Cherry River Boom & Lumber Co.

National Labor Relations Board - Board Decisions

Sep 22, 1942

44 N.L.R.B. 273 (N.L.R.B. 1942)

In the Matter of CHERRY RIVER BooM & LUMBER Co. and UNITED
CONSTRUCTION WORKERS ORGANIZING COMMITTEE
Case No. C-2153:-Decided September 00, 1949
Jurisdiction : lumber industry.
Unfair Labor Practices
In Gene? al: employer held responsible only for such persons found to exercise
supervisory duties.
Interference, Rest) aunt, and Coercion: anti-union statements; warning employees
with respect to their union activities.
Company-Dominated Union: charges of, dismissed.
Evidence : Trial Examiner's exclusion of evidence of alleged acts of violence
and misconduct on part of union, where offered to prove that union had lost
status as a labor organization under the Act, affirmed.
Mr. Harold Weston and Mr. Benjamin E. Cook, for the Board.
Callaghan and Wolverton, by Mr. Brooks B. Callaghan and Mr.
James H. Wolverton,"of Richwood, W. Va., for the respondent.
Ritchie, Hill 'cV Thomas, by Mr. Charles Ritchie, of Charleston,
W. Va., for the Independent.
Townsend and Townsend, by Mr. W. J. Thompson, of Charleston,
W. Va., for the United.
Mr. Raymond J. Compton, of counsel to the Board. J
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Construc-
tion Workers Organizing Committee, affiliated with the Congress of
Industrial Organizations, herein called the United, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Ninth Region (Cincinnati, Ohio), issued its complaint dated
January 22, 1942, against Cherry River Boom & Lumber Co., Rich-
wood, West Virginia, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (2) and
Section 2 (6) and (7) of the National Labor Relations'Act, 49 Stat.
449, herein called the Act. Copies of the complaint, accompanied by
notice of hearing, were duly served upon the respondent, the' United,
44 N. L. R B., No. 50.
487498-42-vol 44 is 273
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Richwood Loggers and Lumbermen's Union, herein called the
Independent.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent (1) in or about September 1941 in-
itiated, formed, and sponsored the Independent, and by soliciting
and encouraging membership in the Independent, by discouraging
and warning employees against membership in or activities on be-
half of the United, and by engaging in sundry other acts well known
to the respondent, has since dominated the Independent, contributed
to its support, and interfered with its administration; and (2) by the
foregoing acts, and ,by--questioning its employees as to their" union
affiliation, by urging,"persuading, and warning them to join the In-
dependent and/or to refrain from aiding, becoming, or remaining
members of the United, by vilifying the United and its leaders and
organizers, by assaulting and threatening United organizers and of-
ficials with physical violence and death if they remained in Richwood,
and by surveillance of the activities, meetings, and meeting places of
the United, interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act. On or
about January 28, 1942, the respondent filed its answer, and on Feb-
ruary 4, 1942, an amendment thereto, admitting certain allegations
of the complaint concerning the nature of its business, -denying that
it had engaged in any unfair labor practices, and affirmatively aver- '
ring in substance that the United, because of alleged acts of violence
and misconduct, was not a "labor organization" within the meaning
of the Act, and that consequently the Board was without authority to
issue its complaint. With the amendment to its answer, the re-
spondent also filed a motion to dismiss the complaint, setting forth as
a basis therefor the affirmative defenses alleged in the answer.,
Pursuant to notice, a hearing was held from February 5 to 21,
1942, inclusive, at Summersville, West Virginia, before Samuel H.
Jaffee, the Trial Examiner duly designated by the Chief Trial Exam-
iner. At the opening of the hearing, the Independent filed a motion
to intervene, which the Trial Examiner granted. The Board, the re-
spondent, the United, and the Independent were represented by counsel
and participated in the hearing. Full opportunity 'to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties. At the commencement
of the hearing, the Independent filed an answer denying the alleged
unfair labor practices involving the Independent and a motion to dis-
miss the complaint. Both the answer and the motion set forth sub-
stantially the same affirmative defense. as was advanced by the
respondent, i. e. that the United, because of alleged acts of violence
1 See footnote 2, infra.
CHERRY RIVER BOOM' & LUMBER CO. . 275
and misconduct, was not such a "labor organization" as was author-
ized to file a charge under the Act. The Trial Examiner denied the
motions to dismiss the complaint filed by the respondent and the In-
dependent, without prejudice to their renewal later during the hear-
ing. The rulings are hereby affirmed.' At the close of the hearing,
the Trial Examiner granted a motion by counsel for the Board to con-
form the pleadings to the proof. During the course of the hearing,
the Trial Examiner ruled upon other motions and upon objections to
the' admission of evidence. The Board has reviewed` the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed. At the conclusion of the
hearing, the parties were afforded an opportunity to submit briefs
and to argue orally before the Trial Examiner. None of the parties
presented argument or submitted a brief.
