had told the Field Examiner in January 1944. Meeks, recalled as a witness , stated
that he told Simpson he had testified at the hearing because he had been subpenaed. He
stated , however , that he had not told Simpson anything to lead Simpson to believe that
he had lied on the stand , and affirmed that the testimony he had previously given was the
truth We are of the opinion that the incidents relied upon by Consumers do not render
Meeks ' testimony unworthy of belief.
11 In connection with this incident it appears that Whitten requested permission of
Foreman Merritt to leave his work in order to adjust his wage grievance with Haygood.
He did not tell Merritt that Fischer was going with him , and Fischer did not request per-
mission to go Upon learning from Haygood of Fischer ' s absence from work , Merritt
reprimanded Fischer for leaving without permission and threatened to discharge him if he
did so again. We agree with the Trial Examiner that Merritt 's reprimand and warning
to Fischer do not constitute an unfair labor practice.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... Everytime you look at me, you see three big CIO letters up in
front of you; its not the work you complain about me; it's just be-
cause I am the leader here of the CIO union." Merritt admitted, "I
can't complain about your work." 12
In July 1944, Foreman Claude Etty told Whitten, that if it were not
for the Union, the employees would be receiving higher wages. In
June or July 1944 Foreman Merritt made a similar statement to
Whitten and another employee, and added that the Union was "gos-
siped up by a bunch of crooks."
Upon the entire record we are convinced and find, as did the Trial
Examiner, that Consumers violated Section 8 (1) of the Act by the
foregoing conduct of its supervisory employees. While admitting
in its brief before the Board that some of its foremen "engaged in
anti-union activities," Consumers disclaims responsibility for such
activities on the ground that they were contrary to instructions. It is
true that about the time Consumers executed the contract with the
Union on February 12, 1943, Harry Land, president of Consumers,
called all foremen into his office and instructed them not to discuss
union activities with the employees, and that in September or October
1943, Plant Superintendent Reinau, who had heard that Foremen
Claude Etty, John Etty, and M. Shearon, had made anti -union re-
marks, called the three supervisors into his office and reminded them of
Land's instructions. There is no showing, however, that the employees
were informed that the anti-union activities of the foremen were con-
trary to Consumers' policy. Accordingly, we find that the anti-union
activities of the supervisory employees were not effectively disavowed
and that they are attributable to Consumers.13
Consumers further contends that the statements of the supervisory
employees are privileged by the constitutional guarantee of freedom
of speech. We are satisfied, however, that the conduct of Consumers'
supervisors exceeds the bounds of the constitutional privilege. Many
of the supervisors' acts and statements are objectionable in themselves.
For example, Foreman Merritt warned Whitten that he should not
engage in union solicitation on company property outside of working
12 Fischer 's testimony is corroborated by that of Whitten, who testified that Merritt had
said "a couple of different times," "if it wasn't for the union , he would fire him [Fischer]."
Merritt was not questioned concerning such threats He did testify that he had not com-
plained concerning Fischer's work until Fischer began work repairing culls in the fall of
1943. At some unspecified time thereafter, he told Fischer that he "wasn 't good enough
to keep up with the machine," and Fischer replied, "If I [Merritt] didn't like the way
he done it, why, to fire him " We, like the Trial Examiner, credit Fischer's testimony
concerning the incident in June 1944
1s See H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514, aff'g 110 F . (2d) 843 (a. C. A. 6),
enf'g 10 N. L It . B. 963.
CONSUMERS LUMBER & VENEER COMPANY 25
hours 14 and threatened to discharge him if he should do so 15 Mer-
ritt's objection to the receipt by Poley Davis of check-off authoriza-
tions which two-employees previously had agreed to sign, and Paymas-
ter Haygood's intimidatory remarks to Union Chairman Fischer,
similarly constituted unlawful interference with legitimate union activ-
ity. Merritt, Supervisor Sykes, and Foremen Shearon and Claude Etty
all made statements to- employees, implying that union affiliation had
resulted and would result in their failure to obtain from Consumers
wage increases which they otherwise would have received. Sykes and
Merritt indicated to employees that Consumers would defeat the
Union. Merritt questioned Annell Kirkland Meeks and Leon Ryals
about their union membership or activity, and invited Fischer to
leave Consumers' employ because of his leadership in the Union.
Considered in the light of these statements and the other unfair labor
practices hereinafter found, we are convinced and find that, by the
totality of the acts and statements of Supervisor Sykes, Foremen
Merritt, Shearon, and Claude Etty, and Paymaster Haygood, Con-
sumers has interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act 16
B. Domination and interference with the formation and administration
of the Workers' Committee; contribution of 'support thereto
In December 1943, about the time of the expiration of the collective
bargaining contract between Consumers and the Union, a movement
was started among the employees of Consumers to divert their interest
from the Union to a rival organization, which came into existence
soon thereafter. The leader in this movement was Supervisor W. L.
Sykes, who, at the time of the hearing, had been employed by Con-
sumers for approximately 6 years as a shipping clerk. In this position
he supervised from three to six truck drivers and laborers, and pos-
sessed authority, to hire and discharge. In July 1943, he became
"bonded representative" of the Douglas Guardian Warehouse Corpora-
14 There is no showing that any prohibition of union solicitation during non -working
hours was necessary in order to maintain production or preserve discipline.
11 See Matter of Republic Aviation Corporation , 51 N. L . R. B. 1186, and Matter of
LeTourneau Company of Georgia , 54 N. L. R . B. 1253, enf'd Republic Aviation Corporation
v. N. L R. B., 323 U. S. 688; N. L. R. B. v . LeTourneau Company of Georgia, 65 S. Ct.
982, decided April 23, 1945.
ii We find untenable Consumers ' contention that the Union has breached its collective
bargaining contract by (1) coercing employees into membership and (2 ) conducting a
strike, and hence, does not appear with "clean hands." The doctrine of "clean hands" has
been previously rejected on the grounds that it is not the Union but the Board which is
proceeding against the employer ( see N. L. R. B . v. Carlisle Lumber Company, 94 F. (2d)
138 (C. C. A 9 ), enf'g 2 N. L R . B. 248 ), and that, although the Union may have
misconducted itself, it has a locus poenitentiae, and if it offers in good faith to bargain,
the employer may not refuse because of its past misconduct ( see N. L. R. B. v. Remington
Rand, Inc., 94 F. (2d ) 862 (C. C A. 2), enf'g as mod 2 N. L. R. B. 626).
