Dan Carter Co.

National Labor Relations Board - Board Decisions

Nov 20, 1967

168 N.L.R.B. 314 (N.L.R.B. 1967)

314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dan Carter Company and Carpenters Local Union
No. 2139, United Brotherhood of Carpenters &
Joiners of America , AFL-CIO. Case
12-CA-3743
November 20, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On September 19, 1967, Trial Examiner Lau-
rence A. Knapp issued his Decision in the above-
entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair
labor practices within the meaning of the National
Labor Relations Act, as amended, and recommend-
ing that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Re-
spondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section I0(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Dan Carter Company,
Tallahassee, Florida, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
the "Act").' Respondent's counsel filed a brief but I did
not have the henelit of one from counsel for the General
^. ounse Upon the entire record of the case, including my
observation of the demeanor of the various witnesses. I
make the following.
FINDINGS OF FACT
I THE BUSINESS 01= RESPONDENT . THE LABOR ORGANIZA-
TION INVOLVED
Respondent , a corporation,2 operates at Tallahassee,
Florida, a plant for the manufacture of windows , doors,
mouldings, and like custom woodwork products used in
the building industry. In the 12 months preceding is-
suance of the complaint , Respondent received from
Florida suppliers goods and materials valued in excess of
$50,000 which said suppliers , in turn , had received
directly from States other than the State of Florida.
Respondent ' s operations are activities affecting com-
merce within the meaning of Section 2(7) of the Act, and
assertion of jurisdiction by the Board over Respondent
will effectuate the policies of the Act.
The Charging Party, Carpenters Local Union No.
2139, United Brotherhood of Carpenters & Joiners of
America, AFL-CIO (herein usually called the " Union"),
is a labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint charges Respondent with refusing to
bargain collectively with the Union as the majority
representative of Respondent's production and main-
tenance employees; and, in this connection, with engag-
ing in various acts of interference, restraint, and coercion
designed to discourage membership in the Union and to
destroy its majority representative status. The foregoing
acts are alleged to have been committed in the period
from January 16 to 31, 1967, a period immediately coin-
cident, as will be seen, with the initial union activity
among Respondent's employees. The complaint further
alleges that Respondent requested and received a sworn
evidentiary statement given by one of its employees to an
investigating representative of the Board, and that on
April 28, 1967, the last working day but one prior to the
scheduled date of the hearing herein, Respondent ter-
minated the employment of employees composing its
then complement of production and maintenance em-
ployees to discourage membership in the Union.
' In addition to the reasons given by the Trial Examiner for finding valid
the authorization cards offered to support the union's majority status
Member Brown relies upon his separately stated view in Dan Howard
Mfg Co, and Dan Howard Sportswear, Inc , 158 N LRB 805, 807, fn 5
TRIAL EXAMINER'S DECISION
STATEMENT OF THE C %SE
I AURENCE A. KNAPP, Tria Examiner: I heard this
case in Tallahassee. Florida, on May 2 to 4, 1Y67, pur-
suant to preliminary procedures in compliance with the
National Labor Relations Act, as amended therein called
' Following charges filed on January 31 and February 23, 1967, the
complaint herein issued on March 22, 1967, to which Respondent filed its
answer on March 31, 1967 On April 11, 1967, on motion of the General
Counsel not opposed by Respondent, Trial Examiner Schneider entered
an order deeming to be admitted as true certain allegations of the com-
plaint not pleaded to by Respondent in compliance with Section 102 20 of
the Board's Rules and Regulations, Series 8, as amended On May I,
1967, the Charging Party filed an additional charge At the outset of the
hearing motions of the General Counsel variously to modify and add to
the unfair labor practice allegations of the complaint were granted; to
these amendments the Examiner accepted the oral pleas of denial made on
the record by counsel for Respondent
I The complaint makes no reference to Respondent as a corporation,
but it developed in the course of the examination of Mrs Fae Rountree
Carter, its president, that it is a corporate enterprise (of what State the
record does not show)
168 N LRB No. 44
DAN CARTER COMPANY 315
In considering the issues and evidence in the case, it is
enlightening to bear in mind that Respondent, a manufac-
turer of custom woodwork products, is a very small enter-
prise. As of mid-January 1967, the starting point of the
case, Respondent had only some 16 or 17 production and
maintenance workers, and an office staff consisting of a
clerk, a salesman, and an estimator. Respondent has but
two persons with supervisory authority, James English,
foreman in charge of the production shop, and Mrs. Fae
Rountree Carter, Respondent's president, chief execu-
tive, and dominant figure.3 In this employment
microcosm, as will be seen, an atmosphere of familiarity
and free and easy communication prevails among the
production employees and between them and Foreman
English. As English described the situation in part,
"we're a group, a small group of men that talk over their
problems together...."
In late 1966 and the early days of January 1967,
production employee Benny Cunningham promoted
among his fellow shop employees the idea of their
representation by a union by querying them concerning
their willingness to attend a meeting with union repre-
sentatives which he proposed to arrange, and which
was held at the local Labor Temple on the evening of
January 16, 1967.4 Thirteen of Respondent's shop em-
ployees attended. Present for the Union were Mr. T. L.
Carlton, International Representative, and Mr. Edgar
Davis, business manager of the local Union. Carlton in
effect presided at the meeting. Toward the end of the
meeting he had distributed among the employees the
Union's authorization cards, which provide that the
signer designates the Union as his bargaining representa-
tive. After he had read aloud the wording of the card,
each of the 13 employees present executed a card (G.C.
Exhs. 6(a) to 6(m), inclusive).5
On the next day, January 17, as he had explained at the
meeting he would do, Carlton mailed (1) to the Board's
Office in Jacksonville, Florida, the Union's petition for
certification as the majority representative of Respond-
ent's production and maintenance employees (accom-
panied, I infer, by the 13 signed cards); and (2) to Mrs.
Carter, as Respondent's president, a registered letter as-
serting the Union's majority status and requesting a meet-
7 Mrs Carter suceeded to the presidency and, together with her son,
Paul Hodges (the salesman referred to above), to majority stock control of
Respondent upon the death of her husband, Dan Carter (Respondent's
founder, I infer), in late 1965 The other and minority stockholders consist
of employees and other persons intimately associated with the Company,
such as Foreman English (who is also a vice president of the Company),
estimator "Ted" Folmar, Mr Henderson, of counsel to the Company, and
the latter's secretary The evidence leaves no doubt that Mrs Carter has
the decisive say in the conduct of Respondent's affairs, that she is a per-
son of strong-willed character, and that she is decidedly opposed to labor
organizations in principle
" All dates used hereinafter refer to the year 1967
' On the basis of employee Retherford's testimony, which I credit over
that of Foreman English to the extent that the two versions vary, I find
(1) that on the afternoon of January 16, English asked Retherford if he
was going to attend the meeting that night and Retherford replied in the af-
firmative, and (2) that the next day English asked Retherford whether he
had attended, and, when Retherford replied that he had, English further
asked Retherford what or how many employees were there and had signed
cards, to which questions Retherford replied that about all the employees
had been present and had signed union cards
fi At the hearing the parties stipulated that Respondent received the
letter on January 23. Fiom additional evidence adduced from Mrs
Carter, it appears that the postal authorities kept the letter in her personal
post box at the local post office, while sending the customary notice to
Respondent's plant, she was absent from the plant for several days before
ing concerning recognition of and bargaining with the
Union. Mrs. Carter did not obtain personal possession of
Carlton's letter until the afternoon of January 23,6 and
did not reply to it. On January 19, however, she was
notified of the Union's petition and the fact that it was
supported by the signatures of 30 percent or more of the
employees, in the course of telephone calls she received
from Board representatives seeking her cooperation in
the holding of an election. Also, beginning about January
19, the employee card signers began to display, and by
January 23 practically all of them were wearing, "VOTE
CARPENTERS" buttons Carlton had given them at the
January 16 meeting with corresponding instructions. And
in the period immediately following the January 16 meet-
ing the matter of the Union became the subject of general
conversation among the employees, and between them
and Foreman English, in the shop.
