Benson Veneer Co., Inc.

National Labor Relations Board - Board Decisions

Jan 12, 1966

156 N.L.R.B. 781 (N.L.R.B. 1966)

BENSON VENEER COMPANY, INC. 781
Electrotypers Union No. 83, International Stereotypers and
Electrotypers Union, AFL-CIO, rather than to employees rep-
resented by New Haven Typographical Union No. 47, Inter-
national Typographical Union, AFL-CIO, all mounting and
blocking of illustrations in the Employer's West Haven, Con-
necticut, plant, except insofar as any such conduct is permitted
under Section 8 (b) (4) (D) of the Act.
NEW HAVEN, MERIDEN & BRIDGEPORT ELECTROTYPERS
UNION No. 83, INTERNATIONAL STEREOTYPERS AND
ELECTROTYPERS UNION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board' s Regional
Office, Boston Five Cents- Savings Bank Building, 24 School Street,
Boston , Massachussetts Telephone No. 223-3358, if they have any
questions concerning this notice or compliance with its provisions.
Benson Veneer Company, Inc. and Local Union No. 2089, United
Brotherhood of Carpenters and Joiners of America , AFL-CIO.
Cases Nos. 11-CA-2383, 11-CA-P2446, 11-CA-9d513, and 11-RC-
1949. January 1 2, 1966
DECISION AND ORDER
On September 16, 1965, Trial Examiner Lee J. Best issued his
Decision in the above-entitled proceeding, finding that the Respondent
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 attached Trial Examiner's Deci-
sion . The Trial Examiner further found merit in certain objections
by the Union to the election conducted on August 27, 1964, and recom-
mended that the election be set aside and that Case No. 11-RC-1949
be served from this proceeding and remanded to the Regional Director
for such action as he may deem proper with respect to directing a new
election. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision. The General Counsel filed exceptions and sup-
plemental exceptions to certain of the Trial Examiner's findings and
supporting briefs.
156 NLRB No. 74.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications.
1. The Trial Examiner found, and we agree, that by the conduct
of Plant Superintendent Curtis Woodcock and Supervisor Marvin
Britt, which is described in his decision, the Respondent interfered
with, restrained, and coerced employees in the exercise of their Section
7 rights, in violation of Section 8(a) (1) of the Act.' In the context
of the foregoing and other unfair labor practices found by the Trial
Examiner, we further find, contrary to his holding, that the Respond-
ent also violated Section 8(a) (1) of the Act by mailing to each
employee and posting at the plant a notice informing employees,
inter alia, that "if the Union were-to get in here it would not work to
your benefit but, in the long run would itself operate to your serious
harm." 2
2. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (5) and (1) of the Act by refusing to recognize and
bargain with the Union as the representative of a majority of its
employees in the appropriate unit on and after April 29, 1964. With
respect to the Union's majority, the Trial Examiner properly found
that on the foregoing date there were 56 employees in the appropriate
unit and that the Union had obtained 29 valid authorization cards
from these employees. The Respondent, however, challenges, among
others, the validity of the card of John Warfey' who testified that the
signature on the card bearing his name was not his because he could
i The Respondent contends that the Trial Examiner erred in finding Britt a supervisor
on the basis of the Regional Director's determination to that effect in the latter's De-
cision and Direction of Election . As the Respondent stated at the consolidated hearing
that it had no new evidence to present , and as we are satisfied that the Regional Direc-
tor's finding was correct , we find no merit in the Respondent 's contention.
However, we agree with the Respondent that it is not clear from the record that Britt
was called into the office of Respondent President Noel J. Auman along with other super-
visors to "discuss the situation " While we do not adopt the Trial Examiner ' s finding
in 'that regard , there is ample evidence to support the Trial Examiner's 8(a) (1) findings
2 Overnite Transportation Company , 154 NLRB 1271 ; Sagamore Shirt Company, d/b/a
Spruce Pine Manufacturing Company . 153 NLRB 309 ; M. Lowenstein & Sons , Tito, 150
NLRB 737; Morris & Associates , Inc., 138 NLRB 1160.
BENSON VENEER COMPANY, INC. 783
not read or write.3 For the reasons set forth by the Trial Examiner,
especially the opinion of a handwriting expert and the credited testi-
mony of employee Rossie Barefoot, Jr., we find that the card, which
in other respects was filled out by Barefoot, was signed by Warfey
in Barefoot's presence after the latter asked Warfey "to sign the card
to help out the boys trying to get a union ... in the plant." Accord-
ingly, we agree with the Trial Examiner that the card was signed by
this employee and was valid for authorization purposes.
3. We have already found in agreement with the Trial Examiner
that the Union had majority representation in the appropriate unit
on April 29, 1964, when it made a demand for recognition which the
Respondent refused to honor in violation of Section 8(a) (5) and (1)
of the Act. Assuming, however, the questionable nature of Warfey's
card and the consequent failure of the Union to reach a majority on
the foregoing date, we find that the Union achieved that status by
May 12, 1964, the day it obtained, in addition to the 28 other valid
cards it already had, 2 from employees Leslie Williams and James
Robert Smith which were also found by the Trial Examiner to be
valid.
Union Representative Reid Stewart, who solicited cards, testified,
and Williams and Smith conceded, that they signed authorization
cards on May 12, 1964. However, Williams first admitted and later
denied that he read the card, and Smith stated that he went so far as
to write "James Robert" on the card but did not complete the final third
of his name when he ascertained that Stewart was a union representa-
tive. We find it significant that neither employee took any action to
repudiate his signature, and Smith testified that he also went by the
name of James Robert and in fact told Stewart that this was his
name. We therefore agree with the Trial Examiner that the cards
of Williams and Smith were valid for authorization purposes.
As already indicated, the Respondent's employee complement in
the appropriate unit totaled 56 on April 29,1964. It also appears from
the testimony of Respondent President Auman that there was no
change in the composition of the work force until July 1964. Hence
we conclude that the same 56 employees were still in the appropriate
unit on May 12, 1964, gave that the 30 or 31 valid cards secured by
the Union from unit employees gave the Union majority status on
that date. As the Union's request for recognition, which was made on
April 29, 1964, was clearly of a continuing nature, we find that the
3 The record shows that this employee was also known by and used at least two other
names Thus, his signature on the card and one affidavit taken by a Board agent is
John Woraney while his signature on an affidavit before another Board agent in the same
handwiiting is John Wa.tfey
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's unlawful refusal to bargain with the Union as the
majority representative of the employees in the appropriate unit began
no later than May 12,1964.4
4. We agree with the Trial Examiner's finding that during the
critical preelection period the Respondent as well as a number of
businessmen of the town of Benson, North Carolina, engaged in a
course of conduct which interfered with the employees' freedom of
choice in the selection of a bargaining representative, and his recom-
mendation based thereon that the election of August 27, 1964, be set
aside. However, in view of our holding that the Respondent violated
Section 8 (a) (5) and (1) of the Act on April 29, 1964, or at least no
later than May 12, 1964, and our adoption of the Trial Examiner's
Recommended Order requiring the Respondent to bargain with the
Union, we do not adopt the Trial Examiner's further recommendation
that Case No. 11-RC-1949 be severed from this proceeding and
remanded to the Regional Director for such action as he may deem
proper with respect to directing a new election. Instead, as no current
question concerning representation exists, we shall dismiss the peti-
tion in Case No. 11-RC-1949 and vacate all proceedings held in
connection therewith.6
ORDER
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Substitute the following for paragraph 1(a) :
["(a) Interrogating its employees concerning their organizational
activities, creating the impression that such activities are under sur-
veillance by the Respondent, and threatening its employees it would
close its plant or that other `serious harm' might befall them if the
Union were selected as their exclusive bargaining representative."