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, which "bonded" the material in Consumers' warehouse under
warehouse receipts. As bonded representative, Sykes was charged
with keeping a perpetual inventory of the stock in the warehouse and
yards, accounting for materials received and withdrawn. After tak-
ing over the new position, Sykes was paid by the Douglas Guardian
Warehouse Corporation, but continued to act as shipping clerk for
Consumers. Simpson, Consumers' manager, testified that Sykes, after
becoming bonded representative, ceased to have authority to hire and
discharge. It appears, however, that subsequent to July 1943, Sykes
did hire and discharge employees. Simpson admitted that the em-
ployees were not informed of any limitation of Sykes' supervisory au-
thority upon his assumption of the duties of bonded representative.
Under these circumstances, we find, as did the Trial Examiner'17 that
prior and subsequent to July 1943, Sykes has been a supervisory em-
ployee whose acts are attributable to C'onsumers.18
In his efforts to foment a faction opposed to the Union, Sykes en-
listed the aid of Thomas N. Kilgore, a farmer and citrus fruit buyer ;
Arthur Karst, a caretaker of citrus fruit groves; and C. Rogers Wells,
a practicing attorney. According to the testimony of Kilgore, which
we credit, as did the Trial Examiner, Sykes told Kilgore that he,
Sykes, had talked to John W. Ford, Jr., executive secretary of the
Florida Farm Bureau in Orlando, Florida; that Ford had directed
him to Arthur Karst, who was present at the Farm Bureau office; and
that arrangements had been made for a meeting of the employees of
Consumers in the Farm Bureau office on the evening of January 3,
1944.19 Sykes invited Kilgore to be present at the meeting, and Kilgore
agreed to attend.
Attendance at the meeting of January 3 was promoted among the
employees of Consumers by Sykes and his daughter, employee Town-
send. Townsend testified, and we find, that she "told the people
[employees] what we were going to do and we had asked Mr. Karst,
Mr. Kilgore, and Mr. Wells to help, if they would." 20 Sykes requested
37 No exception was taken to the Trial Examiner ' s finding.
11 See Internatsonat Ass'n of Machinists v. N. L R. B., 311 U S. 72, aff'g 110 F:' ( 2d) 29
(App. D. C ), enf'g 8 N. L. R B. 621.
19 Sykes , whom we, like the Trial Examiner , find to be a reluctant and evasive witness,
testified that he did not know who made arrangements for the meeting of January 3. He
admitted that he went to the Farm Bureau office in search of Karst, but asserted that he
wished to see Karst in regard to a personal matter not connected with the meeting of
Consumers' employees He also maintained that he did not request Karst or Wells to
attend the meeting , and did not know how they happened to be present . Ford testi-
fied that he remembered Sykes ' visiting the Farm Bureau , but that he did not recall what
occurred at that time. Neither Karst nor Wells testified . Sykes further stated that he
"happened " to meet Kilgore in Apopka a "couple of weeks" before January 3, and men-
tioned to Kilgore that his daughters , Lucia ( Dinks) Sykes Townsend and Elwanda Sykes,
were dissatisfied with the Union. Sometime later, according to Sykes , he again met
Kilgore, who suggested that a "little get-together" be held in Orlando. We accept Kilgore's
version of the initial arrangements, as given above.
20 In response to a question as to when the corespondents had been asked , Townsend
further testified , "I asked Mr Kilgore or I had daddy [ Sykes] to, if they would help us
out, and they said they would."
CONSUMERS LUMBER & VENEER COMPANY 27
Kilgore, employees R. V. Campbell ,21 William Carter , and Dorothy
Ellis to use their automobiles to transport employees to the meeting,"
and on the evening of the meeting %vent with Carter to call for those
riding in Carter's automobile . Corespondent Karst also provided
transportation in his automobile.
About 12 or 15 persons were present at the meeting , including Ford,
Kilgore, Karst, and Wells. Karst presided and, according to the
credible testimony of employee Dorothy Ellis , "did most of the talk-
ing." He attempted to show - the employees that the Union had not
been of any benefit to them and asked the employees if they knew that
at the time the Union was organized , Consumers had petitioned the
National War Labor Board for a wage increase . 23 He asserted that
the Union was receiving credit for the increase which Consumers had
initiated prior to the advent of the Union , and stated that the Union
had received a substantial amount in dues without accounting for the
sum. Kilgore told the employees that the union card they had re-
ceived was defective in that it did not authorize them to work on other
jobs. He also alleged that the president of the local to which the
Apopka Group belonged was a Negro , whose picture he promised to
obtain for the employees . Plans were discussed for organizing a
union with membership restricted to the employees of Consumers.
Wells was asked if he could draw up a plan for such an organization,
and he stated that he thought he could do so. It was then agreed
that a second meeting should be held at an early date.
On January 7, 1944, the second meeting was held at the Farm Bu-
reau office in Orlando . Again Sykes urged employees to attend, as-
suring them that transportation would be provided . According to
the credible testimony of employee E. C. Speece , Sykes suggested to
him that he go on a bus and told Speece where to meet the bus. Em-
ployee Annell Kirkland Meeks also credibly testified that Sykes told
her about the bus and its route , and advised her that it "wouldn't cost
iynything .'-' She stated , too, that Townsend told her of the bus trans-
portation . There is credible testimony by employee James Meeks
that he was likewise informed by Townsend that a bus would take
21 Counsel for the Board contends that Campbell was a supervisory employee . Campbell,
as a senior mechanic, directed to some extent the work of less experienced mechanics and
was not required to punch the time clock as they were On rare occasions , when Foreman
Merritt was absent , he acted in the foreman 's place. However , Campbell had no authority
to hire or discharge or to recommend such action . He was a member of the Union, and
his dues were checked off from March 1943 through January 1944 . We find, as did the
Trial Examiner , that Campbell was not a supervisory employee
22 We agree with the Trial Examiner that the evidence fails to establish that gasoline for
these automobiles was furnished by Consumers
23 General Manager Simpson testified that Consumers ' action in December 1942 went no
further than the making of preliminary inquiries as to the steps necessary to get authoriza-
tion for increased wages.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to the meeting?' On the evening of January 7, Sykes met
the group of employees, including Foreman Grover Wheeler, who had
assembled at the appointed bus stop and assigned some of them to
ride in the bus and some to ride with Karst.25 During the trip to
Orlando, according to James Meeks, who rode in Karst's automobile,
Karst stated "that this union wasn't worth a dam and that it was just
like-it was just like the Germans and Japs ; there were some people
that run it that were sneaky . . . He said he thought he would
start him up a union . . . he could get rich off of some of those dumb
people around there." Speaking of Otis Nation, international rep-
resentative who had begun the Union's organizational campaign at
Consumers'26 Karst stated that he had convicted Nation one time and
he intended to convict him the second time and the third.
