Tyrrell County Lumber Co.

National Labor Relations Board - Board Decisions

Oct 30, 1952

101 N.L.R.B. 155 (N.L.R.B. 1952)

TYRRELL COUNTY LUMBER COMPANY 155
the Intervenor early in 1951 resulted in a contract, dated May 15, 1951,
and signed by each of the six employers and each of the Intervenor's
locals involved, which covered the welfare fund and a wage raise,
and extended for 3 years the existing individual contracts of each em-
ployer with the Intervenor. This multiemployer agreement contains
no reference to hours, holidays, vacations, seniority, and similar mat-
ters customarily covered in complete collective bargaining contracts,
unless the extension clause is considered to have incorporated each
individual contract by reference. However, apart from any signifi-
cance that the type of contract may have, we conclude that the evidence
as to the reason for joint bargaining, the method employed, and the
relatively short period involved, show a lack of real intent by the
contracting parties to bargain on a multiemployer basis.8 In view
of these facts we find the unit requested appropriate.
Accordingly we find that all production and maintenance employees
of the Employer at its Franklin Street, Old Forge, Pennsylvania,
plant, excluding executives, foremen, clerical employees, guards,
watchmen, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
8 , See Jewish Bakery Association , 100 NLRB 1245 ; compare Taylor A Boggis Foundry
Division of the Consolidated Iron -Steel Manufacturing Company, 98 NLRB 481.
TYRRELL COUNTY LUMBER COMPANY and INTERNATIONAL WOOD-
WORKERS OF AMERICA. Case No. 11-CA-317 (formerly 34-CA-317).
October 30,1952
Decision and Order
On March 26, 1952, Trial Examiner John H. Eadie issued his In-
termediate Report in the above-entitled proceeding, finding that Re-
spondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.'
'The Union filed a motion with the Board requesting that the record be reopened for
the purpose of receiving further evidence concerning the nature of the Respondent 's offer
of reinstatement on December 10, 1951. However, no showing was made that the proffered
evidence was not available either to the Union or the General Counsel at the time of the
bearing. Accordingly , the motion is denied.
101 NLRB No. 44.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 2 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the Respondent's exceptions and brief, and the entire record in the
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions and modi-
fications.
We agree with the Trial Examiner's finding that the Respondent
interfered with, restrained, and coerced its employees, by interroga-
tion, surveillance, and threats of reprisal, as detailed in the Inter-
mediate Report. We find, further, that by such conduct the Re-
spondent violated Section 8 (a) (1) of the Act.
Like the Trial Examiner, we find, also, that the Respondent on
May 30 refused to reinstate the strikers because of their adherence to
the Union and because of their participation in the strike. The Re-
spondent thereby discouraged membership in the Union in violation of
Section 8 (a) (3) of the Act. As the strike was a protected concerted
activity, the Respondent's conduct also independently violated Sec-
tion 8 (a) (1) of the Act. Whether Respondent's conduct in this re-
spect be regarded as a violation of Section 8 (a) (1) or of Section
8 (a) (3), we find that the same remedy is necessary to effectuate the
policies of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, Tyrrell County Lumber Com-
pany, Columbia, North Carolina, its agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in International Woodworkers of
America, CIO, or any other labor organization of its employees, by
discriminatorily refusing to reinstate any of its employees or by
discriminating in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Interrogating its employees concerning their union member-
ship and activities, or threatening them with reprisals because of such
activities.
(c) Keeping under surveillance the meetings of the above Union,
or of any other labor organization.
2 Pursuant to the provisions of Section 3 (b), of the Act, as amended, the National Labor
Relations Board has delegated its powers in connection with this case to a three- member
panel [Chairman Herzog and Members Styles and Peterson].
TYRRELL COUNTY LUMBER COMPANY 157
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right of self-organization, to
form, join, or assist the above Union or any other labor organiza-
tion, 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, or to refrain
from any or all of such activities except to the extent that such
right may be affected by agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole Fleetwood Sykes, Johnnie Brickhouse, Dude
Dunbar, Jake Boston, and Malachi Midgett in the manner set forth
in section V of the Intermediate Report entitled "The Remedy."
