Caldwell Furniture Co.

National Labor Relations Board - Board Decisions

Feb 5, 1952

97 N.L.R.B. 1501 (N.L.R.B. 1952)

CALDWELL FURNITURE COMPANY
Order
1501
IT IS HEREBY ORDERED that the petition filed by American Federation
of Hosiery Workers, AFL, be, and it hereby is, dismissed.
CALDWELL FURNITURE COMPANY and UNITED FURNITURE WORKERS OF
AMERICA, CIO. Case No. 34-CA-283. February 5, 1952
Decision and Order
On August 15, 1951, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaged 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. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices and recommended that the complaint be dismissed as to such
allegations. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report. The General Counsel did not file exceptions to that
part of the Intermediate Report which recommended that the com-
plaint be dismissed as to certain allegations.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Murdock and Styles].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the additions and modifications
noted below.
1. The Respondent asserts that the Trial Examiner accepted its
contention that the union representatives had reasonable opportunities
to contact the employees at a place other than upon its property,
namely at the intersection of the Respondent's road and the public
highway. We think that implicit in the Trial Examiner's description
of the premises and the manner in which employees leave the plant,
and in his citation of the Le Tourneau and Carolina Mills cases,' is
the finding that distribution of literature to employees off the Re-
spondent's property is virtually impossible and, at times, hazardous,
'Le Tourneau Company of Georgia , 54 NLRB 1253 , enforcement ordered 324 U. S. 793
( 1945 ) ; Carolina Mills , Inc., 92 NLRB 1141, enfd. 190 F. 2d 675 ( C. A. 4, 1951).
97 NLRB No. 240.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that contact on the public ways or off the Respondent's property
is limited to those few employees who walk to and from work, or who
will stop their private automobiles to receive the union literature. We
agree and so find. We also find that the distribution of union litera-
ture cannot readily be conducted away -from this Respondent's prem-
ises; and that in the absence of evidence that special circumstances
exist which justify the necessity of the Respondent's rule prohibiting
the distribution of union literature on its property,' such rule, at least
insofar as it affects the Respondent's parking lots adjacent to its
plant," constitute an unreasonable impediment to the freedom of
communication essential to the exercise of its employees' rights to
self-organization .4 Accordingly, we conclude that the Respondent
by enforcing its rule in this respect, has violated Section 8 (a) (1)
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 the Respondent, Caldwell Furniture Com-
pany, Lenoir, North Carolina, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Enforcing its rule prohibiting the distribution of union litera-
ture outside the gates of its plant and upon its parking lot during the
employees' nonworking time.
(b) Engaging in any like or related acts or conduct which inter-
feres with, restrains, or coerces its employees in the exercise of their
right to self-organization, to form labor organizations, to join or assist
United Furniture Workers of America, CIO, or any other labor or-
ganization, to bargain collectively through representatives of their
ovv n choosing, to engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, or to refrain
from any and all such activities except to the extent such rights 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
2 The Supreme Court in N L R. B. v. Le Tourneau Company of Georgia ,, 324 U. S. 793
(1945 ) held that the Board had properly placed the burden of proof on the employer to
show the existence of special circumstances relied upon to justify the existence of such a
rule No such showing was made in this case by the Respondent.
The Trial Examiner's recommended order is modified accordingly.
4 Le Tourneau Company of Georgia, supra.; Carolina Mills, Inc., supra ; United Aircraft
Corporation, 67 NLRB 594; but cf. Newport News Children 's Dress Co., Inc., 91 NLRB
1521 ; Colonial Shirt Corporation , 96 NLRB 711.
CALDWELL FURNITURE COMPANY 1503
(a) Rescind immediately its rule prohibiting the distribution of
union literature outside of the gates of the Respondent's plant and
upon the Respondent's parking lot during the employees' nonworking
time.