At the meeting of January 7, Karst again presided and took the
names of the employees present, asking each of them how he liked, the
Union and inquiring as to employee reaction to the previous meeting.
Karst reasserted that the Union was not responsible for the wage in-
crease that had been granted employees. He also questioned Blanche
Fischer, daughter of the chairman of the Apopka Group, as to whether
the president of the union local,was a Negro. Fischer denied that this
was true, and Karst then inquired whether the Union's membership
books permitted transfers to other locals. When Fischer replied
affirmatively, Kilgore intervened and stated that her answer was in-
correct , that such a transfer had been attempted in Orlando and had
failed. During the meeting, Wells declared that he had "fought
the case twice against Nation and there was a possibility of a third
one and you could bet your bottom nickel he would certainly
fight against the union." 27 Wells also remarked that he "had reason
to work with the union and had found out that 'most of them were
racketeers." Karst likewise characterized unions as "racketeers" and
added that "most of them was just a bunch of crooks." During the
latter part of the meeting David L. Moose, international representative
of the Union, was present, and a heated argument occurred between
him and Karst and Kilgore. During the course of the dispute Moose
24 Several employees did go to Orlando by bus. Among these were employees Laura
Etty, Arey Etty, and E. C. Speece , who testified that they did not know who paid the fares.
Kilgore stated that he paid his own fare and that of two employees who got on the bus
with him. Supervisor Sykes declared that he did not know whether or not employees were
transported to the meeting by bus.
25 Employee James Meeks , whom we credit, so testified . Employees Blanche Fischer and
J. T Whitten also testified that they saw Karst and Sykes at the bus stop.
26 Nation was subsequently transferred by the Union to another State
27 This quotation and the entire description of the meeting of January 7 Is based upon
the credited testimony of Blanche Fischer, who gave the most complete account of the
meeting. Employee Whitten gave a similar report of Wells' statement, testifying that
Wells "asked the question if there was any information , or something like that that he
could give before he left, and the remarks he made was that any time you heard tell of a
union you could bet your bottom nickel he was at the bottom of the fight."
CONSUMERS LUMBER & VENEER COMPANY 29
inquired what interest Karst had in Consumers, and Karst replied that
he was interested in seeing that the Union "wasn't just a bunch of
crooks or just a racket."
At the January 7 meeting Karst gave Townsend mimeographed
copies of a form revoking authorizations which the employees had
given Consumers for the check-off of their union dues.28 Thereafter,
Townsend, with the help of her sister, Elwanda Sykes, solicited signa-
tures to the revocation forms in the plant and at the employees' homes.
On one occasion, Karst accompanied her, Elwanda, employee E. C.
Speece, and employee Laura Etty when they called upon employee
Dorothy Ellis. During that visit, according to the credible testimony
of Ellis, Karst questioned her concerning her reason for not signing the
revocation form and asked "if we were to vote and put it to a vote
and call it the `X' union or the `nigger' union, which would I vote for."
On the evening of the visit to Ellis, Karst gave Townsend mimeo-
graphed leaflets-entitled "Facts about the Union at Consumers." These
leaflets disparaged the Union by stating that it had taken the em-
ployees' money and made no accounting, had coerced employees into
joining, had not obtained wage rates as high as those Consumers had
previously petitioned the War Labor Board for permission to pay,29
and had promised Negro employees equal work and social privileges
with white employees. Townsend distributed the leaflets to the em-
ployees visited that night and placed the remainder of them in the
plant where they could be picked up by employees as they came to
work. Elwanda Sykes also passed out the leaflets in the plant during
working hours.
At about the time the leaflets were being distributed, Sykes gave
Townsend a picture of the man who Kilgore, at the meeting of January
3, had stated was president of the union local and whose picture Kilgore
had promised to obtain. Townsend and Elwanda Sykes circulated the
picture in the plant during working hours. Employee J. T. Whitten,
whom we credit, as did the Trial Examiner, testified that Townsend
showed him the picture while he was at work, stating, "that is our presi-
211 form was as follows :
APOPKA, FLORIDA, January -, 1944.
CONsumEa 's LUMBER AND VENEER COMPANY
Apopka, Florida.
GENTLEMEN : The contract between Consumers Lumber and Veneer Company and
Florida Citrus and Allied Workers Union, Local 4, UCAPAWA-CIO, dated February
12, 1943 , having expired under its own terms, you are hereby directed and required
to deduct no further sums of money from my wages as an employee of the company
for Union dues or any other Union purposes.
(Signed)----------------------------
39 Manager Simpson, who testified that he had knowledge of the leaflets several days after
they were distributed in the plant , admitted that Consumers had not actually made appli-
cation for an increase in wages prior to the signing of the contract of February 12, 1943.
See footnote 23, supra.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent of our Local Number 4. A damn nigger." When Whitten re-
plied that Fischer was president, Townsend declared, "No.... it's
this nigger ... it's low down and degrading for us to belong to it and
a damn nigger president."
Sykes also took ah active part in soliciting signatures to the forms re-
voking check-off authorizations. According to the credible and un-
contradicted testimony of employee Willie F. Rose, Sykes approached
him in the plant about the time of the Orlando meetings, advising Rose
"I will bet you twenty dollars you couldn't borrow nary a nickel from
the union right now, but you could get it from the company," and in-
forming Rose that "he could tell me the way to get out if I wanted to,
and wanted me to tell the others if they wanted to get out to see him
and he could tell them a way to get out." Employee Frank Greene also
gave uncontroverted and credible testimony that in January, about
the time of the Orlando meetings, Sykes asked him and a group of em-
ployees assembled before work, whether they wanted to continue with
the Union or "get out of it" and counseled them that "if we wanted to
quit, he could tell us how to get out, and if we didn't we could just go
ahead on with it." Greene further stated that Sykes added "if he was
we, he wouldn't fool with the union any more . . . he didn't see where
it was doing us any good, or anybody else . . ." and that he did not
see "why we wanted to keep on paying out our money to it." There is
also unrefiited testimony by employee R. V. Campbell, whom we
credit, that he signed a revocation form at Sykes' solicitation.
A third meeting of the dissident group was held on January 27,1944.