The Trial Examiner thereafter filed his Intermediate Report dated
April 3, 1942, copies of which were duly served upon the parties, in
which he found that the respondent had engaged in and was engaging
in unfair labor practices affecting conmmerce, within the meaning of
Section 8 (1) and (2) and Sectiof7 2 (6) and (7) of the Act. He
accordingly recommended that the respondent cease and desist from
engaging in the unfair labor practices and that it take certain affirma-
tive action to effectuate the policies of the Act. The Trial Examiner
further recommended that the complaint be dismissed insofar as it
alleged that the respondent, by threatening organizers and officials of
the United with physical violence and death, by assaulting United
organizers, and by subjecting to surveillance the activities, meetings,
and meeting places of the United, had engaged in unfair labor prac-
tices. On May 4 and 5, 1942, respectively, the Independent and the
respondent filed exceptions to the Intermediate Report together'with
briefs in support of their exceptions. Pursuant to, notice, a. hearing
was held before the Board on May 21, 1942, at Washington, D. C., for
the purpose of oral argument. The respondent and the Independent
3 At various times during the hearing, counsel for the respondent and the Independent
moved that evidence be received in support of their defensive allegation that the United
had engaged in acts of violence and misconduct . The Trial Examiner denied the motions
insotar as such evidence was offered to pioie that the United, as contended, had lost its
status as a labor organization, and admitted testimony of this nature only where offered
to affect the credibility of particular witnesses The ruling of the Trial Examiner is
hereby afirined. Cf N. L R B. v. Indiana d Michigan Electric Company, 124 F. (2d) 50
(C. C A 6 ), remanding Matter of Indiana cf Michigan Electric Company and International
Brotherhood of Electrical Workers, Local B-9, 20 N. L. R. B 989 , cert granted 62 S Ct.
1276 In this connection, it appears that various members of the United who testified at
the hearing were under indictment for alleged violence occurring at the respondent's plant
in December 1941, while a strike called by the United on -October 3 was still m progress.
The indictments were still pending at the close of the hearing we find that they do not
here affect the general credibility of the witnesses against whom they were directed. Cf
Republic Steel Corporation v N L. R B, 107 F (2d) 472 (C C. A 3), enforcing as modi-
fied Matter of, Republic Steel Corporation and Steel Workers Organizing Committee,
'9N.L R. B. 219.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were represented by counsel and presented argument. The -United
-did not appear.
In their exceptions, the respondent and the Independent allege bias
and prejudice on the part of the Trial Examiner. We find nothing
in the record to support a finding that the Trial Examiner was biased
or that he conducted the hearing in a manner prejudicial to the inter-
ests of either the respondent or the Independent. The Board has
considered all the exceptions to the,Intermediate Report and the briefs
in support thereof and, insofar as the exceptions are inconsistent with
the findings, conclusions, and order set forth below, finds them to be
without merit.
Upon the entire record in the case, the Board Makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Cherry River Boom & Lumber Company, a West Virginia corpo-
ration, has its principal office at Scranton, Pennsylvania. Its prin-
cipal mill, and the only one involved in this proceeding, is located at
Richwood, West Virginia, where it is engaged in the manufacture,
sale, and distribution of lumber and wood products. The annual cut
of lumber at the Richwood plant 'is approximately 36,000,000 board
feet, of which approximately 70 percent is shipped to points outside
the State of West Virginia. Approximately 80 percent of the ma-
chinery, repair parts, and supplies'used by the respondent at its Rich-
wood plant is shipped from States, other than West Virginia. The
respondent employs an average of approximately 650 non-supervisory
employees at its Richwood operations, the number being somewhat
greater during the summer than during the winter season. The
respondent admits that it is engaged in commerce within the meaning
of the Act.
H. THE ORGANIZATIONS INVOLVED
United Construction Workers Organizing Committee is a labor
organization affiliated with the Congress of, Industrial Organizations,
admitting to membership employees of the respondent.
Richwood Loggers and Lumbermen's Union is an unaffiliated labor
organization, admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The chronology of events
The United commenced organizing the respondent's employees in
the latter part of July 1941, and held several meetings at the high school
CHERRY RIVER BOOM,& LUMBER CO. -277
auclitorum in Richwood. In' August, Local 405 of the United was
formed, and O. J. McClung, a green lumber piler, was elected president,
and Lester A. Tomlin, green chain grader, vice president.3
On or about August 14, William Green, an employee of the respond-
ent who had been laid off a few days prior thereto, held a conversation
with C. S. Badgett, general plant superintendent, during which Green
asked''when he could return to work. According to Green, Badgett
replied that Green had been "down to that damn union meeting," and
that there, would be no more work for him. Badgett denied that
unions were mentioned in the conversation, and testified that Green had
been discharged upon complaints of his fellow workers that he was con-
tinually talking and disturbing them, and that when Green inquired
about work on the occasion in question, he merely told Green that there
would be no further work for him. Although the Trial Examiner
credited Green's testimony, we find' it evasive and unconvincing. Green
testified that he joined the Union "between the last of July and the 1st
of August." However, Sidney McMillion, who worked with Green
prior to the latter's discharge, testified that a few clays after Green was
discharged, he met Green on the street and asked him if he was going-
back to work. According to McMillion's undenied testimony, Green
replied that Farmer, the United orgitnizer, had promised to reinstate
him if he 'would join the United, but that he "wasn't going to have
anything to do with the damn CIO; he was going to the coal mines to
work." Moreover, Badgett denied that he knew of Green's attendance
at the meetings of the United, and there is no substantial evidence to
refute his testimony. We find that Badgett did not make the state-
ment above attributed to him by Green.
In August and September 1941, during the United's organizing cam-
paign, David Jarrett, foreman of the planing mill, warned employees
under his supervision concerning their membership in the United.
Harold Toothman testified that in the latter part of August during
working hours Jarrett advised him not to "go with the C. I. 0.," stating,
"They will just cause you a lot of trouble and you will lose a bunch of
work and everything." Woodrow Whitlatch testified that the day after
the United had elected its officers Jarrett told him that he had heard
that Whitlatch had been elected president of the local organization.
Whitlatch, according to his testimony, replied that he had been a candi-
date but had not been elected, whereupon Jarrett told him, "You better
stay out of the C. I. 0., we don't want it." Shortly before the middle
of September, Jarrett held a similar conversation with Paul Friend,
who worked under him. According to Friend,, Jarrett told him that
3 The only labor organization at the respondent's operations prior to 1941 was a Federal
local of the American Federation of Labor, in existence sometime between 1934 and 1936.