(b) Post at its plant at Lenoir, North Carolina, copies of the notice
attached hereto marked "Appendix A." 5 Copies of such notice, to
be furnished by the Regional Director for the Fifth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for a period of sixty (60) consecutive days thereafter in conspicu-
ous places, including all places where notices to employees customarily
are posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Fifth Region, in writing,
within ten (10) days from the date of the receipt of this Order, what
steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed insofar as it alleges that the Respondent inter-
fered with, restrained, or coerced its employees by any acts or conduct
other than those found herein to have been committed in violation of
the Act.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations` Act, we hereby notify our employees that: -°^V. Tf,
WE WILL cease-,and desist from enforcing our rule prohibiting
the distribution of union literature outside of our plant gates and
on our parking lot during the employees' nonworking hours.
WE WILL NOT engage in any like or related acts or conduct which
interferes with, restrains, or coerces our employees in the exercise
of their right to self-organization, to form labor organizations,
to join or assist UNITED FuRNITURu WORKERS OF AMERICA, CIO,
or any other labor organization, to bargain collectively through
representatives of their own choosing, to -engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities
except to the extent that such right may be affected by an agree-
, In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment requiring membership in a labor organization as a cQndition
of employment as authorized by Section 8 (a) (3) of the Act.
WE hereby rescind our rule prohibiting the distribution of
union literature outside our plant gates and on our parking lot
during nonworking hours.
CALDWELL FURNITURE COMPANY,
Employer.
By ---------------------------------
Dated--------------------
(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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed by United Furniture Workers of America, AFL,
herein called the Union, the General Counsel of the National Labor Relations
Board; by the Regional Director for the Fifth Region (Baltimore, Maryland),
issued a complaint dated June 29, 1951, against Caldwell Furniture Company,
herein called the Respondent or the Company, alleging that the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act. Copies of the complaint, with copies of the
charge and notice of hearing, were duly served upon the Respondent and the
Union.
The complaint alleges in substance that the Respondent on and after about
March 1, 1951, enforced a rule prohibiting the distribution of union literature
on its property, prevented representatives of the Union from distributing
literature on its property, assaulted them when they attempted to do so, pro-
hibited its employees from accepting the same, and kept under surveillance
employees accepting such literature. By reason of this conduct the Respondent
engaged in violations of Section 8 (a) (1) of the Act. About July 16, 1951,
counsel for the Respondent filed a motion for a bill of particulars requesting
that he be furnished with the names of the Respondent's officers, agents, or
representatives alleged to have engaged in such conduct, as well as the names of
the union representatives and employees referred to in the complaint. The
General Counsel filed his opposition to the motion. About July 17, 1951, the
undersigned granted the motion to the extent that the General Counsel furnish
the names of the Respondent's officers, agents, or representatives alleged to have
participated in the foregoing acts. About July 18, 1951, the General Counsel
supplied this information in writing to the Respondent. Thereafter, the Re-
spondent duly filed its answer wherein it admitted certain allegations of the
complaint but denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held at Lenoir, North Carolina, on July 23
and 24, 1951, before the undersigned duly designated Trial Examiner. The Gen-
eral Counsel and the Respondent were represented by counsel and the Union
by its representatives. All parties participated in the hearing and were afforded
x The General Counsel and his representative at the hearing are herein referred to as the
General Counsel ; the National Labor Relations Board as the Board.
CALDWELL FURNITURE COMPANY 1505
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence pertinent to the issues involved. At the outset of the hearing
the General Counsel moved for leave to amend the assault allegation of his
complaint to include a battery upon the union representatives, and to add a new
allegation to the effect that the Respondent interrogated its employees concern-
ing their union activities and threatened them with economic reprisals if they
continued to engaged in such activities. Counsel for the Respondent objected to
the proposed amendments on "general principles," and specifically objected to
the second proposal on the grounds that it was an entirely new type of violation,
which had not been anticipated by him. The motion was granted with the
understanding that counsel for the Respondent had the right to apply to the
undersigned for additional time, if necessary, in order to prepare his case with
respect to the new allegation added to the complaint. After the Respondent hact
presented its case, the General Counsel moved that the pleadings be amended'
to conform with the proof, which motion, without objection, was granted by
the undersigned, limited, however, to matters of form and not substance. At
the conclusion of the case counsel for the parties presented oral argument to,
the undersigned. The parties were also advised of their right to file briefs in
this matter.