At the request of Karst, Kilgore arranged with the principal of the
public schools for the use of a room in-the schoolhouse at Apopka,
Florida. The meeting held there was attended by from 10 to 12 em-
ployees and by Karst and Wells. Neither Sykes nor Kilgore was
present. At that time employees Townsend, Speece, and Vesmer Man-
ley were designated as a committee. , According to Speece, the commit-
tee was appointed to arrange for an election "to see if we had to stay in
the union or whether there was a majority there against it." The only
action taken by this committee was the signing and submission to Con-
sumers of a letter asserting the committee's claim to represent a major-
ity of the employees at Consumers.30 Kilgore transmitted to Town-
"The full text of the letter is as'follows :
APOPKA, FLORIDA , January 29, 1944.
CONSUMERS LUMBER & VENEER COMPANY,
Apopka, Florida
GENTLEMEN : We, the undersigned , have been appointed as a committee to take up
with you the matter of representation by Florida Citrus and Allied Workers Union,
Local No 4, UCAPAWA-CIO as bargaining agent for your employees.
We understand that the contract which you entered into dated February 12, 1943,
with the Union , expired as of December 31, 1943, and that you are now negotiating
with the Union on a new contract.
This letter is to inform you that Florida Citrus and Allied Workers Union, Local
No 4, UCAPAWA-CIO is not the choice of a majority of your employees as their bar-
CONSUMERS LUMBER & VENEER COMPANY 31
send three copies of the letter 31 which he had received from Wells, who
had instructed him to tell` Townsend "to get these letters signed by the
committee and to mail one to him and one'to the Consumers, and I be-
lieve one to Mr. Voorhis." 32 Both Townsend and Speece, in their testi-
mony, evinced very hazy notions as to the purpose of the committee and
the purport of the letter, and Speece did not recognize a copy of the let-
ter when it was first presented to him. We are satisfied and find, as did!
the Trial Examiner, that Wells drafted the letter.
The letter came to the attention of Manager Simpson in the same
mail in which he received 22 revocations of authorizations for the check-
off of union dues. Simpson testified that he understood that the revo-
cations accompanied the letter, and that he "looked them over and
brought them into Mr. Voorhis the next day, I believe." Subsequently,
the letter and the revocations were used as the basis of a petition for an
investigation and certification of representatives filed by Consumers.
Following submission of the letter of January 29, 1944, the Workers?
Committee took no further action of any kind. No other meetings
were held, and no additional demand was made upon Consumers. '
Upon the foregoing and the entire record, we agree with the Trial
Examiner's finding, to which no exception has been taken, that Con-
sumers and the corespondents have violated Section 8 (2) of the Act
with respect to the Workers' Committee. Following the extended
course of conduct in opposition to the Union by Consumers' supervisory
employees, the Workers' Committee was formed in January 1944 upon
the termination of the Union's collective contract with Consumers.
The anti-union meetings leading to its formation were arranged by
Supervisor Sykes, for whose activities Consumers is responsible, and
by the corespondents, whose assistance Sykes engaged. Attendance
at the meetings was promoted in the plant by Sykes and his daughter
Townsend, and transportation to the meetings was provided for the
employees. The meetings were conducted by the corespondents, who
sought to implant in the minds of the employees a distrust of the Union
gaining agent, and you are requested to immediately stop negotiations with such
Union until such time as they submit proper proof and it represents a majority of
your employees.
We claim to represent a majority of your employees and request that you take the
proper procedure either by election or otherwise, to determine at this time whom the
majority of your employees desire to represent them as a bargaining agent.
Respectfully submitted,
LUCID TOWNSEND,
E. C. SPEECE,
VESMER MANLEY,
Committee.
CC Mr HARRY F. VOORHIS,
Orlando, Florida.
31 Townsend testified that she received the letters in stamped and addressed envelopes
from Elwanda Sykes, who told her she had been given them by Kilgore.-
Voorhis is counsel for Consumers.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and doubt as to its usefulness, and to stimulate the formation of a labor
organization confined to employees of Consumers. Anti-union propa-
ganda furnished by Sykes, Kilgore, and Karst was circulated in the
employees' homes and on company time and property. Employees
were also solicited in the plant during working hours by Townsend
and Sykes to revoke their authorizations for the check-off of dues
to the Union. In view of Sykes' participation and the extent of these
activities within the plant, we are satisfied and find that Consumers
was aware of them. The permitting of such solicitation and open
circulation of anti-union literature in the plant was in marked con-
trast to Consumers' outspoken antagonism to the Union and the treat-
ment it accorded proponents of the Union. Finally, the letter as-
serting the Committee's claim of representation was supplied by Wells
and Kilgore. The signers appeared to have little familiarity with its
form or the purpose for which it was submitted to Consumers. The
Committee engaged in nb activity except for the submission of this
letter pursuant to the instructions of Wells and Kilgore.
Under these facts we agree with the Trial Examiner that the Work-
ers' Committee was not the free choice of employees of Consumers,
but was formed by Consumers and the corespondents for the purpose
of displacing the Union as the representative of the employees. In-
deed, as set forth above, neither Consumers nor the corespondents
took exception to the Trial Examiner's finding that the organization
of the Workers' Committee was in violation of the Act.
We also find, as did the Trial Examiner, that the corespondents,
Karst, Kilgore, and Wells, are employers within the meaning of Section
2 (2) of the Act. Their activities were instigated by Supervisor Sykes,
whose conduct is attributable to Consumers. Their efforts to estrange
the employees and the Union and to form the Workers' Committee
coincided with the attempt of Consumers to dissipate the Union's
majority. By acting at the instance of. Sykes and by participating
in Consumers' unlawful scheme to rid itself of the Union, the core-'
spondents acted in the interest of Consumers and became employers
within the meaning of the Act.33
Accordingly, we find that Consumers, Arthur Karst, Thomas N.
Kilgore, and C. Rogers Wells dominated and interfered with the for-
mation and administration of the Workers' Committee and contributed
support to it, and by such conduct interfered with, restrained, and
coerced the employees of Consumers in the exercise of the rights guar-
anteed in Section 7 of the Act.
$' See N L R B. v. Taylor-Colquitt Co ., 140 F. ( 2d) 92 (C. C. A. 4), enf'g 47 N. L. R. B.
225; N L R. B v. Northwestern Mutual Fire Ass'n, 142 F. ( 2d) 866 (C. C. A 9), enf'g
46 N. L. R. B. 825.
CONSUMERS LUMBER & VENEER COMPANY 33
C. The refusal to bargain
1. The appropriate unit
In an agreement between Consumers and the Union for a cross-
check, approved by the Board's Regional Director on January 11,
1943, the appropriate unit of Consumers' employees was defined as "all
production and maintenance employees of the employer, excluding
supervisory employees, clerical employees and watchman." This
definition, modified to designate in the plural the classification of
watchman, was adopted in the collective bargaining contract of Febru-
ary 12, 1943, and in the petition for investigation and certification of
representatives filed by Consumers on February 4, 1944. At the hear-
ing, the parties agreed that the unit established by these documents
is appropriate. They further agreed that the unit should not be con-
strued to cover the logging operations of Consumers which were be-
gun a short time prior to the hearing. Accordingly, we shall limit
the unit to the employees of Consumers working in the plant.