It had no contract with the respondent and gradually lost its membership and disappeared.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he should, not,"fool" with the C. I. O., that it "wasn't worth it," and
that "he had seen one strike pulled and a lot of people starved to death
and children went naked and didn't have books to go to school." Jar-
rett denied making the foregoing statements as attributed to him. He
did admit, however, that on one occasion, after he had been instructed
by Badgett to remain neutral and to refrain from discussing unions
with the respondent's employees, he had questioned Toothman con-
cerning the demands of the United, because he was "wanting informa-
tion." We find, as did the Trial Examiner, that Jarrett made the
statements substantially as above attributed to him by Toothman,
Whitlatch, and Friend.
Arden Green, who was employed on the logging train, testified that
on, or about September 1, 1941, Edwin Hivick, woods superintendent,
asked him if he was going to "fool with the C. I. 0." Green was then
a member of the United, but Hivick was unaware of his membership.
Green, according to his testimony, replied in the negative, and Hivick
then told Green that he would be well paid for not "fooling with the
C. I. 0." Green further testified that about a week later, Hivick told
him to watch the other trainmen and to report to him who joined the
United. Hivick denied, Green's testimony. Hivick's version of his
conversation with Green was that on one occasion Green had mentioned
"something about the C. I. 0."; that he said to Green that he "guessed"'
that the latter was "having a lot of fun with the C. I. 0."; that Green
replied that he was not a member; whereupon he told Green that it
was "a man's own privilege to join whatever he wants to." We credit
Green's' testimony, as did ,the Trial Examiner, and find that Hivick
attempted to dissuade Green from membership in the United and
offered to compensate him for reporting the names of his fellow em-
ployees who joined the United.
O. J. McClung, a lumber piler at the dry kiln, testified that about
September 1, a day or two after he had been elected president of the
United local, Jennings Spencer, foreman of the dry kiln, told him in
the presence of other employees that the C. I. O. was "radical" and
had "lots of communists" as members. Spencer denied that he had
mentioned the C. I. O. or made any comment concerning communists in
its organization, but admitted that he had stated on this occasion that
the "biggest objection" he had to "any union organization" was the
"radicals" in it. We find, as did the Trial Examiner, that Spencer
made the statements substantially as testified to by McClung.
Carl Dilley, who loaded lumber in cars on the "race track," testified
that during the month of September he had asked Ben Dilley, who had
charge of the loading of lumber on the "race track," 4 if he could have a
4 There is some uncertainty in the evidence as to whether Ben Diller is a foreman He
himself testified he did not know whether he was or not That Dilley is clearly possesed
of supervisory authority, however, is revealed by his ouun testimony that there are 11 em-
CHERRY RIVER BOOM & LUMBER Co. '279
few days off "to go squirrel hunting," in response to which he was told
tha"ttif'he continued "fooling around here with the C. I. 0." he would
have "plenty of time to go." Ben Dilley denied making the statement
thus attributed to him. We find, however, as did the Trial Examiner,
that Ben Dilley warned Carl Dilley as the latter testified. 1
Lester A. Tomlin and Harry Gaynor testified that on or 'about Sep-
tember 15, Doyle Gaynor, assistant yard foreman, told a group of
approximately 12 employees that Badgett would not recognize the
C. I. O. and would never operate the plant under a contract with that
organization. Doyle Gaynor denied that he had so advised any of the
respondent's employee's. On all the evidence, we credit the testimony
of Tomlin and Harry Gaynor and find, as did the Trial Examiner,
that Doyle Gaynor made the statement attributed to him above.
On September 15, 1941, the United wrote a letter to the respondent in
which it claimed to represent a majority of the employees, and re-
quested a bargaining conference. Onj'September)19; the respondent
replied, stating that the alleged majority had not been established,
but that the'respondent was willing to meet with the United when
"definitely convinced that its employees desire to affiliate' with" that
organization. On September 20, following a brief walk-out of a
number of employees, a committee from the United met with officials
of the respondent. At the meeting, the United requested recognition
as the exclusive bargaining agent, reiterating its claim to a majority
membership among the employees. Badgett refused to accord recog-
nition until the United's alleged majority was proved by "some fair
and impartial means." After some discussion as to what constituted
"fair and impartial means," it was agreed that the United would file a
petition with the Board for an investigation and certification of rep-
resentatives with the understanding that an election would be held to
determine the issue. The United further agreed to refrain from strik-
ing pendingthe,holding of the,election, provided that there would be
no interference by the respondent and no indication by supervisory
employees as to whether they were for or against the United.
Badgett accepted the condition, stating in substance that the respond-
ent had not interfered in the past, and that he would issue instructions
against, any interference in the future. Most of the foremen, a.1-
though not all of the supervisory employees, were so instructed by
Badgett shortly thereafter.
According to the testimony of Edmund Kenna, lumber grader in
the flooring mill, and David F. Hicks, grader in the glue room, they
were responsible for the formation of the Independent. Kenna testi-
fied that after reading Life magazine for a period of several years,
ployees under him at the iace track; and by Badgett's admission that Dilley had super-
visory authority, although he was somewhat uncertain as to whether Dilley was properly
termed a foreman. ' '
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and having seen various newsreels and moving pictures entitled "The
March of Time," he became aware of the violence and misconduct
engaged in by labor organizations. He further, testified that when the
United commenced organizing in Richwood, "we were faced with an
organization of that kind," and that early on the morning of Sep-
tember 23 he discussed the matter with Hicks. Shortly after 8 o'clock
that morning, Kenna telegraphed the Board's Regional Office at
-Pittsburgh to "hurry up the election" in order "to prevent violence." 5
In the early afternoon, he received a reply stating that an attorney
for the' Board would be at Elkins, West Virginia, the following
day and would meet with Kenna as soon as possible. In the mean-
time, Hicks had spoken to several other employees who, like Kenna
and himself, were opposed to the C. I. 0., and they made arrange-
ments for a meeting to be held that night at Camp Woodbine, located
a few miles from Richwood. Approximately 27 of the respondent's
employees met at Camp Woodbine that night. A number , of those
present were yard graders,6 including W. M. Hicks, father of David
F. Hicks, Frank Davis, Roy L. Detamore, Lon Lewis, and John
Forga. While there was some discussion concerning the "ways and
means of organizing a labor union," it was apparent that the purpose
of the meeting was largely one merely of opposition to the C. I. O.