About January 19, employee Thompson, who rode to
and from work with Foreman English, asked English
what he thought Mrs. Carter would do if the shop "went"
union , to which English replied that he thought that she
would close the plant.'
On Monday, January 23, during the midmorning
"break" period, Mrs. Carter addressed an assembly of
the shop employees which Foreman English had con-
vened at her direction. Referring to the prospective elec-
tion and admitting her understanding that the Union's
petition had the support of a considerable percentage of
the employees present, she dwelt on the benefits
Respondent had extended to the employees by way of
wage increases, Christmas bonuses, and the like; and
stated that Respondent had lost money in 1966 and was
unable, due to competitive conditions, to assume greater
costs (which she was necessarily implying plant union-
ization would entail). She likewise stated that at the time
of her husband's death she had been advised to terminate
the business but that she had kept it in operation for the
benefit of the employees dependent on it. She further
stated that her husband had been opposed to unions and
that she wanted to follow in his footsteps; and that if the
Union came in she would immediately lock the doors and
sell off the equipment piece by piece.'
Mrs. Carter's threat to close the plant gave rise to and
going there on January 23, and that, after addressing the employees that
morning as hereinafter described, she turned to her mail, discovered the
notice, and then sent for and received the Union's letter that afternoon
' This finding is based on the testimony of Thompson With reference
to this testimony English admitted that, as previously stated, he 'par-
ticipated in the then prevalent shop conversation concerning the Union
and that "they'd ask me a question," but asserted that there was no talk
about the Union "so far as I'm concerned " I interpret this latter reserva-
tion on English's part as meaning only his disclaimer that he initiated any
such conversation and not as a denial that he made the remark attributed
to him by Thompson
6 According to Mrs Carter and Foreman English, Mrs Carter said, in
connection with her references to added costs, that if the employees
brought the Union in "you [referring to the employees] will close the
doors " Even if Mrs Carter put the matter this way, she necessarily was
declaring her intention to close the plant rather than deal with a union as
the employees' bargaining representative But I do not credit these ver-
sions of her remarks Mrs Carter proved herself to be a person deeply
hostile to labor organizations as such, and, on demeanor and other
evidence, I am satisfied that both she and English were disposed to incline
and color their testimony as they thought would best suit Respondent's
advantage These are among the reasons why I credit the General Coun-
sel's evidence and find, as stated in the text , that she made clear her flat in-
tention to close the plant in the event , and at the time when , the Union
established its majority representative status
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the subject of corresponding concern and discussion
among the employees, and between them and Foreman
English, in the immediately following days. According to
the General Counsel's evidence, English told both em-
ployees Holm and Alday that Mrs. Carter would definite-
ly carry out her threat, and told employee Retherford that
he thought she would do so. I credit this testimony, par-
ticularly since English himself admitted having made
statements of this general character to a number of em-
ployees.`' On January 24, the day of his statement to
employee Retherford, he also told a group of employees
gathered near the timeclock that, by speaking up to Mrs.
Carter during her remarks the day before, employee
Thompson had "asked" for a reduction to a 3-day week
and that anybody else who spoke up for the Union or was
for the Union would probably get the same treatment.10
In the same set of remarks, English described Mrs. Carter
as "stubborn" at times and made one of his various state-
ments that she would close the plant if "there was a
union."" Similarly, during the afternoon of January 24,
English approached employee Holm (who during the
lunch hour had asked one of the employees why he had
removed his union button) and asked Holm to quit talking
to the men about the Union since everybody knew "all
about" this subject. Holm, in reply, asserted his right to
talk about any subject during his break and lunch periods.
English stated that this was up to Holm but that when
"this was all over" Holm would probably be without a
job. In the same conversation English said to Holm, refer-
ring to Mrs. Carter, "You know how she is. She's op-
posed to unions, and she will-if the shop goes union, she
will-if the men go union, she will shut the shop." 12
Prior to the morning "break" on January 26, English
had a conversation with employee Alday, in which he told
Alday that he was not going to let a lot of agitators talk
him out of a job and made other remarks equivalant to his
soliciting Alday to sign a letter to drop the Union to
which English made reference.13 Similarly, prior to the
break that morning English approached employee
Retherford, whose work station is near English's desk
and with whom, the record manifests, English was on
talkative terms. According to Retherford's testimony,
English said he had talked to two or three other "main
leaders" (Cunningham's was the only name he men-
tioned) about getting up a letter for the employees to sign
and send off stating that they did not want a union or that
" English denied having had any conversations concerning union activi-
ties with Holm or Alday, and could not recall talking to Retherford on this
subject However, he admitted that several employees had asked him if he
thought Mrs Carter would close the plant if the Union came in What he
replied, he testified, was that he believed Mrs Carter "would have" to
close the plant if the Union came in It would in my opinion, make no legal
difference if what English said contained the "would have" qualification
he described, because employees are not required to make nice grammati-
cal distinctions where they in effect are given to understand that their
majority adherence to a union endangers the source of their livelihood
But in the light of the overt threat I have found Mrs Carter made but a
day or so before, I do not believe that English made the careful qualifica-
tion he described and find that the statements he made were as described
in the text above
10 While Mrs Carter was addressing the employees on January 23, em-
ployee Thompson had twice obtained Mrs Carter's recognition and then
made remarks having the effect of challenging statements Mrs Carter had
made regarding prior wage increases and Respondent's financial condi-
tion
n English denied having any conversation concerning "union activity"
with the employee, Holm, who gave this testimony Holm was not
describing a conversation between him and English, but a setting in which
they had decided not to have an election; that the others
he had talked to had agreed to sign; and then asked
Retherford what he felt about this and Retherford replied
that, if the "rest" would sign, he would likewise. Rether-
ford further testified that in this conversation English also
said he was going to telephone Mrs. Carter to come to the
plant and type up the letter. On his own initiative, Rether-
ford then sought out Cunningham. According to Rether-
ford, he asked Cunningham if, and Cunningham con-
firmed that, English had talked with him about getting
such a letter prepared, signed, and sent off; Retherford
asked Cunningham how he felt about this and Cun-
ningham said "we might as well forget the whole thing";
and Cunningham further stated that he had informed En-
glish that he would sign such a letter and "see" if the rest
would and that he was going to get the letter typed up.
Cunningham admitted having had a conversation with
Retherford but could not rec'll its content and, hence, did
not directly deny having made the specific statements at-
tributed to him by Retherford. In his further testimony,
Cunningham asserted that the idea of the letter originated
with h:m. In explanation, he testified that, for reasons
which he could not clearly elucidate under extensive in-
terrogation by the Examiner, he (and, he said, other em-
ployees whom he did not, however, identify) had become
disenchanted with the union idea; that friction and an-
tagonism were developing between those wanting to drop
the Union and those of contrary mind; that he did not
know how to go about dropping the Union; that, on
January 25, he went to Foreman English for advice,
because English was the "supervisor" and he thought
English, with whom he was accustomed to confer, might
have "better knowledge of the thing" and "probably both
of us together could [a sentence he did not conclude] ";
and that, as English also testified, when he put the
problem to English, including the idea of the employees'
letter, English declined to have anything to do with the
matter-that "we" had started it and should end it. For
his part, English testified that on January 25 Cunningham
asked his opinion about a letter to the Board stating that
the employees did not want a union, and that he told Cun-
ningham such a letter "might help"; and that, on January
26, in a conversation he believed he must have initiated,
he had relayed to Retherford this much of what had trans-
pired in his talk with Cunningham the day before.