Upon the entire record in this case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The pleadings disclose and the parties stipulated that the Respondent is a
North Carolina corporation and maintains its office and principal place of busi-
ness at Lenoir , North Carolina , where it is engaged in the manufacture and sale
of furniture. In its manufacturing operations the Respondent during the year
1950 purchased raw materials and supplies valued at approximately 100,000, of
which in excess of 50 percent represents shipments to the Respondent 's plant
from places outside the State of North Carolina. During the same period its
sales were valued in excess of $150,000, of which more than 50 percent repre
sents shipments to customers in places other than the State of North Carolina,
The Respondent admits that it is engaged in commerce as defined in the Act,
and the undersigned so finds.
II. THE LABOR ORGANIZATION
United Furniture Workers of America, CIO, is a labor organization admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Conrpalvy' s plant
John R. Beard, general manager of the Company, stated that the plant is
located about 11/2 miles from Lenoir,2 and employs normally about 450 employees,
who live in Lenoir and surrounding areas as far distant as 45 miles from the
plant. Although Beard had not made an accurate check or study thereof, he
estimated that approximately 100 employees walked to work while the rerriainder
2 The parties stipulated that Lenoir , including districts within a radius of about 4 miles,
has a population of approximately 9,700 persons.
-1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came in automobiles. He admitted that bus service was inadequate, and but few
employees used this means of transportation. Raymond R. Harless and Hubert
Russell, former employees of the Company, testified that while working for the
Company they lived at Wilksboro, a distance of 38 miles from the plant, and that
about 12 other employees lived in the same area. Harless and Russell drove to
and from work and estimated that about 90 percent of the employees used
automobile transportation.
The parties were unable to agree upon the dimensions and area of the plant
and no maps, photographs, or plats were offered in evidence at the hearing.'
Beard testified that the buildings and lumberyard are enclosed by a fence embrac-
ing a total of 3,200 feet and that the property is square on 3 sides and is bounded
on the remaining side by a railroad running "a circular route" around the plant.
Immediately outside the fenced area the Company owns and maintains a parking
lot for its employees, which is about 390 feet in length and tapers from 85 to
25-feet in width. The lot is paved and marked off and accommodates about 117
cars. There is paved road, 27 feet wide, which "runs together" with the park-
ing lot for the approximate length of the same and into a public highway leading
to Blowing Rock and Lenoir. On the right side of the road, coming from the
plant, there is space for parallel parking sufficient to accommodate about 20 cars.
All vehicles entering the plant from the public highway, or leaving the plant,
must use the company roadway. At the time in question the Company had but
one gate, a double gate affair, which was used by the employees in entering and
leaving the plant. Beard stated that the cars leave the lot in 4 lanes and con-
verge into a single lane of traffic some 50 feet prior to entering the highway. In
.respect to employees who walk to and from work, Beard said that there is a
narrow pathway coming off the parking lot, about 200 feet from the gate, which
branches off into 2 paths, one leading to houses located behind the plant and the
other leading straight to houses, apparently owned by a cotton mill situated near
the plant. Some employees living in the area of the plant use the company
roadway leading to the highway.
Raymond J. Schnell and Archie W. Graham, union representatives, described
the physical setup of the property substantially the same as Beard. They also
stated that the employees left by only one gate, the main gate, and those driving
entered the public highway at a rather high rate of speed. Beard said the cars
entered the highway with caution. Admittedly, there is no stop sign or traffic
control signal at the intersection of the company roadway and the highway.
Shortly prior to the hearing, Schnell and Graham, on July 20, went to the plant
for the purpose of estimating the number of cars leaving the plant, as well as
the number of employees walking therefrom, and as a result of this visit the
record discloses that about 124 cars left the plant that day and approximately
24 employees were observed walking along the company roadway and the
footpaths.
B. The events of March 1
On the afternoon of the above date Schnell and Graham went to the plant
in order to distribute copies of the Union's official newspaper among the em-
ployees. Schnell testified that after he and Graham parked their cars on the
' The General Counsel moved on several occasions that the parties visit the plant.