The following morning, September 24, Kenna received a telegram
from the Pittsburgh Regional Office 7 stating that an attorney for
the Board would be in Elkins for several d iys, and suggesting that
Kenna communicate with him there. On the morning of September-
25, Kenna, Frank Davis, W. M. Hicks, Stanley Ball, yard graders,
and Scott Ocheltree, an employee, went to Elkins to. consult the Board
attorney. This group and the others who opposed the C. I. 0., by
then, had decided that they would form an independent union to
combat the United. They had heard that the United was claiming
that yard graders would not be eligible to vote in an election, and
they accordingly sought the opinion of the Board attorney on this
point. , He indicated that they would be eligible. After the con-
ference, the -group returned to Richwood. That same night, from 80
to 100 employees met at Camp Woodbine where they discussed the
conference with-the Board attorney at Elkins and the possibility of
forming an independent union. After the meeting, they returned to
Richwood in their automobiles, holding an impromptu parade as
5The agreement between the United and the respondent on September 20 for the filing
of it petition with the Board had become generally known
The supervisory status of yard graders is hereinafter discussed.
° It had been assumed that, Nicholas County, in which Richwood is situated, came
within the jurisdiction of the Pittsburgh Regional Office of the Board. However, it is
within the jurisdiction of the Cincinnati Regional Office, and, on October 7 the Regional
Director at Pittsburgh telegraphed Kenna to that effect
CHERRY RIVER BOOM & LUMBER CO. 281
they entered the city. As they proceeded down the main street, the
occupants of the automobiles blew their horns and shouted "down
with the C . I. 0." Okey McCartney , foreman of the lumber pilers,
had attended the meeting and was in one of the automobiles forming
the procession.
Within the next 2 or 3 days "Red" Byrd, whose supervisory au-
thority is hereinafter discussed , asked Harry Gaynor , an employee on
the chain , during working hours and on company property , to join
the Independent , saying, as Harry Gaynor testified , "We will get a
5 cent raise and later on We will ' get a 3 cent raise. " Byrd added,
according to Gaynor , "we will do better with that than we would with
the C. I. 0." About the same time Byrd told employee Harold-Tooth-
man, who was working on the chain that day, that the Independent
was having a meeting that night and that Toothman had "better come
down and sign up with them. " Their testimony as to the conversa-
tion with Byrd is uncontradicted. Byrd was not a witness . We find,
as did the Trial Examiner, that Byrd urged Gaynor and Toothman to
join the Independent as they testified above.
About the end of September , after it became generally known that
the Independent ' was in the process of formation , "petitions" bear-
ing the heading "We, the undersigned , are opposed to the C. I. O.
union" were circulated among the respondent's employees .' David F.
Hicks, who, with Kenna, was responsible for the formation of the
Independent , testified that at his request an employee named Ellison
typed four of the documents , and that he secured signatures of em-
ployees in the glue room to one of them during working hours. He
further .testified that he gave one of the documents to Vernoy E.
Powers, who had charge of dock repair work and whose alleged super-
visory status is disputed , and that the remaining two were never used.
Powers testified that he obtained a few signatures, some outside work-
ing hours and a small number on company property during working
hours. The uncontradicted testimony of a number of yard employees,
however, reveals that Powers secured many signatures chiefly during
working hours and on company property." Upon learniVg that the
petitions were being circulated , Farmer, the United organizer, tele-
phoned Badgett and complained about it. Badgett told Farmer that
he would investigate the matter. Badgett, according to his testimony,
questioned various foremen concerning the petitions, but they denied
fi Powers testified that he did not "suppose" he had obtained as many as 50 signatures,
but that he was certain lie had obtained more than 10 He testified that he could not
"remember" what he did with the document after obtaining the signatuies, that lie made
no iepoit to anyone as to the number of signatures obtained, that lie did not speak to
nicks about it; and that ho did not ask Hicks how many signatures Flicks had obtained
to a similar document. Hicks in turri testified that lie made no inquiry of Powers about it
Both Powers-and Hicks testified that the matter was nevet discussed thereafter among
membeis of the Independent.
01
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having any knowledge of their circulation.' Both Hicks and Powers
testified that they were careful to circulate the petitions in the absence
of their respective foremen.
About this time, according to the testimony of Byrne Long, an
employee in the flooring mill, David Jarrett, planing mill foreman,
again made known his hostility to the-United. Long testified tli tt he
,was getting his machine ready to start work one morning when Jarrett
came by and engaged him in a conversation during which Jarrett
stated that the C. I. O. was "nothing more than Hitlerism" and existed
"just to cause trouble." Long further testified that Woodford Taylor,
foreman of the flooring mill, and Bert Grose, an employee, were pres-
ent when Jarrett made this statement. Jarrett, Taylor, and Grose
denied Long's testimony. Since, as found hereinabove, Jarrett had
evinced a pronounced hostility toward the United in statements made
to employees Toothman, Friend, and Whitlatch, we find, as did the
Trial Examiner, that Jarrett made the statement above attributed to
him by Long.