On the basis of this evidence, my distinct impression
English was speaking to a group of the men Moreover, English did on his
own admission make rather similar remarks to a number of employees In
the circumstances, and considering the more likely probabilities on the
record as a whole, I make the finding stated in the text as to his remarks to
the group
12 t make these findings on the basis of Holm's testimony, which I
credit over that of English (I) that he did not talk to Holm relative to
union activity, and (2) that he did not tell any employee he would find him-
self out of a job if he talked continually about the Union
13 According to Alday, English said he had on his desk a paper to give
up the Union which he told Alday he could sign anytime he asked to, and
further told Alday that employee Quinn was going to quit and he felt
Alday could get Quinn's job and perhaps a 10-cent raise While I believe
that Alday was endeavoring to testify truthfully, he may have been in
error in testifying that English said he had such a letter on his desk, since the
letter had not yet been prepared But I believe English in some way urged
Alday to sign such a letter, since he knew from his talk'with Cunningham
the previous day that such a letter was in train Hence, and since English
did not deny having had with Alday a conversation embodying the specific
statements Alday attributed to him but contented himself with denying
that he had had any conversation with Alday about union activities, I
make the findings about this conversation stated in the text
DAN CARTER COMPANY 317
that both English and Cunningham sought to slant their
testimony in Respondent's favor, and on what I consider
are the probabilities toward which the record as a whole
points, I believe Retherford's account of what he was told
by English and Cunningham. His account can be in-
terpreted to mean that the idea of the letter originated
with Foreman English, who sought and obtained assent
to the plan on the part of Cunningham (and perhaps
others) on January 25, just as English clearly was seeking
Retherford's adherence to the idea on January 26. I find
it difficult to believe that Cunningham broached the idea
to English as his own, in the light of Cunningham's own
testimony that he did not know how to drop the Union
and went to English for advice on the very matter.
Moreover, I am impressed by the fact that English never
specifically denied either (1) Retherford's testimony that
he had told Retherford he was going to arrange for Mrs.
Carter to come to the plant to type the letter, or (2) Al-
day's testimony that early on January 26 he told Alday he
had a paper on his desk to give up the Union which Alday
could sign any time he wished to. Hence, while part of
Retherford's account of what he was told might, if read
apart, be regarded as not precluding the possibility that
Cunningham came to English with the letter idea, other
things English said to Retherford and Alday, and other
circumstances of record, preponderate in favor of finding,
as I do, that the idea originated with English and was
promoted and advanced by him as a course for the em-
ployees to follow.14 -
In the course of the morning work period on January
26, Cunningham asked the shop employees to convene
during the 10 a.m. break period to see how many em-
ployees were for and how many against continuing "to
hold out for the Union." The meeting took place with all
employees at work present, and, with the employees
polled individually by Cunningham, a majority voted in
the negative. On the basis of this vote, the employees
then concurred in Cunningham's proposal that he get
typed up for them to sign a letter to the Board's represent-
ative stating that they did not want an election. Cun-
ningham then reached Mrs. Carter by telephone at her
home and told her that he and others did not want to be
represented by the Union, that they regretted their prior
decision, and that he wanted Mrs. Carter to come to the
plant to type up a corresponding letter to send to Mr.
Dean, one of the Board's representatives who had previ-
ously been in touch with Mrs. Carter. Mrs. Carter there-
upon came to the plant and, according to Cunningham, in
the light of explanations given to her by Cunningham
composed and typed the actual wording of the letter. The
text of the letter (G.C. Exh.4) reads as follows:
We, the undersigned employees of the Dan Carter
Company, respectively [sic] request that NO elec-
tion be held concerning collective bargaining in
respect to wages, hours, conditions and [sic] em-
ployment of the Dan Carter Company.
Cunningham then circulated the letter among the em-
ployees for signatures during the balance of the mcrning
work hours. Eleven of the 15 union card signers (includ-
ing two who had signed at Cunningham's behest sub-
sequent to the January 16 meeting) and one noncard
signer, signed the letter. Cunningham then had the office
secretary type an envelope addressed to Dean, went to
English from whom he borrowed sufficient money to
cover postal registration costs, and, making use of a com-
pany car with Englirh's permission, went to the post of-
fice and mailed the letter to Dean by registered mail and
a copy by ordinary mail to Carlton, both addresses being
supplied by someone in Respondent's office. He returned
to Respondent's plant about noontime, and went to
English's office where he informed English that he had
gotten the letter off.
On January 31, Foreman English handed to each of
four employees - Alday, Quinn, Holm, and Thompson -
a written notice (G.C. Exh. 2) reading as follows:
TO WHOM IT MAY CONCERN:
Any further malingering or talking on company time
will result in immediate dismissal.
JAMES ENGLISH
SUPERVISOR MILL
DAN CARTER CO.
These four signed union cards at the January 16 meet-
ing and were the only shop employees who did not sign
the January 26 letter opposing an election. (Quinn, Al-
day, and Holm refused to sign; Thompson was absent
from the plant that morning and hence was not shown the
letter.) 15
In reference to this matter, it is clear both from the
General Counsel's evidence and that of Respondent that
talk among the employees, and between them and
foreman English, during working time was a frequent and
regular occurrence - a characteristic of employment in
the shop - and not frowned on unless it resulted in con-
versational gatherings of employee groups. English un-
derlined and illuminated the picture when he testified in
relation to talking, that "We have one of the freest shops
you've ever seen," and when he further testified that he
had never before issued any such written warnings. It is
clear from the entire record that in the days following the
January 16 meeting, the Union was a leading topic of
such conversations, in some of which English par-
ticipated, and that they were abundant in volume and
remained so when the employees later split into two op-
posing groups as a result of the antiunion leadership taken
by Cunningham, with the prounion group narrowed down
to the four employees here concerned, as everyone knew.
With these basic underlying facts in mind, Foreman
English testified that, beginning a couple of days after the
January 16 meeting, these four employees bunched
together talking and, as other employees passed by, en-
gaged them as well in conversation; that the work produc-
tion of the four declined and he could not "get any work
out of them"; and that he orally warned them "at least,
two to three to four times" and then composed and gave
them the written notice. English (who previously testified
that he did not know what the four were talking about in
their allegedly many talking interludes) stated that at this
time these four were continuing to speak up for the union
" The least that the record warrants is a finding, supported by the
necessary implications of Cunningham 's and English 's testimony and the
surrounding circumstances , that the letter was the product of the joint
consultations between Cunningham and English , and one which English
supported and encouraged Cunningham to advocate
15 These four prounion employees likewise were not present at an em-
ployee gathering at the end of work the previous day, January 30, at which
Mrs Carter played a tape recording she had made of the conversation she
had had earlier that day concerning the election matter with Mr Dean of
the Board 's staff But the skimpy evidence as to how English passed out
word of the meeting to the shop employees fails to show that these four
were intentionally excluded
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause , in contrast , as I interpret his testimony , to a reduc-
tion in the volume of talk relative to the Union on the part
of the others , that is, those who had signed the January 26
letter . English also described Thompson as an employee
who had always talked excessively . Under examination
by Respondent ' s counsel , Cunningham testified that
these four talked "an awful lot ." Under later examination
by counsel for the General Counsel , he stated that the
four began their excessive talk about a month before
January 31 , and then as beginning after the January 16
meeting . He also described Alday as a fairly quiet man
when the other three would leave him alone and in this
line of examination sought , as I read his testimony, to
place Alday in no worse light than any other employee in
the shop . Other of Cunningham 's testimony makes clear
that the ferment of discussion among the employees after
January 16 pertained to the Union , including the division
of opinion he stated later developed over this subject, that
is, when he and other employees favored dropping the
Union these four "other guys" were holding out for the
Union.
As to the four employees , a composite of their
testimony is that talk among the employees was common,
that there was much talk about the Union and the
prospective election after the January 16 meeting, and
that they had not been previously warned orally as
English asserted they had.