We find that all production and maintenance employees working
in the plant of Consumers, excluding clerical employees, watchmen,
and supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
2. Representation by the Union of a majority
in the appropriate unit
The report on cross-check made by the Board's Regional Director
on January 12, 1943, showed that there were 221 employees within
the appropriate unit; that the Union submitted 201 designations; and
that 179 of the designations bore the signatures of employees whose
names appeared on the eligibility list. Following this cross-check,
Consumers and the Union entered into the contract of February 12,
1943, which provided for the deduction of union clues upon the volun-
tary, written authorization of employees.
The record does not show that the Union's majority established in
the cross-check has been lost. Indeed, notwithstanding the wide-
spread anti-union campaign of the respondents and the illegal forma-
tion of the Workers' Committee, only 22 employees revoked their
authorizations for the check-off of lnnion dues.34 Any loss which may
31 On January 19, 1944, pursuant to the check -off provision of the contract of February
12, 1943, as extended , Consumers deducted the dues of 151 of the 158 employees then in
the appropriate unit . Although Consumers thereafter ceased to deduct union dues, 69
employees made voluntary payments to the Union.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have occurred, however, must be attributed to the unfair labor prac-
tices of Consumers which, as found herein, continued throughout the
term of the Union's contract and following its expiration."
Consumers contests the Union's majority, however, on the ground
that the Union resorted to coercive methods to induce employees to
join. In support of this contention, Consumers points to several in-
cidents, the majority of which occurred in the spring of 1943. At that
time, shortly after the collective bargaining contract was signed on
February 12, 1943, Union Chairman Fischer told employee J. R.
Rogers, according to Rogers' testimony, that if lie "worked for the
Consumers Lumber & Veneer Company [he] would have to join the
Union." Rogers, however, did.not join. Thereafter, when difficulties
were encountered in obtaining a notarized list of union members to
be used as a basis for administering the check-off and maintenance of
membership provisions of the contract, the Union conducted a strike
from March 4 to 8, 1943. During the strike, union adherents picketed
the plant and advised employees not to enter. Employees R. V. Camp-
bell, Lucia Townsend; James Meeks, and E. C. Speece testified that
union members made statements to the effect that employees could not
work unless they signed check-off, authorizations. Speece further
'stated that it was "rumored around" that employees would not receive
back pay 36 if they did not permit their dues to be deducted and would
not receive vacations unless they paid their dues. There is also testi-
mony by employee L. P. Hart that the union president told him not to
enter the plant and that if he did enter "they would stick me and drag
me out." Hart then joined the Union. The testimony of employee'
G. It Goolsby was that when he went to work on the morning the
strike was called, union member Lonnie Kirkland told him "You will
have to join, or quit work." Employee J. W. Gandy gave testimony
that Kirkland told him, "We will make old man Goolsby join up . . .
We will beat hell out of him, or run him off." Gandy reported this
remark to Goolsby who thereafter left Consumers' employ. On March
8, 1943, when the employees who had been on strike returned to work
and discovered that employee Lulu Shearon had not signed an author-
ization, they ceased work and, according to her testimony, told her
"You are holding down the whole works. . . . You will have to go
sign." Shearon then signed an authorization for the check-off of
union dues. Later, in December 1943, when employee James'Kindall
inquired whether membership in the Union was compulsory, Union
Chairman Fischer and union member Whitten told him, as testified
by Kindall, that "under the contract it is not, but us others will not work
beside you unless you are a member." Kindall thereupon joined the
35 See N L R B v. Bradford Dyeing Assn, 310 U. S 318 ; Medo Photo Supply Corp v.
N. L it. B, 321 U. S. 678.
m The contract of February 12, 1943, established a basic rate of pay subject to the ap-
proval of the National War Labor Board. The rate of pay was made retroactive to Janu-
ary 14 , 1943 , and this was what Speece referred to as "back pay."
CONSUMERS LUMBER Sc VENEER COMPANY 35
Union. In December 1943 union members also told employee L. B.
Sykes that employees would be "fired" if they did not join the Union.
When Sykes protested that employees could not be discharged for not
joining since the plant was an "open shop," the union adherents stated
"We can beat the hell out of them and run them off." 37 Finally, there
is testimony by Foreman R. B. Merritt that shortly before August
1944, employee Thornton complained to him that union members had
told her she must join the Union or quit her employment. Although
Merritt advised her that this was not true, Thornton decided to leave
Consumers' employ.
We find no merit in Consumers' contention. Irrespective of
whether the Union's conduct described above exceeds the scope of cus-
tomary organizational activity, it cannot affect the Union's majority
status since it occurred subsequent to the cross-check of January 12,.
1943, and, hence, could not have prompted the designations upon which
the Union's majority was established. Even assuming, however, that
it had occurred prior to the determination of the Union's majority, the
results would not have been different. Only a small number of author-
izations were shown to be attributable to the Union's conduct com-
plained of by Consumers. Absent this number, the Union would still
retain its majority representation. Moreover, notwithstanding its
present objection to the Union's activities, Consumers recognized the
Union's claims to membership and deducted dues from March 1943
through January 1944. It continued in effect the collective bargain-
ing contract until February 7, 1944. This contract provided that the
Union and its officers would not "intimidate or coerce employees into
membership" and that any dispute arising as to violation of the pledge
should be regarded as a grievance and handled under the grievance
procedure set forth in the contract. No such grievance was ever pre-
sented during the period in which the contract was effective.
We find that on January 12, 1943, and at all time thereafter, the
Union was the duly designated representative of a majority of the em-
ployees in the appropriate unit defined above and that, pursuant to
Section 9 (a) of the Act, the Union was on that date and at all times
thereafter, and is now, the exclusive representative of all the employees
in the aforesaid unit for the purposes of collective bargaining, with
respect to rates of pay, wages, hours of employment, and other condi-
tions of employment.
3. Sequence of events 38
In December 1943, when the termination date of its collective bar-
gaining contract with Consumers approached, the Union sought to
This incident is based upon the testimony of L. B . Sykes.
Unless otherwise indicated , the findings in this section are based upon uncontradicted
testimony which we, like the Trial Examiner , find credible.