[2. Substitute the following for the first indented paragraph of the
appendix :
[WE WILL NOT interrogate our employees concerning their organiza-
tional activities, engage in surveillance of such activities, threaten
them with economic reprisals or other serious harm, or in any manner
infringe upon, interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization as guaranteed in Section
7 of the Act.
[The Board dismissed the petition in Case No. 11-RC-1949 and
vacated all proceedings held in connection therewith.]
4 See Henry Spen & Company , Inc., 150 NLRB 138; American Compressed Steel Corpo-
ration, 146 NLRB 1463 , 1470, 1471, enfd. in pertinent part 343 F . 2d 307 (C.A D C.).
5 The Shelby Manufacturing Company, 155 NLRB 464.
BENSON VENEER COMPANY, INC. 785
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The above-captioned cases brought under Sections 10(b) and 9(c) of the National
Labor Relations Act (herein called the Act), and consolidated for the purposes of
hearing pursuant to Section 102.33 of the National Labor Relations Board's Rules
and Regulations, Series 8, as amended, were heard before Trial Examiner Lee J. Best
at Dunn, North Carolina, on May 11, 12, 13, 14, 20, 21, and 22, 1965, with all parties
present.
Based upon charges filed by Local Union No. 2089, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO (herein called the Union or Charging
Party), on March 18, April 20, and July 9, 1964, in Case No. 11-CA-2383; and on
May 28, 1964, in Case No. 11-CA-2446, the General Counsel issued a consolidated
complaint on August 31, 1964, against Benson Veneer Company, Inc. (herein called
the Respondent), alleging unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act.
Based upon a charge filed by the Union on September 1, 1964, in Case No. I1-CA-
2513, the General Counsel issued a complaint against Respondent on March 24,
1965, alleging unfair labor practices in violation of Section 8(a)(1) and (5) of
the Act.
By Supplemental Decision, Direction and Order Consolidating Cases issued on
November 20, 1964, the Regional Director for Region 11, directed a hearing before a
Trial Examiner in Case No. 11-RC-1949 to resolve the issues raised therein by
objections to conduct affecting the results of an election held on August 27, 1964, and
by other acts and conduct not alleged in the objections, but deemed by said Regional
Director to be of sufficient importance to warrant consideration. Pursuant to Sec-
tion 102.33 of the Board's Rules and Regulations, Series 8, as amended, all of the
aforesaid proceedings were consolidated for hearing, ruling, and decision by a Trial
Examiner.
In due course the Respondent filed answers denying any misconduct affecting the
result of the election, and denied all allegations of unfair labor practices. Jurisdiction
of the Board is admitted.
All parties were present at the hearing, represented by counsel or other representa-
tives, were afforded full opportunity to be heard, to examine and cross- examine
witnesses, to present evidence pertinent to the issues involved, to present oral argument
on the record, and to file briefs with me. No written briefs were sijbmitted by coun-
sel for any party
Upon the entire record in the case, and from observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
Benson Veneer Company, Inc., is a corporation organized and existing under and
by virtue of the laws of the State of North Carolina, having its principal office and
manufacturing plant in the town of Benson, North Carolina, where it is engaged in
the fabrication of wood products. During the past 12 months, which period is rep-
resentative of all times material herein, the Respondent manufactured, sold, and
shipped finished products valued in excess of $50,000 to points outside the State of
North Carolina. I find, therefore, that Respondent is and has been at all times mate-
rial herein, engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
Supervisors of the Respondent include Noel J. Auman, president, B. L. Auman,
vice president, David Auman, secretary and treasurer, Curtis Woodcock, plant super-
intendent, Oscar E. Boan, foreman, and Marvin Britt, supervisor.
Marvin Britt was found by the Regional Director in Case No. 11-RC-1949 to be
a supervisor within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 2089, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act,
existing in whole or in part for the purpose of representing employees in dealing with
employers concerning grievances , labor disputes, wages, rates of pay, hours of employ-
ment, and conditions of work.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Appropriate Unit
All production, maintenance, and yard employees, including truckdrivers, employed
by Respondent at Benson, North Carolina, excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined in the Act, constitute a unit appro-
-priate for the purpose of collective bargaining within the meaning of Section 9(b)
.of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Organizational campaign; interference , restraint, and coercion
On or about January 10, 1964, two employees of the Respondent (Edward and
Everett Baggett ) interviewed a representative of the Union (Lloyd Byrd) at the union
hall in Erwin, North Carolina, with respect to organizing employees of the Benson
Veneer Company, Inc., at Benson , North Carolina. Thereupon, Representative Byrd
arranged for a meeting with the Benson employees to be held by International Repre-
sentative Reid Stewart at the union hall in Erwin on the night of February 5, 1964.
At and following this meeting and prior to April 29, 1964, authorization cards were
signed and delivered to the Union on dates appearing opposite the names of
,employees, as follows:
Everett Baggett------------------------------ February 5, 1964.
Edward Baggett----------------------------- Do.
James Baggett------------------------------- Do:
Melvin Barefoot----------------------------- Do.
Rossie Barefoot, Jr--------------------------- Do.
Paul Ernest McDonald------------------------ Do.
Jesse Franklin, Beasley- ----------------------- February 6, 1964.
Billy Everett Britt---------------------------- Do.
Cleo Byrd---------------------------------- Do.
Ronald B . Capps ----------------------------- Do.
William A. Capps---------------------------- Do.
Thomas Dewey Dale------------------------- Do.
Raymond Johnson--------------------------- Do.
Dewey H. Warren--------------------------- Do.
Odell Williams------------------------------ Do.
Willie M. Wood----------------------------- Do.
Willie R. Anderson--------------------------- February 7, 1964.
Billy Beasley------------------------------- Do.
'Howard Bridges---------------------------- ' Do.
Ray Johnson------------------------------- Do.
Charlie Tart-------------------------------- Do.
John Woraner------------------------------ Do.
James A. Blackman--------------------------. February 18, 1964.
J. K.Stanley -------------------------------- Do.
George W. Tart-----------------------------. February 21, 1964.
Claude N. Thornton-------------------------- March 3, 1964.
Eugene A. Altman---------------------------. March 17, 1964.
Dewey, Johnson----------------------------- Do.
Hayden Ivey------------------------------- March 24, 1964.
Two additional cards were signed and delivered by Leslie Williams and James Robert
Smith to International Representative Reid Stewart on May 12, 1964, which will bei
disregarded in determining whether the Union represented a majority of employees
in the appropriate unit on April 29, 1964. A card signed by Edward Baggett for Les-
lie Williams (General Counsel's Exhibit No. 8e) on February 7, 1964, is also found
to be unauthorized, and consequently will also be disregarded in determination of
majority representation by the Union. After the initial meeting on February 5, 1964,
the Union continued its organizational activities by holding weekly meetings at the
Union hall in Erwin, North Carolina, and on March 4, 1964, posted a letter to the
Respondent, as follows:
This is to respectfully advise you that our organization, Local Union #2089,
United Brotherhood of Carpenters and Joiners of America, AFL-CIO, repre-
sents a majority of your employees for purposes of collective bargaining.
The unit considered appropriate for purposes of collective bargaining includes
"All production, maintenance and yard employees, including truck drivers and
firemen; excludes all supervisory, office clerical, professional and technical
employees, and guards as defined in the Act, at the company's Benson, N. C.
operations."