On the basis of the foregoing testimony and other cir-
cumstances of record, I think the true facts are, and I
find , as to Respondent 's contention of excessive talk by
these four , that there was an exceptional volume of talk
among all the employees relative to the Union from just
after the January 16 meeting until just after the signatures
and mailing of the January 26 letter ; that between Janua-
ry 26 and 31 there was more talk on the part of three of
the four dissenters (those other than Alday) than on the
part of those who had signed the January 26 letter, and
that this talk related to their continued espousal of the
union cause despite the action of the others in signing that
letter ; but that the talking on the part of these three in
these final days did not in any significant degree exceed
the levels at which all employees had talked in the Janua-
ry 16 to 26 period. I further find , as intimated above, that
Alday was one of the least talkative of all employees
throughout this entire period . In the circumstances, I find
that English issued the warning notices to these four em-
ployees because of the nature of their talking , that is, their
continued support of the union cause , and not because of
any infringement of plant discipline or reduction of
productive output.
On January 31, employee Retherford gave a sworn
statement (G.C. Exh. 8) to Board Representative Dean
in Tallahassee, presumably responsive to unfair labor
practice charges filed that day by the Union. On a later
day not certain on the record , but which I conclude from
certain evidence was Friday, February 3,16 Retherford
quit his employment for reasons not at issue herein. On
the following Tuesday or Wednesday , he went to see
Foreman English with reference to getting his job back.
Just what all transpired in his conversation with English
is not clear from Retherford 's testimony except that, ac-
cording to him, he told English he was through with the
Union and wanted to or was going to see Mrs . Carter to
tell her this and talk to her about coming back to work."
According to Retherford , during the session with English,
the latter , in effect at Retherford 's request , called Mrs.
Carter at her home and arranged for Retherford to talk
with her . Retherford , who had made no mention of his
pretrial statement in talking to English , then proceeded to
Mrs. Carter ' s home . There , according to him, he ex-
pressed to her his wish or inclination to return to work
and volunteered to her that he was through with the
Union and that he had given , and had with him, a copy of
a sworn statement he had given to Dean . According to
Retherford (who testified that he "wanted" to show the
statement to Mrs. Carter), Mrs. Carter then asked him to
let her read the statement , he handed it to her , and she
read it , following which she told him to "go on and go to
work" and he replied that he was "thinking" about doing
so. Retherford then accompanied Mrs. Carter while she
showed one of her rental houses to a prospective tenant
and, when the two returned to Mrs. Carter 's home, Mrs.
Carter , according to Retherford , asked him and he agreed
to let her keep the statement . A day or so later, Rether-
ford met again with English , at which time he informed
English he had told Mrs. Carter that he was "probably"
coming back and that he was forgetting about the Union
(to which latter statement English replied that he was
"glad"). In connection with returning , Retherford told
English he wanted to come back but had another job with
more money and as a result it was agreed that Retherford
should receive a 25-cent -per-hour increase . He then
returned to work. On two or three subsequent occasions,
according to Retherford , he asked Foreman English for
the return of his statement, and on one of these occasions
English told him Mrs. Carter wanted to keep the state-
ment and on another told him that he had forgotten "to
get it."
Mrs. Carter's testimony is that she had no advance
word of Retherford 's visit to her home and that after she
invited Retherford in he said he wanted to talk with her.
Then, she testified , Retherford said he wanted to put "the
whole thing on the table "; that when he quit he had given
to Foreman English an untrue explanation for his depar-
ture and explained to her the real reason ; that he also said
"You ... may not like me any more.... I don't know
what ' ll come of me after the statement I've given , but I'm
going to tell you everything I've done"; that he said he
had given to Dean an affidavit containing statements he
wished he had not made ; that he took the copy out of his
pocket saying he wanted to show it to her; that Rether-
ford said "these people " wanted him to "mail it" but he
wanted her to have it and, apparently handing it to her at
this juncture, said "I'm giving it to you." Then, she
testified she read part of the statement and after question-
ing Retherford regarding one portion of the statement
Retherford said "Now, it 's yours. I'm through with the
Union." Then , she testified , the affidavit "was put away,"
she and Retherford went on the real estate journey
described by Retherford, and, after they returned to her
16 While Retherford speculated that he quit about January 26 or 28,
other evidence indicates that he was still employed at the time he gave the
pretrial statement on January 31 Since he seemed relatively confident
that he quit on a Friday , I conclude the quitting date was February 3
' ° English did not testify about this conversation or a second one he had
with Retherford after Retherford talked to Mrs Carter as hereinafter
described
DAN CARTER COMPANY 319
home, she told Retherford that if he wanted to return to
work to see English and tell English the truth about why
he had quit and why he had given an untrue reason.
Asa supporting witness, Respondent called employee
Toruno, who was performing some work at Mrs. Carter's
residence on the day she and Retherford met. Toruno
testified that he was present during the entire initial con-
versation between Retherford and Mrs. Carter; that
Retherford handed Mrs. Carter the statement and told
her he wanted no further part of the Union and was "sick
and tired of all this"; and that Retherford, alluding to
telephone calls from unidentified parties, further said he
was "supposed to mail" the statement but was not going
to do so and said "I'll give it to you." Called in rebuttal,
Retherford testified that Toruno was not present in the
room, but was "working out back," while he was talking
to Mrs. Carter; and confirmed his previous testimony that
he showed the statement to Mrs. Carter to read, and later
let her keep it, each in response to her corresponding
requests. 18
The narrow question presented is whether, after
Retherford referred to his having given the statement and
to having the copy with him, he thereupon gave the state-
ment to Mrs. Carter without more, as Mrs. Carter
testified, or pursuant to her request to read it, as Rether-
ford testified. Very real difficulty surrounds the resolu-
tion of this conflict.19 For from Retherford's own
testimony and the surrounding circumstances, it is abun-
dantly clear that in making his abject approach to Mrs.
Carter relative to regaining his job, Retherford was fully
prepared to show her the copy of his statement. That, no
doubt, is why he had brought the statement with him. On
the other hand, on all the record evidence and her
demeanor, I am satisfied that Mrs. Carter is the kind of
person who would have seized any opportunity, of the
kind plainly presented to her by Retherford, to become
possessed of evidence given to the Board in support of
the Union's unfair labor practices then already on file.
But precisely because the statement was adverse to Mrs.
Carter's interests, it may be doubted that Retherford
would have been disposed to turn the actual statement
over to Mrs. Carter unless necessary; i.e., unless
requested to do so. And having obtained his job back,
with a pay raise, it would seem that at the time of the
hearing Retherford would have had good reason to testify
that he had given the statement to Mrs. Carter absent any
request on her part (or, at least, would have had no strong
interest inducing him not so to testify), if that had been
the truth. Finally, on an examination of all the testimony
of record given by Mrs. Carter and by Retherford, and a
comparison of their demeanor, I consider Retherford the
more trustworthy of the two witnesses. Accordingly, I
credit Retherford's testimony and find that he gave the
copy of his statement to Mrs. Carter pursuant to her
request to read it.
At 10 a.m. on Thursday, April 27, Foreman English
addressed the shop employees. He referred to the fact
that he and the bulk of the employees had received sub-
penas (apparently issued at the behest of the General
Counsel) to appear at the hearing herein on the following
Tuesday, May 2; stated that the men were nervous and
upset and referred to the dangers of injury the men faced
if working under such conditions; and said the plant
would be closed that evening until, as employee witnesses
variously testified, "this thing was settled," "until this
was over," "until after we get through up there" ("there"
connoting the Federal building where the hearing was to
be held); and that if the "shop went Union" the men
would be cut to 40 hours per week and, because of the
loss of overtime, would lose money. Asked by some em-
ployee how long the plant would be closed, English ad-
mittedly stated that he did not know-that it might be
closed "one day, two days, ten days, or ten years." Later
that day, English notified the employees that the plant
would operate on the next day, Friday, to complete some
orders, which was done.20
On Friday, there was posted on the plant door, along
with a Board subpena served on Respondent, a notice
composed by Mrs. Carter and posted at her direction
reading as follows:
Our company is the victim. Until justice is done, the
company is forced to close its doors.
In connection with this cessation of production opera-
tions, Mrs. Carter, on her own initiative, called the editor
of the local newspaper - the Tallahassee Democrat - and
through him arranged to give and gave to a reporter of
that paper an account of her decision to close the plant
which appeared in that newspaper on Friday, April 28,
the day operations actually were brought to a halt. Mrs.