(b) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due.
(c) Post at its plant at Columbia, North Carolina, copies of the
notice attached to the Intermediate Report marked "Appendix A." 3
Copies of such notice, to be furnished by the Regional Director for the
Eleventh Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immediately
upon receipt thereof, and maintained by him for sixty (60) consec-
utive days in conspicuous 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.
(d) Notify the Regional Director for the Eleventh Region in writ-
ing within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
8 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner ," the words "A Decision and Order " If this Order is enforced by a
decree of a Circuit Court of Appeals , the notice shall be further amended by substituting
for the word9 "Pursuant to a Decision and Order " in the caption , the words "Pursuant to
a Decree of the United States Court of Appeals , Enforcing an Order."
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge duly filed by International Woodworkers of America,
CIO, herein called the Union, the General Counsel of the National Labor Rela-
tions Board, respectively called herein the General Counsel and the Board, by
the Regional Director for the Fifth Region (Baltimore, Maryland), issued a
complaint dated December 5, 1951, against Tyrrell County Lumber Company,
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the Respondent, alleging that the Respondent has engaged in and
is engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Rela-
tions Act, as amended, herein called the Act.
With respect to the unfair labor practices, the complaint alleges that: (1)
From on or about May 1, 1951, the Respondent engaged in certain acts which
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act; (2) on or about May 28, 1951, Fleet-
wood Sykes, Johnnie Brickhouse, Dude Dunbar, Jake Boston, and Malachi Mid-
gett, employees of the Respondent, ceased work concertedly and went on strike;
(3) the Respondent from on or about May 28, 1951, refused to discuss wages,
hours, and other conditions of employment with the said employees ; (4) the
said strike was caused and prolonged by the Respondent's unfair labor prac-
tices; (5) on or about May 29, 1951, the said employees voluntarily returned
to work ; and (6) on or about May 29, 1951, Respondent refused and has continued
to refuse to reinstate said employees because of their actual or suspected mem-
bership in or activities on behalf of the Union or because they engaged in con-
certed activities with other employees or because they participated in the said
strike.
The Respondent filed an answer on or about January 2, 1952, in which it ad-
mitted the jurisdictional allegations of the complaint but denied the commission
of any unfair labor practices.
Pursuant to notice, a hearing was held at Columbia, North Carolina, on Janu-
ary 14 and 15 before the undersigned Trial Examiner. The General Counsel and
the Respondent were represented by counsel, and the Union by its representative.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties. At the start
of the hearing the General Counsel moved to amend the complaint ; the motion
was granted without objection. The Respondent moved to dismiss the com-
plaint. The motion was denied. At the conclusion of the General Counsel 's case,
the Respondent moved to dismiss the complaint for lack of proof. Ruling was
reserved. The Respondent renewed its motion to dismiss at the close of the
whole case. Ruling on the motion was reserved. The motion to dismiss is dis-
posed of as hereinafter indicated.
Except for argument on the Respondent's motion to dismiss the complaint,
none of the parties presented oral argument at the conclusion of the hearing.
The Respondent has filed a brief with the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Tyrrell County Lumber Company is a North Carolina corporation, with its
principal place of business located at Columbia, North Carolina, where it is
engaged in the procurement, processing, and sale of finished lumber at its five
mills. Mill No. 1, an integral part of Respondent's operations, is the only mill
involved in this proceeding.
In the course and conduct of its business operations, the Respondent annually
sells finished products valued in excess of $370,000, of which approximately 85
percent is sold, transported, and delivered in interstate commerce to and through
the States of the United States, other than the State of North Carolina, from
its Columbia mills.
TYRRELL COUNTY LUMBER COMPANY 159
The Respondent admits in its answer that it is engaged in commerce within
the meaning of the Act.