BENSON VENEER COMPANY, INC. 787
It is hereby requested that you meet with the undersigned representative of
Local Union #2089 on March 10, 1964, at cne P.M., at your office in Benson,
N. C., to discuss the wages, hours and other working conditions of your employ-
ees in the above unit, in older that we may conclude a collective bargaining agree-
ment covering them.
Yours truly,
W. Reid Stewart, Representative
Having received no reply to its letter of March 4, 1964, the Union filed a repre-
sentation petition with the Board in Case No. 11-RC-1949 on March 9, 1964. In
the meantime, Respondent mailed to each of its employees, and also posted in its plant
at Benson, North Carolina, a written notice, as follows:
TO ALL EMPLOYEES
Since the Carpenters Union has been putting on a campaign to get in here, a
good many questions have arisen with regard to the following matters. We have
decided to state the Company's position on these questions as clearly as we can
for everybody alike.
(1) This matter is, of course, one of concern to the Company. It is also,
however, a matter of serious concern to you and our sincere belief is that
if the Union were to get in here it would not work to your benefit but, in
the long run would itself operate to your serious harm.
(2) It is our intention to oppose the Union and by every proper means
to prevent it from coming into this operation.
(3) We would like to make it clear that it is not necessary, and it is not
ever going to be necessary, for anybody to belong to the Carpenters Union,
or any other Union, in order to work for this Company.
(4) Those who might join or belong to a Union are not going to get any
advantages or any preferred treatment of any sort over those who do not
loin or belong to any Union.
(5) If anybody causes you any trouble at your work or puts you under
any soil of pressure to loin the Union, you should let the Company know,
and we will undertake to see that this is stopped.
(6) No person will be allowed to carry on Union organizing activities on
the job. Anybody who does so and who thereby neglects his own work or
interferes with the work of others will be subject to discharge.
Anybody who tells you anything contrary to the foregoing is not telling you
the truth.
BENSON VENEER COMPANY, INC.
By ignoring the Union's request to bargain and publishing the foregoing notice to
employees, the Respondent clearly announced its intention to fight representation
rather than make a good-faith inquiry as to whether the Union represented a majority
of its employees in the appropriate unit. Concurrently therewith, President Noel J.
Auman called Plant Superintendent Curtis Woodcock and Foreman Oscar E. Boan
and Melvin Britt into his office to discuss the situation. These supervisors were admit-
tedly instructed to ascertain by inquiry and observation what was going on in the plant
with respect to the union organization, which necessarily required a determination
of which employees were promoting the organizational activities, and which were
remaining neutral or opposing representation by the Union. It is admitted that
Superintendent Woodcock reported his observations to President Noel J. Auman; but
Foreman Boan denies making any such reports.
Employee Everett Baggett credibly testified that Supervisor Marvin Britt asked him
whether he had signed a card, and frequently inquired of him how they were getting
along with the Union, and whether or not it was going to do any good. Such conver-
sations with Britt occurred once or twice each week during the organizational
campaign.
Employee Billy Everett Britt credibly testified that he frequently discussed the
Union with his uncle, Marvin Britt, and told him that he had signed a union card;
that Marvin Britt said that he knew what was going on, because the boys in the panel
room had been talking to him about it, and that President Auman had told him that
he had a paper in his office showing the names of all employees who had signed cards
or had anything to do with the Union; but that he never said anything to company
officials about any union, and was just going to keep out of it, because he did not want
to get mixed up in it.
217-919 -6 G--v o l . 156-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Marvin Britt admitted in his testimony that he first learned about union
activity in the plant on February 29, 1964, when employee James Blackman explained
to him what was going on, asserted that President Auman would receive a letter from
the Union next week, and tried to persuade him to sign an authorization card, promis-
ing that such signing would be strictly confidential. On the following Tuesday,
Blackman informed Marvin Britt that Everett Baggett had a card for him to sign;
but Britt refused to do so, saying that it would be trying to get other people to come
in and run the business, and that he would have nothing to do with it. Marvin Britt
also admits that he discussed the Union with Everett Baggett in the panel room, and
also with Billy Britt on several occasions He admits telling Billy Britt that President
Auman probably had a list of the employees who had signed union cards and attended
union meetings. He also admits having discussions about the Union with Superin-
tendent Woodcock, and that both Woodcock and James Blackman informed him
that 24 employees had attended union meetings in Erwin, North Carolina. He admits
inquiring of James Blackman as to how many employees attended the union meeting
on the night of February 28, 1964, and does not deny telling Blackman that one of the
union men must be keeping President Auman informed about it.
President Auman admits that he also procured information from friendly employ-
ees with respect to the organizational activities. It is admitted that Grover Barefoot
visited his office aftei working hours, and proposed to sell him mfoimation for the
sum of $5 Auman told this employee that it was his duty to report such information
to his employer without pay, but did agree to lend him the sum of $5, whereupon
Grover Barefoot reported that Melvin Barefoot, Alfred Capps, and Dewey Johnson
had signed union cards and were active in the organization work.
Employee Melvin Barefoot credibly testified without contradiction that Superin-
tendent Curtis Woodcock came to him at his place of work about March 1, 1964,
and said he had no doubt that they would close down the plant if the Union came in.
At a later date in April 1964, Woodcock said that a Mr. Beasley had applied for a
job in the plant, but he told the man that if he had a job paying a dollar an hour, he
had better hang on to it until this thing blew over. Later that same day Woodcock
expressed the opinion that if an election was held tomorrow, the balloting would be
approximately half and half, but that the Auman boys were going to spend all of their
money fighting to keep the Union out. When Barefoot requested a pair of work
gloves, Superintendent Woodcock inquired: "What brand do you want-AFL or
CIO." The Respondent served free barbecue to its employees at the lunch hour on
July 3, 1964, and for the first time granted them a paid holiday on Independence Day
(July 4, 1964), whereupon, Superintendent Woodcock called attention to the good
treatment being afforded to employees by President Auman; and suggested that if
Barefoot would persuade the employees to stop attending union meetings with Inter-
national Representative Reid Stewart, he would in turn talk to President Auman
about rehiring the discharged employees
Employee Raymond Johnson credibly testified without contradiction that in the
latter part of March 1964, Superintendent Woodcock approached him in a group of
three other employees (Robert Smith, Robert Jordan, and Wendell Benton), made a
statement to the effect that union meetings had been going on, and inquired whether
they had attended such meetings, whereupon the group immediately dispersed with-
out any further discussion
From the foregoing testimony and admissions, I find that Plant Superintendent
Curtis Woodcock and Supervisor Marvin Britt interrogated employees concerning
their union membership and activities, as alleged in paragraph 6 of the consolidated
complaint in Cases Nos. ll-CA-2383 and 11-CA-2446, thereby engaging in and
creating an impiession of surveillance which interfered with, restrained, and coerced
employees of the Respondent in the exercise of the rights guaranteed in Section 7 of
the Act. The Respondent thereby engaged in unfair labor practices as independent
violations of Section 8(a)(1) of the Act. Finding no threat of reprisal or force or
promise of benefit in the notice, copies of which were posted and mailed to employees
on or about March 6 and 13, 1964, as alleged in paragraph 7 of said complaint, I do
not find that the Respondent thereby engaged in an unfair labor practice violative of
Section 8(a)(1); but the impact on the ensuing election of such notice in combina-
tion with other incidents will be given further consideration.