Carter admitted at the hearing that the account published
accurately reflects what she said to the reporter (with the
exception of two words, only one of which need be and is
noticed hereinafter). In the opening sentence, the article
refers to Mrs. Carter's decision to close the plant. It then
refers immediately to Mrs. Carter's charge that "four men
`duped' her employees into joining the Carpenters
Union" (in her testimony, Mrs. Carter identified these
four as the ones who did not sign the January 26 antielec-
tion letter but testified that she used the word "coerced"
rather than "duped"). The article then sets forth at length
Mrs. Carter's version of events of the case and certain
matters at issue herein, in the course of which there is at-
tributed to her the statement that, due to the emotionally
charged atmosphere, it would be too dangerous for the
employees to work- "fingers are cut off under the best of
conditions." The article then sets forth various reasons
given by Mrs. Carter as to why it would be burdensome,
financially or otherwise, for the plant to operate under
union rules; refers to her inquiry of a Board representa-
tive whether his agency would put up the funds necessary
to operate under union conditions and his alleged nega-
tive reply; and concludes by quoting the following re-
marks of Mrs. Carter:
The people should wake up and know that the
unions, backed by the federal government, are taking
over the country.
18 It is undisputed that Retherford never requested Mrs Carter per-
sonally to return the statement
10 The witness Toruno obviously gave so curtailed an account of the
conversation between Retherford and Carter (at a meeting which he
testified consumed about a half hour) that I do not think it can be relied on
to provide an accurate account of what was said or in what order
Moreover, in observing his demeanor and his expression of pronounced
antiunion feelings, I gained the impression at the hearing that he was
straining to testify in Respondent's interests Hence, after careful con-
sideration of it, I have in effect decided to disregard his testimony
20 During the course of Friday, English gave to several employees the
same vague indications as to how long the plant would be closed, e g , "un-
til this was over," "until we go to court and its all over," but again did not
state whether or when the plant would resume operations
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing , Mrs. Carter variously testified that she
closed the plant because the men were emotionally upset
and to protect them from accidents ; that their receipt of
the subpenas was the "straw that broke the camel's
back"; that she could not say whether or when she would
reopen the plant ; and that she would not reopen the plant
under the present conditions of "harassment " which she
defined , without supporting evidence in the record, as in-
cluding:
. constantly receiving registered letters, deluged
with these problems that you have no knowledge of,
you have your telephones ringing constantly at home
and in the mill people slamming up - such people as
this Holm- interfering with these employees , calling
them , threatening , yes, its harassment.21
In further testimony , Mrs. Carter engaged in apparent
contradictions , e.g., (1) that while the plant was closed,
the employees had not been laid off or terminated ; and (2)
that , on the one hand , she planned to complete unfilled or-
ders but, on the other , did not know whether she would
open the plant again.22
The language of the notice Mrs. Carter had posted on
the plant door , the fact that she posted such a notice on
closed doors , her concurrent statements to the press and
her causing their publication to the entire community, her
testimony at the hearing , and other of her conduct as
found herein , all combine to establish , as I find , that Mrs.
Carter brought production operations to a halt, and
deliberately left the employees in suspense as to whether
or when they would be resumed , as an act of retaliation
and defiance directed against all having any hand in in-
volving her in this proceeding : the employees who had in-
itiated the union activity , the Union which filed the
charges, the Board which investigated the case against
her Company and caused the proceeding to come to hear-
ing, and the four employees who had declined to abandon
the union cause . It may well be that Cunningham and
others were nervous and upset over the necessity to ap-
pear at the hearing . But I do not consider whether in dif-
ferent circumstances such an atmosphere would warrant
a cessation of operations for some corresponding period,
for that question is not presented here . What this case
presents is evidence which leaves no room for any but the
conclusion that the asserted emotional atmosphere and
working hazards were but a pretextual and, indeed , trans-
parent disguise cast over an act springing from deep and
sweeping antiunion and antiregulation motivations on
Mrs. Carter 's part . The evidence further indicates, and I
find , that the plant was closed , not pursuant to a decision
permanently to cease operations or to go out of business,
but one to suspend operations only for a temporary if in-
definite period , in short, a temporary and discriminatory
layoff, of the production employees concerned.
As previously found, Respondent made no reply to the
Union's letter asserting majority representation and
requesting recognition and collective bargaining, which
Mrs. Carter received on the afternoon of January 23. At
the hearing , Respondent sought to establish that, despite
the language of the cards, those who signed at the January
16 meeting were led to believe by what Carlton then said
that the object of signing the cards was merely that of ob-
taining an election . In this situation , careful consideration
must be given to the pertinent testimony - that of Carlton
and of the employees.
Passing over Carlton' s description of his rather exten-
sive preliminary remarks'23 the essence of his more per-
tinent testimony is: that in passing out the cards , he read
the language of the card aloud to the group and in doing so
explained that the card meant exactly what it said - "that
you are authorizing the Union to be your collective bar-
gaining agent"; that he explained that if 30 percent or
more cards were signed , it was the Union' s practice
simultaneously to file a petition with the Board requesting
an election and to make a written request for recognition
from the employer and that he would follow this
procedure in this case ; that he further explained that if
after these steps were taken the Respondent were to en-
gage in intimidation or coercion in the preelection period
then, should the Union have a card majority, there was
the possibility that the Board might "certify" the Union
"without an election"; that he did not tell the employees
that the only purpose of the cards was to get an election;
and that he told the employees they would not be asked
to join the Union until it was certified.
Each of the 13 employees who signed union authoriza-
tion cards at the January 16 meeting was called to the
stand by counsel for the General Counsel, who, in the
main, limited his direct examination to obtaining confir-
mation of the employee' s signature and to establishing
that 10 of the 13 had read the language of the card before
signing it (including one employee who had the card read
to him by a coworker). The more extensive testimony
concerning what Carlton had or had not said relative to
the cards was then developed in cross-examination by
counsel for Respondent , followed in the bulk of cases by
some redirect examination by counsel for the General
Counsel.
I am attaching as Appendix A to this Decision a sum-
mary of and quotations from the testimony of each of the
13 employees . As that summary shows , and as is even
more evident from reading the complete testimony, the
employee witnesses were plagued by the lack of an accu-
Li Mrs Carter first testified that she had been called at her home by
various employees who were "very upset" because they had received sub-
penas accompanied by requests that they contact the local Labor Temple
(presumably the Union ) so that Mr Fawcett , counsel for the General
Counsel, could interview them But according to her further testimony,
the only employee who called her was Cunningham , who allegedly told
her that he (and perhaps others ) did not want to be interviewed and asked
her advice She testified that she consulted an attorney and passed on to
Cunningham the attorney 's advice that those who did not want to be inter-
viewed should tell the Union that, while stating also that they would be
happy to meet Fawcett at the hearing
22 For his part , Foreman English testified that the decision to close the
plant was made by him and Mrs Carter and came about as a result of Cun-
ningham having told English that the men were nervous and upset by the
prospective "hearing" and that he would rather go home, that he, English,
had a discussion with Mrs Carter, and that she said that closing the plant
"probably was the thing to do " He gave further testimony suggesting that
the purpose was merely to close the plant for the duration of the hearing,
but he declined to state that , and asserted that he did not know whether,
the plant would reopen at the conclusion of the hearing For my part, I am
satisfied that the decision to close the plant was that of Mrs Carter, that
she is the one with whom rested or rests the decision as to reopening the
plant, and that English's testimony on these matters , and his various state-
ments to the employees , are to be evaluated accordingly
21 These concerned introducing himself, a description of the Union, its
organizatiQnal set up, internal procedures and benefits , the advantages of
collective bargaining , an explanation of employees ' self-organizational
rights, etc
DAN CARTER COMPANY
rate recollection as to the specific statements or words
Carlton had made or used, a deficiency which remained
evident despite the leading questions put to them by
counsel for Respondent. In any case, considering their
total testimony, no employee was able to give unqualified
or convincing testimony that Carlton made any statement
to the effect that the cards would be used for election pur-
poses only. Some testimony that Carlton made state-
ments to this effect was given by employees Thompson,
Bernhardt, Quinn, Wester, and Cunningham, usually in
response to leading questions put by counsel for Re-
spondent. But at some point in their testimony all of these
employees conceded their uncertainty of recollection as
to what Carlton had said. For this reason, in the end
Quinn, Wester, and Thompson admitted they could not
stand by their earlier testimony. Bernhardt's testimony I
consider of no value because he admitted at the outset
that, due to his deafness, he did not hear all that Carlton
said; because he receded to the position later that use of
the cards "for an election only" was merely "all I under-
stood it to be"; and because he also finally admitted that
he did not actually remember "just what [Carlton] did
say now." I likewise discredit the corresponding portions
of Cunningham's testimony, partly because of his
admittedly uncertain recollection; because his early
testimony that Carlton explained to the employees
that the card "was not a membership card, but it was
only for an election" refers, as other of Cunningham's
testimony and that of Carlton and other employees
indicates, and as I find, to Carlton's explanation that
the employees would not be asked to become union
members unless the Union won the contemplated elec-
tion; and because a reading of all of Cunningham's
testimony and his demeanor on the stand satisfy me
that he had, in fact, no true recollection that Carlton
made a specific statement to the effect that the cards
would be used solely for purposes of obtaining an
election.24 Indeed, a careful review of the entire body of
testimony these employees gave convinces me that all
that these employees actually could recall was that Carl-
ton said that the Union would file a petition for an elec-
tion if enough cards were signed , and that the morass of
hazy, uncertain, and unpersuasive testimony into which
they fell on the question whether Carlton said the cards
were only for an election was primarily the product of the
fact that, in his remarks, Carlton placed primary emphasis
upon an election as the immediate goal of the Union. Cf.