662514-46-vol 63-4
36 D)RCISIONS OF NATIONAL LABQR RELATIONS BOARD
arrange a bargaining conference . On December 13, 1943, Union Rep-
resentative Moose telephoned to Consumers ' counsel , Voorhis, and on
December 14, Moose and Mrs. Beatrice McCrea, a field representative
of the Union, met with Voorhis. At this time Voorhis stated that he
doubted the Union's majority . He further declared , "You know the
War Labor Board has issued an order there is a fifteen -day escape
clause between contracts " and affirmed his purpose to enforce the pro-
vision. A tentative date was then set for a conference on December
21, 1943, when Captain Henry W. Land, who , as president of Con-
sumers, had signed the original contract , could be present . Land was
in military service and did not return until December 22. On this date
another meeting was held in Voorhis' Orlando- office . Consumers was
represented by Voorhis , Simpson, Land, and General Manager Green-
leaf; and the Union, by Moose , McCrea, and a committee of six em-
ployees, including Chairman Fischer. Moose asked that negotiations
be undertaken to formulate a new agreement . Voorhis again raised the
question of the Union's majority and stated that he intended to ask the
Board to hold an election . When Moose asserted that Consumers could
not petition the Board for an election, Voorhis retorted that, as a
lawyer, he was familiar with the Act and knew that Consumers could
so petition. Moose asked Voorhis if he would submit proposals for
changes in the contract . Voorhis was not prepared to do so, but said
to Moose, "You can let me have your proposals ." Moose refused, and
it was arranged to exchange the proposals on the following day. The
union representatives pointed out that it might not be possible to com-
plete negotiations before the termination of the contract and suggested
an extension agreement. To this suggestion Voorhis replied, "I don't
know. I will have to think it over."
The parties separated with the understanding that they would meet
again on December 28. When the union representatives and commit-
tee members came to Orlando on that date, they telephoned to Voorhis
who informed them that there would be "no need for the committee to
come up" since Consumers had not decided what it "intended to do."
The committee members then returned to Apopka. However, Moose
and McCrea did meet with Voorhis and Land on December 28, and an
extension agreement was then executed. extending the original contract
"for a period of one month or until January 31 , 1944," and providing
that any increase in wages under the terms of the contract consum-
mated thereafter should be retroactive to January 1, 1944. Moose and
McCrea inquired whether "the Company intended to contest our repre-
sentation at the expiration of the contract as extended," and Voorhis
replied that Consumers had not definitely decided. Captain Land
advised the union representatives that in the future Voorhis and Simp-
son would represent Consumers . It was agreed "to postpone any fur.
CONSUMERS LUMBER & VENEER COMPANY 37
Cher negotiations in regard to a new contract until after the first of
January 1944."
While negotiations were thus pending with the Union, Consumers,
continuing the anti-union activities it had pursued throughout the
term of the contract with the Union, arranged the Orlando meetings
which culminated in the formation of the Workers' Committee. On
January 6, 1944, the Union filed charges of unfair labor practices with
the Board.
Late in January 1944, on the understanding that a further bargain-
ing conference had been arranged,39 the members of the Union's ne-
gotiating committee made a trip to Orlando, but upon telephoning
Voorhis' office they were informed that he was out of the city. On
January 29, 1944, however, another meeting was held, and a second
extension agreement was executed extending the contract until Feb-
ruary 7, 1944, and repeating the provision that any wage increase
granted should be retroactive to January 1, 1944.
As indicated above, upon receipt of a letter dated January 29, 1944,
asserting the Worke'rs' Committee's claim of representation and of 22
revocations of authorizations for the check-off of dues to the Union,
Consumers filed a petition for an investigation and certification of
representatives. At a meeting on or about February 2, 1944, Voorhis
informed the union representatives of this action, stating that he had
mailed the petition to the Board that morning.40
On February 23, 1944, Consumers manager, Simpson, without con-
sulting the Union, made application to the National War Labor Board
for a general wage increase covering practically all employees in the
plant. On March 31, 1944, he again took unilateral action in expand-
ing the existing plan of group insurance. According to his credited
testimony, he first presented the proposal to the foremen, who ap-
proved; thereafter called in a group of 16 employees, all of whom
agreed to accept the plan; and finally explained the proposal to the
employees generally.
About March 8, 1944, Union Representatives McCrea and Mathews 41
called on Voorhis to discuss with him the check-off of union dues which
3° In a letter doted January 11, 1944, Voorhis, replying to the Regional Director's noti-
fication that the Union had filed charges, stated that Owen W. Schaefer, a ,commissioner
of conciliation of the United States Department of Labor, had called on Voorhis on Janu-
ary 7 in an effort to compose the differences between the Union and Consumers Voorhis
at that time requested Schaefer to notify Moose that January 25 would be the tentative
(late for further negotiations
'° The petition, dated February 2, 1944, ivas filed with the Board on February 4, 1944.
It was dismissed on July 19, 1944, by the Regional Director whose ruling was upheld on
August 26, 1944.
41 Consumers contends that it was under no obligation to bargain with Mathews as the
representative of the employees since she is not shown to have complied with provisions of
a Florida statute, Chapter 21,968 of the laws of 1943, which requires business agents of
a union to apply to the Secretary of the State of Florida for a license This State act
further provides for the filing of annual reports by unions We find this contention without
merit. See Matter of Eppinger and Russell Company, 56 N. L. R. B. 1259; Hall v. Watson,
( Sup. Ct. ), 16 L R. R. 539, decided June 11, 1945.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consumers had ceased deducting on January 19, 1944.42 Voorhis re-
fused to turn over to the Union the dues Consumers had collected on
that date, expressing the fear that if he paid the dues to the employees
the Union would sue him and if he paid them to the Union, the em-
ployees would tue him. He also took the position that the matter was
in litigation since at the time there was pending before the Regional
War Labor Board a hearing on an Interim Directive Order of that
agency 4s directing the parties to continue in "full force and effect"
the terms and conditions of the contract of February 12, 1943, until
the issues before the National Labor Relations Board should be deter-
mined.
On March 24, 1944, the Interim Directive Order of February 17,
was affirmed, and on May 18, 1944, the National War Labor Board
denied Consumers' petition for review and adopted the order of the
Regional Board. Thereafter, about June 13, 1944, Mathews met with
Voorhis to ask whether he was prepared to carry out the order of
the National War Labor Board. Voorhis raised questions as to the
interpretation of the order, which were incorporated in a joint inquiry
from the Union and Consumers and referred to the National War
Labor Board.