Between the latter part of September and the first of October 1941,
Farmer, the-United organizer, called Badgett several times and pro-
tested against the coercive conduct of the respondent's supervisory
employees, reminding him of the respondent's agreement on Septem-
ber 20 that it would refrain from any interference with the United's
organizing efforts pending an election by the Board. On October 3,
1941, the United called a strike. The employees left their work, oper-
ations ceased, and shortly thereafter a picket line was established io -
The calling of the strike prompted increased activity in the organi-
zation of the Independent. Oh the morning of October 4, a group of
the employees 'promoting its organization went to Bergoo, West'Vir-
ginia, -where they consulted an officer of an unaffiliated labor union
at a lumber mill there and obtained advice as to the formation of the
Independent. One of the men who went to Bergoo was Frank Davis,
a yard grader." The promoters of the Independent also took several
trips to Belle, West Virginia, in order to obtain advice from members
of another inaffiliated union at a plant in that city.
Badgett did not question rowers as to his-circulation of the petition, although Badgett,
as found by the Trial Examiner, admitted that when Farmer complained over the tele-
phone, Farmer specifically referred to Powers' activity In its brief, the respondent points
out that the Trial Examiner's finding-in this connection is "positively untrue" The
accuracy of the Tual Examiner's finding, however, is clearly evidenced by the following
testimony of Badgett • I -
Yes sir. Farmer, or Mr Farmer, or Mr Estep, one or the other, called up later
and made-and complained about the foremen working for the Independent Union,
and I said "who is it"" and he said, "Verney Powers"-I believe he said "Vernoy
Powers " I said, "who else"' And that is all he mentioned I said, "well, he isn't a
foreman; I can't do anything about that."
'o The plant did not Icsume operations until December 9, 1941
n Davis had formerly been employed as yard foreman by the respondent In March 1937
he quit his employment with•the respondent, but retuined in July of that same year as a
yard grader, in which capacity he was still employed at the time of the teasing
CHERRY RIVER BOOM & LUMBER CO. 283
On October '6, a committee of the Independent composed of five
employees, including L. R. Seward, a conductor on the logging rail-
road ,12 and Stanley Ball, a yard grader, called on Badgett, requested
recognition as the bargaining representative of a majority of the em-
ployees, and presented a proposed contract. Badgett informed the
committee that he could not recognize the Independent until it had
proved its alleged majority membership,• stating that another labor
organization had made a similar claim and suggesting that they com-
municate with the Board's Regional Office with reference• to the
matter.13
On October 7, the promoters of the Independent retained attorneys
Belknap and Berry of Sutton, West Virginia, to complete formal
organization of the Independent. Upon advice of these attorneys,
the Independent was incorporated and received a charter under the
corporation laws of the State of West Virginia 'on October 8, 1941.
'There were 5 incorporators of the Independent, namely, W. M.• Hicks,
Roy L. -Ddtdmore, and Guy 'Lusk, yard graders,` R. C. Roberts, an
employee on the railroad, and Vernoy Powers, whom we have pre-
viously referred to in connection with the anti-C. I. O. "petition." The
following day, approximately 10 or 12 of the more prominent adherents
of the Independent,met and, in accordance with the requirements of
the West Virginia statutes applicable to corporations, elected a board
of directors. The directors thus elected were Powers, Edmund Kenna,
and David F. Hicks. The board of directors then elected officers of
the corporation as follows : Powers, president; Roberts, vice president;
Lusk. second vice president; Detamore, secretary; and W. M. Hicks,
treasurer. Following the election of officers, the Independent had
application cards printed and began an intensive membership cam-
paign in which various yard graders and logging train conductors
were active participants. -
In the meantime members of the independent union at Belle, Nest
Virginia, has recommended the employment of Charles Ritchie, an
attorney in Charleston, West Virginia, to assist the Independent in
its organizing activities. About October 16, several of those most
active in the formation of the Independent, including certain yard
graders, went to Charleston and interviewed Ritchie. Ritchie indi-
cated that he would require a retainer for his services. The members
of the Independent who consulted Ritchie returned to Richwood, ex-
plained the situation to their fellow members, and the following day,
October 17,, W. M. Hicks and Roy L. Detamore applied for a loan
of $500 from the Cherry River National Bank, of which Badgett was
president and T. L. Falor, its cashier and active head. When apply-
'd The supervisory status of logging train conductors is hereinafter discussed
"Thereafter , the Independent filed with the Board a petition for an investigation and
certification of representatives.
284 " DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing for the loan, Hicks and Detamore told Falor that the money was
to be used to pay Ritchie and that it was needed immediately. Falor
stated that he preferred not to lend the money to the Independent as
an organization, and suggested that several of its members sign the
note as individuals 14 Later the same day, Hicks and Detamore re-
turned to the bank with a 3-month note for $500 signed by 16 mem-
bers of the Independent, including Edmund Kenna, David Hicks,
Vernoy Powers,, and several yard graders, whereupon the loan was
granted.15 Falor testified, without contradiction, that as cashier he
had authority to lend up to $1,000 independently of any action by
the bank directors, and that at least 3 of the comakers, of the note
owned property valued at considerably more than the amount of the
loan. It further appears-that Badgett was not consulted by Falor,
and that he did not, know until later that the loan had been made. A
consideration of all the evidence pertaining to the loan convinces us,
as it did the Trial Examiner, that in connection with the granting of
the loan the respondent rendered no assistance to the Independent
that would constitute a violation of the Act 1'
On October 20, there was a conference held at the Board's Regional .
Office in Cincinnati at which representatives of the respondent, the
United, and the Independent 'were present. The respondent and the
Independent suggested that the Board conduct an election among the
employees with both the Independent and the United on the ballot.
The United refused to participate in an election with the Independent
on the ground that the latter was a company-dominated organization.