Counsel for the Company did not oppose the suggestion, if time permitted. The under-
signed denied the motion for the reasons that it would be preferable to obtain measure-
ments by way of stipulation, or by maps or charts, rather than by personal inspection
which would probably result in each party reaching a different conclusion concerning the
measurements.
CALDWELL FURNITURE COMPANY 1507
Company 's lot , which they knew was company property , they walked to the
main gate where they saw the gateman , Roy P . Walsh , and another person.
Graham gave each of them a paper and while they were talking another indi-
vidual, later identified as Carl B . Clark , a supervisory employee , approached
Walsh and asked what Schnell and Graham were doing there . Walsh replied
"they were handing out this Union paper ," showing him a copy , whereupon
Clark told Walsh to "get them out of here." Accordingly, Walsh told Schnell
and Graham to leave the property but Graham refused to do so and informed
him that they had a right • to be there to distribute literature. Clark then
walked away from the group in the direction of the plant and shortly afterwards
returned with Beard. Schnell related that Beard was "very aggressive,"
shouldered Graham and jabbed him with his finger , at the same time ordering
them off the property. Graham again refused to leave and explained that they
had the right to pass out their newspapers. After an exchange of words as
to whether Graham was lawfully on the property, Beard stated he was going to
call the police and left the group. Graham testified substantially to the same
effect. Clark followed Beard, but before leaving he told Walsh to "tell the
workers not to take any of those papers." It was then quitting time, and as
the employees were approaching the gate - Walsh placed himself inside the
gate area and told the employees not to take the papers . Schnell and Graham
remained outside the gate distributing the newspapers. After a number of the
employees had left, a pickup truck, driven by Plant Superintendent Joseph
R. Nash , stopped at the gate . Nash , according to Schnell , got out and grabbed
him by the arm, pulled him to the front of the truck, and told him to leave the
property . Schnell said he was not leaving and Nash threatened to put him
off the property. Nash then went to Graham, who was on the opposite side
of the truck, and told him not to hand out the papers. Graham asked Nash
if he was "the law" and when he answered in the negative, Graham said he
was remaining until the law arrived, whereupon Nash walked away. Shortly
thereafter, Schnell and Graham, when all the employees had left the plant,
returned to their cars and prepared to leave the property. Schnell said that
while he and Graham were seated in their cars, Nash, with a number of employ-
ees, approached each of them and asked for their names. Schnell identified him-
self, but Graham declined to do so and told Nash he could get this information at
the union office. Nash made a remark to the effect that Graham was the type
of person who was ashamed to give his name and walked off towards the plant.
A few minutes later the employees left and Schnell and Graham drove to
Lenoir. Neither Schnell nor Graham returned to the plant until July 20,_ as
set forth above.
Schnell testified that he had previously distributed literature on plant prop-
erty, about December 15, 1950, without any interference or warning from the
gateman. Aarless stated that about September 1950, union organizers were
stationed at the intersection of the company roadway and highway and passed
out leaflets to workers leaving the plant by car, as they stopped prior to enter-
ing upon the highway. There is no evidence that the Union attempted to dis-
tribute literature except on the above occasions.
Beard, who had been in the Company's employ since 1933, testified that for 7
or 8 years the Company has had a rule or policy prohibiting the distribution of
any literature or leaflets on its property and, since October 1949, when he became
general manager, he has enforced this rule. The rule, according to Beard, was
adopted to prevent the distribution df all leaflets and advertising matter by
local merchants or individuals on the Company's property, especially on its
parking lot because this activity resulted in the lot being littered with such
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
papers thereby requiring the time and expense of an employee to clean up the'
same. Beard stated that the gatemen were instructed to enforce this rule and
to make periodic checks of the parking lot to be certain that no one was passing
out leaflets or placing them in or on the cars. He further stated that he him-
self had stopped persons from distributing literature on the parking lot. Nash
also testified concerning the rule and stated that the gatemen were instructed
to enforce the same and report any violations thereof to him. Like Beard,
Nash has also stopped persons from distributing leaflets on the parking lot.