Upon receipt of the answer of the National War Labor Board, dated
July 3, 1944, directing that the contract be continued in effect without
interruption from February 7, 1944, the terntination date of the last
extension agreement, Mathews again communicated with Voorhis
and met with him and Manager Simpson on or about July 12.
Mathews proposed that they discuss methods of straightening out the
situation "particularly as to the check-off." Voorhis replied "Well, yes,
that is all you are interested in is money." Mathews stated that the
Union was also interested in a proper settlement of grievances and
that the object was "to see the whole contract put back in full force
and effect." Voorhis declined, however, to give the Union a letter
stating that the agreement was still fully effective. Since there was
some possibility that he might "change his mind," Mathews arranged
to telephone the next day. On doing so, she was told that Voorhis
was absent from his officee. Or calling back later, she was informed
that Voorhis was in conference.
On July 24, 1944, Mathews and Union Chairman Fischer met with
Voorhis and Simpson to discuss further plans for putting into opera-
tion the contract between the Union and Consumers. In order that the
checkoff of dues might be resumed, the union representatives sub-
92 On this date Consumers deducted union dues amounting to $226 50. It refused to
turn over this amount to the Union or to deduct further sums on the ground that the check-
off authorizations were limited to the life of the contract of February 12, 1943 , which had
terminated . It also*declined to accept other authorization cards from the Union.
43 The record does not reveal who instigated the proceeding before the war Labor Board
nor the date when it was filed.
CONSUMERS LUMBER & VENEER COMPANY 39
mitted to Simpson authorization cards secured since January 1944,
and a list of dues payments made directly to the Union subsequent to
January 1944. The Union reque9t6d that 1 month's dues be deducted
on each weekly pay day until the arrears of each union member had
been covered. Some discussion was also had with -respect to the grant-
ing of vacations. Chairman Fischer stated to Simpson that "it was
his desire as chairman for the Apopka group to cooperate with the
Company; that we didn't desire to fight, and that all that we wanted
ws cooperation." Simpson replied "I will cooperate with you as far
as the plant is concerned, but I am not going to sign another CIO
contract," and further stated that "he was going to fight us [the
Union] to the last ditch." 44 Voorhis asserted that "he intended to
fight it to the Circuit Court of Appeals."
From the foregoing and the entire record we are convinced that
Consumers has refused to bargain collectively with the Union, within
the meaning of the Act. As found above, throughout the term of its
first agreement with the Union, Consumers engaged in an anti-union
campaign designed to destroy the Union's majority status. About
the time of the expiration of the agreement at the end of December
1943, this campaign reached its climax in Consumers' participation,
with the assistance of the corespondents, in arranging and conducting
the anti-union meetings from which the Workers' Committee evolved.
When, shortly before the termination of the agreement, the Union
sought to negotiate a new agreement, it was met on December 14 and
22 by Voorhis' expressions of•doubt as to the Union's majority status,
and, on December 28, was notified by Voorhis that it would be futile
to meet concerning a new agreement because Consumers had not yet
,decided what it "intended to do." Thereafter, immediately upon re-
ceipt of the claim by the Workers' Committee of majority representa-
tion, supported only by 22 revocations of authorizations for the check-
off of dues to the Union, Consumers sought to take advantage of its
unlawful conduct by petitioning the Board for an election, in accord-
ance with its previously stated intention, and by this means further
to evade or delay its obligation to bargain with the Union. Consumers
in other ways evidenced its refusal to bargain in good faith concern-
ing a new agreement. In February, without notification to or consul-
tation with the Union, Consumers determined to change existing wage
rates and applied to the National War Labor Board for permission
to do so. In March it again ignored the Union and took unilateral
action, following consultation with the employees directly, in expand-
94 The finding as to Simpson's statements is based upon the testimony of Mathews, which
we Credit, as did the Trial Examiner. Mathews' testimony was corroborated at least in
part by that of Simpson who testified, "Yesterday Miss Mathews stated that at Mr. Voorhis'
office I made the statement that I would fight the union to the last ditch, That is correct,
and I intend to do so, but I also stated in the next breath that I would fight for my em-
ployees to the last ditch."
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the existing plan of group insurance. Finally, Consumers' de-
termination not to bargain with the Union is plainly shown by Man-
ager Simpsoh's statements in July 1944, that he would not "sign an-
other CIO contract" and intended to "fight [the Union] to the last
ditch." We are satisfied that at least by December 28, 1943, about the
time that Consumers started to participate in the formation of the,
Workers' Committee, and the date on which the Union was told that
it would then be futile to meet with Consumers concerning a new agree--
ment and that Simpson would thereafter represent it in negotiations,
Consumers had adopted a fixed determination not to bargain sincerely
with the Union in order to reach an agreement.
We find that, by engaging in evasive and delaying tactics, by pro-
moting an anti-union campaign to'dissipate the Union's majority, by
sponsoring the formation of a rival labor organization, by taking uni-
lateral action with respect to wages and other conditions of employ-
ment, and by stating categorically that it would not sign another con-
tract with the Union and would fight the Union "to the last ditch,"
Consumers on December 28, 1943, and at all times thereafter has re-
fused to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit,' thereby interfer-
ing with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above,
occuring in connection with the operations of Consumers 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 respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies of
the Act.
We have found that all the respondents have dominated and inter-
fered with the formation and administration of the Workers' Com-
45 we find no merit in Consumers ' contention that the Union has forfeited its right to
require Consumers to bargain by breaching the provisions of its contract , which contained
clauses prohibiting the use of coercive methods to secure members and the conduct of a
strike. Neither the fact that the Union has allegedly engaged in misconduct by violating
its contractual obligations nor the fact that the collective bargaining contract has been
breached , relieves Consumers of its statutory duty to bargain with the chosen representa-
tives of its employees . See footnote 16, supra. See also N. L. R. B. v. Highland Shoe, Inc..
119 F. ( 2d) 218 (C. C. A. 1), enf'g 23 N. L. R. B. 259.
CONSUMERS LUMBER & VENEER COMPANY 41
mittee, and contributed support to it. - Accordingly, we shall order
that each of them cease and desist from such conduct.46 In addition,
in order to effectuate the policies of the Act, we shall order Consumers
to withhold all recognition from the Workers' Committee and com-
pletely disestablish that organization as the representative of any of
Consumers' employees for the purpose of dealing with it concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment.
`We have also found that Consumers refused to bargain collectively
with the Union as the exclusive representative of its employees in an
appropriate unit. Accordingly, we shall order Consumers, upon re-
quest, to bargain collectively with the Union as such representative
with respect to rates of pay, wages, hours of employment, or other
conditions of employment.