B. Discriminatory discharges
Without any notice whatever, the Respondent on March 13, 1964, discharged
Everett Baggett, Aubrey Edward Baggett, and Willie Melvin Wood by termination
slips attached to their respective paychecks, alleging as the cause therefore: "No work
available." Billy E. Britt was thereafter discharged on March 27, 1964, by termina-
BENSON VENEER COMPANY, INC. 789
tion slip alleging "Work unsatisfactory. Has been constantly warned of this ever
since employed seven months ago. See no hope for improvement." Charlie Edgar
Tart was discharged on April 3, 1964, by termination slip alleging "Job terminated-
Work was unsatisfactory. He would not stay on job and constantly running around
over plant. He has also been late for work." Paul E. McDonald was discharged for
alleged misconduct on May 20, 1964, by termination slip explaining cause of separa-
tion to be "Abuse to Company Machine. Kicking coin changer."
It is contended by the Respondent that the three employees discharged on March 13,
1964, were released puisuant to an economic reduction in force, because operations
during the preceding months of February had resulted in a net loss of $9,540.17;
whereas operations in January and previous months had produced a substantial
profit. By reason of this reduction in labor costs, Respondent contends that in March
and succeeding months its operations again produced substantial profits. Respondent
contends that in March and succeeding months its operations again produced sub-
stantial profits. Respondent further contends that work in its panel room had always
been a part-time operation; that the services of these men in that department were
no longer needed; and that past deficiencies and mistakes in their work were consid-
ered in selecting them instead of others for purposes of the reduction in force.
1. Everett Baggett
This employee was first hired by the Respondent in August 1961 and worked con-
tinuously until discharged on March 13, 1964. Prior to discharge he had been oper-
ating the ripsaw in the panel room for more than a year under the supervision of Fore-
man Boan and under the direction of Marvin Britt. In company with his brother
(Aubrey Edward Baggett), Everett Baggett initiated the organizational campaign by
interviewing union representatives and promoting the first meeting of employees with
International Representative Reid Stewart. Thereafter, he attended all meetings,
procured the signing of union cards by other employees, and was generally recognized
as a leader in the organizational work. Under the circumstances of this case, there
can be no doubt that his union activities were well known to the Respondent and its
supervisors Everett Baggett signed a union authorization card at the first meeting
in Erwin, North Carolina, on the night of February 5, 1964.
2. Aubrey Edward Baggett
By stipulation it appears that this employee was first hired by the Respondent on
December 31, 1962, and was on the payroll during the first week in January 1963 and
thereafter until discharged on March 13, 1964 His duties in the panel room con-
sisted of mixing glue, operating the glue spreader, and laying up the faces and backs
of plywood In company with his brother (Everett Baggett), Edward Baggett inter-
viewed union representatives and promoted the first meeting of employees with Inter-
national Representative Reid Stewart at the union hall in Erwin, North Carolina, on
the night of February 5, 1964, at which time he signed a union authorization card.
Thereafter, he attended all meetings, solicited other employees to sign cards, and was
recognized as one of the leaders in the organization . Under the circumstances of
this case there can be no doubt that his union activities were well known to the
Respondent and its supervisors.
3 Willie Melvin Wood
This employee was first hired by the Respondent on September 3, 1961, and worked
steadily thereafter until discharged on March 13, 1964, except for a period of 6
months' service in the Army of the United States from May to November in 1963
Upon release from the Army he returned to his job at Respondent's plant in Benson,
North Carolina, where he worked in the panel room alongside Everett Baggett as a
ripsaw operator, and part time under the direction of Marvin Britt laying up and
tearing down the bales of plywood.
On February 6, 1964, he signed a union authorization card at the solicitation of
Aubrey Edward Baggett, and thereafter attended one of the organizational meetings
at the union hall in'Erwin, North Carolina, about February 10, 1964. Under all of
the circumstances of this case, I am satisfied and find that the activities and support
of this employee to the Union was known to the Respondent.
4. Billy E. Britt
This employee is a nephew of Supervisor Marvin Britt, and prior to August 1963
was residing in Baltimore , Maryland . At the request of his uncle, he was hired by
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Curtis Woodcock for the Respondent in August 1963, and was there-
after continuously employed at Respondent's plant in Benson , North Carolina, until
discharged on March 27, 1964. His first duties were tearing down racks of veneer in
the dry end department after removal from the dry kiln and restacking the veneer on
skids according to size. Thereafter, he was transferred to a job helping Paul E.
McDonald operate the joiner, because Foreman Boan thought he worked too slowly
in tearing down the racks After about 11/2 months he was transferred to work in
the panel room with his uncle, Marvin Britt. On one occasion, President Noel J.
Auman told him that his work had greatly improved; and Vice President B. L. Auman
also said that he had improved a lot since starting to work there. Billy E. Britt
signed a union authorization card on February 6, 1964, thereafter attended union
meetings, and freely discussed the mattes with Marvin Britt. It is, therefore, apparent
that the Respondent had knowledge of the Union activities of Billy E. Britt
5 Charlie Edgar Tart
This employee was first hired by the Respondent in March 1963 and worked con-
tinuously thereafter until discharged on April 3, 1964 His duties consisted of racking
up veneer for the dry kiln in the green end department under the supervision of
Superintendent Curtis Woodcock. He signed a union card on February 7, 1964. On
Friday. April 3, 1964, David Auman held up his paycheck, and sent him into the office
to see President Noel J Auman. Thereupon, President Auman informed him that
he was being discharged for unsatisfactory work and being late three or four times
during the past year.
6. Paul E. McDonald
This employee was first hired by the Respondent in 1958, and worked there for 51/2
years thereafter, until discharged on May 20, 1964, for alleged abuse of company prop-
erty. He attended the first union meeting at Erwin, North Carolina, on February 5,
1964, and at that time signed an authorization card in support of the Union. McDon-
ald admits slapping or kicking the Coca-Cola machine on May 20, 1964, when it failed
to function after he had dropped a quartei into it. There is no evidence that the
machine was damaged or required repair in any way, other than showing a footprint
in the dust on the front thereof. The machine was situated in the panel room, where
the accumulation of dust fi om sawing was considerable. To discharge an employee
after 51/2 years of seivice without withholding payment for any alleged damage clearly
indicates a pretext for the true reason which was not disclosed on his termination slip.
I find, therefore, that by discharging Paul E. McDonald on May 20, 1964, the
Respondent discriminated in regard to hire or tenure of employment to discourage
membership in a labor organization in violation of Section 8(a) (3) of the Act.
Since the Respondent attributes the discharge of Everett Baggett, Aubrey Edward
Baggett, and Willie Melvin Wood solely to an economic reduction in force by reason
of "no work available," it is not necessary to discuss causes for the selection of these
particular employees for termination rather than others with less seniority, etc.
Respondent contends that its operation loss of $9,575.17 for the month of February
1964 was the determining factor in reaching a decision to reduce labor costs. An
analysis of Respondent's statements of profit and loss for the months of January,
February, and March, 1964, does not sustain such a contention.
During the month of January 1964, sales amounted to $42,104.94 produced with
overall operating costs of $38,681.44 and yielding a profit of $3,420.50. Operating
costs for January consisted of materials ($19,361.65), manufacturing overhead
expenses ($2,375.37), general administrative expenses ($5,458.92), and labor costs
($11,485.50).