Walsh and John R . Eller , gatemen, said that they were fully cognizant of the
rule and their duties in respect to the enforcement thereof.
Concerning the incident of March 1, Walsh stated that when Schnell and
Graham came to the gate to distribute their literature he told them of the com-
pany rule and asked them to leave. When they refused to move and said they
had a right to be there, Walsh asked Clark to get Beard or Nash. Walsh
admitted he may have told the employees , as they were leaving the plant, not
to accept the newspapers.
Beard testified that Clark informed him of the incident at his office and he
then proceeded to the gate. There he told Schnell and Graham of the company
rule with respect to the passing out of literature and requested them to go to the
upper end of the parking lot , seemingly the point where the roadway intersects
the highway . Beard stated that Graham accused him of not being familiar
with the law and refused to leave. Beard informed Graham that he would not
engage in any extended argument and said he would have Graham put
off the property . Beard returned to the plant where he called the sheriff's
office and was advised to obtain the names of the persons involved . At that
time Beard did not know their names so he instructed Nash to secure this in-
formation . Nash , after making two trips to the gate area, reported to Beard
that only one man , Schnell, would identify himself. Beard left the plant shortly
before 5 o'clock but did not see Schnell or Graham as he drove through the gate.
Nash said that as he was leaving the plant in his pickup truck he saw, two
men handing out papers so he stopped and told them this was contrary to com-
pany rules. One of the men, Graham , told him they could pass out literature
so Nash left and informed Beard , who was in his office , of the incident. Beard
informed Nash that he had unsuccessfully requested the men to leave and asked
Nash to secure their names . Nash returned to the gate and asked Schnell and
Graham for their names, which they refused to state. After reporting this
to Beard, Nash again approached Schnell and Graham while at their cars and
requested their names . This time Schnell identified himself but Graham de-
clined to do so. Nash remarked that it was "funny" to refuse such a request
and then left . Nash denied that he brought any men with him on this occasion
but he admitted some employees were present as it was shortly after quitting
time and the men were going home.
Clark testified that he was present when Walsh told Schnell and Graham to
leave and when they refused he reported the matter to Beard. He was also
present when Beard talked to them concerning the company rule against hand-
ing out literature . Clark said that after Beard left, Schnell and Graham
remained at the gate for about 10 minutes passing out newspapers. Clark
denied that he instructed Walsh to tell the employees to refuse to accept the
papers from Schnell and Graham. '
Beard denied that he "shouldered " or jabbed his finger at Graham and his'
testimony was corroborated by Clark and Walsh. Nash stated he did not
"touch" Schnell or Graham, nor "consciously " lay his hands on them.
CALDWELL FURNITURE COMPANY 1509
Beard and Nash testified that prior to the March 1 incident, they observed
individuals handing out union leaflets to employees at the intersection of the
company roadway and highway. Nash said most of the cars "stop momentarily"
at the intersection and a person standing there would have an opportunity to
hand out leaflets to car passengers at that point.
Schnell, testifying in rebuttal, denied that Beard told them to distribute
literature at the end of the parking lot but ordered him and Graham to get off
the property.
Conclusions
From the evidence set forth above, the undersigned has no difficulty in reach-
ing the conclusion, and so finds, that the Company for some years prior to the
events in question had a rule, which it enforced, prohibiting the distribution of
leaflets, advertising circulars, and similar matters, upon its property particularly
in its parking lot area. The undersigned also finds that on March 1 Schnell and
Graham went upon the property of the Company for the purpose of distributing
union literature to the employees, during their nonworking time, and, while thus
engaged, were ordered and instructed by Beard and other responsible repre-
sentatives of the Company to cease this activity and to leave the property at
once. The undersigned further finds that Schnell and Graham refused to comply
with these orders or instructions but remained upon the property until after
they had distributed their literature.
The Company contends that its antidistribution rule is a reasonable and
necessary one, that it is, and has been, enforced in a nondiscriminatory manner,'
and that the union representatives had reasonable opportunities to contact the
employees at a place other than upon its property, namely, at the intersection
of the company road and the public highway. The Supreme Court in N. L. R. B. v.