.The coiference terminated without reaching an agreeliient.
On or about December 5, while picketing was still in progress,
Badgett asked Whitlatch, in the presence of another employee,
whether Whitlatch was ready to go back to work. ' Whitlatch, ac-
cording to his testimony, replied that he was on strike and would not
return until the United was recognized by the respondent, whereupon
Badgett stated that the Board would determine the question of
recognition, adding that the C. I. O. was not there to help Whitlatch,
that all it wanted was his money. Badgett denied making any state-
ment disparaging to the United on this occasion, and testified that he
merely said to Whitlatch and the other employee, "Boys, don't you
'* The reason for this, Falor testified, was that it would he cumbersome to make such a
loan ; that a vote of the directors would be necessary , and that the national bank examiners
require a showing that the organization applying for the loan had authority to do so, and
that the signers of the application were the proper officials thereof
'1 Immediately after securing the loan , the officers of the Independent retained Ritchie,
and «ith his assistance prepared bylaws foi• the Independent These bylaws were approved
a few days later at a meeting of the Independent, which was attended by approximately 200
employees
10 On November 7, ,O J McClung and Lester Tomlin, president and vice president of
the United respectively, made a similar application in behalf of the United for a loan of
$500. The application was withdrawn, however, prior to final action thereon by the bank.
CHERRY RIVER BOOM & LUMBER Co. 285
think we ought to be at work," to which Whitlatch replied that he
would not work "until, they recognized the CIO." At about the sane
time, Doyle Gaynor, according to the testimony of.-Harry Gaynor,
told a group of strikers that they might as well go elsewhere for work,
reiterating his prior statement to Gaynor and Tomlin that Badgett
would not operate under the C. I. O. Doyle Gaynor denied that he
so advised the strikers. The Trial" Examiner did not credit the
denials of Badgett and Doyle Gaynor, and we find that they made
the remarks concerning the C. I. O. substantially as testified to above
by Whitlatch and Harry Gaynor.
On December 9, 1941, the respondent resumed its operations. Al-
though some members of the United joined the Independent and
returned to work, a substantial number of them remained on strike.
The strike was still current at the time of the hearing.
B. The respondent's responsibility for the activities of certain employ-
ees whose supervisory status is disputed
As revealed by the facts set' forth above, various supervisory em-
ployees of the respondent expressed their hostility towards the "Unite"d
and urged and warned employees under their supervision not to join
that organization. We have found that Badgett, general superin-
tendent; Edwin Hivick, woods superintendent, and various plant f ore-
men engaged in conduct of this nature. Their supervisory status is
unquestioned, and that the respondent is properly chargeable for their
activities in this regard is clear. There are other employees, however,
who engaged in similar conduct and also participated in the forma-
tion and organizing activities of the Independent-for whose actions
the respondent contends that it is not responsible. In' this latter cate-
gory are the conductors on the logging trains, the yard graders, and
"Red" Byrd and Vernoy E. Powers. It is necessary therefore to ana-
lyzethe functions of these employees whose supervisory status the
respondent disputes.
Conductors.-The conductors on the logging trains receive orders
from the dispatcher which they relay to the train crew. They perform
a small amount of paper work, including the keeping of a temporary
record of the time worked by the train crew, and receive 5 cents more
per hour than the other members of the crew, with exception of the
engineer. Other than the afore-mentioned paper work, the conductors
perform the same duties as the other members of the train crew, ek-
eluding engineers and firemen. In the relaying of orders, they act
merely as messengers, having no authority to initiate or change the
provisions of such orders. Conductors are not regarded as having su-
pervisory authority, or as acting for the management. We find, as
did the Trial Examiner, that the respondent is not responsible for the
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements and conduct of these men in connection with the union
activities of its employees.
Yard graders-The primary duty of the yard graders is to grade
lumber in the filling of particular orders for shipment. They usually
receive the orders from the yard foreman or the assistant yard fore-
man, who assigns to each grader an average crew of four or five helpers.
called lumber handlers. The lumber handlers move and stack the
lumber as it is graded, sorting it according to grades as indicated by
the grader either verbally or by markings on the lumber. The yard
grader makes a record of the time worked by the men in his crew, and
if more men are needed, he secures them from the yard foreman. Yard
graders are paid 70 cents an hour when grading hardwood and 64 cents
an hour when grading softwood; the handlers generally receive 45
cents an hour. Graders have no authority to hire or discharge, and
although they may inform the yard foreman if the men in their crews
are incompetent, no duty is imposed upon them to do so. Yard grad-
ers also grade lumber as it is loaded into the railroad car, keeping a
tally of the kind, quality, size, and quantity graded and loaded, and
doing whatever other paper work is necessary in connection with the
shipment, including the signing of the order after it is filled.
The Trial Examiner found that the yard graders were employed in
a supervisory capacity such as would charge the respondent with-
re-sponsibility for their conduct. We believe that the Trial Examiner
erred in evaluating the function of these employees by attaching more
significance to certain factors regarding the character of their em-
ployment than is warranted. Although several employees who worked
as lumber handlers testified that they considered yard graders to be
"bosses" and representatives of the management, the evidence, in our
opinion, does not support the finding of the Trial Examiner that they
are generally so regarded by the respondent's employees. Nine yard
graders testified that they engaged in no supervision over their crew
other than to inform the handlers as to the particular lumber to be
loaded and where to load it, and that in most instances even this was-
unnecessary due to the familiarity of these men with the various grade
marks. They further testified, as did the superintendent and the yard
foreman, that graders are not responsible for the mistakes made by the
lumber handlers, nor are they authorized to discipline them. Al-
though there is evidence that on occasion a yard grader 'may complain
concerning the incompetency of a member of his crew, so far as ap-
pears, the complaint is similar to that of any skilled employee who in
the interest of efficiency reports the inadequacy of one of the helpers
assigned to him.