During the month of February 1964, sales amounted to only $38,994.43 produced
with overall operating costs of $48,569.60 consisting of materials ($20,658), manu-
facturing overhead expenses ($4,092 57), general administrative expenses ($9,262 34)
and labor costs ($14,556.60). The increased labor costs were attributed by Respond-
ent's accountant (John E. Ingram) to overtime work performed during a 2-week
period in February, and it is admitted by Respondent that stock inventory was
increased to the point that insufficient storage space in the panel room required a
discontinuance of operations in that department. It is also apparent that future
sales from this stock inventory reimbursed Respondent for the extra material and
labor costs expended during the current month of February 1964. This conclusion
is justified by Respondent's statement of profit and loss for the following month of
March 1964, when operations produced a profit of $3,199.97 from sales of $39,333.86
with an overall reduction in operating costs from $48,569.60 in February to $36,133.39
in March; or an overall operating costs reduction of $12,435.71 including a reduction
BENSON VENEER COMPANY, INC. 791
in labor costs of only $3,577 99. General administrative costs in February amounted
to $9.262 34, whereas such costs in March were only $5,740.50 or a reduction of
$3,521.84, which savings alone would more than account for the profit in March
without cutting back on labor and materials. Excessive administrative costs in
February consisted of extraordinary increases for that month in such items as
salaries of officers, repairs on trucks, taxes and licenses, insurance, accounting and
licenses , insurance , accounting and legal expenses , dues and subscriptions , etc. Non-
recurring items paid out as operating costs in February included insurance amounting
to $2,786 68, dues and subscriptions of $114, and sundry expenses of $1,002.95. It is
clearly apparent from the books and records of the Respondent, and I find, that the
operating loss of Respondent in the month of February 1964 cannot in good con-
science be attributed to the increased overtime expenditures for labor during that
month which in fact resulted in increased operating profit in succeeding months
thereafter I therefore find that the economic reduction in force was merely a
pretext to combat the union organizational activities of its employees, thereby dis-
criminating in regard to hire and tenure of employment to discourage membership
in a labor organization in violation of Section 8(a)(3) of the Act.
Having discharged three of the union leaders on the pretext that an economic
reduction in force was required, it is not surprising that the Respondent continued
its efforts to get rid of other union supporters, so it discharged Billy E. Britt on
March 27, 1964, and Charlie Edgar Tart on April 3, 1964, for the alleged reason
that their work was unsatisfactory. Such allegation was not based upon any
specific incidents or conduct, but rather upon an opinion or conclusion reached by
President Noel J. Auman while engaged in surveillance of employees to determine
whether he should accede to the Union's request for recognition. The most effective
way to oppose the Union was to get rid of its adherents among employees in the
plant. In the absence of some overt conduct indicating incompetence in the current
performance of their duties, I am constrained to again find that Respondent has
adopted a pretext to discharge two active supporters of the Union for the purpose
of preventing majority representation by a labor organization. I find, therefore,
that Respondent by discharging Billy E. Britt on March 27, 1964, and Charlie Tart
on April 3, 1964, has discriminated in regard to hire or tenure of employment to
discourage membership in a labor organization in violation of Section 8(a)(3) of
the Act.
C. Refusal to bargain
The Union posted a letter to the Respondent on March 4, 1964, claiming majority
representation of employees in the appropriate unit, and requested a meeting on
March 10, 1964, to negotiate with respect to a collective-bargaining agreement. The
record herein shows that on March 4, 1964, the Union held authorization cards by
26 employees of the Respondent, which does not appear to be a clear payroll majority
as of that date. Having received no reply from the Respondent, the Union filed a
representation petition in Case No. 11-RC-1949 on March 9, 1964. In the mean-
time, Eugene A Altman and Dewey Johnson signed authorization cards on March 17,
1964, and Hayden Ivey signed a card on March 24, 1964, bringing the total number
of cards held by the Union to 29. Thereafter, the Union renewed its demands for
recognition and bargaining by letter of April 29, 1964, as follows:
This is to respectfully advise your firm a second time, that our organization,
Local Union #2089, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, represents a majority of your employees for purposes of collective
bargaining.
The unit considered appropriate for purposes of collective bargaining includes
"All production, maintenance and yard employees, including truck drivers and
firemen; excludes all supervisory, office clerical, professional and technical
employees, and guards as defined in the Act, at the company's Benson, N. C.
operations."
Notwithstanding the unfair practice charges which we have filed against your
firm, it is hereby requested that you meet with the undersigned representative of
Local Union #2089 on May 12, 1964, at two P.M., at your office in Benson,
N C , to discuss the wages, hours and other working conditions of your employ-
ees in the above unit, in order that we may conclude a collective bargaining
agreement covering them
If it is or is not convenient for you to meet at the above time and place, please
let me know by Saturday May 9, 1964, in order that we may select a time
and place mutually convenient
Yours truly,
W. Reid Stewart, Representative
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By stipulation of the parties herein , it appears that as of April 29 , 1964, production
and maintenance employees in the unit herein found to be appropriate numbered 51
exclusive of the 5 dischargees herein found to have been terminated by discrimination
prior to that date, which would fix the number of employees in the unit at 56. It is
therefore apparent , and I find, that the Union held 29 valid authorization cards at
the time of its second demand for recognition on April 29, 1964. This finding is
based upon the fact that I completely discredit the testimony of an employee whose
name appears on the payroll as Johnnie Warfey, who signed an affidavit as John
Warfey before John J Connerton , field examiner of the National Labor Relations
Board , on October 5, 1964, at Dunn , North Carolina, verifying a previous affidavit
signed by him as John Woraney on April 27, 1964, before another field examiner
(Robert O. Valois) on April 27, 1964, in both of which affidavits he stated under
oath that he had signed an authorization card for the United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, on February 7, 1964. The authorization
card in question was introduced in evidence as General Counsel's Exhibit No. 8y,
bearing the signature "John Woraney in the same handwriting appearing on both of
the aforesaid affidavits signed and sworn to before investigating agents of the
National Labor Relations Board. By stipulation of counsel for all parties it appears
that James R. Durham, a document and handwriting expert from the North Carolina
State Bureau of Investigation , has examined the aforesaid signatures on both affidavits
and the authorization card in question , and testifies that in his expert opinion the
handwriting is the same on all three documents . Furthermore , Rossie Barefoot, Jr.,
a witness for the General Counsel , identified both the union card in question and the
man who signed it at his solicitation and in his presence at the plant in Benson, North
Carolina, on February 7, 1964. Barefoot credibly testified that it was the employee
(John Warfey) with whom he was personally acquainted as a fellow worker . Conse-
quently, I discredit John Warfey 's repudiation of his signature on said authorization
card; and find this authorization card dated February 7, 1964, to be the voluntary
and valid authorization of Johnnie Warfey for the Union to represent him; and that
said authorization remained in full force and effect at all times material to this case
notwithstanding present attempts by this employee to deny and repudiate his
signature.
Having found that prior to April 29, 1964, the Respondent had engaged in and
was engaging in interference , restraint , and coercion of its employees in the exercise
of the rights guaranteed in Section 7 of the Act , and having found that it discrim-
inated in regard to hire or tenure of employment to discourage membership in a
labor organization , I am now constrained to find that in ignoring the second request
to bargain made by the Union on April 29, 1964 , the Respondent was not impelled
by any good-faith doubt of majority representation , but on the contrary was engaging
in the aforesaid unfair labor practices for the purpose and intent of destroying such
majority, if in fact it did exist at that time. Having found that the Union was in
possession of 29 valid authorization cards on March 24, 1964, and that it obtained
2 additional valid authorization cards on May 12, 1964, and further finding that the
appropriate unit consisted of 56 employees ( including discriminatory dischargees)
on April 29, 1964, it is thereby definitely established that the Union held majority
representation in the appropriate unit at the time of its second demand for recogni-
tion on that date, and at all times thereafter material to his case I find, therefore,
that on April 29, 1964, and at all times thereafter , the Respondent has refused to
bargain with the Union as the exclusive bargaining representative of its employees
in the appropriate unit, as alleged in the complaint filed herein in Case No . 11-CA-
2513 , in violation of Section 8(a) (5) of the Act.