Le Tourneau Company of Georgia (324 U. S. 793) under facts similar to those
appearing in case, rejected practically identical contentions and held that the
company by enforcing its general "no-distribution" rule against the distribution
of union literature by its employees on their own time on its parking lots adja-
cent to the plant thereby interfered with, restrained , and coerced its employees in
violation of their rights guaranteed under the Act. Counsel for the Company
argues that the Court in the Le Taurneau case, "went somewhat to the limit of
the law," and that the recent decision of the Board in Newport News Children's
Dress Company (91 NLRB 1521) indicates a tendency to narrow and restrict the
scope thereof. The undersigned cannot agree with this argument for in the
Newport News case, the Board clearly adheres to the principle established in the
Le Tourneaac case, but held it was inapplicable because of an entirely different.
factual situations Again, the Board in Carolina Mills, Inc. (92 NLRB 1141)
4 The Company admitted that it permitted ministers or preachers to deliver sermons to
its employees during the luncheon hour in and around the area of the plant and also
permitted a shoe salesman to display and sell his products In the same area. The Company
argues these are different situations and have no relation to its rule against the distribu-
tion of literature . The General Counsel adduced much evidence to show that leaflets were
distributed at the plant gate and that bill collectors and sundry salesmen contacted the
employees at the plant , especially on the parking lot. As the alleged violation in this case
does not turn on the discriminatory or nondiscriminatory application of the rule it is
unnecessary to discuss this evidence . This does not mean that the undersigned accepts
as true and as evidence of discrimination all the testimony adduced by the General Counsel
on this phase of the case For instance , Russell said he saw a crippled boy go on the
parking lot selling newspapers to employees and at "different " times he observed two blind
singers soliciting money at the gate In the opinion of the undersigned , evidence of this
character is unimpressive and is entitled to little, if any, consideration.
In the Newport News case, the company's property measured but 50 x 120 feet and its
60 employees left the premises by a single gate opening upon a public street.
986209-52-vol 97--96
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that the company engaged in unfair labor practices by prohibiting the
union from distributing literature on its premises, citing the Le Tourneau case,
(The order was enforced per curiam, N. L. R. B. v. Carolina Mills, Inc., July 16,
1951; 28 LRRM 2323). There is nothing in the present case to warrant a de-
parture from the decision in the Le Toarneau case, nor to bring it within the
exception thereto as announced by the Board in the Newport News case.
The undersigned therefore finds that by maintaining and enforcing its general
no-distribution rule thereby prohibiting representatives of the Union from dis-
tributing union literature upon its property to the employees during nonworking
hours, the Company thereby engaged in conduct in violation of Section 8 (a)
(1) of the Act.
As appears above, Schnell testified that Nash grabbed him by the arm and pulled
him to the front of his truck and Graham stated that Beard shouldered him
and jabbed him with his finger. Nash denied that he touched Schnell. Beard,'
corroborated by Clark and Walsh, denied that he shouldered or jabbed Graham.
The testimony of Schnell and Graham in respect is not persuasive and is re-
jected. Since the General Counsel has the statutory burden of establishing the
allegations of his complaint by a preponderance of all the evidence, the under-
signed is of the opinion that he failed to sustain that burden in this respect. The
undersigned therefore finds that the Company through its agents or representa-
tives did not assault and batter Schnell or Graham as alleged in the complaint,
as amended at the hearing.
C. Other acts of interference
Harless testified that he was employed in the finishing room from about Feb-
ruary 1950 until April 1951, when he voluntarily quit his employment. He
stated that shortly before Christmas of 1950, representatives of the Union came
into the area of 'the plant and made announcements to the employees over a
loud-speaker system. On one such occasion Harless said that Albert Allen,
assistant foreman in the finishing room, told Harless and a group of employees
if the union men came back "he was going to get a bunch of men and go up there
and run them off." Harless could not recall what the men were discussing nor
what prompted Allen to make his statement. Harless could not recall the names
of any employees present on this occasion except Russell, his brother-in-law.