We accord no special significance to the fact that the yard graders
keep the time of the crew working with him, since it appears that this
CHERRY RIVER BOOM &, LUMBER Co. 287
procedure is adopted merely to relieve the yard foreman for whom it
would be difficult to keep close watch on the numerous crews working
throughout the yard. Nor do we attribute significance to the fact that
yard graders earn considerably more per hour than the lumber
handlers. ^ The yard graders are highly skilled men whose rate of pay
is attributable to their skill, and it nowhere appears that they are so
compensated because of any supervisory duties assigned to them.l'
On all the evidence, we find that the respondent's yard, graders are not
supervisory employees such as would make their statements and con-
duct attributable to the respondent.
Vernoy E. Powers-For the past 3 or 4 years Powers has been em-
ployed by the respondent as a dock repairman, whose duties consist
largely of rough carpentry work. He 'is classified on the respondent's
pay roll as a laborer, is paid by the hour,18 and works under the super-
vision of W. A. Shifflett, yard foreman, and Doyle Gaynor, assistant
yard foreman. Occasionally Powers works alone, but most of the
time he works with a crew of from one to five men, depending upon
the amount of dock repair work to be performed. These men are
assigned to assist Powers by Shifllett or Gaynor. , Powers keeps their
time, but has no authority to discipline or to hire or discharge them.
Several employees testified that Powers was "boss" of the dock repair
crew and that he told the men working on dock repairs what to do and
how it should be done. Shlfllett and Gaynor, however, denied that
Powers had any supervisory authority. Badgett also testified that
when Powers was assigned to dock repair work he was told that he
was not to be a foreman, and that he was expected to work all of the
time. Powers similarly testified that Badgett had told him he was
employed only as a laborer.
Although it appears that Powers instructs other workmen assigned
to assist him in repairing the docks, such instruction is not necessarily
indicative, of, his: employment in, a supervisory capacity. He was the
17 Lester A Tomlin , vice president of the United , and William Hilton , it member of the
United , who are employed as graders on the conveyor chain which carries the green lumber
from the sawmill, also receive the same rate of pay as the yard graders , require the same
qualifications , and on occasion work: as yard giaders No contention is made by the United
that they are supervisory . It appears that the only difference between green chain graders
and yard giadeis is that the chain graders remain stationasv , grading the lumber as it
leaves the mill , whereas the yard graders work at different places throughout the yard,
depending necessarily upon where the lumber is to be graded and loaded The lumber
handlers on the green chain pull the lumber off the chain according to the grade markings
and pile it on trucks , whereas the lumber handlers in the yard take the lumber off the
various piles as it is graded and pile it on trucks The only difference in the work per-
formed by the two types of handlers is that those on the green chain must of necessity
woik'along the'chain farther away fiom . the grader , whereas the yard handlers are in
close proximity to the grader , and thus are subject to the grader 's correction should he
observe then piling the lumber in the wrong place
18 In September 1941, Powers received 52 cents an hour , the highest rate paid dock
repairmen . The men sporadically assigned to dock repair work generally received the
minimum rate of 45 cents an hour However , J R Seward , who was working on dock
repairs at that time, also received as much as Powers
288, 'DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
only repairman permanently assigned to and charged with repairing
the docks, and,his direction of the other worlnnen is reasonably attrib-
utable to this fact and to his consequent familiarity with that particu-
lar' work. As was true with reference to the conductors and yard
graders, we do not believe that the fact that Powers keeps the time of
the repair crew is of controlling significance. We are, of the opinion
that Powers' relationship with the other repairmen on the ,dock is
similar to that of a machinist and his helpers, and we are convinced,
therefore, contrary to the Trial Examiner, that Powers was neither
employed in a supervisory capacity nor accorded ostensible supervisory
authority by,the respondent. Accordingly, we find that the respondent
is not chargeable with the activities of Powers hereinabove set forth.
"Red" Byrd-An average of 17, and at times as many as 25, lumber
handlers are employed, by the respondent on the sorting chain carrying
the green lumber from the sawmill. These handlers remove the lum-
ber from the chain after it is graded and place it, according to the
kind and quality of the wood as indicated by the grade marks, on small
trucks drawn up along the length of the chain for that purpose. Les-
ter, Tomlin and William Hilton, graders on the chain, and Harry
Gaynor, a chain employee, testified that "Red" Byrd was the "boss"
of the chain. Badgett denied that Byrd was employed in such capac-
ity, and testified that Byrd was "more of a leader" over the lumber
handlers. According to Badgett, although Byrd-on occasion handles
lumber as "sort of a fill-iii man," his "principal" duty is to "break in
the green men and show them what the grade marks mean so that they
will know the grade marks indicate the lumber is to go on certain
trucks." Badgett further testified that Byrd works "along the full
length of the chain," and, in addition to instructing the handlers, sees
that sufficient trucks are properly placed for piling the lumber as it
comes off the chain. C. J. Pingley, assistant superintendent, and
Doyle Gaynor, assistant yard foreman who with Foreman Shiffiett has
general supervision over the , green chain, testified similarly to
Badgett. They likewise denied that Byrd was a "boss" or a foreman.
Byrd did not testify.
Although it appears that Byrd has no authority to hire or discharge,
does not keep the time of the lumber handlers, and receives but a
slightly higher rate per hour than the other chain employees, we find
that these factors do not detract from the substantial authority which
the respondent, has accorded him over the employees on the chain.