D. Interference with the election of August 27, 1964
Pursuant to representation petition filed by the Union in Case No. 11-RC-1949,
a hearing was conducted before a hearing officer of the Board on July 17, 1964.
Pursuant to Decision and Direction of Election issued by the Regional Director
for Region 11, a secret-ballot election was held under Board supervision on August 27,
1964, resulting in a majority of the votes being cast against the participating labor
organization Timely objections to conduct affecting the results of the election were
filed by the Union on September 1, 1964, and duly served upon the Employer. After
conducting an investigation the Regional Director overruled Objections Nos. 1, 4,
and 5, but as to Objections Nos. 2 and 3, and other acts and conduct (not alleged in
the objections) directed a hearing before a Trial Examiner in the consolidated pro-
ceedings herein for the purpose of resolving material and substantial issues raised by
conflicting evidence with respect to the free choice of voters in the election. The
main issue whether the employees of Respondent were afforded a free choice and an
BENSON VENEER COMPANY, INC. 793
untrammeled ballot in the selection of a representative in the election of August 27,
1964, must be determined by weighing the impact thereon of all incidents occurring
on and after the filing of the representation petition on March 9, 1964, including
conduct engaged in both by the Respondent and outsiders seeking to keep labor
organizations out of the town of Benson, North Carolina.
It has been found that upon receipt of the Union's first letter demanding recognition
on or about March 4, 1964, President Noel J. Auman called in his supervisors and
instructed them to find out and report to him all obtainable information concerning
the activities of his employees with respect to the Union. These instructions placed
all employees in the plant under surveillance and interrogation, but it is contended by
President Noel J. Auman that his purpose in doing so was to determine whether the
Union held majority representation. Any good-faith doubt, however, as to such
representation, was removed from consideraiton by the Respondent itself by posting
a notice in the plant and mailing a copy thereof to each employee stating that
"(2) It is our intention to oppose the Union and by every proper means to prevent
it from coming into this operation." This notice, set forth in full above, also laid
down certain rules for its employees to follow with respect to their union activities
on the job and with respect to joining a labor organization. It is not the function
of an employer to protect its employees from labor organizations or to police such
activities except to the extent that they unlawfully interfere with his property rights
and business operations.
It has been found that pursuant to the foregoing instructions from Respondent to
its supervisors, Superintendent Curtis Woodcock and Supervisor Marvin Britt created
an impression of surveillance among employees by interrogation, threats that the
plant would be closed down, and stating that Respondent was fully informed as to
the names of those who were attending union meetings and had signed authorization
cards.
It has been found that Respondent on March 13, 1964, and thereafter prior to
the election, discharged six employees because of their union support and affiliations,
and for the purpose of forestalling the union majority herein found to have been
established by valid authorization cards signed prior to the Union's second demand
for recognition on April 29, 1964.
It is alleged in the Petitioner's Objection No. 2 that within the 24-hour period
preceding the election on August 27, 1964, the Respondent arranged for a meeting
of its employees at the courthouse in Benson , North Carolina, at which four officials
and businessmen of this small community (2,400 population) made speeches and
threats to the assembled employees, which created an atmosphere of fear of reprisal
rendering exercise of employees' free choice impossible in the election next day.
Evidence and testimony with respect thereto is not contradicted; and it is necessary
only to determine the impact thereof upon the free choice of employees to select
a representative.
Employee Raymond Johnson credibly testified that about 4:30 p.m. on August 26,
1964, he attended a meeting in the courtroom in Benson , North Carolina, where
approximately 22 employees of Respondent were assembled, that approximately 7
citizens and businessmen made speeches in opposition to the Union, including Dalton
Holmes from the I. G. A. Store, Mr. Johnson, and others unknown to him by name;
but he cannot presently recall what was said by them. All persons present (except
employees) made speeches, and the meeting was in session approximately 45 minutes.
This witness further testified that during the election on August 27, 1964, he observed
Vice President B. L. Auman in the green end department of the plant alongside the
clipper machine about 50 feet from the entrance to the polling place.
Employee Eugene Atlas Altman credibly testified that he went to the meeting at
the courtroom in Benson on August 26, 1964, in company with a colored boy called
"Slim" Warren; that approximately 21 employees were present along with a few
other people including C. M. Blackman (storekeeper and insurance agent), Coleman
Dunn (fertilizer dealer), Dalton Holmes from the I.G.A. Store, and Ernest Strick-
land from the chair factory, all of whom expressed their opposition to the Union.
C. M. Blackman said "we didn't need a union in a little town like Benson-that we
could get along without one-and that he didn't see any reason why employers and
employees could not get along without a union." Coleman Dunn said if he found
out that any employee working for him was trying to get a union that he would be
fired. Ernest Strickland spoke about some business firms moving to South Carolina
because they did not want any union Robert Denning (with whom this witness had
previously worked at a cotton gin and feedmill) came to see him, and said- "I
suppose you all are trying to get a union in Benson . We don't need no union in
Benson. You work against it instead of voting to get one over here. We business
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
folks don't need no union. Let's try to fight against it." He also spoke about some
watch company wanting to come to Benson, but refrained from doing so when
they heard that a union was trying to get in.
Employee Clarence O'Dell Williams credibly testified that Robert Denning (pres-
ident of Benson Feed Mill), by whom he was formerly employed, came to his home
one afternoon and inquired "whether I had anything to do with the Union, and how
I felt about it. He inquired whether I had attended any union meetings , and said
that the Respondent could close down its plant, and that Noel J. Auman and David
Auman could get jobs elsewhere, and that B. L. Auman was old enough to draw
social security. He then asked just what was I going to do; and I told him that I
would follow the biggest crowd." This witness further testified that at the election
on August 27, 1964, President Noel J. Auman came into the dry end department
of the plant in advance of the releasing team of observers selected for that purpose,
signaled to employees that it was time to vote, and then instructed Foreman Boan
to stop work by sounding the "break horn."
Employee James A. Blackman credibly testified that Everett (Robert) Denning,
president of Benson Feed Mill ( next door to plant of Benson Veneer), came to
his home to talk about the Union, and said that he "understood we were trying to
get a union at the Benson Veneer plant. He inquired whether I thought it would
pay off, and said that he had been informed that President Noel J. Auman would
close down the plant the next day if the Union won the election." This witness
further testified that during the election on August 27, 1964, he observed President
Noel J. Auman and Vice President B. L. Auman in the green end department of
the plant, standing beside a pile of veneer about 14 feet from the entrance door to
the polling place, but did not see or hear them make any remarks to employees.
Employee Paul E. McDonald i credibly testified (by offer of proof) that Ransom
Coats (logging contractor for Respondent) came to his house on March 6, 1964, and
inquired what he knew about the union at Benson Veneer. Coats said that Mr.
Auman had received a letter from the Union, and would have to close down the
plant if he recognized the Union and that he (Coats) with $40,000 worth of equip-
ment would be ruined if the plant closed; and that the old man (B . L. Auman) said
he would close the doors of the plant if the Union won the election. Coats then
requested this witness (McDonald) to try to talk the other boys out of the Union.