Henry!. Siegel, Co., Inc., 165 NLRB 493. In short, I am
satisfied that such testimony as was elicited from these
employees to the effect that Carlton said the cards were
only for an election represented their subjective impres-
sions rather than any actual clear and definite recollection
on their part.
On all the testimony, I find that Carlton did not tell the
employees that the sole purpose of their signing the cards
was to obtain an election.25 Of course, if in his remarks
24 There is other employee testimony that Carlton said "there had to be
an election " But in none of these cases did these employees testify that
Carlton then said anything else to the effect that the cards would be used
solely for this purpose, some of this testimony was receded from, and
some of it was to the effect that Carlton said there had to be an election be-
fore the employees couldjoin the Union, or before the Union "could come
in the Company " This sort of testimony does not warrant a finding that
Carlton made any statement that the Union would not use the cards for
any purpose other than in support of the election petition
321
about the cards Carlton had restricted himself to envisag-
ing an election as a consequence of their signature, the
cards might well be said to have conferred no other
authority, even if he had not, in haec verba, have said the
cards would be used solely for election purposes, for such
a limitation would seem to arise by fair implication. But
on evidence I have credited, Carlton did not so restrict
himself but, rather, read the language of the card aloud to
all signers , explained that the language meant just what it
said, and stated that he would demand recognition from
Respondent (as was done), as well as petition for an elec-
tion, on the authority of the card designations. In these
circumstances, I conclude that the cards must be deemed
adequate designations of the Union as bargaining agent of
the signing employees.
ULTIMATE FINDINGS AND CONCLUSIONS OF LAW
A. Alleged Independent Violations of Section 8(a)(1)
By Foreman English's interrogations of employee
Retherford concerning his prospective attendance at the
January 16 union meeting and concerning what or how
many employees had attended and had signed union
cards; by Carter's statements to the employees on Janua-
ry 23 that she would close the plant if the Union came in
(and by the similar statements made by Foreman English
to employees Thompson, Holm, Alday, and Retherford
and on another occasion to a group of employees); by
Foreman English's statement to a group of employees
that any employee who spoke up for the Union would
probably be penalized by a reduction in working hours;
by Foreman English's remark to employee Alday that he
was not going to let a lot of agitators talk him out of a job
and his simultaneously encouraging or soliciting Alday to
sign a letter to drop the Union; by Foreman English's
statement to employee Holm that when "this was all
over" he would probably be without a job; by the conduct
of Foreman English in promoting, and of Mrs. Carter in
assisting in the preparation of, the antielection letter of
January 26; by the warning notices issued by Foreman
English to employees Alday, Quinn, Holm, and Thomp-
son; and by Mrs. Carter's requesting and receiving from
employee Retherford a copy of the investigative state-
ment he gave to the Board authorities; all as heretofore
described and found, Respondent interfered with,
restrained, and coerced its employees in the exercise of
the rights conferred upon them by Section 7 of the Act
and thereby engaged in unfair labor practices violative of
Section 8(a)(1) ofthg Act.
B. Alleged Violation of Section 8(a)(3) of the Act
By its conduct in temporarily terminating its produc-
tion operations on April 28, and thereby temporarily lay-
ing off its production employees, all as heretofore found,
25 In reaching this conclusion, I also rely not only on the testimony of
Carlton but on that of employee Holm, with whose demeanor I was
favorably impressed As noted in Appendix A, Holm testified that Carlton
told the employees that the cards might "sometimes" be used by the
Union as bargaining agent without an election I have also given weight to
the fact that various employees testified that Carlton said he would file for
an election if sufficient cards were signed without adding, of their own in-
dependent recollection, that he also said this would be the sole use to
which the cards would be put
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent discriminated against its employees to
discourage membership in the Union , in violation of Sec-
tion 8 (a)(3) and (1) of the Act.
C. Alleged Violation of Section 8(a)(5) of the Act
Respondent does not contest the appropriateness of the
bargaining unit set forth in the complaint, and on the
evidence I find that such a unit is appropriate for collec-
tive-bargaining purposes, viz:
All production and maintenance employees includ-
ing installers and truck drivers, employed at Re-
spondent's mill at Tallahassee, Florida; but exclud-
ing all office clerical employees, guards, watchmen
and supervisors as defined in the Act.
Nor does Respondent contest the fact, which I find on
clear and undisputed evidence, that on January 16, 13,
and by 2 or 3 days later, 15 of the total of 16 or 17 em-
ployees in this unit had signed the cards designating the
Union as bargaining agent.26 And it is also clear and I find
that, on and after January 23, Mrs. Carter deliberately
failed to make any response to the Union's letter seeking
recognition and bargaining, and thus failed and refused to
bargain collectively with the Union as the majority
representative of the employees in the appropriate unit.
I have already dealt with and rejected as not supported
by the evidence Respondent's contention that Carlton in-
formed the employees that the cards they signed would be
used only in relation to the petition for certification, i.e.,
to obtain an election; and that the cards were effective
designations of the Union as bargaining agent of the em-
ployees. There is likewise no sufficient basis for accept-
ing Respondent's contention, barely mentioned in its
brief, that it had a good-faith doubt of the Union's majori-
ty. Respondent made no such assertion at the time.
Moreover, from what employee Retherford told Foreman
English on January 17, and on all the evidence and cir-
cumstances of record, including those surrounding and in-
volved in Mrs. Carter's remarks to the employees on
January 23, those surrounding the origin and circulation
of the January 26 antielection letter, and Mrs. Carter's
later statement to the press that the employees had joined
the Union, I am satisfied and find that prior to January
23, or by that date at the latest, English and Mrs. Carter
knew that a majority of the employees had previously
signed union authorization cards. Indeed, Mrs. Carter's
testimony indicates that at the time of these events she
was relying on the employee signatures to the antielection
letter of January 26 as having disposed of the majority
claim of the Union, rather than on any genuine an-
tecedent doubt that a majority had signed the authoriza-
tion cards. But the signatures to that letter must be disre-
garded because they were plainly the coerced result of
Respondent's contemporaneous unfair labor practices,
including, particularly, Mrs. Carter's January 23 threat to
close the plant. Accordingly, I find and conclude that
Mrs. Carter's failure to respond to the Union's request
was not due to any genuine doubt on her part that a
majority of the employees had signed the cards, but,
rather, with knowledge that a majority had signed, she
and English set about to (and did) vitiate any prospect of
a fair election and thus to wipe out such representative
status as the Union had been accorded by the cards. In
these circumstances, the cards are appropriate proof of
the Union's majority and, in disregarding the Union's
request, Respondent failed and refused to bargain collec-
tively with the Union as the representative of a majority
of Respondent's employees in an appropriate bargaining
unit, in violation of Section 8(a)(5) of the Act.