We believe that the extent of Byrd's supervision in maintaining the
efficient operation of the chain amply justifies the conclusion of the
'chain employees that he was their "boss" and, as such, represented
the management. Under these circumstances, we find that the re-
spondent is responsible for the pro-Independent solicitation and anti-
CHERRY RIVER BOOM & LUMBER CO.. 289
United statements made by Byrd to Harry Gaynor and Toothman, as
.lsherein above found
C. Concluding findings
1. Alleged, domination of the Independent
Since the Trial Examiner found that Powers and the yard graders
were supervisory employees whose activities were attributable to the
respondent, it was not unreasonable for him to conclude that the im-
portant part played by such employees_in the formation and adminis-
tration of the Independent constituted domination of, interference
with; and support to that organization by the respondent. Our find-
ing to the contrary with respect to the employee status of Powers and
the yard graders, however, removes their activities from consideration
in determining the respondent's alleged domination of the Independ-
ent. Thus, there remain for consideration in this regard Byrd's soli-
citation of Gaynor and Toothman for membership in the Independent
and his anti-United statements to them, the participation of Foreman
McCartney in the meeting of the promoters of the Independent and in
the impromptu parade that followed, and the anti-United statements
made by various other supervisory employees. ' In the light of all the
circumstances surrounding the formation of the Independent,' we are
of the opinion that the foregoing activities by the respondent afford an
insufficient basis upon which to find that the respondent dominated,
interfered with, and contributed support to the Independent. We
shall accordingly dismiss the allegations of the complaint relative
thereto.
2. Interference, restraint, and coercion
Our finding with respect to the respondent's alleged domination of
the Independent does not, however, destroy our conviction that the
respondent otherwise seriously interfered with the organizing efforts
of the United. At the inception of the United's organizing campaign,
various supervisory employees of the respondent manifested their
hostility toward the United. As we have found, Jarrett, planing mill
foreman, was especially outspoken in his denunciation of the C. I. 0.,
warning Toothman, Whitlatch, and Friend against becoming or re-
maining members of the United. Superintendent Hivick told Arden
Green that he would be well paid for not joining the United and
asked him to report those-who joined. Foreman Spencer spoke de-
rogatorily of the C. I. 0., referring to it as a "radical" organization
19 Byrd ' s statement to Gaynor that he would receive a raise in pay if he joined the Inde-
pendent, by its very text , would reasonably lead Gaynor to believe that Byrd was acting
for the management.
487498-42-vol. 44-19
290 DECISIONS OF NATIONAL LABOR RELATIONS: BOARD
with "lots of communists" as members; Supervisor Dilley warned
Carl Dilley that he would lose his job if he continued "fooling around"
with the C. 10.;. and Foreman Doyle Gaynor told several employees
that the respondent would never recognize the United or operate
under a contract with it. Although the respondent agreed at the
conference between representatives of the respondent and the United
that the respondent would not interfere with the union activities of
its employees, it thereafter violated its agreement. Jarrett continued
to evince his hostility to the C. I.'O., telling Long in the presence of
Foreman Taylor that the C. I. 0. was "nothing more than Hitlerism."
Byrd urged Harry Gaynor and Toothman to join the Independent,
telling the former thiit the employees would "do better" under the
Independent than under the C. I. 0. and promising hint a raise in
pay if he would join the Independent. During the strike, Badgett
informed Whitlatch in the presence of another striker that the United
was not interested in helping Whitlatch and only wanted his money,
and Foreman Doyle Gaynor reiterated to a group of strikers his
previously expressed conviction that the respondent would never oper-
ate, under a contract with the United and that they might as well go
elsewhere for work.
We find that by, the course of conduct of its supervisory employees
in disparaging the United, and in warning them with respect to be-
coming or remaining members thereof, as described. above, the re-
pondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
We further find that' the.strike which began on October 3, 4941,
was not caused or thereafter prolonged by the unfair labor practices
of the respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that 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 con
merce and the free flow of commerce.' ' '
'V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor 'practices, we shall order it to- cease and desist from such prac-
tices and to take certain affirmative action designed to effectuate .the
policies of the Act.
CHERRY- RIVER BOOM & LUMBER CO ,. • : 291
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following : -
CON'cLusIoEs OF LAW
1. United Construction Workers Organizing Committee and Rich-
wood Loggers and Lumbermen's Union are labor organizations,-within
the meaning of Section ^ (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act,' the
respondent has engaged in and is engaging in unfair labor -practices,-
within the meaning of Section 8 (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 has not dominated or interfered with the forma-
tion or administration of, or contributed support to Richwood Log-
gers and Lumbermen's Union, and has not thereby engaged in unfair
labor practices, within the meaning of Section 8 (2) of the Act.
5. The respondent has not assaulted or threatened organizers and
officials of the United with physical violence, or subjected to sur-
veillance the activities, meetings, and meeting places of the United,
and has not thereby engaged in unfair labor practices, within the
meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that 'the respond-
ent, Cherry River Boom & Lumber Co., Richwood, West Virginia, and
its officers, agents, successors, and assigns shall :
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, or to en-
gage in concerted activities for the purpose of collective bargaining
or other mutual aid and protection as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act: I
(a) Post immediately in conspicuous places throughout its plant
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating that the respond-
292 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
ent will not engage in the conduct from which it is ordered to cease
and desist in paragraph 1 hereof;
(b) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith;
AND IT IS FURTHER ORDERED that the complaint , insofar as it alleges
that the respondent, by dominating and interfering with the folma.-
tion and administration of, and contributing support to, Richwood
Loggers and Lumbermen's Union, has engaged in unfair labor prac-
tices within the meaning of Section 8 (2) of the Act, and by assault-
ing and threatening organizers and officials of the United' with physic
cal violence, and by subjecting to surveillance the activities, meetings,
and meeting places of the United, has engaged in unfair labor prac-
tices within the meaning of section 8 (1) of the Act, be, and it hereby
is, dismissed.
,CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.