Upon the basis of the foregoing findings"of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Cannery, Agricultural, Packing and Allied Workers of
America, Florida Citrus and Allied Workers, Local 4, affiliated with
the Congress of Industrial Organizations, and the Workers' Committee
are labor organizations, within the meaning of Section 2 (5) of the
Act.
2. The corespondents, Arthur Karst, Thomas N. Kilgore, and C.
Rogers Wells, are employers of the employees involved herein, within
the meaning of Section 2 (2) of the Act.
3. By dominating and interfering with the formation and admin-
istration of the Workers' Committee and by contributing support to
it, the respondents have engaged in and are engaging in unfair labor
practices, within the meaning of Section 8 (2) of the Act.
4. All production and maintenance employees working in the plant
of Consumers, excluding clerical employees, watchmen, and super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the
Act.
5. United Cannery, Agricultural, Packing and Allied Workers of
America, Florida Citrus and Allied Workers, Local 4, affiliated with
the Congress of Industrial Organizations, was on January 12, 1943,
48 We find it unnecessary , in order to effectuate the policies of the Act, to order, as recom-
mended by the Trial Examiner , that the corespondents cease and desist from engaging In
unfair labor practices in the interest of any employer other than Consumers . ' See Matter
of The National Lime and Stone Company, et at, 62 N. L It. B. 282.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and at all times thereafter has been, the exclusive representative of all
employees in the aforesaid appropriate unit for the purposes of collec-
tive bargaining, within the meaning of Section 9 (a) of the Act.
6. By refusing on December 28, 1943, and at all times thereafter, to
bargain collectively with United Cannery, Agricultural, Packing and
Allied Workers of America, . Florida Citrus and Allied Workers,
Local 4, affiliated with the Congress of Industrial Organizations, as
the exclusive representative of its employees in the appropriate unit,
Consumers has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (5) of the Act. -
7. By interfering with, restraining, and coercing the employees of
Consumers in the exercise of the rights guaranteed iii Section 7 of the
Act, the respondents have engaged in and are engaging in unfair
labor practices, within the meaning of Section 8 (1) of the Act.
8. 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 foregoing 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:
A. Consumers Lumber & Veneer Company, Apopka, Florida, and
its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of the
Workers' Committee or with the formation or administration of any
other labor organization, and from contributing support to the Work-
ers' Committee or to any other labor organization;
(b) Recognizing, or in any manner dealing with, the Workers'
Committee as the representative of any of its employees for the pur-
pose of dealing with Consumers concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment;
(c) Refusing to bargain collectively with United Cannery, Agri-
cultural, Packing and Allied Workers of America, Florida Citrus and
Allied Workers, Local 4, affiliated with the Congress of Industrial
Organizations, as the exclusive representative of all production and
maintenance employees working in the plant of Consumers, exclud-
ing clerical employees, watchmen, and supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, with respect to rates of pay, wages, hours of employment, and
other conditions of employment.
CONSUMERS LUMBER & VENEER COMPANY 43
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Cannery, Agricultural.
Packing and. Allied Workers of America, Florida Citrus and Allied
Workers, Local 4, affiliated with the Congress of Industrial Organiza-
tions, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act.
2.' Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withhold all recognition from the Workers' Committee as the
representative of any of its employees for the purposes of dealing with
Consumers concerning grievances, labor disputes, rates of pay, wages,
hours of employment, or other conditions of employment, and coin-
pletely disestablish the Workers' Committee as such representative;
(b) Upon request, bargain collectively with United Cannery, Agri-
cultural, Packing and Allied Workers of America, Florida Citrus and
Allied Workers, Local 4, affiliated with the Congress of Industrial
Organizations, as exclusive representative of all production and main-
tenance employees working in the plant of Consumers, excluding cleri-
cal employees, watchmen, and supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, with re-
spect to rates of pay, wages, hours of employment, and other condi-
tions of employment;
(c) Post at its plant at Apopka, Florida, copies of the notice at-
tached hereto marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Tenth Region, shall, after
being duly signed by Consumers' representative, be posted by Con-
sumers immediately upon receipt thereof and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Consumers to insure that said notices are
not altered, defaced or covered by any other material ;
.(d) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order, what steps Con-
sumers has taken to comply herewith.
B. The corespondents, Arthur Karst, Thomas N. Kilgore, and C.
Rogers Wells, and the respective agents, successors, and assigns of
each of them, when acting severally, jointly, or in concert with Con-
sumers, as agent for or in the interest of Consumers, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of the
Workers' Committee or with the formation or administration of any
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization of the employees of Consumers, and from
contributing support to the Workers' Committee or any other labor
organization of the employees of Consumers;
(b) In any other manner interfering with, restraining, or coercing
the employees of Consumers in the exercise of the right of self -organi-
zation, to form labor organizations, to join or assist United Cannery,
Agricultural, Packing and Allied Workers of America, Florida Citrus
and Allied Workers, Local 4, affiliated with the Congress of Indus-
trial Organizations, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Immediately send notices in writing through the United States
mail to all employees of Consumers Lumber R Veneer Company,
Apopka, Florida, stating that° they will not engage in the conduct
from which they are ordered to cease and desist in paragraph B, 1,
(a), and (b) of this Order;
(b) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
corespondents, Arthur Karst, Thomas N. Kilgore, and C. Rogers Wells,
have taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
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, we hereby notify our employees that :
We hereby disestablish Workers' Committee as the representa-
tive of any of our employees for the purpose of dealing with us
concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, and we will
not recognize it or any successor thereto for any of the above
purposes.
We will not dominate or interfere with the formation or admin-
istration of any labor organization or contribute financial or other
support to it.
We will bargain collectively upon request with the United Can-
nery, Agricultural, Packing and Allied Workers of America,
CONSUMERS LUMBER & VENEER COMPANY 45
Florida Citrus and Allied Workers, Local 4, affiliated with the
Congress of Industrial Organizations, as the exclusive representa-
tive of all employees in the bargaining unit described herein with
respect to rates of. pay, hours of employment or other conditions
of employment, and if an understanding is reached, embody such
understanding in a signed agreement.
The bargaining unit is: all production and maintenance em-
ployees working in the plant, excluding clerical employees, watch-
men, and supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect,changes in the status of
employees, or effectively recommend such action.
We will not- in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the above-named recognized
representative or any other labor organization, 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. All our employees are free to become or
remain members of this union, or any other labor organization.
CONSUMERS LUMBER & VENEER COMPANY,
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.