If. THE ORGANIZATION INVOLVED
International Woodworkers of America, CIO, is a labor organization which
admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events; interference, restraint, and coercion
During March 1951, Bruce Davis and J. R. Light, representatives of the Union,
commenced organizing the employees of the lumber companies in Columbia. Three
union meetings were held during April. These organizational meetings were
attended exclusively by employees of the Respondent. Starting about May 1,
union meetings were held in a church in the colored section of Columbia. Em-
ployees Fleetwood Sykes, Malachi Midgett, and Dude Dunbar were members of
the Union's "organizing committee."
Abram Swain supervised Respondent's Mill No. 1' On or about May 15, Swain
asked emp'oyee Jake Boston if he had joined the Union. After Boston replied
that he had joined, Swain told him his reasons why he did not like the Union and
said that he was "afraid the mill might shut down" if it was organized by the
Union.' It is found that the above statements of Swain constitute interference,
restraint, and coercion.
On about May 21 Swain questioned employee Henry Spruill concerning the
employees who were members of the Union. Spruill told him that all of the
employees were members. It is found that Swain's interrogation of Spruill
constitutes interference.
At sometime during May 1951, Rufus Bateman, foreman and "plant operator"
of Respondent's p'aning mill, asked employee George Barrow if he had joined the
Union "last night."' It is found that Bateman's interrogation of Barrow con-
stitutes interference.
On May 28, shortly after they had started to work, the employees in Mill No. 1
discussed a rumor that they had heard to the effect that the Respondent was
going to increase their wages "during the potato season." Acting as their spokes-
'Respondent contends that Swain is not a supervisory employee. The undisputed
evidence shows that there were about 11 employees at this mill, including Swain and the
sawyer , that Swain kept a record of the employees' time ; that on at least 2 occasions he
hired employees ; that on another occasion he did not permit employees to change jobs ;
that it was his duty to see that the mill did not run short of supplies or tools ; that he
was paid 5 cents per hour more than the other employees ; and that J. T. Morris, Respond-
ent's general superintendent, visited the mill only about 2 or 3 times each week. Further,
the evidence shows that while Swain performed manual work along with the rest of the
crew, the employees considered him to be their "foreman." I find that Swain at the times
mentioned herein was a supervisory employee within the meaning of the Act.
8 Boston testified to the above conversation with Swain. Swain denied the statements
attributed to him His denial is not credited. Boston impressed the undersigned as the
more reliable and credible witness.
8 Barrow testified that Bateman questioned him as above. Concerning the same
incident, Bateman testified :
I was going up to the office to take a tally, . . . and he [Barrow] was going to
the pump to get a drink of water, and when I come up side of him he said have you
joined the Union yet? I said no and he said well I have, I joined it a month ago
I said it ain't been here that long-, has it, he said yes sir, and I kept right on walking,
and that was all that was said.
The undersigned believes Barrow to be the more credible witness in this connection.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man, employee Dude Dunbar asked Swain if he would go to see W. A. Williams,
president of Respondent, and find out if the rumor was true. Swain agreed to
see Williams after Williams returned from breakfast. When Dunbar reported
his conversation to the employees, they decided that they wanted Swain to go to
Williams without delay. George Simpson, the truck driver for the mill, was then
appointed to speak to Swain. After talking to Swain, Simpson reported to the
employees that Swain had told him that the employees themselves should speak
to Williams. Eight employees then ceased work and left the plant in the Re-
spondent's truck. Fleetwood Sykes, Johnnie Brickhouse, Dude Dunbar, Jake
Boston, and Malachi Midgett were among this number.
After driving the employees to Respondent's Mill No. 2,` Simpson returned the
truck to Respondent's main office and told Williams that the mill crew was not
working. Some few minutes later, Swain reported to Williams that "the crew
had walked off and said they would not be back unles they got more money."
Williams told Swain to "start looking around and let's get another crew and get
the mill going again." Williams also told General Superintendent Morris to
look for a new crew.