The unfair labor practices found above are unfair labor
practices affecting commerce within the meaning of the
Act. Respondent has not engaged in any other unfair
labor practices charged or at issue herein.
III. THE REMEDY
The order I recommend that the Board issue, set forth
below, requires Respondent to cease and desist from
further violations of the character found, including a
broad injunctive provision coterminous with Section
8(a)(1) of the Act in view of the scope and gravity of the
unfair labor practices found and the consequent
likelihood of their repetition.
The order likewise contains provisions for affirmative
action on Respondent's part which I consider necessary
to remedy Respondent's unfair labor practices and other-
wise effectuate the policies of the Act. Thus, the order I
recommend requires Respondent to offer to the em-
ployees it discriminatorily laid off on April 28 immediate
and full reinstatement to their former or substantially
equivalent positions and to make them whole for any loss
of earnings suffered as a result of Respondent's unlawful
conduct. Backpay shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289, with
interest added thereto in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716. The order
likewise requires Respondent to bargain, upon request,
with the Union; to rescind and expunge from its person-
nel records the warning notices issued to employees Al-
day, Holm, Quinn, and Thompson on January 31; and to
post the customary notices. I should add that I have in-
cluded the affirmative bargaining provision in the order,
not only because of the finding of refusal to bargain and
the need to remedy that violation, but as a step I consider
necessary to remedy Respondent's other unfair labor
practices in all the circumstances of this case, including
the effect of Respondent's other unfair labor practices in
precluding a fair election, even if it were to be found that
Respondent's conduct was not such as to have warranted
a finding of violation of Section 8(a)(5) of the Act.
Upon the foregoing findings and conclusions and upon
the entire record of the case, I recommend that the Board
issue, pursuant to Section 10(c) of the Act, the following:
ORDER
Dan Carter Company, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively with
Carpenters Local Union No. 2139, United Brotherhood
of Carpenters & Joiners of America, AFL-CIO, as the
exclusive representative of its employees in a bargaining
unit consisting of all production and maintenance em-
26 There were 16 employees in this unit at the pertinent times, excluding
a person named Jordan Even if Jordan were included, the Union had a
clear majority, hence, it is unnecessary to determine whether Jordan be-
longs in the unit, a matter left in such a state of uncertainty by Mrs
Carter's vague and obscure testimony as to be impossible of intelligent
determination on this record
DAN CARTER COMPANY
ployees, including installers and truck drivers, employed
at its mill at Tallahassee, Forida, but excluding all office
clerical employees, guards, watchmen and supervisors as
defined in the Act.
(b) Laying off or otherwise discriminating against its
employees to discourage membership in the above-named
or any other labor organization.
(c) Coercively interrogating its employees concerning
their union activities; threatening to close its plant or to
cease production operations because of the union ac-
tivites of its employees; threatening employees with
reduction of working hours or loss of employment
because of their union activities; attempting to bring
about the disaffiliation or disassociation of its employees
with the above-named or any other labor organization by
initiating, participating in, or materially assisting the con-
duct of, any corresponding movement or course of action
among its employees; issuing warning notices to its em-
ployees merely for the purpose of retaliating against them
on account of their self-organizational activities or of
discouraging such activities on their part; requesting any
employee to provide it with or to permit it to read any
evidentiary statement given by such employee in the
course of an investigation conducted in the adminstration
of the Act; or in any other manner interfering with,
restraining, or coercing its employees in the exercise of
any of the rights conferred on employees as set forth in
Section 7 of the Act.
2. Take the following action necessary to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with Carpenters
Local Union No: 2139, United Brotherhood of Carpen-
ters & Joiners of America, AFL-CIO, as the exclusive
representative of the employees in the bargaining unit
described above with respect to rates of pay, wages,
hours of employment, and other conditions of employ-
ment, and, if an agreement is reached, embody it in a
signed contract.
(b) Offer to all employees within the above-described
unit whom it laid off incident to its cessation of produc-
tion operations on April 28, 1967, immediate and full
reinstatement to their former or substantially equivalent
employment, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss
of wages they may have suffered as a result of Respond-
ent's discrimination, in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(c) Notify any of the above-named employees
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Rescind the warning notice given on January 31,
1967, to employees Alday, Holm, Quinn, and Thompson
and expunge said notice from the personnel records of the
said employees. This provision shall not prevent Re-
spondent from issuing or enforcing reasonable notices or
shop rules for business reasons, provided that any such
action is not taken for the purpose of retaliating against
its employees for any organizational activity or for the
purpose of discouraging organizational activity.
(e) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
323
records necessary to analyze and compute the amount of
backpay due and all other rights under the terms of this
Order.
(f) Post at its plant in Tallahassee, Florida, copies of
the attached notice marked "Appendix B."27 Copies of
said notice, on forms provided by the Regional Director
for Region 12, shall, after being duly signed by the
Respondent's authorized representative, be posted by
Respondent immediately upon receipt thereof, and shall
be maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of receipt of this
Decision, what steps it has taken to comply herewith.28
2' In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
2e In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX A
Employee Thompson testified that Carlton explained
that "You would get a group together, and then you
would ... sign cards ... stating that you did want to be-
long, or you did not want to belong, and if the majority of
the people in this particular place wanted to go ahead and
join the Union, then they would have a vote. If the shop
went union, why then there would be a bargaining system.
Thompson further testified that when Carlton dis-
tributed the cards he said those so minded should sign but
that it was merely a "request." Asked to state what was
meant by "request," Thompson replied "To see that if we
could have enough men in the shop to go ahead and go
Union," but on cross-examination responded in the affir-
mative when asked if the signing "was just a mere
request to hold an election." On further cross-examina-
tion, Thompson was asked if Carlton had told the group
"that the purpose of signing this card was to get an elec-
tion," to which he replied "To see how many we could get
that would be in favor of joining the Union" and further
testified that the purpose, as he understood it, was not
that of joining the Union "at that particular time." On
redirect, Thompson testified that Carlton said that, if
enough cards were signed, the Union would file a petition
and the cards with the Board and that he could not re-
member whether Carlton said an election was the only
thing the cards could be used for.
Employee Holm testified that in explaining the purpose
of the card, Carlton said it authorized the Union to act as
bargaining agent and that if 30 percent of the employees
signed, the cards would be filed with the Board with a
petition for an election. On cross-examination, he
testified that Carlton did not state that "signing this card
was just for an election." He further testified that, in addi-
336-845 0 - 70 - 22
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to stating that the cards would be used to petition for
an election if 30 percent or more were signed, Carlton
also said that "sometimes an election were not necessa-
ry" for the Union to use the cards as bargaining
agent-that Carlton said "It was done with a hearing,
where an election was not held."
Asked to state everything Carlton had said, Employee
Alday admittedly could not recall particulars but testified
that, so far as he could recall, Carlton said that if there
were obtained "a big enough majority to hold an election
(or `if we could form a Union,') the Union would stand
behind us." Later, Alday testified that Carlton did not
state at the time of signing the cards that the Union
represented the employees without the necessity of an
election but rather, as "the way I see it," Carlton said that
the "Union would stand behind us in trying to get an elec-
tion and in even further-after the election, if the Union
won."
Employee Retherford testified that Carlton told the em-
ployees there would be an election- that "the card was to
see whether we could get the majority of the ones that
was at the meeting to sign them, and that he would mail
them off somewhere-I don't recall where-to see if
there was enough of us signed them to have an election";
and answered in the affirmative in response to leading
questions put by counsel for Respondent to the effect that
Carlton had said there would be an election if a majority
signed and that Carlton said "there had to be an election."