Finally it is alleged in Petitioner's objection No. 3 that on August 27, 1964, the
Respondent did interfere with its employees' freedom of choice in the election by
electioneering over the plant within close proximity to the voting area during the
election, and that such conduct was called to the attention of the Board agent con-
ducting the election. The election arrangements provided for setting up the polls
in a supply or office room which was next to the boiler room and occupied by Super-
intendent Woodcock on the east side and adjoining the green end department. It
was agreed that the employees would be notified by a team of observers when to leave
their places of work to enter the polling place to vote. The door to the polling place
opened into the green end department. Evidence with respect to electioneering
activities engaged in by the Respondent and its supervisors while the polls were open
is conflicting President Noel J. Auman admits that he went into the plant, while
the observers were notifying the employees when to vote, for the purpose of super-
vising the stopping of machines, etc , but denies any electioneering or interference
with the employees in casting their ballots. He also admits seeing Vice President
B. L. Auman in company with Plant Superintendent Curtis Woodcock sitting on a
bench on the west side of the green end department about 40 feet from the door
of the polling place, but did not see either of them or any other supervisor speak
to any employee, make any remark about voting, or engage in any form of election-
eering whatsoever The observers selected to notify employees to vote were Melvin
Barefoot for the Union, and Grover Barefoot for the Respondent.
Melvin Barefoot (observer for the Union) credibly testified in substance that when
he and Grover Barefoot (observer for Respondent) went into the plant to notify
employees, both President Noel J. Auman and Vice President B. L. Auman were
in the green end department talking to some colored boys enroute to the polling
place, and that he saw B. L. Auman talking to Elijah Graham and John Wolff as
they were coming in from the boilerroom to vote Then he observed that Elijah
Graham remained standing at that point and spoke to every Negro worker before
he entered the polls, but could not hear what he was saying to them. President
1 Objection to this testimony as evidence of unfair labor practices by the Respondent
was sustained under the hearsay rule, but is now admitted for the limited purpose of
considering its impact upon the free choice of employees in the election
BENSON VENEER COMPANY, INC. 795
Auman proceeded ahead of the releasing team into the panel room , and spoke to
an employee named Pope , telling him it was time to vote, saying : "Go in there
and vote, and vote right , don't cuss the man in there, don 't make the man mad with
you." Then he told the rest of the boys to go in to vote. At that point the witness
(Melvin Barefoot ) remonstrated with President Auman, saying : "I thought I was
the one that was supposed to release the boys for them to vote "; and Auman replied:
"I ain't telling them how to vote ." Thereupon , Barefoot said: "Yes, but I wish
you wouldn 't go in front of me like this-you 're trying to scare the boys to death."
Thereupon , President Auman went to the Coca -Cola machine , rang the buzzer,
walked on into the dry end department , and hollered out "Time to go vote, boys."
Barefoot reported these incidents to the Board agent in charge of the election and
objected to counting the ballots when the polls closed; but after a discussion with
International Representative Reid Stewart , the ballots were counted.
Melvin Barefoot credibly testified further that he saw Plant Superintendent Curtis
Woodcock , Foreman Oscar Boan, and Marvin Britt in the green end department
about 20 feet from the polling place, and observed Superintendent Woodcock talking
to employee Thomas L. Byrd just before he went in to vote. President Auman does
not specifically deny engaging in the conduct related by this witness ; and Plant
Superintendent Woodcock and Grover Barefoot (observer for Respondent ) did not
appear as witnesses in this case.
Employee Rossie Barefoot , Jr., credibly testified that during the election on
August 27, 1964, he observed President Noel J. Auman and Vice President B. L.
Auman walking around in the plant outside the room in which the voting was taking
place, and that the door to the voting room was open.
Employee Dewey Johnson credibly testified that during the election on August 27,
1964, he first observed Vice President B. L. Auman standing beside the clipper
machine in the green end department about 10 to 12 feet from the door to the voting
room where the employees were entering to cast their ballots; then President Noel J.
Auman joined him for a few minutes before proceeding on to the dry end department
in advance of the releasing team proceeding in the same direction.
Foreman Oscar E Boan, credibly testified that while the election was in progress
on August 27, 1964, he did not leave the dry end department , that he saw President
Noel J. Auman come through the dry end department , but did not hear him say
anything , and that he did not see any other officers of the Company around.
The record herein discloses that the Union herein first demanded recognition and
bargaining on March 4, 1964, but at that time did not hold authorization cards suffi-
cient in number to prove its majority. Consequently it filed a representation petition
with the Board in Case No . ll-RC-1949 on March 9, 1964 , seeking certification
through the election process. Thereafter , on March 13 , 1964, the Respondent dis-
charged certain union supporters , and the Union filed a series of charges in Cases
Nos. 11 -CA-2383 and 11-CA-2446 based upon which the General Counsel issued
a consolidated complaint on August 31, 1964. The Union made its second demand
for recognition and bargaining on April 29, 1964. Thereafter , the Regional Director
for Region 11 conducted an election in the aforesaid representation case on August 27,
1964, in which the Union failed to obtain a majority of the ballots cast. Thereupon,
the Union filed objections to conduct affecting the results of the election on Sep-
tember 1, 1964 , and on the same date filed a new charge in Case No . 11-CA-2513,
based upon which the General Counsel issued a complaint on March 24 , 1965, alleg-
ing refusal to bargain in violation of Section 8(a)(5) of the Act. Both the charge
and the complaint issued in Case No. 11-CA-2513 are based upon preelection con-
duct of the Respondent.
It is clear that Respondent 's refusal to bargain at request of the Union on
March 4, 1964, and again at the second request of the Union on April 29, 1964,
generated the initiation of election procedure , which is not inconsistent with pursuing
an 8(a )(5) charge concurrently with objections to conduct affecting the results of
the election 2 From all facts and circumstances of this case , I am convinced that
Respondent was not motivated by any good -faith doubt of the union majority on
April 29, 1964, when it ignored a second demand for recognition and bargaining;
and I find that Respondent had at all times since receiving the first demand letter
dated March 4, 1964, been engaged in a program of interference and surveillance to
dissipate the Union 's majority by interrogation , threats of closing its plant, and dis-
2Bernel Foam Products Co., Inc , 146 NLRB 1277 ; wherein Louis Aiello , et at., d/b/a
Aiello Dairy Farms, 110 NLRB 1365 , and subsequent decisions to the same effect were
overruled.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging union supporters to forestall the possibility of the Union winning an election
in the pending representation case. Such conduct undoubtedly interfered with its
employees' right to a free choice of a bargaining representative.
The efforts of Respondent to defeat the Union were augmented by certain busi-
nessmen of the town of Benson, North Carolina. There is no substantial evidence
to show collaboration by the Respondent, but it must be recognized that such com-
munity campaigns have a tendency to interfere with the functions of the Board
in conducting a free and untrammeled election as provided by the Act. If such
conduct threatens employees with economic reprisal, inspires fear and confusion,
and thereby renders a fair election impossible, it becomes a duty of the Board to set
aside such election whether or not directly attributable to the employer involved.
From all the circumstances of this case, I am convinced and find that the appearance
of a group of businessmen from the Benson community before a meeting of Respond-
ent's employees at the courthouse on the eve of and within 24 hours of the election
to express vehement opposition to a labor organization coming into the business
community, coupled with threats of reprisal by such businessmen and community,
created an atmosphere of fear of reprisal rendering the exercise of a free choice by
employees impossible in the selection of a bargaining representative.
Furthermore, the Respondent augmented this atmosphere of fear of reprisal by
having its president, vice president, plant superintendent, and other supervisors
present in and around the polls during the election, telling employees when to go in
to vote, and keeping them under surveillance throughout the voting process. Such
conduct in my opinion prevented a free and untrammeled ballot in the selection of a
bargaining representative.