On May 29, Brickhouse, Sykes, and Spruill reported for work. Floyd Morris,
a sawyer at Mill No. 2,5 was at Mill No. 1 at the time. While Swain was present,
Morris told the employees, "You all can go out and have a good time, the Company
don't need you any more." Swain did not make any comment.
Acting on the instructions of Williams, Foreman Bateman attempted to hire a
new crew on May 29 ° Bateman spoke to a Charlie Moore who said he "probably"
could get his "skidder crew" to work for Respondent. He also spoke to a Mr.
Payne. Payne told him that he "thought" he could get six or eight men for work
on Monday, June 4.
On May 30 Dunbar, Sykes, Brickhouse, Midgett, and Boston went to the
Respondent's office. They spoke to Williams and told him, "We are ready to go
back to work." Williams replied, in substance, that he could not reinstate them,
as he had made arrangements for a new crew of men and did not want to
disappoint them.'
A meeting of the Union was held at the church on the night of June 5. Before
the meeting a number of persons were gathered in the street in the near vicinity
of the church. Foreman Fentriss Pritchett drove by this group. He then went
to the home of Miss Cavell Leary, secretary and treasurer of Respondent ; and
together in her car they went to the church and drove by it at a slow rate of
speed.'
A While the evidence is not clear, it appears that the strikers attempted to get the
employees at Mill No. 2 to join the strike.
6 Morris, a son of General Superintendent Morris, was a sawyer on May 29. He later
became a foreman.
I It appears that on May 23 Swain hired only one new employee, and that J. T. Morris
did not hire any.
I The conversation, as related in part above, is not disputed. (Williams, however, testi-
fied that the employees first asked him to sign unemployment slips, and that as they were
about to leave "one or two of them" said, "We are ready to go back to work." The
employees testified that they first asked for reinstatement and that later they asked
Williams about unemployment slips I do not believe that the issue is material since it
is undisputed that the employees made an unconditional offer to return to work.
8 Pritchett and Leary testified to the effect that they drove by the church because they
were "curious." Pritchett testified that he did not "know why" he got Leary to accom-
pany him. Leary testified that she made notes of Respondent's employees whom she saw
while passing the church. Dude Dunbar testified that he was at a union meeting which
was held in an alley on about May 1, and that Pritchett drove by and looked in the direc-
tion of the meeting.
TYRRELL COUNTY LUMBER COMPANY 161
It is found that Pritchett and Leary were engaging in surveillance of the
union meeting, and that such conduct interfered with, restrained, and coerced
the employees.
On about June 15 Davis and Light met with Williams and Leary. Davis
asked Williams to reinstate the employees. Williams refused.
On December 7, 1951, the Respondent sent identical letters to the five em-
ployees named in the complaint, offering them reinstatement as of December 10.
B. The refusal to reinstate
It is clear from the evidence that the employees concertedly ceased work and
left the mill on May 28 because they wanted a wage increase. In my opinion,
the evidence is not sufficient to warrant a finding that the strike was caused or
prolonged by unfair labor practices on the part of Respondent. Only three
isolated acts of interference before May 28 have been found above, one of which
involved a supervisor and an employee in another mill. Further, it is found
that the Respondent did not engage in any unfair labor practice on May 29
which prolonged the strike. Brickhouse, Sykes, and Spruill reported for work
without giving any notice to the Respondent. Under the circumstances, the
Respondent could not have been expected to start operation of the mill on such
short notice, aside from the question of whether or not it actually could have
operated with a short crew and without a sawyer. Accordingly, it is found that
the strike was economic throughout.
Since the strike was economic, the Respondent had a right to replace the
strikers . It has been found above that the employees named in the complaint
made an unconditional offer to return to work on May 30.° Therefore, the re-
maining issue to be resolved is whether the Respondent had replaced the strikers
when they made their offer.