He further testified that Carlton said that 30 percent
"Would be enough to have an election, that there would
be an election." Later asked whether Carlton had said
"that there would be an election or did he say that there
had to be" one, Retherford testified that Carlton had said
"there would be an election."
Employee Bernhardt first responded "That's right,"
when asked by Respondent's counsel if Carlton had said
that signing the card "was just for election purposes
only?" Asked then to recall all that Carlton had said,
Bernhardt stated "Well, I'm a little hard of hearing so I
didn't understand everything he said," but he understood
that Carlton "wanted to get so many to sign the card" and
that "it would not have anything to do with us being in the
Union by signing," but Carlton "just wanted to know the
ones ... that would sign the card.... And so they could
represent the Union"; and that "we had to have an elec-
tion before we could get in the Union, see, or before they
could do anything about it." He then testified again that
he could not remember all that Carlton had said, follow-
ing which he was asked if Carlton's statement "was that
the signing of this card was for an election only" and he
responded "That's all-that's all I understood it to be."
Asked what Carlton had said about percentages, the wit-
ness replied if "30 percent was-voted-that he could do
something about it, could automatically work on the
Union-took 30 percent." Subsequently he was asked
whether Carlton had said "that there had to be an elec-
tion, or that there would be in the future an election,"
Bernhardt stated he could not remember just what Carl-
ton had said-"I don't remember just what he did say
now."
Employee Hutto did not remember Carlton's "exact
words" about the cards but testified that Carlton ex-
plained that "we would have to have, I believe, 30 per-
cent to establish an election" and that "I think that after
30 percent of us had signed the cards, that the Union
would represent us at that time," and that "the cards were
to establish a vote."
Employee Quinn testified that it was "hard to say"
what Carlton had said about the cards. He went on to tes-
tify that Carlton said that "If we had 30 percent of the
people sign, we could get a vote - I mean - you know - an
election"; and that there would be a meeting with Carter
to arrange the election. Asked if Carlton had said that the
card was just for an election, the witness responded "I'm
not certain whether he made that statement, just to get the
election, or not. But, I think so." The witness was later
asked whether Carlton had said that the cards "would be
used to get an election or that it was just for an election"
and replied "I don't recall exactly which" but "It was one
or the other of them" and "if I had to swear to it either
way, I would say it would be for the election, not just for
the election." The witness then admitted that he could not
recall with any confidence what it was that Carlton had
said.
Employee Davis could not of his own recollection re-
member anything Carlton had said. Asked if Carlton had
said the card was just for election purposes, the witness
could not remember. He likewise could not remember
Carlton mentioning "30 percent" but then testified that
Carlton said "if 30 percent signed the card-I
mean-probably that would cause the Union to come in."
Employee Wester could not recall what Carlton had
said other than when he handed out the cards he said "we
would sign some cards now for-election on this." Under
leading questions then put by counsel for Respondent, the
witness variously testified that Carlton said the card "was
just for election purposes only"; that "if 30 percent voted,
then it would be an election"; that "if 50 percent signed
the cards, there would be no election." Later the witness
could not recall whether Carlton said the "card was for an
election ... or was just or only for an election"; that Carl-
ton said "It was for election," that "I know it was 'elec-
tion' in it, but I don't know just how he spoke that."
Employee Cabler engaged in long pauses when initially
asked to state what Carlton had said at the January 16
meeting, and otherwise exhibited a most limited and un-
certain recollection. As to an election, all he could recall
was that Carlton said "we'd have to have an election to
become a member of the Union." He later admitted that
he did not have a thorough recollection as to what Carlton
had said about an election.
Employee Green testified that when Carlton passed out
the cards he said "if you get 30 percent of the employees,
that they could have an election," and that Carlton did
not state that if a majority signed there would "not have
to be an election." He later stated that Carlton said "if 30
percent voted ... there had to be an election." Green
later testified that Carlton said "it would take at least 30
percent for them to even attempt to hold an election," and
that with respect to an election Carlton said "there had to
be an election for the Union to come in the Company."
Asked whether Carlton had said "there had to be" or
"there would be" an election, the witness paused for
some time and then stated "If I'm not mistaken, he said
there would have to be an election before a union could
come in the Company." Having earlier testified that Carl-
ton said he would throw the cards away if less than 30
percent signed, the witness later could not recall whether
Carlton had said this or had said he would throw the cards
away if the Union lost the election.
DAN CARTER COMPANY 325
Employee Cunningham , under examination by
Respondent 's counsel , first testified that Carlton said the
Union was trying to get as many cards signed as possible
"for an election to be held. If they get enough cards
signed , then there would have to be an election "; and that
Carlton also said that the card "was not a membership
card , but it was only for an election ." He then admitted
that he could not remember "just exactly " what Carlton
had said during the whole meeting but that , to the best of
his recollection , Carlton explained what the employees
were to expect from the Union through collective bar-
gaining " if we had an election and we did go Union."
Asked to recall what Carlton had said about "elections
and percentages ," he testified that Carlton said "we
would have to have at least 30 percent before we could
have an election" and that "there would be-would have
to be an election before we could be - could become
union members ." He further testified Carlton said "he
just needed a certain percentage , you know , to have an
election held . That's about all I can remember of that";
and that Carlton did not state an election would not be
necessary if a majority signed . He later testified that Carl-
ton said the cards "were to be filed only for an election
... and that Carlton did not mention any other purpose
for which they might be used . He later confirmed as cor-
rect a statement in his pretrial affidavit that , when Carlton
passed out the cards , "He said that the Union was going
to request an election , and that if a majority voted against
the Union , it would be dropped and the cards be thrown
away."
Employee Goff admittedly could recall little of what
Carlton had said on any topic over a period which he esti-
mated as about an hour and a quarter . He did say that
Carlton said that "by signing these cards , we could have
a vote , and if we had enough of a vote for it, we stood a
good chance of getting it ... of getting in the Union," but
he gave no testimony bearing on the question whether
Carlton said the purpose of the cards was merely to have
an election.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL NOT discourage membership in Carpen-
ters Local Union No. 2139, United Brotherhood of
Carpenters & Joiners of America , AFL-CIO, or
designation of that Union as bargaining agent of our
employees, by laying off or otherwise discriminating
against our employees because of their union activi-
ties.
WE WILL NOT threaten to close our plant or to
cease production operations because of the union ac-
tivities of our employees.
WE WILL NOT threaten employees with reduction
of working hours or loss of their jobs because of their
union activities.
WE WILL NOT coercively interrogate our em-
ployees concerning the attendance of our employees
or occurences at union meetings , or concerning other
union matters.
WE WILL NOT request any employee to permit us
to read or to have or retain possession of any
evidentiary statement given by such employee to the
National Labor Relations Board or any representa-
tive thereof in the course of administering the Na-
tional Labor Relations Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the right to join or not to join a union or to engage in
or refrain from engaging in union or concerted activi-
ties.
WE WILL offer to the employees we laid off on
April 28, 1967, immediate and full reinstatement
with backpay, and WE WILL notify any of those em-
ployees who may now be serving in the Armed
Forces of the United States of his right to full rein-
statement upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
WE WILL, upon request, bargain collectively with
Carpenters Local Union No. 2139, United Brother-
hood of Carpenters & Joiners of America,
AFL-CIO, as the exclusive representative of our
employees in a bargaining unit consisting of all
production and maintenance employees, including
installers and truckdrivers, but excluding all office
clerical employees, guards, watchmen and super-
visors, and, if an agreement is reached, embody such
understanding in a signed contract.
WE WILL rescind the warning notice we gave to
employees Alday, Holm, Quinn, and Thompson on
January 31, 1967, and expunge that notice from our
personnel records.
DAN CARTER COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 706,
Federal Office Building, 500 Zack Street, Tampa, Florida
33602, Telephone 228-7711.