It will, therefore, be recommended that the election conducted under auspices of
a Board agent on August 27, 1964, be set aside, and that Case No 11-RC-1949 be
severed from this proceeding and remanded to the Regional Director for Region 11
for such action as he may deem proper with respect to directing a new election.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section 1, 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 violative
of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and
desist therefrom, and also take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent has discriminated in regard to hire and tenure of
employment to discourage membership in a labor organization, I shall recommend
that it offer to Everett Baggett, Aubrey Edward Baggett, Willie Melvin Wood, Billey
E. Britt, Charlie Edgar Tart, and Paul E. McDonald immediate and full reinstatement
to their former or substantially equivalent positions 3 without prejudice to seniority
or other rights and privileges of their original employment; and make each of them
whole for all loss of pay and other emoluments he may have suffered by reason of
the discrimination against him by the payment to each of them, respectively, such
sum of money as he would normally have earned as wages from the date of his
discriminatory discharge to the date on which Respondent shall offer full reinstate-
ment, as herein provided, less his net earnings 4 during said period, to be computed
on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, plus interest as provided in Isis Plumbing & Heating Co.,
138 NLRB 716.
It will also be recommended that the Respondent, upon request, bargain collec-
tively in good faith with Local Union No. 2089, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, as the exclusive bargaining representative of its
employees in the unit herein found to be appropriate, and if an understanding is
reached, incorporate such understanding in a signed written agreement.
8 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
05 NLRB 827.
4 See Crossett Lumber Company, 8 NLRB 440.
BENSON VENEER COMPANY, INC. 797
Finding from the nature of Respondent's past conduct and its persistent hostility
towards the principles of collective bargaining that further unfair labor practices
may be expected unless effectively restrained, it shall be further recommended that
Respondent cease and desist from in any manner infringing upon the rights guar-
anteed to employees by Section 7 of the Act to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective-bargaining or other
mutual aid or protection.
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 Benson Veneer Company, Inc., is an employer engaged in commerce within the
meaning of Section 2(2) of the Act
2. Local Union No. 2089, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act
3. By virtue of Section 9(a) of the Act said Union has been since March 24, 1964,
and now is the exclusive bargaining representative of "all production, maintenance
and yard employees, including truckdrivers, employed by Respondent at Benson,
North Carolina, excluding office clerical employees, professional employees, guards,
and supervisors as defined in the Act."
4. By interrogating its employees concerning their organizational activities, engag-
ing in, and creating the impression of surveillance, and threatening to close its plant
if they selected the Union as their bargaining representative, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
5. By discriminating in regard to the hire or tenure of employment of Everett
Baggett, Aubrey Edward Baggett, Willie Melvin Wood, Billy E Britt, Charlie Edgar
Tart, and Paul E. McDonald, to discourage membership in a labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act
6 By failing and refusing to bargain, upon request, with said labor organization
on and after April 29, 1964, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The aforesaid unfair labor practices and continued surveillance by the Respond-
ent in combination with interference, restraint, and coercion of its employees by
other employers from the business community of Benson, North Carolina, on the eve
of a scheduled Board election, created an atmosphere of fear of reprisal rendering
the exercise of a free choice of representatives by such employees impossible in the
election held on August 27, 1964,
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the Respondent, Benson Veneer Company,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Interrogating its employees concerning their organizational activities, creating
the impression that such activities are under surveillance by the Respondent, and
threatening to close its plant if the Union be selected as their exclusive bargaining
representative.
(b) Discouraging membership in Local Union No. 2089, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, or any other labor organization, by
discharging, refusing to reinstate, or in any other manner discriminating against its
employees in regard to hire or tenure of employment, or any term or condition of
employment.
(c) Refusing to bargain with Local Union No. 2089, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of its
employees in the unit herein found to be appropriate for the purposes of collective
bargaining.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any other manner interfering with, restraining , or coercing its employees,
or in any manner infringing upon the rights guaranteed to such employees in Section
7 of the Act.
2 Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer to Everett Baggett, Aubrey Edward Baggett, Willie Melvin Wood, Billy E'
Britt, Charlie Edgar Tart, and Paul E. McDonald immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their seniority
,or other rights and privileges of employment; and make each of them whole for
all loss of pay or other emoluments suffered by reason of the discrimination by the
payment to each of a sum of money equal to the amount he would have earned as
wages from the date of his discharge to the date on which Respondent shall offer to
him proper reinstatement in the manner provided above in section V entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze,
compute, and determine the amounts of backpay and other emoluments due and
payable to each of the aforesaid discrimination under the terms and conditions
specified in this Recommended Order.
(c) Notify said employees if presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Upon request, bargain collectively in good faith with Local Union No. 2089,
United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclu-
sive representative of all employees in the appropriate unit described herein at its
plant in Benson, North Carolina, with respect to wages, hours, grievances, and other
terms and conditions of employment, and if an understanding is reached, embody
such understanding in a signed written agreement.
(e) Post at its plant in Benson, North Carolina, copies of the attached notice
marked "Appendix." 5 Copies of said notice, to be furnished by the Regional
Director for Region 11, shall, after being signed by an authorized representative of
the Respondent, be posted by the Respondent immediately upon receipt thereof, and
maintained by it for a period of 60 consecutive days from date of posting in con-
spicuous 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.
(f) Notify the Regional Director for Region 11, Winston-Salem, North Carolina,
in writing within 20 days from the date of this Recommended Order, what steps
have been taken by the Respondent to comply therewith-6
(g) It is further recommended that the election conducted under supervision of
said Regional Director on August 27, 1964, be set aside; and that Case No. 11-RC-
1949 be severed from this proceeding and remanded to Region 11 for such action
as the Regional Director may deem necessary and proper under the circumstances
of this case, with respect to directing a new election.
5In the event this Recommended Order be adopted by the Board, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
0If this Recommended Order be adopted by the Board, this provision shall be modified
to read* "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their organizational activ-
ities, engage in surveillance of such activities, threaten them with economic
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 5 799
reprisals, or in any manner infringe upon, interfere with, restrain,, or coerce our
employees in the exercise of their right to self-organization as guaranteed in
Section 7 of the Act.
WE WILL NOT discourage membership in Local Union No. 2089, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other
labor organization, by discharging our employees or otherwise discriminating
in regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL offer immediate and full reinstatement to employees Everett Bag-
gett, Aubrey Edward Baggett, Willie Melvin Wood, Billy E. Britt, Charlie Edgar
Tart, and Paul E. McDonald, and make each of them whole for any loss of
pay and other emoluments they may have suffered by reason of our discrimina-
tion against them.
WE WILL, upon request, bargain in good faith with Local Union No. 2089,
United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the
exclusive representative of our employees in the appropriate unit, with respect
to wages, hours, grievances, and other terms and conditions of employment,
and, if an understanding is reached, embody such understanding in a signed
agreement.
All our employees are free to become or remain , or to refrain from becoming or
remaining, members of aforesaid Union, or any other labor organization.
BENSON VENEER COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the employees listed above if presently serving in
the Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board' s Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem , North Carolina, Telephone
No. 723-2911.
International Brotherhood of Electrical Workers, Local 5, AFL-
CIO [Pittsburgh Plate Glass Company ] and Joseph J.' McAl-
lister and Brotherhood of Painters, Decorators and Paper-
hangers of America, Glaziers Local Union No . 751, AFL-CIO.
Case No. 6-CD-178. January 13, 1966
DECISION AND DETERMINATION, OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following the filing of charges under
Section 8 (b) (4) (D) of the Act. A hearing was held. before Hearing
Officer Edward A. Grupp on October 8, 1965. All parties appeared
at the hearing and were afforded full opportunity to be heard, to exam
ine and cross-examine witnesses, and to adduce evidence bearing upon
the issues. The rulings of the Hearing Officer made at the hearing
were free from prejudicial error and are hereby affirmed. Briefs were
filed by Pittsburgh Plate Glass Company and International Brother-
hood of Electrical Workers, Local 5, AFL-CIO.
156 NLRB No. 80.