The evidence shows that Swain hired 1 new employee on May 28 ; and that
on May 29 Bateman was told by Moore that he "probably" could get his skidder
crew, and by Payne that he "thought" he could get his nephews and some others
to start work on June 4. It appears that the Respondent had prospects of hiring
about 13 men. The evidence further shows that the skidder crew did not report
for work, that the man hired by Swain reported on Monday, June 4, and that
Charles Payne reported on June 4 and brought "several other men" on Tuesday
morning. From all of the evidence it is apparent that on May 30 the Respondent
did not have any definite information as to the number of new men who would
report for work. Except possibly Payne's nephews, it apparently did not even
know the names of the prospective employees. Insofar as Moore's skidder crew
was concerned, it was the understanding between Bateman and Moore that the
men were not to become permanent employees, but were to be hired "just to help
out" during the emergency. When Bateman was questioned as to whether he
needed 12 or 16 men, he answered, "I needed men at the planer [planing mill]
at the same time."
From all the evidence I find that the Respondent had not replaced the strikers
when they offered to return to work on May 30. I further find that on that date
the Respondent refused to reinstate Sykes, Brickhouse, Dunbar, Boston, and
Midgett because of their adherence to the Union and because of their concerted
activities.
B It is undisputed that during their conversation with Williams the employees gave as
one of the reasons for the work stoppage that they thought they would receive a wage
increase "during the potato season " However, it is clear and I find that no condition
was attached to their offer to return to work.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close , intimate, and substantial relation to trade, traffic , and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that on May 30, 1951, the Respondent discriminatorily refused
to reinstate Fleetwood Sykes, Johnnie Brickhouse, Dude Dunbar, Jake Boston,
and Malachi Midgett. It will be recommended that the Respondent make whole
each of the above employees for any loss of pay he may have suffered by reason
of Respondent's discrimination by payment of a sum of money equal to that
which each would have earned as wages from the date of the discrimination to the
date of the offer of reinstatement, December 10, 1951, less his net earnings during
said period. Said loss of pay shall be computed on the basis of each separate
calendar quarter, or portion thereof, during the period from Respondent's dis-
criminatory action to the date of the offer of reinstatement. The quarterly
periods, herein called "quarters," shall begin with the first day of January, April,
July, and October. Loss of pay shall be determined by deducting from a sum
equal to that which the employees would normally have earned for each such
quarter or portion thereof, their respective net earnings, if any, in other employ-
ment during that period. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other quarter. In order to ensure compliance
with the foregoing back-pay and reinstatement provisions, it is recommended
that Respondent be required, upon reasonable request, to make all pertinent
records available to the Board and its agents.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. International Woodworkers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees named above, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication of this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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:
MARQUARDT AIRCRAFT CO. 163
WE WILL NOT interrogate our employees concerning their union member-
ship and activities, or threaten them with reprisals because of such activities.
WE WILL NOT keep under surveillance meetings Of INTERNATIONAL WOOD-
WORKERS OF AMERICA, CIO, or of any other labor organization.
WE WILL make whole the following named individuals for any loss of pay
suffered as a result of the discrimination against them:
Fleetwood Sykes Johnnie Brickhouse
Dude Dunbar Malachi Midgett
Jake Boston
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist INTERNATIONAL WOODWORKERS OF AMERICA, CIO, or
any other labor organization, to bargain collectively through representatives
of their own choosing and to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of
the Act.
All our employees are free to become or remain members of the above union,
or any other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment, because of
membership in or activity on behalf of any such labor organization.
TYRRELL COUNTY LUMBER COMPANY,
Employer.
Dated -------------------- By ------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
MARQUARDT AIRCRAFT Co. and INTERNATIONAL ASSOCIATION OF MA-
CHINISTS , DISTRICT LODGE #727, A. F. L., PETITIONER
MARQUARDT AIRCRAFT CO. and INTERNATIONAL ASSOCIATION OF MA-
CHINISTS, DISTRICT LODGE #727, A. F. L., PETITIONER. Cases Nos.
21-RC-2657 and 21-RC-2658. October 30,1952
Decision and Direction of Elections
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before H. C. Bumgarner, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. International Association of Machinists, District Lodge #727,
A. F. L. (the Petitioner in both cases), herein called the IAM, and
101 NLRB No. 47
242305-53-12