About the same time Harless related that Foreman Gene Nelson told a group of
employees that "if the Union kept on it was going to knock us out of the Christmas
bonus." On cross-examination Harless said that on this occasion Nelson was
having lunch with a group of the workers who were talking about matters other
than the Union when, "out of a clear sky," Nelson made the foregoing remark.
Although Harless stated that the "whole bunch of boys" were present, he could
identify, in addition to Russell, but five such employees, whom he described as
"Babe," and his son, "a Clark fellow," and the two "Nelson boys." Again, about
the same time, Harless said that Superintendent Nash called him to the office
and told him he had information that Harless had been distributing union cards
among the employees during working hours and asked him if he had done so.
Harless replied that he had given out cards but not during working hours. Nash
informed him that if he passed out cards while working he would have to leave
the plant. Nash, according to Harless, advised him that he knew he was a
member of the Union, then asked if he was a member, and Harless admitted
to such membership.
Russell stated that he was employed by the Company from about September
1950 to April 1951, when he quit his job. He testified substantially the same as
CALDWELL FURNITURE COMPANY 1511
Harless concerning the statements made by Allen and Nelson. Russell said
there were about 12 employees present when one of the statements was made-
It is not clear whether he was referring to Allen or Nelson-and identified
Harless, Lee Young, a man named "Pete," and 2 Nelson boys as among the group.
Russell also stated that Allen was employed mixing stain and as Nelson was never
absent from the plant (except once and then only for an hour), Allen never
had an opportunity to act in his place. He stated that he looked upon Allen
as a supervisor and if he issued any instructions concerning work he carried
out the same.
Allen testified that he was, and is, employed in the finishing department mixing
stain . He is employed on an hourly basis and, together with the finishing spray
painter , receives about 9 percent above the average hourly rate of employees in
the department. Allen stated that at times he transmits instructions issued by
Nash or Nelson to the employees, and in Nelson's absence he acts in his place,
with "Nash's help." Nash admitted that Allen transmits orders to the employees
and while not considered as a supervisory employee the Company is training him
to be assistant supervisor. Allen denied that he made the statement attributed
to him by Harless and Russell and denied that he ever made any remark to the
employees concerning the presence at the plant of a union sound truck.
Nelson, foreman of the finishing department, said that one day Harless, Russell,
and a few men were talking at the plant when one of them remarked that if the
Union kept coming around the Company would not give its Christmas bonus.
Some of the men asked Nelson "about it," and he answered, "Union or no Union,
the Company don't have to give a bonus."
Waddell Dyson stated he is known as "Babe" Dyson and works in the finishing
department. He denied that he was present on any occasion when Nelson dis-
cussed or made any remarks in regard to the Union or that the Company would
take away the bonus if the union representatives came around the plant.
Pete Dellinger testified to the same effect as Dyson.
Nash said that Foreman Nelson was the only employee by that name in the
finishing department.
Nash testified that he received a report that Harless was attempting to sign up
employees in the Union during working hours, so he called Harless to his office
and asked him if the report was true. Harless, according to Nash, admitted the
report was true and volunteered the information that he was a member of the
Union. Nash told Harless it was his privilege to belong to the Union but that the
Company did not permit any solicitation of employees during working hours.
Conclusions
The foregoing evidence, apart from that bearing upon interrogation, presents
sharp and conflicting issues of fact. Harless and Russell plainly testified that
Nelson and Allen uttered statements, which, if accepted, would clearly constitute
violations of the Act. On the other hand Nelson and Allen deny that they made
any such remarks, and Nelson's testimony is corroborated by two witnesses, who
were alleged to have been present when the statement was made. Under the
circumstances it seems reasonable to conclude that the General Counsel has failed
to sustain his statutory burden of establishing the alleged violations by a prepon-
derance of all the evidence, and the undersigned is of that opinion. However,
the undersigned does not base his findings or conclusions solely on that ground.
While Harless charged Nelson with having specifically referred to the bonus, it
is significant that at that time the employees were not even discussing the Union
or union matters. It is therefore difficult to believe that a foreman, absent any
evidence of antiunion motives on the part of the Company, would, apparently for
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no reason, volunteer such a statement to a group of employees. Apparently,
Allen made his statement under similar conditions for Harless could not recall
what topics the employees were discussing or what prompted him to say that he
would gather a group of men and run off the union representatives. Russell's
testimony fails to disclose the circumstances under which the statements were
made. Further, although these incidents allegedly took place in December 1950,
obviously they were not brought to the attention of the General Counsel until
after Harless and Russell had quit their employment with the Company. By
this, the undersigned does not mean to infer, nor is there any evidence to that
effect, that Harless and Russell were antagonistic or hostile towards the Com-
pany, but, nevertheless, the fact that they were testifying as ex-employees is a
factor to be considered in evaluating and weighing their testimony. Under all the
circumstances the undersigned is not convinced by the testimony of Harless and
Russell concerning the events mentioned above, and accordingly, it is rejected.
In view of this resolution of the credibility issue, it is unnecessary to determine
whether Allen was employed as a supervisor, as defined in the Act.
In respect to the interrogation of Harless, the evidence reveals that during
the course of an inquiry by Nash as to whether Harless was soliciting members
during working hours, Nash, after advising Harless that he was aware of his
membership in the Union, asked if he was a member thereof. Nash denied that
he questioned Harless concerning his union membership. Harless' version of
the interrogation is neither convincing nor persuasive and for this reason, as
well as those stated above, his testimony is not accepted by the undersigned.
In view of the foregoing .the undersigned finds that the Company did not
unlawfully interrogate its employees in regard to their union activities or mem-
bership, nor did it interfere with, restrain, or coerce its employees in violation
of the Act, by threats or intimidating statements, or threatening to withdraw
economic benefits from the employees because of their membership in or activity
on behalf of any labor organization.
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
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that the Respondent cease and desist there-
from and take certain affirmative action which the undersigned finds will effectu-
ate the policies of the Act.
Since the finding of unfair labor practices is based solely upon the Respondent's.
establishment and enforcement of a rule prohibiting the distribution of union
literature on its property, and as there is no evidence to warrant the conclusion
that it might reasonably be anticipated that the Respondent will engage in other
unlawful conduct in the future, it will not be recommended that the Respondent
be enjoined from the commission of any and all unfair labor practices proscribed
by the Act, but it cease and desist from the unfair labor practice found and
from any like or related acts or conduct which would tend to interfere with,
GULF COAST OIL COMPANY 1513
restrain, or coerce its employees in the exerciseof the rights guaranteed under
Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Furniture Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By prohibiting on or about March 1, 1951, and at all times thereafter the
,distribution of union literature on the Respondent's property during the non-
working time of the employees, the Respondent has engaged in and is. engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent, except as stated above, has not engaged in any acts or
conduct in violation of Section 8 (a) (7.) of the Act.
[Recommended Order omitted from publication in this volume.]
GULF COAST OIL COMPANY and INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN , AND HELPERS OF AMER-
ICA, GENERAL TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL
270, AFL. Case No. 15-CA-297. February 5,1952
Decision and Order
On May 14, 1951, Trial Examiner Stephen S. Bean issued his Inter-
mediate Report in the above-entitled proceeding, recommending that
the complaint herein be dismissed, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, all parties were
advised that exceptions were due on or before June 6, 1951. The
General Counsel sent a telegram to the Board before that date, on
May 31, 1951, requesting a 5-day extension of time to file exceptions
to June 11, 1951. However, the General Counsel did not serve written
copies of this request upon any of the parties. On May 31, 1951,
the same day that the General Counsel made his request, the Board
in reply sent a telegram to all parties extending the time for filing
to June 11, 1951.
On June 1, 1951, at approximately 10 a. in., the General Counsel's
representative called one of the Respondent's attorneys on the tele-
phone and advised that he had applied for an extension of time in
which to file exceptions. At approximately 10: 30 a. in. on the same
day, the Respondent's attorney received the Board's telegram of May
31, 1951, granting the extension. On June 4, 1951, the General Coun-
sel advised the Respondent's attorney that he was filing exceptions
97 NLRB No. 238.